The Rule of Law, 1603-1660

Crowns, Courts and Judges

James S. Hart JR, James S. Hart

• Publisher: Routledge
• Year: 2014
• Print ISBN: 9780582238565
• eBook ISBN: 9781317891857
• Topic: History
• Subtopic: British History
• Index: History

This book measures contemporary attitudes to the law - within and outside of the legal profession – to see how c17th century Englishmen defined the role of law in their society, to see what their expectations were of the law and how these expectations helped shape political debate – and ultimately determined political decisions – over the course of a very turbulent century.

PART I

---

Foundations of the Law

CHAPTER ONE

---

The Structure and Machinery of the Law

The courts

The Crown’s ability to govern England depended to an inordinate degree on the successful operation of its legal system. It was a matter of both principle and practice. Every monarch undertook a sacred obligation in their coronation oath to provide ‘equal and right justice’ between party and party, and to preserve the King’s Peace by enforcing laws and maintaining order. Good government was defined in precisely those terms. In practice, the absence of an elaborate paid bureaucracy forced the Crown to rely heavily on the existing judicial institutions at both the central and local levels to impose its will.

The machinery at its disposal was multi-layered and complex. It included a number of components, each of which had emerged from different sources, at different stages, to meet different needs. Common law courts sat side by side with those of equity, and both disciplines interacted in various ways not only with a variety of conciliar courts, which had emerged from (and included) the King’s Council, but with an elaborate system of ecclesiastical courts. The whole in fact represented very much more than the sum of its parts.

The common law

The most straightforward, ‘systematic’ component of the system was that of common law. It was also the most important, simply because its reach was the most pervasive and its antiquity – and therefore its authority – was beyond challenge. The three central courts of common law – King’s Bench, Common Pleas and the Exchequer – had all developed at various stages during the early Middle Ages and each had initially been intended to address a specific problem. King’s Bench had actually evolved in two directions, exercising a wide-ranging criminal jurisdiction on its so-called ‘Crown side’, and a more limited civil jurisdiction – ‘the Plea side’ – to handle cases in which the King himself was a party or in which the Crown had a direct interest.

Common Pleas, on the other hand, had developed to ensure the provision of justice in cases between private parties where the King had no immediate interest, and over time it had assumed responsibility for hearing the greater bulk of suits for the recovery of debt and property. The Exchequer of Pleas, as it was formally called, had evolved from the Crown’s central accounting office, and more directly from the need to ensure the proper collection of Crown revenue. Over time it too had assumed responsibility for adjudicating disputes over taxation and rating and that inevitably led to the development of requisite judicial procedures and to the establishment of a permanent court. Like King’s Bench, it was primarily concerned with the King’s business, in this case the collection of his debts, but its procedures – which were, of necessity, simple, swift and sure – were gradually made available to the employees of the court and then extended to all Crown servants, notably sheriffs, who were required to render accounts to the Exchequer. By the fourteenth century it was actually possible for anyone alleging a debt to the Crown to use a fictitious procedure called Quominus to collect their own debts in order, allegedly, to better satisfy their obligation to the King. In this limited way, it too became a court of ‘common pleas’.¹

In actual fact, the nominal jurisdictional boundaries which had initially distinguished these courts had by the seventeenth century begun to break down. Competition between the courts for clients and their fees had led the courts, most especially King’s Bench, to be more flexible, to accept cases based on harmless fictional claims which allowed litigants to bring their suits within the ambit of that court. By the early seventeenth century all three common law courts were entertaining common pleas and were providing similar kinds of remedies. The consequences of this were doubleedged. On the one hand, the competition between the courts and the ensuing interplay between the courts, litigants and their advocates, guaranteed that the common law system would remain dynamic and adaptable and, therefore, effective in providing an increasing variety of remedies for increasingly complex problems. On the other hand, however, it invited legal gamesmanship. It encouraged litigants to play one court off against another and to engage in multiple law suits in order to tie up and exhaust opponents with vexatious proceedings. As will be seen, this inevitably led to confusion and to a pervasive sense of insecurity and uncertainty about the law. That concern would prove to be extremely debilitating to successive Stuart governments.

From the Crown’s perspective, however, the real importance of the common law system lay less in the effectiveness of the central courts than in the efficient operation of the twice-yearly assizes. They were essential to the government’s success in maintaining order. By the seventeenth century they had evolved into a very sophisticated and complex operation.² The original purpose of the assizes, defined by medieval practice, remained. They were designed to bring the King’s justice into local communities by allowing central court judges (and select Serjeants at Law) to hear both criminal and civil cases, the former through the general commissions of Oyer and Terminer and Gaol Delivery and the latter through proceedings at Nisi Prius.³ In practical terms, the proceedings had proved to be singularly advantageous. For the litigant, of course, having the critical stages of a case conducted locally, before locally constituted juries, was not only far more convenient, it was far less expensive. The commissions of Oyer and Terminer and Gaol Delivery likewise relieved local magistrates of much troublesome business and removed the responsibility of transporting criminals and local juries to London. The regularity of the process and the relatively limited number of professional participants allowed the judges to establish greater consistency and uniformity in devising solutions and applying penalties, all of which reinforced notions about the law’s equanimity. That was clearly one of the Crown’s critical aims in attempting to centralize legal administration.

The other was more subtle but no less important. It was to provide a constant reminder of the King’s ultimate authority in law. The justices of assize always acted under the express authority of a royal commission, freshly drafted for each biannual session. The grandeur and ceremony associated with their arrival in the local community, the austerity and formality of their conduct and the seriousness of their proceedings were calculated to emphasize, above all else, the coercive nature of their authority. ‘For rural society and average litigant alike, Assizes assumed the awful remoteness of a divine visitation.’⁴ The judges were seen to be ‘stewards of the Royal power, charged with implementing the Royal will’.⁵ And, indeed, they were. Quite apart from the specific demands of legal administration, much of the attraction of the assizes, from the Crown’s point of view, lay in the opportunity they provided to communicate to local magistrates the wishes of the central government. The itinerant justices were the indispensable link in that process, and the Crown took great care to prepare them well in advance for their tasks. The Stuarts followed what had become, by the end of Elizabeth’s reign, the customary practice of assembling all twelve common law justices and those Serjeants designated for circuit, and as many local magistrates as happened to be in London, to hear the Crown’s ‘charge’ for the upcoming assizes. The charge typically included detailed instructions about the enforcement of particular laws and/or policies with which the Crown was especially concerned, and it was expected that those directions would be duly passed down the chain of command from the assize judges to sheriffs, JPs and constables at their respective levels of local government. This process was crucial to the administration of early modern government and it was taken very seriously. James I personally instructed the justices on numerous occasions – rather than relying on his Lord Keeper, as was traditional – and once lectured them for over three hours on both their responsibilities and his expectations.⁶ The judges’ performances were also carefully monitored to ensure compliance with royal instructions.

In actual fact, governing through this process was really only effective if information passed in both directions. The judges were therefore expected to report, in writing, not only on the general state of the country, but on the specific problems regarding local conditions or the performance of local magistrates which they had discovered on their assigned circuits. James I insisted on this after 1616. In fact, the judges’ status and their multiple responsibilities guaranteed them ready access to the inner circles of local government and society. The information they acquired in the process was invaluable, not only in calculating responses to specific local problems, but in fashioning general policy. The uniqueness of the common law system was that it functioned on so many different levels simultaneously, addressing the needs of private justice, law enforcement and government administration as part of a seemingly unified, coherent process. In fact, most contemporaries would not, in all likelihood, have even bothered to make those distinctions. Good government was simply defined as maintaining good order according to law.

The courts of equity

The common law system had its limitations, however. It was, comparatively speaking, conservative in its remedies and hidebound in its procedures, relying largely on ancient forms and writs to conduct the business of its courts. The growing use of legal fictions (however grudgingly accepted) had broadened the jurisdictional boundaries of these courts, making them available (and attractive) to greater numbers of litigants, but the range of remedies at their disposal was still relatively limited, and certainly too limited to offer comprehensive relief from the myriad complications of seventeenth-century litigation. The volatile commercial and agricultural economies of Stuart England, to say nothing of the fluctuations of an increasingly fluid land market, produced litigation of ever more bewildering complexity. Much of it, increasingly, fell outside the procedural definitions and requirements of common law.

In such cases, the responsibility for assuring relief and resolving conflict reverted, according to theory, directly to the Crown: to the King personally, because of the sacred assurances undertaken in his coronation oath, and, administratively, to his Council (or to any ancillary bodies which might have evolved from it). That had always been true, and it remained so under the Stuarts. Indeed, James I personally continued the tradition, at least for a time, of entertaining private complaints from petitioners who had been unable to find relief at law, and took considerable pride in his own and his Council’s ability to effect speedy resolution.⁷ But the Council proper was not a court, in any conventional sense, and had long since proved itself unable to meet the burgeoning demand of disaffected litigants. English administrations of the fifteenth and sixteenth centuries had already conceded the point and had seen to it that those responsibilities had devolved to other conciliar tribunals. So, except for very rare cases of singular national importance, the Council’s own ‘judicial’ responsibilities in this period largely entailed acting as a kind of ‘clearing house’, referring complaints and petitions to single members (or to ad hoc subcommittes of the Council) for arbitration or to other more appropriate venues.

By the beginning of the seventeenth century, there were a number of options available. The transfer of conciliar responsibilities to new legal institutions – and their subsequent refinement by the Tudors – had been one of the Crown’s most impressive legacies. Chief amongst those institutions was undoubtedly the court of Chancery. Chancery’s evolution as a court had been entirely natural and logical. The Council had frequently referred troublesome cases to the Lord Chancellor, in part because of his authority as a leading member of the Council, and in part because of his access to the machinery of government. The office of Chancery had begun life, after all, as the King’s Secretariat, and had had the responsibility of creating new writs to initiate proceedings at common law. Parliament had eventually curtailed Chancery’s authority to devise new writs, by statute in 1378, but established writs continued to be drafted in Chancery and were required to pass the Great Seal, thereby directly involving the Lord Chancellor (its custodian) in the ordinary administration of justice. He remaine...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Abbreviations
• Preface
• Introduction
• Part I. Foundations of the Law
• Part II. Royal Government
• Part III. Parliamentary Government
• Part IV. Cromwellian Government
• Conclusion
• Select Bibliograph
• Index