(Continued from above: Hoffer, Law and People, pp. 4-10.)

Book Law

A handful of the earliest American colonists exceeded their fellow immigrants in knowledge of the law of England. These emigrants had studied at the Inns of Court in London with other would-be barristers (literally those who sat “at the bar” in the Inns of Court) and were permitted to plead suits in the common-law central courts. Such colo­nists not only saw the law, they had read it–no easy task. The most important law on the books was the common law of England, in effect a language that pleaders and judges used in the king’s courts.

Common law could be found in yearbooks, student notes taken at the sittings of the high courts as early as the thirteenth century. A student of law could also find an increasing number of trea­tises on special topics and “abridgments” of the common law. In the reign of Queen Elizabeth I (1558-1603) there began a virtual explo­sion of law book publishing: the number of these volumes grew from single digits in the early 1500s to more than twenty each decade by the beginning of the seventeenth century. Meant to aid lawyers, these books also revealed the lawyers’ secrets to educated people from all walks of life.

Foremost among this active generation of legal writers was Edward Coke, Chief Justice of England (1606-16). Coke was a courtier as well as a judge, hardly a surprise in an era when judges were appointed by the king, often from among his political favorites, allies, and henchmen. As political as the process might be, the judges were also learned in the law, and proud of it. What is more, the best of them truly believed that the king should not be above the law. Indeed, Coke was forced by King James I to step down from the bench in 1616 after an acrimonious and irreconcilable disagreement about who had the last word on the law. (Coke thought it should be the chief justice of Eng­land, but the king had other ideas.)

Undaunted by his demotion to private life, Coke began what would become his four-volume Institutes of the Laws of England (1628-44), the last volume of which was published after his death. The Institutes was unique in that it was written primarily in English and thus accessible to any learned man or woman, though Coke did discourse on Latin and “law French” texts and quoted long passages from them without trans­lation.

Coke’s and other contemporary collections, abridgments, reports of cases, and treatises were a hodgepodge of old and new. English law rested upon a doctrine of stare decisis (stand by decisions). Old judicial opinions were good law until they were overturned. When it was necessary to depart from precedent, judges preferred to distinguish the case in front of them from older cases, in the process of which they created a new precedent. Precedent was the fiber of which the common law was woven.

English Courts

Common law was not the only law in England. The king’s courts had rivals. Saxon county courts predated the arrival of William of Nor­mandy and his mercenaries in 1066; the county courts persisted into the twentieth century. When William of Normandy conquered the country in 1066, the Norman warriors who came with William not only imposed their will on the vanquished Saxons but also joined or replaced them as local judges. In very attenuated form, their baronial or manorial courts also survived into the twentieth century. Market fair courts and mayor’s courts–some based on custom, others licensed by royal charter–­regulated, among other subjects, transactions among merchants. The mayor’s court of London was thus one of the most important courts in the realm.

The church held its own courts. They supervised the conduct of cler­ics, monks, and nuns, watched for heresy among lay people, oversaw the institution of marriage, heard disputes over bequests of personal property, and monitored sexual and moral conduct in the parishes. After Henry VIII severed the tie between England and the Roman Catho­lic church in 1534, these church courts became subordinate to the king, who had made himself head of the new Anglican Church.

County courts, manorial courts, merchants’ courts, and church courts were all part of a pattern of legal concessions and bargains the kings of England made with their supporters and followers, but over time the king’s own courts gained preeminence over their rivals. The king’s “court” originally was the space around his person, a fortified zone guarded by his troops and his courtiers. The most important of these men advised him on legal as well as military matters.

Out of the king’s personal entourage, his council, the royal central courts co­alesced. Legal reformers such as Henry II (1154-89) and, later, Edward I (1272-1307), extended the reach of the king’s law, affording civil litigants a royal forum to which they could bring their suits [see above, Module 1, ch. 2].

The busiest of the central courts were the Court of Common Pleas, which heard most civil suits; the Court of Exchequer, for royal financial matters; the Court of King’s Bench, an appeals court with a limited original jurisdiction; and the Court of Chancery, which relied on pre­cepts of “equity” to remedy injustices not covered in the other courts and unmask corrupt officials. Over time these courts replaced feudal obligations based on military allegiance and knightly service with com­mon law and equity.

Other courts were created by the “prerogative” of the crown in the sixteenth century. Some of these, such as the Court of Star Chamber–a court “of inquisition” created by the Tudor monarchs to inquire into abuses of power–would, under the Stuarts, themselves become engines of tyranny. The greatest court was and remains Parlia­ment itself, the king’s great council. Originally called by him for advice in times of special need, Parliament remains a court to this day.

The king impressed his law upon the countryside by commissioning trustworthy members of his council and leading jurists to ride out from Westminster and hold court all over the realm. Henry II (1154-89) called these roving judges “justiciars,” and they collected fees and brought back cases for his council. Under later kings the periodic but irregular tours of royal commissioners were replaced by the biennial assize circuit courts.

The king also commissioned powerful and respected men in each county to hold court as his justices of the peace. These justices not only acted as magistrates but also held court four times a year to enforce royal statutes, oversee the licensing of businesses, and keep the roads in good order. To these “quarter sessions” courts fell the onus of regulat­ing morals, taken from church courts after the Reformation. Serious crimes (crimes of “life and limb”) were reserved to the circuit courts of assize.

The Justices of the Peace

The representatives of the system of royal justice that most colonists knew best (indeed, some colonists had held the office themselves) were the justices of the peace in the king’s commission. In court and out they had the power to keep order, take and hold bonds for good behavior, and arrest and question criminal suspects. Michael Dalton’s The Countrey Justice (1619) was the law book most often imported into the first English North American colonies.

The common law provided civil remedies for assault, battery, and trespass with force of arms, but the justice of the peace was a criminal magis­trate first and foremost. He used his powers to establish a system to watch and warn against crime, binding suspects and potential disturbers of the peace through bonds and sureties put up by the defendant and by others, the latter often important men in the community.

As the king’s justices in the era of colonization knew, the country­side was filled with unrest, some of it stemming from recurrent famines between 1586 through the 1640s. If local justices and the central government were sympathetic toward the starving poor, the relief offered was inadequate. The Poor Law of 1576 and later laws on vagabonds had presumed that poverty was a moral problem. In this atmosphere of crisis social protest was inevitable. When the relief system broke down, the poor turned to self-help, helping them­selves to the grains hoarded by grain merchants.

The justices of the peace were not surprised by these demonstrations of local unrest. Justice of the Peace for the County of Suffolk John Winthrop, later the first governor of the Massachusetts Bay Colony (and thus no friend to the interests of the crown), reviled the “unruliness of the poorer sort” who poached from the king’s game preserves, broke into buildings, and pilfered food.

The justices had at hand more disorder than they could possibly quell, and the local constabulary was itself often dis­orderly and unreliable. Justices had no professional police force on which to rely, only the aid of a handful of part-time bailiffs and constables. They exercised authority in part because they were already local magnates, important employers in their own right of local men and women, and representatives to the House of Commons as well as officers of courts.