The Common Law and Western Liberty

More than twenty years ago, a young man of fine character visited me to describe what he had been learning, as a graduate student studying political philosophy, at one of this country’s better universities. He began with understandable enthusiasm (for he—a modest person—was rightly proud to be studying at a distinguished university) by telling me about what he thought was Thomas Hobbes’ new view of sovereignty, explaining that, according to Hobbes, laws are (can only be) the commands of the sovereign. Before he could proceed to describe Hobbes’ account of the individual’s fear of death leading to an original contract where the individual transfers authority and power to a sovereign so that the individual’s life may be better protected, I interrupted him with this question, “What did this view of sovereignty have to do with the Magna Carta?”

In response to my interruption, this polite young man, if his education had been different, could have deflected my question by patiently explaining to me that Hobbes’ view was but a version of the much older Lex Regia of Roman Law (for law as the command of the sovereign, see Digest 1.4.1 and 1.3.31; for the transfer of authority and power by the people to the King, see Institutes 1.2.6). He could have further reminded me that to understand properly the character and history of English sovereignty one ought to take into account the “Romanism” of “the flower and crown of English jurisprudence,” Henry Bracton (mid-13th century). Surely, he could have continued, the history of English law is one of an emerging legal uniformity at the expense of local custom through the sovereign’s centralization of justice—an observation, he could have noted to me, made by no less than Maitland in his 1887 edition of Bracton’s Note Book. Had I not been aware, he could have observed, that this legal uniformity had more to do with the expanding legal jurisdiction of the Crown during the 12th and 13th centuries through the latter’s institution of “itinerant judges” and the proposition that any (local) dispute which concerned the “King’s peace” could be treated as a plea of the Crown than the putatively immemorial and large body of laws of Edward the Confessor (c. 1042-66). Gaining confidence, he could have concluded that it is precisely this legal uniformity which is meant by the use of the word “common” in common law, at least by the time of Edward I, when “common law” was understood as the “law of the land”—law given to all men throughout the realm, in contrast to local custom and the abuses of local custom, for example, through the previous unchecked discretion of the sheriffs.

Putting aside the merit, or lack thereof, of such a possible response, this fine young man, alas, had no answer whatsoever to my question, except to say, “I don’t understand your question.” He did not know that the common law (a term not to be confused with its earlier, widely understood reference to the ius commune, that is, the general (or common) law of the Catholic Church) stood for law given to all throughout the realm not only in opposition to local custom but also as a bulwark against royal prerogative. And it is this defense against royal prerogative that accounts for that legal principle so crucial to the tradition of common law: the King is bound by the law of the realm, or, above the King is, in Bracton’s formulation, “the university of the realm” such that the sovereign is not the author of the law, but the guardian of the law. He did not know about John Selden’s carefully calibrated criticism of Bracton’s misguided attempt (in De Legibus et Consuetudinibus Angliae) to provide an English version of the Lex Regia which, so insisted Selden, was entirely alien to English tradition (see Selden’s 1647 Ad Fletam Dissertatio). And finally he did not know that there was a rich and, of special significance, contradictory medieval tradition of an original contract ceding authority and power to the sovereign (see Part Two of Otto von Gierke’s Johannes Althusius und die Entwicklung der naturrechtlichen Staatstheorien: Zugleich ein Beitrag zur Geschichte der Rechtsystematik, translated into English under the title The Development of Political Theory).

The problem of the young visitor does not rest primarily with the student; rather, it is the absence of the expectation that the study of political philosophy ought to include historical jurisprudence. Ironically, the same lack of expectation is often found in the training of those legal historians who are members of the departments of history of many universities—a teacher with a law degree who, disillusioned with the practice of law, returns to graduate school in history but whose curiosity and education rarely extends beyond some aspect of American law and constitutional history. And as is well known, the student in law school, even if he or she should surprisingly be introduced to a few predictable commonplaces such as the distinction between natural law and positive law or the “Hart-Fuller exchange,” will rarely be exposed to a history of the law that covers Roman law, common law, and comparative jurisprudence. Given this deplorable and one fears cultivated avoidance of how and why our legal tradition has taken the shape it has, one very much hopes that over the years Liberty Fund’s handsomely published, affordable reproductions of two classics of historical jurisprudence, Pollock and Maitland’s The History of English Law Before the Time of Edward I and now Plucknett’s A Concise History of the Common Law will, along with Liberty Fund’s conference program, contribute to rectifying what often appears to be a self-satisfied ignorance of the development of a crucial component of our civilization. Certainly my responsibility twenty years ago to my visitor would have been easier to carry out had there been available at that time Liberty Fund’s editions of these two classics. Nonetheless, at my suggestion and, no doubt, troubled by his inability to understand my question and its implication for a more complicated conception of the character of sovereignty, my visitor went off to read Pollock and Maitland’s History; and that he did was, I have always thought, an indication of fine character.

Even though magnificent or likely because it is magnificent, Pollock and Maitland’s History can, at times, be difficult going for anyone new to the early history of English law, as one is confronted by such relatively straightforward but still unknown terms as “hide”, “pipe rolls”, “scotage”, let alone the obscure “frithborgas”, and many more. And unless one is already aware of the controversy over fictitious and real “corporate personality” in the reception of Roman law, one is likely to be (perhaps rightly!) lulled into assent with Maitland’s discussion of the matter, beginning with the second edition of the History (1898). These kinds of difficulties are only further compounded by the lack of familiarity of most readers with early English history. But it is here where Liberty Fund’s reproduction of Plucknett’s A Concise History of the Common Law is especially welcomed. The book has a pleasing and heuristically most useful organization: the first half, Book One, a general survey of the history of English common law, is divided into three parts—The Crown and the State, The Courts and the Profession, and Some Factors in Legal History; the second half, Book Two, an introduction to the history of a few of the main divisions of the law, covers the areas of Procedure, Crime and Tort, Real Property, Contract, Equity, and Succession.

My young visitor would have been better served by me had I suggested that he begin by reading the first half (Book One) of A Concise History of the Common Law before plunging directly into Pollock and Maitland. There, Plucknett would have led him through: the history of the common law from before William’s victory at the Battle of Hastings (1066) and the Domesday Book up to the reforms of the 19th century; an overview of the history of the courts and the legal profession that includes the jury, parliament, and the legal profession’s literature, for example, Glanvill, Bracton, the Year Books, Coke, and Blackstone; and among “Some Factors in Legal History”, a discussion of Roman civil law, the Church’s canon law, and the development of the principle of precedent. Those who rightly think that a proper understanding of common law and its bearing on sovereignty and liberty has to include the history of that law would do well to turn to the first half of Plucknett’s A Concise History as a competent and well written introduction to that history.

The first edition of A Concise History of the Common Law was published in 1929; however, over the years Plucknett continually revised the manuscript from edition to edition, incorporating new material and making appropriate changes in response to his critics. His final revision, the fifth edition of 1956, is the one before us. As pleasing and useful the organization of A Concise History most certainly is, one should always remember that the book is an introduction, even though its 746 pages in length would force one to reach a new understanding of the word “concise” if it were not for the length of William Searle Holdsworth’s seventeen volume-long History of English Law.

The volume’s introductory character no doubt accounts for what would otherwise be a number of disappointments, for example, the absence of a developed contrast between common law and Roman law, or, especially from the vantage point of today’s reservations about the historiographical utility of the category of “feudalism”, a discussion of feudalism (506-20) that is largely commonplace, or in the chapter “The Law Merchant and Admiralty” (657-70) the lack of even a passing reference to the dispute between Grotius and Selden over maritime and mercantile law. And for those readers who are familiar with Maitland’s Collected Papers, there will be disappointment that Plucknett has discussed the trust (598-602) with no reference to Maitland’s analysis of it as a vehicle for associational liberty; nor did he discuss the Companies Act of 1862 (the so-called “Magna Carta of co-operative enterprise”) which Maitland (and Gierke) thought was so significant. Nonetheless, these kinds of disappointments must be weighed against all that this work clearly accomplishes; and when done so, their importance is greatly diminished.

As mentioned above, the second half of A Concise History consists of introductions to the history of a few of the main divisions of the law (Procedure, Crime and Tort, Contract, etc); and it is here where the student new to the study of common law will likely at times have difficulty, for example, the section on “Real Property” (506-623), specifically, “The Rise of Entail” (546-57). Still, even when a chapter seems idiosyncratically, relatively long for an introduction as the one on “Defamation” (483-502) appears to be, the history of the distinction between slander and libel must deal with so many matters—the Star Chamber, canon law, local courts, etc—that the patient reader will be rewarded. And the same may be said for those discussions (521-22) of dated views, for example, that of the so-called “mark system”—the view that the early history of the German village community had no private property— because Plucknett directs the reader to the proper criticism of this  view by the wrongly neglected Fustel de Coulanges (a criticism accepted by Maitland in his own rejection of Stubbs’ similar view of the early English village community).

Finally, Plucknett also takes on in the second half of the volume what any competent overview of the history of the common law should have, sections on Equity (675-707) and Succession (712-46). Both topics are complicated, with broad, social implications. And so, in the chapter “The Early History of Equity”, Plucknett (680) brings to our attention an early maxim of the lawyers that reminds one of Max Weber’s section on law in Economy and Society, where there is developed the distinction between the formal rationality of procedure in contrast to the substantive rationality of equity: “it is preferable to tolerate a ‘mischief’ (a failure of substantial justice in a particular case) rather than an ‘inconvenience’ (a breach of legal principle)”—a maxim that resulted historically in the separation between chancery and the common law. The section on equity concludes with a worthwhile chapter (695-707) on the history of the influence of chancellors—from Robert Burnell during the reign of Edward I to Thomas More to Francis Bacon to John Scott—on equity.

As to succession, even from the perspective of Glanvill that “God alone can make an heir” (722), that is, heirs are born and not made by writing, many complications exist in law, for example, what could and could not be deposed by will (chattels in contrast to land) or how a deceased’s property should be distributed if he or she dies intestate—a condition that, in turn, required determination of the limits of an executor’s or administrator’s scope of discretion. And, of course, with complete freedom of testation, there is the danger, if danger it be, of the eccentric, wealthy aunt whose love for cats knew no bounds, of the testamentum inofficiosum (746).

For all interested in law and its history, Plucknett’s A Concise History of Common Law merits a place in one’s library. And as I have attempted to argue, the same holds for those interested in political theory and history. Book One of the volume, and especially Part 1 of Book One, provides a well-written, necessarily sweeping but nonetheless engaging history of the common law that, as such, is quite useful for those new to the study of common law. It may be that the subjects and details of Book Two result in this longer part of the volume being used more as a reference work, however, even so, assuredly a valuable reference work. Plucknett’s A Concise History is obviously not the first noteworthy contribution of Liberty Fund to our society’s intellectual vitality and its traditions of liberty; but it is one of the more important of an already long list of contributions.