[MUSIC] Well, I'm joined here today in the, in a temple, one of the great Inns of Court, by Professor John Baker of the University of Cambridge, one, one of our greatest legal historians. John, how did a, an early modern lawyer learn about the law? >> Well, not at university because the, the universities decided at a very early stage that they would only teach Roman and Cannon law. So the common lawyers developed their own university, in fact, it was sometimes called the third university of England. Consisting of the Inns of Court and some lesser Inns. And, at the age of about, 19, you'd go to one of these lesser Inns, [COUGH] called the Inns of Chancery, and attend lectures, and, take part in disputations. And then at the age of about 21, you would move on to one of the four Inns of Court, which still exist. And to do more advanced work of the same kind. And this, the system was modeled on that at the universities, as you had lectures which were always given on statute laws, simply because a lecture has to be on a text. And idea was that you went through the statute clause by clause, word by word sometimes. And then you could have disputations about what the lecturer had said. And then, also, there were moots, which were practical vocational exercises in pleading. The, the student would also go to Westminster Hall where the court sat and there was a gallery, there where they could watch and make notes. There were some books they could buy, the books are perhaps not as important as they now are, but there were books, expensive. What there was not, was any kind of tutorial assistance, they had to learn for themselves and by discussion with others. >> Excellent, and, and this is very, sort of experiential, they, they learn. They communicate, they talk. Could they fail? >> well, you didn't have any examination in the modern sense, but you would fail if you were not up to the standards of taking part in these disputations, which were pretty difficult, actually. I looked at some of the questions, and I certainly couldn't answer them. And the mind boggles as to how they knew what to do, but I suppose if you spend everyday attending these things and talking about them, you picked it up. >> This is very intensive, and. >> Yes. >> Would preps create a quarter spring amongst the the sort of graduates, or the, the people who came out of that? >> Yes, I'm sure it would. I mean, it's worth mentioning that the, 90% or more of the students didn't become lawyers. This, this was like any other university. It was a place to learn about the metropolis and. >> Interesting. >> Make friends. >> And they might have gone back to their own communities and at least been fairly well informed about the process. >> Yes, as land owners, you'd need to know a bit about land law, to know what you are dealing with, and whether your lawyers were advising you sensibly. >> And how important do you think the Magna Carta was to that process of legal education? >> Or it had been on a regular syllabus in Medieval times because it looks as though the practice originating had been to start with Magna Carta chapter one, and then that is where the statue of at the end of the 13th century, and then for some reason it went back to Magna Carta. [LAUGH] was the 14th century. We're not quite sure whether that was always the case, but there's some evidence of that. And so, Magna Carta was regularly lectured on all the chapters. By Tudor times, that had largely stopped. And lectures were on more recent statutes affecting property law and seen as being of more current importance. >> Okay. And that, that sort of earlier interest in, in the old statute of Magna Carta, what, what was it in any sense just a legal issue, or was there some component of constitutional awareness? >> Now the surprising thing about it, is there seems very little constitutional awareness. The most interesting chapters for the law school where I was dealing with property with wardship and widows rights, dour and, and matters like that. Chapter 29, the one that we all remember of not locking people up and so forth, was construed very narrowly. They thought trial by peers meant peers, in the sense of Lords of Parliament, and, and there was a great question whether the whole chapter only referred to peers and how did it divide it up. And they came up with some extraordinary constructions, for instance, that not selling justice was about not charging writ fees for Writs of Justicias, which is a very specialist kind of writ for starting a case in the sheriff's court. So, they almost took away the whole meaning of chapter 29, and if that weren't enough, they all said, in any case there were no remedies. The Parliament, no remedies or Magna Carta, so it's almost a dead letter. >> So the encounter with that old statue, did a very particular precise one. >> They just treated it like all other statues, and much of it was obsolete. They would say the pits were void. There no sense that it's a more important statute than any other or that it's got any particular constitutional significance. >> And of course, when we move into the 17th century and we'll talk more about Sir Edward Coke, there does seem to have been a sort of transformation almost in the understanding of the purchase of this. >> Completely different world. >> Yeah. >> As far as Magna Carta is concerned, yes. >> Yes. And, and what how do you account for that? Is this, is this simply the sort of resonance between events of the time, the conduct of the monarchy, and the brilliant mind of one in one legal mind seeing that Magna Carta might connect to that, or is it part of a broader process do you think? >> I think it's quite a long story, although it came to a head [COUGH] under James I and Charles I. But although the ends of court have taken a rather defeatist attitude to chapter 29, the courts assisted by practicing council were finding ways of providing remedies. For instance, the wonderful invention of polite fiction that the king can do no wrong, which is often misunderstood. Now somehow putting the government beyond the reach of the law. Where as the object was absolutely the opposite. Of course you couldn't sue the king himself, but if you sued any official who claimed to be acting on the royal authority, it was no defense to say the king told me to do it. >> Mm-hm. >> Because it, presumed that the king can't have possibly commanded anything wrong. [LAUGH] And therefore it was possible to challenge government authority. And then this the second development from that was the what we now call the prerogative writs of which the most famous was habeas corpus. >> Mm. >> And habeas corpus is, is quite an old writ. But it was originally used just for moving prisoners about. It, it started to take on its newer role in the early 16th century, in fact, in Henry VIII's reign. And some quite important precedents were laid down during the 16th century, which didn't find their way into print because the printers didn't dare print them. >> Mm. >> But the lawyers knew about them. And so ,there was a developing idea that you can challenge an imprisonment. And force anybody who, who's keeping someone in custody to come to court and say, why, give the reasons. Later on, and this is largely the work of Coke in the 17th century, were developed other remedies, which has the Latin names of Mandamus and Certiorari. To compel people to do things or to remove records of what they've done into the court so that they can be reviewed and overturned. And that went a lot further than the old king can do no wrong idea because, you had to bring an action for damages, and then the defence will be raised that we're acting under royal authority and then that will be overturned. The genius of the prerogative writs was that, although they were used to challenge governmental authority, things done in the name of the king, the remedy itself was in the name of the king, so that it was not seen as a direct challenge. The, the, judges were acting on behalf of the king in calling into question actions by ministers and officials of the Crown. >> Is one of the peculiar things, I know when I first encountered some of the thinking around the relationship between prerogative and common law, was that in, in one sense, there's a consensus. All of these things are working towards the same end, which puts the king at the apex in some measure. What, what transformed that sort of broad consensus do you think at the end of the Elizabethan period? >> It all seems to have come to a head in the 1580s as far as we can see. And it's difficult to pin it down to only one factor, but the most important was the High Commission. This a, arose from a statute of 1559, the beginning of Queen Elizabeth's reign, which authorized the issue of commissions, the purpose of which was really to er, eradicate the papist clergy after Mary's reign. But once they'd done that, they carried on and started extending their activities. They became very interested in Puritans as well as papists. And they also took over a lot of the ordinary work of the church courts, causing people a lot of distress, expense in having to travel to commissioners. And there were none of the safeguards of ordinary ecclesiastical procedure. And the, the greatest objection was to a procedure they developed called the Oath Ex Officio. >> Yes. >> Whereby people could be put on oath and forced to incriminate themselves, which was contrary to first principles of common law, anyway. And, the judges became very concerned about this. And, there was some early decisions on habeas corpus involving the High Commission, and the Medieval Writ of Prohibition was also used to stop church com, to stop the commissioners from exercising exorbitant authority. And that I think, made people very interested in the prerogative writs and the control of power, which seemed to be getting out of hand. The, the second important event, I think, was the accession of James I in 1603, who'd already reigned for quite a long time in Scotland. While views of kingship were rather different from those in England, and influenced by Roman law, now do whatever pleases the prince, as the force of law. And James had written a book on monarchy, and was known to favor an absolutist view of monarchy. He caused the utmost consternation in the legal profession on his first journey down from Scotland to England, when he was staying in the Midlands. And it was reported that a cutpurse had been arrested, and he simply ordered the cutpurse to be executed summarily without any trial. >> Oh, dear. >> And the lawyers present advised the, the Knight Marshal who carried out the execution that he ought to get a pardon quickly, because he just committed murder. >> Hm. >> And I think this, this was seen by lawyers as an awful warning of what might happen. And then when James I issued a proclamation with these new styles came of Great Britain, he said, immediately on our accession, diverse of the ancient laws of this realm, meaning England, our ipso facto expired. And the same year, James's first law chancellor, Lord Ellesmere addressing parliament on the King's behalf. So, the King's majesty as it were inheritable and descended from god, hath absolute monarchical power annexed inseparable to his Crown and diadem, not by Common law nor statute law, but more anciently than either of them. So, that was what Coke was up against, a possibility of an absolute monarchy like those which came to tyrannize most of Europe and, and ended up in disaster. And if not for Cook, it might even have happened. It was thought by some lawyers to be like a conquest. no king had ever altered the common law of England by conquest, not even William the so-called Conqueror had done that.
