A Concise History of the Common Law. Theodore F. T. Plucknett

a long series of precedents on the subject of parliamentary privilege such as Shirley’s Case (1604),² and Darnel’s or the Five Knights’ Case (1627).³ The powers of Parliament were further asserted in impeaching unpopular ministers. Worse still, the procedure by bill of attainder was revived. Then again a long constitutional conflict arose over matters of taxation. The obscurities of this subject during the middle ages had never been thoroughly cleared up, and there was a good deal of justifiable doubt as to the powers of the Crown in this respect. Bate’s Case or the Case of Impositions (1606)⁴ decided that the Crown without the concurrence of Parliament could increase the rate of customs duties. A variety of other expedients were devised for raising money, such as the revival of the forest dues and the demand for ship-money. This latter was contested in Hampden’s Case (1637),⁵ which also was decided in favour of the Crown. It is noteworthy that previous to the trial the King called upon the judges to give him an extrajudicial opinion upon the questions at issue. Their answers were in favour of the Crown and were ordered to be read publicly in the Star Chamber and enrolled in all the courts of Westminster. In the midst of this conflict Sir Edward Coke was compelled to take a side, and finally became one of the leaders of the parliamentary party. The crisis came in 1616 when the Case of Commendams⁶ raised some technical points of ecclesiastical law and the validity of a royal grant in commendam. Coke’s dissenting opinion in this case immediately brought about his dismissal from office. Events steadily moved to a climax. The House of Commons defended its privileges fiercely and claimed complete freedom from royal interference for its debates and its members. At the same time the House was assuming control over every source of revenue and was deliberately using the power of the purse in an attempt to compel the Crown to dismiss ministers, and to pursue policies at the dictates of the Commons. It is this claim which makes the history of the seventeenth century so totally different from that of preceding ages, save, perhaps, the superficial resemblances in some respects which are to be found in the fifteenth century, while the Lancastrian monarchy was extraordinarily weak. Finally, the Commons embodied their demands in the Petition of Right¹ (1628) which contained a long list of grievances. Rehearsing a number of statutes and several provisions of the Great Charter, the Commons declared that arbitrary imprisonment is unlawful and that a Privy Council warrant setting forth the King’s special command shall be no sufficient return to a writ of habeas corpus. The unreasonable billeting of soldiers and the trial of civilians by martial law were likewise denounced.

THE CHURCH IN POLITICS

      From 1629 to 1640, Charles I contrived to rule without calling a Parliament. Grievances were steadily accumulating. The Church of England (unwisely led by Archbishop Laud) was suffering more and more from the spread of dissent, and it was inevitable that the Church and the Crown should make common cause against those who combined a dislike for the establishment with anti-royalist principles. The laws already existing against nonconformists were enforced with great harshness by those courts which were most amenable to royal influence—the Star Chamber and the Court of High Commission. Consequently, the conflict was still more embittered by the introduction of a religious feud. Finally the Church question was to be the ruin of Charles. He rashly undertook to impose Anglicanism in Scotland upon a people whose religious fanaticism even exceeded his own. A war was the immediate result and then came inevitably the summoning first of the short Parliament (1640), and then of the long Parliament (1640-1660). By this time, Parliament was master of the situation. The Earl of Strafford and Archbishop Laud were attained and put to death. Ship-money was abolished; so also were the Courts of Star Chamber and High Commission, and a statute was passed to prevent a dissolution without Parliament’s own consent. The Church and the universities were both attacked, and Charles replied by impeaching before the House of Lords five members of the Commons, a proceeding which the Commons claimed was their sole privilege. The House vigorously defended its members, and when the King in person came to order their arrest, the word “privilege” was uttered loud enough for him to hear. From this date (1642) the Civil War became inevitable. All sense of moderation was lost and in 1649 a revolutionary tribunal condemned and executed the King. From 1649 to 1660 various forms of government were devised which are of great interest as early examples of the erection of readymade constitutions. Most important of all was the Instrument of Government, a document which purported to be a fundamental constitution which was to be unchangeable save by particularly complicated machinery. This document, therefore, may be properly regarded as a prototype of the written fundamental constitution, as it is known to American public law.¹

THE COURTS DURING THE INTERREGNUM

Although Sir Edward Coke had found it impossible to avoid taking a vigorous part in national politics, his successor, Chief Justice Hobart, succeeded in winning the confidence both of the royalists and the parliamentarians. In fact, the courts were well served during the period of the Commonwealth; Henry Rolle became Chief Justice of the “Upper Bench”, while Sir Matthew Hale sat in the Court of Common Pleas during the Commonwealth and won royal favour after the Restoration. It is interesting to note that a good many anticipations of modern legal reforms were proposed during this period although it is hardly necessary to say that most of these premature advances ceased at the Restoration. Among them we may mention the settlement of the jurisdiction of the various courts in order to prevent the scandalous competition between them. Chancery, which had been bitterly attacked by Sir Edward Coke, undertook to reform itself; ecclesiastical jurisdiction had already been abolished. The growth of overseas commerce provoked the reorganisation of the admiralty courts, while district courts for small claims were proposed. Legal education was revived in the Inns of Court and legal records were for a time in English. A good deal of thought was given to a projected codification of the law, and a system of registering titles to land was likewise proposed. As early as 1648 an essayist suggested that there should be only two legal estates, fee simple and for life, abolishing the entail entirely. Rather less creditable was the proposal to restrict the equity of redemption to very narrow limits;² it is difficult to resist the conclusion that this project emanated from the military and financial interests who were deeply engaged in speculative, and sometimes corrupt, operations in land.³ The eleven short years of Republican rule were too much filled with war and high politics and religious dissension for these proposals to reach any very practical result, and the restoration of Charles II, in 1660, automatically restored the state of affairs as it existed at the eve of the civil war.¹

REFORMS AT THE RESTORATION

      The movement had its results, however, for Charles II’s reign was in fact a period of legal reform. At the very commencement tenure in chivalry was abolished. This abolition of a great deal of mediaeval law relating to such subjects as wardship, marriage and military tenure was counterbalanced, however, by an increase in complexity in other departments of the law of real property. There may be a certain amount of truth in the suggestion that has several times been made, that periods of civil disturbance have been frequently accompanied by the development of new devices by the conveyancers with a view to tying up property in land so as to put it, as far as possible, beyond the reach of such political accidents as forfeiture and improvident management. Thus the fifteenth-century landowners seem to have resorted to the use as a protection—which the legislature soon defeated, however—against the frequent forfeitures of legal estates attendant upon the Wars of the Roses. So in the seventeenth century the widespread confiscations of royalists’ properties² during the period of the Commonwealth was accompanied by numerous developments in the art of conveyancing which from this date onward reached an astonishing degree of technicality.

THE STATUTE OF FRAUDS

The reign of Charles II saw the enactment of the Statute of Frauds (1677). This statute has been so constantly before the courts from that day to this, and has been adopted in so many jurisdictions, that a few words must be said as to its origin and policy. There exist a number of drafts and projects of legislation which illustrate quite clearly the problem involved.³ A detailed examination of these drafts confirms the claim of Lord Nottingham to the principal share in its authorship,