 It's a great pleasure to see so many people here and is testimony to the memory of Sir David Williams, but also to our speaker. It's my great pleasure as Director of the Center for Public Law this evening to welcome you to this year's Sir David Williams lecture. The lecture started in 2001 to celebrate the contribution to legal scholarship of Sir David Williams. Sir David was an imminent public lawyer who specialised in the control of public power, and he was one of the founders of modern public law. He was also passionate about constitutional government and was a great contributor to this law faculty. He was a long-standing fellow of a manual college and became Rouseball Professor and also President Wabson College. He then moved to become the first full-time Vice-Chancellor of this university. Even in retirement he was prolific in his contribution to the university and to this faculty. It was important simply because he was always around and showed a great interest in younger scholars. That was a major contribution to the life of the faculty in this building. We're very grateful today to have Lady Sally Williams and members of her family with us. We're also grateful to Mr Michael Ross and to the co-funder Mr John Nolan from whose generosity this lecture is funded, but neither of whom, unfortunately, are able to be with us this evening. It's my great pleasure to introduce Sir Stephen Sedley to deliver this evening's lecture. After graduation from Queen's College, Cambridge, Sir Stephen was called to the bar and became one of the foremost advocates of his generation with particular interest in the development of public law. He was counsel in many high-profile cases, including cases of importance such as the death of Blair Peach and Carl Bridgewater. He then became a High Court Judge in 1992 and then, after that in 1999, was appointed to the Court of Appeal, this Law Justice of Appeal, from which position he retired in 2011. He's also served as an ad hoc judge of the European Court of Human Rights. He has a great sense of fun and one of the things he produced as a light relief was Sedley's Laws of Documents about the troubure relations of litigation. Among the laws that he produced, documents may have been assembled in any order, provided it is not chronological, numerical or alphabetical. Any important document shall be omitted. As many photocopies as practicable shall be illegible, truncated or cropped. Proceeds to the end laws is the only one side of any double-sided documentary we reproduced. More seriously, Sir Stephen has maintained the tradition of many judges over many centuries of being involved both in scholarship and in professional activity. He, over many years, has been a regular participant in academic conferences at home and overseas, and his fluency in French is very impressive. And he has published many scholarly articles and books, as well as giving clear judgments from the bench. In both of these types of work, he has tried to give a clear direction to the development of public law, and his major achievements on the bench have perhaps been in administrative law. He's used much of his scholarly writing to engage in more broadly in constitutional debate, particularly on, as was clear from the title of the lecture, the relationship of normative law and history. His most recent book is a collection of essays, Lion's Under the Throne, and this title gives part of the title to this lecture. It's on the role of judges within the constitution. I look forward, given the quality of his work, to an amusing erudite and thought-provoting presentation. Ladies and gentlemen, I ask you to welcome Sir Stephen Hathedley. Thank you very much indeed. If only it were all true. I did give a talk to a great deal of students a few months ago called Getting It Wrong. The thing that's easiest to get wrong is cracking jokes in public, so I'm not going to do any tonight. But it is a very special honour indeed for me to be invited by the university which I first loved and then left to give this year's lecture the memory of David Williams, a scholar, mentor, and a friend. Before I go any further, it's no good asking whether you can hear me, whether you can't hear me, could you just wave at the back to indicate whether you can hear me? Brilliant. My abiding memory of David comes from the 1990s during his vice-challegership when I completed my vacation stint in the administrative court, packed my bags and left for the Greek island of Spetsis where the European Public Law Group, of which David was a founder and later the president, was holding its annual conference. My last decision before leaving London had been to grant a litigant leave to challenge the legality of some of Cambridge's promotion procedures. As the ferry drew alongside the key on Spetsis, David was standing there with Sally in toning across the water in his most Welsh voice. What have you done? There was no hiding place from David. Like most undergraduates in the Cambridge English School in 1960, I used to attend Dr Leavis' lectures. They veered between penetrating insights into texts, splenetic assaults on his critics, and grand generalisations about literature and culture. One of that has stayed in my mind. There is no literary history, said Leavis, who himself had once been a historian. There is no literary history, he said. There is only literature. Albert Ven Dicey, whose ghost haunts my new home Oxford, although he too knew a great deal of history, was similarly anti-historicist when it came to understanding law. Let us eagerly learn all that is known, or eagerly all that is not known, about the Witton Agamart, he wrote. But let us remember that antiquarianism is not law, and that the function of a trained lawyer is not to know what the law of England was yesterday, still less what it was centuries ago, or what it ought to be tomorrow, but to know and be able to state what are the principles of law which actually, and at the present day, exist in England. On he goes, As of the 17th century, the conflict between James and Cook, Bacon's theory of the prerogative, Charles's effort to substitute the personal will of Charles Stewart for the legal will of the King of England, are all matters which touch not remotely, he said, upon problems of actual law. Tom Bitham, with characteristic charity, was prepared to blame at least some of Dicey's obscurantism on the fact that the Oxford Law School had only recently been separated from the Modern History School, leading Dicey to try to stake out a distinct terrain for the study of law. But even Bingham felt compelled to call Dicey's approach not only anti-intellectual, but plainly misguided. A lawyer without history, as well as literature, Bingham wrote, quoting Walter Scott, is a mechanic, and probably he added, not a very good mechanic at that. One would like in this lecture to explore a little of the terrain that lies between an anti-historicism which denies the law's past, any role in this present or its future, and what has been called the imperialism of the present, the pressing of yesterday into the service of today without regard to the passage of time. A recurrent example of the latter of these two things, highlighted last year on the 800th anniversary of Magna Carta, is the urge of many lawyers and some historians to co-opt the limited undertakings extracted by a group of aggressive barons from a beleaguered feudal monarch into the modern constitutionalisms of Britain and the United States. But this is a long way from saying, as Dicey's myopic historiography would have said, that Magna Carta has no bearing on our legal culture. If instead of squinting at the document to the prism of modernity and discerning what appear to be the underpinnings of jury trial and legal aid, one looks at what has happened over the intervening eight centuries, a different function of Magna Carta begins to emerge. The nourishment of a deep line and long-term consensus that no power stands outside law and that there exist fundamental rights which no government, whether monarchical or elective, has power to deny. I have to say this, of course, is to say both everything and nothing. Everything, because in one grand sweep it encapsulates the entirety of the rule of law, nothing, because until you know what power and what law and what rights are meant, you're talking in a void. It's been the historic task of the common law to fill this insatiable moor, never forgetting Bacon's admonition that the judges, although they may be lions, a lions under a throne occupied in his time by a monarch, that since the revolutions of the 17th century by a legislature whose sovereignty the judges have at least not so far contested. In looking now at some of the ways in which the law of England and Wales is over the centuries reinvented itself, I'm not speaking of anything as self-conscious or self-serving as the invention of tradition. In his introductory essay to the celebrated collection The Invention of Tradition, Eric Hobsbawr made a worthwhile distinction between tradition and custom. Custom, he wrote, is what judges do. Tradition, in this case invented tradition, is the wig, robe and other formal paraphernalia and ritualised practices surrounding their substantial action. Let me try to illustrate the adaptability, inventiveness of common law custom of what, as the Hobsbawrm's phrase, what judges do by looking first at a legal doctrine which has conditioned my working lifetime, the amenability of all administrative bodies, tribunals or decision makers, to the supervisory jurisdiction of the High Court for Errors of Law, though substantive or procedural and whether jurisdictional or not. By the 1960s, judicial review of administrative acts had become entangled in a web of largely subtle and largely impressionistic distinctions. One was between those acts which were quasi-judicial and those which were merely administrative. The form of broadly speaking were open to challenge for procedural impropriety, the latter in general were not. Over and above this distinction laid the difference between errors of law which went to jurisdiction and those which had occurred in the size of a properly assumed jurisdiction. Now, this was a meaningful distinction which had developed over the course of the 19th century in cases decided in the 18th and 17th centuries as Parliament sought to protect its proliferating administrative bodies by means of privative or preclusive clauses, provisions forbidding judicial review of the decisions by way of Sir Sharrara. To this the judges had responded by holding that a decision made without jurisdiction was no decision at all and hence was not shielded by these clauses. The decision in the Anna's Minute case handed down by the law-laws in December 1968 added nothing to this well-established rule of the legal game. What it did instead was move the go-posts. The Foreign Compensation Act 1950 under which a commission of 10 lawyers that held the Anna's Minute limit was not entitled to compensation for the loss of some of its assets in the 1956 serious crisis laid down in black and white in section 4 subsection 4. The determination by the commission of any application made to them under this act shall not be called in question in any court of law. It was difficult to see by the commission's determination that neither Anna's Minute limited nor its Egyptian successor was eligible for payment out of the Foreign Compensation Fund even if it was wrong. To see why that decision was not precisely the kind of determination which section 4.4 was designed to keep away from the courts. That was certainly how it had looked to a unanimous court of appeal which included Lord Justice Dipplock and it's how it still looks to a number of commentators. But the law-lords by majority characterised the finding of eligibility as an error going to the panel's jurisdiction rendering its determination void. There were indeed there are still sharp intakes of academic and professional breath at the intellectual leisure demand of Lord Reid's reasoning to this effect. But there was nothing of obviously historic consequence of the decision itself. Indeed it had been anticipated by the neglected first instance decision of Mr Justice Brown what created legal history was what the profession itself by a pension bar set about making of the law-lords decision. It would have been neither forensically unacceptable nor intellectually dishonest the Treasury Council in the years after 1968 to submit and for the courts to hold that the anismanic decision was confined to a single arcane statutory regime bounded by the foreign compensation brackets Egypt bracket brackets determination and registration of claims on bracket order 1962 within which the law-lords have positioned a well-established test of justice ability the jurisdiction test in an unexpected place. Question is why this is not what happened. What happened was that it became the experience of council of whom I was one appearing during the 1970s judicial review cases against government departments or official bodies to be told by Treasury Council that no point was to be taken on the applicability of anismanic. In other words if the applicant could establish an error of law it was not going to be argued by the Crown that it was justiciable only if it appreciated the decision maker's jurisdiction. It was accepted in effect that if the tribunal's error in anismanic truly went to its jurisdiction as the law-lords had decided it did then the old divide between jurisdictional and non-jurisdictional error had collapsed. The goleposts in other words had become the corner flags. Now this was not a twice only clear it was a recognition that the orderly development of public law required a comprehensive approach to arguable abuses of power. In place of the hair splitting distinctions which had come to disfigure the law in near to war years and it should be placed on record that it was from the successive Standing Council to the Treasury first Gordon Slin then Harry Wolf then Simon Brown then John Laws that these initiatives came. Lord Wolf in his 1989 Hamlin Lectures noted without ranker that the string of celebrated public law cases which he lost as Treasury Council over little more than a year Thameside, Congrive, Crossman Diaries and Laker Airways had in his words all contributed to the development of administrative law. One of the great strengths of public law in my years both at the bar and on the bench was that Treasury Council would if necessary put the development of a principled body of public law ahead of the need to win a particular case. It happened in crown against Greater Manchester Coronax Pateau Tau where Simon Brown as Treasury Council supported my submission that a recent authority refusing to apply the anti-sminic principle to Coronas courts what not to be followed and again in Leech where John Laws declined to invite the House of Lords to reverse the High Court's landmark decision in such a domain that the procedures of prison boards of visitors were justiciable and that would have been a reversal that would have won in the case and instead undertook the Cicifian task of attempting to carve out an exception for adjudications by prison governors. The work of Treasury Council is more widely diffused nowadays but it's to be hoped that this culture of Canada continues. For their part the judges continued after 1969 to weave between jurisdictional and non-jurisdictional error but as time went by they responded to Council's invitations to build on anti-sminic rather than to marginalise it. In 1974, not sooner Lord Diplock delivering the dismiss lecture here in Cambridge declared that anti-sminic I quote renders obsolete the technical distinction between errors of law which go to jurisdiction and the law which do not. One notes Diplock's dismissive description of the historic distinction as technical which it most certainly was not. Although erratically applied it was a distinction which gave substance to the division of powers between the legislature and the courts. About a collaborative and some might say a collusive process of reconfiguring public law was now under way. It didn't reach fruition until in the summer of 1980 in rakel communications Lord Diplock now seated in the chair of the House of Lords Appellant Committee repeated almost verbatim what he had said in his Cambridge lecture seven years earlier at this time he declined to dismiss the old distinction as merely technical and what Diplock said in rakel about anti-sminic has become canonical. Despite the fact since rakel concerned the jurisdiction of the higher courts and the interior tribunals it was entirely obiter. It was from this makeshift platform that two years later Diplock felt able in a Raelian Mackment to announce that Alice Minick has liberated English public law from the fetters that the courts had there to forth imposed upon themselves by drawing esoteric distinctions and so forth. This was the moment at which Diplock with the assent of the rest of the judicial committee threw open history's door. Years later in 1996 for a cook of thawndam delivering one of his hamlin lectures of all cells in another part of the country spoke of Diplock having at that moment possibly with a degree of daring and certainly with the coup de metre extended Alice Minick by treating the reasoning there as having abolished what he justly called the esoteric distinctions between errors of law going to jurisdiction the law lords have since then as every student knows endorsed as established law the proposition that no tribunal has power to get any material point of law wrong and that is so whether it touches the jurisdiction of the tribunal or not I don't argue that there's anything wrong with this it's later the foundation of the modern recognition that public law is not about altravarys acts determined by tick boxes devised in 1948 by Lord Green that is about the misuse and abuse of power what interests me here is how this has come about it's come about also I have suggested neither by legislation nor by precedent but by an organic process in which the law's practitioners and its exponents have agreed on which way the law should be travelling and have found a serviceable if not particularly suitable vehicle to transport it this kind of professional murmuration is not unique to take another instance the house of lords in the case of the director of public prosecutions against smith decided in 1960 in the days of capital punishment that a defendant charged with murder whatever his intelligence and whatever his state of mind was presumed to have attended the natural improbable consequences of his actions trial courts simply declined to apply the ruling the judges would ask prosecutors do you propose to address the jury on the basis of smith and when the prosecutor said no the judges would direct their jurors simply as if smith had not been decided they were right to do so and parliament in due course agreed in 1967 passed section 8 of the criminal justice act making intent and foresight once again a matter of evidence and not a presumption and some years later the privy council on the joint capital appeals from the Isle of Man Helen Smith had been wrongly decided in the first place and before I am accused of advancing a Anglosian version of legal history in which judicial or legislative dros gets repeatedly spun by the collective wisdom of the profession into jurisprudential gold let me give a couple of opposite instances one is the final abandonment last month of strict criminal liability for homicide in the course of a joint enterprise the doctrine that each participant in a joint enterprise frequently for example spontaneous pub brawl was guilty of murder if it was a foreseeable possibility that would inflict deliberate serious or fatal harm even though the accused had no knowledge or forewarning of it was devised on an appeal to the privy council from Hong Kong in 1984 the case of Chan Wing Sue the courts of England and Wales were not even bound by the doctrine of precedent to follow this decision but follow it they did with the deplorable consequence that people have repeatedly gone to jail when they should not have done the chronicle as it happens from real life in Ian McEwen's recent novel The Children Act to describe the eventual reversal of the cruel Hong Kong decision as historic is perhaps to miss the point that it was not last month that 30 years ago that the law of this country refashioned its own history in the shape of the colonial noose secondly a quite different example the abandonment two centuries ago for ideological reasons of a set of criminal sanctions designed to protect the poor and to keep civil order without force the sanctions the sanctions were the old market crimes of engrossing, regrating and forestalling creating scarcity and forcing up prices by cornering supplies before or after they reached market and these activities had been criminalised by statute since the reign of Edward VI and the Seventh would be put a bit late a time when, as Keith Thomas notes in The End of Life the view that the pursuit of self-interest was both ineluctable and socially beneficial first began to be articulated and John Baker of course prosecutions for regrating and engrossing evidently was the first for regrating and engrossing evidently a common law even earlier than this Adam Smith, although he was a life to the dangers of monopoly contended that such market crimes were comparable to what he called the popular terrors and suspicions of witchcraft but when in 1772 Parliament repealed the statutes which created them the judges held that they were still crimes of common law in more than one prosecution in the years that followed Adam Smith's writings were cited to the court as arguments for a quittle for a time more conservative judges held out against this Chief Justice Kenyon trying to re-greater named Rosby at the London Guildhall in 1800 said to his jury a very learned man, a very good writer who said that you might as well fear witchcraft I wish that Dr Adam Smith had lived to hear the evidence today if he had been told the cattle and corn brought to market and then brought by a man whose purse happened to be longer than his neighbours so that the poor man who walks the street and earns his daily bread by his daily labour would get none but through his hands and at the price he chose to demand would he have said that there was no danger from such an offence Kenyon went on to tell the Guildhall jury it has been said that in one county I will not name it he said a rich man has placed his emiseries to buy all the butter coming to the market if such a fact does exist to the poor of that neighbourhood cannot get the necessaries of life the event of your verdict may be highly useful to the public but with Erskine leading Garrow for the prosecution and Kenyon's not entirely dispassionate summing up the jury convicted Rosby without even having to retire the unnamed county that Kenyon was speaking about and is charged to the Guildhall jury is almost certainly Oxfordshire and when in September 1800 the Vice Chancellor of Oxford University acting without consulting the local magistrates had the cavalry sent in to suppress disorder over an engineered inflation of the market price of butter the town clerk wrote on behalf of the mayor and magistrates to the Secretary of State of War Duke of Portland to assure him that the city was able to control discontent over market abuse by prosecuting the speculators he got a long pompous answer criticising the city for failing to prosecute the rioters rather than the speculators and commending a laissez fair approach to markets controlling prices said the Duke necessarily prevents the employment of capital in the farming line and he wrote to the Vice Chancellor those who instead of being denominated in grossers are correctly speaking the pervers and provident stewards of the public by the time of Kenyon's death in 1802 Eldon who suffered from no such group was Lord Chancellor and judicial policy was falling into line behind ministerial policy in 1814 the Statute of Artificers which enabled magistrates to set minimum wages was repealed following year the legislation to enable justices to control bread prices in London was also repealed by the end of the Napoleonic Wars grand juries were no longer being asked to indict speculators for market crimes and judges were no longer inviting petty juries to convict the centuries old market offences looked canute like today but the judges who have tried to maintain them at a time when conventional wisdom was shifting steadily in favour of unregulated markets were not ideological or jurisprudential dinosaurs they were trying to preserve a legal paternalism which formed part of what E.P. Thompson called the moral economy of the 18th century crowd a paternalism which sought to maintain living standards in civil order in communities where livelihood was dependent on the integrity of markets and where the hardship caused by rigged markets was driving rural families into English proliferating factors and slums for these people the alternative to properly invigilated local markets was not as the Duke of Portland supposed agricultural prosperity it was the poor house enlistment for foreign wars and when they protested Peterloo both the enforcement and the abandonment of market crimes may today appear to be part of what Alexander Bekeld described as the sediment of history which is law but Bekeld's dismissive description overlooks the proactivity of which law is also capable it's in the 18th century that you find the foundations of two of the grandest of the common laws artifices edifices the exclusion of political ministers from the administration of criminal justice and the anathematisation of slavery the first of these was far from being supported by clear-cut jurisprudence but Lord Camden's protean judgment in antique and Carrington became accepted not unlike Anisminic in the 20th century as solid authority for what his audience wanted to hear the second Lord Mansfield's holding a Somerset's case that the state of servitude was unknown to the common law was the exact opposite a perfectly clear-cut decision or great extemporary brief a precious mass of moral, political, economic self-interest some of it Mansfield's own the raid provoked by issue number 45 of Wilks's ferociously anti-government paper The North Britain in April 1763 spawned a celebrated clutch of lawsuits principally against the king's messengers who had executed the home secretary's general warrant to search for and arrest the authors, printers and publishers of the paper these cases established that ministers of the crown had no judicial powers as conservators of the peace that the general warrants they had been in the habit of issuing were unlawful and that they were answerable to the ordinary courts for the consequent trespasses committed by their agents it's probable that these decisions would have had a lasting impact without the separate lawsuit brought by John Entic whose magazine The Monitor had been raided the year before but Entic had bided his time and then brought his own action against the king's messengers since the warrant used against him had not been a general warrant he limited his claim to trespass to his house and goods but the claim turned out to be the opportunity that Chief Justice Pratt later to be Lord Camden had been waiting for to bring all the issues of ministerial power together in a research and comprehensive judgement Pratt's judgement which you'll all be familiar with is a tour de force of legal scholarship in it he rebuts the claim familiar and more than once successful in the course of the 17th century that the state could commit wrongs under a shield of necessity with respect to the argument from state necessity he said or a distinction that has been aimed at between state offences and others the common law does not understand that kind of reasoning nor do our books take notice of such distinctions this being so he held ministers enjoyed no extra judicial powers of arrest or seizure but did they possess judicial powers to investigate and suppress sedition so that both they and their officers enjoyed the same statutory protection as constables whatever the outcome of their warrants again Pratt said no the problem as Pratt was compelled to acknowledge was that there was clear authority to the contrary the decision of Chief Justice Holt in 1696 that the monarch secretaries of state possessed general powers of committal that is of arrest as conservators of the peace the case had been treated as sound law and followed in at least two subsequent cases yet I am satisfied said Pratt that the secretary of state have assumed as powers of transfer I know not how of the royal authority to himself and that the common law of England knows no such magistrate at the same time I declare when my brothers do all agree with me that we are bound to adhere to the determination of the Queen against Derby and the King against Erbyry two earlier cases and I have no right to overturn these decisions even though it should be admitted that the practice which is subsisted has been erroneous in its commencement there is something delightfully denning-esque about Pratt's candid acknowledgement of contrary authority that is equally candid refusal to follow it might be possible as opposed by the use of advanced casiustry to find a threat of consistent jurisprudence in the passage but history really has not bothered with this it has taken the court of common please Pratt's court to have brushed aside the authority of the King's Bench which was, let's be clear, a court of co-ordinate jurisdiction with the common please and therefore not able formally to bind it and to have laid down a bright line segregating criminal justice from political governance it's a line which in recent decades has come under growing stress a stress first scrutinised half a century course of going by David Williams with the statutory enlargement of ministerial powers of investigation and control but when in 1993 in Emma against the Home Office the Crown argued that as a minister of the Crown a home secretary who had defied an order of the court was not answerable in contempt for his conduct the rebuffed is delivered by the law laws was justifiably described by Professor Wade as the most important judicial decision for over 200 years meaning as he more than once made clear since Entiff against Carrington Somerset's case decided by Mansfield seven years after practice I decided Entiff in Carrington was in some ways an equal and opposite phenomenon Mansfield an experienced politician and a shrewd investor was not an abolitionist not long before he told John Dunning council for the West African semen Thomas Lewis was employer Stapleton a purpose to send him into slavery in England that the legality of slavery would be best left an open question for I would have a master as he said think them free and all negroes think they were not but Granville Sharp who had prosecuted Stapleton for kidnapping Lewis and secured a verdict that Lewis had never been Stapleton's property would not let it rest there in November 1771 he learned that a West African renamed James Somerset was being held in Irons aboard a ship at anchor in the Thames awaiting transportation to Jamaica where he was to be sold within two days Sharp had obtained from Mansfield a bit of habeas corpus calling on the ship's captain to justify Somerset's detention the widely held belief that Mansfield deliberately delayed a hearing is incorrect he adjourned it once in the express hope of a settlement that in June 1772 he sat in bank and with his fellow judges heard out the arguments albeit under pressure of time Shaft had been able to assemble a formidable team led by Sergeant Davey and Sergeant Glen with the future Chief Justice of the Common Pleas James Mansfield and the scholarly Francis Hargrave as their juniors all of them appearing without fee while the slave owners bankrolling the ship's captain had briefed Dunning, the former solicitor general who had appeared on Hargrave's instructions for James Lewis and who in his submissions acknowledged the unpopularity of his cause took refuge in his duty to his client feeling many of us have experienced Mansfield's judgement was not quite the rhetorical tour de force that legend has made it out to be the stirring line the air of England has long been too pure for a slave and every man is free who breathes it was shoehorned in by Lord Campbell when he came in the following century to write his life of Mansfield but what Mansfield did say although inelegant was, I think, unequivocal he said the state of slavery is so odious that nothing can be suffered to support it but positive law but every inconvenience therefore may follow from a decision I cannot say that this case is allowed or approved by the law of England and therefore the blackness be discharged in other words the return to the writ had no foundation in English law as a commercial lawyer Mansfield knew very well what the inconveniences were that would follow from his judgement which had been given that should not be forgotten with the assent of the other three judges of the king's bench not only would the 14,000 black men and women held in servitude in England and Wales become instantly free it was probable that the same had to follow in all of Britain's seated or conquered colonies where in contrast to the settled colonies Mansfield himself was to hold two years later the common law had direct force that this did not happen and that instead the judges with Parliament's acquiescence continued for decades to endorse or at least tolerate colonial slavery is an embarrassing example of the law's capacity the moral cardice in the face of political and economic pressure many MPs had interested slave plantations slaving voyages which many of them had stakes who'd return a profit of 2,000% Mansfield himself in the Zong case some 11 years after Somerset's case unblinkingly treated jettison slaves as insurable cargo as late as 1827 Lord Stoll held that a slave who had lived in Britain and so had become free could be enslaved again on her return to the West Indies and as late as 1860 the English courts were prepared to enforce contracts for the sale of slaves in Brazil although abolition bills were introduced pretty well every year from 1782 it took Parliament till 1807 to outlaw slave trading and until 1833 to formally abolish colonial slavery the latter had a monumental price in compensation to the slave owners raised by taxes on goods which fell mostly on the domestic working class and not a penny was paid to the former slaves here too the law can be seen making its own history not in the simplistic sense that as time goes by one decision or statute it succeeds another but in the sense that the judges from time to time are not necessarily collusively determine what trajectory the law is to follow if the trajectory followed by the judges on the issue of slavery was hesitant and unprincipled it was not as it frequently suggested because Mansfield judgement had been unclear or equivocal it was the law makers both on the bench, Mansfield himself among them and in Parliament who equivocated their accusinanimity contrasts with what followed elsewhere in the empire here according to Mansfield's own doctrine in Campbell against Hall the laws of seeded or conquered colonies were required to conform to the fundamental principles of the law each of the American colonies took the opportunity of the war of independence to legislate either to abolish or to institutionalise slavery within its borders but the practice of slavery also came in question in lower Canada which unlike the settled American colonies had become a British possession by conquest a petition to the Canadian Parliament in 1799 asserted that slaves in lower Canada had recently imbibed a refractory and disobedient spirit under pretext that no slavery exists in the province the petition went on to recite that the Canadian Court of King's Bench plainly in reliance on Somerset's case and on Campbell against Hall had begun granting rits of habeas corpus to liberate not only two runaway slaves who had been apprehended but as the Chief Justice had announced quote every negro indented apprentice and servant who should be committed to jail under the magistrates warrant in the like cases let me turn lastly to a quite different way in which legal history is made by treating inconvenient events as simply not having happened it's one thing and not a mere pretence to hold a measure to be devoid of legal effect another to treat a historical legal fact as never having occurred yet that is how my generation and I suspect others too have taught legal history our lecturer at the Inns of Court School of Law stopped in 1649 and moved directly to 1660 because everything that has happened between those years was he said a legal nullity now this was not one teacher's idiosyncrasy in 1660 on the restoration of the monarchy after 18 years of republicanism the public hangman was ordered to make a bonfire in Westminster Hall safety regulations were apparently not quite as stringent than as they are now of every copy of a number of republican enactments and a search was ordered to be made for every copy of I quote the traitorous writing called the instrument of government the instrument of government in 1653 was Britain's first and still its only written constitution not only did the protectorate which it created foreshadow the American model of presidential government with the parliamentary override of any measures promulgated by the protector it was palpably the source of a number of provisions of the Bill of Rights adopted 35 years later by another parliament which for all its protestations of legitimacy had once again seated a monarch and was setting its own terms of governance we all know that the Bill of Rights in 1689 declared the regal practice of suspending or dispensing with laws enacted by parliament and the raising of revenue without parliament's authority to be illegal how many of us know that 35 years earlier the instrument of government had provided I quote that the laws shall not be altered suspended, abrogated or repealed nor any new law made nor any tax charged or imposition laid upon the people but by common consent in parliament we all know that it was the act of settlement that in 1701 created the secure tenure of judicial office which still underpins the separation of powers who knew that it was in 1642 that the long parliament first extracted this principle from Charles I and the 1648 confirmed it by statute while many of us were taught at school inaccurately my grandson at the weekend was taught it last week that the Puritans had abolished Christmas none of us as law students were told that in the years of the interregnum parliament had stopped the use of Latin and French in the courts instituted civil marriage and transferred the criminal probating divorce jurisdiction of the ecclesiastical courts to temporal courts that had stopped the routine jailing of debtors you won't discover any of this by reading the statute book the statutes at large stopped short in 1641 that is the year before parliament on the eve of the civil war began to legislate without the royal assent the next page is dated 1660 I quote the 12th year of the reign of our most gracious sovereign law Charles II until 1911 that the acts and ordinances of the interregnum that is the civil war of the Commonwealth and the protectorate were finally published there's more who knew that it was under the protectorate that the origins of a seller in civil service were to be found or that it was the criminal courts of the Commonwealth which first recognised the privilege against self-incrimination to stop the use of paid informers or that as Chief Justice of Munster in the 1650s John Cook, the Commonwealth's former solicitor general authorised his judges to administer law and equity together with the result Cromwell told Edmund Ludlow that the Munster courts were deciding more cases in a week than Westminster Hall was deciding in a year or that the law commission set up under Sir Matthew Hale had drafted 16 bills to codify large areas of law and procedure and by the time it was dissolved in 1653 had on its agenda the regulation of lawyer's fees and ban on MP's moonlighting as lawyers the establishment of small claims courts the abolition of the sale of offices and the benefit of clergy public registries of deeds the right of accused persons to be defended by council to give evidence and to call witnesses and at Cromwell's instigation modification of the death penalty now these might all perhaps have been written off as foolish essays in doomed idealism as irrelevant to the modern legal world as the Wittenagamacht in Dice's opinion were it not for the fact that almost every reform of the interregnum although a nulled at the restoration has since become a reality in 1731 English was again made the language of the law a deeds registry was opened in 1703 and the land registry in 1875 civil marriage was reinstituted in 1836 the remarriage of law and equity was finally solemnised by the Deudicature Act of 1873 to 5 between 1697 and 1898 the criminal procedure slowly crept back towards where it had been in the interregnum and 313 years after Matthew Hale and his commissioners first set about codifying and reforming the law England and Wales again acquired a standing law commission only the refusal of parliament to stop its elected members taking other employment while collecting their parliamentary salaries is proved unshapeable of then and now well if there's a moral to these heterogeneous stories I've been telling it is I suppose that the law like other subcultures has its own versions of truth and habitually recast itself in their image the late Jeffrey Wilson wrote and so many of you here will remember Jeffrey the courts do not operate on the basis of real history the kind of history it is vulnerable to or determined by historical research they operate on the basis of an assumed conventional one might even say consensual history in which historical events and institutions often have a symbolic value these versions of history may derive like the jurisprudence derived from Anas Minig from what lawyers perceive as the laws intrinsic logic though the larger history of the 20th century which I've not had space here to explore suggests deeper reasons in which the lawyers themselves may not have been hurting conscious they may derive from the opposite the laws fear following a decision like Somerset's case of what it has itself unleashed here the judicial casiostry tends to be more visible they may be dictated more or less overtly by changes in the political and economic philosophy this happened both with the old market crimes and with the perceived modern need to crack down on gang violence all more subtly but more radically by the slow growth of a newly autocratic mode of government like the one which provoked the great showdown between the Hanoverian monarchy's judges and its ministers over state necessity and personal liberty lastly the laws version of truth may simply be derived from a dominant historiography in which there are good guys, royalists and bad guys republicans and it's not comfortable to accept that history was in a great many respects on the side of the latter if so there may be something after all to be said for reading yesterday through the lens of today but it would be naive simply to reverse Dr Leavis's aphorism and to say there's no such thing as law only legal history what it is possible to say and I think Tom Bingham would have agreed though dicey would not is that without history there is no law thank you very much