The history of English public law has long stood in the shadow of its private law counterpart. Content to leave examination of the British constitution to political historians, legal historians have focused on the private sphere, only occasionally jaunting into public law. In recent years, however, this has begun to change – thanks in part to Sir John Baker, whose latest volume, Sources of English Legal History: Public Law to 1750, may catalyse a new generation of public law scholarship.
Sources of English Legal History: Public Law to 1750 follows the proven format of the classic Baker and Milsom Sources of English Legal History: Private Law to 1750 2nd ed., (Oxford 2010). Baker presents a selection of legal source materials – case reports, statutes, notes and readings – without comment. He speaks only through his preface and his editorial choices, brief headnotes and occasional footnotes providing information about ancillary proceedings, later developments or cited cases.
In the preface, Baker defines “public law” to include what he refers to as “jurisdictional law and criminal law” (p. vi). By jurisdictional law, Baker largely means the law regulating governmental power, how it was constituted and how different institutions competed to exercise it. This concept of public law is then explored across 23 thematic chapters, six of which are dedicated to criminal law. Other topics include the Crown, the High Court of Parliament, the courts (common law, Chancery, conciliar courts, ecclesiastical courts, High Commission and local courts), taxation, trade and boundaries of English law.
Within each chapter, Baker provides readers with a diverse array of materials, drawn from several jurisdictions and procedural contexts. For example, in Chapter 4 on “The king and the rule of law”, we find reports of proceedings from multiple courts initiated by indictment, information, writs of habeas corpus, quare impedit, ejectment, debt and novel disseisin – all addressing fundamental questions about royal authority. The diversity of materials reflects the broad scope of archival research undertaken for this volume. But it also demonstrates a difficulty with public law research. While the evolution of private law doctrines can often be carefully traced in the records of a particular court and type of proceeding, public law materials are more scattered and haphazard.
Baker’s decision to avoid editorial commentary does not mean his voice is entirely absent from the work. The materials selected illuminate a familiar but compelling narrative about the triumph of the common law. The opening chapters on monarchy trace the subordination of sovereign to law, beginning with Bracton’s medieval assertion that the king is “under God and under the law” and culminating in the concrete legal victories of the late sixteenth and early seventeenth centuries. The chapters on Parliament and legislation reveal how common law courts positioned themselves as the ultimate arbiters of parliamentary and legislative power by asserting final interpretive authority over legislation, royal proclamations and local bye-laws.
The chapters on courts examine the familiar jurisdictional conflicts between the common law courts and their rivals. Baker shows how the common law courts used prerogative writs such as prohibition and habeas corpus to systematically limit the powers of the Chancery, Star Chamber and High Commission and conciliar courts. He also shows how common lawyers insisted that all jurisdictions were ultimately subject to the “law of the land” as interpreted by common law judges. Again, the result was the supremacy of the common law and its courts over other jurisdictions.
The sections on liberty and taxation conclude on this theme, showing how the common law created fundamental rights through concrete legal struggles. Case by case, readers witness the common law’s refusal to accept arbitrary imprisonment by the executive. The principle of no taxation without parliamentary consent is also traced from medieval struggles over purveyance to the great seventeenth century battle over ship-money. Although each of the first 16 chapters may be said to trace jurisdictional battles, the common denominator throughout all of them is the common law.
The final third of the book is dedicated to criminal law and takes a more doctrinal approach. The tone shifts from grand constitutional conflicts to the nuts and bolts of criminal law. The sources trace the refinement of concepts such as “malice aforethought” in homicide and the complex rules of possession and intent in larceny. The concluding chapter then returns to a more general topic: the boundaries of English law. It explores how the common law grappled with questions of physical jurisdiction involving its limits with respect to Wales, Ireland and the colonies.
When read as a whole, the volume fittingly reflects Baker’s own convictions about the common law and legal history. It embodies a particular tradition that privileges doctrinal development and institutional evolution, treating legal texts as containing meaning discoverable through careful reading – unlike recent socio-historical approaches that emphasise law’s role in constructing social hierarchies or critical approaches that interrogate law’s legitimating functions. Yet Baker’s masterful execution demonstrates precisely why this traditional doctrinal approach remains indispensable. Sources of English Legal History: Public Law to 1750 demonstrates how common law constitutionalism was forged not in the abstract contemplation of political theory, but in the procedural trenches of litigation. Grand principles such as “the rule of law” or the “liberty of the subject” did not descend fully formed from a single constitutional moment; rather, they accreted over time, hammered into shape by the resolution of countless specific disputes over ship-money, monopolies or wrongful imprisonment. In this way, Baker’s source-based approach reveals the very genius of the common law method – its capacity to build an enduring constitutional structure from the raw material of individual grievances.
Baker translates all materials from Latin and Law French, removing one barrier for non-specialists. The minimal commentary, however, adds a different barrier. Many of the readings require prior legal or historical knowledge to fully appreciate. For example, much of the chapter on property offences focuses on what constitutes felony versus mere trespass. Without an explanation of felony or why this distinction matters, the untrained reader will likely be lost. This choice – to include minimal commentary – makes the work most suitable for specialist audiences or advanced students working alongside companion texts such as Baker’s own An Introduction to English Legal History, 5th ed., (Oxford 2019).
For scholars working in public law, this collection provides extraordinary value. Until now, those interested in public legal history were forced to rely on printed law reports such as the State Trials or embark on extensive archival research with limited guidance on where to begin. As a result, much of the limited work in public law history is based on printed reports alone. With Sources of English Legal History: Public Law to 1750, Baker has opened the door to the archives. He provides the historically curious public lawyer with an excellent understanding of the landscape of early modern public law and inspires others to enter the archives in search of public law. Each of Baker’s 23 chapters could (and in select cases already do) form their own book. Not only do the cases selected tantalise readers, but they also show them where to begin.
Sources of English Legal History: Public Law to 1750 undoubtedly represents a substantial scholarly achievement. It has the potential to excite a new generation of legal historians and propel them to consider the history of public law. It is an essential reference work for historians and legal scholars.
