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This chapter surveys the principal features of the legal system of the later sixteenth century, beginning with the courts and their functions. Trials took place at the assizes in the country, separated from the legal argument in Westminster Hall. The court at Westminster did not hear the evidence but had to take the facts as encapsulated in Latin; the effect of this separation is considered. In absence of appeals as we know them, judges were unwilling to decide difficult cases, though the desire for unanimity was giving way to an acceptance of majority decisions. The cost of litigation was much lower than today, and most litigants in the highest courts were of a social status below the gentry. The chapter ends with an account of the legal profession in this period, which saw the rise of the solicitor. The inns of court played a central role as a residential legal university, attended by a substantial proportion of the English gentry.
This chapter surveys the substantive common law in the later sixteenth century. The rise of habeas corpus enabled the judicial review of prerogative jurisdictions and powers, so that the rule of law was now firmly rooted. The new atmosphere of rights was linked to Magna Carta, now rescued from oblivion. Private law was still dominated by the land law. Remedies for the protection of real property were simplified, but much confusion had been introduced by the Statutes of Uses and Wills, and a major new concern was the use of perpetuity clauses in family settlements to prevent the barring of entails. The law of contract is largely timeless, but the doctrine of consideration belongs to this period, and a decision of 1602 finally sanctioned an action for recovering debts without the archaic obstacle called wager of law. The law of tort was dominated by defamation rather than negligence. Criminal law was not the concern of practising lawyers and was relatively undeveloped, especially at the level of misdemeanours. The role of the Star Chamber is considered. The chapter ends with a brief assessment of Elizabeth I’s attitudes to law and justice.
This chapter focuses on comparison. It considers the effect on access to justice of abolishing the assizes and disposing of court buildings. Civil procedure has been transformed, formalism is less important, but there is eternal tension between practical efficiency and desire for absolute justice. Land law is less dominant today, even though for the first time a majority of householders are freehold-owners. Torts law has been transformed by the ever-expanding boundaries of negligence, though contract law looks very similar. While public law has moved in several new directions, judicial review’s roots are Elizabethan. Most of today’s human rights were recognised then. Judicial decisions have changed in character as a result of abolishing the civil jury; the public is less involved with traditional-type law. Debt-collection aside, horizontal disputes are less prominent than vertical claims, and tribunals have grown in importance. The complexity of statute-law and regulation today means that citizens have less understanding of the law than Elizabethans. One consequence is that the legal profession is ten times larger (in proportion to the population) than that of Elizabethan England.
This chapter continues with the differences between then and now and explores the difficulties of an evaluative comparison. The question is approached in terms of the rule of law, as now understood. In terms of accessibility, efficiency and fairness, in the sphere of civil justice the scales seem to be evenly balanced between the two periods. The criminal law, on the other hand, is now more protective of the accused and less severe; the removal of the death penalty, however, has led to the removal of some of the older safeguards. A meaningful comparison of the substantive content of the law in both periods is hindered by the intervening social changes and by changing attitudes to property and personal autonomy. The transformation of family law is a case in point. Nevertheless, the ultimate conclusion is that the law under two Elizabeths is in essence the same organism, facing similar challenges, and tackling them in recognisably similar ways. Much of what we regard as achievements of modern enlightenment should in fact be credited to the lawyers of the sixteenth century and the common-law heritage.
This chapter examines the common assumption that, whereas Elizabeth I’s reign was at the zenith of the age of common law, we have now moved into an age of statute. The Elizabethans themselves thought this was already happening: there were so many matters, such as poor relief and economic regulation, which the common law was powerless to tackle. The volume of legislation has continued to increase dramatically, and yet the sphere of the common law is still large and the interpretation of statutes is governed by common-law principles. The fiction of legislative intent, the concept of equity, and the mischief rule were all much the same as today’s interpretative techniques. The largest jurisprudential change has been the common law’s loss of immortality. A statute can, in an instant, extinguish an immemorial principle of law. The extinction survives the repeal of the statute, so that much of the current law is contained in repealed statutes. In this connection, the effects of the Interpretation Acts are considered. Legislation has come to dominate the law in terms of abrogative power as well as bulk, but the common law is superior in terms of clarity, flexibility and self-correction.
Comparative legal history is generally understood to involve the comparison of legal systems in different countries. This is an experiment in a different kind of comparison. The legal world of the first Elizabethans is separated from that of today by nearly half a millennium. But the past is not a wholly different country. The common law is still, in an organic sense, the same common law as it was in Tudor times and Parliament is legally the same Parliament. The concerns of Tudor lawyers turn out to resonate with those of the present and this book concentrates on three of them: access to justice, in terms of both cost and public awareness; the respective roles of common law and legislation; and the means of protecting the rule of law through the courts. Central to the story is the development of judicial review in the time of Elizabeth I.
Human rights were not invented in the 1940s and they certainly did not emanate from the Continent. When Blackstone referred to the ‘rights of all mankind’ 250 years ago, he said that they had been ‘more or less debased and destroyed’ in most other countries but remained, ‘in a peculiar and emphatical manner, the rights of the people of England’. Many of these English liberties were already of great antiquity when Blackstone wrote, though it would be historically naive to father them directly on the Great Charter of Liberties. Although Magna Carta was on the syllabus of the late-medieval law school in the Inns of Court, it was not seen as posterity has seen it. It was respected both as the Great Charter and the first statute in the statute books, but it was not a bill of rights or a scheme of government. It was a body of legislation giving rise to a lot of law, some of it very technical, some of it obsolete before the Inns of Court came into being. The benchers who lectured on Magna Carta in the fifteenth and sixteenth centuries glossed it phrase by phrase, sometimes word by word, but amid the welter of learning found little to say about constitutional principles or individual liberty. Indeed the ordinary gloss circulating in the early years of Henry VI's reign actually proclaimed that the king was above the law and not bound by Magna Carta. Far more time was devoted in the halls of the Inns to wardship and dower than to the fine-sounding words of chapter 29, which were so puzzling and controversial that it was unclear whether they had any legal effect at all. Trial by peers, they said, was confined to the peerage, and therefore the first part of the chapter could not, despite its wording, apply to all free men; selling right and justice was about charging fees for writs of right and justicies. The ‘law of the land’ was too vague to mean anything specific or fixed, since it could be changed by statute. In any case, the law of the land sometimes allowed imprisonment without due process, for instance when a constable arrested a suspect.