Okally dokally then everyone. Last time, we reached Berkeley Castle in the depths of the night, echoing with the screams of Edward II. English history is such a catalogue of love and comfiness, perfect for snuggling up in bed with, together with a hottie so you can drift gently off to the land of nod.
Talking of comfy stories, the constitutional history has brought us to what, in my humble opinion, has to be the greatest story in English royal history; the tale of Edward III. What a story! Love, glory, companionship; derring do and thoroughly reprehensible and yet thorough fabulous foreign conquest and glory. Tragedy, betrayal, sex and exploitation and death. It has absolutely everything. Where is that Mini series Auntie?
Well if we were to do a minis series, you lot would of course turn up your collective nose at all that sex and glory stuff, thump firmly on the table and demand the series focusses exclusively on the constitutional innovations of the realm, and a detailed discussion of the 1352 Treason Act. You’d write letters to your MP in the strongest possible terms. And you’d be right to do so.
Because putting aside for a moment all the judicial changes, which I’ll do of a piece in a while, Edward III’s reign is a fascinating period for the relationship between monarch and monarched, subjects I mean. There’s little doubt I think that Edward deeply resented the way his father was removed and murdered, and visited his revenge on Mortimer. Lord knows what he’d have done to his mother if he was in a Greek tragedy, eaten her in a leek stew with nan on the side or something I’d guess, but fortunately for Isabella he wasn’t. None the less, he resolutely turned his face away from revenge and towards glory – goaded, it has to be said by the French, who in the end left Edward very few options for avoiding war. Jus sayin’. Edward’s strategy though had a couple of fundamental requirements. Firstly, his nobility needed to be at his side – after all, England taking on France was like Ansty Nomads taking on Liverpool. At footie that is. And he needed no trouble back at home while he was strutting his stuff in the greatest kingdom of Christendom. Secondly, he needed plenty of the folding stuff. Well it wasn’t foldable back then, um the clinking shiny stuff; money and lots of it. Sinews of war and all.
And so the reign shows a series of concessions by Edward that had the Victorian historian Stubbsy putting his head in his hands in horror. None the less, the cause of parliamentary government was advanced, with frequent parliaments, continuing the process of embedding the principle of consent for taxation.
You might be wondering, if fact I am sure you are, about the relative roles of Commons and Lords; these days we are used to the idea that the Commons rules the roost, but all your knowledge of medieval and dark age history will tell you that politics is all about king and aristocracy. How did that play out in parliament? Well, the first thing to say is that while the expression House of Lords doesn’t appear until 16th century, from Edward III’s reign the parliament was already clearly Bicameral; they would start each parliament in the same place, the painted Chamber where king or ABC opened proceedings, and then split off, the Lords going to the White chamber. Partly this was led by social superiority, but it also reflected the different standings in other ways; the lords were called to attend by the king, individually by name, whereas the Commons were elected and representative – on election they were awarded the right of plena potesta, the power to bind their constituents to the decisions of parliament, which is an interesting principle. It took until 1461, by the way, for the property qualification for electors to be set. Famously, because it survived for so long, the qualification was set at freeholder with 40s income; it’s a sum which included yeomen and even husbandmen and the time, and with inflation because it was fixed, it gradually enlarged the electorate. I say electorate; how often contested elections happened is very moot; really the process has been described as selection rather than election. So, most were uncontested, and stitched up by major magnates on the basis of buggins’ turn. The Franchise in the boroughs meanwhile was set by 1430, and once again would often be the product of oligarchy rather than what we might see as democracy.
So Lords and Commons sat separately and carried out their deliberations apart, but consulted together; sometimes this was informally, often a more formal committee, to manage business through the house.
The general point is that through the 14th and 15th centuries in particular, the House of Lords and court was where the real politics happened; and in fact the traditional view used to be that the Commons was entirely subservient to the lords. These days, the view is not so black and white; it is clear that the commons could cut up rough in certain circumstances. Certainly, kings spent considerable trouble ensuring that they could control the commons. One of the ways of doing that was to pack the commons with royal servants; in 1453, an extreme case, 61 of the 278 MPs were royal servants. The total number of MPs by the way did not include any clergy, since the church had argued fiercely that they should sit in their own convocation. They would come to regret that with the arrival of Henry VIII. In the lords, numbers, including abbots and Bishops tended to be more than 70, less than 100.
During Edward III’s reign it became accepted that it was the Commons’ role to set the level of taxation and give assent – and it was a right they defended hotly. Legislation could come from Lords and king, driven often by petitions presented in the commons; the Lords would scrutinise legislation that came to them from the commons, and could make unilateral changes – while the Commons rarely amended bills sent down to them by the Lords. However, by the 16th century it had become reluctantly accepted that from wherever legislation was initiated, it must receive the assent of the commons, and its rather instructive as to how this came about. In 1414 the Commons made the assertion
It has ever been their liberty and freedom that neither statutes nor law so be made unless they have given assent thereunto. [1]
Now historically this is utter hogwash; and yet this will be a constant technique that will advance the cause of liberty bit by bit, the appeal to some ancient rights, almost exclusively dodgy. The Lords used the same technique to establish their right as the High Court of the Kingdom in Richard II’s reign, and to insist that a noble of the realm must be tried by his peers, in the lords
…it pertained to the lords of parliament and to their franchise and liberty of the ancient custom of parliament to be judges in such a case, and to adjudge such a case with the assent of the king[2]
You see? Appeal to ancient customs – an appeal to maintain and preserve rather than innovate and change, to restore ancient rights. And yet by so doing, innovating and changing. Odd. Essentially if you are a monarch, your moto must be watch ‘em like an ‘awk and don’t give ‘em and inch or before you know it they’ll have your trousers.
Anyway I guess that counts as a digression because I am supposed to be talking about Edward III, and all that tragedy and all. By 1376, Edward III was a shadow of his former, glorious self. His son and companion in arms the Black Prince was dead, as was his wife and muse Phillipa of Hainault; he appears to have been losing his marbles, and was seriously under the control of the evil mistress, Alice Perrers, who although not being Queen behaved as though she was. She had partners in crime – Latimer the Chamberlain, Lyons the Master of the Royal Mint who through corruption and control of the king’s enfeebled mind controlled the kingdom. There is more than a hint of Theoden and the halls of Edoras about it, but where was Gandalf?
Their downfall was once more the need for money, forcing them to call a parliament. And the mood of the Commons was ugly; speaker after speaker complained that subsidy after subsidy had been misused by the king’s ministers and Alice Perrers. From the melee appear one voice, not of Gandalf, but of one Peter de la Mare, a sheriff but also a man with the ear of the powerful Earl of March and therefore some protection.
Now as we’ve said, the Commons were used generally to doing what they were told – this time they did not feel like it, not one little bit. So when the Duke of Gaunt in all his grandeur came to demand new taxes, their knees would have knocked gently together. Gaunt was every bit the big man, full of contempt for the lowly commons – knights of the Hedgerow he called them. Gaunt tried to browbeat the commons by admitting only their spokesperson – at which point de la Mare stepped forward – the whole Commons had agreed he should speak for them. De la Mare faced Gaunt down, and insisted the Commons all be allowed to enter.
We have good records of this parliament, and some of the conversation by which de la Mare faced down Gaunt and took the fight to the king’s counsellors, Lyons, Latimer and Neville, laying out their corrupt practices. Here Peter de la Mare uses an approach that had emerged only in Edward I’s day, when in extremis Edward allowed himself to provide redress before supply. What that means is – up to that point the king demanded a subsidy, everyone doffed their caps, bowed and scraped, repeated yessir several times and then meekly held out petitions for the king’s consideration if he wouldn’t mind awfully, but not if it’s a bother your maj sir. Providing taxation in times of war was a requirement. But then on that occasion, and here in the Good Parliament in 1376, the Commons were taking, and holding the initiative – you make us happy, pal, and then we’ll think about your need to fill your purse. So – redress of our grievances and problems, before supply of taxation for your wars. Redress then supply, not supply then redress.
Desperate for the tax, and divided amongst themselves, the Lords gave way; and the price of the tax was the removal of the king’s corrupt ministers – Latimer, Neville and Lyons – and his mistress, Alice Perrers. The process for bringing these lot to trial and justice was an indictment initiated by the House of Commons, to be investigated and judged by the Lords. There is a little confusion about the words – the OED tells me that the word empeach as an accusation was in use from 1387; but in terms of a legal process, OED uses a quote from 1640. Not sure what’s going on here, but this is what we have here in effect; impeachment. Now, the struggle over the king’s ministers was effectively, in the long term, a struggle over who controls the executive, and the accountability of the executive to parliament. As far as the king was concerned there was no monkey business – he was the government, he appointed whomever he liked, and don’t dare criticise my decisions because you know, I’m God’s anointed. In 1376, parliament took to themselves the right to say no – we obviously don’t question your omniscience, sire, but your counsellors are evil, and must be removed. Wild. It’s worth noting that this startling innovation and shift in practice came on the back of a concession Edward III had already made in 1341, that Ministers should be appointed in Parliament. Thus was the link between parliament and executive government forged.
Secondly of course a new tradition was born – that of the Speaker, in de la Mare’s case and in the modern parliament, the Speaker is the representative of the Commons to the Lords and Crowns. Now in the very next parliament, the lords had their revenge, ministers were re-instated, Peter de la Mare removed; and until 17th century, the Speaker becomes more like the king’s representative in the commons. Even Alice Perrers returned, to then strip the rings from the fingers of the enfeebled, broken and dying model of chivalry before legging it.
But despite this quick defeat, the genie was once again ex bottle, as free as the air, on a life trip to Bangor with Steeleye Span – Impeachment would remain, as would the role of Speaker as the Common’s representative. This is a model for so much constitutional change – a big bust up or clever manoeuvre, vengeance and reversal – but none the less the establishment of a principle that survives.
Ok, our next destination ladies and gentlemen is the 16th century. I had an iTunes review the other day, lovely review of course, people are always lovely, but making a complaint about too much time on a fat morally ambiguous philanderer. Well sadly we’ll be going back to the fat, morally ambiguous philanderer for a while because the reason we all study the Tudors so much is that their reigns defined so much about England, and if at school you thought they were boring them I’m sorry to be aggressive about this but you might well have not been paying attention. Before we do that, though, let us revisit the law for a few nuggets.
First point to make is that the 13th, 14th and 15th centuries follow a relentless progress towards the professionalisation of the law. We have seen Henry II transplant the stem cells of Common law into the bone marrow of the kingdom, and now we hope to see the neutrophils and lymphocytes flourish. This for me is a topical metaphor, if I ever listen again it will remind me.
Shall we have a quick reminder of what Common Law is then? Much of what you will hear about law comes from a book by the child that lived, Harry Potter in his book Law, Liberty and the Constitution. Like many people, Harry loves the Common Law and gets very passionate about it; not being a lawyer it’s slightly difficult to know whether this is hyperbole or had any truth to it. Harry writes
England’s common law, however imperfectly, ensures justice and liberty, and in that respect equals anything the English have achieved in the arts and sciences
Now look, I am a lowly historical story teller, ex publisher and purveyor of fine educational assessments so what do I know of this claim? I do know that people do get very teary eyed about Common Law; I have no idea if in other jurisdictions people get so enthusiastic about their law. However, it does at very least have its own history and characteristic. It owes relatively little to Roman or continental systems, because as we have heard, the Normans brought almost no law with them, and the Roman civilisation of England was rather wiped out by those naughty Anglo Saxons. Civil law, the most commonly used system of law among western countries, is based on Roman Law, dating back to the laws of Justinian in 600, though obviously amended in each system since then, and it is codified. Common law on the other hand relies on precedence; judgements made in similar cases or from judicial opinions on specific matters, as well as Statute law, that is, law made in Parliament. It includes the concept of equity – the ability for judges to apply justice in line with something reassuringly vague called ‘Natural law’.
Now I as I say I am not a lawyer, and expect a chorus of complaints but I’m going to have a hack at describing why folks wax so lyrical about Common law. The reason seems on the one hand to be flexibility; the interpretation of case law and the use of the principles of equity allow judges plenty of leeway in making judgements. Another is that it is organic; Common Law has evolved from customary law over a long, long time; it has grown up with us and changed and adapted to circumstances. There’s an assumed love of tradition here I guess, so you may disagree with the idea that it accommodates the ‘wisdom of the ages’ sort of thing. And then there’s participation thing, in the inclusion in the process of the community – in the juries, for example, once in a wider sense even more than now, since there were Grand juries to identify crimes and Petty juries to make verdicts on individual cases. Well, there we go. Apparently currently about 150 countries have systems based on roman law, and 80 on common law – but I have read quite a lot suggesting that most systems have elements of both.
Why common law then? Does it pick it’s teeth in public, or do moonies at the coach carrying Roman law to the game? Not quite – but close. We are going to hear about Glanvil in a minute, the jurist who wrote, in the 12th century that common law meant the
Settled law of the king’s court common to all free men in the sense that it is available to them in civil causes if they will have it, and applicable against them in serious criminal causes whether they like it or not.
We’ve seen that Henry II laid the stem cells of common law, though it’s maybe important also to point out that the origin lies even further back to some degree in the customary laws and codes of Anglo Saxon England. But I am told that it is the legal profession that really puts the flesh on the bones created by the crown. I was told that by a lawyer, as it happens. Oddly.
Well the crown steadily professionalises the legal infrastructure, and makes that infrastructure permanent and stationary and gives them a home, rather than having to follow the king around on his travels. First up was the court of the Exchequer. You will all know by now, that the exchequer was so named from the chequer board used to help keep account of the sheriffs’ returns; the court was initially at least there to deal with financial disputes with the crown.
Then one fine day, loud groans were heard from the exchequer court, along with the odd ‘get that idiot out of here!’ and with a scream and a slap a new court was born, the Court of Common Pleas, not to be confused with the Court of Garden Peas, and this was the main royal court, the Court of Common Pleas.
It was then joined by the Court of the King’s Bench sometime after 1230, which court had the power to review judgements of the Court of Common Pleas, though with no jurisdiction over garden peas.
Then there’s the court of Chancery around 1400, a court of equity drawn from the king’s council, its authority drawn from royal prerogative. Its name comes from the Cancelli or wooden screen behind which its clerks worked, fab fact for you to drop next time you are trying to pick someone up by showing your erudition, a great way to chat people up I am told. What is a court of equity I hear you ask? Well these were cases where judges had the right to come to a decision based not on precedence, but of some notion of natural justices; they were popular giving quick results until the king started to use them as an easy way to get what they wanted. However, equity courts had no jurisdiction over cases like rape or murder.
The court of Star Chamber, established in 1348, was another equity court of the king’s council, and so known for its ceiling with gold stars, Amazingly, said ceiling still exists, bought by a hotel in the north west. Good golly. And finally the court of Requests was another equity court for people that could not afford to go to law.
All these courts were crammed into Westminster hall each with their little corner. What a racket there must have been. And as surely as barnacles grow on boats, commerce joined the game with lots of pop up shops selling books and legal kit. And meanwhile there’s a load of blokes just lounging about doing their very best not to look suspicious, with bits of straw sticking out of their shoes. These were the so called men of straw, and the straw indicated that their testimony could be bought; it is not the origin of the word Strawman, However.
Well, I was saying that some lawyers had drawn me aside and let me know that Lawyers were responsible for the common law, and I guess the point is that a strong and expert legal profession grew up; and the existence of permanent, well trained professional judges was essential to making decisions over competing precedences and custom and creating one effective body of the best common law.
There is as yet no advocacy in courts, nothing like the system of advocates that you might be used to from the telly like QC, or Silk, or Crown court for the longer in the tooth; but the increasing complexity meant clients and judges needed counsellors. The first to emerge were so called Narratores[3] who were given access to courts to enter the plantiff’s plea in a clear and effective manner. They organised themselves into fraternities called serjeants at law.
The growing demanded for well trained lawyers gradually generated the four inns of court that grew up after the middle of the 14th century around Holborn in London. The point about these lawyers therefore defending and growing Common law was that they were trained here, in what together effectively constituted a third university, in the ins and outs of Common law – not in Civil and Canon law; those were taught at Oxford and Cambridge universities. And with this conveyor belt of expertise from the inns of court common law was revised and updated and adapted through case law; Statute law was still a tiny part of the mix at the point.
The growing complexity, extent and professionalisation of common law led to the creation of manuals to ake some attempt to bring a clearer understanding of the underlying principles and a corpus of case law to train the new professionals. After the 12th century Glanvill, ‘On the laws and Constitutions of England’ was created by a judge, and completed by his clerk, after whom it is named – Bracton. It began a process of producing year books, and so the corpus of and access to case law grew – out of which would grow the idea that these precedents were legally binding, though not until 19th century; in medieval common law, judgements were often not written down in detail or reasons for the judgements given. With written year books the judges and serjeants at law were better able to bring together the various cases, and develop judgments based on those precedents
The author of Bracton had been trained in Roman and Civil law, and part of his intention flowed from that codification that underlay Roman law. But in Roman law the king’s will was law; and indeed many monarchs in England would continue to show that aspiration that the monarch was above the law. But increasingly the legal profession didn’t agree with them. So, in Bracton appears the idea that sure, the king has no equal; he is instead
Under God and under the law, because law makes the king …for there is no king where will rules rather than law[4].
In the 15th century we get another of these famous codifiers of English law – sir John Fortesque who wrote ‘In praise of the laws of England’ and therefore also started a brave and long English tradition of telling everyone what a great legal system we have here, presumably followed with a statement of how many hours would be billed as a result. Sorry, that was a low, cheap shot.
He also started another tradition by laying claim to deep antiquity, predating the Roman invasion; this would be an important tradition in asserting the primacy of law. And Fortesque joined in with the venerable tradition of goading the French; he contrasted the French royal governance, where the king’s will was law and he governed without consent, to the English ‘political and regal government’ which meant that common assent was required to laws. The Roman concept that ‘what please the prince has the force of law’, claimed Fortesque, was alien to the English system, where law derived from the consent of the people who had ‘submitted of their own will to the government of the people’. Here then is one of those principle so important to the arrival at a modern constitution; the recognition that the people are sovereign. However, this was the 15th century, and as you may know, there’ll be a deal of arguing back from monarchs before they sulkily accept this fundamental truth.
While we are on Fortesque, he also the first to record what would become a grand series of declarations by great if slightly pompous legal writers of the enlightenment, like William Blackstone and Voltaire;
One would much rather that twenty guilty persons should escape the punishment of death, than that one innocent person should be condemned and suffer capitally
Well, you heard it first in the 15th century. Although he’s also attributed with the phrase comparisons are odious which I always thought was John Lydgate, also in the 15th century, all of which goes to prove that there’s nothing new under the sun. Ecclesiastes 1:9.
Fortesque also made the point that unlike in France, no one could be condemned on the strength of confessions extracted by torture. It’s worth noting that the lad was in exile in France at this time, and I would imagine the French might be thinking he was abusing their hospitality. But maybe this is the place to discuss torture – what do you think? Or is this podcast torture enough?
Very quickly then, torture was not a standard part of the judicial process in England, where after the Lateran Council of 1215 and the withdrawal of the godsquad, the jury system developed and it was the Jury that was required instead to judge on the truth or otherwise of the accusations, rather than God.
Roman law relied on an inquisitorial system, where in order to gain sufficient evidence torture was admissible to gain a confession from the accused; not only visited on the accused it might be said, but also on witnesses that the inquisitor felt were holding out. The truth must be established, or seen to be established, whereas common law through the jury system gave great leeway. In 1252, torture was authorised by the Pope for use also by the church inquisitions.
Evidence discovered under torture was dismissed as unreliable in Common law; in addition it contravened a basic principle. It’s all explained by Francis Bacon
By the law of England no man is bound to accuse himself. In the highest cases of treason torture is used for discovery and not for evidence
What Bacon also points to then is that torture was used for discovery not evidence, by which usually he means that torture is used to discover accomplices. So that is not to say that torture was never used in England; it could be used in capital cases, and derived from the royal prerogative – and therefore could be authorised by the King or his Council. So torture was used on the Jesuit John Gerard in Elizabeth’s reign to try to make him reveal other Catholic priests, which he resisted with stunning courage.
In fact there are 81 warrants that survive for the period between 1540 and 1640 in England, and accounting for a few losses that’s probably about 1 a year. It’s use was not even though; Elizabeth was by far the worst offender, frequently setting her corgis on people she didn’t like. Sorry, rubbish joke, Elizabeth I was the worst offender as she and her Privy Council rather panicked with the flood of priests coming from the continent to try to save Catholicism in England, and support the faithful. James VI and I authorised it but 6 times, and that great tyrant Charles I but twice. The last 2 to be tortured were a pair of London Apprentices who led a march in London in 1640. Let me tell you, if every Apprentice who caused trouble had been tortured then England would have been right up at the top of the league table, not down in the relegation zone. Anyway, Charles felt he had to be seen to be doing something so, William Archer was racked to reveal fellow conspirators; the lad knew nothing, so it was as brutal as it was useless. On the advice of the far from merciful Thomas Wentworth, Earl of Strafford, Thomas Bensted and William Archer were then hung drawn and quartered. If it comes up an a rather grisly pub quiz then, the last person to be the victim of authorised torture in England was William Archer, 1640.
In this case, then, the vagaries of Common Law had a humane impact – hurray for common law! But in another way, it had a less than humane impact – boo for common law. The rules required a plea to be entered; if the defendant refused to do they were subjected to ‘Peine forte et dure’; this meant they had heavy stones loaded on them until they either entered a plea or died. Why I hear you say, would you refuse to plea? Well, only someone convicted at trial could have their estate confiscated, so the brave souls who refused to plead at least died in the knowledge that their families would not starve. Peine forte et dure was a feature of English justice from 1275 to 1772, when a conviction was substituted for no plea; in 1827 this was replaced by a plea of Not Guilty imposed for those refusing to plead. The wheel of justice turns slowly, but it turns.
You really need to stop me talking, but just before we finally hop off to the Turgid Tudors as I promised ages ago there is one, just one, last thing to do, and that is to mention the Justice of the Peace a role that really comes into his own. Now Harry Potter appears to have delivered the adava cadaverer curse on this topic, so I should now mention J H Baker’s introduction to English Legal History. It’s a great book if you want more detail, but I’d advise a stiff drink before you open it.
JPs originated around the end of Richard I’s reign, that’s Richard Yay or Nay, the great Coeur de Lion to you, 2 knights of the shire were appointed to Keep the peace. By the 14th Century, the older structures of justice, the shire and county courts, the sheriffs had come to be rather tatty round the edges, like a mouse nibbled cheese. Many of the hundred courts were in the pockets of the local magnates, the role of the once mighty sheriffs had been surplanted by either magnates with franchised rights or royal commissions. There was a very real danger that England would become like a collection of regional satrapies.
The Justice of the Peace did much to hold that in check, as during Edward III’s reign a series of statutes extended their role. Their jobs were at once judicial – to hold the quarter sessions of the hundred courts, which dealt with all pleas not reserved to the crown, and the quarter sessions which would survive until 1971; and administrative functions such as provision for the poor and orphans of the parish, maintenance of highways and a myriad of local government tasks. They became the principal check on regional power, acting on behalf of the crown, since their authority rested on a royal commission, and therefore their relationship was directly with the crown rather than dependent on the local magnate. Bracton described the people who took up the role as busones, an odd word meaning sort of Big Men; often they’d have local authority enough to resist the local magnate, they’d probably attend parliament too, and so they were directly connected to the centre. The JP will be at the centre of the English judicial system for centuries.
OK, that’s it promise, off to the Testy Tudors. Now, if I had a nip of scotch for every complaint on Twitter that ‘we just went on and on about the tudors, no one ever taught me about traditional basket weaving in Eastern Hungary, our education system is a DISGRACE’, I would have a serious liver problem. The point is that it’s not about Henry, it’s about the absolute centrality of the Tudor period for the rest of English history – politics, religion, culture, national awareness, naval development, exploration – and constitution. Just to paraphrase Beefy Botham, or Lord Botham as I should now call him I guess, you need to spend less time watching the waistline and more time watching the cricket. Or history in this case.
It’s the same for the constitution, but I will be brief, because I am indeed conscious of having made a meal of this in the History of England. Before I do, let me mention again the the courts of equity, chancery, requests and Star chamber which I mentioned earlier, since it is during Tudor times, under the auspices of famous names like Thomas Wolsey and Thomas More, that equity courts begin to acquire greater prominence. One of the problems with Common law was becoming to be that as it professionalised it became more complex, and therefore expensive and slow; it became more rigid also – making judgement according to the law preferable to delivering justice. This gave judges a problem; do they make judgements according to their perception of justice, or was it the letter of the law to be applied irrespective of whether it seemed right or not? For a judge this was a major issue, and again another great argument for juries; effectively, it become the Jury’s job to decide what was justice; judges began to instruct them to produce verdicts ‘according to their conscience’. This judges were saved from a difficult morton’s fork of unpalatable choices.
There was another solution to his problem and to the problem of complexity. The way out of it was through the ancient right of recourse to the king as the font of all justice; as the number of petitions grew asking for the king to intervene, the king delegated his power to judge according to conscience down the Org Chart to the Lord Chancellor. Successive chancellors worked out rules for equity courts, which included written depositions – a sort of inquisitorial approach rather using juries. Equity courts were quick, and they sought to deliver fairness. Now I don’t know about you, but the phrase Star Chamber strikes fear into my heart, a symbol of tyranny from which the brave parliamentarians like Pym, and Hampden, and radicals like Lilborne saved us all to live in peace and harmony. Cry Harry and all that. Although joking apart, when I was in gainful employment we had an end of project review for all projects. The boss jokingly called it the Star Chamber. How we laughed.
Anyway, yes, Star Chamber has that connotation of tyranny, but it didn’t in the 15th and 16th centuries, people rather liked it, quick justice that sought fairness, what’s not to like? The trouble is that the judgements could be utterly arbitrary, taking no notice of the law. And so, if a tyrant came along looking to use the freedom of equity to put away his political enemies – well then there would be trouble.
OK, so back to the politics and constitutional stuff then, and we were talking about how lucky you all were to do 16 solid years of the tudors at school, with your head held under the tap if your attention wavered for an instant. The reign of the Tudors first of all transformed, in 1542, the legal position of Wales, bringing it into the same legal and administrative structure as England and representation in parliament; law was to be administered in English. Franchises such as the Welsh and Northern marches were either removed or weakened, greatly extending the reach and standardisation of central authority.
Religions changes now, the Act of Supremacy. Quite apart from the fact that the monarch was now the head of the church, changed to Governor of the church under Elizabeth, suddenly parliament’s competence included religion, there’s a thing; and no longer was there a foreign power in the Pope who could interfere in English governance or be appealed to by English subjects.
During the reign, despite the statute of proclamations, it became established that Statute law was supreme over judge made law; and indeed over royal proclamation. And therefore it was also established that one statute could only be repealed by another – the king couldn’t just proclaim it out of the way. So that’s a thing. And then there’s this, from Henry VIII, often lazily referred to as a tyrant
“We be informed by our judges that we at no time stand so highly in our estate royal as in the time of parliament”
Golly. So here we are then at a central concept of the British constitution then as now – at its basis is a mix of crown and parliament. It seems invisible to us now – parliament is surely supreme, and it is, though more of that in a future episode, but its authority is still based on a combination of the king’s authority, and the liberty and rights of the people as represented in parliament – and so the king in parliament is the basis of the BC.
I have one more point to make about the English Long reformation – so throughout the Tudor period including Elizabeth. It made religion, and particularly anti catholic fears a core part of British politics for the next 150 years or more, although the principle of toleration in terms of private practice of religion was effectively sorted earlier. But it also did something else; among all the too-ings and fro-ings, intolerance, anger, fury accusations…the reformation in Elizabethan times became a genuine national conversation in which people at all levels of society and walks of life were involved – conformist, Traditionalist, fiercely catholic, puritan – many different flavours. The right of English people to interpret the bible as they saw fit would flower in the 17th century in particular, but maybe the death of the potential for uniformity, surely clear by 1600, promoted a sense of a public right to debate and a voice for all. I busk, but it’s a thought.
Well that’s enough to convince you about the Tudors surely? But for once, I have actually managed to deal succinctly with as big subject, we’ve done 3 centuries, well done me. But don’t worry it won’t happen again.
Nest time, then, in British Constitution 3, the Revolutions we’ll maybe deal with various revolutions, glorious or otherwise, and bring us to the threshold of modernity. I shall look forward to it. Thank you for listening everyone, thank you so much for being members, good luck and have a great fortnight.
[1] Payling, S in A Short History of Parliament, Jones C p78
[2] Given Wilson, C in A Short History of Parliament, Jones C p24
[3] Baker, J An Introduction to English legal history pp197-200
[4] Potter, H Law, Liberty and Constitution p92
