Harry Potter begins Law, Liberty and the Constitution, his survey of the English common law with the acknowledgement that his book is “certainly panegyric but with justification” (1). As a practicing barrister, Potter clearly has a passion for his subject and is unapologetic in extolling the English common law's excellence and success as demonstrated by its continuing global influence in Britain's former colonial possessions.
Potter's study covers considerable ground, from Anglo-Saxon times to the legal controversies arising from the so-called war on terror in the aftermath of 9/11. Along the way we discover that in Anglo-Saxon times the primary goal of the law was to minimize the effects of the feud and to mediate between hostile parties seeking to kill, maim, or otherwise dismember each other. At this time, the law was largely based on the need to compensate for wrongs done to persons. For example, under King Aethelbert's code, the loss or mutilation of male genitalia was one of the most heinous crimes, with the “damaging of the kindling limb” costing the offender three hundred shillings, whereas the compensation for the loss of a big toe was a mere ten shillings (13). Potter notes further that the increased use of written records from the Middle Ages onwards resulted in an estimated six million sheep giving their lives in order to supply the necessary vellum for “the creation of a permanent reservoir of legal decision … upon which judges could begin to establish a doctrine of precedent that in its developed form remains a defining characteristic of the English system to this day” (84).
Potter also offers a consideration of the constitutional controversies of the seventeenth century, examining the development of jury-right and the increasing importance of writs of habeas corpus as a safeguard against arbitrary imprisonment. Perhaps the strongest part of Potter's narrative, however, is contained in the chapters considering the development of the legal profession and the emergence of the adversarial system during the late eighteenth and early nineteenth centuries, a period that would culminate in a series of substantial and far-reaching reforms to the English law.
The book is definitely an engaging read. A good reason for this is Potter's decision to focus on a series of vivid personalities whose decisions and writings were fundamental to the development of the English law. Some of these figures, among them Henry II, Thomas Becket, Sir Francis Bacon, Sir Edward Coke, John Lilburne, William Blackstone, Lord Mansfield, Thomas Erskine, and Robert Peel, will be very familiar to students of English law and history. Others, such as the “recently resuscitated” (201) William Garrow, a key figure, along with Erskine, in the development of adversarial trial procedure during the later eighteenth century, will not be so familiar. Potter also presents this broad cast of characters with warts and all. For example, Coke, “was not … a nice man,” but rather “disagreeable, irascible, arrogant, and a bully” (119). The “oracle” of the common law and the principal architect of the Petition of Right was also “capable of monstrous injustice,” and as solicitor and later attorney general to Queen Elizabeth I was “hardly immune from exercising what he would later condemn as arbitrary power” (120). Mansfield, in contrast, emerges as a complex figure, an essentially conservative man who harbored abolitionist sympathies, stemming in part from his affection for his great-niece Dido Belle, a black woman who Mansfield's sea-captain nephew John Lindsay had fathered by “a woman, probably a slave, who he had found aboard a Spanish vessel he had captured” (175).
This book is clearly intended for nonspecialists and is both clearly written and accessible. Accordingly, a certain amount of abridgement is required, and the narrative sometimes runs roughshod over historiographical subtleties in a manner that may make some specialists in particular periods of English history blanch—even grind their teeth. For example, Potter describes the Levellers as a “radical sect” although they were not really a “sect” of any kind, and if someone had ever dared to call the Leveller John Lilburne a “radical” to his face, he would have likely reached for his rapier (149).
Considering the synthetic nature of this kind of enterprise, such minor sins against specialization are certainly forgivable. However, there is another more problematic shortcoming in Potter's self-consciously “panegyric” approach to the subject: Potter seldom mentions or acknowledges Roman and civil law influences on the English law, even though they were at times very significant. By the seventeenth century, civil law ideas had come to play an important role in the common-law thinking of prominent legal luminaries such as Sir John Davies, John Selden, and—in spite of his repeated assertions of the common law's insularity—Coke himself. This was particularly the case with regard to public law, where the relative silence of the common law often necessitated substantial borrowing from the civil law. Hans S. Pawlisch's Sir John Davies and the Conquest of Ireland: A Study in Legal Imperialism (1985) is particularly illuminating on this issue.
Most scholars seeking a more detailed technical knowledge on the finer points of English legal history will still find themselves turning to the work scholars such as Paul Brand, Paul Halliday, and J. H. Baker. Indeed, Potter himself is heavily dependent on these scholars in fashioning his narrative. Nevertheless, as an introduction intended for either undergraduates, legal practitioners curious about history, or even scholars of English history whose expertise in legal history is not what they might like it to be—a regrettably large group—this book is an excellent place to start.
