Petition of Right II
Bill Long 1/11/05
The Statutory Background of the Petition
When lawyers make arguments in the common law tradition, they usually draw on legal precedents or statutes to make their case. Statutes and cases are often subject to different "readings" based on your client's interests, but these statutes and cases are the authorities to which courts will want to adhere faithfully. At least six statutes formed the basis for the Five Knights Case (1627) and the Petition of Right (1628). The purpose of this and the next two pages is to go through those statutes chronologically to see how they could have been used by Coke and the supporters of reform. Though the reformers lost in 1627, the secured passage of the Petition in 1628.
1. Magna Carta
If there is any document considered nearly sacred in the Anglo-American legal tradition it is the Magna Carta. Issued by King John in 1215, the basic text of the MC we use today is the one re-issued in 1225 under Henry III and confirmed in 1297 under Edward I. As with all sacred documents, however, there are loads of things in MC that not only are time-bound in their application, but are seemingly of little account. Drum roll, please....."No Banks shall be defended from henceforth, but such as were in defense in the time of King Henry our Grandfather, by the same places, and the same bounds, as they were wont to be in his time (ch. XVI)."
Well, the purpose of this essay isn't to sift through the Great Charter. But in the midst of the flotsam and jetsam of provisions is chapter XXIX:
"No freeman shall be taken, or imprisoned, or be disseised of his Freehold, or Liberties, or free Customs, or be outlawed, or exiled, or any otherwise destroyed; nor we will not pass upon him nor condemn him, but by lawful Judgment of his Peers, or by the Law of the Land. (1) We will sell to no man, we will not deny or defer to any man either Justice or Right."
There is, of course, no "legislative history" for this enactment, so its meaning is unclear. It no doubt refers to arbitrary "justice," such as putting a person to death without trial. What is unclear here, which would be an issue in 1627, was whether this "Law of the Land" meant what we today call a "procedural due process" [i.e., that the arrest must happen only after agreed-upon procedures have been followed] or "substantive due process" [assuring a conviction only based on statutes or case precedents] or both. In the 17th century, Charles I's Attorney General argued that the King was the Law of the Land; hence, his power to arrest could never be questioned, and thus he stands above MC.
Yet Coke and Selden and every "personal rights" attorney since then have argued that ch. XXIX requires approved (non arbitrary) legal processes and principles of judgment. No one, not even the King, can put himself above the law of the land. Though I argue here that the language of the Charter is ambiguous with respect to arbitrary royal arrests, the reformers made the case successfully in 1628 that it included what we would call "due process of law" --i.e., procedural and substantive due process, and that it also applied to the King.
2. Statute of Westminster Primo (1275)
Lord Chief Justice Hyde, in his opinion in Five Knights, says that this statute was discussed by the litigants. Though the 51 chapters of this law, formally known as 3 Edward 1, are of huge significance in the history of English law, only one chapter arguably even relates to the issue. Chapter 15 discusses the issue of "replevying" prisoners--that is, under what conditions a prisoner can be held without bail and when he must be released on bail. The chapter is too long to quote in full, but it seeks to clarify by law that only serious offenders, such as those who are "taken for house-burning feloniously done, or for false Money, or for counterfeiting the King's Seal, or Persons excommunicate..or of Treason touching the King himself, shall be in no wise replevisable [the statute assumes that murderers and other violent criminals would not be bailable]." On the other hand, those who are "of light Suspicion, or for Petty Larceny....or guilty of some other Trespass, for which one ought not to lose Life nor Member...shall from henceforth be let out by sufficient Surety."
I can see how the reformers could use 3 Edward 1 ch. 15 to make the case that if the Five Knights were guilty of anything, and the attorneys were not admitting guilt of their clients at all, it was only a minor, hence bailable, offense--failure to make a "loan" to the King when requested.
Four other statutes were cited; the next essay considers them.
Copyright © 2004-2008 William R.Long