Petition of Right IV (1628)
Bill Long 1/11/05
5. (Continued) The Statute of Purveyors
The previous essay showed how this statute, 25 E 3, stat. 5, ch. IV, could be used by the reformers to argue for the necessity of procedural due process in arrests--by indictment or presentment. But ch. IV still has one more provision that bulked large, i.e., subsection 3:
"3. nor that none be out of his franchises, nor of his freeholds, unless he be duly brought into answer, and forejudged of the same by the course of the law; (4) and if any thing be done against the same, it shall be redressed and holden for none."
A man's franchise is his "liberty." Thus, no one's property could be taken away without due "course of the law."
[*Note--Catherine Drinker Bowen quotes this same statute as providing that "Loans against the will of the subject are against reason and the franchises of the land." Indeed these are the words that appear in the first paragraph of the Petition. Coke gives the reference as "the five-and-twentieth year of the reign of King Edward III," but I could find no words like this in the standard edition of the Statutes at Large. Anyone help?]
6. 28 E 3
The final (unnamed) statute that was cited was this one from 1354. It also contains a hodgepodge of provisions, though most of them deal with what we would call criminal procedure. The relevant provision is Ch III:
"That no man of what estate or condition that he be, shall be put out of land or tenement, nor taken nor imprisoned, nor disinherited, nor put to death, without being brought in answer by due process of the law."
Now the phrase "due process of law" is brought into the language of the statute, and the person and property of a person in any condition, and not simply a freeman, is protected unless due process of law is pursued.
Reflections on the Use of Statutes
As I have shown, the provisions that might help those who pursued their habeas corpus claim in 1627 are often embedded in statutes that deal primarily or largely with other matters. Yet in the hands of lawyers these dusty laws become living claims on the conscience of the judges. Law's power or, better said, a lawyer's power rests in his/her ability to take a statute that was enacted in a different setting from the one in which you are arguing and apply it to the specifics of the case at hand. Language may need to be massaged; context can be ignored (or emphasized, depending on whether it would help); the principles behind the language can be useful if the language itself doesn't provide direct aid.
It is usually a lawyer's purpose to show that what s/he is proposing to the court isn't a novel idea after all. As a matter of fact, if the idea is one of hoary antiquity, preferably found in MC, the lawyer can try to create the air of historical inevitability--that the only legitimate interpretation of the past is one that leads to broadened rights of Englishmen today.
This was the strategy that Selden pursued in 1627. When it didn't succeed in the Five Knights Case, however, Coke dusted off the precedents used by the lawyers and put them in the Petition of Right. That is, just because a judge doesn't "buy" your arguments is no reason to give up. Make them again in a different forum! Even if you don't get everything you want in that moment, perhaps you will win in the long run of history. And, indeed, the reformers did "win" in the long haul.
The major victory won by the reformers in the long haul, however, was an interpretive one. In the Petition of Right they linked a statute with an action by the King--i.e., linked the King's imprisonment of the loan refusers with the statute that said that no "tallage or aid" shall be laid without the assent of the nobles and other freeman (25 E 1, stat. 1, ch VI). Once they connected the action with a statute, and once the Petition was accepted, the reformers had foreclosed the possibility of alternative interpretations of the King's action. That is, the King had violated the law, pure and simple.
This "freezing" of interpretation ignored the argument made by the Attorney General in the previous year, that the King had power to do this by virtue of his royal prerogatives, prerogatives that could not be questioned. So, what the Petition did, above all, was to freeze one interpretation and to eliminate alternative explantions for royal activity. Lawyers like to freeze interpretations, especially if it is in the service of their clients or their interests. The result of this was that when the Founding Fathers of America were casting around for their own legal precedents to oppose the royal depredations of George III, they fell upon the "ready made" interpretation of Coke and others in the Petition. If only they had "Edit and Paste" in 1776! Then, the Founding Fathers could just have taken the argument from 1628 and dropped it right into their documents.
Now, with all of this legal and historical background, we are ready to understand the flow of the Petition. The final essay considers the text of the finally-approved Petition.
Copyright © 2004-2008 William R.Long