Liberty and the Common Law

Abstract

In preparing the few and elementary observations which I am about to make to you tonight I have wondered if the title I chose was apt or suitable. The Common Law is generally described as the law of liberty, of freedom and of free peoples. It was a home-made product. In the eighteenth century, foreign lawyers called it an insular and barbarous system; they compared it to their own system of law, developed on the basis of Roman and Civil Law. Many centuries before, and long after Bracton's day, when other civilised European nations ‘received’ the Roman Law, England held back and stood aloof from the Reception. It must have been a near thing. It seems there could have been a Reception here if the Judges had been ecclesiastics, steeped in the Civil Law. But as it turned out they were laymen, and were content as they travelled the country, and in London as well, to adopt what we now know as the Case System, instead of the rules and categories of the Civil Law. Hence the method of threshing out problems by debate in Court, and later on the basis of written pleadings which we find in the Year Books. For present purposes, all I need observe is that the Civil Lawyer had a different idea of the relation of the state or the monarch to the individual from that of the Common Lawyer. To the Civil or Roman Lawyer, the dominant maxim was ‘quod placuit principi legis habet vigorem’; law was the will of the princeps. With this may be compared the rule expressed in Magna Carta in 1215: No freeman, it was there said, was to be taken or imprisoned or exiled or in any way destroyed save by the lawful judgment of his peers and by the law of the land. Whatever the exact application of that phrase in 1215, it became a text for fixing the relations between the subject and the State. Holdsworth quotes from the Year Book of 1441; the law is the highest English inheritance the King hath, for by the law he and all his subjects are ruled. That was the old medieval doctrine that all things are governed by law, either human or divine. That is the old doctrine of the supremacy of the law, which runs through the whole of English history, and which in the seventeenth century won the day against the un-English doctrine of the divine right of Kings and of their autocratic power over the persons and property of their subjects. The more detailed definition of what all that involved took time to work out. I need scarcely refer to the great cases in the eighteenth century in which the Judges asserted the right of subjects to freedom from arbitrary arrest as against the ministers of state and against the validity of a warrant to seize the papers of a person accused of publishing a seditious libel; in particular Leach v. Money (1765) 19 St. Tr. 1001; Entick v. Carrington (1765) 19 St. Tr. 1029; Wilkes v. Halifax (1769) 19 St. Tr. 1406. In this connexion may be noted Fox's Libel Act, 1792, which dealt with procedure, but fixed a substantive right to a trial by jury of the main issue in the cases it referred to.