This volume bears witness to an encouraging growth of interest in the history of public law.Footnote ¹ Decades ago I was asked to teach legal history at the Inns of Court School of Law, and Lord Justice Scarman (as he then was) complained that my draft syllabus did not include the prerogative writs. My first reaction was to reply, ‘Of course not, that isn’t what we do’. The legal history courses which I had studied and taught, inherited from generations before me, concentrated on land law, contract and tort. However, after a few moments’ thought, I saw how right Sir Leslie was. Here was a fundamental piece of the common law which legal historians had treated as somehow off limits. And it was not only lawyer-historians who were narrowly focused. In 1991 I took part in a conference on the ‘history of freedom in the West’. It was, no doubt, progressive of political historians to think of inviting a lawyer. The obvious English topics to deal with seemed to me to be the ending of villeinage and the rise of habeas corpus; but I had the sense that this was regarded as a weird aberration by an interloper. No one else at the conference thought it relevant to consider how personal liberty was protected in real life: how, where or when people could escape from being locked up or enslaved. Constitutional historians, likewise, steered clear of practical law. They used the terminology ‘constitutional history’ rather than the history of constitutional law, and they focused on the growth of Parliament and governmental institutions rather than on legal debates, judicial decisions and real people. Even Maitland’s lectures on constitutional history, published posthumously in 1908,Footnote ² had nothing to say about the judicial origins of the prerogative writs. Maitland was immersed in the year books of Edward II and what went before; but his kind of research was not bestowed on the early modern period until much later.Footnote ³

The year books were not the place to start anyway, because there is little or nothing in them about personal liberty. According to Sir John Dodderidge, speaking in the House of Commons in 1610, only private law was to be found in the law reports, whereas public law had to be sought in records – meaning principally the formal records of Parliament, Chancery and Exchequer. The law reports, he said, were ‘nothing else for the most part but the reports of private suits’.Footnote ⁴ That had in fact begun to change in the time of Elizabeth I, as we shall see, though it is not much evident from the printed books. Most reporters were students or barristers educated in a tradition which omitted public law from the curriculum, and they put down their pens when such cases began to come before the courts. There was therefore a self-perpetuating convention of exclusion, not unlike that which has prevailed among English legal historians since Maitland’s day. But the subject was of practical importance to judges and law officers, and it is chiefly from their long-unpublished notebooks that we are able to trace the beginnings. There were some significant public law cases in Dyer’s reports, but they were cut out by the editors of 1585 and not printed until 1993.Footnote ⁵ Coke’s notebooks, likewise, contained a good deal of public law which he did not feel able to publish. Some found its way into print in the 1650s, but the rest is only just going to press.Footnote ⁶ The dearth of readily accessible information explains why historians’ books of constitutional sources – beginning with Bishop Stubbs’s influential Select ChartersFootnote ⁷ and continued forward in time by others – were filled with bare documents, such as statutes, rather than arguments and judgments.Footnote ⁸

The story of public law in the year-book period has yet to be told. The author of Bracton used the term ‘public law’, but it was a learned term borrowed ultimately from Ulpian and did not creep into the year books. He had some useful things to say about the king being under the law, but that did not mean the king could be sued or prosecuted in his own courts.Footnote ⁹ Lawyers knew about chapter 29 of Magna Carta (1225) and the restraints which it seemed to place on the king’s power, but it mentioned no remedies and it left open the question of what absolute prerogatives were allowed to the king by the lex terrae. To a fifteenth-century lawyer, Magna Carta was chiefly about wardship and dower, and other matters of private law, mixed with a lot of spent and obsolete material. The potentiality of chapter 29 was missed by the lecturers in the inns of court, who were content to explain it with breath-taking literalism as being mainly about trial by peers in Parliament and not charging fees for writs of right or justicies. Selling justice, on this interpretation, was forbidden only in the case of manorial and county courts. The great charter of liberties would only acquire – or retrieve – its importance in constitutional law when it was revived in the 1570s and invested with a new potency.Footnote ¹⁰

Since actions could not be brought against the king for acting unconstitutionally, any legal protection had to work differently. The key to this was the principle – seldom spelt out explicitly – that the king could do no wrong. It is an idea which often causes mystification and misunderstanding. I remember an external examination candidate in the 1960s writing: ‘The queen can do no wrong. That is why she has ministers, to do the wrong for her.’ I suppose the candidate was grasping at an underlying truth. Of course, kings were better placed to do wrong de facto than anyone else; but the principle meant that kings were incapable de jure of authorising wrong, and therefore a commission, patent or executive decision which harmed a subject contrary to law was simply void. That gave the courts a limited power of judicial review. In a famous case of 1368, the chief justices sitting at Chelmsford expressed indignation at a Chancery commission authorising an arrest without due process of law, and complained about it to the king’s council.Footnote ¹¹ In 1406 the King’s Bench struck down a royal charter authorising the chancellor’s court of Oxford University to proceed according to the civil law, since it infringed the right of every subject to be governed by the common law.Footnote ¹² And in 1461 the Common Pleas rejected a writ of protection whereby a party on royal service at the Roman Curia was placed outside the reach of the law for three years – the legal limit for a protection being one year. As Moyle J observed, the king was bound by law to do right to all his subjects, and he was unable to do that if someone was granted exemption from legal proceedings for a lengthy period.Footnote ¹³ That was another way of saying that the king could do no wrong. If something wrong was done or attempted in his name, it would be quashed.

A supporting principle of some importance was that the king could not acquire or part with property except by matter of record. The courts could therefore, by reviewing the relevant record, strike down grants of things to which the crown was not entitled. The courts could even grant relief, by petition of right, in respect of property in the king’s hands. No doubt property claims in general should be considered outside the scope of public law, even when the king was a party. But when property included jurisdictional and administrative franchises, the boundary seems less sharp, especially since such franchises could be taken away (by quo warranto) for misuse, disuse or abuse: another kind of judicial review.

These, in outline, were the roots from which public law grew; but they were a far cry from judicial review as we know it today. The administrative functions of central and local government, in so far as they were off the record, were largely beyond reach. If on the record, it was mainly in the labyrinthine Exchequer, not in the two common-law benches. In the last resort, the coercive power of government was enforced by imprisonment. But imprisonment by the king or his ministers was hardly ever questioned before the sixteenth century, and we do not even know how common it was. Decisions by the king and his council were mysteries of state, beyond the jurisdiction of the courts. They would be classified by Tudor jurists as absolute prerogatives.

Even so, the absolute prerogatives were never as extensive as is often supposed. When Coke listed them around 1600, he could only find nine, most of which are still with us today.Footnote ¹⁴ Coke’s list was admittedly incomplete, because it omitted the power to imprison people without showing any reason, to which we shall return. It also omitted torture, about which Coke was ambivalent until the judges declared it to be unlawful in 1628.Footnote ¹⁵ But there was not the vast range of unlimited prerogative which is sometimes imagined. The essential feature of the absolute prerogatives was that the manner of their exercise was outside the jurisdiction of the courts. However, it was the prerogative of the common law judges to define and confine them. Coke was fond of the expression found in Plowden’s Commentaries that the common law ‘admeasured’ the king’s prerogative: in other words, it set and controlled the boundaries.Footnote ¹⁶

How far this admeasurement could be achieved depended on remedies, and there were not many relevant remedies to be found in the old register of writs. Although it had been enacted in 1267 that actions for damages could be founded on Magna Carta, this did not bear much fruit.Footnote ¹⁷ The earliest known example of an action on Magna Carta was in 1501, when there began a number of challenges to the coercive jurisdiction of the new Court of Requests: not exactly actions against the central government, but nevertheless challenges to the prerogative power with respect to the erection of new jurisdictions outside the common law. Few of these actions resulted in judgment, and the formula devised in 1501 was not a vehicle for later development.Footnote ¹⁸ An attempted revival in 1595, also aimed against the Requests, was stamped on by the Privy Council.Footnote ¹⁹ It was not a promising route to follow. In any case, as with the action of trespass for false imprisonment, such actions lay only for damages after the event; and it was not always obvious who to name as defendants. It was hardly politic in Tudor times to sue officers of state and ministers of the government, and it did not happen.

The difficulties were brought home in 1532 when a serjeant at law was committed to prison by order of Henry VIII without a criminal charge. He was soon released, but he complained to the Privy Council, and all the judges were summoned to give their advice. The question was evidently embarrassing, even though no remedy was being sought. They pointed out that it was against Magna Carta for the king to treat his subjects contrary to law. But they also pointed to a statute of 1275 which provided that a person committed by the king was not bailable: so that was lex terrae. They concluded that, if the king sent someone to prison, his discretion was not to be disputed. The case was reported by one of the judges, Sir John Spelman, but was not printed until 1976.Footnote ²⁰

A new chapter in public law began thirty years later with the development of the prerogative writs. The first was habeas corpus, followed by mandamus and certiorari. Unlike ordinary original writs, they were returnable immediately in the court which issued them, and they were not brought against defendants. They could therefore be used to challenge coercive measures by the government or by the new prerogative jurisdictions, tacitly applying the old idea that the king could do no wrong. As far as we know, they were not called ‘prerogative writs’ until the early seventeenth century. But it was a cleverly chosen name, contrived to reinforce the delicate principle which underlay them. In practice, the writs were often used to challenge exercises of prerogative jurisdiction or authority. Yet they were represented as defending a higher prerogative, that of keeping all ministers, institutions and jurisdictions within the law. It was the practical mechanism whereby the king, through his own court, discharged the duty of his coronation oath to uphold the law.Footnote ²¹ Prerogative writs were brought on behalf of the king, not against him. They came to fulfil the prerogative, not to destroy it. Even Stuart kings could accept the underlying principle.Footnote ²²

The main prototype was the medieval writ of prohibition, which was designed to keep ecclesiastical courts within their bounds. In the context of jurisdictional disputes with the Church, seen as a competing authority, it made sense for the writ to recite that excesses of jurisdiction were ‘against the king’s crown and dignity’. It was also used against admiralty courts, which were likewise seen as competitors. Another prototype was quo warranto, initiated by the Attorney General to challenge encroachments on royal authority by those claiming franchises. But those writs were brought against defendants and were therefore not available to challenge the government directly. The furthest reach, perhaps, was of the kind discovered by Coke as Attorney General, when he used quo warranto to strike down exorbitant patents of monopoly – treating them, in effect, as franchises. However, the vehicle for most of the new development in the second half of the sixteenth century was the writ of habeas corpus.Footnote ²³

It is difficult to attribute the innovation to a single cause. No doubt Elizabeth I’s relative tolerance helped create a receptive atmosphere, as did the sympathetic legal mindset of her enlightened chief minister William Cecil, Lord Burghley, who was educated in the common law. We know from Coke’s private notes that the queen explicitly instructed her law officers, on appointment, not to stretch her prerogative beyond its legal bounds.Footnote ²⁴ It is difficult to imagine her father doing the like. But the story of habeas corpus unfolded in Westminster Hall, not in the corridors of power. The beginnings, in the 1560s, are revealed in the long-unpublished notes of the three chiefs at the beginning of the reign: Sir Robert Catlyn, Chief Justice of the King’s Bench, Sir James Dyer, Chief Justice of the Common Pleas, and Sir Edward Saunders, Chief Baron of the Exchequer. It may not be a coincidence that they were all alumni of the Middle Temple, where William Fleetwood played a role in reawakening Magna Carta from centuries of slumber, where Edmund Plowden wrote of admeasuring the prerogative, and where (a few years later) Robert Snagge and James Morice would give lectures reintroducing Magna Carta and constitutional monarchy into legal discourse.Footnote ²⁵

Both Dyer and Saunders made detailed notes of a case in 1560 which set the judges thinking seriously about habeas corpus.Footnote ²⁶ Mary I had unlawfully granted an office in the Common Pleas, while the chief justiceship was vacant, to a young courtier who lacked the requisite technical knowledge. Dyer CJ rejected the grantee and nominated a qualified attorney instead. The earl of Bedford and Lord Dudley then used improper influence at court to procure a special commission to determine the title to the office, which was a freehold, with power to commit Dyer’s nominee if he refused to answer. He did refuse to answer and was committed for contempt. This was a newly invented, ad hoc, power of imprisonment. But what could be done? The chief justice considered using a general habeas corpus, which he thought could be issued under the inherent jurisdiction of the court, and a writ was actually prepared but not sealed. However, it was decided to rely instead on the prisoner’s status as an attorney and release him on a writ of privilege, a long-established special form of habeas corpus. He was immediately rearrested by the commissioners and remained in prison for over five weeks before a settlement was reached. The judges were deeply affronted by this ‘check to the law’ (as Dyer called it), and Dyer began collecting precedents of general writs of habeas corpus from the King’s Bench rolls, showing how judges earlier in the century had discharged or bailed prisoners committed by statesmen such as Wolsey and Cromwell. His colleague Catlyn CJ joined in the search. These were not law reports, just records; but the bare record was enough to show what the court could do.

Two important cases of habeas corpus occurred in 1565. The first concerned an imprisonment by the Council in the North at York.Footnote ²⁷ The prisoner’s body was not produced in obedience to the writ, because (as appeared from the return) the archbishop had ordered his gaoler to disobey it. The archbishop, as president of the Council in the North, was apparently awaiting instructions from the Privy Council. The King’s Bench was greatly affronted by this. Catlyn CJ protested:Footnote ²⁸

The court not only ordered an alias habeas corpus but an attachment against both the archbishop and the gaoler. We know that Lamburne was in fact a criminal who had turned queen’s evidence against some robbers.Footnote ²⁹ But that was not the point. The King’s Bench had no judicial notice of the surrounding facts. It was for the court to decide on the lawfulness of an imprisonment, and without a proper return they could not do so.

The other case in 1565 concerned the ecclesiastical High Commission, which was established in 1559. A gentleman who had been imprisoned for hearing mass (an indictable misdemeanour) was released by the King’s Bench on the grounds that the commissioners had no power to imprison, especially without bail. He was promptly rearrested – yet another example of high-handedness which was ‘much debated’ by the judges, but again (as in 1560) without a satisfactory resolution.Footnote ³⁰ Three years later the Common Pleas, using a writ of privilege, released a prisoner of the High Commission who had refused to incriminate himself upon the oath ex officio concerning his alleged attendance at mass. Though not reported in print, it was the first clear decision affirming the privilege against self-incrimination.Footnote ³¹ It is noteworthy that both these decisions were in favour of Roman Catholics; there were other contemporary decisions in favour of Puritan ministers.

During the same period, the King’s Bench discharged or bailed persons imprisoned by the Court of Requests, the Council in the Marches, and even the Chancery. These were prerogative courts, but the remedy was given in the name of a superior prerogative and was supported by the queen’s law officers. In a habeas corpus case of 1605, Coke (still Attorney General) explainedFootnote ³²:

He was referring to the precedents, such as those collected by Dyer and Catlyn, in the rolls of the clerk of the crown. But the great question was, how far habeas corpus could reach towards the centre of government, the Privy Council. In 1577 Dyer CJ conceded that a general or unspecific return could not be reviewed in the case of a committal by the whole Privy Council, because there might be secret reasons which it would not be appropriate to make public.Footnote ³³ Nevertheless, the King’s Bench in 1567 and again in 1578 granted bail to prisoners sent to the Tower by the Privy Council without any cause shown,Footnote ³⁴ and in 1587 it declared that those imprisoned by the Council were in all cases entitled to be brought before the court so that the lawfulness of their imprisonment could be examined.Footnote ³⁵ Thus, as Catlyn CJ had asserted in 1565, even the Privy Council could not place someone completely beyond the reach of the law. It was, however, an empty remedy, since all the judges collectively conceded in 1592 (albeit tacitly) that they could not go behind a general return by the queen or the whole Council.Footnote ³⁶ Despite a lone protest from Walmsley J in 1601, this remained the position until the Petition of Right 1628.Footnote ³⁷ The initial victory, in the Elizabethan period, was the ending of arbitrary imprisonment by individual ministers or courtiers and excesses of jurisdiction by newly created tribunals.

Habeas corpus was, obviously, limited to restraints on bodily liberty. But there were other kinds of liberty which were not adequately protected (if at all) by actions for damages.Footnote ³⁸ The two further media of judicial review, mandamus and certiorari, were developed in the seventeenth century to fill some of the gaps.Footnote ³⁹ They were originally aimed at local government: mandamus against municipal authorities, certiorari against county magistrates and other commissioners. The first of them, chronologically, was mandamus. Fractious behaviour in urban government was commonplace by 1600 and sometimes resulted in arbitrary abuses of position by those in authority. A freeman might be disenfranchised, which would deprive him of a vote; an alderman, town clerk or recorder might be removed on trumped-up or exaggerated charges of misconduct; an elected mayor might be kept out of office. Mandamus (‘we command’) is a word which occurred in various earlier writs. But a new version, known initially as a ‘writ of restitution’, was nurtured in the early 1600s.Footnote ⁴⁰ It worked by ordering the municipal corporation to restore the applicant, whereupon the corporation could make a return justifying its conduct so that the court could review the stated reasons. The earliest reported case in the King’s Bench, brought against the mayor of Cambridge in 1606, involved an element of habeas corpus as well as restitution, since the complainant bailiff had been imprisoned after an altercation with the mayorFootnote ⁴¹; but mandamus rapidly became an independent procedure in regular use, and there were several reported cases (mostly not in print) testing its limits.Footnote ⁴² Although it was a judicial invention, Coke CJ attributed it in 1615 to chapter 29 of Magna Carta – not as a matter of history, of course, but of legal doctrine – and went so far as to assert thatFootnote ⁴³:

That sweeping restatement of the rule of law drew an indignant rebuke from Lord Ellesmere LC prior to Coke’s downfall the following yearFootnote ⁴⁴:

He went on to accuse Coke of claiming for the King’s Bench ‘a superintendency over the government itself, and to judge wherein any of them do misgovern’. That was, indeed, exactly what Coke was claiming. And it has been the foundation of English administrative law ever since. It may have seemed preposterous to the lord chancellor in 1616; but leaving the review of misgovernment to the government itself, whether in the person of the king or through the Privy Council or Star Chamber, was hardly satisfactory to an aggrieved subject. In any case, in his exasperation with Coke’s sweeping assertions, and in his desire to be rid of him, Ellesmere had exaggerated the potential scope of mandamus. The writ did not lie against the crown, or against a minister of the crown, and therefore was not (until 1968) available to challenge misgovernment at the highest level.Footnote ⁴⁵ Moreover, it was still a writ of restitution, limited to public offices and positions, or freehold offices which existed ‘for the common weal’.Footnote ⁴⁶ It did not lie to enforce private contracts of employment or even (at first) the performance of official duties.

The last of the prerogative writs, certiorari, is briefly noticed in manuscript law reports in the 1640s, though it only rose to importance in the Restoration period. The formula had long been used for removing indictments and other records into the King’s Bench from lower courts of record,Footnote ⁴⁷ and Coke found a year-book case in which something similar was used to review a decision by justices of the forest.Footnote ⁴⁸ Like prohibition, it lay only to control courts; but there were several courts in the seventeenth century which exercised governmental functions. In the first half of that century it began to be used to review fines imposed by commissioners of sewers or convictions by justices of the peace exercising summary jurisdiction.Footnote ⁴⁹ On the surface, it operated formally in the same way as in the past: the writ merely ordered that the record be sent up to the King’s Bench, and the bare record was all that the return contained. But when the return contained a judgment or order, it operated as an informal counterpart to the writ of error as a way of obtaining a judicial review. More or less invisible before the 1640s, it became a standard procedure during the later seventeenth century for challenging orders made by quarter sessions – in effect, the county local government – such as the assessment of rates, the settlement of paupers, and affiliation orders.Footnote ⁵⁰

The development may have been connected with the abandonment of oversight of local government by the assize judges in the middle of the seventeenth century, though that cannot be the full explanation.Footnote ⁵¹ The first reported debate about the extension of the remedy occurred in 1642, when certiorari was used successfully to remove and quash an order made by commissioners of sewers. Although it was resisted as a new departure, once again the principle which prevailed was that no inferior authority was beyond the scope of judicial review by the King’s Bench.Footnote ⁵² Bramston CJ remarked that he did not think the writ would be much used,Footnote ⁵³ though in that prediction he was much deceived. The procedure rapidly gained a foothold because it suited all parties not to challenge it.Footnote ⁵⁴ It relieved complainants from having to wait for an unlawful order to be enforced against them so that they could bring a civil action for damages or a replevin,Footnote ⁵⁵ and it settled the status of the order itself rather than just the issue between particular parties. Yet these were purely public law remedies, in that they lay only in respect of public authorities or courts.Footnote ⁵⁶

There was one remaining obstacle to treating the King’s Bench as judicially supreme. The power of the Privy Council to imprison people without giving reasons was usually defended with reference to treasonous plots, and it was certainly one of the proper functions of the Council to authorise and make preparations for state trials. Even Coke, both as law officer and as lord chief justice, accepted that such pre-trial proceedings were beyond review.Footnote ⁵⁷ But imprisonment could potentially be used in connection with politically controversial ends, such as the enforcement of monopoliesFootnote ⁵⁸ and extra-parliamentary taxation. The most hotly contested aspect of this in the early modern period was prerogative taxation by means of impositions. In Customer Smyth’s Case (1598), concerning an imposition on alum, and in Bate’s Case (1606), concerning an imposition on currants, the Court of Exchequer held that the king had an absolute prerogative power to lay impositions on imported merchandise.Footnote ⁵⁹ Fleming CB wryly observed in Bate’s Case that the only losers were wealthy epicures who had to pay a little more for their currants; but the constitutional principle at stake was widely considered to be fundamental. The decision caused a major stir and was frequently debated in the Commons, where it was the subject of lengthy historical and legal discourses. Coke and Popham CJJ were of the view that import duties could be imposed for the public good – for instance, in order to achieve parity with duties imposed by foreign governments – but that there was no general prerogative power of taxation.Footnote ⁶⁰ That came to be tested with the even more controversial forced loan of 1626, which caused a furore in Parliament but was not ruled upon decisively,Footnote ⁶¹ and with the ship-money levy imposed in 1636, which was upheld by only a bare majority of the judiciary in 1638.Footnote ⁶² By that time the judicial robustness of Coke’s day had waned, and public confidence in the judges was reaching a low point. Coke had been dismissed in 1616, and his successor Sir Randall Crewe was removed in 1626 for opposing the loan. These were heroic moments, but they fostered a sense that the judges who managed to remain in office might no longer be as independent as in the past.

The control of local government by means of mandamus and certiorari was to become a major part of King’s Bench business by 1700. However, after the failure of the King’s Bench judges effectively to oppose the forced loan, the protection of the subject from unconstitutional taxation and arbitrary imprisonment passed for a time to the High Court of Parliament, where the advocacy of the lawyer members – some of whom had represented the loan refusers in 1627 – stood a better chance of success. Coke was among them. Having himself been imprisoned without cause shown, in 1621 and again in 1622, he now recanted his former opinion about imprisonment by the king or the Privy Council.Footnote ⁶³ In 1628 he was the chief promoter of the Petition of Right, which (with the king’s grudging assent) guaranteed that ‘that no man hereafter be compelled to make or yield any gift, loan, benevolence, tax, or such like charge without common consent by Act of Parliament’ or be imprisoned without cause shown. That did not avail the defendant in the ship-money case, but in 1640 Parliament reversed the judgment in that case and guaranteed the availability of habeas corpus in all cases of committal by the king or the Privy Council.Footnote ⁶⁴

The role of the House of Commons in establishing such basic principles of public law is well known and beyond the scope of the present discussion. It is enough to observe that it was a very different body from its successor today. It was not tied by party politics to do the government’s bidding. Its members came (in Selden’s words) ‘bound by the trust reposed in them by their country that sent them’ to defend their freedoms.Footnote ⁶⁵ Most importantly, the House was full of barristers, always chaired by a prominent lawyer, and frequently resounded with legal arguments of the highest quality, replete with legal and historical citations. Legal history had become both a vocational subject and a force in politics. The lawyers in the Commons thought they were defending an ancient inheritance represented by Magna Carta. They did their utmost to ensure that the king (and Parliament itself) stayed within the rule of law. It is perhaps unsurprising that kings saw Parliament as troublesome, and sought to manage without it. As it turned out, that was a serious miscalculation. Constitutional monarchy had already been firmly implanted in the legal and political mind by the decisions of the courts in Westminster Hall, and by their inspired notion that the king’s prerogatives in executive action could legitimately be controlled by the king’s higher prerogative in judicature.