David Hume on the Common Law and English Liberty

In a 2022 Political Theory article, Paul Sagar treats Adam Smith, David Hume, and Montesquieu on the origins and robustness of English liberty. Sagar says that “Smith took more seriously than Hume the idea that liberty required not just an appropriate constitution but quotidian security as realized via law” (2022, 398). Sagar goes further to say that Hume would underestimate, or miss entirely, the idea “that liberty must be understood not just in terms of the form of constitution and wider political order, but also regarding the security of citizens as achieved via the legal system, and especially the operation of fair trials” (ibid., 394).

When getting down to the historical specifics, Sagar charges Hume with overlooking the importance of the common law for English liberty. He says that Smith, in contrast to Hume, considered the common law, and particular the legal reforms of Edward I (r.1272-1307), as a major component in the story of English liberty. 

I do not dispute Sagar’s reading of Smith. The common law was an important element of English liberty, and Smith understood that well. 

But so did Hume. In response to Sagar, I published a comment in Econ Journal Watch (Hall 2022). What follows here is the core of Hume’s narrative of the emergence and significance of the common law. Here I quote from Volumes 1 and 2 of Hume’s The History of England (History) eight times, and cite them 32 times in all. Yet more from those two volumes is used in Hall (2022). These citations show that Hume did not lack what Sagar suggests he lacked. Sagar himself never once quotes or cites Volume 1 and 2 of Hume’s History. Sagar’s article tends to drive a wedge between two thinkers who, rather, thought very much along the same lines on the history and institutional groundings of law and liberty, with Smith promoting and developing the thought of Hume. 

 

From King Arthur to Henry VIII, England was ruled by multiple, competing powers. In volumes 1 and 2 of the History, Hume shows us, often in bloody detail, the fragility of the authority and legitimacy of the average medieval king (H, 2:283–284). In addition to the king, England was home to a number of powerful actors, such as the towns, independent barons, and the Roman Catholic Church and its affiliate ecclesiastical bodies, not to mention the potential influence of the Welsh, Scottish, and French aristocracies. Each separate authority had its own jurisdiction, source of power and influence, and instruments for making its voice heard. 

The existence of multiple powers capable of violence made medieval England a dangerous place to live. “Every profession was held in contempt but that of arms” (H, 1:463). Every medieval king, no matter how secure on his throne, at some point found himself face to face with either a rival claimant or a cabal of aggrieved barons. The barons, moreover, routinely engaged in private warfare, leaving the countryside in a continual state of chaos and lawlessness (H, 1:231, 237, 250, 284, 288, 350–351, 371–372, 400, 463, 2:11, 143, 189, 279) . Even during periods of relative peace, “men were never secure in their houses” and bands of robbers, often supported by encastellated barons, were known to plunder entire villages (H, 1:69, 288). Hume characterizes medieval England as an environment of political instability and low growth (H, 1:463).

A main theme of Hume’s History is the integration of the separate powers into a single unified government (Forbes 1975, 263; Whelan 2004, 256; Sabl 2012, 65). Dan Klein and I have produced a lengthy compendium that gives 142 quotations from Hume’s History touching upon jural pluralism or jural integration (Hall and Klein 2020). Barry Weingast (2015; 2016; 2017) identifies similar themes in Smith’s An Inquiry into the Nature and Causes of the Wealth of Nations and Lectures on Jurisprudence. Integration went hand-in-hand with the increasing power and authority of the king. It was a slow process—two steps forward, one step back. The personal characters of kings were of great importance, as evidenced by both Hume’s historical narrative and his lengthy character portraits. 

Up to the Tudors, the strongest and most respectable of kings seemed to sire the weakest and least respectable heirs. Henry II begets John, and Edward I begets Edward II. 

Still, through the centuries, the authority of the king increased in scale and in scope. Individual kings may have been weak, but the crown grew stronger. The medieval era eventually gave way to what we now call the early modern period. We might say that medieval gave way to early modern at the Battle of Bosworth Field in 1485 when Henry Tudor won the War of the Roses, crushing Richard III and his supporters in the process. Henry VII (r. 1485-1509) and Henry VIII (r.1509-1547) crafted reforms that eventually demilitarized the English aristocracy (H, 3:75, 77). By the time Hume discusses the reign of Elizabeth I (r. 1558-603) in Volume 4, the competing powers of the medieval era have fallen away and he speaks of the government. 

At the height of the medieval era, the rules enforced in the King’s court were in semi-competition with the other courts of the realm. An aggrieved man could seek justice in the county courts which administered local customary law or he could go to the ecclesiastical courts which administered canon law. A town merchant could take his case to a borough court to be judged by the rules of the Lex mercatoria. One might even go to one’s feudal lord to make his case under the rules of feudal custom. The royal law, however, was common throughout the realm and was the origination point of what has come to be known as the common law (Hogue 1986). 

Arthur Hogue (1986) defined common law as “the body of rules prescribing social conduct and justiciable in the royal courts of England” (5), and I use the phrase common law along those lines. At a more abstract level, common law is simply law held in common throughout the polity. Yet another sense of common law is law worked out through precedent. All of these senses of common law are rooted in the historical development of English common law. The royal law applied to all Englishmen, no matter where the crime was committed or who the perpetrator may have been. As royal judges travelled the kingdom hearing cases, they learned and refined their legal judgments. By travelling, they made the royal law common throughout the realm. Through their travels they amassed a bank of precedent that they could call upon in subsequent cases.

Over time, the common law, enforced by the royal courts, subsumed or marginalized its competitors. As the authority and power of the king grew the “justice done in the king’s name by men who [were] the king’s servants became the most important kind of justice” (Pollock and Maitland 1895, 91). The success of the common law went hand in hand with the centralization of power around the king. Hume said as much:  

As the king’s power and authority grew, so did the impact of his laws. Frederick Pollock and Frederic Maitland (1895), Arthur Hogue (1966), Harold Berman (1983), and John Baker (1995), all scholars of the common law, attest to that fact. 

Another reason for the rise of the common law cited by Hume was the rediscovery of Justinian’s Pandects, a compendium of juristic writings on Roman law. For Hume, the rediscovery in 1130 of Justinian’s Pandects was a glimmer of light from a more civilized era that would begin to illuminate a dark world. No other event “tended further to the improvement of the age” (H, 2:520).

With Justinian’s Pandects in their hands, the clergy took up legal studies with great zeal. Less than ten years later, according to Hume, lectures in civil law were being given in Oxford. Although Roman civil law never rose to the same level of prominence in England as it did on the continent (and in Scotland) it nonetheless left a permanent mark on English law (H, 2:520–521). The English jurists imitated their civil law equivalents, “rais[ing] their own law from its original state of rudeness and imperfection” (H, 2:521). Here Hume complements Larry Siedentop’s Inventing the Individual (2014) on the importance of Christianity and the Catholic Church for the development of western liberalism. 

 

To find Hume’s discussions of concrete legal developments, we need to look at his coverage of the strongest medieval English kings: Henry II and Edward I—the same kings recognized by Adam Smith in his narration of the common law in his Lectures, as highlighted by Paul Sagar. Of the medieval English kings, only Henry II and Edward I were able to extend their authority and carry out reform without having their political coalitions turn on them.

The reign of King Stephen (r. 1135–1154) was marked by “The Anarchy”—a succession crisis that led to the complete breakdown of civil order in England (H, 1:279–295). Henry II (r. 1154–1189), upon winning the war and ascending to the throne, was tasked with cleaning up the mess and restoring order and justice to the kingdom. Hume depicts Henry II as a good and strong king who led England with a steady hand and an “equitable administration” (H, 1:359, 301, 370). He was a politically savvy man, as shown by his swift actions to demolish the castles illegally built by the local barons during The Anarchy (H, 1:360). He had his share of dark days (H, 1:310–338, 348–358), as all medieval kings did, but he was responsible for increasing the power of the monarchy over the licentious barons and executing long-lasting reforms to England’s legal system.

In 1176, Henry II partitioned England into four divisions and appointed itinerant justices to travel along a circuit to hear and decide on the cases brought before them in the counties (H, 1:359–360). The general “eyre,” as the law circuit was called, extended the geographic reach of the king’s court and furthered the mission of making the king’s law common throughout the realm. The eyre increased the geographical influence of the king’s laws and accustomed Englishmen to its regular enforcement. It protected the lower gentry and the peasants from the arbitrary violence and corruption of the barons, and, albeit slowly, acted to curb baronial power (H, 1:360). Hume illustrates how Henry II’s actions furthered England down the road toward an integrated nation-state. 

The coercive power of the monarchy goes a long way. But the expansion of royal justice and the common law was not a matter of mere force. Royal justice passed the market test and came to be the preferred court of law because it administered better justice. The eyre justices were seen as men of honor, in contrast to the local courts, thus the respectability of the common law was bolstered by their character (H, 1:360). They were better trained and less corrupt than their local counterparts.

After looking at the common law reforms under Henry II, Hume drops common law until his discussion of Edward I (r. 1272–1307). That is understandable. What occupies Hume during the reigns of Richard I (r. 1189–1199), John (r. 1199–1215), and Henry III (r. 1216–1272) are the events leading to John’s capitulation at Runnymede and the solidification of Magna Carta into the English political ethos. Like Henry II, Edward I inherited a mess. Edward’s father, Henry III, was a relatively weak king who bumbled his way into a civil war with a group of barons led by Simon de Montfort. Upon inheriting the crown, Edward “immediately applied himself to the re-establishment of his kingdom, and to the correcting of those disorders” introduced by Henry III’s weak administration (H, 2:75).

Edward I was a strong king. As recognized by Smith and discussed by Sagar, Edward I was a great legal and constitutional reformer. Smith puts Edward I alongside Henry II as one of the greats in terms of his legislative capacity (LJ(A), v.34). 

Hume’s account of Edward I’s legal reforms is similar to Smith’s. To diminish the power of the great barons, Edward offered his protection to the gentry, merchants, and serfs by instituting “an exact distribution of justice” and by “a rigid execution of the laws” (H, 2:75). He did so by insisting that as he obeyed Magna Carta with respect to the barons, they too should extend and uphold Magna Carta with respect to their own vassals. He replaced corrupt judges and provided the justice system as a whole with force sufficient to execute the law properly (H, 2:75). Hume says that by Edward’s actions “the face of the kingdom was soon changed; and order and justice took place of violence and oppression” (H, 2:75–76). In fact, Hume argues that Edward’s legal reforms were the chief advantage which the English attained from his reign—and even more importantly, that Englishmen “still continue to reap” the benefits of Edward’s vigor in Hume’s day (H, 2:141).

Hume’s narrative of the common law is similar to Smith’s. The style of Hume’s History and Smith’s LJ differ, or course. Smith lectured to students whereas Hume wrote for mass consumption. But their estimation of the importance of the common law for the development of English liberty is equal. Smith understood “that liberty required not just an appropriate constitution but quotidian security as realized via law” (Sagar 2022, 398). So did Hume.


Jacob Hall is an economics Ph.D. student at George Mason University. He is a Ph.D. fellow at the Mercatus Center and a fellow of the Adam Smith Program at George Mason Univer­sity. His academic research is in economic history. He also does work on the writings of David Hume, especially the History of England.

This essay is part of the AdamSmithWorks series Just Sentiments curated by Daniel B. Klein and Erik Matson. New essays will be published on the fourth Wednesday of the month. You can read more about the series in this Speaking of Smith post, "Just Sentiments- Welcome!". Klein and Matson lead the Adam Smith Program in the Department of Economics at George Mason University, in association with the Mercatus Center. In the program, they study big ideas in jurisprudence, politics, ethics, and economics as they were pursued during the original arc of liberalism, especially in the 18th century in Britain.


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