When I was working for my doctorate, I was privileged to have as my supervisor S F C Milsom, and as my internal examiner J H Baker. During the final stages of my studies, in 1986, Butterworths published J H Baker and S F C Milsom (eds), Sources of English Legal History: Private Law to 1750. It was published just in time for me to use and reference in my dissertation. Their book is an invaluable resource which makes available a wide range of primary common law sources and original documentation – from statutes, through Year Book cases, to treatises. The sources cover, for example: tenure and actions in land law; family interests and settlements, uses, wills and trusts; contract-like actions; and many actions on the case such as for trespass, assumpsit, negligence, nuisance, forms of economic loss, and defamation. Also included is important material on the approach of the common law courts to matters within the jurisdiction of the ecclesiastical courts (e.g. in contract, defamation, wills).
Sir John Baker KC LLD FBA – Emeritus Professor of the Laws of England at Cambridge, honorary Bencher of the Inner Temple and Gray’s Inn, and Bencher of Middle Temple – is the most distinguished historian of English law in the world today. He is a prolific author, a prodigious editor (one has only to think of so many ground-breaking titles in the Selden Society annual volumes series), and a deep thinker on the development of the common law. So it came to pass, almost 40 years after his fruitful collaboration with Toby Milsom, that John Baker turned his mind to the production of the twin of the 1986 volume on private law: one on public law. As he puts it in the preface of the book: ‘When Baker & Milsom [on private law sources] was first published in 1986, it was my intention to follow it with a companion collection on public law, but the plan was derailed by other engagements and by some uncertainty as to what it would include. Public law did not in the twentieth century feature in many English legal history syllabuses. However, a new interest was awakened by the Magna Carta commemorations in 2015, and the time now seems ripe to make the attempt’. What follows sketches the purposes, coverage, sources, and value of the book.
Professor Baker provides a masterful account (in the preface) of the historic understandings of ‘public law’, the literary business of collecting its sources, and the changes in its focus over the periods covered in the book. First, he points out that there is ‘no direct precedent for this book’. He gives the example of Sir John Dodderidge in 1610 telling the House of Commons that the year books contained ‘nothing else for the most part but reports of private suits’, whereas public law was found in records: the Latin records of parliament, Chancery, Exchequer, and the central courts. However, many collections of constitutional documents were developed later, and Bishop Stubbs’ collection of charters from constitutional history (1870) is singled out. Nevertheless, Professor Baker also points out that ‘published case law on matters of public law is thin before the time of Elizabeth I’, and for this reason ‘the older books of constitutional sources, which were concerned with the medieval period, were filled almost entirely with documents – mostly statutes and administrative records – rather than arguments and opinions’. In short, this book on public law sources is something of a rarity.
Second, the distinction between private law and public law was familiar, for example to the author of Bracton in the 13th century (through his use of Roman law) and to the framers of Stuart statutes, e.g. the Act of Settlement 1701; but as Baker explains, the distinction is ‘not often encountered in between, and it was not a category familiar to common lawyers’. Yet, while the expression ‘public law’ is relatively new, ‘the core purpose has always been the placing of legal limits on governmental power’, as in the 17th century when ‘the focus was on the legislative, judicial and executive powers derived from the royal prerogative’.
Third, therefore, for Baker constitutional development has meant that some aspects of public law familiar in earlier centuries disappeared in later ones. For instance: ‘There was a predominant concern with prerogative law-making and government through prerogative powers’ – but these concerns ‘have largely disappeared now that governments control parliament and can arm themselves with whatever statutory power they desire’. The relations between courts in the early modern period (Coke listed over 70 species) was a ‘familiar battleground’ – but this is an ‘aspect of public law which has since largely disappeared’ (not least due to the abolition of prerogative jurisdiction in the 1640s) and today almost all courts are statutory. However, some themes persist, such as the historic cases about habeas corpus which ‘raised fundamental principles of general application in the field of judicial review’.
Fourth, some things did not disappear but rather evolved into fuller being. By the 17th century, lawyers refer to ‘the constitution’ – but this was ‘a concept not met with in the older law books’, like that of ‘human rights’. Similarly, remedies against government action devloped which ‘did not feature in the earlier edited collections of English constitutional documents, simply perhaps because they did not derive from statutes’, or ‘more likely because what in modern times is called administrative law (or judicial review) was long perceived in England as being separate and distinct from constitutional law. Nevertheless, they are at the core of the early-modern development of public law’ and so are in the book.
Fifth, the sources. Baker explains: ‘It would have been easy enough to fill this book with statutes, since more than half of all the statutes in the period covered [the first legislation cited in the book is an ordinance from 1008] bear upon public law’. As a result, the book also includes ‘forensic arguments and judicial decisions which illuminate constitutional conflicts and the emergence of basic principles’. One key criterion for inclusion of a particular source is ‘that readers may find it more valuable to have texts which have never before been printed than to have more extensive extracts from those which are readily available’. A host of manuscripts has been used held at 13 institutions ranging from the Derbyshire Record Office to the British Library, from Holkham Hall Norfolk to the Society of Antiquaries of London, from Wiltshire and Swindon History Centre to Yale University Library and Harvard Law School. Three of the four Inns of Court are acknowledged as is also the Selden Society.
The book consists of 23 chapters. They may be categorised in terms of subjects as follows: the crown and parliament – the monarchy, devolution of the crown, charters and confirmations of liberties, the king and the rule of law, the high court of parliament, parliamentary legislation, and subordinate legislation (chapters 1–7); the courts – the central courts of the common law, the Court of Chancery, conciliar courts, the church and its jurisdiction, and the High Commission (chapters 8–12); the individual and the state – local authority and jurisdiction, liberty of the person, taxation and purveyance, freedom of trade (chapters 13–16); the criminal law (included in public law as it is central to the relationship between the individual and the state) – treason, homicide, offences in respect of property, criminal responsibility, criminal procedure, the death penalty and its avoidance (chapters 17–22); and the boundaries of English law – the sea, Wales, Ireland, Scotland, the plantations and colonies, and extraterritorial jurisdiction (chapter 23). The coverage is spectacular.
Needless to say, readers of this journal will find chapters 11 and 12 particularly interesting. Chapter 11 on the church and its jurisdiction deals with the scope of the jurisdiction in England, the jurisdiction of the Pope in England, and heresy. Chapter 12, on the High Commission deals with its establishment, its power to fine and imprison, its use of the ex officio oath, and its jurisdictional limits. The materials are fascinating. Some are expected – they include: the Constitutions of Clarendon (1164, and important of course in the Becket controversy); Circumspecte Agatis (1285); the Statute of Provisors (1351); the Statutes of Praemunire (1353 and 1393); several Henrician statutes (from the 1530s) and the Act of Supremacy (1559); and a Statute for the Abolition of Capital Punishment for Heresy (1677). Many are unexpected – they include: the Statute of Consultation (1290) on process surrounding the writ of prohibition; the cases of Seton v Cokesyde (1357) touching an excommunication by the Pope, Prior of Maxstoke v Prior of Studley (1413) concerning an advowson, the Case of the Florentine Merchants (1486), and A-G v Cardinal Wolsey (1529). There is also material from the Conference on Heresy (1601) from Coke’s lost notebook. Likewise for the sources used in Chapter 12 on the High Commission, abolished in 1641.
One small critical comment: it would have been good to see something on the legislative power of the church towards the end of period (to 1750), like the very important constitutional case of Middleton v Crofts (1736), which held that the English Canons Ecclesiastical 1603/4 do not of their own force bind the laity, having been created by Convocation not Parliament.
In any event, this book is important because: it is innovative and distinct; the range of primary sources used is highly impressive; the footnote referencing is meticulous; the book fills an obvious gap in the literature; and, above all, the book will be of enormous value and benefit to any student of the history of public law, not least students in modern law schools whose studies in public law focus on so many subject-areas covered by the book, including: the separation of powers; the rule of law; parliamentary sovereignty; the role of the courts; the royal prerogative and the executive; devolution; and judicial review in administrative law. We are grateful once again to Sir John Baker for another groundbreaking and scholarly work.
