To begin with, it must be remembered that jury trial in 1677 was still essentially mediaeval.1 The modern device of ordering a new trial when the verdict is clearly against the weight of the evidence was in its infancy. Again, at this date the law had barely begun to acquire experience in the handling of parole evidence; such rules as did exist were ancient and obstructive, for parties to the action, their husbands, and wives, and all other persons interested in the outcome of the litigation were incompetent as witnesses. It is obvious, therefore, that the law was faced with two alternatives in 1677: either the whole law of evidence as it then existed would have to be scrapped and replaced by a hastily improvised system upon modern lines, or else parties who desired legal protection for their transactions must be compelled to take the precaution of embodying them in documents whose contents and authenticity were easily ascertainable. The first alternative in point of fact hardly existed; it has taken two centuries of hard experience to develop the law of evidence thus far, and a great deal still remains to be done. It was only reasonable, therefore, that the profession, guided by Lord Nottingham,2 should have adopted the second policy; and from what has just been said it will surely be clear that under the circumstances they followed the only practicable path.
As far as these provisions refer to transactions concerning land there has been less serious cause for complaint. It is in matters of trade and commerce where business habits have always been to a large extent informal, that the principal difficulties have arisen. But there is surely some force in the argument that there should be, in common prudence, some impersonal evidence available when serious matters are at stake. “To be fair to its framers, we should, I think, remember three things”, writes Sir William Holdsworth. “Firstly, the law of contract was as yet young; it had been developed wholly by decided cases; and it had very few rules as to the characteristics and incidents of particular contracts. It follows that the framers of the statute were legislating on a branch of the law which was not fully developed, and on a topic which had not before been a subject of legislation.”
If a legal system is to depend upon legislation to any extent at all for its readjustment to newer needs, then the principle of legislation must be frankly admitted in its entirety, and the profession must be prepared to undertake a constant and sustained task of securing legislation again and again in order to enable the law to keep pace with the march of events. It is clearly illogical to impose legislation at long intervals, restricting the courts to the comparatively humble work of interpreting the letter, and then, when confusion results, to blame the legislature of two hundred years ago.1
THE HABEAS CORPUS ACT
The period from 1660 to the Revolution of 1689 is, however, more remarkable for its contributions to public than to private law. The one other great legal reform of the reign of Charles II was the passing of the Habeas Corpus Act2 in 1679. The writ of habeas corpus has played such a large part in the struggle for liberty that a short history of it must be given here.3 Like a good many other common law writs, its history can be traced back to the early age when legal procedure and administrative methods were still not distinguished, and, together with the other prerogative writs of mandamus, certiorari and the rest,4 its ultimate origin is in a simple command from the Crown to one of its officials. In the reign of Edward I there were several varieties of habeas corpus serving different purposes, such as to secure the appearance of a defendant or of jurymen. Gradually the courts acquired the habit of issuing the writ in order to bring before them persons who had been committed by inferior jurisdictions—particularly the courts of cities and local franchises. The motive of this policy seems to have been to enlarge the powers of the Courts of Westminster at the expense of local tribunals, and the result was not infrequently confusion and injustice. Parties were even allowed to use this process when they had been committed by judgment of local courts for debt so as to obtain their release and to defraud their creditors. It is not surprising, therefore, to find a steady stream of legislation restricting the scope of habeas corpus.
At the end of the fifteenth century the common law courts had nothing more to fear from local jurisdictions. A new antagonist appeared in the form of Chancery, followed soon after by the Courts of Requests and Star Chamber. The writ of habeas corpus was now turned against this larger game. The common law courts were indignant when Chancery committed parties for suing at common law after they had been enjoined, and Chief Justice Huse proposed to release such prisoners by means of habeas corpus (1482).5 The Courts of Admiralty and High Commission were similarly attacked, but it was in the seventeenth century that habeas corpus fought its greatest battle. The Crown had established the right of imprisoning without trial upon a warrant signed by the Secretary of State and a few Privy Councillors, alleging “her Majesty’s special commandment”.6 Against so serious a claim of State absolutism habeas corpus became in the words of Selden “the highest remedy in law for any man that is imprisoned”.
Throughout the Stuart period habeas corpus was steadily used and improved by the courts of common law. But procedural difficulties stood in the way. Darnel’s Case1 had shown doubts; the special command of the King was nevertheless there held to be a sufficient return, and this rule was only abolished by the Petition of Right.2 There were also doubts as to which courts were competent to issue it. Many of these defects were remedied in the Habeas Corpus Act3 of 1679, which after much discussion finally passed the House of Lords—and then only owing to a mistake in the counting of the votes, so the story goes. By this act any judge during term or vacation must issue the writ unless the prisoner is obviously committed by lawful means. Prisoners are not to be imprisoned beyond the realm, and the writ is to run in all privileged places. Later legislation at various dates introduced still further improvements. Some striking examples of its use in more modern times are Sommersett’s Case,4 where a writ of habeas corpus released a negro slave from confinement in a ship on the Thames, on the ground that an allegation of slavery was not a sufficient return. In 1798 the writ was used to ensure a trial at common law of a prisoner, Wolfe Tone, who had been condemned by a court-martial.5
THE STOP OF THE EXCHEQUER
There is one other incident in the reign of Charles II which must be mentioned, for it introduces us to a more modern element in law and society. Merchants and tradesmen who had the means frequently made loans as a subsidiary to their normal business. The scriveners (professional writers of “court-hand” who engrossed legal documents) were particularly associated with this business in the reign of Elizabeth, but after the Civil War and under the Restoration it was the goldsmiths who became most prominent. Moreover, these goldsmiths invented a few variations which really turned the old casual money-lending into professional banking. They accepted deposits from customers, at first merely for storage in their vaults, but soon in the more modern sense of deposits against which they issued notes.6 Already in Charles II’s reign, such deposits could be drawn upon by the customer’s cheque. The goldsmiths became financiers, discounted bills, and also purchased tallies (receipts for money lent to the Exchequer). These tallies were sometimes sold direct to the goldsmiths by the Exchequer,1 thus serving as the machinery whereby the government raised short-term loans, and in 1672 the Government found itself unable to meet them when they became due. This crisis was called the “Stop of the Exchequer” and had serious results for the goldsmiths and their depositors. Recent research suggests that the King’s motives may have been less fraudulent than the Whig