Has there ever been a golden age for English law, where access was cheap and easy for all?
There may have been hopeful moments, for instance after the birth of the welfare state and its concomitant Legal Aid and Advice Act 1949.
But it is a shame for lawyers that we can neither look back nor forward to a time when our citizens’ access to dispute resolution and legal transactions can be held out as an ideal model.
I was reminded of this when reading a book about life and politics in the English Commonwealth and Protectorate between the execution of Charles I and the restoration of his son as Charles II (title and author below*). The years are 1649-1660.
It was depressing to see that there were complaints even then about the slowness and cost of the legal system; how it was unfair and a closed shop. Most focused on the time it took to resolve cases and the high cost of lawyers’ fees.
The Diggers and Levellers were active around the start of that period. Their views inspired a petition in 1649 asking for, among other things, the law to be cheap and certain. The petition asked that all lawsuits and differences be arbitrated first by three neighbours – a bit like compulsory preliminary mediation – and, only if that did not bring a resolution, should the matter go to the courts. Gerrard Winstanley, a Digger, called the law an old whore that picks men’s pockets and undoes them. Oliver Cromwell never lost his desire to change the legal system ‘which would hang a man for six-pence’.
There was a great move for reform in 1652 which, if implemented, would have brought about a similar moment to the 1949 act. In that year, Sir Matthew Hale (made chief justice of the King’s Bench in the Restoration) was appointed head of a commission to consider the overhaul of the whole English legal system, looking at its slowness, cost and inequities. It met regularly for six months and drew up an ambitious range of proposals.
None were passed into law at the time, because of the tensions between the Rump Parliament and the army. For instance, when the work of the Hale Commission was being debated, colonel Thomas Pride (of Pride’s Purge in 1648, which excluded some members of the Long Parliament from sitting, and arrested 45 of them) loitered ominously at the door of the Commons chamber.
Over later centuries, most of the commission’s recommendations – which included a form of legal aid – have been implemented. But at the time, the lawyers of the new regime were blamed for the lack of progress and accused of dragging their feet for their own gain.
It is true that there were important improvements in those years. For instance, in the year after the execution of Charles 1, in 1650, parliament passed an act declaring that all legal proceedings, which had so far been conducted almost exclusively in Latin or French, would be in English alone. The ancient script known as ‘court hand’, in which all legal paperwork was written, was abandoned, and documents were instead written in an ordinary legible hand.
It was news to me how significant a role was played by a lawyer at the head of the Commonwealth. John Bradshaw (pictured), who we would now consider a barrister from Gray’s Inn, not only presided over the trial of Charles I, but was president of the Council of State from 1649-1653 – effectively in our terms the prime minister, although the system was utterly different and not recognisably democratic. He continued in parliament during the Protectorate and was finally buried with great honours in Westminster Abbey.
His end is a cautionary tale for the powerful. On the Restoration, his corpse was one of three dug up – Cromwell’s was another – before being taken to Tyburn, displayed all day in chains, and at sunset beheaded. Their bodies were thrown in a common pit and their heads displayed for a long time at Westminster – Bradshaw’s above the door of the room in which he had handed down the death sentence on the king. Thousands attended his mock execution at Tyburn, and it is reported that some young men reached up and pulled off Bradshaw’s toes. A merchant made off with five of them.
I am also reminded by this excellent book that, in the 2019 Queen’s speech, this government announced the establishment of a royal commission on the criminal justice system. It has since been kicked into the long grass, with the pandemic blamed.
If we are to hope for a golden age, we need a royal commission soon – and on nearly all aspects of the whole justice system.
* The Restless Republic – Britain Without a Crown by Anna Keay, published by William Collins, £9.99
Jonathan Goldsmith is Law Society Council member for EU & International, chair of the Law Society’s Policy & Regulatory Affairs Committee and a member of its board. All views expressed are personal and are not made in his capacity as a Law Society Council member, nor on behalf of the Law Society
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