## Appendix A History

Of English LAW

BY

W. S. HOLDSWORTH, K.C., D.C.L.

BINCHEP OF LINCOL's INN

VINERIAN PROPESOR OF ENGLISH LAW IN THE UNiversity OF oxford; Pellow OF all SOULS

COLLEGE, OXford; LATE FELLOW OF ST, JOIN's college, oxford; POREGING Associate

OF THE ROVAL REIGIAN Academy; FELLOW OF THE British Academy

VOLUME VI

To say truth, although it is not necessary for counsel to know what the history of a point is, but to know how it more stands resolved, yet it is a wonderful accomplishment, and, without it, a lawyer cannot be accounted learned in the law. Roger North

METHUEN & CO. LTD.

36 ESSEX STREET W.C.

LONDON_Volumes I-III\_

_First Published . . . . . May 1903_

_Second Edition . . . . October 1914_

_Third Edition, Rewritten . . 1922-23_

_Volumes IV-VI_

_First Published in 1924_

## Preface

This volume concludes Part I of Book IV of this History. The sixth chapter, with which this volume opens, deals with the public law of the seventeenth century, and shows how, as the result of the constitutional conflicts of that century, our modern constitution and constitutional law have emerged. It is necessarily a long chapter, partly because the subject is intimately bound up with the general history of England, and partly because the events of that century have never before been treated from a purely legal point of view. The continuity of English history has given to seventeenth century constitutional history a very permanent influence upon the politics of later centuries, with the result that its history has too often been written from the point of view of those politics, and has reflected the political prepossessions of the writer. But, if we would understand the strength and weakness of the claims made by King and Parliament, we must approach the problem from that legal point of view which was adopted by both the contending parties in the seventeenth century. It is only in this way that we can do justice to these rival claimants to sovereignty. The seventh chapter carries on the history of the enacted law from the point at which it was left in the second chapter of this Book, and describes the modifications and additions made by the legislature between 1660 and 1700. The eighth chapter deals with the professional development of the law. It also is a long chapter. This is partly due to the fact that no history of this period in our legal history has ever been written before ; and partly to the fact that in the legal world, as on other sides of our national life, modern conditions then decisively emerged. It is obviously necessary to spend some time

### 5.1 **Preface**

in explaining why, under these conditions, our law and legal institutions assumed their familiar shape.

Both in the fourth volume of this History, and still more in this volume, the number of pages allotted by my publishers has been exceeded. It is due to the liberality of the Directors of the Commonwealth Fund of the United States, on the recommendation of their Legal Research Committee, that I have been able to include in the fourth volume and in this volume the extra pages needed to obtain completeness of treatment. It is naturally a source of great satisfaction to me personally that the Directors of the Commonwealth Fund should have done me the honour of recognising my work in this way ; and I am sure that it will also be a source of great satisfaction to all English lawyers that America should have helped in the production of a history of what is perhaps the most valuable part of our common heritage--our common law and equity. Legal history has always been a branch of learning which has owed very much to American scholarship. By its students the names of such legal historians as Holmes and Wigmore and Pound, as Ames and Thayer, will always be honoured. I hope that readers of these volumes will agree that the action of the Directors of the Commonwealth Fund and its Legal Research Committee has increased the debt which we English lawyers already owe to the lawyers of the United States.

I again have to thank Dr. Hazel, All Souls Reader in English Law in the University of Oxford, and Reader in Constitutional Law and Legal History in the Inns of Court, for the benefit of his criticism, and his help in correcting the proof sheets ; and Mr. Costin, Fellow and Lecturer in History at St. John's College, Oxford, for making the list of statutes.

CONTENTS

PAGE

Preface .

## Contents

- 1

## Contents

- 1.1 **CONTENTS** XIII
- 2.1 **CONTENTS** XIII
- 3.1 **The Reigns of the Two Last Stuart Kings and the Revolution** Settlement .

**Xiv** CONTENTS

PAGE

- Parliament; and the relation of Parliament to the prerogative . 243-262 The constitution of Parliament . . . . . . . 244-247 The relations between the two Houses . . . . . . 247-249 The powers of the two Houses . . . . . . 249-254 The financial control of the House of Commons . . . 250-254 Procedure and privileges . . . . . . . 254-258 The Speaker . . . . . . . . . 255-255 Adjourment the act of the House . . . . . . 255-256 Abuses and illegitimate extensions of privilege . . . . 250-258 The relation between Parliament and the prerogative . . . 258-202 Division of powers . . . . . . 258-259 Failure of strictly legal theory of the constitution . . . . 259-201 Why the true solution was not seen . . . . . 261-262 Future developments . . . . . . 262-273 The law courts and the liberties of the subject . . . . . 262-273 Effect of new position of the judges on development of constitutional law . . . . . . . . . . 263-264 The colonies . . . . . . . . . . . . 264-265 Slavery . . . . . . . . . . . 265-27 Personal freedom . . . . . . . . . . . . 265-27 Freedom of discussion . . . . . . . . . . 266-268 Remeless against the Crown . . . . . . . . 268-272 Parliamentary privilege and the law . . . . . . 273-299 The influence of political theories on legal development . . . . . 273-299 Bodin, and continental theories . . . . . . 273-274 Original character of English political theory . . . . . . 274-275 (1) The theory of diving right of kings and its influence . . . . . 276-281 (2) Opposition to this theory . . . . . . . . . 281-290 The legal opposition . . . . . . . . . . 282-28 The religious opposition . . . . . . . . 283-28. Growth of an opposing theory . . . . . . . 283-284 Stated by Locke . . . . . . . . 284-287 Characteristics of Locke's theory . . . . . . . 287-289 Influence on the Whigs . . . . . . . . 289-290 (3) The change in the character of political speculation . . . . 290-294 (4) Hobbes and his influence on political theory . . . . . 294-299 Effects of this period on English public law . . . . . 299-301

CHAPTER VII

The Latter Half of the Seventeenth Century: The Enacted Law

\\begin{tabular}{l c c c c c c c} The Proclamations . & . & . & . & . & . & . & . & 303-312 \\ National defence . & . & . & . & . & . & . & . & 304-305 \\ Commerce and industry . & . & . & . & . & . & . & . & 305-307 \\ The colonies . & . & . & . & . & . & . & . & 307-308 \\ Foreign affairs and international law . & . & . & . & . & . & . & . & 308-309 \\ Manners and social life . & . & . & . & . & . & . & . & 309-311 \\ The Press . & . & . & . & . & . & . & . & 311-312 \\ The coffee-houses . & . & . & . & . & . & . & . & 311-312 \\ Editions of the Statutes . & . & . & . & . & . & . & . & 312-313 \\ Commerce and Industry . & . & . & . & . & . &

**CONTENTS**

**XV**

**PAGE**

**More economic freedom** **.** \*\*.

## 1 Introduction

The theory of relativity has been developed by the first and second author \[1\]. The theory of relativity has been developed by the first and second author \[2\]. The theory of relativity has been developed by the first author \[3\]. The theory of relativity has been developed by the first author \[4\]. The theory of relativity has been developed by the first author \[5\]. The theory of relativity has been developed by the first author \[6\]. The theory of relativity has been developed by the first author \[7\]. The theory of relativity has been developed by the first author \[8\]. The theory of relativity has been developed by the first author \[9\]. The theory of relativity has been developed by the first author \[10\]. The theory of relativity has been developed by the first author \[11\]. The theory of relativity has been developed by the first author \[12\]. The theory of relativity has been developed by the first author \[13\]. The theory of relativity has been developed by the first author \[14\]. The theory of relativity has been developed by the first author \[15\]. The theory of relativity has been developed by the first author \[16\]. The theory of relativity has been developed by the first author \[17\]. The theory of relativity has been developed by the first author \[18\]. The theory of relativity has been developed by the first author \[19\]. The theory of relativity has been developed by the first author \[20\]. The theory of relativity has been developed by the first author \[21\]. The theory of relativity has been developed by the first author \[22\]. The theory of relativity has been developed by the first author \[23\]. The theory of relativity has been developed by the first author \[24\]. The theory of relativity has been developed by the first author \[25\]. The theory of relativity has been developed by the first author \[26\]. The theory of relativity has been developed by the first author \[27\]. The theory of relativity has been developed by the first author \[28\]. The theory of relativity has been developed by the first author \[29\]. The theory of relativity has been developed by the first author \[20\]. The theory of relativity has been developed by the first author \[21\]. The theory of relativity has been developed by the first author \[22\]. The theory of relativity has been developed by the first author \[23\]. The theory of relativity has been developed by the first author \[24\]. The theory of relativity has been developed by the first author \[25\]. The theory of relativity has been developed by the first author \[26\]. The theory of relativity has been developed by the first author \[27\]. The theory of relativity has been developed by the first author \[28\]. The theory of relativity has been developed by the first author \[29\]. The theory of relativity has been developed by the first author \[29\]. The theory of relativity has been developed by the first author \[20\]. The theory of relativity has been developed by the first author \[20\]. The theory of relativity has been developed by the first author \[21\]. The theory of relativity has been developed by the first author \[22\]. The theory of relativity has been developed by the first author \[23\]. The theory of relativity has been developed by the first author \[24\]. The theory of relativity has been developed by the first author \[25\]. The theory of relativity has been developed by the first author \[26\]. The theory of relativity has been developed by the first author \[27\]. The theory of relativity has been developed by the first author \[28\].

CONTENTS

PAGE

His career and character . . . . . . . . . 573:585

His History of the Common Law . . . . . . . . 585:587

His works on public law . . . . . . . 587:589

His History of the Pleas of the Crown . . . . . . 589:590

Scientific and critical works . . . . . . . . 590:594

Other works . . . . . . . . . . . 594

His position in legal history . . . . . . . . . 594:595

Dugdale . . . . . . . . . . 595:597

Other books . . . . . . . . . . 597:613

Practice and pleading . . . . . . . . 598:600

Students' books . . . . . . . . 600:603

Convegancing and the land law . . . . . . 603:605

Criminal law . . . . . . . . . 605:606

Cormmerical law . . . . . . . . . 606:607

Special branches of law . . . . . . . . . 607:608

Ecclesiastal law . . . . . . . . 607:608

Local government . . . . . . . . 607:608

Central government . . . . . . . . 608:609

Political tracts . . . . . . . . 609:610

Legal history . . . . . . . . 610:611

General . . . . . . . . 612:613

Characteristics of this literature . . . . . . . . . 613

The literature of equity . . . . . . . . . . 613:619

Its characteristics . . . . . . . . . . 613:614

Orders of the court and books of practice . . . . . 614:616

Duke on Charitable Uses . . . . . . . . . 616:617

Contemporary reports . . . . . . . . . . 617:619

Later reports . . . . . . . . . . 619:624

Roger North and his works . . . . . . . . 619:624

IV. The Condition of Common Law and Equity . . . . . 624:671

The common law . . . . . . . 624:640

Branches of law which had become obsolete . . . . 624:627

Development of older branches of the law . . . . . 627:634

The land law . . . . . . . . 627:628

Criminal law . . . . . . . . . . . 628:631

Contract . . . . . . . . . . . 631

Law of persons . . . . . . . . . 632

Succession to chatlets . . . . . . . . 632:633

Pleading and evidence . . . . . . . . 633:634

New developments in the common law . . . . . . . . 634:640

Mercantile law . . . . . . . . . 634:636

Particular contracts . . . . . . . . 635:637

Employers' liability . . . . . . . 636:637

Contract, tort, and quasi-contract . . . . . . . 637:640

General characteristics . . . . . . . . 640:671

Equity . . . . . . . . . . 640:671

Trusts . . . . . . . . . . 641:644

Family law . . . . . . . . . 644:650

Married women . . . . .

**XVIII**: **CONTENTS**

APPENDIX

PAGE

1. The original drafts of the Statute of Frauds . . . . 673-677
1. The Law Officers of the Crown . . . . . . 677:678
1. The King's Counsel . . . . . 679-68z
1. Early patents of King's Counsel and the modern form . . 679-68z
1. The oaths of the Serjeants, King's Serjeants, and the declaration of King's Counsel . . . . . 68z
1. Short titles of law books published between 1668 and 1700 . . 683-699

Index . . . . . . . . . 701-719List of Cases

A

PAGE

Acherley v. Acherley - - - 385 Bennett v. Hale . . . 444 Adair v. Shaw . . . . 655 Benzen v. Jefferies . . . . 635 Alexander v. Alexander . . . 661 Berkeley Case, the . . 244-5 Allen v. Harris . . . . 631 Berney v. Pitt . . . . 661 Amand v. Bradbourne . . . 642 Bertic v. Faulkland . . 617 Anderson v. Gorrie . . . 237 Bettiworth v. Dean of St. Pauls . 658 Annand v. Honeywood . . . 657 Bildeston, the Case of . . . 35 Archer v. Morse . . . . 652 Bird v. Hardiwake . . . 661 Armitage v. Metcalf . . . . 656 Bricks v. Trippet . . . . 568 Arnold v. Jefferson . . . 637 Bishop of Ross's Case . . . 97 Arundel v. Roll . . . 651 Bishop of Winchester v. Paine . 542 Arundel v. Trevilian . . . 646 Bissell v. Axtell . . . . 652 Aschchow's Case . . . 667 Blackborough v. Davis . . . 633 Ash v. Abdy . . . . 384 Blacket v. Ansley . . . . 635 Ash v. Gallen . . . . 642 Blad v. Bamfield . . . . 541 Ashby v. White . . . 271, 537 Blandard v. Galdy . . . . 264 Ashton v. Ashton . . . . 646 Bondell v. Pannett . . . . 661 Axtelj v. Vernon . . . . 617 Bodic v. Pennell . . . . 337 Atkinson v. Cornish . . . . 632 Bonham v. Newcomb . . . 664 Atty. Gen. v. De Keyser's Royal . Bonthorn v. Hackmore . . 652 Hotel . . . 51 Boorman's Case . . . 434 Atty. Gen. v. Lord Advocate . 477 Booth v. Rich . . . . 649 Atty. Gen. for Hong-kong v. Kwok . . . . 638 A Singh . . . . . 401 Bovey v. Skipwith . . . 605 Axtel v. Axtel . . . . 645 Bradford v. Woodhouse . 440, 452, 453 Bradlaugh v. Gossett . . . 98 Bradley v. Bradley . . . 662 Bramsey v. Kerridge . . . 652 Bagg's Case . . . . 59 Bridgram v. Holt . . . 236 Bailey v. Sweeting . . 386 Britain v. Rossiter . . . . 386 Bainbridge v. Postmaster-General. 267 British Mutual Investment Com- Baker v. White . . 647, 648 Bankers' Case, the . . 266, 475, 536 Brown v. Dawson . . . 657 Barker v. Hill . . . . 602 Bruges v. Curwin . . . 345 Barlow's Application . . . 331 Buce v. Atleo . . . . 653 Barnardison v. Soame 245, 478, 622 Bullock v. Knight . . . 656 Barthloemev v. Meredith . . . 646 Batebler v. Abbott . . . 272 Batchelor v. Bigg . . . 558 Bushell's Case . . 214, 388, 628 Bates's Case . . 22, 24, 43-46, 47, 48 Butcher v. Stapeley . . . 658, 659 Butts v. Penny . . . 205 Bath (Earl of) v. Sherwin . . . 659 Byrechley's Case . . . 434 Batty v. Lloyd . . . 661 Bavokes v. Amherst . . . 659 Byrechly's Case . . . 434 Becknill v. Arnold . . . 661 Bedall v. Constable . . . 650 Cabell v. Vaughan . . . 638 Bellasis v. Churchill . . . . 651 Cage v. Acton . . . . 632
XN $;\\ List of Cases

H

XNii **LIST OF CASES**

PAGE

Morris v. Baron and Company . 386

Mestyn v. Fabrigas . . . 402

Rafter v. Stock . . . . . 662

Mounson v. Lyster . . . 373

Raine's Case . . . . 632

Musgrave v. Pulido . . . . 402

Randall v. Bookey . . . . 657

Rann v. Hughes . . . . 397

Ratcliffe v. Graves . . . . 642

N

Raven's Case . . . . 629

Redding's Case . . . 434

Rege Inconsulto Case . . 468

Nelson v. Oldfield . . . 652

R. v. Anderson, Russel, Parris,

Nicholas v. Nicholas . . . 655

Starkey, Corker, Marshall, and

Nicholas v. Walker and Carter . 230

Lumsden . . . . 506

Nightingale v. Bridges . . 334

R. v. Beal . . . . . . 220

Nool v. Robinson . . . 653

R. v. Beare . . . . . 628

Non Obstante, Case of 221, 224, 225

R. v. Best . . . . 628

North v. Hill . . . . 661

R. v. Braddon and Spoke . . 190

Nurse v. Yerworth 541, 543, 546, 662, 666

R. v. Brown, Corbet, and others . 227

R. v. Canning . . . . 527

R. v. City of London . . . 566

R. v. Cole . . . . 632

R. v. Coleman . . . 505

Olderoon v. Pickering . . . 633

R. v. Comptroller-General of

Osbaton's Case . . . 434

Patents . . . . 477

Oxenden v. Oxenden . . . . 646

R. v. Cranburne . . . . 518

R. v. Crosby . . . . 634

R. v. Dawson . . . 401

P
R. v. Farre and Chadwick . . 628

R. v. Fell . . . . . 108

Palmer v. Jones . . . 642

R. v. Fox . . . . . 108

Parker v. Attfield . . . 632

R. v. Green, Berry, and Hill . 505

Parker v. Dec . . 544, 656, 661

R. v. Griepe . . . . 620

Parry v. Rogers . . . 661

R. v. Gyngall . . . . 648

Paty's Case . . 37, 271, 272

R. v. Haase Swenden . . . 518

Peacock v. Bell . . . 238

R. v. Harrison . . . 518

Penal Statutes, Case of . . 221

R. v. Hathaway . . . 519

Pendleton v. Grant . . . 662

R. v. Inhabitants of Rislip . . 352

Perrat v. Ballard . . . . 661

R. v. Ireland, Pickering, and Grove . 505

Petit v. Smith . . . . 633

R. v. James . . . . 198

Petition of Right in re a . 51, 53

R. v. Keite . . . . 629

Peyton v. Roberts . . . 648

R. v. Rendall and Row . . 265

Philips v. Garew . . . 661

R. v. Knollshy . . . . 270, 629

Philips v. Philips . 654, 662

R. v. Lamb . . . . 629

Philopt v. Wallet . . . 392

R. v. Langhorn . . . . 505

Pile v. Pile . . . . 657

R. v. Lisle . . . . 527, 630

Pitt v. Hunt . . . . 644

R. v. Patience Ward . . . 516

Pockley v. Pockley
LIST OF CASES

R. v. Tymberly . . . . . . 628

R. v. Wakeman . . . . 506

R. v. Whitehead, Harcourt, Fen-

wick, Gawen, and Turner . 505

Sommerst (Duke of) v. Cookson . 600

R. v. Wilkes . . . 463

R. v. Williams . . 214, 269

Sommerst's Case . . . 265

R. v. Woldburne and Coke . 403

Steinomers, the v. Patentees of print.

R. v. Worsenham . . . 634

Rich v. Wilkinson . . . 635

Riddle v. Emerson . . . 385

Steinton v. Grymes . . . 648

Robert Wayland's Case . . 520

Steinrose, Case of . 27, 37, 38-9, 107

Roberts v. Roberts . . 647

Steinv. Staker . . . 662

Roberts v. Tremayne . . . 665

Steinv. Wynn . . . 668

Sompson v. Turner . . . 642

Rock v. Layton . . . . 632

Roper v. Streater . . . 374

Roscarnick v. Barton . . . 671

T

Rushworth's Case . . . 644

Ruthyn Case, the . . . 245

Tabor v. Tabor . . 546

Tailly v. Official Receiver . 658

Tailly v. Ryland . . . 663

S
Terry v. Huntington . . 238

Terto v. Benson . . 667

Tirbron v. Collier . . 344

St. John Oliver, Case of . . 41

St. John Pearage Claim, the . 245

Thomas v. Sorrell 206, 218, 219, 223

Salisbury (Earf of) v. Bennet . 645

Salisbury v. Bagot . 543, 546, 667

Thompson v. Leach . . 632

Sands v. Trevillian . . . 440

Savile v. Roberts . . . 637

Shury v. Warren . . 453

Say (Lord), Case of . . 65

Thynn v. Thynn . . . 393

Scott v. Brest . . . 664

Tiley v. Cowling . . . 634

Scott v. Haughton . . . 649

Tillley's Case . . . 634

Scott v. Stansfield . . . 237

Tilney v. Norris . . . 632

Scriven v. Tapley . . . 645

Treswell's Patent . . 331

Seling v. Crawley . . 640

Turner's (Sir Edward) Case . 644

Selden, Case of . . 27, 38-39

Serle v. Blackmore . . 562

Seven Bishops, Case of the . 222, 223

U

Steinv, 510, 538

Sewall v. Musson . . 663

Shepheard v. Wilkins . . 635

Sheriff of Middlesex's Case . 37, 272

Sherman v. Sherman . . 651

Shermolin v. Sands . . 635

V

Ship-money, Case of. _See_ Hamp-

den's Case. . . 96-97

Shirley's Case . . 182-3, 249

Vaeltine, Case of . 39, 97-8

Shirley v. Warg . . 182-3, 249

Shattleworth v. Laycock . 655

Sievewright v. Archibald . 390

Simon v. Metivier . . . 394

W

Sims v. Urry . . 653, 660

Skinne v. East India Company . 249

Smaily v. Smally . . 649

Smith v. Ashton . . . 662

Walthom v. Sparks . . 354

Smith v. Blackham . . . 634

Warmeford v. Warneford . . 396

Smith v. Browne . . . 265

Webber v. Smith . . 659

Smith v. Pruning . . 64
XXIV **LIST OF CASES**

page

Whorwood v. Whorewood . . . 646 Wolverhampton and Walsall Rail-Wilkes v. the King . . . . 463 way Company v. L.N.W. Rail-Wilkes v. Wood . . . . . . 265 way . . . . . . . 658 Williams v. Wheeler . . . . . 385 Wood v. Fenwick . . . . . 661 Wilson v. Bird . . . . 635 Wooley v. Idle . . . . . . . 337 Wincheslea (Earl of) v. Norcliffe . 649 Windham v. Chertwolf . . . 394 Y Windham v. Clere . . . . 236 Wiseman v. Vandeput . . . 636 Yarmouth (Earl of) v. Darrel . 373 Withers v. Withers . . . . . 385 Yate v. Fettylplace . . . . . 654 List of STATUTES

PAGE

Magna Carta 75, 83, 94, 188, 193

rz Charles II. c. 24 166, 167, 397, 650

Stat. West. I. c. 15 - . . . 36 " " " " c. 25 . 223, 332, 346

to Edward III. c. 3 - . . 406 " " " " cc. 27, 28 . . 168

5 Henry IV. c. 4 - . . . 330 " " " c. 31 . . . 170

3 Edward IV. c. 4 - . . 220 " " " c. 32 . 328, 332, 425

1 Richard III. c. 2. . . . 42 " " " c. 33 . . 166, 410

"," "," " - . 363 " " " c. 34 . . . 322, 425

7 Henry VII. c. 1 - . . 228 " " " c. 35 . . . 324, 425

3 Henry VIII. c. 5 - . . 228 13 " " " St. t. c. 1 165, 168, 399,

4 "," c. 8 - . . 98 " 400, 426

25 "," " c. 15 - . . 363 " " " c. 2 115, 165, 196

1 Edward VI. c. 12 - . . 24 " " " " c. 3 . . 170

1 Mary St. t. c. 1 - . . 228 " " " " " c. 5 . 167, 426

1 Elizabeth c. 2 - . . 200 " " " c. 7 . 165

5 "," c. 4 . . 331 " " " c. 9 - 226, 314

23 "," c. 1 - . . 200 " " " " c. 10 - 403, 427

"," " c. 9 . . . 329 " " " c. 11 . 165

27 "," c. 2 - . . 168 " " " c. 12 - 165, 190

29 "," c. 6 . . . 200 " " " St. z c. t 167, 197,210

35 "," c. 1 - . . 200 " " " " c. 2 . . 408

39 "," c. 11 - . . 329 " " " " " c. 3 . . 173

1 James I. c. t3 - . . . 97 " " c. 4 . . . 173

3 "," cc. 3, 4, 5 . . . 200 " " " c. 8 . . . 167

3 "," cc. 7 - . 450, 455 14 " " c. 3 . . 167

21 "," c. 3 - . 331 " " " c. 4 172, 197, 198, 200

"," c. 20 - . 404, 427

16 Charles I. c. 1 - . 113, 166 " " " c. 6 . . 324

"," c. 7 - . . 114 " " " c. 7 - . . 329

"," c. 8 - . 48, 112 " " " cc. 8, 9 . . . 305

"," c. 10 - . 112, 113 " " " c. 11 - . 316, 322

"," c. 11 - . 112, 113, 165, 196

"," c. 12 - . . 112 " " c. 13 - . . 329

"," cc. 14, 16, 20 - . 114 " " " c. 15 - . 331, 332

"," cc. 22, 25 - . 112 " " c. 18 328, 329, 332, 425

"," cc
$\\chi$List of STATUTES

\\begin{tabular}{c c List of STATUTUTES

PAGE

# William and Mary c. 4 - . 409 8,9 William III. c. 15 - . 310

" "
BOOK IV (_Continued_)

(1485-1700)

THE COMMON LAW AND ITS RIVALS

VOL. v1.--i

## Appendix A History of English Law

Part I

sources and general development

Ment (_Continued_)

Chapter VI

THE PUBLIC LAW OF THE SEVENTEENTH

CENTARY

THE contest between King and Parliament for predominance in the state occupies the greater part of this century; and the victory of the Parliament resulted in the settlement of the law of the constitution upon its modern basis. I have necessarily touched, in the first volume1 and in the preceding chapters of this Book, upon those phases of this contest which affected the relative position of the various courts which administered justice in the English state; and, in the last chapter, it was necessary to deal with this aspect of the contest in some detail, because Coke's efforts to assert the supremacy of the common law courts and the common law led him finally to adopt the cause of the Parliament, to identify the cause of the common law with the cause of the Parliament, and thus to cement the old alliance which had long existed between them. As I have already pointed out, this alliance, thus cemented, secured both the continuity of the constitutional development of the English state and the supremacy of the common law. But, to understand the manner in which these results were produced I must, in the first place, turn back to the accession of James I., recall the many unsettled questions, both political and ecclesiastical which Elizabeth left her successor to solve, and consider the rival solutions of those questions suggested by James I. and Charles I. on the one side, and by Parliament on the other. In the second place, I must say something of the results of the civilPublic law of XVIIH century

war and the breakdown of the constitution to which the incompatibility of these rival solutions led. In the third place, I must discuss the events of the latter half of the seventeenth century which led to the Revolution of i688, and the final settlement of the law.

I shall, therefore, divide the history of the public law of this century into these three periods : Firstly, the reigns of the two first Stuart kings ; secondly, the period of the Civil War and Commonwealth ; and thirdly, the reigns of the two last Stuart kings and the Revolution settlement.

## 4 The Reigns of the Two First Stuart Kings

In the constitution of the sixteenth century "Conventions"--that is, "customs, practices, maxims, or precepts which are not enforced or recognized by the Courts"1-- played as large a part as in the constitution of the nineteenth century. It is true that neither the function of these conventions, nor even their existence, was clearly appreciated till the publication of Dicey's classic work upon the Law of the Constitution in i885. But, in fact, the existence of some such conventions was as necessary in the sixteenth as in the nineteenth century. At both periods they were necessary to secure the working of a constitution, which had gradually grown up and was as gradually being modified ; which was governed, not by a code, but by the indefinite common law ;2 in which the powers of government were divided between different persons and bodies. For, as Burke has said,3 "the constituent parts of a state are obliged to hold their public faith with each other . as much as the whole state is bound to keep its faith with separate communities ;" and this obligation naturally, gives rise to the "customs, practices, maxims, or precepts" which create conventions. No doubt the nature of these conventions has varied greatly from age to age ; and it is the fact that they are capable of variation "from generation to generation, almost from year to year,"4 that has rendered them so powerful an aid to the smooth and continuous running of such a constitution. Obviously the sort

## 5 Reigns of Two First Stuart Kings

of conventions which are applicable to our own days, when the House of Commons is the predominant partner in the constitution, will be very different from those applicable to the sixteenth century, when the Crown was the predominant partner. Obviously, too, the conventions of the earlier of these two periods will be more uncertain and less capable of exact statement than the conventions of the later; for they will depend to a far greater extent upon the personal character of the ruler, and will in many cases resolve themselves into those qualities of mingled tact and firmness which made the Tudor monarchs the true leaders of the nation. Yet, if we look at the way in which these monarchs, during a century of acute religious controversy and social and economic change, retained the confidence of Parliament, and, without a standing army, restored and kept the peace; if we remember that the law which defined their prerogatives on the one hand, and the powers and privileges of Parliament on the other, was by no means clearly defined; and if we remember also that their _via media_ in religion was at first disliked both by their Roman Catholic and by many of their Protestant subjects --we must admit that the conventions which gave them political predominance, and guided them in the manner in which they exercised it, were as successful in securing the smooth running of the constitution, as the more definite conventions of a later century, which perform a similar function for the House of Commons.

But times change and conventions become worn out. They are not however at once discarded. If they have been successful, they have attracted the unreasoning reverence of those large numbers who dislike change; and if, as in the Tudor period, they centre round a successful monarch, personal loyalty will be a decisive factor in delaying the recognition of the need for change. Respect for the old queen, and her own skill and tact, had caused the old regime to last unquestioned longer than it would otherwise have lasted, and questions ripe for discussion to remain undiscussed. We have seen that in the latter years of her reign there were many signs that changes in men's political and religious outlook, and changes in economic facts, were raising large questions which foreshadowed modifications in the law and practice of the Tudor constitution;1 we have seen that the growing independence of Parliament was certain sooner or later to raise the question of the relation of Crown to Parliament, and that it was obvious that the stirring of this question would raise the most fundamental question of all--the question of the

## 6 Public law of Xvith century

whereabouts of the sovereign power in the constitution;1 and we have seen that the existing law of the constitution gave no certain answer to this question.2

Footnote 1: Vol. iv zo8-209; vol. v 430, ${}^{\\forall}$ Vol. iv zoo-209; below zo-29, 83-87: * Parsimonious as she was, Elizabeth had been compelled, during the last five years of her reign, to sell land to the value of \_$372,000, and had besides contracted a debt of _$400,000_. There was indeed, when James came to the throne, a portion still unpaid of the subsidies which had been voted in the time of his predecessor, which was estimated as being about equal in amount to the debt, yet if this money were applied to the extinction of the debt, it was difficult to see how the expenses of the Government were to be met," Gardiner, Hist. of England i 293, and the authorities there cited; cp. Parliamentary Debates in 16to (C.S.) Introd.

It was fairly obvious that this question of the relation of Crown and Parliament would be closely bound up with fiscal and economic questions. The regular revenue of the Crown, and the produce of the subsidies tenths and fifteenths granted by Parliament, were decreasing at a time when the influx of the precious metals from the New World was causing the purchasing power of money to decline. Even Elizabeth, with all her parsimony, had been obliged to sell crown lands, and had died in debt; * and it was not likely that any other monarch would be able to run the state so cheaply as she. It was clear also that the growing Parliamentary opposition would be as much religious as political. A large number of men desired relaxations in the rites ceremonies and doctrines of the Church of England, which would have enabled them conscientiously to conform to it.4 For the peaceful settlement of these questions there was needed a a monarch with all and more than all Elizabeth's tact and understanding both of her people and of her own constitutional position. Unfortunately her successor was to all intents and purposes a foreigner, without tact, completely ignorant of all those conventions which had guided the Tudor sovereigns in their dealings with their Parliaments and their people, and holding a very definite creed as to the absolute position which he, as king, ought to occupy in the state. The Scotch antecedents, the early training, and the personal qualities of James I., made a conflict inevitable upon all the many outstanding problems of the day--political, financial, and religious.

Footnote 2: * Parsimonious as she was, Elizabeth had been compelled, during the last five years of her reign, to sell land to the value of \_$372,000, and had besides contracted a debt of _$400,000_. There was indeed, when James came to the throne, a portion still unpaid of the subsidies which had been voted in the time of his predecessor, which was estimated as being about equal in amount to the debt, yet if this money were applied to the extinction of the debt, it was difficult to see how the expenses of the Government were to be met," Gardiner, Hist. of England i 293, and the authorities there cited; cp. Parliamentary Debates in 16to (C.S.) Introd.

Footnote 4: See Proceedings at the Hampton Court Conference (1604) 2 S.T. 70; below 123-r26.

When James I. succeeded to the English throne, Scotland was still a poor and backward country.5 It was, in Clarendon's picturesque phrase, " but the wilderness to the English garden." Feudal anarchy of an early medieval type was still rampant. The king was merely a feudal chitetian ; and there was no hesitation in levying war against him and taking him prisoner in

## 6 Reigns of Two First Stuart Kings 7

in order to get control of the kingdom.1 Family feuds were able to rage unchecked.2 With the victory of the Reformation, however, other elements had come into Scottish life, and the foundations of modern Scotland had been laid. In the sixteenth century, it is true, it might seem that these other elements had merely aggravated the existing disorder. The Scotch reformed church had become a power which could and did oppose the king, not only if he hindered the teaching of its doctrines and the enforcement of its discipline, but even if he declined to conform to its views as to the government of the state;3 and the magnates used the new religious dissensions, and prosecuted their old feuds as Catholics and Protestants. " Faith may be changed; works are much what they were, especially the works of the magnates. The blood feud is no less a blood feud because one family calls itself Catholic and another calls itself Protestant. The 'band' is no less a 'band' because it is styled a 'Covenant' and makes free with holy names."4 But, even in the sixteenth century, we should take a very superficial view of the effects of the Reformation upon Scotland, if we supposed that this was its chief result.

Footnote 1: See A. Lang, Hist. of Scotland ii 371-373 for Bothwell's plot of r593, and chap. xvii for the Gowrie conspiracy of r500; " it is to be noted," says Lang, " that such attempts continued to be made almost till the year when he attained the crown of England," ibid 368.

Footnote 2: " From the Orkeneys to the Oykel, one set of feuds was raging; others were active from the Lawes to Kinryte; others from the Bordes to Peebles, Hawick and Biggar. When there happened to be no great feud, involving every family of the gently, the minor liards were fighting among themselves. There were constant sieges and burnings of houses, from the great castle to the little peel tower. ... In the volume of the Privy Council Register for r16r3 ... we have a list of running feuds. There are forty-two feuds, exclusive of the Highlands and the Islands, and these are not feuds of the sweeping character of Hundy _versus_ Argyll, or Stewart _versus_ Hamilton," ibid 541.

Footnote 3: " The combinations of lawless nobles and powerful preachers, must, but for the English succession, have been fatal to Scottish civilization," ibid 368.

Footnote 4: Maitland, Camb. Mod. Hist. ii 55x.

Footnote 5: Faiquarin, ibid 355:366; cp, Gardiner, Hist. of England i 46.

The Scotch church had been organized by Knox on the Calvinistic model; and Calvin had given to all those churches which fell under his influence both a phenology and an organization as logical and as definite as the theology and organization of the Roman church. He had thus made these churches the fighting force of Protestantsism which saved the Reformation in its hour of trial. Their theology was in some respects less liberal than that of the Roman church; but they taught a far stricter morality--there were no priestly mediators who could absolve the sinner or dispense with the observance of the law.5 Their democratic organization gave them the driving force which enabled them to withstand the shock of the counter-reformation;Public Law of Xviith Century

and the democratic principles which they taught gave them their influence upon the politics of the future.1 And the narrowness and intolerance of their theology, which, to our eyes, is one of their main defects, was then a positive advantage ; for they were thus the better able to teach authoritatively to the poorer and humbler classes, to whom they appealed, a set of logical principles both intelligible and capable of arousing enthusiasm.2 They thus gave to these classes, at once a political education by teaching them to govern themselves in their General Assemblies and Church Courts,3 and a political ideal by teaching them to apply to the conduct and policy of their rulers the same tests as those which they applied to their own conduct.4 In these Assemblies and Courts a democratic form and theory of government were arising which claimed, as against kings and nobles alike, not only the supreme spiritual, but also the supreme political power in the state.5 These ideas were destined to have an enduring effect upon Scotch life and character ; and a large, though a transitory, effect upon the course of the contest between king and Parliament in England during this period.

Footnote 1: Good, English Democratic Ideas in the Seventeenth Century 4z-48; cp. Basilikon Doron, Works of James I. (ed. 16f6) 160--"Some fierie spirited men in the minister, got such a guiding of the people at that time of confusion (the Reformation) as finding the gust of government sweet, they begun to fantasie to themselves a Democcratice form of government ; and having (by the iniquitie of time) been overwhelited upon the wracke, first of my Grandmother, and next of mine ovone mother, and after usurping the liberite of the time in my long minorite, settled themselves so fast upon that imagined Democratic, as they fed themselves with the hope to become _Tribiani plebis:_ and so in a popular government by leading the people by the nose to beare the sway of all the rule."

Footnote 2: "Presbyterianism in Scotland, as expounded by Knox or Buchanan, and invoven with politics by Murray and Morton, was a system of clericalism as much more irritating and medlesome, as it was stronger and more popular in its basis, than that of Papal sovereignty," Figgis, Diving Right of Kings (rst.ed.) 133.

Footnote 3: "Gardiner, G. Cit. 155-65; and he never forgot what he had suffered from the ministers, as the Puritans found at the Hampton Court Conference, and as the following passage from the Basilikon Doron, Works 16t, shows : "I protest before the great God ... that ye shall never finde with any Hie-land or Border Theeves greater ingratitude, and more lies and vile perjuries, than with these phanaticke spirits."

Footnote 4: "He had contrived to dominate the two strongest opposing currents, the lawlessness of the nobles and the pretensions of the preachers," A. Lang, Hist. of Scotland ii 478.

James had spent his youth in contests with his turbulent nobles and this newly organized Kirk. He had been kidnapped by his nobles,6 and defied by the ministers of the Kirk.7 But he had at length managed, with some skill,8 to secure for himself

## 6 REIGNS OF TWO FIRST STUART KINGS - 9

some measure of independence by playing off these rival powers one against the other. In 1594 the ministers had helped him to suppress the insurrection of the Earls of Huntly, Errol, and Angus.1 On the other hand, the nobles in 1597 assisted the king to suppress the tumults raised by certain of the ministers, who wished to dictate the policy of the state, and declined to submit themselves to the jurisdiction of its courts.2 The king had thus been able to gain, on the one hand, a definite and a permanent superiority over his nobility,3 and, on the other, to curb the pretensions of the Kirk ; and, in order to further the latter object, he had, in 1598, induced an irregular convention of the Kirk to allow him to appoint bishops to sit in Parliament.4

Footnote 1: Gardinger, Hist. of England i 50-52.

Footnote 2: This victory (over Huntly, Errol, and Angus) may be considered to be the turning-point of James's reign in Scotland. It established decisively . that the king had now a national force at his disposal which even the greatest of the mobility were unable to resist. The Scottish aristocracy would long be far too powerful for the good of their fellow countrymen, but they would no longer be able to bear their Sowering with impunity,' ibid 52.

Footnote 3: A. Lang, Hist. of Scotland ii 433-434 ; it was settled in r6oo that the king was to choose each bishop from a list of six selected by the Kirk, ibid 434.

These events of James's earlier life had set a permanent mark upon his character and intellectual outlook.

He was good-natured and a lover of peace, and intellectually inclined to tolerance--but in practice showing little to those who disputed his own pet theories. And we shall see that he had constructed theories upon many of the political and ecclesiastical questions of the day ; for he was learned in a bookish academic way, and a keen disputant. But his environment and upbringing had accentuated his natural defects. He was king in a feudal society. In such a society there was but scant recognition of "the divinity that should hedge a king ;" 5 and, in a state that was at the mercy of lawless nobles, there was much corruption and extravagance, and little organisation.6 James never acquired a dignified bearing ; he was always extravagant, always inclined to gratify the whim of the moment without counting the cost, and singularly blind to the corruption which was rampant at his court. At the same time he had been educated by learned men ; and he had acquired all the defects of a learned pedant. He could criticize a theory, but he could not judge a man ; and he was so vain of his own powers, soPublic Law of Xviith Century

set on his own fancies, that, "whoever would put on an appearance of deference, and would avoid contradicting him on the point on which he happened to have set his heart at the moment, might lead him anywhere."1 Such a man was pre-destined to fall into the hands of flatterers and favourites; and his want of natural dignity led him to show his fondness for them in ways which made him ridiculous. Elizabeth had had her favourites ; but she never allowed them to gain uncontrolled power. And, though she gave them places and titles, she possessed in an eminent degree the Tudor power of attracting and using the ablest man of the day. This power was denied to the Stuarts ; and James allowed his favourites to assume a large control over the government of the state. The contrast between James and his predecessors, and between their respective courts, could not but excite contemptuous criticism.

Footnote 1: Gardiner, Hist. of England i 49.

And yet he had views as to the dignity of his office, and as to the nature of his duties, as clear and strong as those of any Tudor. The state of his kingdom had forced upon him, as the state of their kingdom had forced upon the Tudors, the need for suppressing the turbulent nobility, and securing an even-handed administration of the law.2 It was characteristic of the man that this need had produced, not practical measures of reform, but a definite theory as to the place which a king should occupy in the state. That it had had this result upon James's mind was due in part to the natural bent of his mind, but chiefly to the influence of the Calvinistic system in which he had been educated.

Footnote 2: "The name of the Tudor is a _fond_, but it is not a _ REIGNS OF TWO FIRST STUART KINGS 11 life, of a serious, literal, and business-like sort, which so irritated Charles Lamb.1 James was an early product of this new intellectual type; and, in his case, though the intellectual characteristics are normal, the use made of the training was in that age by no means normal. It was not normal because James was the king of Scotland. The logical consequence of the Calvinistic theories was the establishment of the power of the church in quite as independent a position as that which the church of Rome claimed for itself. There were two k.ags and two kingdoms in Scotland, Melville told James, " There is Christ Jesus the King and his kingdom the Church, whose subject King James VI is, and of whose kingdom not a king, nor a lord, nor a head, but a member."2 It is no wonder that James soon thought out a theory of divine right for the king, which was completely contrary to the theory of divine right by virtue of which the church set up its claim to control the king and state. It was necessarily a theory of divine right, because it was only a theory which was made to rest on this basis that could successfully oppose a theory similarly based.3 As Figgis has pointed out, in the seventeenth century " the notion of divine right was in the air, and so all theories of government were then theories of divine right."4

Footnote 1: Essays of Elia, Imperfect Sympathies--4 The brain of a true Caledonian is constructed upon quite a different principle. His Minerva is born in panopy. You are never admitted to see his ideas in their growth--if, indeed, they do grow, and are not rather put together upon principles of clock work. You never catch his mind in an unders. He never hints or suggests anything, but unlakes his stock of ideas in perfect order and completeness. He brings his total wealth into company, and gravely unpacks it. His riches are always about him. ... You cannot cry _halies_ to anything that he finds. He does not find, but bring."4 Cited Gardiner, Hist. of England i54; as Figgis says, Divine Right (rst ed.) 205," the Presbyterian system, which, asserting national independence of Papal sovereignty, would have yet set up within the nation an organization which would have dwarfed the State and hindered the growth of the nation's life. A Geneva on a great scale would not have been a national Church. Before the Church should have established its position, the nation would have disappeared."4 It is no matter for surprise, that at a time, when the sons of Zeruiah were too strong for him, and he felt his authority a mockery before the insolent representatives of ecclesational bigtory, James should promulgate with logical completeness, and grasp with the tenacity of a narrow but clear sighted intellect, the theory of the Divine Right of Kings," ibid r36.

Footnote 4: I did r75.

Footnote 5: As to the date of its publication see A. Lang, Hist. of Scotland ii438+439; at first only seven copies were printed; in Sept. r599, Dykes, a preacher, laid extracts from the book before the synod of Fife without disclosing the authorship, and the synod, " humourously forwarded them to James as the works of a malignant but anonymous author."

## 12 Public Law of Xviith Century

government of the world ;1 and a king is not " mere lacius," but the " office is mixed betwist the ecclesiastical and civil estate."2 He proves to his own satisfaction from the Old Testament, that a king, being God's lieutenant, must be implicitly obeyed, and under no circumstances resisted.3 He is the author and maker of the law,4 and has power to mitigate, suspend, and interpret it.6 No rival power can be admitted in the state. He is subject to the control neither of the church nor of his subjects, and, being above the law, is answerable only to God for his acts.6 That he can be bound to his subjects by any enforceable contract he proves to be legally impossible--" None of them can judge of the others break."7 As Figgis says, "_In the True Law of Free Monarchies_ is to be found the doctrine of divine right complete in every detail."8

Footnote 1: Basilikon, Works (ed. 16f6) 148; The True Law, ibid rg3.

Footnote 2: Basilikon r8z; see vol. ii 444 n, z for a similar idea in the Y.BB.; and see vol. iv 275 for similar ideas in the Tudor period.

Footnote 3: The True Law r95-200--\*00 Dedience ought to be to him, as to God's Lieutenant in earth, obeying his commands in all things, except directly against God, as the commands of God's minister, acknowledging him a judge set by God over them, having power to judge them, but to be judged only by God, whom to only be must give count of his judgment; fearing him as their judge; loving him as their father; praying for him as their protector; for his continuance if he be good; for his amendment if he be wicked; following and obeying his lawful commands, eschewing and flying his furry in his unlawful, without resistance, but by sobs and tears to God."

Footnote 4: Ibid 202.

Footnote 5: "Where he sees the lawe doubtsome or rigorous, hee may interprete or mitigate the same, lest otherwise \_

## 6 Reigns of Two First Stuart Kingss 13

When he came to England he found a set of conditions which appeared to correspond remarkably with his political ideals. The language of the men who had been trained in Elizabeth's court seemed to show that Englishmen were ready to subscribe to his views as to the divinity and the sovereignty of the king; and the language which the lawpers used about him and his prerogative seemed to prove it conclusively.1 At the same time the attitude of the churchmen, who relied upon the royal supremacy to help them to resist all concessions to the Puritans, contrasted very favourably with the attitude of the Presbyterian ministers, and confirmed him in his belief in the interdependence of monarchy and episcopacy.2 But, to his surprise, he soon discovered that Parliament claimed to occupy a position in the state which was quite incompatible with the position which he claimed for himself as king; 3 that the language of the lawpers about the king and his prerogative did not prevent them from insisting firmly upon supremacy of the law in the state;4 and that the sentiments expressed by the bishops were not those of a large number of the members of the church of England.5 Unfortunately these discoveries wrought no change in his theories or his policy. " He took for realities the formulae of adulation which survived from the court of a woman and a Tudor."6 And so he set to work to preach his theories and enforce his policy. Inevitably, therefore, he identified the monarchy with the party which magnified the king at the expense of Parliament, which was prepared to accept his absolute control over the law and the law courts, which was opposed to the smallest alteration in the rites and ceremonies of the church of England. Thus he split the nation into two parties; and the split was intensified by the fact that all the many various causes of dissension which existed in the nation were thus enlisted under the banner of one or other of these two parties. The upholders of the rights and privileges of Parliament, the common lawpers, andPublic Law of Xviith Century

the Puritans, were united against those who magnified the king's prerogative, against those who supported the courts which competed with the common law courts, and against those who maintained the necessity for strict compliance with the rites and ceremonies of the church. And the contest between these two parties in the nation was embittered by the financial straits of the court--stratits which were due in part to the king's extravagance,1 by an unpopular and futile foreign policy, and by the action of some of the bishops and clergy who, not only preached high prerogative doctrines, but even seemed, in their fondness for pomp and ritual, to be inclining towards Rome. We shall see that, as the contest proceeded, the two parties naturally elaborated their constitutional positions ; and that there gradually emerged two different theories of the constitution--the theory of the king's and the theory of the Parliament's supporters. Similarly we shall see that the religious opposition to the absolutist, and what seemed to be the Romanising tendency of the church, gradually drew to itself not only the Protestant non-comformists, but also many moderate churchen.

Footnote 1: Parliamentary Debates in 167o (C.S.) xiii-xv.

Thus James chose to become the leader of a party instead of the king of the nation;2 and his son followed in his footsteps. Both suffered from the fallacy, which is common to all party leaders, of supposing that the opposition to their views came only from a factious minority.3 Neither could ever grasp the fact that that opposition had the support of the majority of Englishmen; and that their own obstinate adherence to their policy was constantly increasing that majority. They never ceased to hope that the next Parliament would really represent what they

## 6 Reigns of two first Stuart Kingss 15

considered to be the true feelings of the nation, and cease to oppose their wishes. To the end James lectured his Parliaments on the limitations upon their powers,1 and his judges on his right to settle all questions of disputed jurisdiction and to interfere in the trial of cases in which he was interested.2 To the end he upheld, in defiance of Parliament, the churchmen who preached the religious and political doctrines which it detested.3 Thus, as the reign proceeded, the breach between king and Parliament widened ; and it widened more rapidly after the death of Cecil, who, while he lived, had managed to some extent to carry on the Tudor tradition. In the latter years of his reign, James occasionally profited by the political wisdom of Bacon ; but matters went from bad to worse as he surrendered himself more and more to the guidance of the showy and incompetent Buckingham. It is true that the breaking off of the negotiations for the Spanish match produced an appearance of unanimity in his relations with his last Parliament. But it was only an appearance. At home the character of his political and religious views, abroad his adherence to a policy which seemed to concede everything to the Catholics, and to do nothing for his Protestant son-in-law, the Elector Palatine, had effectually divided the nation ; and, unfortunately, his successor was a man whose principles were bound to aggravate all the existing causes of division.

Footnote 1: See the king's message to Parliament in 16ro, Parliamentary Debates 16io (C.S.) SS8--complaining of those who were too bold with his government "fetching arguments from former times not to be compared to these"; his letter to the House of Commons Dec. 3, 162x, Prothero, Constitutional Documents 3ro-31r; and his answer to the petition of the House of Commons Dec. 1ro, 162x-7 You usurp upon our prerogative royal and medolite with things far above your reach, and then in the conclusion you protest the contrary ; as if a rubber would take man's purse and then protest he meant not to rob him "; cp. S.P. Dom. 1623-1625, 260-267, clux 6r for an account of the king's speech to Parliament in May, 1624--the forbade them, so Ed. Nicholas relates, to complain of his household, and angered the commons by making alterations in the preamble to a subsidy bill on the ground that it contained assertions contrary to his interests; for another account of this episode see Nethersole's letter, ibid 265-266, clxviii 10.

Footnote 2: See James's speech in the Star Chamber 1616, Works, 549 seqq.; vol. v 428 n. 5, 439-440.

Footnote 3: Below 1z9-t3r. 4 Gardiner, Hist. of England vii.28z.

Footnote 5: Ibid v 23t. 6 Prothero, Documents xxi,

James, with all his conceit and pedantry, had occasionally some glimmerings of practical common-sense ; for he had had a troublous youth. He did not attempt to make changes in the liturgy of the Scotch church;4 and he warned Buckingham, when he encouraged the impeachment of Middlesex, that he was preparing a rod for his own back.5 He was capable, as Prothero has said, "of recognizing the impossible."6 But Charles had never been brought into contact with the hard realities of life. He had acquired certain fixed and narrow views on political and

## 16 Public Law of Xvith Century

religious questions; he could never be brought to see that any rational being could hold any other views;1 and thus he could understand neither the national prejudices of his subjects nor the points of view of the different parties opposed to him. To his own views he considered it to be his duty to cling with all the obstnacy of an intellect that was narrow, and a nature that was weak.2 Within these limitations he had a sense of justice, a desire to act in accordance with what he considered to be his legal rights, and some natural shrewdness.3 These qualities enabled him to state effectively his point of view at critical moments of his life. His declaration put forward at the dissolution of the Parliament in 1629 was, as Gardiner says, "an able statement of his case against the House of Commons";4 and nothing could be better than the manner in which he defended his cause before the court before which he was finally arranged. But his somewhat narrow sense of justice, and his desire to act with strict legality, sometimes prevented him from taking the decisive action which the occasion demanded.5 And, as he had a vacillating temperament, with a tendency to occasional outbursts of ill-considered action, he was sometimes obliged to take refuge in evasions and sophistries, and even in down-right deceit.6 He did not regard this conduct as morally wrong, for the sincerity of his political and religious beliefs led him to consider all means justifiable which promoted those beliefs. It was persistence in this course of conduct which gradually destroyed all confidence in his honesty, and ultimately cost him his life.

Footnote 3: The firm convictions of his mind were alike proof against arguments which he was unable to understand, and inalterable by the impression of passing events, which slipped by him unnoticed," Gardiner, op. cit. v 378.

Footnote 4: By 360, 1635, xdivi.

Footnote 5: See S.P. Dom. 1635, xdivi.

When he came to the throne he was somewhat of an unknown quantity. But what little was known of him was good. His morals were pure, and he excelled in athletic exercises; he had artistic tastes and could criticize with some acutenesss a picture, a policy, or an argument; he had considerable theological knowledge, and was grave and dignified in his bearing. Moreover, the accident that he was in favour of war with Spain raised unwarranted expectations of a popular and a Protestant foreign

## 6 REIGNS OF TWO FIRST STUART KINGS 17

policy.1 The French ambassador came to the shrewd conclusion that he was "either an extraordinary man or his talents were very mean," 2 If he had known as much as we do of his earlier history he would not have had much doubt as to which alternative was true. His subjects soon discovered that he was a king-wholly unsuited to the needs of the England of his day ; and, as his reign progressed, it became very clear that his capacity for government was very slight.8

Footnote 1: The French ambassador came to the shrewd conclusion that he was "either an extraordinary man or his talents were very mean," 2 If he had known as much as we do of his earlier history he would not have had much doubt as to which alternative was true. His subjects soon discovered that he was a king-wholly unsuited to the needs of the England of his day ; and, as his reign progressed, it became very clear that his capacity for government was very slight.8

Footnote 2: The French ambassador came to the shrewd conclusion that he was "either an extraordinary man or his talents were very mean," 2 If he had known as much as we do of his earlier history he would not have had much doubt as to which alternative was true. His subjects soon discovered that he was a king-wholly unsuited to the needs of the England of his day ; and, as his reign progressed, it became very clear that his capacity for government was very slight.8

Footnote 3: The French ambassador came to the shrewd conclusion that he was "either an extraordinary man or his talents were very mean," 2 If he had known as much as we do of his earlier history he would not have had much doubt as to which alternative was true. His subjects soon discovered that he was a king-wholly unsuited to the needs of the England of his day ; and, as his reign progressed, it became very clear that his capacity for government was very slight.8

Footnote 4: The French ambassador came to the shrewd conclusion that he was "either an extraordinary man or his talents were very mean," 2 If he had known as much as we do of his earlier history he would not have had much doubt as to which alternative was true. His subjects soon discovered that he was a king-wholly unsuited to the needs of the England of his day ; and, as his reign progressed, it became very clear that his capacity for government was very slight.8

Footnote 5: The French ambassador came to the shrewd conclusion that he was "either an extraordinary man or his talents were very mean," 2 If he had known as much as we do of his earlier history he would not have had much doubt as to which alternative was true. His subjects soon discovered that he was a king-wholly unsuited to the needs of the England of his day ; and, as his reign progressed, it became very clear that his capacity for government was very slight.8

Footnote 6: The French ambassador came to the shrewd conclusion that he was "either an extraordinary man or his talents were very mean," 2 If he had known as much as we do of his earlier history he would not have had much doubt as to which alternative was true. His subjects soon discovered that he was a king-wholly unsuited to the needs of the England of his day ; and, as his reign progressed, it became very clear that his capacity for government was very slight.8

Footnote 7: The French ambassador came to the shrewd conclusion that he was "either an extraordinary man or his talents were very mean," 2 If he had known as much as we do of his earlier history he would not have had much doubt as to which alternative was true. His subjects soon discovered that he was a king-wholly unsuited to the needs of the England of his day ; and, as his reign progressed, it became very clear that his capacity for government was very slight.8

Footnote 8: The French ambassador came to the shrewd conclusion that he was "either an extraordinary man or his talents were very mean," 2 If he had known as much as we do of his earlier history he would not have had much doubt as to which alternative was true. His subjects soon discovered that he was a king-wholly unsuited to the needs of the England of his day ; and, as his reign progressed, it became very clear that his capacity for government was very slight.8

Footnote 9: The French ambassador came to the shrewd conclusion that he was "either an extraordinary man or his talents were very mean," 2 If he had known as much as we do of his earlier history he would not have had much doubt as to which alternative was true. His subjects soon discovered that he was a king-wholly unsuited to the needs of the England of his day ; and, as his reign progressed, it became very clear that his capacity for government was very slight.8

Footnote 10: The French ambassador came to the shrewd conclusion that he was "either an extraordinary man or his talents were very mean," 2 If he had known as much as we do of his earlier history he would not have had much doubt as to which alternative was true. His subjects soon discovered that he was a king-wholly unsuited to the needs of the England of his day ; and, as his reign progressed, it became very clear that his capacity for government was very slight.8

Footnote 11: The French ambassador came to the shrewd conclusion that he was "either an extraordinary man or his talents were very mean," 2 IfPublic Law of Xviith Century

to arrest the five members, he filed from London, when his wife had gone abroad, he appeared in his true colours--" a fleeting and friendlesse king."1 He proved himself incapable either of organizing or of leading the large number of his subjects who were still loyal to him. His ignorance of the national prejudices of his subjects led him to alienate their sympathy by his attempts to get the help of an invading force of Irish or foreigners, and by his intrigues with the Roman Catholics. Even the defeat of his armies gave him no understanding of the strength or the nature of the forces by which he had been conquered. Consequently he threw away the chance of utilizing the divisions of his converors by a diplomacy which was so shifty and so stupid that it brought him to the block, and destroyed for a brief period monarchical government in England.

Footnote 1: This expression is taken from a letter of Sir Edward Dering to his wife written Jan. 13, 1641-1642; Proceedings in the County of Kent (C.S.) 67; he wrote, " Jealousys are high, and my heart pity's a king so fleeting and friendlesse, yet without one noted vice "; as Gardiner says, op. cit. v 318, " When the moment came at last for the realities of life to break through the artificial atmosphere in which he had been living ... it was too late to gain knowledge, the acquisition of which had been so long deferred, or to exercise that strength of will which is only to be found where there is intelligent perception of the danger to be faced."

For the fundamental defects in his intellect and character nothing at such a time could compensate. His natural dignity, and the sincerity of his political and religious beliefs, merely heightened the tragedy of his inevitable failure. But eventually these qualities proved to be an asset of no small value to his successors. By enabling him to play his part, even in the last fatal scenes, in a manner consonant with his high ideal of kingship, they gave him the reputation of a martyr in the cause both of the monarchy and the church. By the manner of his death he considered the theory of the divine right of kings, he made that theory a part of the religious and political creed of very many Englishmen, and, even after the theory of the divine right of kings had become obsolete, he helped to make loyalty to church and king a very permanent force in English political life. James II, indeed, sacrificed this source of strength by compelling his supporters to choose between their loyalty to the king and their loyalty to the church ; and fortunately for the cause of constitutional liberty the majority preferred at the decisive moment to remain loyal to the church.2 But many, after a short interval,

## The Political Controversies

Relapsed into an attitude of "sullen opposition to the new government which encouraged the hopes of "those who desired another Restoration. Some few remained entirely loyal to the old dynasty, and endured "banishment and defeat for its sake. Their loyalty still casts an undeserved halo round the careers of the last representatives of "the incompetent and ill-starred house of Stuart.

The public law of the whole of "the seventeenth century, and more especially the public law of "the first halt of that century, is dominated by religious quite as much as by political questions. Religion occupies quite as large a space in the debates of Parliament as politics. It was religious motives which animated the section of the opposition which was most fiercely opposed to the king. It was religious "fervour" which inspired the army which destroyed the king and the monarchy. But, for the sake of clearness, it will be necessary in relating the history of the public law of "this century, to separate the political from the religious controversies ; and, as I am writing legal history, to write more fully of the former. "I shall therefore deal firstly with the political controversies ; secondly with their religious aspect ; and thirdly with the immediate causes of the outbreak of civil war.

### The Political Controversies

In dealing with the political controversies of "the first half of the seventeenth century, I shall attempt to describe firstly the views and theories of "the king and "his supporters, and "secondly the views and theories held by the Parliamentary statesmen.

1. _The views and theories held by the king and his supporters_

The main political question of the day was the position of the royal prerogative--was it or was it not the sovereign power in the state? I shall therefore endeavour, in the first place, to give some account of the views of the king's party on this point. Two questions then arise--how far were the views of "that party in accordance with "the law, and "how far can they be considered to be historically correct?" With these questions I shall deal in the second place. In the third place, I shall inquire how far it was possible for the king "to enforce his views upon "the country "and this question can only be answered by considering the manner in which the local government of the country was conducted during this period, and "the relations between "the central and the local government." Lastly, it will be necessary to reviewPublic Law of Xvith Century

the strong and the weak points of this scheme of prerogative government.

1. The royalist view as to the position of the prerogative in the state.

We have seen that during the Tudor period there had been a large development in the legal doctrines which related to the prerogative.1 To the king had been attributed a politic capacity ; and to the king in his politic capacity the attributes of impeccability and immortality had been assigned. The Tudor sovereigns had been the real rulers and representatives of the nation ; and these new attributes were the technical expression which the lawyers had given to their very solid achievements. So, too, the new position of the king had led to new distinctions between the powers which made up his prerogative. Some of his prerogatives had been called "inseparable" because it was impossible to conceive of a king who did not possess them.2 Others had been called "absolute" because he had an uncontrolled discretion as to the manner of their exercise.3 But, though the Tudor lawyers had invested the king with capacities and prerogatives which made him the head and representative of the nation, they had never attempted to define his position in relation to the other parts of the constitution. The question how far he could control Parliament or the courts was not settled because the Tudor kings were too wise to allow it to be raised in an acute form.4 Far less would the Tudor kings allow the new and abstract question of the whereabouts of the sovereign power in the state to be mooted.5 All these matters were left to be solved by the set of conventions which guided their relations both with Parliament and with the courts.

Footnote 1: Vol. iv 202-214.

Footnote 4: Ibid z04-206,

Footnote 5: Ibid z08, 214-215.

Footnote 6: Ibid z08, 214-215.

Footnote 7: Above 17-17.

But, with the accession of James I., all this was changed. In the first place, the question of the relation of the prerogative to Parliament and to the courts was over-ripe for solution. Respect for the old queen had caused many fiscal and political questions to be shelved, the stirring of which must raise this question, and probably also the general question of the whereabouts of the sovereign power in the state.6 In the second place, the king was prepared to solve all such questions by the application of his own political theories. He held, as we have seen,7 that the king was the supreme ruler and supreme judge ; that he was above the law, which he could make, mitigate, or suspend ; and that he was answerable for his acts to God alone. It is

## The Political Controversies 21

hardly necessary to say that no English king, except perhaps Richard IL,1 had ever dreamed that such a theory was applicable to the English monarchy. The Tudors were too wise to seek trouble by propounding an academic theory of supremacy unless it was politically necessary to propound it;2 and we have seen that the important books which had been written about the English constitution in the Tudor period had assigned a position to Parliament, to the law courts, and the law, which was wholly inconsistent with such a theory of royal absolutism.3 James's theory was a direct challenge both to Parliament and to the courts.

Footnote 1: Vol. ii 414-

Footnote 2: If necessary they could do so with some success, as witness Henry VIII's theory of the royal supremacy over the church of England, which, with some minor modifications, is part of English law to-day, vol, i 58-591; vol. v 431-432,

Footnote 3: Vol. iv 209-214, 283-284.

The question of the position of the prerogative in the state had thus been fairly raised; and it was difficult to solve. The language of the authorities was both uncertain and conflicting. Though in some of the more recent precedents language was used about the king, and about his inseparable and absolute prerogatives, which seemed to make for James's views; other precedents, and the powers and privileges of Parliament, seemed to prove that there were definite limitations on the king's prerogative.4 It was, therefore, difficult to make James's theory of politics fit in with the existing principles and rules of English constitutional law. But, in the course of James's reign, this difficult task was achieved. James's theory was adapted to the facts of English public life; and a theory as to the position of the prerogative in the state was evolved, which gave James the position which he claimed as king, and yet could not be said to be wholly contrary to the principles of English public law.

Footnote 4: Ibid zor-209; below 87-107.

The corner stone of this new royalist theory was the new twist which was given to the distinction between the absolute, and the ordinary or private prerogative of the king. Instead of saying (as the sixteenth century lawyers had said) that the king had certain absolute prerogatives (such as the right to make war) which could not be questioned by Parliament or the courts, and certain ordinary or private prerogatives which could be so questioned, it was laid down that he had an overriding absolute prerogative to deal with matters of state. Any exercise of his ordinary or private prerogative was a fit subject for criticism or debate in Parliament or in the courts. But no matter in which he chose to exercise his overriding absolute power could be

## 22 Public Law of Xvith Century

questioned by either.1 We have seen that it was by virtue of this absolute prerogative that James claimed to settle all conflicts of jurisdiction between courts, and to stop pending cases in which his interests were concerned.2 We have seen that it enabled him to claim a large power to issue proclamations,3 and to stop discussions in Parliament upon matters which he considered to be outside its jurisdiction.4 We shall see that it also enabled him to claim a large power to levy impositions on goods imported and exported,5 and to arrest persons dangerous to the government.6 Parliament had, it is true, an important position in the state. It could inform the king of grievances which needed remedy; it could, with his assent, deal with those grievances by legislation;7 it alone could vote him the supplies necessary for the carrying on of the government; it could advise him on matters upon which its advice was asked.8 But its powers were limited. The general conduct of the government belonged to the king;9 and, though no statute could be passed or tax voted without the consent of Parliament, it must not overstep its limits, and assume to exercise any control over matters which, in the opinion of the king, should be determined by his absolute prerogative.

Footnote 10: The king's power is double, ordinary and absolute, and they have their several laws and ends. That of the ordinary is for the profit of particular subjects . . .; and this is exercised by equity and justice in ordinary courts, and by the civilians is nominated jus privatum, and with us common law; and these laws cannot be changed without Parliament . The absolute power of the king is not that which is converted or executed to private use . . but is that which is applied to the general benefit of the people . . and this power is \[not\] guided by the rules which direct only at the common law, and is most properly named Policy and Government," Bates's Case (r66) a. ST. at p. 389 _per_ Fleming, C.B.; "the king holdeth not his prerogatives of this kind mediatedly from the law, but immediately from God, as he holdeth his crown; and though other prerogatives by which he claimed any matter of revenue, or other rights pleadable in his ordinary courts of justice, may be there disputed, yet his sovereign power, which no judge can ensure, is not of that nature," Letters and Life of Bacon in 371 : " I desire you to give me no more right in my private prerogative, than you give to any subject ; and, therein I will be acquiescent: as for the absolute prerogative of the crown, that is no subject for the tongue of a lawyer, nor is lawful to be disputed," James I.'s Speech in the Star Chamber, Works 557; see also above 15 n, L.

Footnote 2: Vol. v 428-429, 439-440.

Footnote 3: Vol. v 86 n. 10, 99-104, 296-297.

Footnote 4: Above 13 n, 3; vol. iv 88-90, 178-180; see the proclamation dissolving Parliament Jan. 6, 1622, Prothero, Documents 34-37.

Footnote 5: Below 42-48.

Footnote 7: " The king cannot at other times be so well informed of all the grievances of his people, as in time of Parliament, which is the representative body of the whole realm. Secondly, the Parliament is the highest court of justice, and therefore, the fittest place where divers natures of grievances may have their proper remedie, by the establishment of good and wholesome laws," Works of James I. 535.

Footnote 8: In 1622 James complained that some members of the House took "the inordinate liberty," ${}^{\\star}$ to treat of our high prerogatives and of sundry things that, without our special direction, were no fit subjects to be treated of in Parliament," Prothero, Documents 315.

Footnote 9: " Do not meddle with the main points of government; that is my craft," Works of James I. 537.

## 2 The Political Controversies 23

Obviously this theory went a long way towards giving to James the position in the state which he claimed. It stopped short, indeed, of attributing to him the sovereign power ; for the powers to tax and to legislate were denied to him. And, acting probably under Cecil's advice, the king repressed the first edition of Cowell's Interpreter in which these powers were attributed to him,1 and acknowledged that he had no such powers.2 But this theory made the king the predominant partner in the state. It gave him a large executive power, it enabled him to stop all Parliamentary criticism, and it made an adverse judicial decision upon his acts almost impossible. Logically the king's sovereignty could be made to follow from such a theory, for, if it became necessary to discover the whereabouts of the sovereign power in the constitution (and the continual disagreements between king and Parliament were making it evident that its discovery was becoming a very pressing question), a king with such a prerogative would have the best claim to it.3

Footnote 1: Parliamentary Debates 1610 (C.S.) 23-25; Gardiner, Hist. of England ii 67; for Cowell and his book see vol. v 20-22, 432.

Footnote 2: Cecil said, "He (the king) said further that it was dangerous to submit the power of a king to definition. But with all he did acknowledge that he had no power to make laws of himself, or to exact any subsidies _de jure_ without the consent of his three Estates," Parliamentary Debates 1610 (C.S.) 24.

Footnote 3: Cowell's book had attracted attention ; and it was politic to suppress it ; but Lord Elleemere in Calvin's Case (1668) 2 S.T. at 9, 693 had let slip expressions which, though less pointed, were almost as strong--41 may not wrong the judges of the common law of England so much as to suffer an imputation to be cast upon them, that they, or the common law do not attribute as great power and authorities to their sovereigns, the Rings of England, as the Roman laws did to their emperors "; cp. Figgis, Dovine Right of Kings (rst ed.) 231-232, cited below 67 n. r; as Figgis says, ibid 234, " Most men will arrive at the idea of sovereignty because they will seem to see it encircling the d'hacm of Henry VIIII or Elizabeth.

Footnote 4: The course of circumstances would lead men to suppose that the sovereignty was vested in the Crown, and not in Parliament,"

Footnote 4: Vol. iv 202-208,

The focus of circumstances would lead men to suppose that the sovereignty was vested in the Crown, and not in Parliament,"Public Law of Xvith Century

Under the political conditions which prevailed during the first quarter of the seventeenth century this theory was rapidly evolved. It was first clearly stated by Fleming, C.B., in _Bates's Case.1_ We can see from. James's own writings that it was accepted by him;2 and from Bacon's writings and arguments that it was the basis of his views upon political and constitutional questions.3 Indeed it is probable that it was he who had a good deal to do with its development and propagation. For he was a political philosopher, a consummate common lawyer, and a man of considerable influence in the House of Commons; and this uncommon combination of qualities was needed to construct a theory which would commend itself to a political theorist like James, and yet be technically defensible both in Parliament and in the courts.

Footnote 1: Above 22 in, 1.

Footnote 2: Ibid; see also his charge against Whitelocke, Spedding; Letters and Life iv 355; in his argument in Calvin's Case, Works vii 646, he said that one of the functions of the law in relation to the king was " to make his ordinary power more definite and regular ... and although the king, in his person be _solutive lagibus_, yet his acts and grants are limited by law, and we argue them every day."

Footnote 3: Vol. v 242-243; 434-435.

Footnote 4: Works vii 509-516.

Footnote 5: Wols vii 509-516.

Bacon was hardly a representative Englishman;4 but it is worth while glancing at the evolution of his views upon the position of the prerogative in the state, because it was representative of a certain body of opinion at the beginning of the seventeenth century, and explains the measure of support which this set of views obtained. Under the Tudors he had been at the outset a politician with liberal sympathies. This is shown by his early opposition to the crown, which had cost him the favour of Elizabeth,5 and by his " Brief Discourse upon the Commission of Bridgewell," in which he had (in effect) argued that the king's prerogative was subject to the control of the law.6 But during the latter part of the reign of Elizabeth he had tried to atone for his earlier indiscretion in Parliament;7 and from the very beginning of the new reign he had ranged himself among the supporters of the court.8 No doubt personal motives had their weight. He desired above all things political advancement; and that depended wholly on the king. But his motives

## The Political Controversies

were not merely personal. He saw clearly that certain reforms were needed ; and he was ready with wise and practical schemes of reform.1 Obviously it was far easier to get these reforms carried out by the help of the king than by the help of Parliament, for the king and his Council were the permanent government and possessed of the initiative in all political questions. He thought too that a Council, which contained a small number of able men, would be better able to appreciate and push these schemes, than the miscellaneous collection of men who from time to time met in the House of Commons.2 His ideal was an enlightened king and Council of the Tudor pattern, who would propose salutary reforms to Parliament, and would work in harmony with it.3

Footnote 1: "His thoughts were constantly occupied with the largest and most sweeping plans of reform. . No abuse escaped his notice, no improvement was too extensive to be grasped by his comprehensive genius. The union with Scotland, the civilization of Ireland, the colonization of America, the improvement of the law, and the abolition of the last remnants of feudal oppression were only a few of the vast schemes upon which his mind loved to dwell," Gardiner, Hist. of England ii 193 ; for instances of the practical sagacity of his advice in political matters see his "Considerations touching the better Pacification and Edification of the Church of England," Spedding, Letters and Life iii 193 ; and his letter of advice to Villiers, ibid vi 13-56.

Footnote 2: "Gardiner, op. cit. ii 194.

Footnote 3: Iblq iq3 ; the nature of his views as to the relation of king and Parliament are illustrated (i) by a passage from a speech which he made while Solicitor-General in iGto: " The king's sovereignty and the liberty of Parliament are as the two elements and principles of the estate ; which, though the one be more active the other more passive, yet they do not cross or destroy the one the other, but they strengthen and maintain the one the other. Take away liberty of Parliament, the griefs of the subject will bleed inwards: sharp and eager humours will not evaporate, and then they must exuperate, and so may endanger the sovereignty itself. On the other hand, if the king's sovereignty receive diminution or any degree of contempt with us that are born under an hereditary monarchy . . it must follow that we shall be a _meteor or corpus imperfecte mistum_ ; which kind of bodies comes speedily to confusion and dissolution," Spedding, Letters and Life iv 177 ; and (z) by a speech which he began to draw up for the opening of the Parliament of 1602-1602 i . "It is no doubt great surely for kings to take advice and information from their Parliament. It is an advice that proceeding out of experience ; it is not speculative or abstract. It is a well tried advice, and that passth many reviews, and hath Argus eyes. It is an advice that commonly is free from private and particular ends, which is the bane of counsel. . But this advice is to be given with distinction. In things which lie properly in the notice of the subjects they are to tender and offer their advice by bill or petition, as the case requires. But in those things that are _arcana imperfii_, and reserved points sovereignty, as making of war or peace, or the like, there they are to apply their advice to that which shall be communicated unto them by the king, without pressing further within the veil," ibid vii 1771-1772.

Public Law of Xvith Century

Parliamentary opposition which destroyed all hopes of a working partnership of the Tudor type between the king and Parliament. A similar under-estimate of the strength of the opposition to prerogative rule, a similar over-estimate of the intelligence of that rule, was made by Wentworth at a later date, when, despairing of the chance of establishing an efficient government on a Parliamentary basis, he devoted his energies to the establishment of an efficient government on the basis of the prerogative.1

Footnote 1: Gardiner, op, cit. vii 25-28 ; below 76, 78-79.

As the controversy between king and Parliament developed under Charles I., as the temper of the disputants grew more bitter, it gradually became clear that those who upheld the cause of the prerogative must take a step further and claim that it was the sovereign power in the state. The attempts made by the House of Commons to criticize the government were met by dissolutions. The claim to impeach the king's ministers was met by assertions that not only the king's ministers, but even his humbler servants, were not amenable to the law for acts done under the authority of the king.2 And it is clear that this immunity was causing the rapid development of the system of administrative law which had been coming into existence under the Tudors; 3 for, though these servants of the crown were withdrawn from the jurisdiction of the common law courts,4 they were always amenable to the jurisdiction of the Council and the Star Chamber.5 In a proceeding in the Star Chamber between Lord Mohun and Sir James Bagg, Charles declared that " he would readily give furtherance to the punishment of any, though never so near a servant, that shall justly deserve censure," and that " he would likewise give all assistance to any that shall be unjustly traduced especially in acts relating to his majesty's

## 7 The Political Controversies

service in matters within his own knowledge."11 And while the immunity of the king's servants from the ordinary courts was asserted, the liability of members of Parliament to answer for their conduct in the House before the ordinary courts was asserted equally strongly.2 Dorchester, one of the king's secretaries, writing of the proceedings against Eliot and other members of the House of Commons in 1629, said, " Parliament men must be responsible for their words and actions in other courts, and so they will be more moderate hereafter."3 Serious encroachments were made upon the legislative power of Parliament. The restrictions placed upon the power of the crown to issue proclamations by the opinion of the judges in the _Case of Proclamations_,4 had always been regarded as unreasonable by those who favoured an extended prerogative--they feared that if the king was unduly restrained "the bonds would be broken."5 During this period the bonds were broken and proclamations were made a substitute for statutes. Any proclamation which the king chose to issue was regularly enforced, and those who disobeyed it were as regularly punished by the Star Chamber--so that "those foundations of right, by which men valued their security to the apprehension and understanding of wise men, were never more in danger to be destroyed."6

Footnote 1: S.P. Dom. 1635 29, cclxxxvi 97.

Footnote 2: The case of Strode, Long, Selden, and others (1629) 3 S.T. 235 ; the case of Eltot, Hollis, and Valentine (1629) ibid 293.

Footnote 3: S.P. Dom. 1629-1637 203, cclii 18.

Footnote 4: (161r) zc Co. Rep.74 ; vol. iv, 296-297.

Footnote 5: Ellesemere, in putting the case to the judges, said, " He would advise the judges to maintain the power and prerogative of the king ; and in cases in which there is no authority and precedent, to leave it to the king to order in it, according to his wisdom, and for the good of his subjects, or otherwise the king would be no more than the Duke of Venice : and that the king was so much restrained in his prerogative, that it was to be feared the bonds would be broken," 12 Co. Rep. 74.

Footnote 6: \*\* The council table by proclamations enjoining this that was not enjoined by law, and prohibiting that which was not prohibited ; and the Star Chamber consuming the breach, and disobedience to those proclamations, by very great fines and imprisonment ; so that any disrespect to acts of state, or to the persons of statesmen, were in no time more penal, and those foundations of right, by which men valued their security, to the apprehension and understanding of wise men, never more in danger to be destroyed," Clarendon, History of the Rebellion (ed. x843) z8.

Footnote 7: S.P. Dom. 1619-1623 184, cxcvii 13.

Footnote 8: Below 48-52.

Footnote 9: (161r) zc Co. Rep.74 ; vol. iv, 296-297.

Footnote 10: (162r) zc Co. Rep.74 ; vol. iv, 296-297.

Footnote 11: S.P. Dom. 1635 29, cclxxxvi 97.

Footnote 12: The case of Strode, Long, Selden, and others (1629) 3 S.T. 235 ; the case of Eltot, Hollis, and Valentine (1629) ibid 293.

Footnote 13: S.P. Dom. 1629-1637 203, cclii 18.

Footnote 14: (161r) zc Co. Rep.74 ; vol. iv, 296-297.

Footnote 15: Ellesemere, in putting the case to the judges, said, " He would advise the judges to maintain the power and prerogative of the king ; and in cases in which there is no authority and precedent, to leave it to the king to order in it, according to his wisdom, and for the good of his subjects, or otherwise the king would be no more than the Duke of Venice : and that the king was so much restrained in his prerogative, that it was to be feared the bonds would be broken," 12 Co. Rep. 74.

Footnote 16: \*\* The council table by proclamations enjoining this that was not enjoined by law, and prohibiting that which was not prohibited ; and the Star Chamber consuming the breach, and disobedience to those proclamations, by very great fines and imprisonment ; so that any disrespect to acts of state, or to the persons of statesmen, were in no time more penal, and those foundations of right, by which men valued their security, to the apprehension and understanding of wise men, never more in danger to be destroyed," Clarendon, History of the Rebellion (ed. x843) z8.

Footnote 17: S.P. Dom. 1619-1623 184, cxcvii 13.

Footnote 18: Below 48-52.

Footnote 19: (161r) zc Co. Rep.74 ; vol. iv, 296-297.

Footnote 20: (162r) zc Co. Rep.74 ; vol. iv, 296-297.

Footnote 21: (162r) zc Co. Rep.74 ; vol. iv, 296-297.

Footnote 22: (162r) zc Co. RepPublic law of Xvith century

of the existence of which the king was sole judge, the king could tax, or indeed, do as he pleased.1 In _Hampden's Case_, in which this claim was sanctioned by the courts,2 the logical consequence of this theory of the prerogative was reached. The king by virtue of his prerogative was in effect declared by some of the judges to be the sovereign power in the constitution;3 and, by an extended application of the older doctrine that certain powers were inseparably annexed to the prerogative,4 it was laid down that he could not be divested of his sovereign power even by an Act of the legislature.5

Footnote 1: Below 5a.

. The royalist theory that the king by virtue of his prerogative was the sovereign power in the state thus received its final development, and its most logical expression, just before its final overthrow. And there is no doubt that the clearness with which it was expounded in this case had not a little to do with the completeness of that overthrow. When, Clarendon tells us,6 men heard ship money " demanded in a court of law as a right, and found it, by sworn judges of the law, adjudged so, upon such grounds and reasons as every standard-by was able to swear was not law.

Footnote 1: Below 5a.

. (1637) 3 S.

## The Political Controversies

law that gave them title and possession of all that they had) apothergms of state urged as elements of law, judges as sharp-sighted as secretaries of state, and in the mysteries of state; $\\lambda\\cdot\\cdot$ and no reason given for the payment of the thirty shillings in question, but what concluded the estates of all the standardsy by; they had no reason to hope that that doctrine, or the preachers of it, would be contained within any bounds; and it was no wonder that they $\\lambda\\cdot\\cdot$ were not less solicitous for, or apprehensive of, the inconveniences that might attend any alteration."

Such, then, was the theory evolved by the prerogative lawyers during the first half of the seventeenth century. We must now consider the question how far this theory was legally and historically justifiable.

The legality and the historical correctness of the royalist theory of the position of the prerogative in the state.

The constitutional position finally taken up by the king (like that finally taken up by the Parliament) was, as I have said,1 gradually elaborated as the controversy proceeded. We can trace its gradual growth in declarations in and messages to Parliament, in the proceedings of the Council and Star Chamber, and in the constitutional cases which came before the common law courts. It is in the arguments used and decisions arrived at in these constitutional cases that we get the fullest information as to its growth; so that, in pursuing this inquiry, it is to them that we must chiefly look. And, at the outset, we shall do well to bear in mind three of their characteristic features.

Footnote 1: Above 21-22, 24, 26-28.

In the first place, these cases cover a wide field, and are concerned with a number of fundamental questions. The most important are concerned with the king's prerogative in relation to legislation, to the liberty of the subject, to taxation, and to national defence. The course taken by the arguments in all of them shows that the extent of these branches of the prerogative was very uncertain. It proves that the Tudors had left many branches of English public law in a very fluid state.

In the second place, though these cases dealt with many diverse prerogatives, though the law as to all these prerogatives was at many points very uncertain, there is a connecting link between the questions at issue in them all. They all turn at bottom upon the amount of administrative discretion which is to be allowed to the king. Is the king's discretion free, or is it limited by a law that only king and Parliament can change?

## 30 Public law of Xvitih century

If the king could be proved to be legally entitled to exercise an absolutely free discretion as to the user of these prerogatives, it would not be difficult for him to exercise in effect the sovereign power in the state. If, on the other hand, his exercise of these prerogatives was strictly limited by a law which he could not change, then, not the prerogative, but the body which could change the law, would be sovereign.

In the third place, these cases illustrate the very skilful use which the royalist lawyers made of the uncertainty of the law. The royalist lawyers were much too clever to show their hand by large assertions that the prerogative was the sovereign power in the state, or to embark upon the hopeless project of proving that the crown could legislate or tax without the consent of Parliament. But they saw that the king had many prerogatives which, with a little extension, could be so exercised that they would secure his sovereignty, and either render Parliamentary control nugatory, or enable him to dispense with Parliament altogether. For instance, his powers to issue proclamations to control trade, to imprison persons dangerous to the state, or to act in defence of the realm, might be so interpreted that they would produce this result.

The uncertainty of English public law, the great obscurity which hung round the extent of many branches of the prerogative, and these tactics of the prerogative lawyers, make the task of the legal historian almost as difficult as the task of the judges who were set to try these cases. It is not possible to say that the discretionary powers claimed for the king were obviously contrary to the law. Still less is it possible to say that they were obviously contrary to public policy. On the other hand, it was becoming more and more clear, as the century proceeded, that these claims to discretionary powers were being made, not in good faith in order to increase the effectiveness of the executive, but in order that it might be rendered absolute. We cannot help seeing that though the crown had often--more often than is sometimes supposed--the letter of the law on its side, it was using the letter of the law to defeat its spirit. The eleven years of prerogative rule (1629-1640) made all this very clear to the men of the seventeenth century. And so, both on the part of the king and on the part of the Parliamentary opposition, the appeal to law gradually rings more and more false. What the parties are in fact appealing to is not the law, but the political creeds which they have elaborated in legal terms and cloaked with legal arguments.

But we are studying legal, not political or constitutional history ; and therefore we must examine from the technical

## The Political Controversies

point of view the legal arguments which the supporters of the prerogative used in the cases which came before the courts. I shall consider these arguments under the four heads of Legislation, The Liberty of the Subject, Fiscal Claims, and The Defence of the Realm.

_Legislation._

Upon this topic a very few words will suffice. We have seen that the Tudors assumed a certain amount of latitude in the issue of proclamations; but that they used their power so wisely that Parliament raised no objections to its exercise.1 The use which James I made of this prerogative called the attention of Parliament to it; and, as the extent to which the king had a free discretion was as doubtful as the extent of many of his other prerogatives, the judges were consulted. Their answer is, as we have seen, contained in the \_Case of Proclamations;\_2 and though that case is reported in one of the later parts of Coke's Reports, the authority of which is not equal to that of the earlier parts,3 the correctness of the law there laid down has never been doubted.4 Indeed, the rules there set out followed directly from the legislative supremacy of Parliament which was then fully established.5 But undoubtedly they confined the prerogative of the crown within much narrower limits than those within which it had been confined during the Tudor period. Naturally these limits were not observed either by James I. or by Charles I.;6 and Charles I. was practically obliged to admit this in a somewhat obscure declaration which he issued in 1640-1641.7 The later Stuarts did not attempt to offend in this way--largely because the abolition of the Star Chamber had deprived them of the means of enforcing proclamations which went beyond the limits laid down by the _Case of Proclamations.8_

Footnote 1: Vol. iv to4. ${}^{,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,\\Public Law of Xviith Century

for its protection, I shall speak in the second Part of this Book.1 Here I shall deal only with that part of the topic which is directly concerned with the extent of the prerogative of the crown to commit its subjects to prison.

Footnote 1: Pt. II. c. 6 SS3; cp, vol. 1 a27-a28.

There can be no doubt that under the Tudors the crown had assumed a very large discretionary power of imprisoning its subjects.2 There can be no doubt also that, in the critical times through which the nation was passing, it was a salutary and necessary power. Thus we are not surprised to find that it was not questioned in Parliament, and that it was recognized, though in somewhat obscure terms, by the common law courts. The declaration of the judges upon this matter is contained in Anderson's Reports;3 and the correctness of the report, and its proper interpretation, were exhaustively discussed in _Darnel's Case_, and in the Parliamentary debates which followed upon the decision in that case. I shall therefore begin by stating the substance of this declaration from the report in Anderson, which is the version of which Coke approved when this case was debated in Parliament in 1628.4 It runs as follows : The judges, addressing the Chancellor and Treasurer, complained that divers of the queen's subjects had been detained in prison by the command of noblemen or counsellors, contrary to law ; that sundry persons had been imprisoned for suing actions at law, and, when writs had been issued to deliver them, no good cause of detention had been returned, and they had accordingly been released ; that persons so released had been again committed to prison to unknown places, so that no writ to deliver them could be served; that divers officials had been committed for serving the queen's writs ; that persons had been compelled by unlawful imprisonment to abandon their actions at law--"all which upon complaint the judges are bound by office and oath to relieve and help." They then proceed : "And where it pleased your lordships to will divers of us to set down in what cases a prisoner, sent to custody by her majesty, \[or\] her council, ... are to be detained in prison, and not to be delivered by her majesty's courts or judges ; we think that if any person be committed by her majesty's command, from her person, or by order from the council board ; or if any one or two of her council commit one for high treason ; such persons so in the case before committed, may not be delivered by any

## The Political Controversies

of her courts, without due trial by the law, and judgment of acquittal had; nevertheless the judges may award the queen's writs to bring the bodies of such prisoners before them; and if upon return thereof, the causes of their commitment be certified to the judges as it ought to be, then the judges in the cases before, ought not to deliver him, but to remand him to the place from whence he came, which cannot conveniently be done, unless notice of the cause in generality, or else specially be given to the keeper or gaoler that shall have the custody of such prisoner."1

Footnote 1: r And, 2q8. The alternative version runs--." We think that if any person shall be committed by her Majesty's special commandment or by order from the Council-Board, or for treason touching her Majesty's person, any of which causes being generally returned into any court is good cause for the same court to leave the person committed in custody, but if any person be committed for any other cause, then the same ought specially to be returned "; then follows the signatures of the judges. Clearly this is less favourable to the claim of prisoners committed _fer speciale manufacturer regis_ to be released than the statement in Anderson's report: cp. Gardiner, op. cit. vi 244-245. A still less favourable version of the law is contained in an opinion of Serjeant Thomas Harris, Richard Godfrey, and Anthony Dyott given to the Council in 1f613, Acts of the Privy Council (1f613-1f614) 7; it allows arrest by the Council, "if any person happen to be suspected or accused either of treason, felony, or any other offence supposed to be done or committed against the Crown or State,"

- This seems to have been the meaning assigned to it by Whitelocke, J., when he explained his decision to the House of Lords in 1f628; he said, " Now, my lords, if we had delivered them presently upon this, it must have been because the king did not show the cause, wherein we should have judged the king had done wrong; and this is beyond our knowledge, for he might have committed them for other matters than we could have imagined. But they might say thus they might have been kept in prison all their days; I answer no, but we did rem them, that we might better advise of the matter. But they say we ought not to have denied ball. I answer, if we had done so, it must have reflected upon the king, that he had unjustly imprisoned them. And it appears in Dyer, 2 Eliz, that divers gentlemen, being committed and requiring Habens Corpus, some were bailed, others remitted; whereby it appears, much is left to the discretion of the judges," 3 S.T. 1fG. This practice seems to have been followed; in 1f640 Rossingham wrote to Conway, " Monday in this week, Mr, Dayers and Mr. Pargeter of Northamptonshire, were brought by Habeas.

VOL. VI.--3Public Law of Xviith Century

of the resolution, there is no doubt at all that they were of this opinion.1

Footnote 1: Above 33 n. r.; vol. App. I.

This was the most recent considered utterance of the judges when, in 1627, Darnel and four others,2 who had been committed to prison _per speciale mandatum regis_ for refusing to subscribe to a loan to the king, were brought before the King's Bench on a writ of Habeas Corpus, and applied for their release.3 This application raised the question whether a return that a person was committed _per speciale mandatum regis_ was good in law, and a sufficient answer to a claim to be released. The case was elaborately and carefully argued both by the bar and by the bench; it was a case, as the Court said, of great weight and expectation;4 and the question was still more elaborately discussed in Parliament in the following year.

Footnote 2: See a "Honey-General" argument, ibid 38-41.

Footnote 3: See e.g. Bacons's speech to sir J. Denham when he was made Baron of the Exchequer in 1617, "The king's prerogative and the law are not two things; but the king's prerogative is law, and the principal part of the law. ... and therefore in conserving and maintaining that, you conserve and maintain the law," Spedding, Letters and Life of Bacon vi 203; cp, ibid vii t8.

Both the counsel for the prisoners and the counsel for the crown relied upon arguments derived from statutes, from precedents, and from considerations of public policy. Firstly, it was contended by the counsel for the prisoners that both Magna Carta and statutes of Edward III.'s reign prohibited a man from being imprisoned except by the process and for the causes recognized as sufficient by the common law; and that a committal _per speciale mandatum regis_ was not a committal by due process of law, and was therefore insufficient.5 To this it was answered that none of these statutes touched the case of a committal for this cause; that the king, acting as head of the commonwealth and as fountain of justice, had an absolute power to commit which no court could question; and that therefore a committal by his command was just as much a committal by due process of law as a committal by the judges upon a presentment for a crime.6 In fact, as the crown lawyers were fond of pointing out, the prerogative was a part of the law,7 and therefore

## 6 The Political Controversies

these prerogative rights were included under the terms "per legem terrae," or "due process of law."1 Secondly, it was contended that there were many precedents, both in medieval times, and in modern times, in which persons committed by the king or his council had been released.2 Certainly one of the medieval precedents cited seems to bear out this contention.3 But some of the more modern precedents did not bear it out. In some of them another definite cause, besides the command of the king, was assigned as the cause of detention ; and the court had decided upon the legality of the other cause thus assigned. In others the release had been by the consent of the king.4 In others prisoners detained for this cause had not been released.5 I think that it is clear that counsel for the prisoners could not show that the precedents showed anything like a uniform practice ; and that the counsel for the crown could point to a considerable number of modern precedents which were in their favour, and could successfully appeal to the modern practice as described in the resolution of the judges reported by Anderson. Thirdly,Public law of XVVITH CENTURY

the arguments drawn from considerations of public policy were fairly equally balanced. The counsel for the prisoners pointed out that, if this return was good, they might be perpetually imprisoned, and have no means to secure either release or trial.1 On the other hand, the counsel for the crown pointed out that a government could not take ordinary precautions against suspected dangers if it had not this power of arrest. The security of the state, they contended, was of greater importance than the liberty of the few persons who might be unjustly imprisoned.2

Footnote 1: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 2: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 3: The author is grateful to the anonymous referee for his comments on the manuscript.

The decision of the court was that the prisoners must be remanded. It considered that the precedents pointed to the conclusion that the king had this power to commit, and that the court could not admit to bail in such a case.3 It admitted indeed that, if a definite cause of detention were assigned, it could judge of its sufficiency ; but, if none were assigned, it held that it could not question the legality of a committal by the king.4 At the same time it considered that it had some discretion in the matter, and that it could, on such a return, consult with the king, and act as it saw fit after such consultation.5 "I did never see or know," said Whitelocke, J., " that upon such a return as this, a man was bailed the king not first consulted with ";6 and Jones, J., very appositely put the case of a person committed by the House of Commons asking to be bailed on a writ of Habeas Corpus--

## 8 The Political Controversies

" would they, think you, take it well if he should be bailed at his first coming to the court?"1 In point of fact, committals by the House of Commons are governed by much the same law as the judges in this case laid down for committals by the king.2

Footnote 1: SS S.T. at p. r62.

Thus the judges followed very faithfully the resolution of their predecessors reported by Anderson. We cannot say that their opinion was contrary to the later precedents; and that it was not contrary to what many considered to be public policy at that time comes out clearly enough in the debates in Parliament to which this case gave rise.

In the debates on the clause of the Petition of Right which dealt with the liberty of the subject, the great problem was to find a form of words which would safeguard that liberty, and yet leave the crown with a certain amount of administrative discretion to arrest persons, when the well-being of the state rendered such a course desirable. The difficulty of reconciling these two conflicting lines of public policy, which had emerged in the argument in _Darmel's Case_, emerged still more clearly in the debates in Parliament, in the propositions put forward by the king, and in the conferences between the House of Lords and the House of Commons.3

Footnote 2: See the opinion of Holt, C.J., in Reg. v. Paty (1705) a Ld, Raym. at pp. r

## 38 Public Law of Xvith Century

said,1 "the subject prevails, he gains liberty, but loseth the benefit of that State Government, by which a monarchy may soon become an anarchy ; or if the State prevails, it gains absolute sovereignty, but loseth subjects : not their subject, for obedience we must yield, though nothing be left us but prayers and tears, but yet loseth the best part of them, which is their affections, whereby sovereignty is established, and the crown firmly fixed on his royal head." So impartial an exposition was not to the taste of either party, and serjeant Ashley was committed.2 But he had expressed what was substantially the truth of the case.

Footnote 1: 3 S.T. at p. r5T.

Footnote 2: 4: After Mr, Serjeant's speech ended, my Lord President said thus to the Gentlemen of the House of Commons, ' that though at this free conference, liberty was given by the Lords to the king's counsel to speak what they thought fit for his majesty, yet Mr. Serjeant Ashley had no authority or discretion from them to speak in that manner he had done.' And he was committed into custody, and afterwards, being sorry for any hasty expression he had used, was discharged,' ibid at p. r5T.

The king submitted five propositions to the House of Commons which would have given him power to arrest and detail "for a convenient time," when such a course was necessary to ensure the common safety, and to maintain peaceable government.3 The House of Commons declined to assent to them. "At this little gap," said Selden, "every man's liberty may in time go out."4 In fact the House of Commons felt that it was only a clause which contained no saving of any kind that would adequately safeguard the liberty of the subject. To suggestions to insert a saving of the king's sovereign power Pym said, "all our petition is for the laws of England, and this power seems to be another distinct power from the law. I know how to add sovereign to his person, but not to his power."5 They were content to risk the danger to the state because they considered that the danger to liberty was more serious. Therefore the clause of the Petition of Right which dealt with this subject contained no saving whatsoever--" No freeman was to be imprisoned or detained in any such manner." The House of Lords tried in vain to find some form of words which would preserve some discretionary power to the crown without prejudicing the liberty of the subject ;6 and Charles tried in vain to put the Commons off with a form of assent which would safeguard such a power.7

Footnote 4: Ibid at p. r5T.

Footnote 5: 4: Hadner, History of England vi 280; and Coke, Wentworth and Eliot expressed the same opinion, vol. v 45T-452.

Footnote 6: Ibid 45T.

After the dissolution of Parliament in 1629 the question of the liberty of the subject came up again in another form. Strode, Long, Selden and others were committed to prison by the Star Chamber for the part which they had taken in the riotous scenes

## 3 The Political Controversies

with which the adjournment of the House of Commons had been accompanied.1 They sued out their writs of Habeas Corpus ; and the cause of their detention was returned as " notable contempts committed against ourselves and our government, and for stirring up sedition against us." But it was quite obvious that such a charge was, if proved, only a misdemeanour, and that the prisoners were therefore entitled to be bailed.2 Charles managed to keep them in prison for some time by not allowing them to be produced in court when the judges were ready to give their decision.3 But he eventually avoided a defeat in the courts by allowing them to be bailed. He insisted, however, and the court ordered that they should find security for their future good behaviour--a condition with which they all at first refused to comply.4 Stroke and Valentine persisted in their refusal, and did not get their release till the summoning of the Short Parliament in I640.5

Footnote 1: (I629) 3 S.T., 235.

Footnote 2: See especially Selden's argument on this point, 3 S.T., 264-286; he set out to prove that, "all offences, by the laws of the realm, are of two kinds : the first punishable by loss of life or limb ; the second by fine, or some pecuinary mullet, or damage and imprisonment, or by one of them "; that, "in cases of imprisonment for offences of the second kind, sufficient bail, offered before conviction, ought of common right to be accepted"; and that the cause assigned in the return to the wirt " did not denote any offence of the first kind," ibid 265-267; and the judges were of this opinion, ibid 288.

Footnote 3: S.T., 235.

Footnote 4: The king asked the judges what the effect of the Petition of Right would be if he asserted to it; they seem to have agreed that it would not wholly deprive him of his power to arrest without cause shown, Bramston, Autobiography (C.S.) 48-49; Gardiner, History of England vi 294-296; in the proceedings against Strode and others (I629) 3 S.T. at p. 281, Heath A.G. _arg_, said, "The Petition of Right hath been much insisted on ; but the law is not altered by it, but remains as it was before "; and a similar statement was made by Finch, C.J., in the case of ship money (I637) 3 S.T. at p. 1237; as a matter of fact, as Selden pointed out (3 S.T. at p. 265), the Petition of Right was not in issue in Strode's Case--4 If there were no more in the case but the lords' or the king's command only, without further causePublic Law of Xviith Century

Great Rebellion, however, the effect of the clause of the Petition which deals with this matter has been to deprive the executive of all power to arrest and obtain in prison, unless it can bring a definite charge against the prisoner. Though in the eighteenth century the Houses of Parliament got the power, which had been denied to the crown, of arrest and detention without particular cause shown,1 the executive still has no such power ; and in times of emergency it must apply to the legislature for special powers. Thus, though in some cases the breadth and elasticity of the royal prerogative have been of the greatest service to our modern executive--the cabinet,2 in this case the fear which the House of Commons had in the seventeenth century of trusting the king with a discretionary power of arrest and detention, has deprived it of a power to take precautionary measures, which, in disturbed times, might be very useful. But in spite of the fact that the executive now represents the party possessing the majority in the House of Commons, the view taken by Charles's Parliaments that the safe-guarding of individual liberty outweighs this inconvenience, is still the better view. Executives which imagine that they are backed by popular approval are at least as contemptuous of their opponents, and at least as ready to adopt high-handed measures against them, as kings who imagine that they are backed by a divine right.

Footnote 1: Above 37.

Footnote 2: " It would very much surprise people if they were only told how many things the Queen could do without consulting Parliament, and it certainly has so proved, for when the Queen abolished Purchase in the Army by an act of prerogative (after the Lords had rejected the bill for doing so) there was a great and general astonishment," Bagehot, English Constitution, Pref. to second ed. xxviii.

_Fiscal Claims._

We have seen that \_Darnel's Case_3 had arisen from the fiscal needs of the crown. Darnel had been imprisoned for refusing to contribute to a loan to the king ; but it was impossible to assign this as a cause for his imprisonment ;4 and so recourse had been had to the supposed power of the king to commit without assigning a cause. It was a clever move. The right of the king thus to commit was, as we have seen, legally-feasible. We shall see that the right of the king to exact a loan was not. The feeling against allowing the king any discretionary power over the pockets of his subjects was, and always had been, far stronger than the feeling against allowing him a dis The Political Controversies

cretionary power over their persons ; and it was far more closely guarded by statutes. We have seen that the Tudors had been obliged to respect it ; and that the pecuniary exactions made by them were neither frequent nor severe.1 They had exacted loans from their richer subjects, and compelled them to pay the sums promised by summoning them before the Council;2 they had occasionally profited slightly by rearrangements of the tariff made for the purpose of promoting English trade;3 and they had levied ships and ship money for the defence of the country.4 The Stuarts naturally made use of those precedents and attempted to develop them. But the spirit in which they applied them was totally different from the spirit in which they had been applied by the Tudors ; so that what the Tudors had done without protest, and even with popular approval, now raised a storm of popular disapproval, heated debates in Parliament, and litigation in the courts. To understand why this was so we must look at the use which the Stuarts made of these powers of exacting loans, of rearranging the tariff, and of levying ship money.

Footnote 1: Vol. iv 104-105.

Footnote 2: Ibid.

Footnote 3: Ibid 105, 335-338.

Footnote 4: Ibid 105, 335-338.

Footnote 5: (16f5) 2 S.T. 899; see Acts of the Privy Council (16f3-16f4) 635, 64f, 64f for the directions as to his arrest and imprisonment.

It had been settled in the case of Oliver St. John,6 a decision in which Coke had ultimately concurred,6 that the crown was at perfect liberty to persuade7 its subjects to lend their money ; and that the circulation of a letter stating that this was contrary to law, and otherwise reflecting upon the king,8 was punishable as a seditious libel. But in 1626 Charles, being hard pressed for money, attempted to compel his subjects to lend specific sums of money named by himself. The total amount to be collected was fixed at five subsidies ; and persons were ordered to lend the amount which they would have been obliged to pay if five subsidies had been voted. Those who refused to lend were to be Public Law of Xvith Century

bound over to appear before the Council.1 If this did not go beyond the Tudor precedents, it was at any rate clearly contrary to a statute of Richard III.'s reign ; 2 and, though precedents of similar illegal demands by the Tudor sovereigns can be produced,3 it was at least certain that they had never made such demands at a time when there was strong disapproval throughout the country of the home policy, the foreign policy, and the ecclesiastical policy of the government. It was inevitable that the legality of such an attempt would be tested in the courts ; and the judges could hardly do anything else than decide that it was illegal. Crew was dismissed ;4 but it was obvious that the other judges would not be compliant ;5 and so, as we have seen, the expedient was resorted to, of stating that persons arrested for non-payment of the loan were arrested _per speciale mandatum regis_. In the ensuing Parliament the illegality of such a loan was practically admitted by the king's secretary ;6 and the clause of the Petition of Right dealing with this matter finally settled the question. Charles did not again resort to this particular expedient to fill his exchequer.

Footnote 1: Gardiner, op. cit. vi 144 ; S.P. Dom. 1625-1626 435-436, xxvi 42-43; Bacon in r64 had advised that all appearance of compulsion should be avoided, hinting that such a forced loan would be illegal, see Spedding, Letters and Life v 87-83 ; this policy, followed in r64, was now abandoned.

Footnote 2: I Richard III. c. 2.

Footnote 3: See Scott Thomson, Lords Lieutenants in the Sixteenth Century, r20-r25, for similar demands in r589, r591 and r596.

Footnote 4: Vol. v 351.

Footnote 5: "One and all they refused to give the required signatures unless they were allowed to add that they signed simply to please his Majesty, without any intention of giving their authority to the loan," Gardiner, op. cit. vi 149.

Footnote 6: Ibid 237.

Footnote 7: Stubbs, C.H. ii 266, 577-576; Dowell, History of Taxation i 137-737.

8 These were the Antqua Custuma--export duties on wools, wool-fells, and leather, the rates of which were fixed in r275, Hall, Customs Revenue i 67-68; the Nova Custuma--a further tax on goods exported by aliens the rates of which were fixed by the Carta Mercatoria of r303, ibid i 69-70; Prisage and Butlerage, ibid i 90-r16.

9 Dowell, op. cit. i 144, r45-r46, r63; for the origins of this duty see Stubbs, C.H. ii 576-577; for the defence made by Charles I. of his illegal act in taking tunnage and poundage without a parliamentary grant, see below 70 and n. t.

The Political Controversies

control over these customs duties was thus well established when James 1. came to the throne. On the other hand, it was clear that the king had large powers of rearranging the tariff to further the commercial interests of his subjects ; and, owing to the fact that in the sixteenth century commerce was becoming more and more international, these powers were more and more extensively exercised\[1\]. Nor was any serious objection made to their exercise\[2\]. But it is clear that the principle that the crown cannot impose new customs duties without the consent of Parliament, and the principle that the crown can make rearrangements of the tariff to further the commercial interests of its subjects, might easily conflict. It might be contended that a duty imposed in furtherance of the latter object was an infringement of the former principle.

This was exactly the contention raised by Bates in 1606\[3\]. James I. had imposed a poundage of 5s. on currants in addition to the poundage of 2s. 6d. imposed by statute. Bates declined to pay the poundage of 5s. on the ground that the king had no power to impose it. An information was brought against him in the Exchequer, and the question was thoroughly discussed both at the bar and by the bench\[4\].

The history of this imposition upon currants shows that the crown had chosen its ground well\[5\]. Elizabeth had granted to a company of English merchants the monopoly of the Venetian trade. This grant enabled the members of the company to make a charge upon non-members for permission to trade. It expired in 1591 ; with the result that the company lost the right to make this charge, and the crown lost the money payable to it by the company in return for the monopoly. The crown therefore recouped itself by charging the merchants directly an imposition upon the goods which they imported. Shortly afterwards a return was made to the former policy. The merchants trading to Venice and those trading to Turkey were incorporated under the name of the Levant Company, and given the monopoly of trade to those countries\[6\]. The Company again adopted the plan of making a charge upon non-members for permission to trade. Non-members were allowed to import currants on payment of 5s. 6d. per cwt. The Levant Company's charter was forfeited in 1600 ; but a new charter was granted on condition

## 4 Public Law of Xvith Century

that it paid the crown $\\pounds 4000$ a year. The trade did not prosper, and the charter was surrendered in 1603. The crown therefore lost its $\\pounds 4000$ a year; and " it was only natural that, the trade being now open, the Council should revert to the imposition which had been before levied, either by the Crown or by the Company itself."1 After taking a legal opinion as to the legality of such an imposition, the duty was imposed.2 But it did not bring in much revenue to the crown. Both in 1604 and 1605 the merchants were excused arrears of duty. In fact the main object of the government was not to exact customs dues, but to regulate the Venetian trade.

Footnote 1: Gardiner, op. cit. ii 3.

Footnote 2: Ibid 4, citing S.P. Dom. 1603-1610 51; iv 46.

The court decided that such an imposition was perfectly legal. The king's power, it held, was twofold--ordinary and absolute.3 Over matters of state--such as the conduct of foreign affairs--the king's power was absolute. But the regulation of foreign trade was a branch of foreign affairs ; and therefore the raising or lessening of these duties must belong to the king's absolute power.4 In fact, if the law were otherwise, English subjects would be at a disadvantage as compared with foreigners, and trade would suffer.5 It was argued that the king had no power to lay an imposition upon Bates because he was an English subject. The answer was the imposition was laid on the currants while in the hands of the Venetians ; and Bates, having imported commodities so charged, became liable to pay the duty.6 The court also said that, in its opinion, the crown had a similar power to lay an imposition upon commodities produced in England.7 This question did not, however, arise in this case ; and it held that, " for foreign commodities it appears by no Act of Parliament, or other precedent, that ever any petition or suit was made to abate the impost of foreign commodities, but of them the impost was paid without denial." 8

Footnote 4: 2 S.T. at p. 391, _per_ Fleming, C.B., cited vol. iv 337.

Footnote 5: 1 If the king cannot impose upon foreign commodities a custom, as well as foreign cars may upon their own commodities, and upon the commodities of this land when they come to them, then foreign states shall be enriched, and the king imporverished, and he shall not have equal profit with them," a S.T. at p. 390.

Footnote 6: 4 That the king may impose upon a subject I omit; for it is not here the question . .; but the impost here is not upon the subject, but here it is upon Bates, as upon a merchant, who imports goods within the land, charged before by the king ; and at the time when the impost was imposed upon them, they were the goods of the Venetians, and not the goods of a subject, nor within the land, but only upon those which shall be after imported : and so all the arguments, which were made for the subject, fail," Ibid.

Footnote 7: Ibid at pp. 393-394.

The court was fully aware both of the difficulty and the importance of the case. They saw clearly that they must reconcileThe Political Controversies

the prerogative of the crown with the right of the subject, and lay down some rule which would settle the boundaries between two conflicting principles of constitutional law.1 The rule which they laid down seems to me to be eminently reasonable. In effect they said, you must look at the intention with which the duty is imposed. Does the crown intend to regulate trade, or does it intend to raise money? If it intends only to regulate trade, if the imposition is imposed primarily with this object, the fact that the financial burden of the subject is increased is immaterial. We may thus sum up the effect of the decision in the following propositions--(1) the crown, being responsible for the conduct of foreign affairs, has a wide prerogative to act as it pleases in the interests of trade. (2) This includes a power to admit, to exclude, or to discourage by impositions, certain commodities. (3) Impositions levied with this object are not illegal because they have no Parliamentty sanction.

Though the House of Commons was inclined to back up Bates's contention 2 there was no general disapproval of the decision--in fact there is some evidence that it was generally regarded as correct. Coke and Popham approved of it; 3 and Hakewill, who argued strongly against it in 1610, admitted that, though he had since changed his mind, he was at the time "much persuaded" by it.4 But the measures taken by the government in reliance upon this decision called renewed attention to the point raised by Bates. James issued a new Book of Rates, and placed impositions upon articles produced and sold

## 46 Public law of xvitih century

within the kingdom.1 Such impositions fell within the dtica rather than the decision of the case, and clearly pointed to the conclusion that the king intended to use his prerogative over trade for purely fiscal purposes. And, that this conclusion was correct, was proved by the terms of the commission issued in 1608 for the collection of impositions. The king claimed that the power to levy impositions " hath both by men of understanding in all ages and by the laws of all nations " been acknowledged to belong to kings, " to sustain the great charge and expense in the maintenance of their crowns and dignities."2

Footnote 1: Dowell, History of Taxation i zf6-z17; we first hear of a Book of Rates in Mary's reign--the old system of rating merchandise, for the poundage, upon the value as sworn by the merchants was superseded by a Book of Rates, in which were specified the values at which goods of different sorts were to be rated for the customs," ibid 465.

It was under these circumstances that the great House of Commons debate upon this question took place in 1610.3 Not only was the question of indirect taxation discussed, but also the whole question of the relation of the prerogative to the law.4 The purely fiscal aspect of the question was most thoroughly dealt with in Hakewill's speech.5 Some of his positions may be historically incorrect ; and some of his references to the statute book may be misleading;6 but it can hardly be denied that he proved the illegality of the imposition of duties on merchandise without the consent of Parliament. Bacon, who as Solicitor-General spoke for the crown, criticized some of the authorities relied upon by the opposition. He pointed out that Parliamentary enactments and petitions were sometimes directed against Parliamentary grants as well as against royal impositions;7 and that the king's answers to such petitions were not always categorical, but " admit all manner of diversities and qualifications."8The Political Controversies

But he did not attempt to assert that the crown could raise revenue by the imposition of customs duties. Nor was he concerned to do so. He knew well enough that the decision in _Bates's Case_ was no authority for such a proposition ; and he was far too good a debater to take up so indefensible a position. On the contrary he took the line that these impositions were all levied in the exercise of the king's undoubted prerogative to regulate trade. At the outset of his speech he said "The question is de portorio, and not de tributo ... it is not, I say, touching any taxes within the land, but of payments at the ports."1 Later also he pointed out that the law had reposed a special confidence in the king in whatsoever concerned the government of the kingdom in relation to foreign affairs ; and that it was on this principle that the imposition could be justified.2 And this was the line taken by most of those who defended the government.3 The chief effect of the debate was the abandonment by the Crown of impositions upon native products,4 which Bacon had admitted to be illegal.6 We have seen that such impositions fell within the dicta rather than the decision of _Bates's Case.6_

Footnote 2: The reason for the imposition is whatsoever concerns the government of the kingdom as it hath relation to foreign parts. The law hath reposed a special confidence in the king. The law cannot provide for all occasions," ibid 71.

Footnote 3: See the speces of Carleton, ibid 6r ; Montague, ibid 6z ; Hitcham, ibid 78; Yelvetron, ibid 86 ; Dederidge, ibid. 9g-roo; it may be noted also that this is the view which Hale, C.B., took of Bates's Case ; he said in his tract on the Customs 194, " Whatever the law was, yet the reason of state to make a balance between the trades here and beyond seas, and divers other matters prevailed"; for the views of Davis on this question see his Treatise on Impositions, and vol. i 572 n. 5; part of it is printed 2 S. T. 399-408.

Footnote 4: Dowell, op, cit. 275-219.

Footnote 5: The king cannot impose upon his subjects within the land," Parliamentary Debates in f166 (C.S.) 66.

Footnote 6: Above 44.

Footnote 7: Its text is printed in Parliamentary Debates in f166 (C.S.) 162-163.

Footnote 8: Spedding, Letters and Life v 176-191.

A bill to take away from the crown the power to levy all such impositions was introduced ;7 but it never became law ; and the crown continued to levy them under cover of its prerogative to regulate trade. Thus in 1615 Bacon wrote to the king advising him to call another Parliament, and suggesting the policy which he should pursue on various controversial points.8 With regard to impositions he suggested, " that the revenue by the late Impositions raised be turned, without diminution and perhaps with increase, into raising of rates, not upon the same Public Law of Xviith Century

things, but when it shall be best for the advantage of the kingdom and the disadvantage of the stranger; and that it may be so handled that it be not done directly as a laying down of the Impositions, but in respect of advancing the exportation above the importation."1. Similarly in 1629 a new Book of Rates was said to be issued, " for the better balancing of trade in relation to the impositions in foreign parts upon the native commodities of the kingdom."2 The question was not touched by the Petition of Right, which dealt only with direct taxation. Parliament was dissolved before it could mature the measures which it was preparing upon this topic.3 But a statute of the Long Parliament and the Bill of Rights fixed the law in the sense contended for by Bates.4 The result of this legislation is that, if any exercise of the prerogative results in the imposition of any sort of charge upon the subject to which the subject was not previously liable, it cannot take effect without the sanction of Parliament.5

Footnote 1: Spedding, Letters and Life v 687.

Footnote 2: Downell, op. cit. i 223.

Footnote 3: Bramston, Autobiography (C.S.) 54-57; Gardiner, History of England vi 326-328; vii 3, 4, 58-67 i Constitutional Documents of the Puittan Revolution, Introd. xxiv.

Footnote 4: 16 Charles I. c, 8 SS t; r William and Mary sess. 2 c. z SS r.

Footnote 5: Thus the crown has the power to make treaties; but a treaty which involved some new charge on the people would need the sanction of Parliament, see Anson, the Crown (3rd ed.) i Pi. itogi.

Footnote 6: 1637) 3 S.T. 825.

Footnote 7: See the judgment of Finch, C.J., 3 S.T. at pp. 1235-1237; at pp. 1236-1237, in order to minimize the decisive authority of Fortescue, he says, "The time when he wrote that book it was after all the Acts of Parliament that took away the royal power. ... it was writen when the civil waars were between the two houses of York and Lancaster, and he himself was in exile, no time then to displease the people."

There can be no doubt at all that the crown had no right to impose direct taxation without the consent of Parliament. Medi-eval authority on the point was quite clear; and, if it had not been clear, the Petition of Right was decisive. So much was practically admitted even by the judges who decided for the king in the _Case of Ship Money_.6 Though they minimized as far as possible the effect of the medieval precedents,7 and argued, as usual, that the Petition of Right merely declared old rights and made no new law,8 they could not deny that the king, normally and regularly, had no power to levy any tax without the consent of Parliament. But Charles I.'s determination to rule without a Parliament had made some form of direct taxation an absolute necessity. _Bates's Case_ had shown that the exercise of an undoubted prerogative of the crown could be so used as to benefit the crown peculiarity; and it occurred to the king's advisers that this principle might be extended. Why should not the king's prerogatives to provide for national defence be so used? It

## 7 The Political Controversies

was this idea which inspired the project of ship-money ; and it was by an appeal to these prerogatives that the levy was justified.1 Therefore in order to understand the course which the arguments and decision in this case took we must look at the different views put forward as to the nature and extent of these prerogatives.

Footnote 1: The author was supported by the National Science Foundation of China under grant number 100001

## 50 Public law of Xvith century

given power to order a press of ships to suppress pirates;1 in 1619 the maritime towns had been required to provide ships and ship money for the expedition to Algiers;2 and in 1626 ships had been collected in this way for the war with Spain.3

Footnote 1: Acts of the Privy Council (1613-1614) I45-I46.

Footnote 2: Gardiner, op. cit. iii $\\pm$88.

Footnote 3: Ibid vi 132--the City of London had at first resisted, but it had given way.

Already in the Tudor period the way had been prepared for a levy, not of ships, but of ship money. The sea ports and districts bordering on the coast had found that the expense of furnishing their contingent of ships was burdensome, and so they had tried to make the neighbouring districts contribute to it.4 Even in 1588 some persons in the seaport towns,5 and in some inland districts,6 had objected to be assessed for this purpose; and the principle that inland towns, which provided soldiers, were not liable to be thus assessed was recognized--though it would seem that merchants residing there were considered to be liable.7 In 1619 a further development had been made. The ports were assessed, not as in 1588 in terms of ships, but in terms of money.8 Thus it was only one or two very slight developments which were needed, firstly to convert the obligation to provide ships into an obligation to pay, and secondly to extend this obligation to the whole country. Obviously this wide prerogative to requisition ships, or money in lieu thereof, might, as thus extended, be turned to fiscal uses.9 A suggestion that it should be so used was made as early as 1628; but the project aroused so much opposition that it was abandoned.10 It was not

## 5 The Political Controversies

till r634 that it was determined, at the suggestion of Noy the Attorney-General, to have recourse to it.1 Noy's first writs extended the old precedents in that the king's demand was founded not on actual, but on apprehended, danger. The extension was justified by the principle that prevention was better than cure; and it is perhaps arguable that there is some authority for this view in the case of _The King's Prerogative in Saltgetre2_-at any rate this seems to have been the opinion of the Court of Appeal in 1015.2 There was some remonstance from London against this levy, but no other opposition to the principle of the demand.4 In 1635 there was a second levy, and the precedents were still further extended. The whole country, and not merely the maritime towns, were asked to contribute. This extension was justified by the obvious fact that the whole country was equally interested in repelling invasion.6 This second levy roused greater opposition than the first. Richard Chambers, who had already suffered for his resistance to the levy of customs duties by the prerogative, attempted to contest the right to make this levy. But the judges would not listen to his arguments. "There was," said Berkeley, J., "a rule of law and a rule of government, and many things which might not be done by the rule of law might be done by the rule of government."6 In 1636 a third levy was made. But, though the king had obtained an opinion of the judges in favour of its legality,7 it aroused a

## 52 Public Law of Xvith Century

universal opposition.1 In 1637 the king, relying upon the opinion of the judges in favour of its legality, thought that he might safely allow the question to be argued in the courts. A favourable decision would, it was erroneously thought, go far to allay popular discontent. It was for these reasons that Hampden was allowed to bring the question to an issue in the court of Exchequer, and that the case was adjourned into the Exchequer Chamber to be solemnly argued before all the judges.

Footnote 1: The author was supported by the National Science Foundation of China under grant No. 10

## 5 The Political Controversies

these cases the law is superseded,1 and therefore from them no inferences can be drawn as to the legal extent of the powers conferred upon the king by his prerogative.2 But, if this is the law, two consequences follow. Firstly, it is only the actual presence of the danger which can give rise to this power.3 Such a situation cannot be created by the allegation of the king that the country is in danger. To assert that a case of emergency can be created by the king's allegation destroys " the whole frame of political advice";4 for it gives to a bad king the power of doing what he pleases ; and it is to guard against this contingency that the law has laid restraints upon the king's powers.5 And then the medieval thought6 is introduced--these restraints are not " a disability in the king, but a prerogative, to make him come the nearer to divinity in the attribute."7 Secondly, the case of a merely apprehended danger does not add to the powers legally belonging to the king. In such a case the law is not superseded, and it has provided a remedy. Parliament can be summoned, and the necessary measures can be taken.8

Footnote 1: 3 S.T. at pp. 975, 977.

Footnote 2: 3: The question is not, what we are to do by necessity, but what is the positive law of the land," ibid at p. tori.

Footnote 4: Ibid at p. 972.

Footnote 5: Vol. ii 253, 435.

Footnote 6: * If there be time to make ships, or prepare ships at the charge of the counties ; then there is time enough for his majesty if he pleases to call his parliament, to charge his commons by consent in parliament, and to have a subsidiary aid, as always hath been done in such cases," ibid at p. r159 _fer_ Crooke, J.; to which Finch, C.J., replied, " I hold parlinaments are excellent means to raise aid for the defence of the kingdom, and yet they are not the only means, for then the parliament and not the king should be the only judge, and have defence of the realm," ibid at p. r235.

Footnote 7: * There was one thing which I forgot, for destroying of the distinction from necessity and leaving the king judge of the necessity ; that in (my) judgment, so to do it, is all one as to leave it to him arbitrarily, if he will," ibid, at pp. 976 _fer_ Holborne _arg._; above 28.

It is obvious, as I have said, that the extent of the discretionary power claimed for the king in this case, and allowed by the court, in effect made him the sovereign power in the constitution.9 The decision, if pushed to its logical conclusion, would have given him the last word in any serious conflict with his Parliament ; for the law allowed him to use this extraordinary power whenever he judged the circumstances to constitute a danger to the state ; and a long continued and hopeless deadlock between two branches of the legislature, which prevented the grant of supply to the government, might well be deemed a case of necessity. On the other hand, it is equally obvious that the argument for Hampden confined the discretion of the crown within dangerously narrow limits.10 Its power to take timelyPublic Law of Xviith Century

precautions for the national safety was made wholly dependent on Parliament; and we have seen that its power to rule its forces by martial law had been so cut down by Petition of Right as to be useless.1 But it was obvious that any more extended powers would be used to justify billeting soldiers on the people,2 the government of civilians by martial law in time of peace,3 and even the imposition of direct taxation. As in the _Case of Darnel,4_ so in the _Case of Hampeden_, the certainty that any discretionary power given to the crown would be used to establish the sovereignty of the prerogative; and the knowledge that the sovereignty of the prerogative was, in practice, accompanied by gross abuses, made it necessary to cut down the crown's powers to such an extent, that, unless supplemented by Parliament, they were and are quite inadequate to deal with a national emergency.

Footnote 1: This was clearly pointed out by Whitelock in his speech on impositions in 1610, 2 S.T. 514; he said, "the king by the common law, may send his writ, _ne excess regnum_, to any subject of the realm. ... So in point of government and common good of the realm he may restrain the person. But to conclude therefore he may take money not to restrain, is to sell government, trust, and common justice, and most unworthy the divine office of a king. ... There is no question but that the king hath the custody of the gates of all the towns and cities in England, as well as all the ports and havens, and upon consideration of the well publice may open and shut them The Political Controversies

king and his advisers under-estimated the intelligence of the English people when they supposed that they were blind to the real issues which lay behind these decisions.1 They made, as I have already pointed out,2 an equally serious under-estimate of the strength of the popular resentment which they were arousing. If, indeed, they had had a military force at their disposal and a civil service under their control, they might have, ignored this resentment; and, with the help of the reasoning in these cases, justified their acts to a people who could not resist. But, as we have seen,3 they had neither. It is true that the control exercised by the central over the local government might lead a superficial observer to suppose that the local officials were as completely under the control of the crown as the officials of a continental state.4 But this was a mistake of the same character as the supposition that the language of the courtiers and high churchmen about the king and his prerogative 5 was a fair index to the king's real constitutional position in the country. It was a mistake which no Tudor would have made; but the two first Stuarts, being the men they were, could hardly avoid falling into it. If they had been wiser men, the working of the system of local government, which they had inherited from the Tudors, would have taught them what was the real feeling of the country towards their system of prerogative rule. It would have demonstrated the hopelessness of an attempt to apply in detail the consequences which they deduced from the principles enunciated by the courts in these cases.

Footnote 1: It was obvious even to a foreigner; the Venezian ambassador said of the levy of ship money in 1634, "If it does not altogether violate the laws of the realm, as some think it does, it is certainly repugnant to usage and to the forms hitherto observed," cited Gardiner, op. cit, vii 376-377.

Footnote 2: Above 14-15.

Footnote 3: Vol. iv 163-165,

Footnote 4: Ibid r65-166,

Footnote 5: Above 13.

Footnote 6: Vol. iv 76-77, 122,

(iii) The relations of the central to the local government.

Let us recall the main features of the system of local government which the Stuart kings had inherited from the Tudors. In the country it fell mainly upon the justices of the peace. They were assisted by the sheriffs, who executed the king's writs and the orders of the central courts and the quarter sessions, and the lord lieutenant and his deputies, who superintended the military forces of the counties.6 Below them were the high-constables, the petty constables, the overseers, the churchardens and other officers of hundred, parish, and township, to whom Public Law of Xvith Century

the justices of the peace and the sheriff issued orders, and over whom they exercised jurisdiction by the machinery of presentment and indictment.1 In the corporate towns charter and prescription had made the machinery more variegated ; but even there it tended to follow the country system. The mayor and aldermen were often justices of the peace. They administered the multifarious statutes which imposed duties on town and country justice alike. They superintended the subordinate officials of ward or parish.2

Footnote 1: Vol. iv 122-I25, 156-I25, 162-I63; 1 Ibid 132-I33. 2 Ibid 73-80. 4 Ibid 75-76; 3 Ibid 79. 4 Ibid 78. 7 Ibid 400. 8 Ibid 355-361. 9 Vol. i 5to-512. 10 A phrase used by James I., see below 58.

Footnote 11: See the orders issued by the Council in f60s as to the procedure and duties of the justices, Hamilton, Quarter Sessions from Elizabeth to Anne 67-77. 2 For a specimen of such orders see S.P. Dom. 1636-I637 2, cecxxvii 4--orders as to manufacture of malt.

We have seen that this complicated machinery of local government had been made efficient by the close supervision of the Privy Council, seconded in Wales and the Marches and in the North by the Provincial Councils.8 That supervision was exercised directly by orders, advice, and rebukes ; and indirectly through the judges of assize, who conveyed instructions to the justices of the peace and other officials, and reported to the Council on the state of the counties.4 The justices of the peace could always invoke the aid of the Council to maintain their authority ; 6 and, on the other hand, they could, on the advice of the Council, be struck out of, and other persons added to, the commission of the peace.6

Footnote 13: See ibid 78-80 for an admonition of this kind sent to the justices in 1600; cp. S.P. Dom. 1633-I634 538, cclvv 6, for orders given by the Ecclesiastical Commission to the justices.

During the reigns of the first two Stuart kings, this system of control was in full working order. We have seen that by its means the poor law was successfully administered,7 and the economic policy of the state was carried out.8 As we shall now see, it kept the ordinary machinery of local government running smoothly and efficiently.

Footnote 13: See the idios issued by the Council in f60s as to the procedure and duties of the justices, Hamilton, Quarter Sessions from Elizabeth to Anne 67-77. 2 For a specimen of such orders see S.P. Dom. 1636-I637 2, cecxxvii 4--orders as to manufacture of malt.

In the North, and in Wales and the Marches, the authority of the Provincial Councils was maintained in spite of all opposition.9 Over the whole country the justices of the peace--"the king's eyes and ears " 10--were strictly supervised. They were instructed as to the nature of their duties and as to the procedure by which they could best execute them.11 They were expected to obey promptly any orders sent to them,12 and they were rebuked if they were remiss in this or in any other of their duties.13 They were required to report regularly as to the The Political Controversies

performance of certain of their duties--notably those connected with the poor law.1 The Council or the Star Chamber was always ready to settle conflicts of jurisdiction between the justices and rival authorities;2 and to maintain the authority of the justices by summoning before it those who contemned their authority.3 It endeavoured to secure their obedience by frequent revision of the lists of those who were in the commission of the peace for the different counties.4 A similar control was exercised over the governing bodies of corporate towns;5 and in 1628-1629 we hear of an expedient which was to attain great notoriety in the later years of this century--Quo Warranto proceedings with a view to the remodelling of a corporation.6

Footnote 1: There are a regular series of these reports in the S.P. Dom., see e.g. S.P. Dom. 1635 175; ibid 1635-1636 135; ibid 1636-1637 47; vol. iv 400.

Footnote 2: See e.g., S.P. Dom. 1629-1631 299, clxx 4--a complaint of the deputy lieentants and justices of Oxfordshire against a purveyor; ibid 1634-1635 3, cclxvii 15-17 --a dispute between the justices of Wiltshire and a commissioniser of the cloth trade.

3 Ibid 1631-1639 332, cxxvii 57--the justices for Gloucestershire, having caused certain persons to be indicted for riot, and the jury having returned 'ignoramus,' they certify this to the Council; ibid 1617-1618 557, xvivi 30--refusal by Colchester to pay a rate, and request that the town might be ordered to show the cause of this refusal to the Council; ibid 1627-1628 77, lvi 12, the earl of Northampton writes to the Council that those who refused to lend in Gloucestershire should not be allowed to go away freely; "if so, it would embolden others, and make those suffer who have been most industries in the king's service. The gentlemen who must remain there, and be every day subject to ensure and contempt for doing his Majesty's service, have been instant with the earl on this account."

4 Ibid 1639-1623 332, cxvii 1, Locke writes to Carleton (Feb. 1623), "the Council are making an expurgatory index of justices of the peace, weeding out 20 or 30 in some counties "; ibid 1639-1640 387, ccccxvii 137, Burton, writing to Dr. Bray, says, "the last Lord Keeper (Coventry) as soon as he was chosen took instantly a survey of all the justices in every county, and expurged divers without rendering any cause . And so may the present Lord Keeper if he please, a thing done out of course by his predecessors."

Ibid 1629-1634 42, cxvivi 88--Yarmouth, election of a magistrate and restoration of an adderman ordered.

- Ibid 1628-1629 555, cxvii 2--the idea was to get rid of the two bailiffs as heads of the town--an institution described as "monstrous in nature and dangerous and inconvenient in government."

See ibid 1629-1625 8, cxvivi 43--the judges wait on the king before they go their circuits; ibid 1631-1633 535, cxxvii 42--charge given by Coventry, L.K., to the judges before they go on circuit; ibid 1633-1634 352, cclxvii 44--notes of a speech by the Lord Keeper to the judges; ibid 1635 128, cxcv 168; cp, 3 S.T. S26.

846 for the instructions given to the judges to explain and justify the various levies of ship money; in 1642 elaborate directions were given by the king to the judges, and he said, "We call to mind that in the former times the constant custom was, by the mouth of the Lord Keeper at the Court of Star Chamber in the end of Trinity term, to put the judges of Assize, shortly to depart on their circuits, in mind of such things as were then thought necessary for the good government of the kingdom."

S.P. Dom. 1641-1643 349, ccccxci 52.

8 Works (ed. 1616) 562-563; cp, vol. i 272-273.

Public law of Xviith century

your circuits, you goe not only to punish and prevent offences but you are to take care for the good government in generally of the parts where you travell, as well as to doe justice in particular betwixt party and party, in causes criminal and civil. You have charges to give to justices of peace, that they doe their dueties when you are absent, as well as present: take an acompt of them, and report their service to me at your returne . . . I know not whether misunderstanding or slackness bred this, that I had no acompt but in generally, of that I gave you in particular in charge the last yeare: therefore now I charge you againe that at youre next returne, you require to my Chancel-lour, and bring your accompts to him in writing, of those things which in particular I have given you in charge: and then when I have scene your accompts as occasion shall serve, it may bee I will call for some of you, to be informed of the state of that part of the country where your Circuit lay. . . And this you shall finde that even as a King (let him be never so godly, wise, righteous, and just) yet if the subalternne Magistrates doe not their parts under him, the Kingdome must needs suffer: so let the judges be never so careful and industrious, if the justices of the peace under them, put not to their helping hands, in vaine is all your labour. For they are the king's eyes and eares in the country." In fact the itinerant judges had a threefold duty to perform. They must see that the county business was properly conducted, they must keep the central government informed of the state of the local government and the feeling of the counties, and they must explain and justify to the rulers of the counties the policy of the government.1 When political passions began to run high, the last mentioned duty supplied an additional and powerful reason for securing as judges men who were whole-hearted believers in that policy.

Footnote 1: This manner of justices itinerants carrieth with it the majesty of the king to the people and the love of the people to the king; for the judges in their circuits are sent a _latere regis_ to feel the pulse of the subject and to cure his disease. . It makes the government more united in itself; for the judges at their return meet at Sergiant's Inn, and there they make up their accounts, and then they relate their proceedings to the king and his chancellor, and so make it all one piece," Bacon's speech in the Star Chamber 1617, Spedding, Letters and Life vi 303.

It might at first sight seem that the king had in the machinery of local government a powerful instrument, under good control, for the enforcement of any line of policy which he might wish to adopt. In reality nothing could be further from the truth. The smooth running of that machinery depended entirely upon the approval by the officials and bodies entrusted with the conduct of the local government of the policy adopted by the king, and on their willingness to co-operate with him in the pursuit of it.

## 5 The Political Controversies

We shall see the reason for this if we look, firstly at the character of the machinery of local government, and the nature of the political ideas which governed those who worked it; secondly, at the capacity for government, and the political creed to which this machinery and those ideas had given rise; and thirdly, at the motive force which kept the machinery running.

Firstly, we have seen that, though the old communal courts, through which local government in the Middle Ages was administered; had been for the most part superseded by officials such as the justices of the peace, constables, overseers, and churchwardens, much of the old communal spirit still survived.1 Quarter sessions and petty sessions were more efficient courts of a new model; and parishes were, as units of secular government, new bodies entrusted with the performance of new statutory duties. But much of the machinery employed by these bodies was mediaeval, and helped to preserve the tradition of the medievalval self-governing community.2 And we have seen that the judicial processes under which that business was conducted helped to preserve the mediaeval tradition of the rule of law.3 The law which ruled them in the conduct of their business was the common law.4 Its machinery and its principles governed the application and the interpretation of those " stacks of statutes" which contained their powers and defined their duties. The officials therefore of English local government were inspired, not by the ideas of a department of the central government, but by the ideas of the common law, which they applied through the judicial machinery of that law. It is true that they must obey the orders of the central government; it is true that they were liable to be sum-moned before the Council or Star Chamber if they disobeyed those orders; it is true that it was the active supervision of the Council and Star Chamber which had made them efficient administrators of the local government. But, in spite of all this, their ordinary every-day work was done under judicial forms which left them free to act independently so long as they obeyed the rules of the common law.

Footnote 1: Vol. iv 158, 162, 164. 2 Ibid 142-144, 163-165. 3 Ibid 144.

Footnote 4: As Dr. Jenks has shown, Yale Law Journal, xxvii 530, the use made by Coke of the writ of Mandamus in Bagg's Case (166) ir Co. Rep. 93 proves that the writ gave the courts a very efficient instrument of control,

Secondly, as a result, these officials in their several spheres were obliged to show a self-reliance and an initiative which would be unnecessary and misplaced in officials who conducted their work according to the detailed orders of a department of the central government. The statutes and the rules of the common law which defined their powers and duties left much to their

## 60 Public Law of Xvith Century

imagination and initiative; and though the Council expected obedience to its orders when it issued them, it also expected a capacity to act without orders in an emergency. In 1632 the attention of the Council was called to a letter, which the deputy lieutenants of the county of Carnavron had written to the earl of Bridgewater, informing him that pirates had come into a certain haven in the county and threatened to land, and asking for instructions. The Council, "much marveyling they should make so strange a demande in matter wherein their ovine judgements might sufficiently informe them," ordered that instructions be given to all the county officials to prevent such landing and to arrest the pirates.1 It is obvious that persons set to govern under such a system as this will be educated by their experiences. They will acquire some ideas of their own, if not as to the policy which they would like to see adopted, at least as to the faults of the policy which they are asked to assist in carrying out. Having some practical knowledge of government in the concrete, it will be difficult to convert them by specious arguments to a belief in a policy of which they are suspicious. They may not be able to confute the arguments, but they will have an instinctive fear of measures which seem to threaten the foundations of their political creed.2 And, naturally, the creed of the large majority of the officials who controlled the local government of the country was a belief in the supremacy of those technical common law rules, and that still more technical common law machinery, through which they carried on that government. It is quite arguable that this was a stupid creed, and that those who held it took a narrow view of the true ends of government, and of the best means of attaining those ends. But it was so universally held that it was a force which no statesman could afford to ignore.

Footnote 1: Cited by Skeel, the Council in the Marches of Wales 256-257.

Thirdly, as this system of local government was conducted by the voluntary service of unpaid officials, the central government had not the same hold over them as it would have had over paid officials. Dismissal had very few terrors. It followed, therefore, that the service of these officials would not be very willing unless the policy, which the central government wished to pursue, was approved of by those officials; and that it would be almost impossible for the central government to secure the enforcement of a policy which they actively disliked. Even if it could succeed in compelling the sheriffs and the justices of the peace to make the attempt to enforce it, it was certain that they

## 6 The Political Controversies

would fail, because they would find it equally impossible to force the lower ranks of the hierarchy--the constables, the overseers, and the churchwardens--to act.1 Thus it was only if the policy pursued by the central government was substantially approved by the local government officials, that the machine could be kept running with any degree of smoothness.

Footnote 1: As Defoe wrote at the end of the century in his True Born Englishman: --

"The meanest English plowman studies law,

And keeps thereby the magistrates in awe,

Will boldly tell them what they ought to do,

And sometimes punish their omissions too."

2 Above 14-15.

3Vol. v. 448.

4Eliot's comment on this attitude of mind, Negotium Posterorum ii ro8-tog, is

quite justified; he said, " To that end a project was recaev'd to remove the most active of the Commons

charging them with imploiments that might make them uncapable of the Parliament, presuming thereby others would be deter'd, and the whole abilite of that house extracted with those persons.

Public Law of Xviith Century

obedience by rebukes, and, if necessary, by proceedings in the Star Chamber. They had also accustomed these officials to look to the Council and Star Chamber for effective support in maintaining their authority.1. Thus in all matters of routine the old habits of subordination and obedience prevailed; and it might be thought that these habits would prevent disobedience or resistance to any orders which might be issued. But there was one very clear limit to this obedience. The crying need of the government was money ; and attempts to collect money without Parliamentary sanction had always aroused the opposition of these officials; for such attempts were contrary to the plainest teachings of that common law which, they considered, should guide both their acts and the acts of the central government.

Footnote 1: Vol. iv 79.

From the beginning of the century there were clear indications that the officials of the local government could not be relied upon to obey orders or requests for raising money without Parliamentary sanction. Thus in 1614 the Council sent a letter to the counties pointing out that the dissolution of the late Parliament had prevented the grant of supply, and suggesting that they should follow the example of the Council and many other lords and gentlemen, and collect subscriptions to a free gift to the king.2 To this request the justices of Devonshire replied that they had met and considered the matter, and, " having spent much time and many meetings in the free discovery of our own opinions, and also private trial of others of best sufficiency we fell at length into this resolution . to make known to your Lordships our general scruple, which under your Lordships favour is briefly this: the exceeding prejudice that may come to posterity by such a precedent. His majesty's great necessity to be supplied . wrought much upon the affections of every particular of us, so as nothing but the fear of the just blame of after ages could have abated our forward dispositions from performing a service in itself so requisite."3 Some of the leading justices were summoned to attend the Council, and there the legality of the demand was demonstrated to them.4 This course, and a letter to the bench, induced it to take the necessary steps to bring the king's request before the county. But it does not appear what sum was collected--probably not very much. At any rate it is clear that the expectation of the government that the people as a whole would follow the example of the Council and the clergy, and make a large voluntary contribution, was disappointed.1 Similarly in 1626 the king's request for a loan was met by a widespread passive resistance,2 and direct refusals to subscribe "'otherwise than by way of Parliament."3 Some of the recipients of privy seals even treated them with contempt;4 others who had promised to subscribe refused to pay;5 and, in the face of this wide-spread resistance, it was not very much use imprisoning 6 or impressing for military service 7 individual refusers. At the same time we begin to hear of resistance to other demands, which would have the effect of throwing upon the county rates expenses which ought to have been borne by the central government. In 1626 the county of Essex absolutely refused a demand for some four or five thousand pounds for the maintenance of the troops at

## 64 Public Law of Xvith Century

Harwich, describing the demand as " excessive and unprecedented" ;1 and the refusal was justified by the deputy lieutenants who explained that a bad harvest and other demands made it quite impossible to raise such a sum.2 It should have been fairly clear that the prejudice against levies, otherwise than by Parliamentary consent, was so strong that it was not likely to be overcome by any considerations of personal loyalty to the king, or even by the most convincing arguments based on national necessity; and that, even if the sheriffs and the justices of the peace could be persuaded to use the machinery for collecting subsidies for this purpose, they would be met by a resistance which there was no means of overcoming.

Footnote 1: S.P. Dom. r625-r626 r06-107, vi 76:

Footnote 2: Ibid 107, vi 77--\* They have raised above $\\pounds\_{4}$,000 and are out of hope of raising more, they therefore represent the state of the county to the Council. Scarce any man has half an ordinary crop of corn; clothiers have no vent of their wares; grariers and market men have no sale on account of the infection in London; Michaelmas rents and an assessment of the subsidy are becoming due; and extra-ordinary taxes for the relief of the sick poor. If the king will not bear the charge, other counties and especially Suffolk, ought to contribute.

These warnings were disregarded, and the attempt was made to turn the prerogatives of the crown to fiscal uses by the device of ship-money. So soon as the successive levies of ship-money had made it quite obvious that it was merely a device for raising extra-Parliamentary taxation, resistance became, as we have seen, almost universal;3 and, as the crown had provided no machinery for its collection, other than the ordinary machinery of the local government, there were many methods by which that resistance could be made effective. Sometimes the opposition came from the higher officials such as the sheriffs and justices of the peace; and the Council tried the expedient of ordering those who were refractory to be dismissed.4 But it was an expedient which was bound to fail, as, even where the sheriffs tried to levy the tax and the justices offered no opposition, the bailiffs and constables declined to act. They refused or delayed to make returns of the persons liable to pay.5 They demanded to know by what statutory authority the demand was made.6 If distress was levied, those who levied it were harassed by actions at law :7 and, owing to fear of being so harassed, constables refused to execute writs ordering the property of defaulters to be distrained.8 If the property was distrained, no one would buy it.9 In someplaces the tax-papers themselves intervened; and then the attempts to levy the tax caused riots.1

Footnote 1: S.P. Dom. r637-1638 r98, cccclxxx i32; ibid r638-1639 22-23, cccxcviii r16,

It was, as we have seen, the extent of the opposition, and the widespread conviction that the tax was contrary to law, that induced Charles to allow the question to be solemmly argued before all the judges.2 If he could get a decision in his favour it would stop the actions which were threatened against officials for illegal distress, it would enable him more easily to deal with officials who refused to do their duty and levy the tax, and it would go far to satisfy his subjects that he was legally entitled to levy it. That it was the intention of the government to make some such use of the decision is clear from the course which the courts took with objectors after it had been given,3 and from a letter written by Finch, C.J., to Laud, giving an account of the manner in which he had dealt with an objector at the Exeter assizes in r639.4 It appears from this letter that Sir Richard Strode 5 had had one of his cows distrained for non-payment of ship money. He thereupon drew up and delivered to the grand jury for Devon a paper "in the nature of a presentment," in which Magna Carta and the other medieval statutes against taxation without the consent of Parliament were recited, to prove that this distraint was illegal. One of the grand jury informed Finch of this. Finch thereupon directed that nothing should be done in the matter without acquainting him--" which I did lest they might be induced to find the presentment, which I thought might be of ill consequence." The next day, " there being present a great assembly of justices and a full _posse comitatus_," he interrupted Strode who was about to make a statement ; and took occasion to explain that he was an "unquiet spirit " who had lately been fined in the Star Chamber, to enlarge upon the king's care for the defence of the realm, and to explain the reasons for the judgment against Hampden. Apparently Strode did not make much of an answer to this harangue. Thereupon Finch, " with much undervaluing of his presentment," returned it to the grand jury, who returned it to him again " as a thing they thought worthy of no further consideration." The court then rose. The next day Strode returned to the charge, and affirmed that the jury had returned it, " not as a thing rejected Public Law of Xviith Century

by them, but as a true presentment." But the jury, on being questioned by Finch, "answered there was no such matter." By which the scorn he had incurred was doubled upon him; and though then he began to talk in a more malapert way, yet I thought fitter to use him with contempt than with anger, and so let him go away, being despised by all that heard it, for ought could appear by the least sign."

It was easy for the courts to refuse audience to objectors; and it was not difficult for a man of Finch's talents and eloquence to score off a country knight at the assizes. But neither course went very far to persuade the country that the judgment in the _Case of Ship Money_ was right.1 Probably very many persons at the Exeter assizes sympathised with Strode. The year before, the Council had been informed that William Walker, chief constable of Kingsthorpe, in the county of Northampton, had been " prating and grumbling much against the ship money," saying that it was an intolerable exaction, that it would " cause the like stirs that were now in Scotland," that the "King was under a law as much as any subject," and that though some judges had determined it to be lawful " the best and most honest had not."2 These were the real views of the majority of Englishmen. To any one who looked fairly at the facts it was impossible to contend, as Charles had contended when he dissolved his last Parliament in 1629, that all this opposition was due to a factious minority. To anyone who had any real understanding of the nature of the machinery by which alone the central government could enforce payment of the tax, it must have been obvious that the attempt to do so could not succeed. Why then did Charles and his advisers fail to grasp the fact that it was impossible to pursue the line of policy to which they had committed themselves? This question I shall endeavour to answer in the ensuing section.

Footnote 1: S.P. Dom. 1637-1638 451, cccxc 157--the sheriff of Chester wrote that the arguments of the dissenting judges had caused further difficulties in the collection of the tax, which bears out Clarendon's statement, above 28-29.

Footnote 2: Ibid 560-567, cccxc 40.

(iv) The strong and weak points of the scheme of prerogative government.

The first half of the seventeenth century is the turning point in English constitutional history, because it was then that it was decided that the government of England was to be by the king and Parliament, and not, as in most other continental countries, by the king alone. This result was achieved by a Parliamenty opposition which gradually made Parliament an integral and a permanent part of the government of the state, and compelled the

## The Political Controversies

**1.1**: \_The king had perceived that with the growth of legislative activity and the victory of the central power over its enemies, sovereignty had become a fact, and past history justified him in laying claim to all that was involved in the new state of things. It is the king and his supporters, be it observed, who first saw the change. One side has ever before it the vision of law conceived as a system existing by Divine Right, its origin lost in the past, independent of circumstances and men's caprice,\_Public law of XVITH century

Parliamentary party which resisted change, which drew its inspiration from a medieval past, and adopted as its central political idea the medieval conception of the rule of law. In the proceedings against Manwaring in 1628, Pym maintained that, "the form of government in any state cannot be altered without apparent danger of ruin to that state."1Gardiner,2 speaking of the men who formed the majority in the Short Parliament, says, "They were no reformers, no followers of new ideas, by which the lives of men might be made brighter and happier than of old. They wished to worship as their fathers had worshipped, to believe as their fathers had believed, and to live as their fathers had lived. They did not wish to be harassed by constant changes of which they did not understand the import, and of which they mistrusted the tendency. To them Parliaments were not an instrument of improvement, but an instrument to avert unpopular alterations." These words cannot, as we shall see, be applied to the Long Parliament. But, till 1641, they are as true of the Parliaments of James I. as the Parliaments of Charles I. ; and they are to a large extent true of the Whig statesmen who made the Revolution of 1688. Clearly we cannot rightly appraise either the strength or the weakness of the scheme of prerogative government, unless we begin by looking at its advocates and its opponents from this, the true historical standpoint.

Footnote 1: 3 S.T. 34.r. * History of England ix z17-z18.

Footnote 2: Above it-tz. * Vol. iv. r66-167.

The relations of the Stuarts with the Continent were close. James I.'s political theories 3as to the position of the king in the state became accomplished facts in France, and in many other European countries in the course of the century ; and Charles was married to a French wife. We have seen that neither the Cortes in Spain nor the States-General in France had been able to oppose any effective barrier to the growth of royal absolutism.4 They had been swept aside ; and experience seemed to prove that government by a sovereign king, who was backed by an army and a trained civil service, was the most effective means to ensure, not only protection against lawlessness, but also the development of trade, the encouragement of learning, and the rapid progress of all that made for an ordered civilization. It was little wonder that many of the higher classes of society

## 6 The Political Controversies

maintained that, "'it was for the honour of a people that the Monarch should live splendidly, and not be curbed at all in his prerogative, which would bring him into greater esteem with other princes, and more enable him to prevail in treaties."1 It was little wonder that those who drew these lessons from the political conditions of Europe, should consider that the supporters of representative assemblies which claimed to fetter the prerogative, and the supporters of law courts which claimed to subject it to the restraints of law, were the victims of ignorant and insular prejudice. They naturally considered themselves to be the enlightened thinkers who were supporting the most modern and up-to-date political theory, against opponents who were advocating a medieval conception of the state, which experience had shown led to anarchy.2 It was by the prerogative that the Tudors had mastered this anarchy, and had made England a well ordered state of the modern type. The prerogative of the king of England must be increased, as the prerogatives of continental kings had been increased, if England was to keep her rank among the civilised states of Europe.3 Here, as abroad, experience of the good results which would follow from the intelligent working of a strong prerogative would soon convince even the most obstinate.

Footnote 1: May, History of the Long Parliament, Bk. i, c, z p, r8.

Footnote 2: Wentworth, in his speech to the Council of the North in 1628, cited Gardiner, op, cit. vii 25-26, says, "the authority of a king is the keystone which closest up the arch of order and government, which contains each part in due relation to the whole, and which once shaken and infirmed, all the frame falls together into a confused heap of foundation and battlement, of strength and beauty.

Whatever he be which travels forth into questions the right of a king and of a people shall never be able to wrap them up again into the comeliness and order he found them." Manwaring, in a passage of one of his sermons, cited 3 S.T., 346, said, "If they would consider the importunities that often may be urgent, and pressing necessities of state that cannot stay without certain and apparent danger, for the motion and revolution of so great and vast a body as such assemblies are, nor yet able their long and pausing deliberation when they are assembled, nor stand upon the answering of those jealous and over wary cautions and objections made by some who, wedded over much to the love of epidemiani and popular errors, and bent to cross the most just and lawful designs of their wise and gracious sovereign and that under the plausible shows of singular liberty and freedom, which, if their conscience might speak, would appear nothing more than the satisfying either of private humours, passions, or purposes."

Footnote 3: Wentworth wrote to the king in 1637, "It is plain that the opinion delivered by the judges, declaring the lawfulness of the assignment for the shipping, is the greatest service that profession hath done the crown in my time. But, unless his Majesty hath the like power declared to raise a land army upon the same exigent of State, the crown seems to me to stand upon one leg at home, to be considerable but by halves to foreign princes abroad," Strafford's State Papers ii 6r.

Footnote 4: Above 30, 32-33, 41-42, 44-45.

Footnote 5: We have seen that upon many points the law was really doubtful.4 The medieval precedents spoke with an uncertainPublic Law of Xvith Century

voice. In many cases they had been modified in a manner favourable to the prerogative during the Tudor period. Those who held this royalist creed naturally considered that public policy demanded that this modification should continue. They considered that when the law was doubtful it should be interpreted in accordance with modern needs. Nor can we blame those of the judges, who believed in the royalist creed, if they fell in with this idea. After all it is the method of interpreting old precedents which is followed to-day, and always has been followed, by judges who have been compelled to make modern law out of ancient material. Thus the law officers of the crown, who carefully chose the issues to be submitted to the courts, and the judges who decided them in favour of the king, considered that they were improving and developing English public law by raising it to the level of the public law of continental states. Similarly, both the lawyers and the politicians considered that respect should be paid to the spirit rather than the letter of the existing constitutional law and practice. For instance, they considered that it would be absurd, in the face of recent practice, to stop the levy of tunnage and poundage when the king died, because the formal consent of the House of Commons, which had always been given, had not been got.1

Footnote 1: S.P. Dom. Add. 1580-1625 423, xxxx 8, James I. wrote to his Treasure that though certain customs were no longer payable by strict law owing to the death of Elizabeth, he was to levy them, " not doubting their renewal next Parliament"; so Charles I., in the declaration he issued in 1029 (Gardiner, Documents 86-88), defended his levy of tonnage and poundage by saying that the duty had for a long period been granted to each successive sovereign for life, and that Parliament had always confirmed its levy between the death of the preceding king and the grant of it to his successor; in fact, he treated the fact that it had not been granted as an accident, and defended his levy upon much the same grounds of expediency as the enactment of the Provisional Collection of Taxes Act 1913, 3, 4 George V. c. 3, was justified.

(ii) Both the king and Parliament were well aware that in other European countries the medieval representative assemblies had gone under. "Wee are the last monarchy in Christendome," said Sir Robert Phillips in 1625, "that retayne our original rights and constitutions;" let them not perish now, let not posteritie compliance that we have done for them worse than our fathers did for us."3 Similarly, both king and Parliament were well aware that many of the prerogatives questioned by Parliament were exercised as of course by the kings of other countries. It was pointed out, for instance, that foreign kings levied impositions at their pleasure.4 It is not, therefore, surprising that

## The Political Controversies

Those who held the royalist creed should consider that Parliaments, which were constantly acting in a manner displeasing to the crown, were imperilling the continued existence of the institution of Parliament; and that they ought to warn Parliament of the consequences, not only to itself, but also to the state. "I beseech you gentlemen," said Carleton in 1626,1

"move not his Majesty with trenching upon his prerogatives, lest you bring him out of love with Parliaments. You have heard his Majesty's often messages to you, to put you forward in a course that will be most convenient. In his message he told you that if there were not correspondence between him and you, he should be enforced to use new counsels. Now I pray you to consider what these new counsels are, and may be. I fear to declare those that I conceive. In all Christian kingdoms you know that Parliaments were in use anciently, by which their kingdoms were governed in a most flourishing manner, until the monarchs began to know their own strength; and seeing the turbulent spirit of their Parliaments, at length, they by little and little, began to stand upon their prerogatives, and at last overthrew the Parliaments throughout Christendom, except here only with us." And then he warned the House that if Parliaments were dispensed with the state of England might become even as the state of France, where men, weighed down with the heavy burden of taxation, went scantily clothed and fed.

Footnote 1: The author is grateful to the anonymous referee for his comments.

Charles carried out his threat to use new counsels when he dissolved Parliament in 1629, because the House of Commons had shown a design to usurp a supreme control over the government, "which belongs only to us and not to them."2 The royalists rejoiced that the government of England was now to be placed upon the same footing as other modern states. "The courtiers," says May,3 " began to dispute against Parliaments in their ordinary discourse, that they were cruel to those whom the king favoured, and too injurious to his prerogative; that the late Parliament stood upon too high terms with the king; and that they hoped the king would never need any more Parliaments. Some of the greatest statesmen and privy councillorsPublic Law of Xviith Century

would ordinarily laugh at the ancient language of England when the word liberty of the subject was named."

If we look at the history of the seventeenth century in the light of subsequent events it seems scarcely credible that any sensible man, and !least of all " great statesmen and privy councillors," should have held these views. It is by no means incredible if we look at it from the standpoint of a contemporary. It was exactly these great statesmen and councillors who were likely to be led away by study of foreign analogies, and to suppose that the best policy for England was to set her house in order upon a continental model. Nor was this view altogether absurd ; for they could point to great and tangible advantages which had followed, or might be expected to follow, from the system of prerogative government, and they could point to the fact that it had secured the adhesion of some of the ablest men of the day.

Three advantages which had followed or might be expected to follow from this scheme of prerogative government stand out clearly. Firstly, the kingdom was at peace and taxation was not heavy. Wealth increased, as the social and economic policy inaugurated by the Tudors and continued by their successors bore its fruit. The prosperity of the nation was shown by the growth of luxury which the more religious and serious minded deplored.1 Secondly, this scheme gave a clear answer to the problem of the whereabouts of the sovereign power in the English constitution. The king was sovereign both in name and in deed. And, as the controversy between king and Parliament developed, it was, as we have seen,2 becoming more and more clear that it was this question of sovereignty which underlay most of the various disputes between them. It was also becoming clear that, till this controversy was settled, the conduct of the government would continue to be very difficult, and that legislation was almost impossible. This scheme seemed to offer a solution of The Political Controversies 78 the problem which had been adopted by the principal states of Europe. Thirdly, it gave to the king, as representing the executive, the powers needed to conduct the government of a modern state. Thus it gave him powers to discipline his troops, as all modern troops were disciplined, by martial law.1 It gave him a discretionary power to arrest persons dangerous to the state.2 It gave him power to appoint commissioners to see to the proper conduct of trades or industries, and generally to render more effective that general superintendence and control which, in the time of the Tudors, had kept the officials of the local government up to the mark; 3 and it had ensured the due carrying out of the statutes relating to the poor law.4 Such powers as these were then and are now necessary for the proper conduct of the government of a modern state. The inability of the goverment, in the latter part of this and in the eighteenth century, to exercise many of these powers may have been a necessary price to pay for the preservation of constitutional liberty. But it was a price which was by no means inconsiderable; and, in the nineteenth and twentieth centuries, most of the powers which the Stuart kings claimed to exercise by virtue of their prerogative, and many others, have, from time to time, been given to the executive by the legislature.

Footnote 1: See S.P. Dom. 1625-f626 168, xiii 41, martial laws are drawn up for the troops in England, " according to the customs of all well grounded shortcomings"; the need for martial law became very obvious during the warts with Scotland; for illustrations of the wart of discipline of the soldiers see ibid 1640 xxx-xxxii; ibid 335-336, cecclvi 104; ibid 477, cecclx 8; ibid 496, cecclx 56; it was also quite obvious that the common law rules as to when martial law could be applied were wholly insufficient, ibid 355, cecclviii 46; ibid 514, cecclx 16; vol. 576.

Footnote 2: Above 32-37:

Footnote 3: Vol. iv 72-80, 359-361.

Footnote 4: Ibid 400.

It was the conviction, firstly, that the crown as representing the executive government must possess such powers as these, and secondly that the denial of these powers to the crown by the House of Commons made good government impossible, that led two of the ablest men of the day--Bacon and Wentworth--to give their adhesion to the scheme of prerogative government.

Of Bacon's relations to the politics of his day, I have already spoken.5 His contribution was mainly of a speculative and literary kind, while Wentworth's was that of a statesman and a man of action. Both, at the beginning of their careers, gained a great reputation in the House of Commons. But, while Bacon was on the whole a firm believer in the need for a strong well-informed House to advise the king and initiate legislation,6 Wentworth was impatient of the eloquence and the foolishness which are conspicuous in all representative assemblies, and profoundly distrustful of the competence of the House to do much Public Law of Xviith Century

more than vote supplies, criticise obvious abuses, and propose legislation to remedy them.1 To some extent the difference in their points of view is to be explained by the fact that party feeling was more embittered when Wentworth became a figure in public life than it was when Bacon held office. But it was also due to a difference in the nature of the men. Wentworth had none of Bacon's insight into the comparative strength of the various forces in the national life. He hated the Puritans,2 and was therefore wholly opposed to that policy of tolerance to Protestant nonconformists which Bacon had advised.2 He under-estimated the capacity of the House of Commons ; and, because he never appreciated the fact that it truly represented the nation,4 he never appreciated the strength of its position. Puritans and House of Commons alike seemed to impede the realization of his ideal--a strong and honest government which would discard all attempts to fritter away the money and energy of the nation on a showy foreign policy, and would devote all its strength to problems of domestic reform.5 But both men aimed in substance at the same objects, and both were convinced that the only hope of attaining them was to strengthen the prerogative. A king with a strong prerogative, and advised by able ministers, was the first requisite ; and the loyalty of both men to the reigning king convinced them that it was both to the interest of the nation and their duty as subjects to maintain his prerogative, to The Political Controversies

increase its strength, and to obey without question any commands he might give.1 Both men idealized the Tudor monarchy ; and both firmly believed that the political \_s_lavation of their country could only be secured by a strengthened monarchy of the Tudor type.2

Footnote 1: See his letter to the Earl of Carlisle, printed S.P. Dom. r63r-r633 xxiv-xxiv on the case of Foulis--'And surely if he leave it to be considered by the best affected, their verdict will be, his Majesty shall contribute more to his own authority by making him an example of his justice, than can possibly be gained by taking him in again. But this is an arrogance grown frequent nowadays, which I cannot enodure. Every ordinary man must put himself in balance with the king, as if it were a measuring cast betwist them who were like to prove the greater losers upon the parting. Let me cast then this grain of truth in and it shall turn the scale. Silly wretches ! Let us not deceive ourselves. The king's service cannot suffer by the disrace of him, and me, and forty more such ''; cp, below ?6 n. 3.

Wentworth's hatred of corruption, and his contempt for the futile foreign policy of Buckingham, had for the moment made him a leader of the Parliamentary opposition ;8 and he was an effective leader. Eliot says of him, "'Ther was in that gentleman a good choise of partes, natural and acquisit, and noe less opinion of them. A strong eloquence he had, and a comprehension of much reason. His arguments were weightie and acute, and his descriptions exquisit. When he would move his hearers with the apprehension of his sense he had both _acumina dictorum_ and _ictus sententiarum_ to effect them. His abilities were great both in judgment and persuasion, and as great a reputation did attend them."4 He approved the proposal to secure the liberty of the subject by an enactment containing provisions similar to those contained in the Petition of Right ; and he wished to adopt the straightforward method of enacting a new law which should provide for the future.5 The question of the discretionary power he would have left open.6 If it was really necessary to use it he was prepared to trust the nation to approve the user. Such a power he considered was superior to all laws--_Salus populi saprema lex_.7 And to reconcile king with Parliament he was prepared to go even further. He would be satisfied with a confirmation of the older statutes, and a proviso that those committed without cause should be bailed.8 But all attempts at

## 76 Public Law of Xvith Century

reconciling king and Parliament failed ;1 and Wentworth found that he must choose between them. His choice was soon made. The subsequent proceedings of the House of Commons convinced him that it was aiming at a control of the government which would have reduced the king to insignificance.2 Such a result, he considered, was incompatible with decent government.3 He therefore went over to the side of the king, and set himself to build up a strong and honest government on the basis of the prerogative. The liberty of the subject, he considered, ought to be protected ; and his other legal rights ought to be respected ; but, in the interests of the state, the king must have a large discretionary power. He agreed with James I.'s view that Parliament ought not to "meddle with the main points of government."4 If the House of Commons persisted in throwing all government into confusion by usurping the place which properly belonged to the king, the king was acting wisely in dispensing with it.5

Footnote 1: Ibid 270, 271.

Footnote 2: His views on this matter appear very clearly from his letter in r639 to Mr. Justice Hutton, " It is a safe rule for us all in the fear of God to remit these supreme watches to that legal power, whose peculiar indeed it is ; submit ourselves in these high considerations to his ordinance, as being no other than the ordinance of God itself; and rather attend upon his will, with confidence in his justice, belief in his wisdom, assurance in his parental affections to his subjects and kingdoms, than feed ourselves with the curious questions, with the vain fatteries of imaginary liberty, which had we even our silly wishes and conceits, were we to frame a new commonwealth even to our own fancy, might yet in conclusion leave ourselves less free, less happy, than now," Strafford Papers ii 388-389.

Footnote 3: "He was standing in the ancient paths. His knowledge of history told him how a Henry II. and an Edward I., a Henry VIII. and an Elizabeth, had actually guided a willing people. It told him nothing of a dominant House of Commons reducing its Sovereign to insignificance. . As he had accused Buckingham once, so he might accuse Eliot now 'of ravishing at once the spheres of all ancient government," Gardiner, op. cit. vii 137.

## 7 The Political Controversies 77

Short Parliament as an experiment.1 That a Parliament was to be summoned astonished everyone.2 As everyone except the court 3 expected, it merely proved the strength of the opposition to the crown; and its dissolution aggravated the national hatred for all the agents of prerogative rule. That hatred now began to be concentrated upon Wentworth. The dissolution of the Short Parliament, and the belief that he was prepared to coerce England with his Irish troops, had made both the nation at large, and his old colleagues in the Parliament of r628, regard him as the great apostate, and the great enemy of Parliaments, who must at all costs be removed;4 and to whom no law could be given.5 " Pereat qui perdere cuncta festinat; opprimatur ne omnes opprimat"--these words with which Eliot had concluded his speech upon the impeachment of Buckingham exactly expressed the sentiments which the majority of the House of Commons now felt towards Wentworth.

Footnote 1: S.P. Dom. r639-r640 xxii; Gardiner, op. cit. ix 75-76, r25-r16 ; the king asked the Council whether, " if the Parliament should prove as untoward as some have lately been, the lords would not then assist him in such extraordinary ways in the extremity as should be thought fit," and they voted that they would, ibid ix 77.

Footnote 2: S.P. Dom. r639-r640 xiii; ibid 420 ceccliviv r5, a letter from Devonshire in which it is said, " We, in Devonshire, have news of a Parliament, but no man believes it."

Footnote 3: Below 82 n. 2.

Footnote 4: Gardiner, op. cit. ix 127; he complained in his defence that " It hath been my misfortune now, when I am greyheaded, to be charged by the mistakens of the times, who are now so highly bent, that all appears to them to be in the extreme for monarchy, which is not for themselves. Hence it is that designs, words, yea intentions, are brought out for real demonstrations of my misdemeanours; such a multiplying glass is a prejudicate opinion," $ S.T., r465; but it must be admitted that both the mistakes of the court, to which he had largely contributed, and his own acts were the causes of this prejudicate opinion; local jeouleas in Yorkshire arising out of his elevation to the post of President of the Council of the North, and his resolute administration, also helped to bring him down, Reid, the King's Council in the North 404-435, 437-438.

- It is true, we give law to hares and deers because they be be beasts of the chase; it was never accounted either cruelty or foul play to knock foxes and wolves on the head, as they can be found, because these be beasts of prey," St. John's argument before the House of Lords on the bill of attained 3 S.T., r509.

- Sir John Bramson says in his Autobiography (C.S.) 75, " I remember that day the Kinge passed that Act (the Act of Attainder) I came from Westminister Hall with Mr. Mainard (who had binn one of the managers of that tryall against the Earl) now Sir John Mayard, the King's serjeant; he with great joy said, Now wee have done our worke; if wee could not have effected this, wee could have done noething"; for Maynard see below 512-514.

${}^{7}$ Gardener, op. cit. ix 231 and n. 3.

Public Law of Xviith Century

his political faith which he made in his defence to his impeachment shows that his views had been consistent. "The Prerogative of the crown and the propriety of the subject have such mutual relations, this takes protection from that, that foundation and nourishment from this ; and as on the lute, if any one string be too high or too lowly wound up, you have lost the harmony ; so here the excess of prerogative is oppression ; of pretended liberty in the subject, disorder and anarchy. The prerogative must be used as God both His omnipotency, upon extraordinary occasions ; the laws must have place at other times. And yet there must be a prerogative, if there must be extraordinary occasions ; the propriety of the subjects is ever to be maintained, if it go in equal pace with this ; they are fellows and companions that are and ever must be inseparable in a well-governed kingdom ; and no way so fitting, so natural to nourish and entertain both, as the frequent use of Parliaments ; by these a commerce and acquaintance is kept betwist the king and subject. These thoughts have gone along with me these fourteen years of my public employments, and shall, God willing, to my grave : God, his majesty, and my own conscience, yea, and all those who have been most accessory to my inward thoughts and opinions, can bear me witness that I ever did inculcate this--that the happiness of a kingdom consists of a just poize of the king's prerogative and the subject's liberty ; and that things would never go well till they went hand in hand together."1

But how was this "just poize of the king's prerogative and the subject's liberty " to be secured ? Wentworth, and those who thought with him, believed that it could only be secured by making the king the predominant partner in the constitution. Their ideals were high. Their views were in accord with the views held by many eminent statesmen and political thinkers all over Europe. Their policy simply carried to its logical conclusion the developments which had taken place under the Tudors. But they forgot, as many statesmen in many different ages and countries have forgotten, that a policy which may suit one country cannot be transferred in its entirety to another country with a different historical tradition, and that a policy which has had the most excellent results in one set of circumstances may produce the worst results in other circumstances. They did not appreciate the fundamental differences between the English constitution and that of continental states. They did not see that the England they were governing was not the

## 7 The Political Controversies 79

England of the Tudors; and that, consequently, the fact that their policy was a continuance of the Tudor policy was an argument against rather than for its wisdom. In fact, like the high churchmen of the school of Laud with whom they were so closely allied,1 they were a small cultured minority. And, like most cultured minorities, they were so absolutely confident of their intellectual superiority that they considered that opposition could only be the product of obstinate stupidity. Therefore they made no attempt to understand the point of view of their critics, or to realize the practical difficulties of carrying out their political programme. Moreover, they were a minority who commanded the power and patronage of the state. Therefore they gathered round them a number of courtiers who professed devotion to their political programme in order to enrich themselves, without any understanding of their real aims; and thus they burdened their cause with an additional weight of unpopularity. Confident in their political wisdom, and deceived by the self-interested praise of their small circle of supporters, they were blind to the plainest warnings of impending failure. They could not see that, in the first place, they had made a false estimate of the capacity of the king upon whom their whole system hinged; that, in the second place, they had misunderstood the character of the people upon whom they sought to impose their political theories; and that, in the third place, they had exaggerated the power of the government to force them upon an unwilling people. Let us consider the effects of these three obstacles to the success of their policy:--

(i) We have seen that neither James I. nor Charles I. were in the least fitted to take the place alloted to the king under this scheme of prerogative government;3 and that Charles was even less capable of taking such a place than his father. He was so wedded to his political theories, so incapable of seeing merits in his opponents, so ignorant of the strength of the opposition which his policy aroused and of the power of his subjects to make their feelings felt, that he was easily deluded by any one who professed to believe in his political views. Hence he fell into the hands of second or third rate advisers whose chief merit was the faithfulness with which they echoed his sentiments,8 Wentworth--his single capable adviser--he sent to Ireland. Moreover, he was so convinced of the legality of his views, so confident that proof of their legality would bear down all opposition, that he suffered their aims and tendencies to be advertised by the test cases which he permitted to be argued in the courts. He had all thePublic Law of Xviith Century

shortcomings of a lawyer-politician ; for he could make and state a case, and he considered that a technical victory in the courts was a complete answer to all objections.1

Footnote 1: An error into which Wentworth also fell, Strafford Papers ii 6r-62; 388-389; above 60 n. 3.

(ii) The king, therefore, was by reason of his intellect and character wholly unsuited to the task of carrying out this scheme of government. The scheme itself was equally unsuitable to the people for whom it was intended. Parliament and the system of local government had educated the people, and had given them a very definite political theory.2 They had some very distinct views as to their rights and liberties; and they were quick to resent any infringement of them.3 They were quite capable of judging the king's scheme of government by its actual consequences--illegal proclamations, burdensome monopolies, martial law, billeting of soldiers on the people, forced loans, ship money, and imprisonment for those who dared to criticize or resist. And, under these circumstances, it was quite hopeless to attempt to suppress discussion, or to keep the people in ignorance of the powers and privileges of Parliament.4 But the adherents of this scheme of prerogative government could not appreciate these facts. They made, as I have said, the common mistake of supposing that a system which was suitable for one state and in one set of political conditions must be suitable for another state and another set of political conditions. It is a mistake which has frequently been made in these latter days by those who suppose that a Parliament and a constitution is necessarily the best form of government for all states in all places. It was a mistake which, as we have seen,5 Wentworth was likely to make from his experience in Ireland. There he had successfully governed the country according to this system; and his success may well have strengthened both him and the king in the idea that it was the best system for England. They could not see that there was a vast difference between a people who were fast completing their political education and a people who were as yet politically untaught.

## 8 The Political Controversies 81

(iii) The English people not only had some very definite ideas as to the political theory which they wished to see prevail in the English state, they also had the power to make government according to a theory which they disliked almost impossible.1 Here again the adherents of the scheme of prerogative government were wilfully blind. Because they could make a case against the Parliament by exaggerating its faults, because the local officials generally tried to obey the instructions of the Council, they came to a wholly erroneous conclusion as to their power to enforce their policy. Want of money was admitted to be an ever present difficulty; but they had no idea of its fundamental character. The monopolies, patents, and projects, with which they sought to fill the gap between revenue and expenditure,2 merely aggravated a system of corruption against which Wentworth and Laud struggled in vain.3 After a few years of prerogative rule even royalists began to see that Parliament could not be permanently dispensed with. In 1636 Henry Danvers, earl of Danby, who had been an old and faithful servant of the king, told him that he could never hope to get an adequate supply without it; 4 and, when the war with Scotland broke out, when the resistance to ship money began to assume national proportions, a Parliament became inevitable.

Footnote 1: Above 59-66.

Footnote 2: Persons whose claims were unpaid tried to get something by inducing the crown to grant them some monopoly or patent, giving them powers of collecting penalties for the breach of penal status, and of controlling the trade in certain articles; thus S.P. Dom. r635-t636 320, cccxwii 0, Lesley, a gentleman of the Privy Chamber, got authority to see that the Statute of James I. against swearing was enforced and to collect penalties, keeping zs. 6d. in the $\\bigtriangleup$; ibid 429, cccxi 23, the wet nurse to the Duke of York asked for a grant for 31 years of the right to inspect and seal silk stockings and waistcoats for certain fees; ibid 433, cccxxi 32, Cornwallis, His Majesty's servant, wanted a grant of the right to view and mark velumin and parchment; then we have grants to projectors who proposed to improve manoutfactures by licensing the manufacturers, whereby the licensers and the crown would profit, see ibid 203, cccxxi $\\dagger$--the hemp trade; ibid 43-44, cccwii 4-13, various proposals as to the salt trade; see generally ibid Introd, xcwi, xcwi ; Verney Papers (C.S.) r84-r85--it was said that Verney's patent for garbling tobacco 4 was not designed to relieve the trade, or diminish the price of tobacco. It was merely an expedient to put more money in the pockets of certain courtier speculators, and to increase the return to the archequer "; Verney was advised by Mr. Roles (probably Rolle of the Abridjement) that a contemplated patent for the control of hackney coaches was illegal, ibid 223; many such grants were recalled before the summing of the Short Parliament, ibid 223-224.

Footnote 3: Gardner, op. cit, viii 67, 4 Ibid 207.

VOL. V1.--6

## 82 Public law of XVIII century

a supply :1 secretary Vane hoped that it would bring about a reconciliation between the king and his subjects ;2 and we have seen that Wentworth thought this result not impossible. The Short Parliament was summoned, and the nation became aware of its unity and solidarity in opposition to the policy of the king.3 Its proceedings showed that that policy had failed. Still the king refused to see the impossibility of governing without a Parliament, and dissolved it. But the course of the war against Scotland soon proved that it really was impossible. Even the queen advised that Parliament should be summoned.4 When it met, the king found himself face to face with an organized body of which he could not get rid. He found that it was truly representative of the nation, and that it was practically unanimous in its resolve, not only to shatter for ever the system under which the country had been governed for the last eleven years, but also to demand legislation which should make such a system of government for ever impossible.

Footnote 1: S.P. Dom. 1639, 244, ccccovili 65: "He said, 'I pray God send us well to do in this business but I like not the beginning,' The king asked why ? He replied, 'Because you go the wrong way to work,' The king smiled and asked him which was the right way. He answered, 'If you think to make war with your own purse you deceive yourself; the only way to prosper is to go back and call a Parliament, and so should you have money enough, and do your business handsomely.' The king replied, 'There were fools in the last Parliament,' 'True,' said Sir Thomas, 'but there were wise men too, and if you had let them alone the wise men would have been too hard for the fools.'

Footnote 2: He wrote to Sir Thomas Roe, " Although it may seem that there are many reasons which might threaten some rubs and difficulties in the desired success of his Majesty's gracious resolution and intention of meeting with his subjects in Parliament, fixed for the 13th April next, yet there is great hope that by his wisdom all shall be overcome and carried so that so happy a meeting may be followed by a like conclusion to the contentment and satisfaction both of the king and his subjects," ibid 1639-1640 459, cccovili 34.

3: "I made England conscious of the universality of its displeasure," Gardiner, op. cit. ix t18; as Gardiner has said, ibid 78-79, "In the seventeenth century, when Parliament was not sitting our ancestors were a divided people. . The men who grudged the payment of ship money in Buckinghamshire could only learn from uncertain rumour that it was equally unpopular in Essex or in Shropshire.

Footnote 4: S.P. Dom. 1640-1641 x.

To the evolution of the policy and aims of Parliament during this period we must now turn.

(2) The views and theories held by the Parliament's statesmen.

Parliament was strong where the crown was weak. It stood for the personal liberty of the subject, for control over taxation and legislation, for the supremacy of the law over all subjects whether ministers of the crown or not. Consequently it had the support of the majority of the common lawyers, of the country gentleman who, as justices of the peace, controlled the local

## 8 The Political Controversies

government of the country at large, and of the mercantile classes who controlled the government of the larger towns. It was in close touch with the nation, whose ideals it truly represented. On the other hand, it was weak where the crown was strong. The crown, down to the period of the Long Parliament, possessed the initiative: Parliament was generally acting on the defensive against the claims put forward by the crown. The crown represented the ideals of those who wished to see the English government fashioned upon the most advanced continental models: the ideals of the Parliamentary party, like their precedents, looked backwards to the Middle Ages.1 Consequently the crown was ready with a theory of the state which settled the new and burning political question of the day--the whereabouts of the sovereign power in the state: Parliament was slow to understand the nature of the question, and was unable to suggest a workable solution.2

Footnote 1: James told his Parliament in IG10, Parliamentary Debates in IG10 (C.S.) SSS, that, ${}^{A}$Thoe he might be justly offended with some who were somewhat too bold with his government, fetching arguments from former types not to be compared to theise, yet he hoped it sufficient to forewarne they to forbear the like hear-after, lest he have just cause to doubt of they intentions." In Darnel's case (IG27) 3 S.T. at p. 46 Heath in his argument complained that " precedents are now become almost proclamations, for they already run up and down the town"; we have seen, vol. 7433. n. 3, above 24 n. 8, that Whitlocke go into trouble for questioning the validity of a royal commission, and supporting his argument by a reference to Magna Carta; for an attempt to prove that the Star Chamber ordinance as to printers was contrary to Magna Carta, The Petition of Right, and other statutes see S.P. Dom. 1628-1629 538, cili 22; cp. Figgins, Divine Right of Kings (1st ed.) 229, 230.

Footnote 2: Above 67-69; Figgins, op. cit. 231.

Footnote 3: Eliot is a good example of the somewhat loose grip which the Parliamentary statesmen had upon the doctrine of sovereignty; at first sight he seems to grasp it thoroughly--thus in his De Jure Majastatis he says at p. 4, "A Common wealth is nothing else but a right and exercise of sovereign power over their subjects"; and at p. 16, "Laws ought to rule in the City. It is true the king must governe other by them, and must give life unto them.: for whence has law his force, is it not fromPublic law of Xviith century

of Coke's ability hardly saw the necessity. His conservative temperament, and professional pride, led him to the conclusion that the political theory which he found in his medieval law books was good enough for the seventeenth century. The supremacy of the law--which he interpreted to mean the supremacy of the common law--satisfied him, and should satisfy all reasonable men.1

Footnote 1: Vol. v 428, 430, 453-454.

As we have seen, Coke's views as to the supremacy of the law have become a dogna of our modern law of the constitution.2 But, taken by itself, this dogma was not sufficient. The modern territorial state needed a more active sovereign. The royalists found such a sovereign in the king. If, therefore, the need for a sovereign power in the constitution was admitted, and if Parliament denied the sovereignty of the king, it must be prepared to find a substitute. Some of the Parliamentary party, no doubt, appreciated this need. But the first to elaborate a theory to meet it was James Whitelocke.3 In the debate upon impositions in 1610 he propounded a theory of Parliamentary sovereignty, which was the complement of Coke's theory of the supremacy of the law. It has become, like Coke's theory, an accepted principle of our modern constitutional law ; and it is historically important because it is the earliest complete and formal statement of this principle. I shall, therefore, give it in Whitelocke's own words.

Footnote 2: S.T. 482 ; Prothero, Documents 351-352; for a less full account of his speech see Parliamentary Debates in 1610 (C.S.) ro3-top; this account makes it clear that the speech is Whitelocke's, and not, as stated in the State Trials, Yelverton's.

He said,4 " It will be admitted for a rule and ground of state, that in every commonwealth and government there be some rights of sovereignty, _jura majestatis_, which regularly and of common right do belong to the sovereign power of that state ; unless custom or the provisional ordinance of that state do otherwise dispose of them : which sovereign power is _potestas suprema_, a power that can control all other powers, and cannot be controlled but by itself. It will not be denied that the power of imposing hath so great a trust in it, by reason of the mischiefs \[that\] may grow to the commonwealth by the abuses of it, that it hath ever been ranked among those rights of sovereign power.

Footnote 4: For some account of him see ibid 343, 344, 345.

Footnote 5: Z.S.T. 482 ; Prothero, Documents 351-352; for a less full account of his speech see Parliamentary Debates in 1610 (C.S.) ro3-top; this account makes it clear that the speech is Whitelocke's, and not, as stated in the State Trials, Yelverton's.

Majestie ? Yes, all do confese it, Now Majestic cannot compel itselfe; and cannot be both a Soveraging and Subject : ergo, cannot laves domineer over Majestie "; but at p. 175 he says, " We must also take heed of this extreme that we doe not confound royal authority with propriete; as if the Kinge, because he is suprema lord of our lands and goods, might therefore alienen them at his pleasure... For it is a rule in have that rei sue quasious est moderator at arbiter. , A Prince therefore may not alienate either the whole Commonwealth, or any part of it, without the consent of those, who have interest in the propriety, as he hath in the Soveragingty."

Footnote 1: Vol. v 428, 430, 453-454.

Footnote 2: For some account of him see ibid 343, 344, 345.

Footnote 4: Z.S.T. 482 ; Prothero, Documents 351-352; for a less full account of his speech see Parliamentary Debates in 1610 (C.S.) ro3-top; this account makes it clear that the speech is Whitelocke's, and not, as stated in the State Trials, Yelverton's.

## 8 The Political Controversies

Then is there no further question to be made, but to examine where the sovereign power is in this kingdom ; for there is the right of imposition. The sovereign power is agreed to be in the king : but in the king is a two-fold power; the one in Parliament, as he is assisted with the consent of the whole state ; the other out of Parliament, as he is sole and singular, guided merely by his own will. And if of these two powers in the king one is greater than the other, and can direct and control the other, that is _suprema potestas_, the sovereign power, and the other is _subordinata_, it will then be easily proved, that the power of the king in Parliament is greater than his power out of Parliament ; and both rule and control it ; for if the king make a grant by his letters patents out of Parliament, it bindeth him and his successors : he cannot revoke it, nor any of his successors ; but by his power in Parliament he may defeat and avoid it ; and therefore that is the greater power. If a judgment be given in the king's bench, by the king himself, as may be,1 and by the law is intended, a writ of error to reverse this judgment may be used before the king in Parliament. . So you see the appeal is from the king out of Parliament to the king in Parliament."2

Footnote 1: Here Coke disagreed, vol. 1 194, 207 n. 7; vol. 430.

Parliament thus acquired a theory as to the whereabouts of the sovereign power in the constitution which could be opposed to that put forward by the royalists. Both theories start from the premise that the king is sovereign ; and both are elaborated by means of a twofold division of the powers of the king. It is in the character of this division that they are totally dissimilar. The royalist division was based on a division between two different sets of prerogatives possessed by the king--the ordinary and the absolute prerogative. By virtue of his absolute prerogatives, which the king could use when he pleased, he was the sovereign power in the state.3 The basis of the division made by the Parliamentary statesmen was founded on the distinction between prerogatives which the king could exercise in conjunction with Parliament, and those which he could exercise independently of Parliament. It was only when he was acting with Parliament that he was the sovereign power in the state. Though personally

## 86 Public Law of Xviith Century

sovereign, his powers exercised independently of Parliament were subject to the control of his powers acting in conjunction with Parliament. It followed from this theory that Parliament held a position in the state as important as the position held by the king. They occupied different positions, but positions of co-ordinate authority.

It was essentially a lawyer's theory, stated in a legal way, and pointed by legal illustrations. The objection which a royalist might fairly make to it was that, in effect, it left the state with no sovereign at all, unless king and Parliament were in agreement; and that a theory of sovereignty was useless unless it provided for the case of a disagreement. The royalist theory, he would have said, was infinitely superior because it provided for the case of a disagreement. In such a case the king had the last word. On the other hand, we, who can look at the royalist theory in the light of subsequent history, may justly say that, though superior as a theory, it was merely academic, because it was in practice impossible of realisation. It is true that Whitelocke's theory was not workable unless and until Parliament had asserted its position as the predominant partner in the state; but the royalist theory was equally unworkable unless and until the king had proved himself to be definitely stronger than Parliament. Neither theory was capable of realisation so long as king and Parliament stood over against one another as equal, co-ordinate, and opposed powers.

In the earlier years of the seventeenth century Parliament was not fully alive to the fact that, if it was to withstand the crown successfully, it must do something more than act on the defensive, and maintain its powers and privileges. It did not see that it must claim to be the predominant partner in the state. The eleven years of prerogative rule at length made this clear to its leaders; and the Long Parliament made this claim. It was a claim which the king refused to admit; and the result of this refusal was civil war. Parliament was then obliged to put forward a definite claim to be the sovereign power in the state; and, to support it, the privileges of Parliament were extended to an even greater extent than the king had extended his prerogative. Then came the execution of the king, and the various experiments in the manufacture of new constitutions, which mark the Commonwealth period. The Restoration brought back the old constitution with all its old uncertainty as to the whereabouts of the sovereign power. But the problem was one degree nearer solution on the lines marked out by Whitelocke, because it had become clear that Parliament was, if not the strongest power in the state, at least equally as strong as the king. It was clear

## 8 The Political Conroversies 87

that it could not be defied as James I. and Charles I. had defied it. James II attempted to defy it; and the Revolution definitely proved that it was the predominant partner. Whitelocke's theory of Parliamentary sovereignty therefore became the accepted theory of the constitution; and, in the eighteenth century, the growth of the conventions of the constitution made it a workable theory.

In this section we are concerned only with the earlier stages of this development of the theory of Parliamentary government. I shall deal with these earlier stages under the three following heads: (i) the Parliamentary opposition to the crown; (ii) the legislation of the Long Parliament; (iii) the Parliamentary claim to guide the policy of the state by controlling the appointment of the king's ministers.

(i) The Parliamentary opposition to the crown.

We have seen that, in the sixteenth century, Elizabeth's Secretary of State--Sir Thomas Smith--had recognized that the crown in Parliament was the body in which "the most high and absolute power of the realme of Englande" resided.1 We have seen, too, that the English Parliament was the sole survivor of those representative assemblies, which had once existed in many European countries in the Middle Ages;2 that it alone had been able to make good its claim to share with the king the government of the state;3 and that its ability to do so was largely due to the fact that it had always acted in close alliance with the common lawers.4 The lawyers were quite willing to allow to an assembly, in which they were the most influential party, supreme control over the law; they helped it to build up a workable code of procedure; and they saw the vital importance of securing and maintaining the privileges which it needed to fill the position in the state which it claimed--as with their own courts, so with Parliament, it must have the privileges necessary for the exercise of its jurisdiction.5

Footnote 1: Vol. iv 181-r82, 1 Ibid t66-t69.

Footnote 2: Ibid t74-184.

Footnote 3: Ibid t88-t89; vol. ii 430-434-

During the earlier period of the Parliamentary opposition to the Stuart kings the possession of a workable code of procedure was the first condition precedent to the success of that opposition. Without it the House of Commons would have been an unorganized mob opposed to the highly organized forces of the central government. The second condition precedent was the assertion of the privileges needed to enable the House to use its procedure freely. Therefore, if we would understand the manner in which Parliamentary opposition took shape and developedPublic Law of Xviith Century

during this period, we must concentrate our attention, in the first instance, upon these two questions of procedure and privilege.

_Procedure._

I have already spoken of the manner in which the lawyers helped the English Parliament to develope workable rules of procedure, and of the way in which these rules of procedure enabled it to become a useful organ in the government of a modern state. The main outlines of this procedure had become quite distinct in the Tudor period; and, in fact, were intimately related to developments which had begun to take place in the Parliaments of the fourteenth and fifteenth centuries.1 But it is clear that the growth of the Parliamenty opposition during the latter years of Elizabeth's reign, and its still more rapid growth under the first two Stuart kings, were rendering its rules both more detailed and more rigid. It would be quite out of place to attempt a detailed description of these rules; but some account of their main characteristics, and of the effects which this period of constitutional conflict had upon their development is necessary, because we cannot otherwise understand the strength of the opposition which the House of Commons was able to offer to the political views of the king and his supporters.

Footnote 1: Vol. iii 430-434; vol. iv 174-180.

The most striking feature of the procedure of Parliament continued to be the influence exercised by the forms and conceptions of the common law. This influence was perhaps greater in the early seventeenth century than at any other period before or since, because the influence of the lawyers was naturally at its height in an age in which the great political questions of the day were fought out, both in Parliament and in the courts, under the guise of disputed questions of constitutional law; and, like so much else that was fought out and settled in this century, its effects upon Parliamenty procedure have been very permanent. It can be traced in many different directions. Firstly, we have seen that the whole fabric of Parliamenty procedure was regarded as a special law governing Parliament. It was the "lex et consuetudo Parliament," which governed the High Court of Parliament, just as the procedural rules of the common law, the civil law, or the canon law, governed the various courts which exercised jurisdiction in the English state.2 Secondly, this law was a customary law to be ascertained mainly by the precedents to be collected from the records of Parliament.3 It therefore possessed all the flexibility and adaptability of customary law; and this was no small advantage at this time of conflict. Thirdly, it was, like The Political Controversies

the common law itself, a permanent and an independent body of customary law.1 Obviously this conception tended to give Parliament a position in the state as independent and authoritative as the position of the king. Lastly, we have seen that the whole conception of the office of Speaker in relation to this law was and still is strikingly similar to the relation of a judge to the common law.2 During this period the fact that the Speaker had a large control over the business of the House3 made the resemblance still more striking.

Footnote 1: Redlich, Procedure of the House of Commons i1 4, says that, like the rules of common law and equity, "the modern provisions for the conduct of business in Parliament welded together into a collection of rules, rest on the broad basis of the unwritten law, produced by centuries of usage in the two Houses."

Footnote 2: Vol. ii 433 and n. 7.

Footnote 3: Vol. iv 97-98, 176-177; below go,

Footnote 4: Redlich, op. cit. i 43-44- 8 Op, cit, i 45- 8 Ibid 47-48,

Footnote 5: Vol. iv 97-98, 176-177; below go,

Footnote 6: Redlich, op. cit. i 43-44- 8 Op, cit, i 45- 8 Ibid 47-48,

These characteristics of Parliamentary procedure were well marked in the Tudor period, and were probably older than that period. The constitutional conflicts of the seventeenth century produced many fresh developments, of which the following are the most important.

Firstly, in many instances the old customary rules of procedure were found to be too vague. In some of these they were defined and amplified by their application to concrete cases, the particulars of which were entered on the journals. In others new needs were met by new orders.4 Redlich points out that it is during this period that "the order book--the record which contains the decisions of the House as to the conduct of its business --makes its appearance as a regular part of the apparatus of the House";5 and that these orders, "cover almost the whole field of the regulation of business."6 His summary of the results attained by this development shows clearly its leading features. "At this period," he says,7 " it becomes customary to fix a regular time for the sittings, the time chosen being from seven or eight in the morning until midday, and the Speaker is forbiden to bring up any business after the latter hour. The quorum of forty members for the competency of the House for business is settled; the adjournment or termination, as the case may be, of every sitting is made independent of the Speaker and placed, as a matter of principle, under the control of the House. Further, instructions are given to the Speaker as to the arrangement of the day's business, and his powers against irrelevant or discursive speaking are precisely determined. Express prohibitions are framed against arbitrary debates on the order of business for the day, and also against the carrying on of a debate on more than one subject at a time. The principle is also laid down that Public Law of Xviith Century

the orders of the day are to give the amouut which the House is to do, and that this is to be settled by the House itself by means of its orders. And by this time the custom has arisen of making the daily programme known to the House at the beginning of the sitting, after prayers. As a measure of discipline it is ordered that members leaving the House after the first business has been entered upon must pay a fine. The doors of the House are repeatedly locked, and the keys laid on the table, in order to secure the complete secrecy of the proceedings. The mistrust of the courtier Speaker comes out both in the formulation of the principle that the Chair is not entitled to vote, and in the rule that if the Speaker has any communication to make to the House he must be brief: he is to make needful communications to the House, says one of these orders, but is not to try to convince it by copious argumentation. The Speaker is expressly forbidden to give the king access to the bills which had been introduced, as he had done on former occasions. We find, too, at this time the establishment of the great parliamentary principle that no subject matter is to be introduced more than once in a session. Again, the order of forwarding bills to the Lords is determined, and the important rule laid down that at a conference between the Houses the number of delegates sent by the Commons must always be double that sent by the Lords. Finally, we should note, as of great importance, the development which took place in the use of committees and the institution of committees of the whole House."

Secondly, as Redlich's summary shows, the position which the Speaker occupied in the Tudor period of the representative and chairman of the House, of royal nominee, and of messenger between the House and the king,1 was becoming uncomfortable. The scene at the close of the Parliament of 1629, when Speaker Finch was held down in his chair and prevented from obeying the orders of the king to adjourn the House, was the turning point in the history of the office. The behaviour of Speaker Lenthall, when Charles I. made his attempt to arrest the five members, was very different. It is clear that the Speaker was tending to become less the representative of the king and more the representative of the House. When that development is complete in the latter half of the century,2 his functions will tend to become more and more judicial, and he will tend to become more and more an impartial and independent interpreter of the _lex et consuetudo Parliamentti_, subject only to the control of the House.

## 9 The Political Controversies

Thirdly, the rise of an opposition to the crown at the end of Elizabeth's reign, and its rapid growth under the first two Stuarts, leads to the growth of rules designed to protect this opposition. As the opposition had the majority in the Parliaments of the seventeenth century, rules made with this object became more numerous. The rules which were designed to restrict the powers of the Speaker, and to give the house a larger control over its own business are a striking illustration. Hence, as Redlich has pointed out, "'the procedure of the House of Commons, its order of business, was worked out, as the procedure of an opposition, and acquired once for all its fundamental character."1 But rules of procedure invented by an opposition with a view to its own defence and protection, will obviously be designed to stop the rapid progress of business promoted by the power which it is opposing. In the seventeenth century that power was the crown : in the nineteenth century it was the cabinet supported by the majority of the House of Commons. It followed that, until the recent reforms in procedure, "'the forms of the House" were an ample and a sufficient protection to any minority who wished to place obstacles in the way of carrying out the programme of the majority.2

Footnote 1: Op, cit, i 57.

Footnote 2: This point was insisted upon by Speaker Onslow in the eighteenth century, Redlich, op. cit. ii 55-56, and by Cornewall Lewis in the nineteenth ; Lewis said, "the forms of the English House of Commons are avowedly contrived for the protection of minorities; and they are so effectual for their purpose as frequently to defeat the will of the great body of the House, and to enable a few members to resist, at least for a time, a measure desired by the majority," Influence of Authority in Matters of Opinion i51, cited Redlich, op. cit. iii 1gq.

Fourthly, the desire of the opposition not only to criticize the policy of the government, but also to prevent actions which it disliked, led to a very important extension of the committee system. We have seen that at the latter part of Elizabeth's reign the committee system was well developed.3 In the early part of the seventeenth century we can see three further developments. Firstly, we get in some cases committees of the whole House to which money bills, and other bills of great public importance were referred.4 The object of creating such a committee was to give all members a voice in the matter, and at the same time to give an opportunity for the freer debate which was possible in a committee.5 As yet, however, these committees were new, and the procedure was not definitely fixed. Secondly, the practice of creating committees, to which certain subjects were

## 92 Public Law of Xviith Century

referred,1 had given rise to the appointment of certain grand or standing committees, which, by 1628, had become committees of the whole House.2 The number of these committees, and the subjects referred to them, differed at first from Parliament to Parliament.3 Eliot tells us that they were three in number--for religion, grievances, and courts of justice;4 and in 1621 a committee for trade had been added.5 He says,6 " these have their several weeklie days assign'd them, and take general cognisance of all matters, examine all complaints, send for all persons and recordes; all corruptions and injustices of courtes, exactions of their ministers, oppressions of the people, abuses and enormities in the church are respectivlie the subjects of their treaties. These they discuss and handle for the knowledge of the facts; and if they finde them faultie, worthie of a publice judgment, then they are reported to the house wch therupon proceeds to censure and determine them." Thirdly, in addition to these standing committees of the whole House, the committee for privileges had come to be one of the standing committees. This was always a select committee.7 " The intention of that Committee," says Eliot,8 " which is standing and not transient, has a general reflection on their rights, and on all acts of prejudice that impeach them, to examine, to discuss them for the ease and information of the house, that ther they may be punisht, or prevented." Its appointment was always one of the first businesses of the House --" that being thought most necessarie to precede, by which their powers and being did subsist."9 It was because "the powers and being " of the House depended on its jealous assertion of its privileges that this committee was during this period perhaps the most important of all the standing committees. This will be clear when we have examined the large part which privilege plays in the constitutional conflicts of the first half of this century.

Footnote 1: Vol. iv78.

Footnote 2: Redlich, op. cit. ii zro.

Footnote 3: Ibid z08-209.

Footnote 5: Redlich, op. cit. ii zo8.

Footnote 7: Redlich, op. cit. ii zo9 and n. 4.

Footnote 8: Negotium Posterorum i 6o, 6r.

Footnote 9: Ibid.

Footnote 10: Negotium Posterorum i 63.

Footnote 11: Negotium Posterorum i 6o, 6r.

Footnote 12: Negotium Posterorum i 6o, 6r.

Footnote 13: Negotium Posterorum i 63.

Footnote 14: Negotium Posterorum i 63.

Footnote 15: Negotium Posterorum i 63.

Footnote 16: Negotium Posterorum i 63.

Footnote 17: Ibid.

Footnote 18: Negotium Posterorum i 6o, 6r.

Footnote 19: Ibid.

## The Political Controversies 93

between James I. and his Parliaments turned upon questions of privilege, and that these same questions were always in the forefront of the constitutional controversies all through this period.1 We must, therefore, consider in some detail the manner in which Parliament asserted and used its privileges to win for itself the position of a partner with the king in the work of governing the state. We shall see that the whole position of the Parliament was involved in the view which it took, firstly, as to the nature and basis of Parliamentary privilege, secondly, as to the contents of its privileges, and thirdly, as to the use which should be made of them. Let us look at this question of privilege from these three points of view :- (_a) The nature and basis of Parliamentary Privilege._--in James I.'s first Parliament the House of Commons laid it down in clear terms that the privileges of Parliament were as much their " undoubtedly right," as the right of property which every subject had in his lands or goods ; that the House of Commons was a court of record and the highest court in the land ; and that these privileges being necessary for the conduct of the business of the House, they could not be " withheld, denied, or impaired, but with apparent wrong to the whole estate of the realm." 2

Footnote 1: The importance of this question of privilege comes out very clearly in a MS, speech written by Eliot for a Parliament which he did not live to see, Forster, Life of Eliot, ii 445-448; he wrote at p. 446, " Now the whole power and virtue of the Parliament depends upon the privileges thereof. Her ancient franchises and immunities are that which has sustained her. A Parliament without liberty is no Parliament."

Neither James I. nor Charles I. would admit the truth of this view as to the nature and basis of Parliamentary privilege. In 1621 James I. told the House of Commons that in his opinion these privileges were not their ancient and undoubted right, but, on the contrary, were derived " from the grace and permission of himself and his ancestors " ; " for," he said, " most of them grow from precedents, which shows rather a toleration than inheritance." Further, he warned them that if they persisted in trenching upon his prerogative, he would be forced to trench upon their privileges.2 James's view as to the nature and basis of privilege was, in fact, a fair logical deduction from his view as to the positions which the king and Parliament had always occupied, and ought to

## 94 Public Law of Xvith Century

continue to occupy, in relation to one another. According to his view the kingship was primeval ; and it was to royal concessions that Parliament owed its being. Therefore the privileges of Parliament originated, not in any inherent right, but in royal grant. This was a view which the supporters of the royalist party were constantly putting forward in the course of the various disputes between king and Parliament as to their respective powers.1 When so much turned, or was thought to turn, upon the events of early English constitutional history, it was a good debating weapon, because it was an effective reply to the precedents derived from medieval Parliamentary history, which were the main weapons of the Parliamentary statesmen. As applied to Parliamentary privilege it struck at the root of the Parliamentary theory of government. The House of Commons, therefore, lost no time in contradicting it in the most decided way.

Footnote 1: Thus Bacon said in the debate on Impositions in 16r0, 2 S.T. 398,' " If any man think that those more ancient customs were likewise by Act of Parliament, it is but conjecture. . . Acts of Parliament were not much stirring before the Great Charter which was 9 H. 3. And, therefore, I conceive with Mr. Dyer, that whatever was the ancient custom was by the common law. And if by the common law, then what other means can be imagined of the commencement of it but by the king's imposing ?" The contrary view was stated by Pym in 1628--" the law of England whereby the subject was exempted from taxes and loans, not granted by common consent of Parliament, was not introduced by any statute, or by any charter or sanction of prices, but was the ancient and fundamental law, issuing from the first frame and constitution of the kingdom," 3 S.T. 341: Eliton alludes to this theory in Negoium Posterorum, 1 38, " I know the vulgar and common tradition does repute that parliaments had beginning with those charters which were made by H. 3, and that he that granted those liberties to the people gave being unto parilaments, upon which foundation many arguments are laid to impainze the worth of either ; the weakness of that king, the greatness of his barons, the tumulus of that time, which made a necessisite of those grantes, that were not taken but exotted : but truth shall speak for both, how injurious is this slander; how much more antient and authentick their descent."

Their famous Protestation of 1621 runs as follows :2 "The Commons now assembled in Parliament . . do make this protestation following : that the liberties, franchises, privileges, and jurisdictions of Parliament are the ancient and undoubted birthright and inheritance of the subjects of England ; and that the arduous and urgent affairs concerning the king, state, and defence of the realm, and of the church of England, and the maintenance and making of laws, and redress of mischiefs and grievances which daily happen within this realm, are proper subjects and matter of counsel and debate in Parliament : and that in the handling and proceeding of those businesses every member of the House of Parliament hath and of right ought to have freedom of speech, to propound, treat, reason, and bring to conclusion the same : and that the Commons in Parliament have like liberty

## The Political Controversies

and freedom to treat of these matters in such order as in their judgments shall seem fittest : and that every member of the said House hath like freedom from all impeachment, imprisonment, and molestation (other than by censure of the House itself) for or concerning any speaking, reasoning, or declaring of any matter or matters touching the Parliament, or Parliament business ; and that if any of the said members be complained of, and questioned for anything done or said in Parliament, the same is to be showed to the king by the advice and assent of all the Commons assembled in Parliament, before the king give credence to any private information."

James was so enraged at this protestation that he sent for the Journals of the House of Commons, and tore it out with his own hand. Nor was it strange that he should be enraged. He had quite wit enough to perceive the magnitude of the issue. The House was, in effect, claiming a position in the state which would have made it able, whenever it pleased, to render wholly unworkable in practice the theory which he had elaborated as to the ultimate sovereignty of himself and his prerogative ; for, if the view of the Commons as to the nature and basis of Parliamentary privilege was correct, privilege would be placed on a level with prerogative. This we shall see clearly when we have examined the contents of some of those privileges which the Commons considered to be their ancient and undoubted right.

\_(b) The contents of the Privileges of the House.--\_The list of the privileges of Parliament was completed in the early years of the seventeenth century.1 The four most important were the right to decide disputed elections, the right of freedom from arrest, the right of freedom of speech, and the right to decide the order of business in the House. Either the existence or the extent of these four privileges came into question during this period ; and therefore I must say something about each of these controversies.

Footnote 1: For a general account of the privileges of the House of Commons, see Anson, Parliament chap. v SS 4.

The question of the right of the Commons to decide disputed elections arose in the case of _Goodwin v. Fortescue_ in 1604.2 The facts, shortly stated, were as follows : James I. had issued a proclamation in which he had ordered, _inter alia_, that no bankrupts and outlaws should be elected members of Parliament ; that the returns should be sent into Chancery ; and that returns made contrary to the proclamation should be rejected. Goodwin, an outlaw, having been elected for Buckinghamshire, the return was refused. A new election was held, and Fortescue was

## 96 Public Law of Xvith Century

declared to be elected. The Commons interposed, and declared that Goodwin was elected. The king asserted that " the House ought not to meddle with returns, being all made into the Chancery, and are to be corrected or reformed by that court only."1 After a conference with the judges, the House agreed that both returns should be set aside and a new election held.2 But they remained the victors, as their claim to this privilege was not again disputed. Three points in connection with this dispute may be noted. Firstly, in this case the usual positions of king and Parliament were reversed. The medieval precedents were in the king's favour : the modern precedents were in favour of the Commons.3 Secondly, some of the arguments used in the House were legal arguments of the most technical kind. The decision of the House was, it was argued, a judgment in favour of Goodwin. No court could reverse its own judgment, and therefore the House could not recede from its resolution.4 Thirdly, the extreme importance of the privilege was fully realized. If the king was right, it was said, "the free election of the country is taken away, and none shall be chosen but such as shall please the King and Council."5 In this no doubt the House judged correctly ; and, as the constitutional conflict developed, the Parliamentary leaders had cause to be thankful that this victory had been won at its beginning.

Footnote 1: 2 S.T., 98.

Footnote 2: 3 Stubbs, C.H., iii 457-458; Hallam, C.H., i 274; Anson, Parliament (5th ed.) r78-179.

Footnote 4: 4: 2 S.T., too.

Footnote 5: For a full account of this case and the text of the two private Acts passed in connection with it see Prothero, E.H.R. viii 735-740.

That the Commons had the right of freedom from arrest for offences other than those of treason, felony, or breach of the peace, is clear. The questions which arose in _Shiriley's Case_,6 in 1604, were questions, not as to the existence of the privilege, but as to the mode and consequences of its exercise. Shirley had been arrested for debt and confined in the Fleet prison. The Commons began by passing a private bill, by virtue of which the Chancellor was to bring Shirley before him and release him, the warden of the Fleet prison was to be indemnified for the release, and the rights of the creditors were to be saved. But, before this bill had received the royal asset, the Commons decided that it would be derogatory to their privileges to release their member by the help of the Chancellor. They therefore acted on their own authority, and ordered the warden of the Fleet prison to release him. This the warden declined to do, and was therefore committed. The Commons then passed a second private bill identical with the first, except that under it

## 6 The Political Controversies

Shirley was to be released without reference to the Chancellor. Finally, after being confined for some days in "Little Ease " in the Tower, the warden gave way. The Commons then passed a public bill \[1\] which became law, under which a member taken in execution was to be at once released, the gaoler was not to be held liable for such a release, and the creditors were empowered, after the period of privilege had expired, to sue out new writs of execution.

The privilege of freedom of speech was undoubted ; but its extent was doubtful. We have seen that in Elizabeth's reign the queen had strong ideas as to its limitations.\[2\] Members who persisted in discussing forbidden topics, or who protested against royal prohibitions of such discussions, were committed to the Tower. Much more, it might be argued, ought members of Parliament to be liable if they were guilty of seditious speeches and riotous conduct. On the other hand, the majority of the House of Commons considered that no court had any jurisdiction over anything done within the walls of the House. The question came before the courts in the proceedings taken against Eliot, Holles, and Valentine in 1629.\[3\] They were charged with seditious speeches, with a contempt against the king in resisting the adjournment of the House, and with a conspiracy to keep the Speaker by force in the chair.\[4\] All the accused pleaded to the jurisdiction.\[5\] But the court overruled the plea on the ground that the offences of conspiracy and riot were criminal offences which must be punishable in the court of King's Bench,\[6\] as otherwise they might go unpunished.\[7\] Members of Parliament, it was said, had freedom of speech--but in a parliamentary way. They had no privilege to speak seditiously or to behave in a disorderly manner. The defendants refused to plead over, and therefore the court gave judgment against them on a _nihil dicit_. Rather than compromise the privilege of Parliament they

## 98 Public law of Xviith century

remained in prison.1 Their constancy astonished Sir Allen Apsley, the Lieutenant of the Tower. He wrote to Dorchester that "Among all the Parliament men and others that have been prisoners there, he finds none to parallel these prisoners . - they will not so much as petition that they are sorry the King is offended with them."2 Most of them eventually made their submission, and got their release. But, as we have seen, Strode, Valentine, and Eliot made no submission ;3 and Eliot died from the effects of his imprisonment.

Footnote 1: Eliot explained his position at length in his ${}^{\\rm u}$ Apologie for Socrates "; at p. 22 he points out that if he had yielded, " All the secrets of the Senate . must be subject to the Judges; the most intimate counsells of that conclave obnoxious to their erasure."

Footnote 2: S.P. Dom. t629-t631, 83, cl roi. ${}^{\\rm a}$ Above 39.

Footnote 3: Above 30.

The way in which this case was brought before the court is a very good instance of the skill with which the crown lawyers confused the issues in order to get a favourable decision.4 There is no doubt that, in so far as the court decided that it could hold the defendants' liable for words spoken in the House, it was wrong. No doubt Elizabeth had imprisoned members for this cause;5 but no court of common law had ruled that imprisonment for this cause was legal ; and Strode's Act 6 was really decisive that it was not legal.7 On the other hand, there is no doubt that, in so far as the court ruled that it had jurisdiction over crimes committed in the House, it was right.8 When this decision was reversed by the House of Lords in 1668, one of the causes of error assigned was the fact that the speaking of seditious words and the assault on the Speaker were made the subject of one judgment, when in fact there were two separate causes of action on which two separate judgments should have been given ; because, even if the assault on the Speaker was cognizable by the court, the speaking of seditious words was not.9

Footnote 4: Above 30.

Footnote 5: SS 2 provided that, "Sutes, accusementes, condemnensions, excucions, fynes, americimetes, punysshmentes, correcrocions, grievances, charges, and imposicions, put or had or hereafter to be put or hadte unto or upon the said Richard, and to every other of the person or persons afore specified, that now be of this present parliament, or that of any Parliament hereafter shalle for any bill, sebyng, reasonyng, or declaring of any mater or maters concernyng the parliament to be commented and treated of, be utterly voyd and of none effect."

Footnote 6: SS 3.5.7, at p. 33.2.

Footnote 8: SS 4.2.10 Above 94-95.

Footnote 9: SS 5.7.4, at p. 33.2.

Footnote 10: Above 94-95.

The right to decide the order of business in the House was expressly claimed by the House in 1621; 10 and there can be no doubt that, from an early date, it had exercised this privilege as a part of its general right to control its internal proceedings. An important practical application of the rule was the principle that

## The Political Controversies

redress of grievances must come before supply.1 This principle was established in the first years of the fifteenth century by a reform in the procedure of the House;2 and in fact this whole question of the order of business is as much a question of procedure as of privilege. It illustrates very well both the interdependence of these two topics, and the need for both an adequate procedure and adequate privileges in the contest of the House of Commons with the crown.3 No doubt the fact that the Speaker, who had a large control over the order of business, was a servant of the crown as well as of the House,4 tended to obscure the limits of this privilege. The riotous scene at the close of the Parliament in 1629 sufficiently illustrates this. It was the insistence on this privilege, and the consequent refusal to vote supplies before peace was made with Scotland and grievances were redressed, that was the chief cause of the dissolution of the Short Parliament in 1640.5 From the meeting of the Long Parliament onwards, the control by the House of Commons of its order of business has been absolute.

Footnote 1: The principle was negatived by Henry IV., Stubbs, C.H. iii 28r, citing Rot., Parl. iii 458, z Hy. IV. no. 23; but, as Stubbs says, ibid 282, " It is probable that the point was really secured by the practice, almost immediately adopted, of delaying the grant till the last day of the session, by which time no doubt the really important petitions had received their answer, and at which time they were enrolled"; see Eliot's speech in 1628 on the importance of maintaining this principle, Forster, Life of Eliot ii 18-2o.

Footnote 2: See last note.

Footnote 3: Eliot, Negonium Posterorum ii g2, reports Glanville as saying " that it was the prerogative of kings to call parliaments at their pleasure, but in counterpoise of that their ancestors had erected the privilege for them themselves to treat of what business they should pleasure"; for another report of Glanville's speech see Commons Debates in 1626 (C.S.) tr14.

Footnote 4: Vol. iv 97-98, 176-177.

Footnote 5: Vol. iv 97-98, 176-177.

Footnote 6: Parliament i47-148.

Footnote 7: In point of fact the crown was trying to go rather beyond the Elizabeth precedents in wholly denying the initiative to the House of Commons; while the Commons were certainly going beyond those precedents in the manner in which they asserted their right to the initiative on all topics, vol. iv 88-99, 96-97, 179-18o.

These two last-mentioned privileges were of the most vital importance to the success of the Parliamentary opposition. As Anson has pointed out,6 in the privilege of freedom of speech there was involved not merely a question of " latitude of discussion," but also of the "'initiative in legislation and deliberation." " The crown maintained and the House denied that the Commons were summoned merely to vote such sums as were asked of them, to formulate or to approve legislation or topics of legislation submitted to them, and to give an opinion on matters of policy if, and only if, they were asked for one."7 Moreover, as we shall now see, the curtailment of the privilege of freedom of speech in the manner contended for by Charles I., and the denial of the right to decide the order of business, would have

## 100 Public law of Xviith century

deprived the House of the power to criticize the government effectively, and to take the measures necessary to force the government to take notice of that criticism.1

Footnote 1: Eliot said in a speech in the Parliament of 1624 (printed in Negotium Posterorum i x30) " For the privileges of Parliament they have been such and soe extended, as neither detract from the honor of the king nor lessen his authoritic, but conduce to the liberite of this place, that we may here freely treate and discourse for the publique good of the kingdom, which I take to be a maine base and prop whereby it doth subsist."

\_(c) The use made by Parliament of its Privileges.--\_The use which the House of Commons made of these two privileges shows that without them it would have been almost impossible to offer an effective opposition to the crown. The privilege of deciding the order of business enabled the House to obstruct. It could decline to do anything till its grievances were redressed. The privilege of freedom of speech enabled it to criticize the conduct of the government and of its agents, and to suggest changes and reforms. And there is no doubt that the growth of the committee system made this criticism very much more effective and more searching than it had ever been before. One of the charges which Charles I. made against the Commons, in his declaration of 1629,2 was the extension of their privileges by the establishment of standing committees.3 He complained that "there are so many chairs erected to make enquiry upon all sorts of men, where complaints of all sorts are entertained "; that young lawyers sitting there decried the opinion of the judges, and maintained that the resolutions of the House were binding upon them; and, last and worst, that they have sent for and examined the attorney-general, the treasurer, chancellor, and barons of the exchequer, some of the judges, and other officials, for matters done in the course of their respective duties, for which they were in no way accountable to the House of Commons. "Under pretence of privilege and freedom of speech, they take liberty to declare against all authority of Council and Courts at their pleasure. . . Their drift was to break, by this means, through all respects and ligaments of government, and to erect an universal overswaying power to themselves, which belongs only to us, and not to them."4

## The Political Controversies 101

In these developments of the machinery and procedure of the House, and in the consequent extensions of its privileges, Charles recognized, as he could hardly fail to do, the hand of the common lawyers. In fact, the alliance between the common lawyers and the leaders of the Parliamentary opposition had at no period been closer; and at no period had it been more fruitful of results. From the king's point of view, the most distasteful of these results was the manner in which these developments in the machinery and procedure of the House, and these extensions of privilege, had been combined with the central doctrine of the common lawyers--the supremacy of the law over all subjects alike from the highest to the lowest.1 The king himself was not subject to the law. He could do no wrong. "I know how to add sovereign to his person," said Pym in 1628, "but not to his power."2 But his subjects, the House of Commons held, could do wrong, and if they committed wrongs, whether in the course of their employment or not, they could be made legally liable.2 The command or instruction of the king could not protect them. If the king really had given such commands or instructions, he must have been deceived. Therefore such an excuse, even if true, merely aggravated the offence. The guilty servant had committed the offence, whether instructed to do so or not, and was liable for his act.4 If the law were otherwise, argued Eliot, all public servants would escape. If, not only the king but also all his servants were immune from prosecution, as the king contended, no public servant could be brought to judgment.5 But if the king'sFootnote 1: See Ref. \[11\] for a discussion of the main results of this paper.

### Public law of XVITH CENTURY

servants were subject to the law for their unlawful acts, the House had every right to censore them, and to impeach them. And it is quite clear that by the new machinery of the standing committees, and with the help of the privilege of absolute freedom of speech claimed by the House, it was possible to collect easily and quickly the evidence upon which a censor or an impeachment could be grounded.

To prove the legal liability of the humbler servants of the crown, such as sheriffs and constables, for their wrongful acts, there was abundant authority, and a continuous practice. To prove the legal liability of the chief ministers of the crown to impeachment and censore in Parliament there was also abundant medieval authority; but though the rule that they were liable to the ordinary law and the ordinary courts is implicit in this liability to impeachment, it would have been difficult to point to a case in which the inference had been drawn. The large powers, which the king had in the Middle Ages of stopping litigation which affected his interests, prevented the formation of precedents.1 Moreover, during the sixteenth century, this liability to impeachment had fallen into the background. The responsibility of the ministers of the crown had come to be regarded as a responsibility to the king, whose servants they were, and not to the law. It was thought by many that liability to the ordinary courts and the ordinary law was quite incompatible with orderly government in a modern state. The king's servants should be subject, as they were abroad, to the jurisdiction of the king himself, and not to the ordinary law. We have seen that both James I. and Charles I. held this view.2 It was one of the most important results of the alliance between the common lawyers and the Parliamentary opposition that this medieval principle of liability to the law was resuscitated, pushed to its logical conclusions, and applied even to the highest ministers of the state. Just as the Parliamentary statesmen had evolved a theory of Parliamentary sovereignty for the English state, in opposition to the theory of royal sovereignty which was spreading all over Europe;3 so they evolved a theory of ministerial responsibility to the law, in opposition to those systems of administrative law which were elsewhere springing up. This theory of ministerial responsibility, like the Parliament The Political Controversies 103

mentary theory of sovereignty, had its weak side. It meant a less strict control, a weaker discipline. On the other hand, it encouraged independence and self-reliance. It was the best of all securities for the strict observance of the law; and, in that age, to secure that the highest officials of the state strictly observed the law, was to secure the nation against the gradual introduction of royal absolutism.

It is clear, then, that the Parliamentary opposition down to 1629 was essentially a legal opposition. It did not aim at change. It aimed only at securing the observance of the law, interpreted as its leaders interpreted it, and the punishment of those who had broken it. It recognized that both the king (who was always spoken of with the greatest respect), and Parliament, had important functions in the state; and it aimed at delimiting their respective spheres of action, and securing for them liberty of action within those spheres.1 Its logical culmination and conclusion was the Petition of Right. That document embodied the methods and ideals of this stage of the Parliamentary opposition. It enacted nothing new. It merely set out the law in the sense in which the opposition understood it; it set out the points in which the law had been infringed; and it enacted that there should be no such infringements in future. The law was to govern. There was to be no place for any other authority even in an emergency.2

Footnote 1: Eliot said in the Parliament of 1624, Negotium Posterorum i 130, " Wee cannot but remember the anti antieqnions held of those assemblies, and how happie there effects have beene unto this kingdom; how like a Sanetuarie they have been ever to the subjects, how like a magazine to the prices: the prices here for the most part granting such laws and reformacons as were convenable for the necessities and welfare of theire Subjects, and the Subjects, to reciprocal the affecons of their prices, often making there attribucons larger than was expected "; and again, ibid x36, " Our whole stories seems but a continued instance of this by the Acts of Parliament ever expressing the wisedome and excellencies of our Kinges, for whose soever be the labour, the honor still reflects on them, and the reputation onile beares their names "1"; cp. the Monarchie of the Man ii 76-a " the counsel of a Senate and consent of subjects does not impaceli the principles of Monarchie; it gives authority and reputation to their acts, and \[does\] not detract the honor of the king"; cp. Pym's argument in Manwaring's Case 3 S.T. at pp. 346-347.

The work of this phase of the Parliamentary opposition had considerable merits, and equally considerable defects.

The first and by no means the least considerable of its merits was the fact that it improved the mechanism of the House of Commons. The House was thereby fitted, not only to take its place amongst the organs of the government of a modern state, but also, in the future, to take the position of predominant partner among those organs of government.3

Footnote 3: Vol. v 450-454.

S Secondly, the influence of Public Law of Xviith Century

the lawyers tended to prevent the proposals of rash projects of reform, which, as the experiences of the Commonwealth were to show,1 would have alienated the nation. It made, therefore, for continuity of constitutional development. It is easy to see why this was so. The lawyers naturally represented the programme of the Parliamentary opposition as simply a desire for the observance of the common law as determined by precedent. Precedents, they held, " were the life and soul of Parliaments." 2 The royalist party who were, as we have seen, the progressive party, declined to adhere slavishly to precedent. Precedents, they considered, should be used with discretion.3 No doubt the precedents quoted by the Parliamentary statesmen were sometimes insensibly modified in the course of their application to modern facts; but they were not consciously modified. Obviously, therefore, this temper of mind made for a development which was slow, but which was therefore sure, because it did not go beyond the wishes or the intelligence of the nation. Thirdly, as a result, it educated the nation. The frequent collisions with the king, the debates to which they gave rise, the frequent dissolutions and consequent elections, all helped to define the issues in dispute between king and Parliament, and to teach the nation the true nature and meaning of the constitutional controversy. The nation thus acquired a political creed which was something very much more definite than the old vague desire for the observance of Magna Carta and the rules of the common law.4 It was exactly this definite creed which was needed to counteract the effect of the rival creed of the royalist party. Fourthly, and consequently, the House of Commons began to attract, both amongst its own members and amongst the nation at large, a personal loyalty which, in the last century, had, for the most part, been the exclusive possession of the crown. It is for this reason that we see, during this period, the rise of a new type of statesman.

Footnote 1: Below 149-161, 471-423.

Footnote 2: Litteoton's speech in the Parliament of 1625, Forster, Life of Eliot 255-256, as reported in Negotium Posterorum ii 96.

Footnote 3: Sir Humphrey May, to whom Littleton replied, had said, " Let meo man dispise the presidents of antiquite; noe man adore them. Though they are venerable yet they are no gods. Examples are strong arguments, being proper, but times alter, and with them of their reasons. Everie parliament, as each man, must be wise with his owne wisidone, not his father's. A dramme of present wisdome is more precious than mountains of that which was practis'd in ould times," Negotium Posterorum ii 84.

Footnote 4: Vol. v 435-435; above 59-66.

Before the reign of Charles I, the statesmen who had filled a large place in the national life had been the servants of the crown, holding one or more of the great offices in the state. It was in the reign of Charles I, that the leaders of the Parliamentary The Political Controversies

opposition began to fill an almost equally large place. During the early years of the reign, the man who thus gained a prominent position, simply because he was a great Parliament man, was Sir John Eliot.1 He was, as Gardiner has said,2 an idealist. He idealized the House of Commons, just as Wentworth, in his later years, idealized the crown. He had the same exaggerated feeling of respect for the privileges of the House of Commons3 as Wentworth had for the prerogative of the crown. " None have gone about to break Parliaments," he said in his last speech in the House of Commons, "but in the end Parliaments have broken them. The examples of all ages confirm it. The fates in that hold correspondence with justice. No man was ever blasted in this House but a curse fell upon him."4 Both men revered the Tudor monarchy, and both were loyal to the king;5 but, while Eliot emphasized the importance of the House of Commons in the constitution, Wentworth emphasized the importance of the crown. Both laid down their lives for their ideals. Eliot was a martyr in the cause of political liberty:6 Wentworth in the cause of a strong, modern, efficient government based on the prerogative.7 Both were great orators because they had ideals to inspire them; but Eliot was the greater of the two. He was Wentworth's superior in moral earnestness;8 and he combined this moral earnestness with a wide reading in the classics and in ancient and modern history,9 and an untiring industry.10 His moral earnestness, his learning, and his industry made him the leader of the House of Commons, and by far the greatest orator of his day, and

### Public Law of Xvith Century

almost of his century. In that century of oratory two speeches stand out--Eliot's on the occasion of Buckingham's impeachment, and Halifax's on the Exclusion Bill.1 Halifax's speech we only know by hearsay, of Eliot's we have a full report. Nothing can surpass its fire, its terse eloquence, and its burning indignation. The man who could make such a speech upon such a topic could expect no mercy from such a king as Charles. As he truly said in his Apology for Socrates, he died a lingering death for the service of the people, to preserve for them and their posterity the rights and liberties which had been handed down to them from their fathers.2

Footnote 1: Below 187 and n. S.

Footnote 2: "I will not enumerat his passions to tell you what he suffered; what he suffer'd in his fortune, what he suffered in his person, in his liberty, in his life: to be made poor and naked; to be imprisoned and restrain'd; may not to be at all; not to have the proper use of anything, not to have knowledge of Societies; not to have beinge and existence; his faculties confiscat; his frendles deebart'd his presence; himselfe deprived the world; I will not tell you of all this suffer'd by your Socrates, all this suffer'd for your service. ... for your children, your posteritie, to preserve your rights and liberties that as they were the inheritance of your fathers, from you likewise they may again devolve to them." p. 30. Redlich, op. cit. i 44, says quite truly that in the seventeenth century, " "the new spirit of the House of Commons born of its resistance to absolutism, did, on questions of procedure as well as in other matters, often put new wine into old bottles "; for instances see above 9f, 92, too.

The tragedy of Eliot's death in the Tower, and the eleven years of prerogative rule, drew attention to the defects of the purely legal opposition to the crown, which had characterized the first stage of the constitutional conflict. These defects can be summarized as follows:--Firstly, the Parliamentary leaders did not and could not quite consistently carry out the theory upon which they based their opposition. They professed to desire no change in the law--simply the clear ascertainment and carrying out of the existing law. But it was quite impossible to apply mediaeval rules in the seventeenth century with no modifications ; and, on many points, these mediaeval rules gave no clear answer to the problems which they were expected to solve. No doubt the Parliamentary statesmen interpreted them in such a way that they gave a solution ; but the Parliamentary interpretation was often quite as strained as the king's. Both parties were seeking to adapt mediaeval rules to a modern environment. Both read into these rules meanings which, historically, were ridiculous.3 Secondly, the view of the Parliamentary statesmen that they were not changing the law, but merely maintaining it, though not wholly true in fact, exercised an unfortunate influence upon their political programme. They represented themselves as the advocates of a very medieval body of law, which was, they asserted, fully capable of providing forThe Political Controversies 107

all the needs of a modern state. Hence they refused to consider any lessons that might be drawn from the experience of foreign countries--" Some worthy members of this house," said Coke in 1628, " have spoken of foreign states, which I conceive to be a foreign speech."1 They almost refused to admit a discretionary power in the executive to take measures for the security or well-being of the kingdom--" our rule in this plain commonwealth of ours," said Whitelocke in 1610, " is _opertet neminem esse sapientiorem legibus_--if there be an inconvenience, it is fitter to have it removed by a lawful means, than by an unlawful";2 and we have seen that the Commons would not allow any sort of saving clause, designed to give the king a discretionary power, to be inserted in the Petition of Right.3 After events were to show that martial law, restricted as the House considered it should be restricted, by the medieval statutes, was wholly inadequate for the government of a modern army.4 Thirdly, this same point of view had induced the Commons in 1628, not to accept Wentworth's plan of a new law, but on the contrary to give the Petition of Right a declaratory form.5 But this made it easy for the king and his advisers to evade it. " There was no new thing granted," said Finch, C.J., in the _Case of Ship Money_, " but only the ancient liberties confirmed."6 This argument had been foreshadowed in the king's speech at the prorogation of 1628,7 and was constantly urged by the royalist lawyers.8

Footnote 1: The profession of both houses in the time of hammering this Petition, was no way to trench upon my Prerogative, saying, they had neither intention or power to hurt it. Therefore it must needs be conceived, that I have granted no new, but only confirmed the ancient liberties of my subjects," ibid at p. 23I.

Footnote 2: See Heath's argument in Strode's Case (1629), ibid at p. 28I; above 39 n. 6.

Footnote 3: The Grand Remonstrance SS 15.

It was becoming clear that the House of Commons must do something more than oppose the policy of the king by means of remonstrances, impeachments, and appeals to the existing law. Their declarations of right were insufficient--Eliot's blood still cried for vengeance.9 New laws must be passed to curtail the royal power, and to make it impossible for the future to rule without a Parliament. The eleven years of prerogative rule made all these facts very evident to a large number of the leaders of the Parliamentary opposition. They were the decisive facts which guided the policy of Pym in his leadership of the Long Parliament during its first years ; and it was under his leadership that the legislation, which effectively carried out this new programme, was passed.

## 108 Public Law of Xviith Century

**(ii)**: The legislation of the Long Parliament

Eliot was England's first Parliamentary statesman ; but he was not a Parliamentary statesman of the modern type. Like the other Parliamentary leaders of his period, he wished to see a revival of the Tudor constitution, with the sphere of Parliamentary control somewhat enlarged. In his speeches he always glorified and idealized the constitution as it existed under Elizabeth.1 There is no hint in his speeches or writings that he desired to see the Parliament, much less the House of Commons, the ruler of the state. Pym, in his earlier days, had the same views : "The form of government," he said in 1628,2 "'is that which both actuate and dispose every part and member of a state to the common good ; and as those parts give strength and ornament to the whole, so they receive from it again strength and protection in their several stations and degrees. If this mutual relation and intercourse be broken, the whole frame will quickly be dissolved. . It is true that time must needs bring some alterations " . but "those commonwealths have been most durable and perpetual, which have often reformed and re-composed themselves according to their first institution and ordinance." And, even in 1640, in his speech at the opening of the Short Parliament,3 in which he detailed the religious and political grievances of the nation, we see no departure from this point of view. He attacked no individual minister, but concluded simply by proposing that the House of Lords should be asked to join with the House of Commons in searching out the causes of these grievances, and in petitioning the king for their redress. As Clarendon remarks,4 it would have been well if Pym, and otherThe Political Controversies 109 .

leaders of the opposition who thought with him, had been given office before the Long Parliament assembled.

The dissolution of the Short Parliament showed that this moderate policy was neither possible nor expedient. St. John was right in his view that it was wholly inadequate.1 Pym and all the other leaders of the opposition were now agreed that Parliament must pursue a more active policy, that it must get rid of the agents of prerogative rule, and that it must pass legislation which would make such rule impossible.

Footnote 1: "Oliver St. John understood better what the facts of the case really were, when he said that all was well, and that it must be worse before it could be better ; and that this Parliament would never have done what was necessary to be done," Gardiner, op. cit. ix i18.

Footnote 2: S.P. Dom. 1640-164 vi.

Footnote 3: $,$Gardiner points out, op cit, ix 223, that Pym did not at once become the leader of the House "i" the sense in which he became its leader after some months of stormy conflict. . . But he was securely established as the directing influence of a knot of men who constituted the inspiring force of the Parliamentary Opposition."

Footnote 4: Above 77; below i15-17.

Footnote 5: $,$Gardiner, op. cit. iv 243.

Fym had helped to secure the summoning of the Long Parliament. He had had a hand in drafting the petition of the twelve peers for the summoning of a Parliament;2 and that petition had led, first to the assembly of the Great Council of the peers at York, and then to the assembly of the Long Parliament. He soon became the leader of the House of Commons,2 and as its leader was mainly responsible for shaping its policy. This was no easy task. In the first place, it was necessary to keep the House together and to direct its energies in the right direction. Though at first it was practically unanimous, it might easily, amidst the multitude of religious and political grievances, have fitttered away its energies. In the second place, it was necessary to provide against the danger of violence from without. The various plots which the royalist party set on foot to get rid of the leaders of the House of Commons, or to coerce the Parliament,4 must be sifted, and measures taken to frustrate them. That Pym accomplished both these objects is due both to his intellectual qualities, and to the manner in which those qualities developed under the stress of the new position in which he was placed.

Footnote 2: $,$S.P. Dom. 1640-164 vi.

Footnote 3: $,$Gardiner points out, op cit, ix 223, that Pym did not at once become the leader of the House "i" the sense in which he became its leader after some months of stormy conflict. . . But he was securely established as the directing influence of a knot of men who constituted the inspiring force of the Parliamentary Opposition."

Footnote 4: Above 77; below i15-17.

Pym had not, like Eliot, the temperament of an idealist : on the contrary he had the temperament of a practical man of business. He was a born organizer. In 1621 he had proposed an association for the defence of the king and the execution of the laws against the Roman Catholes ;5 he organized the machinery by which Parliament, at the outbreak of the war, took over the

## 110 Public Law of Xviith Century

executive government; and he played a large part in organizing the Parliamentary forces, and later in organizing the alliance with the Scottish Presbyterians.11 "Honourable combination," says Gardiner, "with men of good will to the cause which they reverenced was Pym's defence against the shifty politics of Charles;"2 and he points out that it was from this idea of "mutual association in defence of a principle as better than mutual association in defence of a person," that "party government would eventually grow,"3 Pym had held a post in the Exchequer;4 and this gave him the practical acquaintance with finance which was essential to the leader of an assembly which controlled absolutely the finance of the country.5 His Parliamentary experience had enabled him to acquire a thorough knowledge of the forms of the House of Commons;6 and this knowledge made him "a consummate Parliamentary tactician."7 Seeing that this knowledge was necessary both to guide the House of Commons, and to defend it from external enemies, its possession was an advantage of the highest importance, and its skilful use demanded real statesmanship. Such knowledge was not then, as it is too often in modern times, a mere cloak for the absence of all the qualities that go to make a statesman. His control of the House was strengthened by the fact that he shared the prejudices and feelings of the majority of its members. Like all effective orators he won applause largely because he could give eloquent and pointed utterance to the inarticulate feelings and aspirations of his audience.8 In addition he had the tact which all successful leaders of men must possess.9

Footnote 11: See Gardiner's article in Dict. Nat. Biog,

Footnote 12: History of the Civil War i 258,

Footnote 13: Ibid z57.

Footnote 14: Clarendon, History of the Rebellion 74

Footnote 15: When the resources of the City began to fail, John Pym, who was by nature a distinguished financier, developed a novel source of supply by rendering the Excite a general impost, whereas formerly it had been confined to a few commodities, and those chiefly of foreign import," S.P. Dom, Introd, xili; and see ibid z48+485, cececxvii Sept. 11th.

Footnote 16: Clarendon, op. cit. 53, 74.

Footnote 17: Badir z49, " He was strong with the strength, and weak with the weakness of the generation around him. But if his ideas were the ideas of ordinary men he gave to them a brighter lustre as they passed through his calm and thoughtful intellect. Men learned to hang upon his lips with delight as they heard him converting their crudities into well-reasoned arguments."

Footnote 18: Below II5-117.

It was natural that a man of this kind, at the centre of affairs during this exciting period, should be educated by the quick movement of events. He knew all about the royalist plots and schemes.10 He knew therefore the dangers to which Parliamentary government was exposed. It was therefore only to be expected that, when the early unanimity of the Long ParliamentThe Political Controversies 111

disappeared, and when the king began to gather a party together, he should side with the more radical section which carried the Grand Remonstrance, and insisted upon a large control over the executive government.1 And he was the more inclined to this side because he was a Puritan.2 He would have liked to see the church settled by the House of Commons upon a broad Protestant basis.3 To this solution the supporters of the church of England were wholly opposed. They united with those who were opposed to taking from the king all control over the executive ; and consequently, as we shall see,4 the House of Commons was split into two parties. It was this division of the House of Commons and the country into two parties that made Pym the first Parliamentary statesman of the modern type ; for it made him a party leader depending for his power on his tact, his eloquence, his knowledge of Parliamentary procedure, his business-like qualities, and his power both to outline a programme and to enforce upon his party the discipline needed to carry it through.

Footnote 1: Below I19-I20.

Footnote 2: See the Grand Remonstrance SSs 183-r85.

Footnote 4: Below I2I-I22, I35-I38.

Footnote 7: S.P. Dom. 164-I-1643, Introd. vili.

The first Act of the Long Parliament was, as we have seen, to secure its own safety by impeaching Stafford.6 Then it fell upon some of the other agents of prerogative rule--Laud, Windebank, Finch, and some of the other judges. Thus it took a long step towards finally settling the doctrine, for which the Parliamentary leaders had always contended, that all ministers were answerable to the law for their illegal acts.6 While the practice, introduced about this period, that all royal acts must be counter-signed by a secretary of state, ensured that, for these acts, there would always be a minister who could be made thus responsible.7

Footnote 6: S.P. Dom. 164-I-1643, Introd. vili.

Side by side with these prosecutions the constructive work of the Long Parliament was going on ; and it is not too much to say that some of the statutes regularly passed by it, that is, some of those statutes which had the assent of all three branches of the legislature, embody some of the most important principles of our modern public law, and still influence the form and contents of that law. One or two other statutes are of a somewhat more temporary importance, and are chiefly interesting as illustrating some of the acts of the crown which were generally regarded as abuses. I shall therefore deal with this legislation under these two heads.

Footnote 7: S.P. Dom. 164-I-1643, Introd. vili.

### Public Law of Xviith Century

_Status of Permanent Importance._

Among these statutes we must place first those which finally secured to the House of Commons the absolute control over taxation direct and indirect. The Act1 which granted tunnage and poundage to the king for two months, enacted and declared, "That it is and hath been the ancient right of the subjects of this realm that no subsidy impost custom or other charge whatsoever ought or may be laid or imposed upon any merchandize exported or imported by subjects denizens or aliens without common consent in Parliament"; and the penalty of a preamuire was imposed on any officer who attempted to collect these duties after the expiry of the period mentioned in the Act. These provisions were repeated in the various Acts which from time to time continued these duties.2

Footnote 1: https://www.cds.org/

Next in importance comes the Act which abolished the Court of Star Chamber, and the power of the Council of Wales, the Council of the North, the Duchy Court of Lancaster, and the Court of Exchequer of the county Palatine of Chester, to exercise a like jurisdiction.3 As we have seen,4 it in effect deprived the Priy Council, and the various courts derived from the Priy Council, of all extraordinary jurisdiction in England. If, as in the case of the Star Chamber and the Council of the North, this extraordinary jurisdiction was all the jurisdiction that the court possessed, the court itself necessarily disappeared; but if, as in the case of the Council of Wales, these courts exercised in addition ordinary common law or equitable jurisdiction, they continued to exist for the purpose of exercising that jurisdiction.5 Thus the most formidable rivals to the common law courts were removed, and the common law finally asserted its supremacy not only over the private, but also over the public law of the state. This Act further safeguarded the liberty of the subject by reversing the decision in _Darnef's Case.6_ It provided that persons imprisoned contrary to the Act should be entitled to their writs of habeas corpus,7 and that these provisions should apply to persons committed by the command of the king himself or his Council.8 The Act which abolished the Court of High Commission 9 removed a court which had often used its powers to persecute theological opponents, who were also the political opponents of the royalist theories of government.10 It also deprived the ecclesiastical courts of the power to inflict any penalty or corporal punishment,

## 11 The Political Controversies 113

or to administer the _ex officio_ oath.1 These latter clauses were repealed in 1661;2 but the Act marks the beginning of the rapid decay of the temporal jurisdiction of the ecclesiastical courts, and the consequent increase of the jurisdiction of the common law courts over many matters in which these courts had formerly exercised a concurrent jurisdiction.3 Both these Acts expressly prohibited the Crown from setting up courts with a like jurisdiction.4 Charles spoke truly when he said that these two Acts "altered in a great measure those fundamental laws, ecclesiastical and civil, which many of my best governing predecessors have established."5

Footnote 1: 16 Charles L: c. xi SS a; $ Below r65 ; vol. 61r. SS $ Ibid 62o-62r.

Footnote 4: 16 Charles I. c. xi SS a; $ Ibid 6,

Footnote 5: 16 Charles II. c. xi; $ below r66.

It was quite obvious that the eleven years of prerogative rule had been made possible by the fact that the king's prerogative to summon, prorogue, or dissolve Parliaments was absolute. To control this prerogative the Triennial Act 6 was passed. It provided in substance that no longer than three years should elapse between the dissolution of one Parliament and the holding of another;7 that if a Parliament was continued by prorogation or adjournment for three years, it should be dissolved, and the Chancellor should issue writs for a new Parliament;8 that if the Chancellor did not issue the writs the sheriffs should hold the elections, and if the sheriffs did not hold the elections the electors should proceed to an election;9 and that no Parliament was to be dissolved or prorogued within fifty days of its meeting without its own consent.10 We shall see that this Act was repealed after the Restoration ;11 but the Act repealing it provided that no longer interval than three years should elapse between the dissolution of one Parliament and the summoning of another. It was not, however, till after the Revolution had finally established the supremacy of Parliament, that the object at which the framers of the Act of 1641 directly aimed was attained less directly but more certainly.

Footnote 1: 16 Charles L: c. xi SS a; $ Below r65 ; vol. 61r. SS $ Ibid 62o-62r.

Footnote 4: 16 Charles I. c. xi SS a; $ Ibid 6,

Footnote 5: 16 Charles II. c. xi; $ below r66.

_Status not of Permanent Importance._

These Acts were directed against the abuse of certain old prerogatives to which the king had had recourse in his efforts to get money. Among them we may mention the Act declaring ship money illegal, annul

## 114 Public Law of Xvith Century

_Money_, and ordering the Petition of Right to be put in execution;1 the Act settling the boundaries of the Forests;2 and the Act abolishing distraints of knighthood.3

Footnote 1: 16 Charles I. c. T4, 2 \*Ibid c. 16; vol. i ro5, 3 \*I6 Charles I. c. z0, \*Ibid c. 7, \*Below r16, \*See the preamble to the Act; and cp. Gooth, English Democratic Ideas ro6; it may be noted, however, that the House of Lords tried in vain to limit the duration of the Act to two years, Firth, The House of Lords during the Civil War q1.

None of these statutes can be described as revolutionary. They were measures which were obviously necessary, either to strengthen the position of Parliament, or to guard against admitted abuses; and they commanded the general assent of the nation. There was one statute, however, which proved to be distinctly revolutionary in character. That was the Act which provided that the Parliament then sitting should not be dissolved or prorogued except by Act of Parliament, nor should either House be adjourned except by Act of Parliament or by its own order.4 The reasons for passing it were partly the difficulty of raising money on credit if there was no security for the continuance of the Parliament, partly the fear, induced by the discovery of the Army Plot,5 that it might be dissolved before peace was made with Scotland, justice executed on delinquents, and grievances redressed. These considerations were so pressing that the essentially revolutionary character of the Act was not sufficiently perceived.6

Footnote 1: 16 Charles I. c. T4, 2 \*Ibid c. 16; vol. i ro5, 3 \*I6 Charles I. c. z0, \*Ibid c. 7, \*Below r16, \*See the preamble to the Act; and cp. Gooth, English Democratic Ideas ro6; it may be noted, however, that the House of Lords tried in vain to limit the duration of the Act to two years, Firth, The House of Lords during the Civil War q1.

It was during the first year of this Parliament's life, when the House of Commons was practically unanimous, that it enacted the statutes which have proved to be of permanent importance. At the end of the August, 1641, the House of Commons adjourned. Its resolution to adjourn was, as Gardiner has pointed out,7 the last time that it acted as a united whole. Consequently, in the ensuing sessions, its legislative output was much diminished. The only statute calling for notice is that which deprived the archbishops and bishops of their seats in the House of Lords, and prohibited persons in Holy Orders from being members of Parliament, privy councillors, justices of the peace, of over and terminer and of gaol delivery, or of exercising any temporal authority.8 The reason for passing the Act was partly the unpopularity of the church of England as administered by Laud,9 partly the manner in which he had introduced churchmen into high offices of state.10 A bill to the same effect had previously been rejected

## 11 The Political Controversies 115

by the House of Lords ;1 and, though the House ultimately passed this bill it certainly did not command anything like universal assent.2 It was repealed in 1661.3

Footnote 1: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 2: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 3: The author is grateful to the anonymous referee for his comments on the manuscript.

We shall see that when this Act was passed religious differences had divided the House of Commons into two parties.4 This division rendered all constructive legislation impossible, and led in no long period to the outbreak of civil law. It was necessarily fatal to the realization of the aspirations of the majority of the House of Commons to guide the policy of the state, by acquiring, in a constitutional way, a control over the appointment of the king's ministers.

Footnote 4: The author is grateful to the anonymous referee for his comments on the manuscript.

(iii) The Parliamentary claim to guide the policy of the state by controlling the appointment of the king's ministers.

The leaders of the Long Parliament, while pursuing their work of prosecuting the king's ministers, and passing the legislation designed to secure their own position and that of future Parliaments, were constantly being alarmed by projects, and rumours of projects, to break up their sessions by violence, or to override their authority by similar means. We have seen that Strafford had intended to make the relations maintained by the leaders of the Parliamentary opposition with the Scotch the basis for a charge of high treason against these leaders ; and that they had only parried this blow by getting in their own blow at Strafford first.5 Charles himself would not have been averse to using foreign help against his own subjects if it could have been procured.6 There was an Irish army in existence, suspected by the Commons of being largely Papist in character, which had been got together to subdue the Scotch, who were the natural allies of the Parliament, the cause for its assembly, and the best security for its continuance ; and this army the king refused to disband.7 The queen was negotiating with the Pope for foreignPublic Law of Xviith Century

aid.1She also encouraged the Army Plot--a plot to induce the English army in the North, which was discontented by reason of the irregularity with which it was paid, to intervene on behalf of the king;2 and the king was cognisant of it.3 The plot was betrayed by Goring; and Pym was informed of the discovery.4 Though at first he did not reveal to the Commons all he knew,5 they were aware that plots had been formed;6 and they naturally connected them with the refusal of the king to disband the Irish army, and with their standing suspicions of the designs of the queen and the Roman Catholics. It was not surprising, therefore, that they pressed forward the bill of attainder against Strafford; and that the Lords, in consequence of the revelations which Pym at length made as to the extent of the Army Plot, were induced to pass it.7

Footnote 1: The author is grateful to the referees for their comments.

Footnote 2: Iblid 370-377; the soldiers were discontented by reason of the irregularity with which they were paid, and there was some feeling in favour of Strafford, the Fairfax correspondence (Ed. Johnson), ii 65-66, 101-102, 200, 207.

Footnote 3: Gardiner, op, cit. ix 314. 4 lbid 317. 5 Ibid 351. 4 Ibid 351. 5 Gardiner, Constitutional Documents 155. 6 Gardiner, op, cit. ix 356. 7 Ibid 362-363--"False as the rumour of the French attack was, it did no wrong to the Queen. If she had had her way a French force would by this time have been possession of Portsmouth. The popular instinct rightly fixed on her as the author of the mischief;" cp. Gardiner, Cromwell's Place in History zq-2r, 25, 26. 8 Charles, writing to the queen in zq6, said, in reference to Strafford's death, " I must confess to my shame and grief that heretofore I have, for public respects-- The Political Controversies 117

A new series of perils began with Charles's journey to Scotland, and his intrigues with the Scotch. He hoped to conciliate the Scotch, to get evidence in Scotland of the intrigues of the leaders of the House of Commons with the Scotch, and to induce the English army in the North to support him.1 In self-defence the House of Commons appointed commissioners, of whom Hampton was one, to report to the House upon the happenings in Scotland.2 In spite of the concessions made by Charles, he did not get the support he expected. Argyle, who had the nation at his back, would not lend himself to any such intrigues.3 But it was not difficult to engineer a plot, of the usual Scotch sort,4 to kidnap and perhaps murder Argyle.5 This plot, known as " The Incident," failed ; and, since Pym had been kept well informed by the Parliamentary commissioners, he was able to give the House definite information as to the intrigues with the Northern army. Obviously, events in Scotland were highly suspicious; and naturally fresh Catholic plots were suspected.6 Then came the outbreak of the Irish Rebellion.7 The fall of Strafford had destroyed efficient government in Ireland. Charles held out hopes to the Roman Catholics, and pursued his usual " wait and see " policy. The new Lord Lieutenant " loitered in England with no sufficient excuse."8 The natural result was rebellion. But the House of Commons did not, and could hardly be expected to understand the true cause of the outbreak. They could hardly be expected to see that their own act in destroying Strafford had largely contributed to it. To their minds it was merely a conclusive proof of the correctness of their views as to the results of the encouragement given to the Roman Catholics by the queen, and by the slackness in the administration of the penal laws.9

Footnote 1: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 2: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 3: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 4: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 5: The author is grateful to the anonymous referee for the support of the National Science Foundation.

Footnote 6: The author is grateful to the anonymous referee for the support of the National Science Foundation.

It was little wonder that the leaders of the House of Commons, who had lived in this atmosphere of fear and suspicion, should have come to the conclusion that they would never be safe unless they could get a large control over the conduct of the government. Clearly, they could only get this control by restricting the king's free choice of his ministers.

## 118 Public Law of Xviith Century

Ministers, in other words, must be responsible not only to the king but also to the House of Commons ; and ministers whom the House of Commons could not trust must be dismissed. It was only by the adoption of this expedient that the House could be freed from those fears and suspicions which had weighed upon it from the first moments of its assembling. It was only by thus in effect asserting a right to be the predominant partner in the state, that it could secure the constitutional liberties which it had won.

This expedient had been foreshadowed in 1629.1 In the stormy scenes which accompanied the closing of that session Coryton had said, " I shall move that his Majesty may be moved from this House to advise with his grave and learned Council, and to leave out those that have been here noted to be ill councillors both for the king and kingdom." The leaders of the Long Parliament had gradually been driven by the force of events to see that this was the only path of safety. Among the Ten Propositions 2 which, in June 1641, both the Lords and the Commons addressed to the king, was a demand that he should remove from his counsels all those counsellors who had been active in furthering courses contrary to the religion, liberty, and good government of the kingdom, and in stirring up division between him and his people; and that he should " take into his Council for managing of the great affairs of this kingdom such officers and counsellors as his people and Parliament may have just cause to confide in." To this demand the king returned an absolute refusal.3 But the intrigues of the king in Scotland, the second army plot, and the outbreak of the Irish rebellion, again brought it to the front. When the English and Scotch Parliaments were asked to act together in the suppression of the Irish rebellion, Pym moved that the House should refuse unless the king removed his evil counsellors, and accepted those of whom the House approved.4 This motion was violently opposed and ultimately rejected.5 But he succeeded in carrying a similar motion to the effect that, if the king would not appoint ministers approved by Parliament, the House would be forced to adopt a method of defending Ireland which would secure it from the de

## 11 The Political Controversies 119

signs on foot against it ; and with that object, would entrust its contributions to persons upon whom it could rely.1

Footnote 1: Gardner, op. cit. x 56-57.

The Commons were clearly grasping at the control of the government ; and this policy, though justified by the intrigues of Charles, was arousing a considerable opposition. Their leaders resolved to gain support by appealing to the judgment of the people.2 It was with this object that the Grand Remonstrance 3 was pressed on. It contained a long and detailed account of all the illegal and arbitrary acts of Charles I.'s reign, of the favour shown to Arminians and Papists, and of the tyranny of the bishops and the Court of High Commission. It went on to recount the beneficial effects of the proceedings and legislation of the Parliament, the large sums of money voted to the king, the intrigues of those hostile to the Parliament, and the slanders against its measures and designs. It concluded by stating the policy which it intended to pursue. A synod of divines was to reform religion. A competent maintenance was to be provided for preaching ministers. The universities were to be reformed. Effectual protection against the Papists was to be provided. The king was to employ only such ministers at home and abroad, as the Parliament " may have cause to confide in."4

Footnote 1: Gardner, op. cit. x 56-57.

Footnote 2: Ibid 59.

Footnote 3: Gardner, Constitutional Documents 202-232.

Footnote 4: Grand Remonstrance SS 197.

It was this demand for control over the appointment of the king's ministers, and the explanations by which it was accompanied, which showed, more clearly than had ever yet been shown, that the object of the Commons was to control the policy of the state. " It may often fall out," it was said,5 "that the Commons may have just cause to take exceptions at some men for being councillors, and yet not charge those men with crimes, for there be grounds of diffidence which lie not in proof. There are others, which though they may be proved, yet are not legally criminal. To be a known favourer of Papists, or to have been very forward in defending or countenancing some great offenders questioned in Parliament ; or to speak contemptuously of either Houses of Parliament or Parliamentary proceedings. Or such as are factors or agents for any foreign prince of another religion ; such are justly suspected to get councillors' places, or any other of trust concerning public employment for money ; for all these and divers others we may have great reason to be earnest with His Majesty, not to put his great affairs into such hands, though we may be unwilling to proceed against them in any legal way of charge or impeachment." It is clear that Parliament has abandoned its old position of simply seeking to secure the ob

## 120 Public Law of Xviith Century

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## 11 The Political Controversies 121

of Commons were disliked by some of the lawyers. Several of them voted with the minority against Strafford's attainder.1 Many more considered that the aim of the House of Commons to take the control over the policy of the state from the king was wholly unconstitutional.2 Many suspected and disliked the mob violence, which the majority in the House of Commons did not discourage when it was directed to silencing or overawing its opponents.3 In the third place, the most important of all the causes which broke up the early unanimity of the Parliament was the religious question.

Footnote 1: Gardiner, op. cit. ix 338. ${}^{\\sharp}$ Ibid x 57:59.

${}^{\\sharp}$ The mob in r64r got into Westminster Hall and attempted to assault the bishops, but the Commons refused to take action--" God forbid," said Pym, " the House of Commons should proceed in any way to dishearten people to obtain their just desires in such a way," Ibid xr8.

${}^{\\sharp}$ Another thing," says May,4 "which seemed to trouble some who were not bad men, was that extreme licence which the common people, almost from the very beginning of the Parliament, took to themselves, of reforming, without authority, order, or decency; rudely disturbing church service whilst the common prayer was reading; tearing those books, surplices, and such things: which the Parliament (either too much busied in variety of affairs, or perchance too much fearing the loss of a considerable party, whom they might have need of against a real and potent enemy) did not so far restrain as was expected or desired by those men. To this was added those daily reports of ridiculous conventicles and preachings made by tradesmen, and illiterate people of the lowest rank, to the scandal and offence of many," In fact it was becoming more and more obvious that those who were concerned in these breaches of the law had the sympathy of the majority of the House of Commons. The legislation directed against the bishops and the ecclesiastical courts, the still more radical proposals of those who wished to abolish episopacy root and branch,6 and the policy outlined in the Grand Remonstrance, all pointed in the same direction. It was clear therefore that, if the House of Commons succeeded in getting complete control over the policy of the state, sweeping changes would be made in church as well as in state. For this reason those who disliked the new aims of the House of Commons on political and constitutional grounds combined with those who disliked them on religious grounds. A party therefore arose who supported Church and King in opposition to the Puritan majority of the House of Commons.6Public Law of Xviith Century

Eliot had remarked in his Negotium Posterorum 1 that, " It is observable in that House, as their whole storie gives it, that when ever that mention does breake of the fears or dangers in religion, and the increase of poperie, their affections are much stir'd, and whatsoever is obnoxious in the state, it then is reckoned as an incident to that." Religion still had the same power in the House of Commons, and so political agreement disappeared in the face of religious disagreement--everything else became merely "an incident to " that disagreement. But we can understand neither the nature of this disagreement, nor its results upon the political situation, unless we glance briefly at the history of those religious differences between the Stuart kings and a large number of their subjects, which, all through this period, had accompanied and aggravated the political differences.

Footnote 1: 69.

_The Religious Aspect of the Political Controversies_

The Elizabeth settlement of the English Church seemed both to the Roman Catholics and to Protestants of the school of Calvin to be an illogical compromise. To the Roman Catholics the Church of England seemed to be an essentially Protestant and heretic church. The royal had been substituted for a papal supremacy, and some of the most distinctive doctrines of the Roman church had been discarded.2 To the Calvinists the Church of England seemed to have retained very many of the distinctive marks of Roman Catholicism. Its formularies, its ceremonies, and its episopal government, seemed to them to be reminiscent of Rome.3 But the majority of the English people did not belong to either of these two extreme parties ; and so the Elizabeth settlement, supported by the crown, stood its ground, and gradually gained popularity amongst the nation at large.4

## 11 The Religious Controversies 128

tant respects distinctively Protestant in character, meant in the sixteenth century, that it was allied with the more progressive ideas of the age; and, at the same time, the fact that it had retained many of the formalities, much of the ritual, and much of the governmental machinery of the past, saved it from the narrowness of the Calvinistic and other Protestant systems which were built up directly and solely upon the inspired words of the Bible. Its composite character preserved for it an element of continuity with the earlier ages of ecclesiastical history and tradition. This element of continuity helped men like Cranmer and Parker, Jewel and Hooker, to make its theology more learned and more literate than the narrower systems which discarded all connection with the great theologians of the past; and, on that account, it has proved to be more adaptable than other Protestant churches to the new needs and the new ideas of future ages.1 In fact the Tudor settlement of the English church was the counterpart of the Tudor settlement of the English state. In the church, as in the state, the transition from mediaeval to modern had been effected with the minimum of change. But necessarily the breach of continuity was more apparent in the church than in the state. The substitution of the royal for the papal supremacy, and the rejection of many of the distinctive dogmas of the Roman church, were changes more violent than any which had occurred in the state. But the formularies of the English church, its ritual, its government, and the machinery of its courts, preserved a good deal of the spirit of the mediaeval past, and are closely parallel to that large mediaeval element which was retained by the law and institutions of the state.

Footnote 1: Gardner, History of England i 38-39; cp. Gardiner, Cromwell's place in History 6, 7.

That such a settlement as this was on the whole popular with the majority of English people is clear from the Millenary Petition presented to James I. in 1603.2 That Petition did not ask, as some reformers earlier in Elizabeth's reign had asked, for the abolition of episcopacy and the substitution of a Presbyterian system.3 It only asked for a change in certain definite points in the existing system--that certain ceremonies should be disused, certain reforms made in the liturgy, certain abuses removed, some relaxation in the rule that the beneficed clergy and candidates for ordination must subscribe to the whole of the Prayer Book.4 It is probable that if some of these conPublic Law of Xviith Century

and if the church had been wisely administered in the spirit of Hooker, the element of religious controversy would not have bulked so large in the constitutional quarrels of the seventeenth century. It that element could have been eliminated the constitutional controversies would have lost a large part of their bitterness; and, even if a revolution had been needed to settle them, that revolution would not have been preceded by a rebellion and a royalist restoration.

But, even in Elizabeth's reign, it was fairly clear that, to attain this result, the supreme governor of the church needed very considerable diplomatic gifts. The long struggle with Spain had left a legacy of fear and hatred of Roman Catholicism. No doubt the execution of Mary Queen of Scots and the defeat of the Armada had removed the dangers of a forcible counter-reformation; but intrigue and plot were still active, and the Protestant cause was still fighting for its life on the Continent. Thus the dread of Rome did not diminish; and those who thus dreaded Rome naturally tended to embrace the system which was most definitely opposed to it. As we have seen, the Calvinistic theology and the Presbyterian discipline created the force which saved the Reformation.1 It is not surprising, therefore, that, though the demand for the establishment of the Presbyterian system had died down, many were attracted by the Calvinistic theology and forms of worship, and desired, if not to get rid of, at least to lay less stress upon, the importance of those doctrines and ceremonies in the church which conflicted with that theology and those forms. Many also were attracted by this theology and these forms of worship, because they felt that it was in and through a church of this kind they could attain to a purer morality, and a more real Christianity.2 It was these men who formed the backbone of that Parliamentary opposition which had arisen in the later years of Elizabeth's reign. They cemented that alliance between religious and political opposition which was to have so large an effect in the seventeenth century. On the other hand, a party in the Church of England was arising which dissented from the strict theology of Calvin, and laid stress upon the spiritual help afforded by ritual and ceremonies.3 They naturally insisted upon the strict observance of the Act of Uniformity; and they had the support of the law and the queen.

Footnote 1: Vol. iv 19; above 7; cp. Gardiner, History of England i 3r-32; v 355.

Footnote 2: Ibid i iii 241-242.

Two very different systems of theology, two very different conceptions of worship, were beginning to confront one another. The Calvinist theology was harder, more rigid, and less liberal

## 12 The Religious Controversies 125

than the Anglican theology. In the Calvinist scheme of worship the greatest stress was laid upon the preaching of the Word. In the Anglican scheme it was the sacraments and the rites and ceremonies of the church which were emphasized. "Men were to be schooled into piety by habitual attendance upon the services of the church. At these services nothing unseemly or disorderly was to be permitted, by which the mind of the worshipper might be distracted. Uniformity of liturgical forms, and uniformity of ecclesiastical ceremony, would impress upon every Englishman the lessons of devotion, which were to sustain him in the midst of the distractions of the world. This uniformity was to be preserved by the exercise of the authority of the bishops who were divinely appointed for its maintenance."1 It is doubtful whether even Elizabeth, if she had lived longer, would have dealt wisely with this situation. She was very jealous of the smallest interferences with her royal supremacy. In her eyes the government of the church was not a matter with which Parliament had any right to interfere.3 Any concession to Protestant nonconformists she regarded as politically dangerous. She had not forgotten Knox's views on the " Regiment of Women"; nor was she blind to the consequences of permitting any approach to the principles of a church which, like the Roman Church, claimed to exercise an authority in opposition to and even over that of the state.3 The political views expressed by Knox, Buchanan and Melville were, from her point of view, an abundant justification for resisting any attempt to make concessions to the Protestant nonconformists.4 And yet if these men, who were thoroughly loyal to the crown, were not to be driven into permanent opposition, it was clearly politic to make some concessions. If the church of England was to be a really national church, it was necessary to do something to conciliate an important minority. It was clear that no concessions could be expected from Elizabeth or from the bishops; but would not James see the necessity? The whole future of James's dynasty depended upon the manner in which he answered this question.

Public Law of Xviith Century

Great expectations from many various sides were aroused by James's accession to the English throne. The Roman Catholics hoped that he would not forget that his mother was a Catholic, and thought that he was determined to grant them some measure of toleration.1 The Protestant nonconformists perhaps expected something from a king who was a Presbyterian. On the other hand, the orthodox Anglicans were soon assured that, whatever else James might do, he would certainly not try to establish the Presbyterian church in England.2 It soon became quite obvious that the feeling of the nation was wholly against any toleration to the Roman Catholics.3 But it was equally obvious that the nation would have acquiesced in some concessions to the Protestant nonconformists; and upon this question James was advised by the ablest man of the day. For his instruction Bacon wrote a paper " Touching the better pacification and edification of the church of England."4 He pointed out that the church, like the state, needed periodic reformation;5 and that, though doctrine was "immutable," yet "for rites and ceremonies and for the particular hierarchies, policies, and disciplines of church, they be left at large."6 Then he recommended certain reforms which might be made in the episcopal government of the church;7 in the liturgy;8 in various ceremonies, such as confirmation, private baptisms, the ring in marriage, the wearing of cap and surplice;9 and in the extent of the subscription required from candidates for ordination and the holders of benefices.10 He advocated certain changes designed to secure a "preaching ministry,"11 to put a stop to excommunication for trivial causes,12 to deal with the evils of non-residence and pluralities,13 and to the provision of an adequate maintenance for ministers.14 It is safe to say that, if James had dealt with these points at the Hampton Court conference 15 in the manner suggested by Bacon, he would have strengthened both the church of England and his own dynasty.

Footnote 11: Gardiner, History of England i 97-100.

Footnote 12: Ibid r43-r45.

Footnote 13: Ibid r43-r45.

Footnote 14: I would only ask why the civil state should be purged and restored by good and wholesome laws made every third or fourth year in parliaments assembled, devising remedies as fast as time breedtch mischieds, and contriariwise the ecclesisical state should still continue upon the dregs of time, and receive no alteration now for these five and forty years and more," ibid rsq.

Footnote 15: Ibid rsq.

Footnote 16: See 2 S.T. 69 for a report of the proceedings at the conference.

Footnote 17: Ibid rsq.

Footnote 18: See 2 S.T. 69 for a report of the proceedings at the conference.

Footnote 19:

## The Religious Controversies 127

Unfortunately James was guided by the views, not of Bacon, but of Cecil. Cecil held strongly the view of Elizabeth that any departure from strict uniformity in favour of nonconformists was dangerous both to the church and to the monarchy.\[1\] Though a certain number of reforms,\[2\] and certain changes in and additions to the Prayer Book,\[3\] were made as a result of the Hampton Court Conference, no change satisfactory to the Protestant nonconformistswas attempted, and no relaxation was made in the subscription required from candidates for ordination and the holders of benefices. As a result many ministers were ejected from their livings, and James was deaf to all pleadings for some relaxation of the strict rule.\[4\]

James had thrown away his opportunity; and it was perhaps inevitable that he should do so. Intellectually, he had far more in common with the learned, literate, and courtly English prelates than with the narrow dogmatism of the Calvinist ministers.\[5\] Though strict uniformity of doctrine and discipline was enforced in the church, its dogmas tended rather to the more liberal Arminian than to the more rigid Calvinistic views.\[6\] They allowed more scope for individual differences of opinion; and James was quite sufficiently learned to favour, within limits, an amount of tolerance for divergent opinions upon speculative points which no Calvinistic church would allow.\[7\] Politically, the agreement between James and the leaders of the English church was even more striking. His views as to his divine right and as to his position in the state,\[8\] were accepted by them as obvious truths, and maintained as against the anti-monarchial views both of Presbyterians and Papists.\[9\] The very mention of the word Presbytery at the Hampton Court Conference had aroused his anger. " A Scottish Presbytery," he said, "agreeth as well with a monarchy as God and the devil."\[10\] He was quick to learn fromFootnote 1: The _Hersyterians_ are the first and second, and the second, and the third, are the first and second, and the third.

Footnote 2: The _Hersyterians_ are the first and second, and the third, are the first and second, and the third.

Footnote 3: The _Hersyterians_ are the first and second, and the third, are the first and second, and the third.

### Public Law of Xviith Century

the words and conduct of the courty divines of the English church that episcopacy-was the best support of what he called a "free monarchy." 1 In fact, just as the English churchmen were receptive to the more liberal theological ideas which opposed the stern and narrow Calvinistic theology,4 so they were receptive to the new political ideas which seemed to show that a well organized modern state could not exist unless the power of the king was maintained and strengthened.5 It followed that they were far less likely than Calvinistic ministers to protest against a foreign policy which involved alliances with Roman Catholic states, or against the relaxation, for diplomatic reasons, of the penal laws against the Roman Catholics. As James's foreign policy developed, the opposition which it encountered from the Protestant prepossessions of his subjects, tended to cement his alliance with the party in the church of England which was opposed to the Protestant nonconformists, and to destroy all hopes that any concessions would be made to them.

Footnote 1: How they (the Presbyterians) used the poor lady, my mother, is not unknown, and how they dealt with me in my minority. I thus apply it. My Lords, the Bishops, I may (this he said putting his hand to his hat) thank you that these men plead thus for my Supremacy. They think they cannot make their party good against you, but by appealing unto it : but if once you were out, and they in, I know what would become of my Supremacy, for No Bishop, No King," 2 S.T. 85.

Footnote 2: Above 723.

Footnote 3: Above 723.

Footnote 4: See Gardiner, History of England i 47-48.

Conversely, just as there was a natural affinity between James and the orthodox Anglican, so there was an equally natural affinity between the Protestant nonconformists and the political opponents to James's view of his own position in the state. In the first place, these Protestant nonconformists were Calvinists ; and the theology of Calvin taught men to be no respecters of persons. They and their Maker stood face to face without priestly intermediaries, and their relations were governed only by the word of God as contained in the Bible.5 These ideas harmonized with the temper of the political opponents of the king, who held that all men were equally subject to the supremacy of the law of the land, and to it alone ; and that they were quite capable of spelling out for themselves the provisions of that law from the literal words of medieval textbooks and records. In the second place, these Protestant nonconformists were quite incapable of appreciating the strong points in the Anglican theology--they ascribed its opposition to distinctively Calvinistic doctrines, and its adherence to rites and ceremonies, to leanings in favour of popery. Similarly the political opponents of the king could not appreciate the strength of the royal

## 12 The Religious Controversies

view as to the position of the prerogative in the state.1 They considered that his adheren' merely wished to establish a royal tyranny for their own selfish ends. Thus those who wished to see reforms in the church, which would, as they thought; restore the church government and the theology of the first ages of Christianity, became the close allies of those who wished to see reforms in the state, which would, as they thought, restore that medieval constitution in which Parliament had played so great a part. Thus the opposition to those dogmas and practices in the church which offended the Calvinist, united with the opposition to those political theories of the crown which offended the supporters of Parliament. Protests against Arminianism and Popery were coupled with protests against arbitrary taxation, interferences with the liberty of the subject, and breaches of privilege. It is true that there is no necessary connection between the theories at the root of Calvinistic Protestantism and Parliamentary government,2 any more than there is between the theories at the root of high Anglican tenets and prerogative government,3 But, in the seventeenth century, the movement of political and religious forces, and the intellectual affinities of the chief actors, had consolidated and strengthened the alliances of these two political and religious creeds.

Footnote 1: Above 69.

Footnote 2: Gardiner, Cromwell's Place in History, 9, 10.

Footnote 3: Figgis, Divine Right of Kings, 202-203,

Footnote 4: Gardiner, History of England i78-I80; cp, the Apology of the Commons, Prothero, Documents 290, 291.

Footnote 5: Gardiner, op cit. SS84-S5, iii; cp. Petitions of the Commons, Prothero, Documents, 300-301, 302-305.

Footnote 6: Gardiner, History of England iii 251-252.

Footnote 7: S.P. Dom. 1679-I623 436+437, cxxxi 85--none below the degree of Dean to enter on the deep points of election or universal redemption, etc. ..., none to presume to limit the power of jurisdiction of Sovereigm Princes, or the conditions between them and their people, otherwise than as contained in the homily on obedience; none to fall into invectives against either Puritans or Papists, but merely to defend the doctrine and discipline of the church.

VOL. VI. $\\longrightarrow$

### Public Law of Xviith Century

place of constantly increasing importance in the debates of the House of Commons. Pym in 1621 made his name as a debater by his speech in the committee on religion, in which he proposed an oath of association for the defence of the king's person, and the execution of laws made for the establishment of religion.1

Footnote 1: Gardner, History of England iv 242-243.

In the religious, even more than in the political world, the existing causes of controversy were aggravated by the character and intellect of Charles I. Just as he had very definite views as to the position which he as king ought to occupy in the state, so he had equally definite views as to the character of the English church and its position in the state. The High Anglican theory of the church was being rapidly developed. Its theory and ritual appealed to his literary and artistic sensibilities ; and with the political theory of Anglican divines, such as Manwaring,2 he was in perfect agreement. There is no doubt that the church of England had no more faithful disciple than Charles. Both theologically and politically he regarded the church as a main buttress of the throne;3 and even in his utmost extremity he could never be brought to abandon it.4 But he had married a Roman Catholic wife; and, as a consequence, the laws against the Roman Catholics were not executed with that rigidity which the Protestant party demanded. Hence the suspicion of collusion between the Anglican bishops and the church of Rome increased. The growth of elaboration in the ritual of the church of England, the manner in which theologians like Montague5 emphasized the differences between the English and the other reformed churches, the favour with which divines who preached these doctrines were received at court, all seemed to point to a settled design to depress the Protestant religion. The distinction between Catholic and Roman Catholic was not then and is not now readily perceived by the Protestant mind.6

Footnote 1: See the proceedings in Parliament against him (1621) 3 S.T., 335.

Footnote 2: Below 136 n. 3; and next note.

Footnote 3: He wrote in 1646, "How can I keep my innocency which you, with so much reason oft and earnestly persuade me to preserve, if I should abandon the Church? Believe it, religion is the only firm foundation of all powers; that cast loose or depraved, no government can be stable; for when was there ever obedience when religion did not teach it? But, which is most of all, how can we expect God's blessing if we relinquish His Church? And I am most confident that religion will much sooner regain the militus than the militia will religion," cited Gardner, History of the Civil War iii r36.

Footnote 4: See Proceedings in Parliament against him (1625) 2 S.T., 2257; cp. Gardiner, History of England v 357-355.

Footnote 5: The incapacity to perceive this distinction was later to prove fatal to Laud; he and his school were supposed to have been somehow implicated in Pophish plots in Ireland and elsewhere, Gardiner, History of the Civil War i z46; no doubt this particular deduction was fostered by the shifty diplomacy of Charles, which thus recoiled unexpectedly on his own head.

### Public Law of Xviith Century

place of constantly increasing importance in the debates of the House of Commons. Pym in 1621 made his name as a debater by his speech in the committee on religion, in which he proposed an oath of association for the defence of the king's person, and the execution of laws made for the establishment of religion.1

Footnote 1: Gardner, History of England iv 242-243.

In the religious, even more than in the political world, the existing causes of controversy were aggravated by the character and intellect of Charles I. Just as he had very definite views as to the position which he as king ought to occupy in the state, so he had equally definite views as to the character of the English church and its position in the state. The High Anglican theory of the church was being rapidly developed. Its theory and ritual appealed to his literary and artistic sensibilities ; and with the political theory of Anglican divines, such as Manwaring,2 he was in perfect agreement. There is no doubt that the church of England had no more faithful disciple than Charles. Both theologically and politically he regarded the church as a main buttress of the throne;3 and even in his utmost extremity he could never be brought to abandon it.4 But he had married a Roman Catholic wife; and, as a consequence, the laws against the Roman Catholics were not executed with that rigidity which the Protestant party demanded. Hence the suspicion of collusion between the Anglican bishops and the church of Rome increased. The growth of elaboration in the ritual of the church of England, the manner in which theologians like Montague5 emphasized the differences between the English and the other reformed churches, the favour with which divines who preached these doctrines were received at court, all seemed to point to a settled design to depress the Protestant religion. The distinction between Catholic and Roman Catholic was not then and is not now readily perceived by the Protestant mind.6

## 11 The Religious Controversies

As these same divines preached also doctrines of divine right, non-resistance, and royal absolutism, the alliance between the religious and political opposition was still further strengthened. In every Parliament we hear demands for the rigid enforcement of the laws against the Roman Catholics ; in the Parliament of 1625 Montague was attacked for his theological views ; in 1628 Manwaring was attacked for his political views ; and in 1629 a sub-committee of the Commons drew up a series of resolutions against the whole ecclesiastical policy of the crown,1 in which it was alleged that popery was on the increase, that orthodox doctrine was suppressed, and that those who suppressed it were preferred.

Footnote 1: Gardiner, Documents 77-82.

Footnote 2: Ibid 79.

Footnote 3: 4: 44 We are supreme Governor of the Church of England : and if any difference arise about the external policy, concerning the injunctions, canons, and other constitutions whatsoever thereto belonging, the Clergy in their Convocation is to order and settle them, having first obtained leave under our broad seal so to do : and we approving their said ordinances and constitutions ; providing that none be made contrary to the laws and customs of the land," The King's declaration prefixed to the articles of religion (1628), ibid 75.

They complained of " the subtle and pernicious spreading of the Arminian faction," which had kindled such divisions in the state that it tended to the ruin of religion, " by dividing us from the Reformed Churches abroad, and separating amongst ourselves at home, by casting doubts upon the religion professed and established ; which, if faulty or questionable in three or four Articles, will be rendered suspicious to unstable minds, in all the rest, and incline them to Popery, to which those tenets in their own nature do prepare the way." 2 The first article of that Protestation,4 which was read while the Speaker was forcibly held in the chair, proclaimed that " whosoever shall bring in innovation of religion, or by favour or countenance seem to extend or introduce Popery or Arminianism, or other opinion disagreeing from the true and orthodox church, shall be reputed a capital enemy to this kingdom and commonwealth."

Footnote 4: 44 We are supreme Governor of the Church of England : and if any difference arise about the external policy, concerning the injunctions, canons, and other constitutions whatsoever thereto belonging, the Clergy in their Convocation is to order and settle them, having first obtained leave under our broad seal so to do : and we approving their said ordinances and constitutions ; providing that none be made contrary to the laws and customs of the land," The King's declaration prefixed to the articles of religion (1628), ibid 75.

Charles was even less likely to tolerate Parliamentary interference with the church than with his own prerogative. According to his view it was for himself and the clergy in convocation to settle all matters concerning religion, to prescribe the doctrines to be taught, and to interpret them authoritatively.4 After the dissolution of 1629 he set himself to carry out these views ; and in his endeavour to carry them out thoroughly he found a zealous minister in Laud. Laud had long been a favourite at court, and in 1633 he succeeded Abbott as archbishop of Canterbury.

Footnote 4: 44 We are supreme Governor of the Church of England : and if any difference arise about the external policy, concerning the injunctions, canons, and other constitutions whatsoever thereto belonging, the Clergy in their Convocation is to order and settle them, having first obtained leave under our broad seal so to do : and we approving their said ordinances and constitutions ; providing that none be made contrary to the laws and customs of the land," The King's declaration prefixed to the articles of religion (1628), ibid 75.

Three features of Laud's character appealed strongly to the king. In the first place, he was a learned man, a patron of learning and learned men, a collector of books and manuscripts,

### Public law of XVIII century

and a benefactor both. to Oxford University and to his own college, St. John's, of which he had been President. In the second place, he was, as might be expected, intellectually a liberal in religious matters.1 He objected to the rigid formulae both of Rome and Geneva because "they both insisted upon the adoption of articles of faith which he believed to be disputable, or at least unnecessary to be enforced."2 Therefore he naturally attached himself to the school of Anglican divines who rejected the authority of Calvin, and emphasized the Catholicity of the English church at the expense of its Protestant character. But we have seen that insistence upon ritual, ceremony, and liturgical forms were the essential features of their system.3 In the third place, he was a disciplinarian obstnately determined to translate, with the precision of a machine, his principles into practice. "The liberty which he claimed for men's minds he denied to their actions."4 At all costs uniformity of ritual and ceremony and discipline must be maintained in the church. The powers of the bishops and the ecclesiastical courts were stretched to the utmost to effect this result.5 And he rigidly enforced their jurisdiction to correct the morals 6 of all sinners of whatever rank or station.7

Footnote 1: "The desire to leave as much as possible to be regarded as indifferent, and therefore open to free discussion by intelligent inquiaries, is manifested in Laud's letter to Vossius and in his controversy with Fisher, as well as in the new Preface to the Articles, which was mainly his work. Nor must it be forgotten that he was the patton of Chillingworth, and was tolerant to the 'ever memorable' John Hales, who was far more of a latitudinal than Chillingworth himself. In the chain which binds together the forward movement of the age-between Bacon and Locke--Laud has his place, even though that place be a very narrow one," Gardiner, Cromwell's Place in History 8.

Footnote 2: "A Ghoriner, History of England iii 244, $,$" The Archbishop, guided purely by his real, and reverence for the place of God's service, and by the canons and injunctions of the church, with the custom observed in the king's chapel, and in most cathedral churches, without considering the long intermission and discontinuance in many other places, prosecuted this affair more passionately than was fit for the season; and had prejudice against those, who, out of fear or foreign, or not understanding the thing, had not the same warmth to promote it," Clarendon, History of the Rebellion (ed. 1843) 39; cp. Gardiner, History of England vii 106-10.

Footnote 3: "Above zz5."

Footnote 4: "The Archbishop, guided purely by his real, and reverence for the place of God's service, and by the canons and injunctions of the church, with the custom observed in the king's chapel, and in most cathedral churches, without considering the long intermission and discontinuance in many other places, prosecuted this affair more passionately than was fit for the season; and had prejudice against those, who, out of fear or foreign, or not understanding the thing, had not the same warmth to promote it," Clarendon, History of the Rebellion (ed. 1843) 39; cp. Gardiner, History of England vii 106-10.

The combination of two men with the characters of Charles

## 13 The Religious Controversies

and Laud was dangerous both to king and church. To give a commanding position in the state to a man who applied his hard and narrow views of discipline to all the questions which came before him, increased the bitterness of the political opposition. Laud, it was noted, was always in favour of the severest sentence in the cases which came before the Star Chamber.1 Though his inflexible honesty irritated the courtiers, his lack of business knowledge prevented him from effecting any very large reforms ;2 and his irascible temper sometimes gave his opponents a chance to hold him up to ridicule.3 He increased the unpopularity of Charles's personal government without making any great accession to its strength. More especially he made the church of England more unpopular than it had ever been before, partly by the manner in which he used his influence to promote churchmen to places of influence in the state,4 but chiefly by the manner in which he emphasized in it all those features which were most distasteful to the nation.5 The clergy warned him in vain of the unpopularity of his measures,6 and complained of the difficulties which they experienced in enforcing them.7 He kept his course, and many fled to New England to escape from the persecution of the High Commission and the other ecclesiastical courts.8 Charles, so far from moderating, encouraged all these activities. Thus he re-issued in 1633 the Book of Sports which his father had been obliged to withdraw.9 As we have seen, he was wholly incapable of looking beyond the immediate circle of the court, and quite ignorant of the feelings and prejudices of his people.10 Laud's political and religious views exactly coincided with his own ;11 and therefore they must be unquestionably right. It followed that both political expediency and religious duty dictated their adoption and rigid enforcement.

## 134 Public Law of Xviith Century

which were the immediate causes for the overthrow of the unstable edifice of prerogative government. The attempt to impose the English liturgy and ritual upon Scotland provoked, as any sensible person would have forseen, civil war. And even civil war and the debates of the Short Parliament could not teach Charles and Laud moderation. Convocation was allowed to sit after the Short Parliament had been dissolved, thus giving colour to the view, sure to be resented by any future Parliament, that it was a legislative body independent of Parliament ;1 and Convocation proceeded to enact a series of Canons which justified all the features of church government and church ritual to which there was most objection ; drew up the "et cacteria " oath according to which the clergy and certain others were to swear to alter nothing in the government of the church ; and asserted in the largest terms the doctrines of divine right and non-resistance.2 The enactment of these canons was the last of Laud's activities. We have seen that the renewal of the civil war with Scotland, and the defeat of the king's forces, necessitated the summoning of the Long Parliament.3 Thus, just as from a Scotch king had come that theory of divine right and royal absolutism which had upset the delicate balance of the Tudor constitution, so from the Scotch people came the beginnings of the movement which proved fatal to that theory. In Scotland the uprising was to some extent a national, but chiefly a religious movement.4 As we have seen, it was through the discipline of the Presbyterian church that Scotchmen had attained some measure of political organisation;5 and it was the books and sermons of the Presbyterian divines which had given them their political education. No doubt the rising was helped forward by the mobility, who were jeolous both of the bishops and of the growing power of the crown;6 but its driving force came from the people and from religion. In England, on the other hand, the opposition to the crown was as much political as religious ; and it was not national in the sense in which the Scotch rising was national. In Scotland the results aimed at were comparatively simple--the power of the crown must be curtailed in order that the church might regain its

## 11 The Religious Controversies 185

freedom under a purely Presbyterian organisation, and in order that the nobles might be relieved from their fear of oppression. In England, on the other hand, the results aimed at were not quite so simple. Not only must political and religious abuses be removed, but positive measures must be taken to prevent the possibility of the recurrence of these abuses. This involved the question of what positive changes (if any) must be made in the existing organization of church and state. That organization was far more complex in England than it was in Scotland. Change was therefore more difficult; and public opinion was by no means so unanimous as to the kind of changes which were desirable.

As to the removal of religious abuses, the Long Parliament showed the same unanimity as it had shown in the removal of political abuses.1 The High Commission and the other ecclesiastical courts were swept away; Laud was impeached; and, later, a comprehensive bill on church reform was read twice in the House of Lords.2 This bill showed that the majority of the House of Lords were in favour of reforming, but of preserving intact, the organization of the church of England; and that they had no intention of altering the liturgy of the church. But it had already appeared that there was a party in the House of Commons which wished for more extensive reforms.

Footnote 1: Above itz-t14.

In December, 1640, a petition for church reform and the abolition of episcopacy, signed by 15,000 inhabitants of London, had been laid before the House of Commons; and "for the first time opinion in the House was seriously divided."3 In the February of the following year the debate as to whether this petition should be sent to a committee, showed that a party was forming which was prepared to resist radical reforms in the church.4 On the other hand, it was clear also that a party in the House desired the total destruction of episcopacy, and the thorough remodelling of the church. The reasons for the growth of such a party are obvious. We have seen that all through James I.'s and Charles I.'s reign the alliance between the political and the religious opposition to the crown had been growing closer.6 That religious opposition had always been composed of men inclined to the Calvinistic theology. Many of them, therefore, were inclined to favour the introduction of something like a Presbyterian system. In 1629 the resolutions on religion drawn up by a sub-committee of the House of Commons referred to the Church of Scotland as "'that famous church." 6 But, though in 1629 it was

## 136 Public Law of Xviith Century

proposed to give a more Calvinistic interpretation to the doctrines of the church,1 there was no thought of interfering with its government or its liturgy. Laud's activities, and the alliance with the Scotch Presbyterians, had now raised up a party which desired to reform both. It was not, as Gardiner has pointed out, a mere question of administrative machinery. " It was rather a question of influence. The possession of the pulpit brought with it the power of moulding the thoughts and habits of men, which can only be compared with the power of the press in modern times."2 That was the main reason why Charles 3 and his party were so firmly attached to the episcopal organization: that was why his opponents desired to get rid of it.

Footnote 1: Above 131.

Footnote 2: Gardiner, History of England ix 28z.

Footnote 3: In 1646 Charles wrote, " It is not the change of church government which is chiefly aimed at--though that were too much--but it is by that pretext to take away the dependency of the Church from the Crown'; which, let me tell you, I hold to be of equal consequence to that of the military, for people are governed by pulpits more than the sword in times of peace," Gardiner, History of the Civil War iii 135.

Footnote 4: Gardiner, History of England ix 378, 382-383.

Footnote 5: Ibid 38o-38r; provided that the church was sincerely Protestant, Pym was indifferent as to the form of church government-- he was neither Episcopalian nor Presbyterian by conviction. ... In the last speech which he is known to have uttered in Parliament, he based his acceptance of the abolition of Episcopacy solely on the strength which that abolition would give to those who were fighting against Charles," Gardiner, History of the Civil War i 258.

Footnote 6: The strength of the

## 11 The Religious Controversies

In this section we will discuss the implications of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory of the theory 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religious differences had created a royalist party, made all the questions at issue between the royalist and the Parliamentary party, insoluble by mere discussion. Those who carried the Grand Remonstrance designed a reformation of the church by means of a general synod of "the most grave, pions, learned, and judicious divines of this island, assisted by some from foreign parts." They were to draw up a scheme which was to be presented to Parliament and passed into law.1 The views of those who voted against the Remonstrance were expressed in Charles's answer to the petition which accompanied the Remonstrance. "We are persuaded in our consciences that no church can be found upon the earth that professeth the true religion with more purity of doctrine than the Church of England both, nor where the government and discipline are jointly more beautiful and free from superstition; than as they are here established by law, which, by the grace of God, we will with constancy maintain (while we live) in their purity and glory, not only against all invasions of Popery, but also from the irreverence of those many schematics and separatists, where with of late this kingdom and this city abounds." 2 In an age which rejected the idea of religious toleration the sword alone could decide the issue thus raised.

Footnote 1: The author is grateful to the referee for the support of the Germanian Foundation

## 10.11 Causes of Outbreak of Civil War 139

going in person to seize them.1 But, through the queen's own indiscretion, information was given to them,2 and they escaped in time. The danger, thus narrowly escaped, cemented the alliance between those who pressed for more radical reforms in the state, with those who pressed for more radical reforms in the church ; and thus the party which demanded complete control over the executive, complete control over the militia, and the exclusion of the bishops from the House of Lords, secured a majority in the House of Commons.

Footnote 1: For a review of the results of the literature, see \[11\].

Public Law of Xviith Century

House of Lords maintained its opposition till its resistance was broken by the king's own acts. Sir Charles Firth says,1 "the king's party in the House of Lords was broken up by his attempts to get possession of Hull and Portsmouth, by the discovery that he was plotting to introduce foreign troops into England, by all the evidence of a design to appeal to force which came to light during the latter part of January (1642)." Under these influences the Lords passed the militia bill, the bill for the exclusion of the bishops, and the bill for the impressment of soldiers. To the two latter bills the king gave his consent; but he resolutely declined to consent to the militia bill. When it was suggested to him that he might grant the control over the militia to Parliament for a short period, he replied, " By God! not for an hour."2 Now that civil war was inevitable it was quite obvious that the king could not deprive himself of that power over the armed forces of the crown which was given to him by the law of the constitution.

Footnote 1: The House of Lords during the Civil War iiiT.

Footnote 2: " By God! not for an hour. You have asked that of me in this, was never asked of a king, and with which I will not trust my wife and children," Gardiner, History of England x r?o.

The House of Lords, like the House of Commons and the rest of the country, was split into two halves by the outbreak of the civil war. Its history during the civil war emphasized its new position as an essentially second chamber. But it was still regarded as a necessary part of the constitution. Similarly, though antimonarchical sentiments had been expressed,3 it was long before the impossibility of coming to any understanding with a king upon whose word no reliance could be placed, brought about the temporary abolition of both monarchy and House of Lords. But, in fact, it was the consciousness of the impossibility of working with such a king that had made it necessary for Pym and the majority of the House of Commons to insist upon the entire subjection of the king to the will of Parliament. The Nineteen Propositions 4--the Parliamentary, ultimatum--would, if accepted, have reduced the king to a figure head. Parliament would have controlled the appointment of the chief executive officers of state, and of the chiefs of the common law courts; it would have been the master of the military forces of the state; and it would have determined the policy to be pursued in the regulation of religion. No doubt the true solution would have

## Causes of Outbreak of Civil War 141

been the deposition of the king, and the substitution of another who could have worked with Parliament under the altered conditions. But the split upon the religious question had given the king a party. While he had a party who would fight for him, it was impossible either to force him to accept terms which reduced him to a nonentity, or to depose him.

The assumption by the Lords and Commons who remained at Westminster of the powers of the state put them into a legally indefensible position, and gave the king a good argumentative basis of which he made the most. It was not difficult for Hyde, who now became a trusted adviser of the king, to demonstrate that the king was upholding the law and the constitution of the country.1 His ideal, in defence of which, he argued, the king was fighting, was the constitution as settled by the legislation of the first months of the Long Parliament--an established church, a king who would work with Parliament, a Parliament in which the king the House of Lords and the House of Commons cooperated, neither king nor House of Lords nor House of Commons encroaching on one another's spheres, over all the supremacy of of the law. This ideal provided no'solution for the burning question of sovereignty, and it did not touch the problem of religious nonconformity. " It was," as Gardiner says,2 "the idea of an essentially mediocre statesman. It was based on negations, and provided so elaborately that nothing obnoxious should be done, that there was no room left for doing anything at all." For all that, it now gave the king a party;3 and it was in appearance the ideal which was realised at the Restoration--but in appearance only. We shall see that the troublous eighteen years of civil war and constitutional experiment, which in 1642 lay before the English nation, left an ineffaceable impression upon the comparative strength, and therefore upon the working and mutual relations, of the institutions which were restored.

Footnote 1: See e.g., the king's reply to the demand of Parliament that the magazine should be removed from Hull to the Tower, which was probably drawn up by Hyde, Gardiner, History of England x 18g-190--"Be sure you have an early and speedy care of the public, that is of the only rule which preserves the public, the law of the land; preserve the dignity and reverence due to that. It was well said in a speech made by a private person (Pym's speech against Stafford), but published by order of the House of Commons this Parliament: "the law is that which puts a difference be-twist good and evil, betwist just and unjust. If you take away the law all things will fall into a confusion, every man will become a law unto himself.". So said that gentleman, and much more very well in defence of the law, and against arbitrary power."

Footnote 2: Ibid x6g. 3 Ibid x70.

Footnote 3: Ibid x70.

## Chapter 14 Public Law of Xvith Century

### 14.1 The Period of The Civil War and Commonwealth

"Laws are commanded to hold their tongues among arms ; and tribunals fall to the ground with the peace they are no longer able to uphold "1--the legal historian must pass briefly over the period of the civil war ; and he cannot describe in any great detail the legislation of the Commonwealth, as that legislation was all swept away at the Restoration. It is only in so far as the events of this period influenced the future development of English public law that it is of importance in legal history. In this section, therefore, I shall describe the chief developments of the public law of this period from this point of view. With the developments of private law I shall deal in the following chapter.

The history of the developments of the public law of this period will not be intelligible unless we keep before our minds the political events to which they owed their origin. I shall, therefore, in the first place, give a slight chronological sketch of these events. In the second place, I shall give a short summary of the various written constitutions which were put forward during this period. In the third place, I shall endeavour to estimate the permanent effects of this period upon the development of English public law.

### 14.2 The Political Events of this Period

When the civil war began the two parties were fairly evenly matched ; and so, during its first two years, its results were inconclusive. Both king and Parliament possessed certain advantages and suffered from certain difficulties. The nobility and gentry who flocked to the king's standard gave the king a force of cavalry which as yet the Parliament could not match ;2 and in those days superiority in cavalry meant everything. It was almost as important as superiority in artillery is at the present day.3 The king also could command more strategical ability than the Parliament.4 On the other hand, there was no unity in the command of his armies. The king himself wished to be supreme in

## Political Events of this Period 143

war as he had wished to be supreme in government; and, as Strafford and Laud had found to their cost, his only notion of the way in which supremacy was to be secured was never to give his entire confidence to any single person.1 Moreover, though the king had good cavalry, and good material from which officers might have been made, there was little sympathy between the officers and the rank and file. "They could not inspire the common man with their own courage, because they had no living faith in which he was able to share."2 The Parliamentary forces were as badly organized as those of the king; but the Parliament was better equipped for a long war. It had at its back the City of London; and the wealthier half of the country, including Norwich and Bristol, had rallied to its cause.8 Above all, Parliament controlled the fleet. This enabled it to move troops freely by sea, to secure the customs revenue, and to prevent the king from getting foreign help.4 Some of its members, like some of the members of the king's party, would have welcomed peace, and hesitated to push the war to a conclusive issue.5 But the Puritan party, who considered it a religious duty to make their views prevail, had no such idea. They were the driving force of the Parliamentary armies, and they gave to all its ranks an enthusiasm and an ideal which might be matched amongst some of the higher ranks of the king's army, but was never possessed by his army as a whole. On the other hand, the Parliamentary armies suffered from the lack of unity of control even more than the royal armies.6

Footnote 1: The author was supported by the National Science Foundation of the

## 14 Public Law of Xviith Century

Ordinance,1 they had ceased to be commanded by politicians. In the third place, the Parliament had got in Oliver Cromwell a man who had shown himself capable of organizing, disciplining, and leading a body of cavalry inspired by a set of Puritan principles, which awakened in them as much enthusiasm as the principles of loyalty and honour awakened in the royal cavalry.2 When this organization, this discipline, and this enthusiasm had been imparted to the new modelled army, the Parliament got an instrument of war which no royalist army could match. Led by Cromwell, who was now showing that he was an able tactician as well as an unequalled leader of cavalry, it was irresistible. The last royalist army was defeated in 1646 at Stow on the Wold. Astley, its leader, said to his captors, " You have now done your work, and may go play unless you will fall out amongst yourselves."3

Footnote 1: Gardiner, Documents 287-288; as Gardiner points out, Civil War ii 254, it is not quite accurate to say that Cromwell was exempted from this Ordinance, as it did not prevent the Houses from appointing their members to offices after they had resigned; Cromwell's Lieutenant-Generalship was simply renewed from time to time, 2 Ibid i r42; above r42 n. z. 3 Ibid iii 8o. 4 " The popular belief that the New Model was not merely a Puritan, but an Independent army is not without foundation. An army is to a great extent moulded by its officers, and the officers of this army were men of a pronounced, and especially of a tolerant Puritanism. The officers too, had on their side, if not the whole of the old soldiers, at least those who were most energetic and most amenable to discipline, more particularly the studrider Puritans of the Eastern Association who were especially numerous in the ranks of the cavalry. It was by such as these that the whole lump was ultimately leavened," ibid ii r04; for the beginnings of the Independent party see Tanner, Constitutional Documents r86-rgo.

Footnote 2: After Naseby, Cromwell wrote to Lenhall, " He that ventures his life for the liberty of his country, I wish he trust God for the liberty of his conscience, and you for the liberty he fights for," cited Gardiner, op, cit. ii ag2; it is significant that the House of Commons printed his letter without this passage.

The three causes which had given the decisive victory to the Parliamentary forces had rendered this falling out almost inevitable. The Presbyterian party, which commanded a majority in Parliament, wished to carry out the terms of the Solemn League and Covenant, and introduce into England a form of Presbyterian worship, under the control of Parliament, to which all must conform. On the other hand, the army was largely composed of Independents, opposed to Presbyterianism, and desirous of toleration for all sects within certain broad limits;4 and with these demands of the army Cromwell sympathized.5 The king had surrendered to the Scotch in 1646, and had, in the following year, when the Scotch army left England, been handed over to the Parliament. He naturally intrigued both with the Parliament and with the army. At first it seemed likely that the king and the Presbyterians would come to termsPolitical events of this period 145 on the basis of the re-establishment of his authority as it existed in August, 1641, and the establishment of Presbytterianism for three years.1 But, before this scheme could be realized, the army must be got rid of. This the Presbytterian party failed to do.2 The army carried off the king, excluded eleven Presbytterian members of Parliament, and put forward, in the document known as the Heads of Proposals,3 its own scheme for a settlement. The king held out hopes to the army that he would accept its proposals; but at the same time he was negotiating with the Scotch for armed intervention in England in support of the Presbytterian party in Parliament. He attempted to escape from the custody of the army, but was captured and confined in Carisbrooke Castle.4 While at Carisbrooke he concluded a treaty with the Scotch.5 The Covenant was to be confirmed by Act of Parliament, though no one was to be forced to take it; Presbytterianism was to be established for three years; and the opinions of various enumerated sects, among which the Independents were included,6 were to be suppressed. On the other hand, the Scotch were to support his demands that he should come to London to treat personally with the Parliament, and that the army should be disbanded. If these demands were refused, the Scotch were to declare themselves ready to support \*\*the right which belongs to the Crown in the power of the militia, the Great Seal, bestowing of honours and offices of trust, choice of Privy Councillors, and the right of the king's negative voice in Parliament ";7 and, in pursuance of this declaration, they were to send an army to England to secure a free Parliament, to release the king, and to secure the dissolution of the present Parliament. Having made this treaty, the king refused his consent to the demands made by the Parliament, and the relations between them were broken off.8

Footnote 1: Gardiner, Documents xlix, 317-316 ; Civil War lii 352-253.

Footnote 2: Gardiner, Documents xlix, 317-316 ; Civil War lii 352-253.

Footnote 3: Ibid 316-326 ; below 152-153.

Footnote 4: Ibid li, lii.

Footnote 5: Anti-Trinitarians, Anabaptists,'Antinomians, Arminians, Familists, Brownists, Separatistics, Independents, Libertines, and Seekers.

Footnote 7: Ibid 349.

Footnote 8: Ibid liii, 353-356, 356.

Footnote 9: Prothero and Lloyd, Camb. Mod. Hist. iv 348-351.

This treaty with the Scotch was the cause of the second civil war. Royalist risings in many parts of the country were accompanied by a Scotch invasion, and a defection of part of the fleet. But the royalist risings were defeated in detail, and Cromwell won a decisive victory over the Scotch at Preston.9 Parliament, however, reopened negotiations with the king, and tried to come to terms with him; but the king refused to consent

## 146 Public Law of Xvith Century

to its terms.1 A similar attempt on the part of the army to treat with him on the basis of the Heads of Proposals was also frustrated by the king's refusal to comply with these proposals.2 "Charles had made the path easy to those who were compassing his destruction." 3 The army had, from the outbreak of the new war, determined to take vengeance on the king; but up to then they had been held back by their leaders. Cromwell now came round to the opinion of the army,4 and the House of Commons was purged by Colonel Pride. The House thus purged assumed sovereign power ; 5 and, when a last overture made by Cromwell with a view to saving the king's life was rejected,6 the High Court of Justice was set up, and the king was tried and executed.

## Political Events of this Period 147

well's victories over the Irish, and over the Scotch at Dunbar and Worcester, secured its position. The question of dissolution then emerged. After long and futile negotiations Cromwell finally, in 1653, dissolved Parliament by force. The nation as a whole agreed with Cromwell that this small knot of members who had sought to perpetuate their own power was "no Parliament."1

Footnote 1: Gardner, Commonwealth and Protectorate ii 265; for the detailed history of the dilatory manner in which Parliament dealt with the question of dissolution see Jenks, Constitutional Experiments of the Commonwealth 30-33.

But what was to take its place? Cromwell at first fell back on the device of nominating an assembly. Members were nominated by the council of officers, from amongst persons submitted by the congregational ministers.2 This assembly was, as Gardiner has said, " the highwater mark of Puritanism in Church and State."3 But it proved to be a quite incompetent body. " To immature and reckless attempts at legislation for the abolition of titles and for law reform it added impracticable conclusions on finance, and finally stultified itself by its hopeless divisions on church questions,"4 The more moderate section managed to snatch a vote in favour of the resignation of its powers, and it came to an end.5 The next experiment tried by the council of officers was the creation of a written constitution. The document in which this constitution was embodied is known as the Instrument of Government.6 Under it, as we shall see, Cromwell was to be Protector for life, there was to be an elected Parliament, and a council independent of both Protector and Parliament. But, when Parliament met, it refused to accept the constitution under which it was assembled. Eventually it was dissolved (1653), mainly because it attempted to deprive Cromwell of the sole control over the army; 7 and Cromwell found himself again obliged to rule by means of the army.

Footnote 3: Gradiner, Cromnowwealth and Protectorate ii 265; for the detailed history of the dilatory manner in which Parliament dealt with the question of dissolution see Jenks, Constitutional Experiments of the Commonwealth 30-33.

Footnote 4: Shaw, Camb. Mod. Hist, iv 438.

Footnote 5: Gardiner, Commonwealth and Protectorate ii 326-328.

Footnote 6: Gardiner, Documents 405-417; below 154-156.

Footnote 7: Ibid kiv; Commonwealth and Protectorate iii 244-253.

Footnote 8: " So far as the electores were concerned, the Major-Generals did their best to popularize what they regarded as right opinions," ibid iv 267.

Footnote 9: Gardiner, Documents lxv.

As experience showed, and as Cromwell well knew, no permanent settlement was possible so long as this form of government lasted. In obedience to the Instrument of Government, which had prescribed a Parliament once every three years, a new Parliament was summoned. The elections were carefully managed,8 and members were refused permission to sit unless they were approved by the Council.9 In this way a submissive assembly

### Public law of Xvith century

was ensured. It was this assembly which drew up the document known as the Humble Petition and Advice. Under it Cromwell was to be king, and certain amendments were made in the Instrument of government.1 Cromwell refused to take the title of king ; but in other respects he in substance accepted the amendments suggested by the Humble Petition and Advice. One of these amendments was the creation of a second chamber nominated by the Protector;2 and the chamber was accordingly nominated.3 But, by virtue of another clause, members formerly excluded from the House of Commons were admitted.4 This was fatal to the success of the new constitution. The republicans were hostile to the Protector and to the other House ; and they began to intrigue with the army for the establishment of a Commonwealth, and for the limitation of Cromwell's power over the army. Parliament was consequently dissolved by Cromwell before it had sat a month (Jan. 20th to Feb. 4th, 1658).5 Royalist plots which had been on foot for some time were quickly suppressed.6

Footnote 1: Gardiner, Documents lxv ; below x56-157.

Footnote 2: For a specimen of a writ of summons see Gardiner, Documents 464.

Footnote 3: SS 3; Gardiner, Documents 449.

Footnote 4: SS 3; SS 46; SS 47; SS 48; SS 49; SS 50; SS 51; SS 52; SS 53; SS 54; SS 55; SS 56; SS 57; SS 58; SS 59; SS 60; SS 61; SS 62; SS 63; SS 64; SS 65; SS 66; SS 67; SS 68; SS 69; SS 70; SS 71; SS 72; SS 73; SS 74; SS 75; SS 76; SS 77; SS 78; SS 79; SS 80; SS 81; SS 82; SS 83; SS 84; SS 85; SS 86; SS 87; SS 88; SS 89; SS 90; SS 91; SS 92; SS 93; SS 94; SS 95; SS 96; SS 97; SS 98; SS 99; SS 99; SS 98; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 91; SS 92; SS 93; SS 94; SS 95; SS 96; SS 97; SS 98; SS 99; SS 99; SS 99; SS 99; SS 98; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS 99; SS

## Chapter 14 Conclusions

In this chapter we have presented a new method for constructing the "classical" quantum mechanics of the theory of relativity. We have presented a new method for constructing the classical theory of relativity, and we have presented a new method for constructing the classical theory of relativity. We have presented a new method for constructing the classical theory of relativity, and we have presented a new method for constructing the classical theory of relativity. We have presented a new method for constructing the classical theory of relativity, and we have presented a new method for constructing the classical theory of relativity. We have presented a new method for constructing the classical theory of relativity, and we have presented a new method for constructing the classical theory of relativity. We have presented a new method for constructing the classical theory of relativity, and we have presented a new method for constructing the classical theory of relativity. We have presented a new method for constructing the classical theory of relativity, and we have presented a new method for constructing the classical theory of relativity. We have presentedPublic Law of Xvith Century

and to ensure the stability of such a state equality must be as far as possible secured. He saw, what few then perceived, that there could be no real equality amongst subjects unless some provision was made to secure a certain amount of equality in property--especially landed property.1 Thus, by the agrarian laws in force in Oceana, no one was to be allowed to have an income of more than $\\not{\\sim}2000$ a year from land.2 To ensure equality in distribution of the offices of the state they were to be filled by election and rotation; and thus, " as the agrarian answers to the foundation, so does rotation to the superstructures."3 To ensure freedom of election the ballot was to be used.4 The government was to be in the hands of a senate which proposed, a representative assembly which ratified or rejected these proposals, and an executive filled by rotation of office amongst those elected. Thus we get " an equal commonwealth," which is "a government established upon an equal agrarian, arising into the superstructures of three orders, the senate debating and proposing, the people resolving, and the magistracy executing by an equal rotation through the suffrage of the people given by the ballot."5

Footnote 1: As Mr. Dow says, E.H.R., vi 32a, " From the general tenor of his debate as well as from desultory remarks elsewhere, it is apparent that. Harrington included limitations on private fortune in capital as well as land. His references to capital are subsidiary, because England was for him characteristically a 'commonwealth of husbandmen," But in reference to Holland and Genoa he makes the balance of treasure hold the same function as the balance of land in England."

Footnote 2: Oceana 94-95; at p. 51 he says, " An equal Agrarian is a perpetual law establishing and preserving the balance of dominion by such a distinction that no one man or number of men, within the compass of the few or aistocracy, can come to overpower the whole people by their possessions in lands."

Footnote 3: Ibid g==" Equal rotation is equal vicissitude in government, or succession to magistracy, conferred for such convenient terms, enjoying equal vacations, as take in the whole body by parts, succeeding, others, through the free election or suffrage of the people."

Footnote 4: " The election or suffrage of the people is most free, when it is made or given in such a manner that it can neither obligge nor disoblige another; nor through fear of an enemy, or bashfulness toward a friend, impair a man's liberty," ibid.

Footnote 5: Ibid.

Footnote 6: Gooch, Democratic Ideas 297-298.

Iarrington's book is not, like the books of Hobbes and Locke, primarily concerned with political theory. His object was practical--to produce a constitution of a republican type which should be permanent. And, just as many of his proposals foreshadow later ideas, so his method foreshadows the later methods of political thought. He relies, not on a priori speculation, but on the teachings of history and the experience of other nations. This gives his book a practical tone which is usually wanting to those who construct imaginary commonwealths.6 The form into which he casts his work--the history of the con

## 108 Constitutional Experiments

### 108.1 Introduction

The motivation of this work is to study the

### Public law of xviith century

(_a_) We have seen that the aim of the leaders of the Long Parliament was to assume the practical control over the executive, the military forces of the crown, the bench, and the church.1 The king was, in effect, to be reduced to the position occupied by him at the present day under the system of cabinet government. Though details differ, we can trace this aim in all the various negotiations between king and Parliament which took place during the course of the civil war.2 In addition, after the Solemn League and Covenant, we get the demand for the establishment of the Presbyterian form of worship either for a period of years or in perpetuity. Throughout, the object aimed at by Parliament was the restoration of the monarchy upon such terms that, as against the crown, the predominance of Parliament, and the predominance of the religious scheme approved by Parliament, were secured.

(_b_) With the intervention of the army some very different types of constitution emerged. The reasons why they were so different are mainly two. In the first place, while the Parliamentary schemes were inspired mainly by jeolousy of the king, the army schemes were inspired by jeolousy of both the king and the existing Parliament. In the second place, all manner of fanatical opinions, religious and social,3 were represented in the army ; and some of them appear in the constitutions suggested by it.

Footnote 1: Above 177-120, 135-136, 138; see especially the Nineteen Propositions, Gardiner, Documents 249-254.

Footnote 2: See ibid xili-xxivi, and the documents there cited.

Footnote 3: Below 472-473.

The earliest of these constitutions is contained in the Heads of Proposals (1647).4 It was proposed that the existing Parliaments should be dissolved, and that provision should be made for biennial Parliaments, which should sit for not less 120 and not more than 240 days.6 There was to be a redistribution of seats " according to some rule of equality of proportion."6 The judicial powers of the Lords and Commons were to be defined, and no person "adjudged by them " was to be capable of receiving parton without their consent.7 The naval and military power was to be vested in the Parliament for ten years ; and during that period Parliament was to be able to raise money for the army, navy, and other public uses.8 Executive power was to be in the hands of a Council of State.9 Its members were to be agreed upon by the army and Parliament, and they were to hold office during good behaviour for a period not exceeding

## 111 Constitutional Experiments

seven years.1 The great offices of state were to be filled by Parliament for ten years, and after that period the king was to choose out of three names submitted to him by Parliament.2 The coercive authority of the bishops and the ecclesiastical courts in civil matters was to be taken away.3 All Acts enjoining the use of the Prayer Book, and imposing penalties for not coming to church were to be repealed; and new laws against Papists were to be devised.4 The taking of the Covenant was not to be enforced upon any.5 Certain enumerated grievances were to be redressed.6 It is clear that the army wished to guard itself, not only against an arbitrary king, but also against an arbitrary Parliament; that it wished to make this Parliament more representative; and that it wished for a wide toleration for divergent religious beliefs.

Footnote 1: I. I.

### Public Law of Xvith Century

assembly of a new House, unless dismissed sooner by the new House. Certain principles of religious policy were laid down, with which, together with the rules relating to the elected House and the Council of State and six other matters, the elected House was to have no power to meddle. The present Parliament was to be dissolved on or before the last day of April, 1649.

We have seen that the Parliament adopted some of these principles after the king's execution. The government wasvested in a council of state and in the remnant of the House of Commons, and a measure of toleration was granted.1 But Parliament neither limited its own powers nor dissolved itself.2 It was probably the difficulty of dealing with the Parliament which induced the army, after the Parliament had been expelled, and the Nominated Parliament had proved to be a failure,3 to revert to the idea of a constitution based upon a single person--a Protector, and an elected House. This was the scheme contained in the Instrument of Government (1653).4

## 15 Constitutional Experiments

dissolved before it had sat five months.1 Fifteen persons were nominated in the Instrument to form the Council of State, with whose advice the Protector must act.2 The Protector and Council were to have the power of passing ordinances when Parliament was not sitting, which were to be in force till confirmed or disallowed by the succeeding Parliament.3 On the death or removal of any of the fifteen councillors Parliament was to nominate six, from whom the Council was to choose two; and from these two the Protector was to appoint one.4 Certain of the great officers of state and the chief justices were to be "chosen by the approach of" Parliament, or, if Parliament was not sitting, by the Council, and afterwards approved by Parliament.5 A wide toleration was given to all Christian sects.6 Neither this nor any of the other constitutions devised by the army had any provision for its amendment, probably because, as Gardiner says,7 their authors did not contemplate that the necessity for modification would arise.

Footnote 18: SS7, 8; the Protector and Council could summon extraordinary sessions of Parliament when the necessities of State required, which must last at least three months.

Footnote 2: SS25; by SS26 the Protector and Council could co-opt not more than six members.

Footnote 3: SS30. 4 SS25. 5 SS34.

Footnote 4: SS37--' So as they abuse not this liberty to the civil injury of others and to the actual disturbance of the public peace on their parts: provided this liberty be not extended to Popery or Prelacy, nor to such as, under the profession of Christ, hold forth and practise licentiousness.'

Footnote 7: Commonwealth and Protectorate ii 337.

This constitution was the most elaborate devised by the army. The impossible ideas, originating with the Levellers and other fanatical sects, which are present in the two Agreements of the People, disappeared--a short experience of the Nominated Parliament had taught a salutary lesson. Instead, there is an attempt to combine ideas suggested by the old constitution and by recent experience. The idea of an executive to some extent independent of Parliament, with a fixed income for the ordinary expenses of government, was borrowed from the old constitution.8 But experience had shown that it was dangerous to divorce completely the executive from the legislature. Therefore a link between them was established by giving to the legislature some control over appointments to the Council, and by requiring its approbation of the persons appointed to hold the great offices of state. Experience had also shown that it was desirable to establish a system of checks and balances against arbitrariness on the part both of the executive and the legislature. Therefore the power of the Protector was restrained, both by the necessity of working

### Public law of Xviithi century

with a Council,1 and by.denying him a veto on legislation ; the power of the Protector and Council was restrained by the necessity of meeting a Parliament at least once in three years, which Parliament must remain in session for at least five months ; and the power of Parliament was restrained by restricting its duration to three years.

Footnote 1: \*\*: That the restriction on the action of the Protector by his obligation to consult the Council was intended to be a real one there is every reason to believe. The notion which prevailed at the time, and which has continued to prevail in modern days, that Cromwell was a self-willed autocrat imposing his commands on a body composed of his subsequent creatures, is consistent neither with the indications which exist in the correspondence of that day, nor with his own character," Gardiner, Commonwealth and Protectorate ii 337. 2 See Gardiner, Documents lxi-lxiv, where the differences between the Instrument and the Parliamentary scheme are shown in tabular form. 3 Gardiner, Commonwealth and Protectorate ii 278-280; Cromwell himself had thought of it, ibid 320. 4 Ibid iii 225. 5 Shau, Camb, Mod. Hist. iv 443-444, cites contemporary newsletters to the effect that, " There are two to one for it. The souldgrey are against it in the House and without doors. They muted but I am of opinion it will passe. . They \[the legally minded majority in the House\] are so highly incensed against the arbitrary dealings of the Major-Generals that they are greedy of any powers that will be ruled and limited by law "; even in 65f this difference between the lawpers and the army had emerged ; Whitelock, Memorialis iii 372-374, tells us that, at a conference held after the battle of Worcester at the Speaker's house, between members of Parliament and officers of the army, " generally the soldiers were against anything of monarchy," while " the lawpers were generally for a mixed monarchical government."

## 10.1 Introduction

The concept of the _Humble Petition_ is a fundamental problem in the theory ofPublic Law of Xviith Century

House. In all of these constitutions there is a wide toleration for many divergent religious sects.

All these problems and all these developments were very much in advance of the average political thought of the day. Gardiner, comparing the terms offered to Charles I. by the Presbyterian and Parliamentary party, with the Heads of Proposals prepared by the army, says1 that the army plan was, from a constitutional point of view, very much superior; but that, "it was that very superiority which rendered it impossible to put it in execution. It contained too much that was new, too much in advance of the general intelligence of the times, to obtain that popular support without which the best constitutions are but castles in the air. The Presbyterian plan was more suited to the slow and cautious progressiveness of human nature." As we shall now see, this was one of the main reasons for the failure of all these constitutional experiments.

Footnote 1: Documents II, ${}^{2}$ Gardiner, Commonwealth and Protectorate i 29, 30.

(iii) For the stability of any sort of civil government the consent, though it be only the unconscious consent, of the bulk of the governed is needed; and obviously no system of government, in which the governed, through their representatives, take an active part, can be created without this consent. But, during the whole period of the Commonwealth and Protectorate, there were so many diversities of opinion in the nation and in the army upon the most fundamental political questions, that no such consent was possible. There was the royalist party--de-feated and depressed, but still influential, and always ready to raise its head whenever it saw a chance to oppose or embarrass the authority by which it was held down. There was the Parliamentary Presbyterian party, equally hostile, and very ready to coalesce with the royalists; and to this party a large number of the lawyers were attached. There was the Republican party, which was the dominant party, because it commanded the assent of the greater part of the army. But the army was by no means united in its political opinions; and the wide tolerance maintained by it had given rise to a large number of divergent sects, both in the army and the nation, which advocated all sorts of wild schemes. There were the Fifth Monarchy men, who asserted the divine right of the religious to govern. Their government was, they considered, the rule of Christ and His Saints, which was to supersede the four monarchies of the ancient world.2 They clamoured for "nothing less than an entire abolition of the existing law, and a substitution for it of a simple code based on

## 15 Constitutional Experiments

The laws of Moses."1 There were the Levellers, who suspected any permanent executive, and demanded direct government by a representative assembly elected on the broadest democratic basis. Lilburne, their most eminent representative, considered that the Council of State might be replaced by committees appointed for short periods by a Parliament, which was to remain in permanent session.2 There was the socialist branch of the Levellers, who wished for a collectivist society, in which the institution of property did not exist.3 In their society "the death penalty was reserved for two crimes, murder on the one hand, and buying and selling on the other."4 We shall see that all these sects advocated all sorts of fantastic schemes of law reform.5

Footnote 1: I did it 332-"It is evident, even if we could close our eyes to the subsequent history of the nation, that there was growing up, even amongst those who were

### Public Law of Xviith Century

The army became more and more unpopular ; and its unpopularity produced a feeling against a standing army which lasted right down to the nineteenth century.1

Footnote 1: The name of the word $A$ is the word $A$.

The project to make Cromwell king was backed by all those who wished to see the establishment of a settled civil government. And it cannot be doubted that of all these projected solutions of the constitutional tangle it was the one which had the best chance of success.2 It would have replaced a strange new form of constitution by a constitution which was both an amended edition of the old constitution, and one to which old common law rules were applicable. Cromwell made the greatest mistake of his life when he failed to see this, and when he allowed the army's wish that he should not take the title of king to prevail. Neither Cromwell nor the army were able to appreciate the strength which the government would have got by a return to the older order. To attain their ideals they had never hesitated to break with the past, and to devise the new machinery which they thought would be best fitted to secure their attainment. Like most radical reformers, they were wholly unable to grasp the strength of those conservative forces which oppose a passive resistance to all violent dislocations of institutions, habits, and modes of thought. They were wholly unable to appreciate the strength which they would have acquired by making some concessions to them.

Footnote 2: A.

Thus these new constitutions prepared by the army and Cromwell, not only gained no popularity, but even became more and more unpopular, as Cromwell found himself obliged to rely more and more on the army for their maintenance. Cromwell himself was sincerely anxious to establish some settled form of civil government.3 He wished to establish a state in which the fullest toleration of divergent opinions consistent with orderly government was guaranteed, in which men of Puritan principles would rule. But the attitude of the nation made the realization of this object impossible. If it was not actively hostile it was, at best, very sullenly acquiescent.4 Marvel spoke truly when he wrote :--

Footnote 3: A.

The army remained the sole source of his authority; and therefore his position to the end continued to be that of a general

## 10.1. **Constitutional Experiments**

in command of occupied territory, and not that of a sovereign to whom the bulk of the political society give willing and habitual obedience. It is the best testimony to Cromwell's capacity as a general and his sagacity as a statesman that he was able, during his life, to maintain a semblance of civil government, which kept the peace at home, and gave England an honourable position among foreign states.

Cromwell's death soon showed that the whole edifice of his government depended solely on himself. The army got out of control, and set up and pulled down the civil government at will. The constitution which it had created, and with which Cromwell had tried to work, disappeared as soon as its support was withdrawn.1 Naturally the old combination of the Royalist and Presbyterian parties again appeared ; and when the support of the section of the army led by Monk was secured, the Restoration was assured.2 All these experimental constitutions disappeared, and apparently left no trace behind. Would it then be true to say that this period of political controversy and legislative activity left no mark upon English public law ?

Footnote 1: Above 14S,

_The Permanent Effects of this Period upon the Development of English Public Law_

Cromwell's figure dominates the whole of this period. He won the first and the second civil wars for the Parliament. He struck down the monarchy. He subdued both Ireland and Scotland to the Commonwealth government. He prevented the remnant of the Long Parliament from making themselves into a permanent ruling oligarchy. By means of his control over the army he governed the country while he lived under a republican constitution. But the Restoration, which brought back the monarchy and the church as they existed in 1641, seemed to have destroyed the whole of his achievements. Would it not then have been better if, in 1641, the views of Hyde and the conservative minority in the House of Commons had prevailed ? To this question a negative answer must be given. Although the positive results of Cromwell's work disappeared at the Restoration, the negative results, as Gardiner has pointed out, survived.3 He made personal monarchy, both as the Tudors and as Charles I. had understood it, impossible for the future. He made it impossible for a Parliament again to attempt to perpetuate itself in defiance of public opinion. Thus, when the monarchy was restored, the whole position both of the monarchy and the Parliament was altered.

Public Law of Xvith Century

This comes out clearly enough in the Declaration of Breda.1 Indemnity, a measure of toleration, and a measure to quiet titles were promised ; but the details were all referred to Parliament. It is clear that Parliament has attained a position in the state which it never possessed under the Tudors or the two first Stuart kings. It was no longer a body to be called in occasionally to assist the king's government by sanctioning the new legislation, or by voting the supplies which that government considered to be necessary. It was as much a permanent part of the government as the king himself, with an initiative of its own, and an acknowledged right to survey the whole field of political action. The experience which it had gained during this period made its survey intelligent. It had become familiarized with all parts of the machine of government. The mysteries of state, to which James I. was so fond of referring, were now no mysteries for it.2 And in its survey must now be included ecclesiastical as well as political questions. The king could no more stop the discussion of questions affecting the church, than he could stop the discussion of questions affecting his prerogative. It follows therefore that, for the future, neither church nor king could, for any great length of time, use their powers to pursue a policy of which the nation disapproved. The development both of the church and of the prerogative were now subject to, and would be moulded by, the will of the nation as expressed in Parliament.

Footnote 1: Above 148.

Footnote 2: See Jenks, Constitutional Experiments of the Commonwealth 2-5.

And just as the authoritative position of Parliament had been secured, so had the supremacy of the law. The Act of the Long Parliament which abolished the Star Chamber, and the Star Chamber jurisdiction exercised by the provincial Councils,3 had secured this result. But the experience of the nation under a Protectorate, which had constantly found itself under the necessity of violating the law, had increased the national desire to see the law really supreme. Juries during the Protectorate had shown this as clearly as a jury was afterwards to show it in the _Case of the Seven Bishops_;4 and the feeling that the restoration of the monarchy meant the restoration of the supremacy of the ordinary law was one of the chief reasons why the nation was practically unanimous in demanding it.

Footnote 4: For instance, Lilburne's two trials and acquittals, Gardiner, Commonwealth and Protectorate i 165-r69; ii 297-298.

The conditions, therefore, under which the continuous development of English Public Law was resumed at the Restoration, were very different from the conditions under which it would have

## Reigns of two last Stuart Kingss 163

been resumed if an agreement had been made with the king in 1641, or even in 1647. Formally perhaps the law would have been the same; but substantially the difference was immense. These eighteen years had permanently altered the relations of king, Parliament, and courts to one another. As a result of this alteration the executive, legislative, and judicial powers in the state begin to assume the legal position which they hold in our modern law. The conditions under which our modern law of the constitution has grown up have been reached.

## III The Reigns of the two Last Stuart Kings and the Revolution Settlement

The evolution of public law during this period, and its final settlement upon its modern basis, were influenced, to a greater extent than at any other period in our history, (i) by the ecclesiastical, and (ii) by the foreign policy of the state.

(i) We shall see that the ecclesiastical policy pursued by Charles II., in the earlier part of his reign, was influenced by the fact that, if he had any religion at all, he was a Roman Catholic 1 --though, from motives of policy, he was never publicly reconciled to that church till he was dying. We shall see, too, that all James II.'s actions were governed by the fact that he was a fanatical Roman Catholic, and wholly under the influence of the Jesuits.2 In Charles II.'s reign these facts had aroused a formidable opposition to the crown; and, in James II.'s reign, it caused the church of England, which was usually the firmest supporter of the king, to pass over to the opposition. A union of Whigs and Tories, who acted together in domestic politics for the first and only time in their history, succeeded in effecting a bloodless Revolution. But though James II.'s policy had aroused a universal opposition, there was a widespread legitimist feeling in the country, which shrank from any interference with the right line of the succession to the throne. The Revolution could not have been so easily and so peacefully effected, if it had not found in William of Orange a leader whose mother was a daughter of Charles I., and whose wife was the eldest daughter of James II., and, till the birth of a son to James, the next he to the throne. The fact that that son was born so opportunely for James that he was generally regarded as suppositions, reconciled much of this strong legitimist feeling to what was, in its view, not a break, but only an anticipation in the order of succession.

Public law of XVITH century

(ii) William would never have come forward as the leader in an English Revolution, if he had not been driven to take this course by the exigencies of European politics. The governing factor in the European politics of the day was the danger arising from the growth of the power of France under Louis XIV. Charles II. was quite ready to use the ambitions of Louis XIV. to attain the object which he had most at heart--freedom from the control of Parliament. Obviously he could not attain this object unless he could render himself in some measure financially independent; and he found that he could accomplish this by the sale to Louis of the neutrality of England. By abandoning all his earlier schemes to establish Roman Catholicism in England, and all his attempts to favour or even to protect the Roman Catholics;1 by allowing Parliament to disgust the nation by its violence, and by appealing to the strong legitimist feeling prevailing in the country;2 he was able, with the help of Louis's subsidies, to crush the opposition, and to dispense with Parliament during the last four years of his reign (1681-1685). James, who had none of Charles's political ability, with even greater eagerness pursued the same foreign policy, not so much in order to render himself independent of Parliament, as to effect what Charles had seen to be impossible--the establishment of Roman Catholicism. It was therefore obvious that William could not secure the adhesion of England to his great continental alliance against Louis XIV. while James was on the English throne. It was this fact which induced him to take advantage of the national detestation of James's ecclesiastical policy, and accomplish the Revolution.

Footnote 1: Below 182, 189.

Thus the ecclesiastical and foreign policy of the two last Stuart kings made the Revolution possible; European politics gave it a leader; and the matrimonial alliances of the Stuart family enabled the majority of the nation to accept that leader as their king.

It is clear, therefore, that we cannot understand the evolution of the public law of this period without a firm grasp of the political events which shaped it, and of the characters and aims of the actors who made those events. I shall, therefore, in the first place, sketch briefly the political, constitutional, and religious environment in which it was evolved. In the second place, I shall sketch the development of the principles of that law during this period. In the third place, I shall consider the influence which political theories, during this period, exercised on the development of those principles.

## Political, Etc., Environment 165

### The Political, Constitutional, and Religious Environment

The Declaration of Breda had, as we have seen,1 laid down four principles as the conditions under which a Restoration was to be effected--a general amnesty, liberty of conscience, security of property, payment of arrears to the army; but we have seen that the manner in which these principles were to be applied was left to Parliament. Parliament, therefore, had a very free hand to settle the limits of their application. The work was done partly by the Convention Parliament which had recalled the king, and partly in the first sessions of the Long Parliament of Charles II's reign, which sat from 1661-1679.

Footnote 1: Above 148.

The first Act of the Convention Parliament was to regularise its existence by declaring that the Long Parliament was dissolved, and that it was a true parliament, "notwithstanding any want of the Kings Majesties writ or writs of summons . or any other defect or default whatsoever."2 In 1661, to prevent any possible doubt as to the validity of the most important Acts of the Convention Parliament, divers statutes passed by it were confirmed.3

Footnote 2: 13 Charles II. st. r c. 7 and ir; though apparently such confirmation was held not to be legally necessary, below 170 n. 3.

Footnote 3: 13 Charles II. st. r c. 7 and ir; though apparently such confirmation was held not to be legally necessary, below 170 n. 3.

Footnote 4: See 13 Charles II. st. r c. 8 3; below 166.

Footnote 5: 13 Charles II. st. r c. 2, repealing f6 Charles I. c. 27.

Footnote 6: 13 Charles II. st. r c. 12, repealing f6 Charles I. c. 27.

Footnote 7: 13 Charles II. c. 12.

The Convention Parliament, having regularised its existence, set to work (i) to settle to what extent the legislation of Charles I.'s Long Parliament, and other legislative Acts of the Inter-regnum, should be accepted as valid; (ii) to introduce new laws on these and other cognate topics; (iii) to carry out the principles laid down by the Declaration of Breda; and (iv) to settle the royal revenue. It was dissolved before it could finish this work; and that work was taken up in a new spirit by the Parliament which succeeded it. I shall consider the effects of the work of these two Parliaments under these four heads.

(i) The general principle upon which these Parliaments proceeded was that all the Acts of the Long Parliament, which had received the royal assent, were valid, and that all other legislation was invalid.4 But to both branches of this principle important modifications were made. In the first place, certain Acts of the Long Parliament, which had received the royal assent, were repealed. Thus in 1661 the Act preventing persons in Holy Orders from exercising temporal jurisdiction,5 and the Act abolishing the jurisdiction of the ecclesiasticl courts (except in so far as it related to the court of High Commission)6 were repealed; in 1662 the Act attain

### Public Law of Xvith Century

and in 1664 the Triennial Act of 1641 was repealed (because, the preamble states, it was derogatory to "his majesty's just rights "), and for it was substituted an Act which declared that Parliaments should " not be intermitted or discontinued above three years at the most."1 In the second place, to the principle that all intervening legislation was invalid, some important exceptions were made, partly on grounds of necessity, and partly from motives of policy. On grounds of necessity provision was made for the continuance of judicial proceedings begun under the Commonwealth and of certain ordinances relating to them,2 for the confirmation of certain judicial proceedings and completed acts in the law which had taken place,3 and for the validity of marriages celebrated since 1642 under the authority of any Act or Ordinance.4 From motives of policy the Commonwealth's Navigation Act was in substance re-enacted.5 Also the legislation of the Long Parliament and of Cromwell, which abolished the incidents of tenure, was confirmed by the Act which abolished the court of Wards, certain of the incidents of tenure, and purveyance ; turned all tenures by knight service and serjeanty into tenure in socage; and compensated the king for the consequent loss of his feudal revenue by an excise on beer.6 The abolition of the incidents of tenure was designed to conciliate the commercial, the compensation clauses, the land-owning classes. (ii) New laws, upon these and cognate topics, were passed to deal with the new situation created by the repeal or the enactment of some of the statutes which I have just enumerated; to settle in a sense favourable to the king matters which had been the subject of controversy in the Long Parliament, or which the history of the Long Parliament showed that it was necessary to regulate; and to provide for the better protection of the king and his government. Thus, the abolition of the

## 16 Political, Etc., Environment

### 16.1 military tenures made it necessary to provide other sources of revenue for the king.

This was done by imposing an excise on beer and other liquors which was given to the king in perpetuity ; \[1\] and, to meet the necessity caused by the abolition of purveyance, provision was made in 1661 for providing necessary carriages for royal progresses and other journeys.\[2\] The immediate occasion for the outbreak of the civil war had been the controversy as to the control of the militia.

A statute of 1661,\[3\] which provided for the control of the militia, asserted the king's prerogative over the military forces in wide terms.

It was clear, too, from the history of the Long Parliament that, " tumultuous and other disorderly soliciting and procuring of hands by private persons to petitions, complaints, remonstrances and declarations and other addresses to the king or to both or either Houses of Parliament for alteration of matters established by law, redress of pretended grievances in church or state, or other public concements, have been made use of to serve the ends of factious and seditious persons.

and have been a great means of the late unhappy wars, confusions, and calamities." \[4\] It was therefore enacted that no one should get a petition for the alleviation of matters established in church or state signed by more than twenty persons, unless three justices of the peace, the major part of the grand jury, or, in London, the mayor, aldermen and common council, had consented to it; and that no petition should be presented by more than ten persons.\[6\] Further, it was obvious that the corporate towns were the strongholds of both political and religious dissent from the re-established order in church and state.

It was therefore enacted that the officials of these towns should be required to take the oaths of allegiance and supremacy, to swear that they believed it unlawful under any pretence to take up arms against the king, and to sign a declaration that the oath imposed by the Solemn League and Covenant was an unlawful oath.\[6\] A commission was appointed to see that these oaths were taken, and it was given power both to remove officials even if they were ready to take these oaths,\[7\] and to restore officials who had been,unduly removed.\[8\] For thePublic Law of Xvith Century

future no one was to be eligible for office unless he not only took these oaths, but also, within a year before his election, had taken the sacrament according to the rites of the church of England.1 For the better protection of the king's person the scope of Edward III.'s statute of treasons 2 was considerably enlarged ; 3 and occasion was taken to assert the principle that neither the two Houses of Parliament together, nor either of them separately, have any legislative authority without the king.4 We shall see that in 1662 the control formerly exercised over the press, both by the prerogative and by the ordinances of the Long Parliament, was regularized and strengthened by a comprehensive Act " for preventing the frequent abuses in printing seditions, treasonable, and unlicensed books and pamphlets, and for regulating of printing and printing presses." 6

(iii) The manner in which these Parliaments proceeded to carry out the provisions of the Declaration of Breda may be grouped under the four heads of the army, the amnesty, property, and religion.

The Act passed for the disbanding of the army appointed commissioners for this purpose, and laid down certain rules and instructions for their guidance.6 Another Act permitted disbanded soldiers, who " used trades," to follow these trades, though they had not served their time of apprenticeship, or complied with the by-laws of the towns in which they proposed to carry on their trades.7 The financial provision, which this disbandment necessitated, was made by a poll tax,6 and by monthly assessments of $70,000, first for two months,9 and then for a further six months.10 The disbandment was accomplished by February, 1661.11

Footnote 118

## 10 Political, Etc., Environment 169

of the law relating to highways and bridges,1 receivers of money for the king's use since 1648,2 and persons commissioned by the king who had traitorously held intelligence with foreign states,3 were excepted from the operation of the Act. These exceptions did not cover any very wide ground, and occasioned no serious dispute. The great contest came over the question, What political crimes if any were to be excepted? It was generally understood that those who had been actively concerned in the trial and execution of Charles I. could not expect to be included in the amnesty.4 However, hopes had been held out to them by a proclamation issued June 6th, 1660, which named those actively concerned in the trial of the king, and ordered them to surrender within fourteen days on pain of being excluded from the amnesty.5 Notwithstanding this proclamation, the House of Commons began by naming seven who were to be executed.6 The rest of the king's judges were to be punished, but not capitally.7 The House then began to consider other exceptions ; and the list gradually swelled.8 The House of Lords wished to make the exceptions even more numerous.9 But there was good ground to think that, if the Houses had their way, serious disturbances would arise.10 At this point Charles intervened ; and, reminding the Lords of the contents of the Declaration of Breda, he persuaded them to resolve that all the murderers of his father should be punished, but no others.11 The Commons wished to save the lives of those who had surrendered, but they gave way on this point, only stipulating that they were not to be executed without the consent of Parliament.12 In addition, Lambert and Vane were excepted wholly from the Act ;13 certain others were excepted, but were not to be punished capitally ;14 and certain others were made incapable of accepting any office, civil or military, in the state.15 In the end, fourteen persons, including Vane, were executed, and about twenty-five were imprisoned

## 170 Public Law of Xvith Century

for life.1 It was necessary for Charles again to intervene before the Parliament of t661 would consent to confirm this Act.2 It was thus due to the statesmanship of both Charles and Clarendon that the question of amnesty was settled upon a liberal basis. Both saw that the stability of the Restoration settlement depended in no small degree upon the liberality of the measure of amnesty, and the promptness with which it was passed.

Footnote 1: Firth, Camb. Mod. Hist. v 94; it may be noted that SS 36 of the Act accepted Oliver Cromwell, Ireton, Bradshaw, and Pride from its provisions, and SS 37 expected the lands and goods of these and certain other deceased persons; they and the other regicides were dealt with by x2 Charles II. c. 30 passed to attain all those "4" guilty of the horrid murder of this late sacred Majestic King Charles the First,"

Footnote 2: Ranke, op. cit, iii 366.

Footnote 3: Iz Charles II. c. 17; cp. Hallam, C.H. it 378; this Act was not confirmed by the ensuing Parliament; but the judges decided that Acts passed by the Convention Parliament could not on that account be held to be void, Heath v. Pryn (1669) r Vent 74.

The settlement of the question of property was more difficult. Special statutes were passed to settle questions relating to ecclesiastical benefies 4 and glebe,4 and to leases made by colleges and hospitals.5 But the general principle applied to settle this question was either laid down in the Act of Indemnity and Oblivion, or followed from its general provisions. With respect to chattels, the provisions of the Act effectually barred any action for tort, by which the original owners of such chattels might otherwise have recovered them, or damages for their taking or detention, whether they were taken or detained by private persons 6 or under the authority of the government.7 There was, however, an exception made in favour of chattels which were the private property of the king and the royal family. They could be recovered unless they had been sold or given to servants or other creditors in payment of what was due to them.8 Also money actually in the hands of the accountants to the crown could be recovered.9 With respect to land the principles applicable were laid down in SS 48 of the Act.10 Under that section the king, the church, and persons whose lands had been seized and sold by the state, were allowed to recover their estates; but all lands sold by their owners, even though these sales had been practically forced by fines for delinquency imposed by the government,11 were made irrecoverable. All attempts to

## 17 Political, Etc., Environment 171

settle terms as between the old and the new owners failed.1 Thus a large transfer of landed property ensued. Both those who were ejected, and those who, because they had themselves sold their land, were barred by the Act from recovering it, considered themselves hardly used. It was a rough and ready settlement which inflicted much hardship, and left a legacy of grievance. But, in the circumstances, it is difficult to see what other settlement could have been made. The state was, as we shall see,2 so nearly bankrupt that no scheme of state compensation was possible. There can, however, be no doubt that the grievances, both of those who were ejected and of those who could not recover their property, promoted a widespread discontent, which seriously affected the stability of the Restoration settlement. "The permanent feud," says Sir Charles Firth,3 " between the Royalists who had sold their lands and the Roundheads who had bought them, embittered English politics for the next generation, and underlay the later animosities of Whig and Tory."

Footnote 1: An attempt to pass a bill for " the satisfaction of purchasers of public lands " failed; and a commission to arbitrate between the purchasers and owners of church lands failed to effect anything, Firth, Camb, Mod. Hist. v 95.

Footnote 2: Below 173- 3 Camb. Mod. Hist. v 95.

Footnote 4: Ibid. 99- 8 Above 148.

Footnote 8: For its text, which was settled after a conference between the bishops and the Presbyterian leaders, see 6 S.T. 17-21.

The religious question was settled in a manner even more unsatisfactory than was the question of property. Charles had promised in the Declaration of Breda that " no man shall be disquieted or called in question for differences in opinion in matters of religion, which do not disturb the peace of the kingdom." No doubt the king would have liked to see a policy of toleration. While in exile he had promised the Pope and other sovereigns to repeal the laws against the Roman Catholics ;4 and it was obvious that some sort of union between the Anglicans and the Presbyterians, who had combined to restore him,5 would have helped immensely to secure the stability of the Restoration settlement. It was certain that no measure of relief for the Catholics would have got a hearing; but, in the Convention Parliament, the prospects of a union between Anglicans and Presbyterians were by no means hopeless. A bill to settle the Protestant religion was dropped in committee;6 but the whole matter was left to the king and a committee of Divines selected by him.7 The king issued a Declaration8 in which he outlined a scheme of union. The church was to be under eiscopal government, but the bishops were to be assisted by presbyters; the liturgy was to be revised; a discretion was to be allowedPublic law of XVIIth century

to ministers in the use of such ceremonies as kneeling at the communion, the cross in baptism, and the wearing of the surplice; a relaxation in the subscription and oath of obedience required by the canons from the clergy or from candidates for ordination was to be allowed. A bill was introduced by Hale to enact these concessions, but it failed to pass.1 Probably it might have passed if Charles had given it an active support. But the opposition of the Presbyterians to a more general scheme of toleration had made Charles less desirous to support a scheme from which the Roman Catholics could derive no benefit;2 and thus a unique opportunity was lost for ever.

Footnote 1: Firth, op. cit. v 96, ${}^{2}$Ibid.

In the ensuing Parliament the royalist and Anglican majority made the prospects of any scheme of comprehension quite hopeless. At the Savoy conference the bishops rejected all the principal proposals of the Presbyterians.3 Convocation revised the prayer book in such a way that it was made more distasteful than ever to them.4 Parliament passed an Act of Uniformity which compelled all clergymen (and others) to consent to the whole contents of the revised prayer book, to take the oath of non-resistance, and to renounce the covenant.5 As a result some 2000 persons forfeited their Iivings.6 Neither to the Roman Catholics nor to the Protestant nonconformists would Parliament make any concessions; and, royalist as it was, it rejected a bill to give the king power to grant dispensations from the law in favour of Protestant nonconformists.7 Thus to Roman Catholics and Protestant nonconformists alike toleration was denied. Against both, as we shall see,8 new legislation was directed. The intolerant spirit thus displayed by the Anglican church was in no small degree responsible for the political turbulence of the reign, and for the dangerous increase in the power of the crown at its close. Religious fanaticism, thus encouraged, embittered political controversy. It contributed to the disgraceful excesses of the Pophis Plot and the Exclusion projects; and these in their turn led to a royalist reaction, which, if James II. had been a wiser man, might have had serious effects upon the development of the constitution. It was not until the Anglicans

## 17 Political, Etc., Environment 173

and the nonconformists were compelled to unite to meet a common danger, that the evil effects of the Anglican intolerance of 1661 were undone,1 and the cause of constitutional government was finally secured.

Footnote 1: Below 1969-201.

(iv) The hereditary revenue of the crown--the revenue, that is, from which the current and normal expenses of the government in time of peace were defrayed--was settled on the following basis. An income of $\\pounds 1,200,000$ was estimated to be needed to defray these expenses, and Parliament voted taxes which it thought would produce this amount.2 But it was soon found that the taxes voted fell short of this amount by some $\\pounds 265,000$ a year.3 Parliament then voted taxes which it thought would make up the deficiency ; but they still fell short of the $\\pounds 1,200,000$ required by some $\\pounds 175,000$.4 An attempt was made to meet this deficit by improvements in the methods of collection ;5 but, in spite of all efforts, Mr. Shaw has estimated that the average yearly income from the hereditary revenue for the first six and three quarter years of the reign amounted only to $\\pounds 837,777$ a year.6 If we remember that the government started with a burden of debt inherited from the reign of Charles I.,7 and that the extraordinary revenue voted for the Dutch war was always anticipated, and was only sufficient to meet the ordinary expenses of government,8 we cannot wonder that the financial condition of the country went from bad to worse. The growing deficit, and the disastrous results of the Dutch War, which were the consequence of that deficit, exasperated the House of Commons on the one side, and, on the other, made Charles the more ready to bargain with Louis XIV. for subsidies in return for the adoption of an anti-national foreign policy.9

Footnote 1: Below 1969-201.

Footnote 2: W. A. Shaw, The Beginnings of the National Debt 393, citing Commons Journal viii 150; Calendar of Treasury Books i 660-r607 xxxv.

Footnote 3: Beginnings of the National Debt 393, citing Commons Journal viii 273-274.

Footnote 4: Beginnings of the National Debt 394.

Footnote 5: Ibid 395 ; 15 Charles II. cc. IT, 12, 13.

Footnote 6: Calendar of Treasury Books i 1660-r607, xxxv; the amount was $\\pounds 739,675$ per annum, excluding hearth money.

Footnote 7: Ibid xviox; ibid f08-r653 vii Pt. i x-xv.

Footnote 8: Ibid ii 1667-1668, x, xi, xvi; at p. lxvii Mr, Shaw concludes that " Charles actually spent on the war, not only all the money which the House of Commons granted him for it, but also a matter of a million and a half more--money which he transferred from, and which was badly needed by, the ordinary departmental peace establishments of the country; for an account of the extraordinary supply voted by Parliament 1660-r668 see Beginnings of the National Debt 395; the statutes imposing it are 2 Charles II. cc. 20 ; 73 Charles II. cc. 4; 73 Charles II. cc. 1; 8, 2 cc. 3; 15 Charles II. cc. 9, 10; 16, 17 Charles II. cc. 1; 17 Charles II. cc. 1; 18, 19 Charles II, cc. 1, 13; 19, 20 Charles II. cc. 6.

Thus it happened that the settlement made by Parliament at

### Public law of Xviith century

the Restoration was bound to provoke new causes of quarrel between the king and Parliament. The settlement of the property question gave a permanent grievance to many, which naturally disposed them to factious opposition. The settlement of the religious question threw into opposition that large minority, who found themselves exposed to many political and other disabilities, because they were outside the pale of the national church. The deficiency in the revenues of the crown, due mainly to economic depression, aroused suspicions of the honesty of the king, which were to a large extent unjustifiable;1 and, when national disasters ensued, these suspicions created in the House of Commons an opposition which was often factious because it was always uninformed.2 In fact, it was because the House of Commons was both powerful and ignorant, that, in a very short time, all these causes of discontent produced, in opposition to the Court, a powerful Country Party. The strength of that opposition was increased by the character and policy of Clarendon and of Charles II. himself. Let us glance at the position taken up by these three factors in the situation--the House of Commons, Clarendon, and Charles II.

Footnote 1: Calendar of Treasury Books i _t660-t669_, xxvi.

Footnote 2: See ibid ii _t667-t668_, xxvi; * The administration left the Parliament practically without a lead . . simply because the government did not understand the art of putting the government's case before the House. . . It is therefore not at all surprising that, concurrently with the voting of supply, the Commons should have turned back again and again to the question of the accounts themselves. There were some members who could not digest these accounts at all, and there were others who simply desired to fish in troubled waters."

The House of Commons no longer occupied the position which it had held under the Tudors and the two first Stuart kings. It was as necessary a part of the government of the kingdom as the king himself. During the preceding eighteen years it had, as we have seen,3 become familiar with all branches of government, and it had directed the policy of the state. It therefore considered itself competent to supervise and criticize the conduct of all branches of the government, and it had some definite ideas as to the policy which that government should pursue, not only in domestic, but also in foreign affairs. In this it accurately represented its constituents. " Foreign observers," says Sir Charles Firth,4 "who visited England after the Restoration noted with wonder the keen interest which all classes of the people took in public affairs." But the House of Commons had very little real knowledge of the details of the work of government, and no means of maintaining a control over its policy which was both constant and effective. The government was carried on by the king's

## Political, Etc., Environment175

ministers who were responsible to him ; and there was no direct communication between their departments and the House of Commons.1 The House was not yet organized into parties ; and, because it had not got the discipline which party organization would in the future supply, it was unable, when it was roused to action, to act effectively. No doubt it could impeach a minister or stop supplies. But it was unable to enquire calmly and with knowledge into the causes of the evils which it denounced. Thus the commission, which was appointed in r1667 to enquire into the public accounts,2 produced no adequate remedies. The House found it easier to attack individuals than to conduct a judicial investigation into the national balance sheet presented to it. It condemned Carteret, the Treasure of the Navy, whom the House of Lords, justly in the opinion of Mr. Shaw,3 acquitted.

Footnote 1: Calendar of Treasury Books ii r667-r668, xxxx-vi.

Footnote 2: r9, zo Charles II: c. t; for the history of the proceedings taken under the Act see Shaw, Calendar of Treasury Books ii r667-r668, xxvi-lyxxvi.

Footnote 3: Ibloxvi-lyxxv.

Footnote 4: Above 137, 141.

Footnote 5: Peysys, Diary ii 72 (Ed. Wheatley), wrote in 1667 that Clarendon was " much envied," and that " many great men do endeavour to undermine him "; but that they had no success, " for that the king (though he loves him not in the way of a companion as he do these young gallants that can answer him in his pleasures) yet cannot be without him, for his policy and service."

The defects of the House of Commons tended to confirm Clarendon in all his preconceived ideas as to the proper relations of the House of Commons to the king.4 Throughout the period of the Civil Wars Clarendon had given Charles I.- and his son wise and practical advice. It was wise and practical because his prejudices and ideals were those of the great majority of lawyers and moderate men who had lived through those troubled times. When the Restoration came, these prejudices and ideals enabled him to resettle the government on the old foundations. To Charles he was indispensable ;5 and his strong, honest, and able counsel6 was always at his service. But in domestic politics he was still the man of 1641. He was a firm supporter of the church, and, unlike his master, opposed any kind of toleration, whether based on legislation or on the prerogative.7 He was an equally firm supporter of the prerogative of the crown. The working and policy of the government ought, he considered, to be under the sole control of the king, to whom and to the law his ministers were alone responsible. The idea that he or any one else should be appointed to hold a newly created post of premier or first minister, he considered to be unnecessarily

### Public law of XVIIH century

expensive and wholly unconstitutional.1 At the same time he was prepared to uphold the powers and privileges of Parliament, provided it kept itself within its proper limits. It was, he considered, a partner in the work of legislation, it controlled taxation, and it could impeach ministers guilty of crimes. But it had no right to control or supervise the work of government. Still less had it any right to dictate the policy of the state. Thus he was wholly opposed to the clause in the Finance Act of 1665, proposed by Downing, by which the supply was appropriated to the war--in his opinion it was "'introductive to a commonwealth and not fit for a monarchy "; 2 and he quite failed to appreciate the fact that Downing's scheme, of which this appropriation clause was an essential part, would make the money voted immediately available, by enabling the Exchequer to borrow at first hand, and so become independent of the bankers.2 He was scandalized by the demand made by the House of Commons in 1666 that it should appoint commissioners to examine accounts. The House of Commons, he thought, must be kept in its place ; 4 and in 1667 he advised a dissolution, and maintained the legality of supporting the army by levying contributions, so long as the danger of a Dutch invasion was imminent.5

Footnote 1: The Duke of Ormond had suggested that he should give up the Chancellorship and devote himself wholly to the king, in order to wear him, if possible, from his gay companions; Clarendon refused--" Whilst he kept the office he had . . the king felt not the burden of it; because little of the profit of it proceeded out of his own purse. . Whereas if he gave over that administration and had nothing to rely upon for the support of himself and family, but an extraordinary person out of the Exchequer, under no other title or pretence but of being first minister (a title so newly translated out of French into English, that it was not enough understood to be liked), the king would quickly be wearled of so chargeable an officer, and be very willing to be freed from the reproach of being governed by any . ., at the price and charge of the man who had been raised by him to that inconvenient height above other men," Life (ed. 1843) 1018-1019.

Footnote 2: Ibid 167.

Footnote 3: Elganings of the National Debt 452.

Footnote 4: Clarendon represents himself as urging "that he could not be too indulgent in the defence of the privileges of Parliament; that he hoped he would never violate any of them "; but he said the king ought, "to be equally solicitous to prevent the excesses in Parliament, and not to suffer them to extend their jurisdiction to cases they have nothing to do with; and that to restrain them within their proper bounds and limits is as necessary as it is to preserve them from being invaded," Life 1797; and others thought the same, cp. Pepys, Diary vi 5, where he relates that he talked with Carteret, " How the king hath lost his power by submitting himself to their way of examining his accounts, and is become but as a private man."

Footnote 5: Hallam, C.H. ii 369 ; Firth, Camb. Mod. Hist, v 113-T14.

Lharles was very anxious to extend England's foreign com

## Political, etc., Environment1 177

merce and colonies. His marriage with Catherine of Braganza had allied him with Portugal ; and this alliance had brought him Tangier and Bombay, and commercial privileges in the Portuguese possessions in South America and the Indies.1 But these privileges involved an increased commercial rivalry with the Dutch, which was the direct cause of the Dutch war. The course of the war had not been altogether favourable to England ; and in 1665 had come the great Plague, and in 1666 the fire of London. Then, too, in spite of the money derived from the queen's dowry, from the sale of Dunkirk to the French, and from the sale of crown lands,2 the financial position was very critical. Negotiations had been opened with the Dutch in 1666 ; and in 1667, to relieve the financial pressure, the government had decided to economize on the fleet.3 The result was the appearance of the Dutch ships in the Thames, and the destruction of part of the English fleet in the Medway. This was the last straw. The Cavaliers had never forgiven Clarendon for securing the passage of the Act of Indemnity and Oblivion. The new Country Party accused him of corruption, and regarded him as responsible for all the mistakes and inefficiency of the government. His fellow-counselors disliked his haughty and overbearing manners.4 It was at one time thought that he might retire from politics, and devote himself to the judicial duties of his office.5 But the opposition was too strong and too universal ; and his ideas of his duty to the crown caused him to refuse the offer of some of his friends to defend him in the Commons by an attack on his chief opponents, Arlington and Sir W. Coventry, for which he was to supply the material.6 He was impeached ;7 and, on his flight,

### Public Law of Xviith Century

he was banished by Act of Parliament.1 He died in exile seven years later.

Charles knew very well that most of the charges against Clarendon were false. The sale of Dunkirk was, considering the state of the Exchequer, wise. It was the same financial difficulties, for which Clarendon was by no means answerabie, that had led to those naval economies which had made the Dutch raid possible. The Dutch war itself had been encouraged and approved by Parliament.2 But the old-fashioned ideas and prejudices of Clarendon had become more and more irksome to Charles. He was wholly opposed to Charles's wish for some measure of religious toleration.3 He was equally opposed to the open licentiousness of the king and his court.4 When Parliament turned against him, Charles saw that any attempt to retain him would be dangerous. .He therefore parted with him by no means unwillingly. He believed that, under the new conditions, which he now understood perfectly, he could manage Parliament very much better than Clarendon. His belief was correct; for he saw, what Clarendon could never have seen, that it was only by superior diplomacy that he could hope to free himself from Parliamentary control, and to win for the prerogative a position in the state independent of Parliament and co-equal with it.6 From the date of Clarendon's fall in 1667, when he became his own first minister,6 he kept this end steadily in view; and in 1681, after many vicissitudes, he attained it.

Footnote 1: 19, 20 Charles II. c. 2.

Footnote 2: 19 Firth, Camb. Mod. Hist. v los., 3Above t71.

Footnote 3: 4: "Among all the causes of Clarendon's fall none appears to have been more potent with Charles than his belief that Clarendon had hastened this marriage (the Duke of Richmond and Miss Stuart) to foil his own designs on Miss Stuart," Christie, Life of Shakesbury i 309-330; cp, Bramston, Autobiography (C.S.) z56; Clarendon, Life rzq2; Pepys, Diary wil 84, had heard that Lady Castlemaine was at the bottom of the business, and that she "t'm out in her smock into her waiary looking into Whitehall gardens. . . and stood joying herself at the old man's going away."

Footnote 5: "He was a thoroughgoing politician. All that he did in his government was founded on the fact that he could not bring himself to submit to the necessity of being simply a parliamentary king. Not that he imagined that he would be able to govern without Parliament, to which he owed his restoration, but he strove increasingly two procure for hereditary right, on the strength of which he had been restored, an independent importance, as equal, or even superior to Parliament," Ranke, op. cit, iv z03.

Footnote 6: "He lived with his ministers, as he did with his mistresses; he used them, but he was not in love with them. He showed his judgment in this, that he cannot properly be said ever to have had a _favourite_, though some might look so at a distance. . He tied himself no more to them than they did to him, which implied a sufficient liberty on either side," Halifax, Character of Charles II., Foxcroft ii 351.

To say of Charles II, that he was the abiest of the Stuart kings would be to damn him unjustly with the faintest of praise. In fact he was, in many respects, the ab

## Political, Etc., Environment 179

matist of his day--far inferior no doubt to William III. in his aims and ideals, but in no wise inferior to him in ability. In many respects--in his genius for diplomacy in the conduct both of home and of foreign affairs, in his desire for religious toleration, in the manner in which he was always ready to subordinate his religious preferences to political needs, in his cheerful temperament and affable manners, in his gross licentiousness1--he was a true grandson of Henry IV. of France. It is not surprising that he was an abler foreign statesman than any of his ministers. His dealings with the Scotch factions in 1651 showed that he possessed considerable diplomatic talent; 2 and his long exile had taught him all there was to know of European politics. It is very much more surprising that, during the first seven years of his reign, when, to all appearance, he was devoting all his time to his mistresses and the other delights of a licentious court, he had come to some very accurate conclusions as to his real position in relation to his Parliament. He had learned that the House of Commons was in fact the strongest power in the state through its control of finance, and that he could not dispense with it unless he could get an adequate supply from some other source. On the other hand, he controlled the policy of the state ; and he knew that Louis XIV. was prepared to pay for an alliance or even for the neutrality of England. But Parliament was growing more and more fearful of the growing power of Louis XIV., and more and more inclined to a policy of hostility with France. It was, therefore, possible to use Parliament to frighten Louis, and to use Louis to escape from the control of Parliament. This was the keynote of his policy after the fall of Clarendon. He pursued it with infinite patience and skill, and, in the end, succeeded so well that he made the crown stronger than it had ever been under any other king of the House of Stuart. In the pursuit of this object he was helped by his social gifts, and even by his vices. His capacity for summing up a situation in a witty epigram, his geniality, his cheerfulness in adversity, and his affability to all and sundry, endeared him to his people.3 His

### Public law of Xvith century

frivolities and immoralities, though they excited the displeasure of many,1 led most to suppose that such a person need not be taken seriously. They blinded both the ambassadors of foreign states, and his own ministers and opponents, to his real abilities.2 Some few no doubt saw more clearly. Halifax, who possessed in an eminent degree the power of passing judgments upon contemporary persons and events which the verdict of history has endorsed, who drew a finished picture of Charles from the life, was under no illusion as to his abilities and his success.3 Killigrew saw that he had the ability to do the business of state moreably than anyone else if he chose to use it.4 No doubt his policy was a selfish policy--desire for his own ease and quiet came first. But it should be remembered that, in his desire for religious tolerance, he was in advance of his contemporaries; and that his care for commerce and the navy conferred permanent advantages upon his country.6 Unfortunately for his own reputation, fortunately for England and for Europe, his successor was so foolish that he destroyed in three years the position which Charles had won for the crown and the prerogative during the eighteen years of his personal rule.

Footnote 1: See the mock speech to Parliament which Marvel published in 1675, Works (Ed. Groszt) ii 431-433; cp. Clarendon, Life i rjq2; Marvel's Historical Poem, Works i 343-349, and Last Instructions to a Painter about the Dutch War, ibid i 253-285; see the letter to the king cited S.P. Dom. 1655-1666 xxvi-

## Political, Etc., Environment 181

War was to be made upon Holland in alliance with France; and, according to its secret provisions, Charles was to declare himself a Catholic, and Louis was to help him by force to make England Catholic and himself absolute.1 To get money for a war, of which Parliament would certainly not have approved, payment of interest upon the bankers' loans was stopped in 1672.2 From motives of policy the announcement of Charles's conversion to Catholicism was postponed;3 but in the same year the Catholics were partially relieved by the issue of a Declaration of Indulgence, which suspended all the penal laws against all nonconformists. The alliance did not succeed in crushing Holland. The Prince of Orange was called to the government, and prepared to resist to the last.4 The fact that Holland rejected overtures for peace enabled Charles to go to Parliament and to ask for a supply to carry on the war.5 A supply was granted; but the Declaration of Indulgence was so fiercely attacked that Charles was obliged to withdraw it.6 Fear of Catholicism was now so thoroughly aroused that Parliament even consented to consider a proposition for the toleration of Protestant nonconformists.7 At the same time they inserted in a bill to stop the growth of Roman Catholicism, sent down by the House of Lords, a clause to the effect that no one could serve in any public office unless he took an oath denying the doctrine of transubstantiation.8 The bill glimpses so often repeated, that to discerning eyes it was glaring; in the very first year there were such suspictions as produced melancholy shakings of the head, which were very significant. His unwillingness to marry a Protestant was remarkable. A thousand little circumstances were a kind of accumulative evidence, which in these cases may be admitted. ... Men that were earnest Protestants were under the sharpness of his displeasure, expressed by raillers as well as by other ways. ... It was not the least skill part of his concealing himself to make the world think he leaned towards an indifference in religion. He had sicknesses before his death, in which he did not trouble any Protestant divines; those that saw him upon his death-bed saw a great deal,' Foxcraft ii 34-347; there were constant rumours that the king was a Papist, see e.g., S.P. Dom. 1667 409, cexiv so; ibid i 667-1668 xvi; he secretly avowed his religion in r669, Pollock, Camb. Mod. Hist. v 202-203. 1 Ibid 203-205. 2 For a detailed account of the actual nature of this transaction see Shaw, Calendar of Treasury Book iii Pt, i r669-t672 xiii-lixii; Beginnings of the National Debt 391--" the Bankers' advances were loans made on the security of supplies, and the stoppage was a stoppage of payment upon assignation"; for the actual order see S.P. Dom. 1677-1672 87-88. 3 Pollock, Camb. Mod. Hist. v 203; Ranke, op. cit. iii 498. 4 Pollock, Camb. Mod. Hist. v 208. 5 Ibid. 6 Ibid 208-209; below 222. 7 Ibid 209; cp. Foxcraft, Life of Halifax i r20 n. i; cp. Hist. MSS. Com. oht Rep. App. 44 no. 170; for a further effort in this direction in r676-t677 see ibid 68 no. 315. 8 Ranke, op. cit. iii 538-540; the oath took this form, Coventry explained, because the Pope might grant a dispensation for taking the oath of supremacy, but that transubstantiation, being an article of faith, the Pope could not grant a dispensation for making this declaration.

### Public law of XVIIH century

thus amended became the first Test Act,1 The Act accomplished the purpose with which it had been passed. Clifford and the Duke of York resigned their offices. Shaftesbury, who had advocated its passage, perhaps because he had got some information as to the secret clauses of the Treaty of Dover, was dismissed and went into opposition.2 Charles's Catholic schemes had failed; and it was quite obvious that, if Parliament was allowed to sit, it would demand a Protestant foreign policy. Louis paid Charles a subsidy which enabled him to dispense with Parliament from Jan., 1674, to April, 1675.3

Footnote 1: 25 Charles IT. c. 2; below rgg; for the proceedings on the bill in the Lords see Hist. MSS. Com. 9th Rep. App. z0 no. rio; see ibid 4z no. r165, and S.P. Dom. r673-1674 r50-151 for a bill introduced to secure the Protestant religion, which, interalia, provided that members of the royal family should not marry Roman Catholics and should be brought up as Protestants.

Charles now adopted another line of policy. He threw over for ever his Catholic schemes, and appointed as his chief minister Sir Thomas Osborne who was soon a fter created earl and then marquis of Danby. He was a sturdy Anglican, and an opponent of France; and he had a genius for finance and for organization. For the first time in the reign, helped by a revival of trade, he put the government on a sound financial footing ;4 and, by a system of corruption, he organized a compact body in the House of Commons, who were ready to vote for any measure which the court proposed.5 The idea of Charles and Danby was to get, by an alliance with the Anglican party, supremacy in the state for both church and king.6 To effect this, they proposed to exact from all office-holders a non-resisting test, which would have shut out from office the Country Party and the Protestant nonconformists as effectively as the Test Act had shut out the Catholics.7 The proposal aroused furious opposition in both Houses; but, though " disputed by inches,"8 it was carried in the Lords; and it might have been carried in the Commons, if Shaftesbury had not managed to obstruct all business by his skilful use of the disputes as to jurisdiction which arose out of the case of _Shirley_ v.

**POLITICAL, ETC., ENVIRONMENT 188**

\_Fagg.\_1 Parliament was prorogued ; and when, on its meeting, the dispute again broke out, it was again prorogued from Nov., 1675, to Feb., 1677. Louis, who feared Danby's anti-French bias and his schemes for the control of the House of Commons, made the prorogation financially possible.2

Footnote 1: Foxcroft, op. cit, i z17 ; Pollock, Camb. Mod. Hist, v 217 ; for the dispute see vol. i 374-375.

Footnote 2: Pollock, Camb. Mod. Hist. v 217-248.

The two great parties were forming. Danby had organized in the House of Commons the party who supported church and king--the future Tories. Shaftesbury organized the constituencies in the Protestant interest, and thus created the party destined to be known as Whig.3 In the House of Commons Danby's party had the majority ; and an attempt by Shaftesbury and some other peers to prove that, under a statute of Edward III.'s reign, the Parliament was, in consequence of so long a prorogation, ipso facto dissolved, ended in their committal to the Tower.4 But, though Danby induced the House of Commons to vote a supply, he could not prevent an address to the king asking him to join the alliance against France ; nor could he prevent a threat to refuse further supplies unless, in future, foreign alliances were submitted to it. Charles adjourned Parliament, and got a further supply from Louis. But, having got it, he tried to strengthen his position with Parliament by marrying the daughter of James to William of Orange, and by allying himself with Holland to compel France to make peace.5 Charles was thus playing off Louis against the House of Commons ; and he played his game with great skill. He got money from Parliament for a war with France. He got money from Louis to disband his army and dissolve Parliament. Peace was made at Nymegen (1678), and Charles was left master of the situation at home, with an army and plenty of money.6

Footnote 4: Pollock, Camb. Mod. Hist. v 218 ; for the proceedings on the writ of Habeas Corpus brought by him see 6 S.T. 127o.

Footnote 5: Pollock, Camb. Mod. Hist. v 219.

Footnote 6: Ibid zrq-220.

Then came Oates's revelation of a Popish Plot, for the assassination of the king and the conquest of the country by an army of Roman Catholics. Throughout the reign there had been plotsPublic Law of XVIII Century

and rumours of plots.1 Sometimes risings of the fifth monarchy men (such as Venner had led in 1661), and of other Protestant sects, had been feared; and sometimes plots and risings of the Papists. The rumours that Charles was a Catholic,2 the certainty that James was a Catholic, and the French policy of the king,3 had tended to spread abroad among the nation a nervous fear of Catholic designs. Thus the romances of Oates fell into a soil well prepared to receive them. When the fact of Catholic intrigue was in a manner corroborated by the letters of Colman, the Duchess of York's secretary, to Pere de la Chraise, the confessor of Louis XIV.; 4 and when the existence of the plot was thought to be proved by that unexplained mystery, the death of Sir Edward Berry Godfrey,5 the nation went mad with terror.6

Shaftesbury and his party made the most of their opportunity. A second Test Act was carried, which excluded all Roman Catholics from both Houses of Parliament.7 It was only by a

## 10 Political, Etc., Environment 185

majority of two votes, and contrary to most people's expectation, that the House of Commons assented to a proviso which permitted the Duke of York to retain his seat in the House of Lords.1 Naturally the question of raising a military force to suppress a Catholic rising came to the front. The House of Commons favoured the plan of embodying the militia for a fixed period ;2 but Charles objected to embodying a force which he could not completely control. The House also wished that the troops, which had been enlisted for a continental war, should be disbanded.3 And here Louis XIV. saw eye to eye with the leaders of the opposition. He was not sorry to have his revenge on Charles, and he had the means of taking a very complete revenge. He bribed Montague, the ambassador at Paris, who was angry with Danby, to reveal to the House of Commons which had voted money for a war with France, the fact that Charles had offered to dissolve Parliament for a payment of six million francs.4 Danby was impeached ; and the Parliament, which had now lasted nearly eighteen years, was dissolved in order to save him (1679).5

Footnote 1: Gray's Debates vi 253; the numbers were I58 to I56.

Footnote 2: Hist. MSS. Com. 17th Rep. 64 no. 30.

Footnote 3: Pollock, Camb. Mod. Hist. v 222-223.

Footnote 4: Pollock, The Popish Plot 177-18I.

Footnote 5: Ibid 183 ; for the lengthy proceedings connected with Danby see II S.T. 599; vol. i 382-383.

Footnote 6: "The government could rely upon a mere handful of twenty or thirty votes in the new Parliament as against a hundred and fifty in the old," Pollock, The Popish Plot 183-184.

Footnote 7: Ranke, History of England iv 77-78; he refused to surrender till a bill of attainder had passed both Houses ; then he surrendered, and was committed to the Tower, where he remained for five years.

Footnote 8: Hist. MSS. Com. 9th Rep. App. 42 no. 165, 45 no. I58 (1673-1674); ibid 8r no. 352 (1676-1677).

Footnote 8: Pollock, Camb. Mod. Hist. v 222, 213.

In the new Parliament, which met in the same year, Shaftesbury and the Whigs had an immense majority.6 Danby was again impeached ;7 and a bill was introduced to exclude the Duke of York from the throne. For some years before this date, bills had been proposed to prevent any of the royal line marrying a Papist, and for the education of the children of certain of the king's relations as Protestants.8 There had also been rumours of various expedients for preventing the succession of the Duke of York. It had been suggested that Charles's illegitimate son, the Duke of Monmouth, was, in fact, legitimate ; and a royal divorce had been mooted.9 The Duke of York's second marriage in 1673 to a Catholic had caused renewed interest to be taken in these projects.10 But the Bills did not pass, and Charles would not hear of any of these expedients. The crisis of the PopishPublic law of XVith century

Plot brought to the fore this new expedient--the exclusion of the Duke of York by Act of Parliament. During the last Parliament this expedient had been suggested during a debate on an address to the king to remove the Duke of York from his presence and counsels.1 But to this expedient Charles was absolutely opposed. He saw that its adoption would entirely alter the position of the crown in the constitution. A king who held his throne by nothing but a Parliamentary title, could not claim the independent position of a king who claimed by a right superior to any human law.2 The monarchy, he feared, might by degrees become elective.3 He therefore refused to listen to a scheme which would have compromised both his own position and that of his successors ; and he knew that he would have the support of the strong legitimist feeling prevailing in the country, if he took his stand on this ground. But he was willing to do anything short of this to conciliate Parliament and the nation ;4 and, with this object in view, he consented to try Temple's scheme of a remodelled Privy Council. The Privy Council was to be composed of thirty eminent persons, fifteen of whom held no office. Parliament, it was thought, would not be so ready to quarrel with so respectable a body.5 But, as thus remodelled, the Privy Council was an impossible executive body. Charles was perfectly well aware of this fact. He had asserted to the scheme to calm the nation; but he never intended the new Council to have any real power--"God's fish," he said, "they have put a set of men about me, but they shall know nothing."6 The opposition were not deceived by this device; and they pressed on the Exclusion Bill.? To stop its progress Charles dissolved Parliament, but not before it had passed the Habeas

## Political, Etc., Environment 187

Corpus Act,1 a measure which in the circumstances Charles did not dare to reject.

At the elections for the new Parliament the Exclusion Bill, and the recognition of the Duke of Monmouth as heir to the throne, was the programme put before the country by Shaftesbury and the Whigs. They secured a majority and carried the Exclusion Bill in the House of Commons.2 It was at once carried up " with a great shout" to the Lords, who went into committee that there might be a freer discussion of the bill.3 The crisis of the Exclusion contest had been reached. Godolphin, Sunderland, and the Duchess of Portsmouth had gone over to the Whigs, who appeared to be supported by a united nation.4 But cooler observers could see that the nation was by no means so united as the Whigs supposed ; and that, unless the king gave way, no such scheme could be carried through without civil war.5 It was the perception of this fact by Halifax that induced him to desert " the popular and safe way,"6 and to employ all his unrivalled powers of oratory and argument against the bill. He, as James II. afterwards said, " bore the burden of the day in the committee,"7 and succeeded, almost unaided, in securing its rejection by the House of Lords.8 The fact that Halifax--the prince of Trimmers--had thrown his weight against the bill, was a sure sign that the moderate men were coming over to the side of the crown. When the bill had been thrown out, Halifax tried in vain to induce the House to adopt some scheme for the limitation of the Duke's powers if he succeeded to the throne.9 Neither the Court party nor the Whigs were in a mood to consider compromises of this kind. The House of Commons refused supplies,10

### Public law of Xviith century

and Parliament was dissolved. It looked as if a civil war could hardly be avoided.1 But Charles had the situation in hand.

He summoned a new Parliament to meet at Oxford. In his speech from the throne he adhered to his refusal to alter the established order of succession. "But," he said, "to remove all reasonable fears that may arise from the possibility of a Popish Successor's coming to the crown; if means can be found, that in such a case the administration of the government may remain in Protestant's hands, I shall be ready to hearken to any such expedient, by which religion might be preserved, and the monarchy not destroyed."2 He concluded with a hit at the arbitrary conduct of the opposition--" I may the more reasonably require that you make the laws of the land your rule, because I am resolved they shall be mine."3 The Commons refused to hear of any compromise, and, after a week's session, Parliament was dissolved. Charles issued a Declaration in which he vindicated his course of action, by showing that the result of the attitude adopted by the Commons would inevitably have been civil war.4 The country rallied round him in defence of hereditary and money from it cre long, and that in conclusion he would come in to them," Burnet, op, cit. ii 266.

Footnote 1: We have not been able to find a complete list of the names of the

## 18 Political, Etc., Environment 189

right, and loyal addresses poured in from all sides. The power of the Whigs was broken.

Charles had secured this result by skilful diplomacy. He had reassured the Protestants by declining to interfere in favour of any of the victims of the Popish Plot,1 and by offering to consent to the amplest safeguards for the Protestant religion in the event of his brother's succession. He had conciliated the large number who believed in the divine right of kings by refusing to interfere with the order of succession. He had brought over to his side all the moderate men who were disgusted by the violence and arbitrary conduct of the House of Commons, and who feared above all things the outbreak of a new civil war. At the same time he had concluded another deal with Louis XIV. for subsidies in return for neutrality.

Footnote 1: The author was supported by the National Science Foundation of China under grant No. 10

## 190 Public Law of Xvith Century

obtained office, be suitably rewarded with the title, which, according to the prevailing tariff, the amount of the contribution had earned. But the seventeenth century differed from our days, not only in the methods of corruption which it was possible to use, but also in the persons or bodies whom it was most profitable to corrupt. It was then, not the House of Commons, but the king which controlled the policy of the state. It was therefore, if possible, better to make a bargain with him. Therefore, although Louis had often been deceived by Charles,1 he found it better worth while to pay him, to be rid of Parliament, than to pay the Whigs to oppose the king. Though they took his money, their anti-Catholic feeling was closely allied to an anti-French feeling, which might at any time lead England to interfere in continental affairs. On the other hand, James was thoroughly pro-French. Obviously, therefore, it paid Louis to take measures to prevent the demand for Exclusion from ever being heard of again.

Footnote 1: See Louis' instructions to Barillon, March and April, 168o, cited Ranke, op. cit. iv 103:

Thus Charles redeemed a situation that at one time seemed almost hopeless. His financial position was now secure ; and he was supported by the large majority of his subjects. He soon carried the war into the enemy's camp. The charters of London 2 and sixty-six other towns,3 which were the strongholds of the Whigs, were forfeited, and their constitutions were remodelled in such a way that the Tory interest was made predominant. Shaftesbury, thus deprived of his main support, fled, and died an exile in Holland. The intrigues of some of the Whig leaders, which came to light when the Ryehouse Plot was discovered, were avenged by a series of arrests for treason.4 Russell 5 and Sidney 6 were executed, Essex destroyed himself in the Tower,7 and Monmouth was driven into exile.8 On the day of Russell's execution the University of Oxford solemnly condemned twenty-seven propositions taken from various writers, which it regarded as justifying such treasonable attempts, and asserted that unconditional obedience under the divinely appointed king was, under

## Political, Etc., Environment

All circumstances, the duty of the subject.1 "The Whigs," says Ranke,2 " were preached at as much as the dissenters. From all parts of the country and from all classes the king received addresses, expressing hatred of their opinions and tendencies. That the doctrine of the lawfulness of resistance threatened the country with disorders which might lead to civil war, procured for the doctrine of passive obedience a momentary supremacy in social life."

Footnote 1: Somers' Tracts viii 420; cp. Echard, History of England, vol. iii' Bk. ii c. 5 p. 1036.

During the closing years of the reign the party of the stricter Tories, led by the Duke of York, was in the ascendant.3 In spite of the Test Act, the Duke of York was in 1684 made Lord High Admiral.4 In spite of the Triennial Act, Parliament was not summoned.5 Rochester, the Duke of York's brother-in-law, and Jeffreys, gained in power and influence at the expense of more moderate men like Halifax and North. But Charles did not decisively commit himself to either party. Parties were in a balanced state when the king died February, 1685.6 His brother James quietly succeeded to the throne.

Footnote 1: Somers' Tracts viii 420; cp. Echard, History of England, vol. iii' Bk. ii c. 5 p. 1036.

Footnote 2: Op. cit. iv 182,

Footnote 3: Foxcroft, op. cit. i 357.

Footnote 4: Rersby, Memoirs 303--" The name and patent not being given, because of the Act of Parliament for taking the oaths and the sacrament. However, this did dissatisfy some people."

Footnote 5: Character of a Trimmer, Foxcroft ii 300; Halifax gave the king good reasons why the should summon a Parliament, see Rersby, Memoirs 203-294; cp. Ranke, op. cit. roo, rq.

Footnote 6: Foxcroft, op. cit. i 420-435.

Footnote 7: Ranke, op. cit. iv. 230, 231.

When Charles died the monarchy was stronger than it had ever been since the death of Elizabeth ; and the Parliament which James summoned shortly after his accession showed that the nation acquiesced in this state of affairs. No doubt care had been taken with the elections. No doubt the remodelling of the corporations had had a powerful influence.7 But, when all such allowances have been made, it is quite clear that the nation regarded a strong monarchy as the best security against a re-crudescence of the turmoil and violence of the Exclusion agitation. The suppression of Monmouth's rebellion still further increased the strength of the monarchy. Secured by means of his cordial relations with France from all danger of foreign war, with money enough to support an army to repress all disturbances at home, there is no doubt that, as Ranke says,8 James " would have ensured himself a peaceful and perhaps a glorious reign if he could have prevailed on himself to treat his religion as a private matter." But, though he had so treated his religion so long as he was DukePublic Law of Xviith Century

of York, he could not prevail upon himself so to treat it when he became king. Such a course he considered to be both cowardly, and contrary to his duty to God who had given him his throne.1

Footnote 1: Ranke, op. cit, iv 216, 217.

James had a few good qualities. He was industrious and personally brave, and had won some praise for his services in connection with the navy. But, such good qualities as he had, were entirely overshadowed by his moral and intellectual shortcomings. He was as impatient of contradiction as his grandfather, without his grandfather's geniality. He was as bigoted as his father, but in a cause which was feared and hated by all but the most insignificant minority of his subjects. He had some of his father's dignity, but none of his moral purity or his moral courage in adversity. His religion came first : the welfare of his country a bad second. And, such was his impatience to further the cause of his religion, that in three years he had united the nation against him.

Even his subservient Parliament began to murmur when the king's intentions to favour the Catholics became obvious.2 The persecution of the Huguenots in France, and the presence of the refugees in England, brought home to all the peril of Protestantism, and aroused a fiercer hostility to France.3 The king had already a standing army, which was largely officered by Catholics ; and he avowed his intention of procuring, if possible, the repeal of the Test Act and the Habeas Corpus Act 4--the two statutes which were the chief guarantees for a Protestant and a constitutional government.5 As Parliament would obviously refuse to consent to repeal either of these statutes, it was prorogued. When it was found to be impossible to induce its members to promise to vote for such measures as these, it was dissolved;6 and active measures were taken to secure the return of a more compliant assembly.7 In the meantime James set about his design of restoring Catholicism by means of his prerogative and a packed bench of judges. By the exercise of the dispensing and suspending powers the Test Act was practically repealed ; and all ministers--even uncompromising Tories like Rochester 8 --were dismissed if they adhered to their religion. In defiance of the statute of 1661, the court of High Commission was re

## 10 Political, Etc., Environment 193

established in 1686 by an exercise of the powers belonging to the king as supreme head of the church;1 and thus the royal supremacy, which had been sanctioned by statute for the preservation of the Reformation settlement, was used to destroy it. By means of the issue of a Declaration of Indulgence, James hoped to unite Roman Catholics and Protestant nonconformists against the church of England. But Charles II. had already found that this scheme was hopeless;2 and Halifax's " Letter to a Dissenter" convinced all thinking Protestants that such an alliance would be dangerous alike to their liberties 3 and their faith.4 Nothing, however, could convince James that his hopes were vain. He reissued his Declaration, and ordered the clergy to read it in their churches.5 He then proceeded to prosecute the Seven Bishops for seditious libel because they had presented to him a respectful petition 6 against this order, in which the existence of his prerogative to suspend laws was questioned. Even their acquittal, and the outburst of popular feeling with which it was accompanied, taught him nothing.

Footnote 1: See 17 S.T. 1743 for the order establishing it.

Footnote 2: Above 172.

Footnote 3: Where to rescue yourselves from the severity of one law, you give a blow to all the laws by which your religion and liberty are to be protected; and instead of silently receiving the benefit of this Indulgence you set up advocates to support it, you become voluntary aggressors, and look like counsel retained by the Prerogative against your old friend Magna Charta, who hath done nothing to deserve her falling thus under your displeasure. If the case then should be, that the price expected from you for this liberty is giving up your right in the laws, sure you will think twice you go any further in such a losing bargain," Foxcroft, op. cit. 372.

Footnote 4: If they \[the Roman Catholics\] do not succeed in their design they will leave you first ; if they do, you must either leave them when it will be too late for your safety, or else after the queaziness of starting at a surjective you must be forced to swallow transubstantiation," ibid 376.

Footnote 5: For the order see zg S.T. 276; for the petition of the bishops see 139.

Footnote 6: Did. 7 Temperley, Camb. Mod. Hist. v 241-242.

Footnote 8: Ibid 239. 9 History of England iv 443.

VOL. VI.--13

### Public Law of Xvith Century

attacking Holland, enabled William's fleet to sail; and fortunate changes in the wind enabled him to land without any opposition from the English fleet.1 Too late James tried to conciliate his subjects by concessions.2 Deserted even by his own daughter, he gave up the struggle and took flight for France. His flight helped to convince the country that James looked to French arms, both to restore him to the throne, and to make it possible for him to re-establish Roman Catholicism. It enabled William to claim, not a mere regency, but the throne. But James was captured and brought back to London. William took care that every facility should be offered to James for a second flight. James fell into the trap, joined his wife in France, and thus left the way clear for William.3

Footnote 1: Temperley, Camb. Mod. Hist. v 243-246.

Footnote 2: Ranke, op. cit. iv 422-425. Temperley, Camb. Mod. Hist. v 248,

Footnote 3: r William and Mary c. r; for a summary of the debate on this Bill see Macaulay, Hist. of England (ed. r864) ii 256-257; it is, as Macaulay says, a good illustration of that legal conservativity which is the dominant note of the Revolution.

Footnote 4: r William and Mary, sess. c. 2.

Footnote 5: r William and Mary c. 5.

Footnote 6: E.g.: r William and Mary cc. 2, r, rg-giving powers of arrest to the government; c. 28-- payment to the States General of the cost of William's expedition; r William and Mary, sess. 2 c. 8, a William and Mary, sess. 2 c. 13,

Footnote 4: William and Mary c. r, Hist. MSS, Com. r4th Rep. r25 no. 608--indeminity for officials; z William and Mary c. 6--arrangements for the government during the king's absence; and c. 8--reversal of the judgment in the quo warranto proceedings against the City of London. In r695-1690 apprehension of Jacobite activities gave rise to an Act, y, S William III, c. 15 for continuing Parliament after the King's death, or, if no Parliament was sitting, for reviving the last Parliament.

Footnote 9: z William and Mary c. r; the passage of the Act was violently opposed, Hallam, C.H. iii rza and n. (f), and was probably as unnecessary as the similar Act passed in r661, above r70 n,3; cp. Somers' argument summarized by Macaulay, Hist. (ed. r864) iii 155-156.

A Convention Parliament was summoned, drew up the Declaration of Rights, and offered the throne to William and Mary. The offer was accepted, and the Convention was declared, as the Convention which effected the Restoration had been declared, to be a true Parliament.4 The Parliament turned its Declaration of Rights into the Bill of Rights;5 passed other statutes, such as the first Mutiny Act 6 and the Toleration Act,7 which laid the foundations of the Revolution settlement ; and some other temporary Acts,8 which were made necessary by the exigencies of the situation. As at the Restoration, the Revolution was formally completed and regularized by an Act of the succeeding Parliament, which recognized all the Acts of the Convention Parliament as valid;9 and as it had been found impossible to induce the Convention Parliament to pass a comprehensive Act of Indemnity, like that passed at the Restoration, William took the initiative, and sent down an Act of Grace, which it was

## 10 Political, Etc., Environment

necessary for both Houses to pass without amendment or not at all. Both Houses passed it unanimously.1

Footnote 1: 2 William and Mary, sess. I c. ro; Macaulay, Hist. iii r59.

The Revolution was a Whig victory ; but it was a victory won with the assistance of the Tories and the church. Hence the settlement effected by it was necessarily somewhat of a compromise. Subject to the provisions of the Toleration Act, the Tories secured for the Church of England the retention of its privileged position ; as at the Savoy conference, they successfully resisted all attempts at a relaxation of doctrines or formularies which would have permitted Protestant nonconformists to become its members ;2 and in 1700, they secured the insertion of a clause in the Act of Settlement which made it obligatory on the king to join in communion with it.3 The Whig s secured what was far more important--a Parliamentary settlement of the succession to the throne, and, consequently, the final rejection of the idea that the king's title depended upon a divine right superior to the law of the land.4 This victory permanently secured both the superiority of the Parliament in the constitution and the supremacy of the law, because, in the new situation created by the Revolution, the Tories found it to their interest to maintain these Whig ideals.6 They found it to their interest to use the opportunities given to them by the new and independent position of Parliament to criticize the policy of a king whom Parliament had created; and they were glad to take advantage of the supremacy of the law, administered by independent and impartial judges, to protect themselves against their political opponents. Thus, from the political struggles and religious controversies of Charles II.'s and James II.'s reign, and from conditions created by the Revolution settlement, there emerged in their final form a large number of the most fundamental principles of our public law. The constitutional position of the church, the king, Parliament, and the courts were defined. The supremacy of the law, guaranteed by the security of tenure given to the judges,6 afforded the best of all safeguards for the maintenance of the rights and liberties of the subject.

Footnote 3: 4 Above 186; below 209, 230-231.

Footnote 4: The Tories throughout the reign of William evinced a departure from the ancient principles of their faction in nothing more than in asserting to the fullest extent the powers and privileges of the commons; and, in the coalition they formed with the malcontent Whigs, if the men of liberty adopted the nickname of the men of prerogative, the latter did not the less take up the maxims and feelings of the former," Hallam, C.H. iii r43.

Footnote 4: Below 234.

We must now turn from the history of the environment in

## 196 Public Law of Xvith Century

which these principles grew up to the history of the principles themselves.

_The Principles of Public Law_

We have seen that the ecclesiastical history of Charles II.'s and James II.'s reigns played a great part in shaping the constitutional settlement made at the Revolution. I shall therefore, in the first place, give some account of the legislation which resulted from that history. Secondly, I shall describe the position which the king and his prerogative took in the state as the results of the constitutional conflicts of the seventeenth century. Thirdly, I shall describe the position in the state which Parliament secured, and its relation to the prerogative. Fourthly, I shall describe the change in the position of the law courts and the law, and the manner in which that change enabled the courts to provide adequate securities for the liberties of the subject as against both the prerogative and Parliament.

1. _The ecclesiastical legislation and the position of the Church of England._

We have seen that the two great causes for the unpopularity incurred by the Church of England during the reigns of the first two Stuart kings had been removed. Firstly, Laud and his system had been swept away;1 and a better and more broad minded set of bishops were set to rule over the church. Secondly, the court of High Commission had been abolished,2 so that, even if the bishops had been so minded, they could not have hoped to enforce the rigid discipline which Laud attempted to impose on both the clergy and the luity. But we have seen that the efforts of the adherents of the church, helped by the royalists and the king, had stopped proposals for legislation which would have remodelled the church and her formularies.8 All that the opponents of the church had been able to secure was the exclusion of the bishops from the House of Lords, and of the bishops and clergy from secular offices, and the abolition of the ecclesiastical courts.4 This legislation was repealed at the Restoration,5 so that, except for the abolition of the court of High Commission, the church stepped back into the place which it occupied at the outbreak of the Great Rebellion.

Footnote 1: Above 132-133.

Footnote 2: Above 121-122, 137-138.

Footnote 3: Above 121-122, 136, 140.

Footnote 4: Above 141-115, 136, 140.

Footnote 5: 13 Charles II. st. r c. z, repealing 16 Charles I. c. z7; z3 Charles II. st. r c. r2 repealing 16 Charles I. c. z1, except as to the court of High Commission.

## 6 The Principles of Public Law 197

a legacy both of political and theological hatred towards the non-conformists. Both church and king had been restored. They had been allies in adversity. They were still to be allies in prosperity. The church taught the doctrines of the divine right of kings, passive obedience, and non-resistance.1 In return the king must, if he could not compel all his subjects to conform to the church, at least make it unpleasant for those who refused to conform. Church and king must thus act together to make their own standards of political and theological orthodoxy the conditions precedent for full citizenship. It was these ideas which wrecked the attempts at comprehension for Protestant nonconformists which were made at the beginning of Charles II.'s reign.2 We have seen that Charles II. would have been willing to use his influence to secure a general toleration for Roman Catholic as well as Protestant nonconformists; but that, as no party would concede anything to the Roman Catholics, he lost interest in all such schemes, and thereby gave a free hand to the cavalier and Anglican majority in the Parliament of 1661.

Footnote 1: Below 276-280.

The laws already in force pressed severely upon the Roman Catholics. The new laws enacted during the first years of Charles II.'s Long Parliament were aimed at the Protestant nonconformists, and proceeded on the assumption that "it was impossible for a Dissenter not to be a rebel."3 We have seen that in 1661 the Corporation Act had required all holders of offices in corporate towns to take the sacrament according to the rites of the Church of England.4 In the following year came the Act of Uniformity.5 It enacted that all ministers should use the revised book of common prayer,6 and that every minister should declare his unfeigned assent to all things contained therein, on pain of deprivation.7 The clergy, the heads and tutors of colleges, and private tutors and schoolmasters, must renounce the doctrine that it is lawful to take up arms against the king, to promise to conform to the liturgy, and to make a declaration against the Solemn League and Covenant.8 No person who had not had episcopal ordination was to hold any benefice.9 Heads of colleges must, within one month of election, subscribe the thirty-nine articles.10 This Act aimed at maintaining a strict standard of Anglican orthodoxy, and at securing for the members of the Anglican church a privileged position in the state. Other Acts were directed against the attempts of Protestant nonconformists to conduct their worship in their own way. To allow this, it was thought, not unreasonably,Public Law of Xvith Century

would give facilities for plots against the government.1 In 1662 2 Quakers who refused to take an oath, or who maintained the doctrine that the taking of oaths was unlawful, or who assembled together to the number of five or more, were made liable on a third offence to transportation. In 1664 3 the holding of a seditious conventile--by which was meant any assembly for the exercise of religion "in other manner than is allowed by the liturgy or practice of the church of England "--was made punishable, on a third offence, by transportation for seven years, or a fine of 1600. In 1665 4 penalties were imposed on preachers in conventiles, or persons teaching in schools, who came within five miles of a corporate town without taking the oath set out in the Act.5 There is no doubt that these Acts inflicted an immense amount of suffering on the nonconformists.6 Occasionally judges were merciful;7 in some places the feeling in favour of the nonconformists was so strong that it was impossible to put them in force;8 and sometimes they were evaded.9 But in most places the magistrates and the judges were only too ready to use the weapon of revenge which political and theological ramour had

## 6 The Principles of Public Law 199

placed in their hands.1 Many were imprisoned; and the state of the prisons was such that a sentence of imprisonment too often meant a sentence of death.

Footnote 1: "The statute would do little hurt if put in execution by impartial judges," S.P Dom. 1664-1665 20, chi 137.

In the second decade of Charles II.'s reign it was Roman Catholicism rather than Protestant nonconformity which excited the greatest fear. In 1672 the first Test Act was passed.2 It required that all persons holding any office under the crown, and all persons employed by the Duke of York, should take the oaths of supremacy and allegiance, and subscribe a declaration against transubstantiation.3 It was further provided that, if persons converted to Roman Catholicism brought up their children as Roman Catholics, they and their children should, so long as they were Roman Catholics, be disabled from holding any office in church or state.4 We have seen that the second Test Act 5 required members of both Houses of Parliament to make a declaration against transubstantiation. It enacted that any person who disobeyed the Act should be deemed to be a popish recusant convict,6 and be subjected to other disabilities.7

Footnote 2: 25 Charles II, c, 2; above 18r-18z. SS

### Public Law of Xvith Century

Protestant nonconformists for his Declaration of Indulgence. " There are certain periods of time," wrote Lord Halifax, " which being once past, make all cautions ineffectual and all remedies desperate. Our understandings are apt to be hurried on by the first heats, which, if not restrained in time, do not give us leave to look back till it is too late. Consider this in the case of your anger against the Church of England, and take warning by their mistake in the same kind when, after the late King's restoration, they preserved so long the bitter taste of your rough usage to them in other times that it made them forget their interest and sacrifice it to their revenge."1 The Dissenters took this wise advice ; and the refusal of all but an insignificant minority to be thus deluded ensured them a measure of relief after the Revolution had been accomplished.

Footnote 1: A Letter to a Dissenter, Foxcroft il 373; see above r93.

This relief was given by the Toleration Act of 1688.2 It applied to all nonconformists who took the oath of allegiance, and swore that they renounced the deposing power of the Pope, and the belief that he had jurisdiction in England;3 and to Quakers who made an affirmation to the same effect.4 Persons who complied with these conditions were exempted from the penalties of certain enumerated acts of Elizabeth, James I., and Charles II.'s reigns, but not from the two Test Acts of 1673 and 1678.6 Meetings of nonconformists were thereby made legal ; but it was specially provided that no such meeting should take place behind locked doors.6 Nonconformist preachers and teachers (including Baptist ministers) who complied with these conditions, and subscribed to certain of the thirty-nine articles, were not to be liable to the penalties imposed by the legislation of Charles II.'s reign,7 and were exempted from serving as jurors or in parochial offices.8 Places of worship allowed by the Act were to be certified to the bishop or archdeacon,9 and penalties were provided for disturbing the conduct of the services in any church or congregation permitted by the Act.10 In 1695 11 a further measure of relief was extended to Quakers. In civil, but not in criminal proceedings, they were allowed to affirm. But

## The Principles of Public Law 201

they were not allowed to serve on juries, or to hold office ; and a special procedure was devised against those of them who refused to pay titles.

The effect of this legislation was to legalize the worship of Protestant nonconformists, and to relieve them from the penalties to which they had formerly been subject. But the provisions of the Corporation1 and Test Acts2 still debarred them from holding office, if they declined to take the sacrament according to the rites of the church of England; and, as we have seen,3 the church of England resisted all attempts to modify its formularies with a view to comprehension. As Macaulay has pointed out, this legislation " will not bear to be tried by any principle, sound or unsound "; and yet, as he rightly says, it successfully accomplished, without creating any further excitement, the difficult feat of introducing a large measure of toleration. It succeeded where a larger, a more comprehensive, and a more logical measure would have roused the passions of religious bigotry, and have seriously compromised the success of the Revolution settlement.4

Footnote 1: Above 167, 197.

Footnote 4: Macaulay, Hist. (ed. 1864) ii 83-284. Its provisions " removed a vast mass of evil without shocking a vast mass of prejudice; they put an end at once and for ever, without one division in either House of Parliament, without one riot in the streets, with scarcely one audible murmur even from the classes most deeply tainted with bigotry, to a persecution which had raged during four generations.

Footnote 5: It William and Mary c. 18 SS14; this section also enacts that it shall not extend to persons who deny the doctrine of the Trinity; a Papists' Toleration Bill had been introduced into the House of Lords in 1689 (perhaps with the support of - Halifax, see below 288 n. 5) but was dropped, Hist. MSS. Comm. zath Rep. App. Pt. vi 385 no. 194.

Footnote 6: I William and Mary c. g. 7 Ibid c. 15.

It is obvious that the Roman Catholics could take no benefit from the Toleration Act; and, to make this quite clear, an express clause to this effect was inserted.5 Roman Catholicism, as the result of the Revolution, had come to be more closely connected than ever with treasonable designs. Therefore it is not surprising to find that the laws against Roman Catholics were made more severe. Thus, in 1688, it was enacted that Roman Catholics who refused to make the declaration set out in the Test Act should not reside within ten miles of London,6 and should not be allowed to have arms or munitions, or horses above the value of PS.7 In 1698-1699 8 it was enacted that a Roman Catholic bishop or priest who said mass, or a Roman Catholic who kept a school, should be liable to perpetual imprisonment;9 and that Roman Catholics should be incapable of holding and purchasing land.10 It was further provided that if RomanPublic Law of Xviith Century

Catholic parents endeavoured to change the religion of their Protestant children by refusing them maintenance, the lord chancellor should have power to order maintenance.1

Footnote 1: SS 7; the severe provisions of this Act were rarely enforced, see Hallam, C,H. iii 179.

If we confined our attention to the legislation of William III.'s reign we should be inclined to say that the Revolution had made little difference in the ecclesiastical policy of the state. The constitutional position, the doctrines, and the formularies of the established church were unchanged; and communion with that church was still necessary to secure full rights of citizenship. The position of the Roman Catholics was altered only for the worse. The only direct change was the measure of toleration accorded to the Protestant nonconformists. But to estimate the effects of the Revolution upon the ecclesiastical policy of the state simply from a review of this legislation would be altogether misleading. With the overthrow of the theory of divine right of kings, and its accompanying doctrines of non-resistance and passive obedience2; and with the disappearance of the more acute political and theological grievances of the Protestant nonconformists brought about by the change of dynasty and the Toleration Act; religious controversies gradually ceased to exercise that dominating influence upon politics which they had exercised throughout the sixteenth and seventeenth centuries. That influence had embittered political controversy. It had had, as we have seen,3 no small share in causing the outbreak of the Civil War, and it had determined the course of English political history since the Restoration. Its gradual elimination tended, in course of time, to create an atmosphere in which the idea of a larger toleration could grow up, till that idea ceased to be the visionary hope of a few speculative thinkers, and became a measure demanded by statesmen. This change of feeling was helped forward by the fact that, as a result of the Revolution, the fundamental principles of English public law were now finally settled. This settlement furnished a basis of agreement, which rendered it possible to develop a system of government under which parties peaceably contended in Parliament for the victory of their respective political views. The victory of the one or other party gradually ceased to be accompanied and followed by the proscription of their opponents. The opposition peacefully succeeded to the places of their opponents without danger to the stability of the government. Stagnation was avoided, and at the same time an orderly and a continuous development of the constitution was secured.

## The Principles of Public Law 200

This change in ideas took many years to accomplish fully. There was an outburst of Anglican intolerance towards the Protestant nonconformists at the end of Anne's reign, which resulted in the passing of the Occasional Conformity \[1\] and Schism \[2\] Acts. Throughout the eighteenth century any attempt to pass a measure of relief for the Roman Catholics was bitterly opposed. But we can see the beginnings of the change at the Revolution. Already. in the Parliaments of William III.'s reign topics of religious, were tending to fall apart from topics of political, controversy ; and, though in Sacheverell's impeachment,\[3\] they united again, it was but a momentary revival. We shall now see that, just as this elimination of the _adium thoologicum_ settled the constitutional position of the established church for upwards of a century, so it helped to settle, and for the most part to settle finally, most of the political and constitutional controversies of the seventeenth century.

(2) _The constitutional position of the king and his prerogative._

The legislation of the Long Parliament, the Interregnum, and the Restoration had contributed towards the settlement of the constitutional position of the king and his prerogative; but these events had by no means completely settled it. There were many outstanding questions, both as to the relation of the prerogative to Parliament and the law, and as to the actual contents of particular prerogatives, which still awaited settlement; and, in the heated political and theological atmosphere of Charles II.'s and James II.'s reigns, many of these questions were furiously debated by the rival political and religious parties. Amidst the turnoil of these contests it sometimes almost seemed that the events which had happened between 1641 and 1660 had been forgotten ; and that the same contests between Parliament and the prerogative, which had been fought out in the earlier Stuart period, were being fought over again. In reality it was not so. These events had altered entirely the nature of the contest, and the aims of the contending parties.

We have seen that under the earlier Stuart kings a theory had been elaborated which would have made the king, by virtue of his extraordinary powers, the sovereign power in the constitution, and would have enabled him to over-ride, and if necessary dispense with Parliament.\[4\] Neither Charles II. nor even James II. laid claims to such powers as these. Even the judgment of Herbert, C.J., in _Godden_ v. _Hales,\[5\]_ which may be taken as thePublic Law of Xviith Century

highwater mark of prerogative pretension in the latter half of the seventeenth century, made no such claim as this. It asserted the particular prerogative to grant dispensations in the widest of terms, and asserted that the kings of England, being sovereign princes, had certain inherent prerogatives (of which this was one) which could not be taken away even by Parliament. It made no assertion, such as was made in the _Case of Ship Money_, that the king, whenever he deemed it necessary, could override Parliament.1 Similarly, the sovereignty which the Long Parliament in fact exercised during the Civil Wars and up to the time when it was expelled by Cromwell,2 also disappeared at the Restoration. The king was restored to all the prerogatives of his predecessors, except in so far as they had been modified by the legislation of the Long Parliament to which Charles I. had asserted. The independent position which he occupied in the state was guaranteed by the belief held by a large, and perhaps the largest number of his subjects, that he was king by divine right, that it was both a crime and a sin to resist his commands, and that, even if active obedience to them could not be given, passive obedience was always due.3 The lawyers recognized that he was the head of the government and the state.

Footnote 1: Above 28, 52, 53.

Footnote 2: Above 144-146.

Footnote 3: Haleian MS. 711 ff. 418-439; vol. v App. III.; Hales tract is entitled, "Reflections by the Lord Cheife Justice Hale on Mr. Hobbes his Dialogue of the Lawe"; the first part--\* Of Laws in General and the Law of reason," I have already noticed, vol. v 482-485; the second part, which I describe here, is entitled " Of Soveraigne Power"; in this separate tract it consists of 24 pages (22-43).

It was thus generally recognized that both king and Parliament were necessary parts of the constitution, each occupying an independent sphere of its own ; each possessed of the powers and privileges necessary for the fulfilment of its appointed functions. This new conception of the constitutional position of king and Parliament, which had emerged at the Restoration, comes out very clearly in Hale's tract **"** Of Soveraigne Power."4

Footnote 4: Pr. 23-26.

Hale begins by pointing out that the kinds of government are very various--there are monarchies, aristocracies, and democracies, " and some mixt of all, and those mixtures are or may be infinitly various." " In some Constitutions one part of the Soveraigne Power is in one part of the government, another part in another,"5 These variations have arisen sometimes by the "original institution of the government," sometimes by **"** long custom and usage," sometimes by conquest, sometimes by "'concessions and naturally agreement between the governors and governed."6 In England Hale has no hesitation in attributing " Soveraigne Power " to the king." No good subject that under

## The Principles of Public Law 205

stands what he says can make any question where the Soveraigne Power of this kindom resides. The laws of the land and the oath of supremacy teach us that the king is the only supreme governor of this realme, and as incident to that supreme power he hathe among others these greate powers of Sovereignty. i. He hath the only power of making peace and declareing warr. 2. He hath the only power of giveing the vallue and legitimation to Coyne. 3. He alone hath the power of pardoning the punishments of publique offences. 4. From him originally is derived all jurisdiction for the administration of the common justice of the kingdom whether civil or ecclesiasticall, whether ordinary or delegate. 5. In him alone is the power of the militia of this kingdom, and the raiseing of forces both by land and sea. 6. In him resides the power of making laws. The laws are his laws enacted by him. These are the greate Jura Summi Imperii that the laws of this kingdom have fixed in the crown of England. Butt yett there are certaine qualifications."1 Thus, though the laws have no coercive power over the king, they have a directive power over him--he is bound by his coronation oath and the laws that "concerne the liberties of his subjects"; and the laws "in many cases hinder the kinges acts and make them void if they are against law."2 Then, too, his power over the militia is restrained by the fact that he cannot compel his subjects to serve out of the kingdom, and that he cannot raise money without the consent of Parliament; 3 while his power over legislation is also qualified by the necessity of getting the same consent.4 Hale will have none of the fancies of those speculators who maintain that "there can be noe qualifications or modifications of the power of a soveraigne prince, but that he may make repeale and alter what laws he please, impose what taxes he pleases, derogate from his subjects propertie how and when he please. That he alone is judge of all publique dangers and may appoint such remedyes as he please and impose what charges he thinkse fitt in order thereunto."5 He has no difficulty in proving from English law and history that such "wild propositions are: i. Utterly false. 2. Against all Natural justice. 3. Pernicious to the government. 4. Destructive to the common good and safety of the government. 5. Without any shadow of law or reason to support them."6 It is probable that Hale was by no means unique in his views as to the constitutional position of king and Parliament. North, whose political views were a good deal more royalist than those of Hale,7 would probably have agreed with him. He was in

## 206 Public Law of Xvitith Century

favour of a strong executive, because a strong executive was necessary to the preservation of the peace.1 He held, and rightly held, that "there cannot be a more false illusion than it is to suppose that what power the crown lost was so much liberty gained to the people."2 His political creed was a reasoned creed based, like Hale's, on a study of legal history.3 He saw that that history, rightly read, was by no means so conclusively in favour of Parliamentary claims as was generally supposed. On the other hand, he had no idea of depriving Parliament of any of its powers and privileges. At the end of Charles II.'s reign he advised the king not to sacrifice the position he had won by doing anything which could be construed as a breach of the law.4 At the beginning of James II.'s reign he opposed the levy of customs duties before they had been formally voted by Parliament.5

Footnote 1: "He was sincerely of opinion that the crown wanted power by law; so far was it from exceeding. It was absolutely necessary that the government should have a due power to keep the peace without trepsassing upon the rights of any one," Roger North, Lives of the North s 31G.

Footnote 2: Ibid 317.

Footnote 3: Below 532 and n. 3.

Footnote 4: "He urged continually the same doctrine that, holding to the law . . . his majesty was not only safe, but growing in power and credit; which if he forsok the law, would all fall retrograde and scarce ever be recovered," Lives of the North s 31S; " As there was a necessity of calling a Parliament soon, his lordship often put his majesty in mind of that, and to have a care that no unpopular steps might corrupt the next elections," ibid 319, 320.

Now if we look at the views of these two representative lawpers, from the point of view of our modern constitutional law, we shall be apt to call them both muddled and confused. Hale had obviously misunderstood Hobbes's theory of sovereignty. He seems to have thought that the sovereignty, analysed and explained by Hobbes, necessarily meant that sovereignty of the king, which the royalist lawpers of the earlier Stuart period had maintained.6 To the term sovereignty he attached quite a different meaning. He interpreted it as meaning simply a supremacy, which was not incompatible with the supremacy of Parliament or the law in their respective spheres. As the king was personally above the law, as the sphere of his supremacy was wider, more active, and more general than the sphere of the supremacy of Parliament or the courts, it was natural to speak of the king as sovereign, and of his supremacy as sovereignty. Because Hale was a common lawyer, his political conceptions were naturally of a somewhat medieval type.7 In

## The Principles of Public Law 207

fact, neither the common lawyers nor the majority of statesmen of this period had really assimilated Hobbes's theory of sovereignty, or attempted to apply it to the concrete facts of English public law--a fact which the Bill of Rights and some of the clauses in the Act of Settlement will make abundantly clear.1 But, if we look at the constitutional facts of the latter part of the seventeenth century, it is difficult to see to what other conclusion Hale could have come. No doubt he would have admitted, with Sir Thomas Smith,2 that king and Parliament acting together were the most "absolute" power in the constitution. But in this part of his tract he was concerned with the king and his prerogative, and not with the powers of king and Parliament; and, if we look at the position of the king as the head and director of the government, we must admit that it was not a wholly false representation of the facts to describe him as sovereign, i.e. supreme, in his own sphere, although his powers were limited by law and by the necessity of getting the consent of Parliament to some of his acts. Even at the present day we say that, from some points of view--e.g. from the point of view of the conduct of foreign affairs--the king is sovereign. We all admit that personally he is sovereign, and speak of him as the sovereign.

Footnote 1: Below 258-26z.

At first sight it may seem that we are back again in the Tudor period,3 and that Clarendon's ideal4 of a restored Tudor monarchy had been realized. If we look simply at the legal theory of the constitution there would be some truth in this view. But if we look at the actual strength of the various parts of the constitution we can see that in the world of fact changes had taken place which had entirely altered their relative positions. In the Tudor period the king was certainly the predominant partner in the constitution. In Charles II.'s reign the respective strength of king and Parliament was very much more on equality. In the Tudor period the king was the permanent government of the country; Parliament was a body only occasionally summoned to vote taxes and pass laws. In Charles II.'s reign the king still conducted the government; but Parliament was almost as permanent an institution, and exercised a general supervision over the conduct of the government. In the Tudor period Parliament was a less organized and a more easily managed body than in Charles II.'s reign. Charles II. could not hope to override his Parliament whenever he differed from it; nor could he

### Public Law of Xviith Century

dispense with it permanently, or act without it in matters where its consent was necessary. It is true that Charles II., at the end of his reign, and James II. managed to dispense with Parliament;1 but that was due to a combination of special circumstances. Both kings had a permanent revenue voted by Parliament, the country was at peace, and Louis XIV. was willing to pay for its continued neutrality. Normally, Parliament could not be dispensed with for any length of time. Thus, although the legal position of the prerogative could be stated in terms which would not have astonished a Tudor lawyer, its actual position was radically altered by the increase in the power and permanence of Parliament.

Footnote 1: Above 191, 192.

The constitutional questions at issue, therefore, in the latter half of the seventeenth century differed from those at issue in the first half of the century. The question at issue was no longer whether the prerogative should be the sovereign power in the state, but which of the two independent powers--prerogative or Parliament--should be the predominant partner in the state. The two claimants to this position were fairly equally matched, so that we cannot regard the ultimate decision in favour of the Parliament as in any way a foregone conclusion. In fact, Charles II. temporarily decided it in favour of the crown. It was mainly due to the folly of James II. that that decision was so soon reversed.

No doubt Parliament had a strong position. It represented the nation. It controlled finance and legislation. By means of an impeachment it could take criminal proceedings against the king's ministers if, in its opinion, they had broken the law. During the civil wars and the commonwealth period it had governed the country; and both the experience and the organization, which it had gained during that period, led it to make claims to advise upon and to supervise both the domestic and the foreign policy of the state.2 On the other hand, a prudent king had an even stronger position. In the first place, he could take advantage of the semi-religious halo with which he and his office were invested by a large section of his subjects, and of the widespread fear of a renewal of civil war. In the second place, he could take advantage of the defects in the representative system, the defective organization of both Houses of Parliament, and the corruptibility of a large number of the members of the House of Commons. In the third place, he could take advantage of his position as the head of the judicial system, and the large powers of control which he had over the courts. In the fourth

## The Principles of Public Law 209

place, he could press to the utmost those large prerogatives which belonged to him by the law of the constitution. Charles II, used mainly the first three of these expedients, and gained his end by means of them. James threw away the great advantages which the first gave him, by his attempt to use his prerogative in the interests of Roman Catholicism; and he had little opportunity to use the second, because he declined to meet a Parliament which would have demanded the reversal of the religious schemes on which he had set his heart. He was therefore thrown back upon the third and fourth expedients, which he pressed for all they were worth. It is hardly surprising that the total disregard of the national feeling, which this course of policy involved, ended in a rapid and complete failure.

If we look at the way in which Charles II, and James II, used these four different expedients to make the prerogative the predominant partner in the state, we shall be in a position to understand both the character of the constitutional controversies of these two reigns, and the form and contents of the Bill of Rights, the Act of Settlement, and the other statutes, which finally settled the controversies of the seventeenth century, and laid the foundations of our modern constitutional law.

1. Of the strength which the crown gained from the wide-spread feeling in the country in favour of divine right, and the accompanying doctrines of passive obedience and non-resistance, and from the equally widespread fear of a renewal of civil war, I need say but little. We have seen that they were the decisive factors in giving Charles II, the victory in the contest over the Exclusion bill.1 We have seen too that his victory emphasized the fact that the king was king by a title which was superior to that which any merely human law could give him.2 Footnote 1: Above 187-189.
1. The government of the country was the king's government, and he therefore controlled its whole machinery. It is obvious that this gave great opportunities to a king who was willing to take advantage of the defects which existed either (_a_) in the representative system, or (_b_) in the composition of Parliament. Of the great defects in both Charles II, skillully and successfully took advantage; and James II. tried with but small success to follow the same policy.

## 210 Public Law of Xviith Century

(_a_) We have seen that, during the latter half of the sixteenth century, the crown, in order to gain influence in the House of Commons, created boroughs with the right to return members to Parliament.1 This method of influencing the House of Commons was not much used by the Stuarts.2 Newark was created a borough with the right to return members to Parliament in 1673; and this was the last time that this power was exercised by the crown.3 Other methods of influencing elections were, however, freely resorted to. The fact that many of the boroughs were rotten,4 and the very restricted franchise prevailing in many others, made them very amenable to influences of various kinds, of which the crown naturally attempted to take advantage.5 But the fact that, in the earlier part of the seventeenth century, non-conformity had gained a great hold on the boroughs prevented the attempts of the crown from attaining much success.6 The Corporation Act of 16617 was designed to counteract the influence of the nonconformists. But it did not succeed in its object;8 and the crown found it necessary to have recourse to more direct methods. As early as 1661 a warrant had been issued directing that, in all future charters for boroughs, the king was to have the first nomination of aldermen recorders and town clerks, all future nominations of recorders and town clerks, the first appointment of common councillors on the nomination of the town ; and that the elections to Parliament were to be made by the common councillors only.9 This course could only be pursued in the case of the grant of a new charter.10 But, at the end of the reign, the device of procuring a forfeiture of the borough charters by means of quo warranto proceedings, and then granting a new charter, in which the control of the borough and of the elections to Parliament was given to royal partisans, was carried out on a great scale. Jeffreys in the north and the earl of Bath in the west of England procured very many voluntary surrenders by

## The Principles of Public Law 211

threats of such proceedings.1 James reaped the benefit of Charles's preparations; and, when he was considering the question of summoning a second Parliament, he resumed them with great vigour. "Some of the corporations were remodelled twice or three times, when it was seen that the nonconformists or the Roman Catholics, who had taken the places of the ousted churchmen, were not to be relied on for subserviency to the court.".2

Footnote 1: Porritt, op. cit. i 394-395; it is possible that in some cases a borough may have abused its franchise to exclude the justices, and become, as North said (Examen 624), "the ordinary asylum for all sorts of rogues that fled from the justice of the Sessions"; on the other hand, probably the grand juries of country gentry who presented some of them as common nuisances, ibid, were very likely moved by political bias, cp. S.P. Dom. 1679-1680 499-500--a petition from the Deputy Lieutenants of Devon; they were troubled at the "increase of conventicles, faction, and disorder in Tiverton"; they cited the opinion of lawyers that the corporation was dissolved; and they recommended that a new charter should be granted, in order that the government might be put into the hands of loyal and honest men; for the confusion which resulted in consequence of these proceedings, and their subsequent reversal at the Revolution see Webb, Local Government, the Manor and Borough 269-270.

Footnote 2: Porritt, op. cit. i 400; cp. Hist. MSS. Com. ztth Rep. App. Pt, vi 208-300 for a list of charters granted by Charles II, and James II, from t68o to t688; for an attempt of the Whigs after the Revolution to turn the tables on their opponents, and exclude the Tories, see Macaulay, Hist., ct. 1864) iii 313-133.

Footnote 3: Porritt, op. cit. i 38r-382; 382-383, 386-388; vol. iv 49-95; we have seen, vol. v 448-449, that Charles I. also endeavoured to exclude his leading opponents by picking them as sherifs.

In addition, all through the Stuart period, the court tried to induce both the counties and the boroughs to elect its nominees. James I., Buckingham, Buckingham's agent Bagg, and Charles I., all followed the example of the Tudors in trying to get their nominees elected.3 Charles II. and Danby4 directly interfered in the same way;5 and James II, interfered even more actively.6 In 1687 he went on a great electioneering tour in the west and north-west of England.7 In addition, he used the lord-lieutenants and judges of assize as his agents. They were directed to get if possible the electors and candidates to vote for the repeal of the laws against nonconformity, and to support the Declaration of Indulgence.8

Footnote 4: * James may not inapply be described as having been engaged in electioneering from the beginning to the end of his ill-starred reign," ibid i 396; for William III.'s electioneering tour in 1695 see Macaulay, Hist. iv rio.

Footnote 7: Porritt, op. cit. i 399.

Footnote 8: * Reresby, Memoirs 387-388; cp. Porritt, op. cit. i 403.

The subservience of James II.'s Parliament would seem to show that the crown could use all these methods with success if it avoided a policy which stirred up national feeling against it; and, if James II. had avoided such a policy, he might perhaps have organized on these lines a formidable machinery for the control of Parliament. But the ill success of the efforts of the

### Public Law of Xviith Century

two earlier Stuart kings, and the failure of James II. to get a Parliament to endorse his religious policy, show that these methods could not overcome a really national opposition.

(_b_) The composition of Parliament gave the king equally great opportunities. In the House of Lords Charles II. became a constant attender at the debates, and used his personal influence with the peers. " He went constantly," says Burnet,1 " and he quickly left the throne, and stood by the fire ; which drew a crowd about him, that broke all the decency of that house. . He became a common solicitor, not only in public affairs, but even in private matters of justice. He would in a very little time have gone round the house, and spoke to every man that he thought worth speaking too. . . He knew well on whom he could prevail : so being once in a matter of justice desired to speak to the earl of Essex and Lord Helles, he said they were stiff and sullen men : but when he was next desired to solicit two others, he undertook to do it, and said . . ' they are men of no conscience, so I will take the government of their conscience into my own hands ." In the House of Commons a lavish use was made of royal patronage and bribery. Even in the Long Parliament the tone of public morals was low ;2 and it was still lower during the latter part of the century.3 Roger North, who had sat in Parliament, tells us 4 that, " the most indifferent of the English gentry were perpetually hunting projects to make their estates richer to themselves without regard to others : some to have wool dear, others corn, and the like. One cannot without the very thing imagine the business that was in all their faces." Systematic bribery was resorted to both by the king

## The Principles of Public Law 218

and the ambassadors of foreign powers.1 Danby created his party by this means ;2 and the attempts made by the House of Commons to exclude placement 3 were caused by the constant use of royal patronage to create a majority. We shall see that these attempts were constantly resisted by the crown both before and after the Revolution, because the exclusion of placement would have deprived it of its best means for creating and keeping together, a party in the House.4

Footnote 1: Above 182, 189.

Footnote 2: Below 231 n. 17.

Footnote 3: Above 188 and n. 3.

Footnote 4: Their proceedings are thus described by \[effreys (who had been Recorder of London and knew what he was talking about) in Pritchard v. Papillon (r684) to S.T. at p. 359$\\longrightarrow$4 It is notoriously known to all that have had any dealing in London .

Footnote 5: Below 503-511.

Footnote 6: Below 509-511.

Footnote 7: Above 188 and n. 3.

Footnote 8: Their proceedings are thus described by \[effreys (who had been Recorder of London and knew what he was talking about) in Pritchard v. Papillon (r684) to S.T. at p. 359$\\longrightarrow$4 It is notoriously known to all that have had any dealing in London .

that till within these six or seven years last past, the lord Mayor and court of alderman, and the common hall used to go a birding for sheriffs (you very well know what the phrase means), and perhaps it was not once in ten times that those that were chosen sheriffs he!; but generally every year, there were 1 know not how many elections upon fining off, or swearing, or some reason or other, . And the way was to consider, such a one hath most money in his pocket; Oh; then put him up for sheriff, and then if he went off another would be found out, And there was one old deputy Savage, that used to keep a black book, that would furnish names for 1 know not how many elections. And who should be sheriff, so as to divide into parties, and poll, was never a question before such times as Mr. Jenks that they speak of, came to be put up, and there the dispute began; then the faction began to appear,"

9: Reresby, Memoirs 221, " the king talked to me a great while that evening, . The subject was mostly of the late unjust verdicts and proceedings of the juries in London and Middlesex, as to which he used this expression: It is hard case that I am the last man to have law and justice in the whole nation "; see 8 S.T., 759 for the proceedings of the grand jury which ignored an indictment against

## 214 Public Law of Xvith Century

justice in this complaint ; for, now that juries could no longer be questioned for their verdicts, the crown had no means of controlling them.1 The only remedy open to him was to get control of the machinery by which they were appointed. This was effected by the remodelling of the corporations. This expedient thus ensured not only the return of the court candidates to Parliament, but also the impanelling of juries who could be trusted to give verdicts favourable to the crown. In this way the best security which the subject had for the maintenance of his liberties was almost destroyed. The administration of the common law, upon which those liberties depended, was tainted at the source. Those who were arrested and imprisoned by the king or his Council could get no redress,2 and, when the Habeas Corpus Act of 1679 3 prevented the evasions to which the judges had previously had recourse, they still endeavoured to nullify its provisions by the requirement of such excessive bait that it was difficult or impossible for the prisoner to find it.4

Footnote 2

## 1 The Principles of Public Law 215

gravity of the offence.1 No redress could be got against the misdeeds of favourites of the king whom he chose to protect ;2 and, a fortiori, no proceedings could be taken against servants of the crown who had acted in obedience to the orders of the crown. Danby, when impeached,3 contended that the king's orders were a complete defence to the charge of instituting negotiations with France after Parliament had voted supplies for a war with that country ;4 and, though possibly the king's orders might be a good defence to that particular charge, because the act of writing to suggest a treaty with France was one which the king could lawfully do, it is clear that Danby and others thought that it would be a good defence to any act whatever; and the king and Council sometimes acted as if they thought that this was the law.5 Such an admission would have surrendered the whole principle of the supremacy of the law over all subjects, whether they were servants of the crown or not, which had been secured by the Act abolishing the court of Star Chamber and the jurisdiction of the Council in England. The House of Commons upheld this principle ; but it is more than doubtful whether it would have been upheld by the judges of the latter part of Charles II.'s and of James II.'s reigns.

Footnote 1: Above 21. n. g; cp. g. T. 1371: II S.T. 1354-i371; the case of Oates is notorious, cp. Macaulay, Hist. iii 68-77; Hist. 'MSS, Com. App. Pt. vi. at pp. 78-80, no. 54; Jeffreys said that when he returned from his bloody assize in the West he was reprimanded for his leniency, Macaulay, op. cit. iii 75.

Footnote 2: See: Peeps, Diary viii 129; ibid 329-330, where he relates how Sir Edmund Bury Godfrey, having directed the arrest of one of the king's physicians for debt, the bailiffs who effected the arrest were beaten by the king's orders, and Godfrey very nearly suffered the same fate ; however, Godfrey justified his act, citing the opinion of the lord chief justice--4 which makes the king very angry with the chief justice as they say,"

Footnote 3: Above 185.

Footnote 4: The first article of the impeachment was that "i he hath traitorously encroached to himself regal power, by treating in matters of peace and war with foreign ministers and ambassadors, and giving instructions to his majeaty's ambassadors abroad, without communicating the same to the secretaries of state, and the rest of his majeaty's council, against the expressed declaration of his majeaty and his parliament ; thereby intending to defeat and overthrow the provision that has been deliberately made by his majeaty and his parliament for the safety and preservation of his majeaty's kingdoms and dominions," ii S.T. 621-625; to this Danby replied, "the first \[article\] which is the assuming regal power, I confess I do not understand; having never in my life done anything of great moment, either at home or relating to foreign matters, for which I have not always had his majeaty's command. . I have not been so wanting of common prudence, as in the most material things not to have had his majeaty's orders and directions under his own hand, and particularly for the letters now made use of against me," ibid 627.

- See S.P. Dom. 1673 xxiii 569.

### Public Law of Xvith Century

not to be judged by the rules of the common law.1 But the large control which they had over the judicial system, and the manner in which they exercised it, almost restored the old conditions which prevailed when the Star Chamber and the Council were active courts. Neither Charles II. nor James II. seriously attempted to restore the Star Chamber.2 A frontal attack upon this particular restriction upon their prerogative they knew would be hopeless. But they followed the example of their father and grandfather, and turned the flank of this restriction, by the misuse of prerogatives in relation to the judicial system which had not been curtailed. We shall see other and more glaring instances of the same manceuvre if we look at the fourth of the expedients which they employed to make the prerogative the predominant partner in the state -- the extensions of certain of their recognized prerogatives.

Footnote 1: However, they did their best to exercise some such authority ; Burnet, History of My Own 'Time i 60s (Airy's Ed.), relates that Whatley, a Lincolnshire J.P., had disregarded Charles II.18 Declaration of Indulgence, and find certain persons present at a conventile in accordance with the Act; 'up which he was brought up to council to be reprimanded for this high contempt of his majesty's declaration, and some privy conullicators showed their zeal in severe reflections on his proceedings ; Marvel, Works ii 483, relates that in 1675 the House of Commons complained of 'instructions sent into the country touching the gathering of excise and chimney-money, stretching those laws beyond the proper intention."

Footnote 2: In 1662 a committee of the House of Lords had reported, 'that it was fit for the good of the nation that there be a court cf like nature to the late court called the Star Chamber," Hallam, C.H. ii 333; and in that and the following session a bill was before the House to repeal all Acts of the Long Parliament, and to re-enact such as should be thought fit, ibid; nothing more was then done; and probably Hallam is right in his view that even the Royalist House of Commons or t60t would not have consented to restore the Star Chamber--they refused to restore the High Commission, above 165.

Footnote 3: However, between the years 1673 and 1675 the House of Commons thought it necessary to consider a bill to prevent the exaction of money from the subject, see Commons Journals ix 304 (first reading), 324 (second reading); it would appear that the bill was too wide in its scope, and much too severe--ofenders were made liable to the penalties of high treason, S.P., Dom. 1675:1675 145; in 1680 a committee was ordered to prepare a similar bill, Commons Journals ix 681-682.

(iv) There were, of course, certain well ascertained limits to certain of the prerogatives of the crown. The question of taxa. tion direct and indirect had been settled by the Petition of Right and the legislation of the Long Parliament;;3 and we have seen that Hale set out with great clearness the generally recognized limitations upon the king's prerogatives in relation to legislation, and to the army.4 But the king still had prerogatives, by the judicious use of which he might, with the help of his judges, still hope to circumvent some of these restrictions. Thus, although he had no power to legislate without the consent of Parliament, he had a wide suspending and dispensing power, the

## The Principles of Public Law 217

limits of which had never been accurately ascertained. If this did not enable him to make laws, it at least enabled him to get rid of statutory restrictions which he disliked. Then, too, he was the recognized head of the military power in the state. It is true that he could not compel his subjects to serve abroad ;1 but there was nothing to prevent him from hiring soldiers and forming a standing army if he could pay them.2 The existence of such an army raised questions as to his powers to discipline these forces, and as to the jurisdiction of the common law courts in cases where these soldiers had committed offences against civilians. Could the king assume sole control, and Gust the common law in such cases? It is quite obvious that if Charles II. and James II. could have established their right to an unlimited suspending and dispensing power, and to all the powers necessary to maintain discipline among a standing body of troops, they would have gone a long way in the direction of emancipating themselves from the control of Parliament. Their efforts to do this gave rise to developments of the law upon these two topics which must here be briefly summarized.

Footnote 1: Above 205 ; vol. v App. III., p. 50S.

Footnote 2: Hallam, C.H. iii ro5-ro6, seems to be quite right when he says of the clause of the Bill of Rights, which declared a standing army illegal without the consent of Parliament, below 241, that it was " a most questionable proposition"; "It seems difficult," he says, "to perceive in what respect this infringed on any private man's right, or by what clear reason (for no statute could be pretended) the king was debarred from enlisting soldiers by voluntary contract for the defence of his dominions, especially after an express law had declared the sole power over the militia without giving any definition of that word, to reside in the crown. This had never been expressly maintained by Charles II."s Parliaments."

At the outset it will be as well to define the terms "suspend" and "dispense." The former term is generally applied to the abrogation of a statute or statutes, so that they lose altogether their binding force--the Declaration of Indulgence is the best illustration of the exercise of this power. The latter term is generally applied to a permission given to an individual to disobey a statute. The difference, therefore, between these two powers consists rather in the extent to which the law is abrogated than in the quality of the prerogative exercised. In both cases the law is put out of action; but while, in the former case, it is in substance repealed, in the latter it is merely made lawful for a particular person to disobey it. On the other hand, there is a wide difference between both these powers and the power to pardon. Both these powers affect the legality of the act done. They make legal what would otherwise be illegal. A pardon does

### Public Law of Xvith Century

not affect the legality of the act. It simply frees a guilty person from the legal consequences of his illegal act.1

Footnote 1: "A dispensation obtained doth _jus dare_, and makes the thing prohibited lawful to be done by him who hath it. A pardon frees from the punishment due for a thing unlawfully done,"_Per Vaughan_, C.J. (1674), Thomas v. Sorrell, Vaughan at P. 333.

That in the Middle Ages a suspending and dispensing power was vested in the king is unquestionable. Such a power is, as Maine has pointed out,2 an early and a universal attribute of kingship. The king was always supposed to possess a reserve of power which enabled him to correct the deficiencies of the ordinary law; and the King of England was no exception to the rule.3 To the existence of this power the jurisdiction both of the courts of common law and of the court of Chancery owed something; and all through the Middle Ages it was needed to correct the defects both of the common law and of the statute law. Parliament sat irregularly, and the language of the older statutes was brief and careless.4 But was this power unlimited? The medieval lawyer would have given a clear negative answer to this question. But, if we had asked him what the limitations were, he would have returned an answer which the modern lawyer would consider to be both vague and inconclusive. He would have said that the king's power to suspend or dispense was limited by his incapacity to dispense with or suspend the law of Nature or the law of God;5 that though he might thus deal with merely human laws and the offences created by them (_unala prohibita_), he could not so deal with the offences created by these higher laws (_mala in se_).

Footnote 1: "A dispensation obtained doth _jus dare_, and makes the thing prohibited lawful to be done by him who hath it. A pardon frees from the punishment due for a thing unlawfully done,"_Per Vaughan_, C.J. (1674), Thomas v. Sorrell, Vaughan at P. 333.

Footnote 2: "Early Law and Custom 164.

Footnote 3: "Vol. ii 443 and n. 5; for illustrations of the exercise of the Crown's dispensing power in celestisantical matters in the Middle Ages, see E. F. Churchill in L.Q.R. xxviii 297-302.

A Year Book case of 1496 6 illustrates this point of view. "There is," said Fineux, C.J., "a diversity between _malum prohibitum_ and _malum per se_. For it is _malum prohibitum_ when a statute prohibits the coining of money, and enacts that, if a man do so, he shall be hung, that is _malum prohibitum_. For before the statute it was a lawful act to coin money, but now it is not so; and with this offence the king can dispense. So if our ships take cloth to any other place than to Calais it is _malum prohibitum_; for it is prohibited by statute; and with this offence the king can dispense. So the king can dispense with the law which prohibits a priest from holding more than two benefices, or which disqualifies a bas

## 3 The Principles of Public Law 219

and the like cases are _mala prokitoita_. But with _malum in se_ neither the king nor any other can dispense. As if the king were to wish to allow1 a man to kill another, or to make a nuisance on the highway, a dispensation in these cases would be void. And yet when the offences have been committed the king may pardon them. So if a man, at the suit of another, be bound in a recognizance in the Chancery to the king to keep the peace, the king cannot release that duty, by reason of the prejudice which might thereby be caused to the other; and yet, when a forfeiture has been incurred, he may well release it, but not before it has been incurred. Similarly neither king, bishop, nor priest can give licence to commit foncication, because it is _malum in se_ by the law of Nature. But after it has been committed they can pardon it well enough."

Footnote 1: The printed Y.B. reads "'pardoner "; but as Vaughan, C.J., observed in Thomas v., Sorrell (1674) Vaughan at p. 337, this is a misprint for " power doner."

This limitation upon the king's powers conveyed a more precise meaning to the mediaval lawyer than it conveys to us; and it imposed a more definite restriction. By many persons the law of Nature and the law of God were regarded as similar, in that their provisions overrode all merely human laws;2 and they were no mere philosophical abstractions. The canonists set out to state the law of God in elaborate rules, and to enforce them all over Europe, in the courts and by means of the spiritual powers and jurisdiction of the church. To disobey the law of God might mean excommunication; and a king or other ruler who deliberately continued to defy it might expose his territory to an interdict. Just as the mediaval lawyer would have denied that the legislature could infringe the law of God or of Nature,3 so, on precisely the same grounds, it confined the power to dispense or suspend within the same limits.

Footnote 2: Vol. ii 444.

Footnote 3: Vol. iv 185-186.

In the sixteenth century this limitation upon the king's power tended to become much less distinct than it had been in the Middle Ages. In the first place, the Reformation caused a considerable divergence of opinion as to what was and what was not, commanded by the law of God or Nature. In the second place, the state was assuming power to determine the contents of these laws.4 This tended to render somewhat hazy the older limitations, not only upon the sovereignty of the legislature, but also upon the power of the king to dispense and suspend. Thus in England the legislature established the relations between church and state upon a wholly new basis, by a set of laws which, to Catholics of the old school, were clearly contrary to the law of God.5 This

### Public Law of Xvith Century

enlargement of the powers of the legislature operated indirectly to enlarge the power of the king to dispense and suspend, because it necessarily tended to weaken the one restriction to which it was subject.

In England these prerogatives were also directly enlarged by the manner in which the Reformation was effected. It was effected by the subservient Parliament of a despotic king. Though the king destroyed the power of the pope in England, he realized that the wide powers which the pope had exercised over the church were too useful to be likewise destroyed. These powers were therefore maintained wherever possible and consistent with the new settlement, and transferred bodily to the king. But the suspending and dispensing powers of the pope were of the widest description. Being the representative of God upon earth, and the final court of appeal as to the application of His laws,1 he was less fettered than any other sovereign by the law of God or Nature. These wide powers in the ecclesiastical sphere were now annexed to the crown as supreme head or governor of the church. Thus over ecclesiastical laws the king gained a suspending and dispensing power even wider than than which he had over temporal laws.2

Footnote 1: Vol. i SS83.

The Tudors and the earlier Stuarts do not seem to have made any great use of the suspending power; and no discussion arose concerning it during that period. On the other hand, they made considerable use of the dispensing power;3 and there was a certain amount of discussion in the courts as to its limits. It was decided in 1541 that the king could not dispense "with a new law to be made by Act of Parliament before that the Act be made."4 It was decided in 1602, in the _Case of Monopolies,5_

Footnote 2: Comyn, Digest _Prerogative_ D. r1, says, " Forasnuch as ecclesiastical laws are the king's laws. . the king hath power to dispense with Ecclesiastical Law"; Charles II. referred to this power in his Declaration of Indulgence, below 222 in a; vol. 1 592, 597; that extensive use was made of it by the Tudors and Stuarts, both in relation to the Universities, and in relation to penal and other laws dealing with ecclesiastical matters is proved by E. F. Churchill, L.Q.R. xxxviii 302-316, 420-434.

Footnote 3: Ibd; below 221 n. 6.

Footnote 4: Anon. Dyer 52a.

Footnote 5: Iii Co. Rep. 84b--"the licence to have the sole importation and merchandising of cards notwithstanding the said Act of Edward IV. (3 Edward IV. c. 4) is utterly against law: for it is true, that forasmuch as an Act of Parliament which generally prohibits a thing upon penalty, which is popular or only given to the king, may be inconvenient to divers particular persons, in respect of persons, time, place, etc., for this reason the law has given power to the king to dispense with particular persons. . But when the wisdom of Parliament has made an Act to restrain _pro\_\_bon\_\_publico_ the importation of many foreign manufactures, to the intent that the subjects of the realm might apply themselves to the making of the said manufactures. . Now for a private gain to grant the sole importation of them to one or divers . notwithstanding the Act, is a monopoly against the common law, and against the end and scope of the Act itself; " for the law as to monopolies see vol. iv 343-354.

## The Principles of Public Law 221

that a dispensation which defeated the whole spirit and intent of an Act of Parliament was void ; and in 1605, in the _Case of Penal Statutes_,1 that the crown could not give to another its power to dispense with a particular statute. On the other hand, in the _Case of Non Obstante_,3 it was laid down that any Act of Parliament which attempted to bind the king not to exercise a prerogative which was inseparably 8 annexed to his person--such as the prerogative to command any of his subjects to serve him, or the prerogative of pardon--could be dispensed with ; and that even an express clause in an Act of Parliament restricting this power of dispensation was invalid.4 Further, in the debates on the Petition of Right, the existence of a very wide dispensing power was admitted by the House of Commons ; 6 and a wide dispensing power in the case of statutes passed for the defence of the realm, such as the Navigation Acts and the Acts against the export of munitions of war, was in fact used.6

Footnote 1: 7 Co. Rep. 36.

Footnote 2: 7a Co. Rep. 18; the phrase "non obstante" often occurs in connection with the dispensing power--in fact it was the phrase usually used to grant a dispensation; but it also acquired a quasi-technical sense because in some cases a special "non-obstante" clause was supposed to be necessary; as to this see vol. 1v205 and n. 2.

Footnote 3: For the notion of "inseparable " powers, see vol. iv 204-206 ; above 20, 28.

Footnote 4: Below 224.

Footnote 5: Glanvil in his speech before a committee of both Houses said, "When statutes are made to prohibit things not _mala in se_ but only _mala quia prohibita_ under certain forfeitures and penalties to accure to the king and to the informers that shall use for the breach of them ; the commons must and ever will acknowledge a regal and sovereign prerogative in the king, touching such statutes, that it is in his majesty's absolute and undoubted power, to grant dispensations to particular persons with clauses of _non obstante_, to do as they might have done before those statutes, wherein his majesty conferring grace and favour upon some, doth not do wrong to others," 3 S.T. 206.

Footnote 6: 7 Above 171, 187-182.

Footnote 8: Hist. MSS. Com. 7th Rep. App. 167-168.

The law was clearly in a most uncertain state ; and its uncertainty remained as great as ever at the Restoration, because there had been no serious constitutional controversy between the earlier Stuarts and their Parliaments upon this question. The vagueness of these prerogatives made them most convenient instruments in the hands of kings who wished to make themselves the predominant partners in the state. Let us look at the use which Charles II. and James II. attempted to make (i) of their suspending, and (ii) of their dispensing power.

(i) We have seen that Charles II. desired tosecure a measure of toleration for the Roman Catholics, but that it was hopeless to expect that Parliament would sanction any such measure.7 A bill, introduced into the house of Lords in 1662-1663, to give the king a wide suspending and dispensing power, failed to pass,8

### Public Law of Xviith Century

although the power was not to be exercised in favour of Roman Catholics, nor to remove disabilities to hold offices in the state.1 Charles, therefore, determined to make use of this prerogative, and of his ecclesiastical supremacy, to suspend all the penal laws against Roman Catholic and Protestant nonconformists. To effect this purpose he issued in 1672 a Declaration of Indulgence.2 But the indignation of Parliament compelled him to withdraw it;3 and a bill introduced into the House of Lords, to give him a carefully guarded power to suspend certain named statutes for five years, shared the fate of the bill of 1662-1663.4 Charles never again attempted to exercise this prerogative. He abandoned it when he abandoned the Romanizing scheme of the treaty of Dover.5 But necessarily this prerogative again came to the front when James II. attempted to carry out this same Romanizing policy. The validity of his Declarations of Indulgence 6 obviously depended upon its existence. It was for this reason that he indicted the Seven Bishops for a seditious libel when they threw doubts upon it.7 It was quite clear from that case that the king could not get either any lawyer of repute or any jury to maintain its existence. Hale had said that "in noe case can the kinge without an Act of Parliament repeale an Act of Parliament, whether penal or other."8 Finch in his argument in the _Case of the Seven Bishops_ repeated the reasoning of the House of Commons in 1673,9 and pointed out that a suspending power was in substance a power to repeal laws, which "is as much a part of the legislature as a power to make laws."10 Powell, J., in

## The Principles of Public Law 228

his summing up, dealt trenchantly with the view that the king's power to suspend ecclesiastical laws was, by virtue of his ecclesiastical supremacy, wider than his power to suspend other laws. "I can see no difference," he said, "' nor know of none in in law, between the king's power to dispense with laws ecclesiastical and his power to dispense with any other laws whatsoever. If this be once allowed of, there will need no Parliament; all the legislature will be in the king, which is a thing worth considering."1

Footnote 1: 12 S.T. at p. 427. * Above 218-219. * Above 218-219. * (1674) Vaughan at pp. 334, 347-344 ; the following passage makes his position clear: " When the suit is only the king's for the breach of a law, which is not to the particular damage of any third person, the king may dispense ; but when the suit is only the king's but for the benefit and safety of a third person ... the king cannot dispense with the suit, but by consent and agreement of the party concern'd. ... The statute of z Car, z c. 25, upon which this case ariest, hath examples of penal laws in both these kinds. Every man is prohibited to sell wine by retail, contrary to the Act, upon forfeiture of five pounds for every offence ; from which offence no third man can possibly derive a particular damage to himself, for which he can have an action upon his case. ... When it follows, that the offence wrongs none but the king, and therefore he may, as in like cases, dispense with it. By a second clause in that Act, the mingling of wine with several ingredients therein mentioned, is penalty prohibited ; as by another clause the sale of wine at greater prices than the Act limits. He that shall offend, either by unlawful mixtures, or by selling darer than the law admits, both a particular wrong to the buyer, for which he may have his action; and therefore the king cannot dispense with either of those offences; " this view of the law is convinced in by Hale, vol. v App. III. p. 5to, * (1686) ris.T. 1r66; it may be observed that Powell, J., who was strongly against the crown in the Case of the Seven Bisnops, after hesitation, concurred in this decision, ris.T. 1r98. * Ibid r251-1267. * Hallam, C.I., ii 346-347 ; Commons Journals vil 440-444; S.P. Dom., t663-r664, r68, lixixi 123 ; from the beginning of his reign Charles II, wished to get anFootnote 1: The _Case of Non Obstante_ is a special case of the _Case of Non Obstante_, which is not the case of Non Obstante\_, is a special case of Non Obstante\_.

Footnote 2: The _Case of Non Obstante_ is a special case of Non Obstante\_, which is not the case of Non Obstante\_.

### Public Law of Xviith Century

employing Roman Catholic officers in the army.1 Possibly Herbert considered that the House of Commons in 1663 was considering, not the dispensing; but the suspending power, as to which he was careful to say he expressed no opinion.2 At any rate he would have been entitled to argue that resolutions of the House of Commons cannot make law ; and he did point out quite correctly, that the speech, in which Glanvil expressed the sense of the House in 1628,3 was wholly in favour of the correctness of the decision.4 Obviously the offence created by the Test Act was _malum prohibitum_ ; and this speech admitted an unlimited dispensing power in such cases. The decision, he quite rightly maintained, was not contrary to the decision of Vaughan, C.J., in _Thomas_ v. _Sorrell.5_ The action in _Godden_ v. _Hales_, being an action by a common informer for a penalty, was brought in the king's name as well as his own, and could therefore be barred by a dispensation granted (as this was) 6 before the action was begun.7 Finally, it was clearly correct if the _Case of Non Obstante_,8 was good law. The Test Act did clearly deprive the king of his power to command the service of his Roman Catholic subjects ; and the \_Case of Non Obstante_8 as clearly decided that, " No Act can bind the king from any prerogative which is sole and inseparable to his person, but that he may dispense with it by a _non obstante_ ; as a sovereign power to command any of his subjects to serve him for the public weak. . And this royal power cannot be restrained by any Act of Parliament, neither in _thest_ nor in _hypothesis_, but that the king by his royal prerogative may dispense with it ; for upon the commandment of the king, and obedience of the subject, doth his government consist.9 No

## 1 The Principles of Public Law 225

doubt it might have been argued that the dispensation in the case of _Gadden_ v. _Hales_ conflicted with the _Case of Monopolies_,1 because dispensations with the Test Act defeated its whole spirit and intent. No doubt it might have been argued that the Test Act was vital to the safety of the nation; and that therefore it came within another part of Glanvil's statement of 1628, in which he laid it down that there could be no dispensation with Magna Carta, or any of those other statutes upon which the rights and liberties of the subject were supposed to depend.2 No doubt it was only a king quite devoid of political tact who would have been so foolish as to make such a use of his dispensing power. But it might fairly be said that the application of the _Case of Monopolies_, and of the part of Glanvil's statement relating to Magna Carta and similar statutes, to the facts of _Gadden_ v. _Hales_ was at least doubtful in the face of the _Case of Non Obstante_; and it is quite clear that the court could take no account of the policy or impolicy of the dispensation upon which it was asked to adjudicate. On the whole I am inclined to think that the weight of authority is in favour of the technical correctness of Herbert's decision.3

Footnote 1: II Co. Rep. 84b ; above 220 n. 5.

Footnote 2: 3 S.T. 205--" Statutes incorporate into the body of the common law, over which (with reverence be it spoken) there is no trust reposed in the king's ${}^{*}$ sovereign power, or ${}^{*}$ prerogative royal, to enable him to dispense with them, or to take away from his subjects that birthright or inheritance which they have in their liberties, by virtue of the common law and of these statutes."

Footnote 3: This is also Mr. Churchill's view, L.Q.R. xxxviii 434 ; as he points out, ibid at p. 316, ${}^{\*\*}$When Charles II. . used the prerogative power to purge the University of the Puritan, Parliament was only too delighted to bless the work,"

Footnote 4: Above 167.

It is clear that a dispensing power of these dimensions was an excellent weapon with which to counteract any restrictions upon the prerogative which the king found to be inconvenient. In particular, it enabled him to get rid of statutes which prevented him from using the services of the only men who were likely to further his political and religious schemes. By means of it he could staff the civil service and the universities with Roman Catholics; and, what was perhaps even more important, he could secure for his army a set of Roman Catholic officers. With the help of an army thus led he might hope to accomplish much.

_(b) The discipline of the army._

That the king had the sole control over the military forces of the state was recognized in the amplest terms by statutes of Charles II.'s reign.4 But, after the disbandment of the Republican armies, the only military force left was the militia, which was a

### Public law of Xvith century

purely defensive force; and not available for foreign service.1 There was, however, nothing to prevent the king from hiring soldiers if he could afford to do so.2 Both Charles 11. and James II. made use of this power, and kept on foot a certain number of troops. This at once raised the legal question of the king's power to discipline these troops.

Footnote 1: Above 205.

Footnote 2: Above 217 n. n. 2.

Footnote 3: Above 54; vol. i 576.

Footnote 4: Rushworth, vol. ii Pt, ii App. 79, 8r, citing Coke and Rolle; Hale, r. P.C. 344: History of the Common Law 42-43.

The experience of the civil wars had shown that the rules of the common law were wholly inadequate for this purpose. The Petition of Right had made it quite clear that the rules of martial law were inapplicable to such an army in time of peace within the kingdom;3 and it was deemed to be a time of peace whenever the courts at Westminster were open, or, "if war be in any part of the kingdom," whenever the sheriffs could execute the king's writ.4 The impossibility of maintaining any sort of discipline in an army in the face of these rules was strikingly illustrated in the Scotch war of 1640.5 Shortly after the outbreak of the Great Rebellion, Parliament found that it was necessary to draw up a code of rules for the government of its troops. It drew up and issued such a code in 1642,6 which did not differ very materially from the Laws and Ordinances of War issued by Charles I. in 1639;7 and Charles II. in 1666 issued a similar code, which was modelled on that of 1642.8 Other similar codes were drawn up in 1672 and 1686.9 A similar course was pursued in the case of the navy. The series of ordinances, issued during the Great Rebellion by the generals at sea, were codified in Charles II.'s reign in the Duke of York's fighting instructions.10 But while the code of Naval Discipline got statutory authority,11 this authority was, in the case of the army codes, deliberately withheld.12 The result was that the

## 6 The Principles of Public Law 227

position of the soldier in relation to these military codes gave rise to conflicts and disputes with the civil authorities, and to legal problems to which it was difficult to find an answer. But it was not difficult for a king who had secured a subservient bench of judges to solve most of these problems in his own favour.

It is clear from a tale told by Bramston in his autobiography 1 that, in the army, an opinion was gaining ground that soldiers were exempt from all civil jurisdiction.2 He tells us that on one occasion the justices sent for a trooper, who was accused of rape, upon which, "the officers came and expostulated the matter with the justices, insisting upon their being exempt from the jurisdiction of the justices, and punishable only by martial law." At another meeting of officers the same views were expressed, and were justified by saying that otherwise it would be hard upon the soldiers " to be subject both ways, to a Counsel of war, and the other power, too." James II. seems sometimes to have been prepared to act on this theory ;3 and it is clear that, against officers who acted on it, it might be very difficult for a civilian to get the redress to which he was legally entitled.

Footnote 1: Autobiography (C.S.) 126-127.

Footnote 2: Rerebsly tells us, Memoirs 254, that, when made governor of York, he informed the mayor that he was willing to deliver up to justice soldiers charged with capital crimes, if notice was first given to him ; but that "for less crimes, as batteries, quarrels, or smaller misdemeanours, I expected complaint to be made to me, and to have the punishment of them myself "; cp, Clode, Military Forces of the Crown i 77; Military and Martial Law (and ed.) 17, 18, citing a Proclamation of 1673 that subjects were to appeal to an officer for protection against injuries committed by soldiers ; for some difficulties at Hull in 1668 see Marvel's Letters, Works ii 257-265.

Footnote 3: See Rev. * Browne, Corbet and others (1657) 2 Shower 484.

That this view held by the officers was erroneous, and that soldiers were amenable to the jurisdiction of the civil courts, was forcibly stated by Hale, C.J., in a case in which a captain was brought before him for having commanded the rescue of one of his men from the officers of the Comper by a troop of soldiers. "You are the king's servants," he said to the captain, "and intended for his defence against his enemies, and to preserve the peace of the kingdom ; not to exempt yourself from the authority of the laws. And indeed it were a vain thing to talk of Courts and laws, if military men shall thus give the law, and control legal proceedings. ... . Whatever you military men think, you shall find that you are under civil jurisdiction, and you but gnaw a file, you will break your teeth, ere you shall prevail against it." 4 The correctness of this view was, as Bramston

### Public Law of Xvith Century

records,1 stated by Clarendon, and admitted even by the crown. In 1672 it was announced that the provisions of the military code, drawn up in that year, were only intended to be applied to soldiers abroad.3 And though no doubt soldiers were tried for minor military offences by court martial,3 it seems to have been assumed that more serious crimes must be dealt with by the courts of common law. Thus in 1685, after the suppression of Monmouth's rebellion, Kirke was directed to send soldiers guilty of such crimes to the ordinary courts for trial, as the military code was in force only during the actual rebellion.4 Under these circumstances it was important that the common law should be so interpreted that it was possible by its means to keep the army together. It was possible to contend that the provisions of certain statutes made desertion a colony. Obviously, if this contention were upheld, the soldiers could be kept together, and the task of the officers in subjecting them to the discipline of the military codes would be much facilitated.

Footnote 1: Autobiography (C.S.) 147 ; and cp. Ekins v. Newman (1680) Th. Jones 147.

Footnote 2: Clode, Military and Martial Law (2nd ed.) 15.

Footnote 3: Above 227 n. z.

Footnote 4: Clode, Military Forces of the Crown, i 478.

Footnote 5: J Henry VIII. c. t.

Footnote 6: J Henry VIII. c. g 2; this difference of wording is not observed by Coke, Third Insit. 86; it is noted by Hale, r P.C. 673, who says that this Act " is larger than 7 H. 7 for it extends to land service."

The question whether or not desertion was felony is by no means clear. A statute of Henry VII.'s reign 5 had enacted that if a soldier " immediately retained with the king, which shall be in wages or retained or take any present to serve the king upon the sea or upon the land beyond the sea," deserted, he should be guilty of felony. Obviously this statute did not apply to a soldier in England who deserted. But a subsequent statute of Henry VIII.'s reign 6 enacted that the desertion of a soldier retained to serve the king "upon the sea or upon the land or beyond the sea " should be felony. Obviously this statute might be interpreted to apply to a soldier in England who deserted. But it might be argued that these statutes of Henry VII. and Henry VIII.'s reigns had been repeated by statutes of Edward VI. and Mary's reigns, which abolished all new felonies created since I Henry VIII.7 It was, however, held in 1601, in the _Case of Soldiers_,8 that Henry VIII.'s statute was not repealed because it only created a felony which was a felony by Henry VII.'s statute. Hale, however, had grave doubts as to whether this construction was correct, because the statute of Henry VIII. was by no means a mere

## 6 The Principles of Public Law 229

repetition of the statute of Henry VII.1 And it seems to me that, if the treatment of the desertion of a soldier in England as a felony was the result of a change made by the statute of Henry VIII., then clearly the statute of Henry VIII. created a new felony, which was abolished by the legislation of Edward VI. and Mary.2 But it would seem that what James II.'s judges did was to look at the words of the statutes of Henry VI. and VIII., to rule in accordance with the _Case of Soldiers3_ that both these statutes were in force, and to decide that therefore the desertion of a soldier in England was a felony.4 Holt resigned the re-cordership of London rather than concur in such a decision.5 We do not know the grounds of his dissent; but probably they were those which Hale has set out in his Pleas of the Clown. Having got this decision, James took it upon himself to interfere with the execution of the sentences pronounced by the courts of common law in a manner which was wholly unwarrantable, and aroused some feeling even among his subservient judges.6

Footnote 1: Alluding to other variations, he says, "If this variance by the statute of 3 H. 8 be a repeal of the statute of 7 H. 7 then they are both repealed, that of 7 H. 7 by 3 H. 8, and that of 3 H. 8 by r E. 6 and r Mar.," Hale, r. P.C. 674.

Footnote 2: Hale, as we have seen \[last note\], had noted other variations which in his opinion prevented the statute of 3 H. 8 from being a mere repetition of 7 H. 7; he does not, however, lay much stress on this particular variation; but obviously if, owing to this difference of wording in the later Act, the desertion of a soldier in England had been made a felony, it, in effect, created a new felony.

Footnote 3: (f60!) 6 Co. Rep. 27a.

Footnote 4: See Rex v., Beal (r687) 3 Mod. r24; S.C. 2 Shower 5II.

Footnote 5: Bramston, Autobiography (C.S.) 245, 276; Bramston also mentions, ibid 276, a case in which a grand jury refused to find a true bill in such a case,

Footnote 6: Ibid 273; cp. Rex v. Beal (r687) 3 Mod. r24.

The whole position was thoroughly unsatisfactory. It was obviously expedient, if the crown retained troops, to prevent them from deserting; and it was still more expedient to discipline them by a military code. But the legality both of the ruling of the courts of common law that desertion was a felony, and of the codes of military discipline, was more than doubtful. It was a clear case for the intervention of the legislature. But there was not the least chance that the legislature would intervene in the only way in which the king would have permitted its intervention. All through Charles II.'s reign Parliament had shown the greatest jealousy of an army controlled by the crown.7 It is just possible that, after Monmouth's rebellion, James II, might have induced Parliament to concur in some kind of settlement, if he had abandoned his Romanizing policy. But all chance of this disappeared when, by the help of his dispensing power, he proceeded to introduce Roman Catholic officers into his army.

### Public Law of Xviith Century

Therefore both Charles II. and James II. found it necessary to attempt these unwarrantable extensions of their military prerogatives, if they were to preserve discipline among their troops. That they were unwarrantable is fairly obvious. Even if the legality of the decision that desertion could be treated as a felony could be defended, it is clear that no defence is possible of the extension of a prerogative, limited to the government of troops by martial law abroad or in time of war, to the government of troops in England and in time of peace.

If we remember that, from 1660 to 1688, the crown had been making use of these four different expedients to make itself and its prerogative the predominant partner in the state, we shall appreciate the true meaning and historical explanation of the provisions of the Bill of Rights and the Act of Settlement. They were designed to make it impossible for any future king to rely upon any such expedients. Let us analyse their provisions from these four points of view.

(i) The fact that James II. was in substance deposed gave a fatal blow to the theory of divine right, and the legitimist notions based upon it. No doubt, the formula adopted by the House of Commons 1 endeavoured decently to veil the fact of his deposition, and the fact that Parliament had created a new king. But, as against the House of Lords, the House of Commons insisted successfully on its resolution that the throne was vacant;2 and this was decisive. The throne had been vacated, and Parliament had filled it. As the judges and lawyers, when consulted by the House of Lords, admitted, none of the rules of the common law were applicable to such a case.3 It was a Revolution; and the people, through their representatives in Parliament, had assumed the right to make and unmake kings. The Whig position was still further emphasized when a Tory Parliament passed the Act of Settlement, and entailed the crown upon a family that had no kind of claim to it except by virtue of this Act of Parliament.4 The two breaks thus created in the order of succession by these

## 6 The Principles of Public Law 231

two Acts of Parliament were fatal to the supra-legal position which the Stuart's had always claimed for the crown. It reversed, as Hallam has said,1 the maxim "A Deo rex a rege lex," and made the crown the creature of the law.

Footnote 1: Hallam, C.H. iii@g2; the conflict between the views of the Whigs and the Tories is clearly brought out by the debate on the Bill for settling the oaths of allegiance, see Macaulay, Hist. ii@g09-293.

(ii) The various ways in which Charles II. and James II. had sought either to influence or to muzzle Parliament were dealt with by certain clauses in the Bill of Rights and Act of Sattelment, and by the Triennial Act.

The Bill of Rights declared that the election of members of Parliament ought to be free;2 that freedom of speech and debate and proceedings in Parliament ought not to be questioned in any court or place out of Parliament;3 and that Parliament ought to be held frequently.4 The last declaration was made more specific by the Triennial Act of 1694,5 which not only prohibited the intermission of Parliament for a longer period than three years, but also limited its duration to the same period. It is obvious that these enactments were designed to put a stop to the methods which the Stuart kings had employed to control elections,6 to make it impossible to institute criminal proceedings against officers of the House of Commons for matter published by them by order of the House,7 and to declare the illegality of such an intermission of Parliament as had occurred at the end of Charles II.'s reign.8 The limitation of the duration of Parliament to three years was designed, both to limit the opportunities of the king for the corruption of members, and to make it less profitable for candidates to spend money upon the corruption of the electors.9 This was also one of the three main objects of SS 3 of the Act of Sattelment.10 The other two were the securing of the legal responsibility of the king's ministers for their acts, and the prevention of any interference on the part of the crown with criminal proceedings instituted by the House against ministers or others. In order to secure the first of these objects many attempts had been made during the reigns of Charles II. and William III. to exclude place men from the House of Commons.11 But, though, during

### Public Law of Xvith Century

William III.'s reign, certain minor officers had been excluded,1 their complete exclusion was not secured until the passing of the clause of the Act of Settlement which provided that, "no person who has an office or place of profit under the king, or receives a pension from the crown shall be capable of serving as a member of the House of Commons." To secure the second of these objects it was enacted that "all matters and things relating to the well-governing of the kingdom, which are properly cognizable in the Privy Council by the laws and customs of this realm, shall be transacted there, and all resolutions taken there upon shall be signed by such of the Privy Council as shall advise and consent to the same."2 To secure the third of these objects it was enacted that no pardon under the great seal shall "be pleadable to an impeachment by the Commons in Parliament."3

Footnote 1: Porritt, op. cit. i z06-207; z z,3 William III. c. z 8 3.

(iii) The recent perversions of the judicial prerogatives of the crown were dealt with by clauses of the Bill of Rights enacting that excessive bail should not for the future be required, that excessive fines should not be imposed, and that cruel or unusual punishments should not be inflicted; " that jurors should be duly impanelled; " and that "grants and promises of fines and forfeitures of particular persons before conviction are illegal and void."6 But the two most important measures taken to guard against the abuse of the judicial prerogative of the crown were (_a_) the Act for regulating trials for high treason, and (_b_) the clause of the Act of Settlement dealing with the judges' tenure of office.

(_a_) The measure for regulating trials for high treason, which finally became law in 1695-1696,7 has a curious history. It had its origin in an attempt of the peers to secure for their members, accused of treason or felony, a trial before the whole or a large body of the peers, instead of a trial before the Lord High Steward and a jury of peers.8 In 1667-1668 9 a bill passed the House of Lords providing that, whenever a peer was accused of treason or felony, the Lord High Steward should summon all peers who had

## 1 The Principles of Public Law 288

attained their majority ; and a similar bill was passed by them in 1673-1674.1 In 1675 2 it was proposed that the court of the Lord High Steward should consist of forty members ; that thirty of them at least must appear at the trial ; and that twelve at least must agree in a verdict of guilty. An amended draft of this bill was again introduced in 1679;3 and it was further amended in this and the following year.4 None of these bills succeeded in passing the Commons. In 1688-1689 5 a further development took place. The substance of the preceding bills were combined with clauses drafted by Levine, which were designed to protect all persons accused of high treason. They dealt with the property qualification of jurors in such cases ; and they permitted the prisoner to have a copy of the indictment before trial, to be defended by counsel, and to have his witnesses on oath. This bill failed to pass the Commons ; and an amended draft of this bill failed to pass the House of Lords in 1691.6 But another bill, which passed the Commons in this session, begins to assume the features of the bill which was ultimately passed into law.7 This bill, however, contained no clause dealing with the trial of peers before the court of the Lord High Steward, because the Commons were reluctant to add to the very large and oppressive privileges which the Lords already enjoyed in judicial proceedings. Therefore the Lords inserted a clause dealing with this matter, which the Commons rejected. A conference was held ; and the Commons were induced to consent that there should be a jury of thirty-six in trials for treason in the court of the Lord High Steward ; but they absolutely refused to give way to the Lords' proposal that all the peers should be summoned.8 The result was that the bill was lost ;9 and another bill was lost in the Commons in the following year.10 A similar bill, sent up by the Commons in 1693-1694, was lost in the Lords ;11 and in 1694 another bill was lost, because the Commons again refused to concur in the Lords' provisions as to the trial of peers.12 In the following year the Commons at length gave way and the Act was passed,13 Prisoners indicted for high treason

### Public Law of Xviith Century

were allowed to have a copy of the indictment five days before trial, and to be defended by counsel.1 They were allowed to have a copy of the panel of jurors two days before trial,2 and to compel the attendance of their witnesses,2 who were to be sworn.3 Except in cases of an attempt to assassinate the king,4 the indictment must be found by the grand jury within three years of the commission of the crime.5 On trial of peers or peeresses for treason all peers entitled to vote were to be summoned.6 The Act also settled several controverted points as to the evidence required to prove an act of treason.7 In particular it settled the controversy as to whether two witnesses were required to prove such an act,8 by providing that it must be proved by two witnesses deposing, either to the same overt act, or to two overt acts of the same kind of treason.9 It did not apply to impeachments for treason,10 nor to indictments for treason for counterfeiting the king's seals or his coin.11

Footnote 11: Below 262-272,

Footnote 12: The Act of Settlement provided that " Judges' commissions be made _quamdin se bene gesserint_, and their salaries ascertained and established ; but upon the address of both Houses of Parliament it may be lawful to remove them."13 This clause removed the Bench from the political arena, made it impossible for the crown, House of Commons, or House of Lords to exercise pressure upon it, and thereby guaranteed the impartial administration of the law. In consequence, the supremacy of the law has become the best of all securities for the liberties of the subject, against both the claims of the royal prerogative and the claims of Parliamentary privilege.14 At the same time the independence of the judges was further safeguarded by the growth of the modern rule that the judges of the superior courts are immune from all actions for any acts done by them in their capacity as judges. This rule was by this period established almost in its modern form. But the manner in which it had been established, and the conditions under which it had come to be applied to the judges of different courts, make a curious piece of legal history which merits a slight digression.

Footnote 13: If I was not sure that the judges were not to be sworn, then it would be possible to have a copy of the judges of the original party.

We have seen that in early law this immunity of the judges

## The Principles' of Public Law 235

was not recognized--the procedure by which the decision of the court could be questioned took the form of a complaint against the judge.1 But, long before the close of the medieval period, the common law had learnt to draw a distinction between the correctness of a judge's decision and the rectitude of his conduct. The technical road by which it arrived at this distinction was an elaboration of the consequences of the sanctity of the records of courts of record.2 In fact, just as the existence of these records determined the character of the proceedings in error permitted by the common law,3 so it was from the sanctity of these records that the modern rules as to judicial immunity originated. That this is its origin is shown by the fact that, in the case of courts not of record, older ideas survived, and the judges had little if any of this immunity. They could be amerced for a judgment which was false, not only by reason of the fact that they had acted without jurisdiction, but also by reason of the fact that they had abused their jurisdiction;4 and it is by no means certain that an action for damages would not lie at the suit of the litigant who is aggrived by a decision which is open to attack upon either of these grounds.5 In the case of courts of record, however, it was held, certainly as early as Edward III.'s reign, that a litigant could not go behind the record, in order to make a judge civilly or criminally liable for an abuse of his jurisdiction. This is shown by a case reported in one of the books of Assizes,6 which runs as follows: "J de R was arraigned for that, whereas he was a justice to hear and terminate felonies and trespasses, and whereas certain persons were indicted for trespass, he made entry in his record that they were indicted for felony. And judgment was demanded for him \[for all that he did\] from the time that he was justice by commission, and that which he \[the acuser\] presents will be to undo his record, which cannot be by law, if to such a presentment the law puts him to answer. And it was the opinion of the justices

### Public Law of Xvith Century

that the presentment was bad." The only recourse open to the suitor in such a case was to attack the record by writ of error, founded either on the record or on a bill of exceptions to a ruling of the judge.1 It was because this was his only recourse that the legislature provided a remedy against a judge who refused to seal such a bill;2 just as, in later law, the importance of protecting the liberty of the subject induced it to depart from its usual practice, and to penalize a judge who in the vacation refused to issue a writ of Habeas Corpus.3

Footnote 1: For the bill of exceptions, which was given by Stat. West II, c. 3r, see vol. i 223-224.

Footnote 2: Register of Writs f. r8a; Co. Second Insit. 427; the statute provides a writ to compel a return, and Blackstone, Comm. iii 372, states that if the judge makes a false return an action will lie against him; this rests on a statement by the judges in Bridgman v. Holt (r693) Shower P.C. at p. tr7; but the statute does not seem to contemplate such an action, nor have I seen any case reported in which such an action was brought; for difficulties made by the judges in the fourteenth century when asked to seal such bills, see Plucknett, Statutes and their Interpretation in the Fourteenth Century 67-68.

Footnote 3: x Charles II, c. 2 SS 10, a.

Footnote 4: See Y.B.2. B. Hry, IV. M. Mich. pl. r; 2r Ed. IV. Mich. pl. 49 _fur_ Pigot _arg_.

Footnote 5: Y.B.2. 2Ed. IV. Mich. pl. ri (p. 33). * f Ibid.

It will be observed that in the case just cited the judge was acting within his jurisdiction. It is quite clear from other decisions of the same period that the courts did not apply this reasoning to cases where a judge had acted wholly outside his jurisdiction.4 In such a case the matter was not _coram judge_, the record could be traversed, and the judge was not protected from the aggrieved litigant's action. " If," said Pigot in 1482, " their patent does not give them power and authority, then it is _coram non judge_, as if in the Common Bench an appeal of death or robbery or any other appeal is brought, and the party is attainted, it is _coram non judge_, to which all asserted."5 "A man," said Suliard in the same case, " shall have a traverse to a matter of record, and also to a matter of fact, in order to avoid such a record, when the court has no jurisdiction."6

Footnote 5: Y.B.2. 2Ed. IV. Mich. pl. ri (p. 33). * f Ibid.

The rules laid down in the Year Books were elaborated and restated by Coke and many other judges of the sixteenth and early seventeenth centuries.7 Thus, in _The Case of the Marshall-sea_,8 "a difference was taken when a court has jurisdiction of the cause, and proceeds _inverso ordime_ or erroneously, there . . no action lies. . . But when the court has not jurisdiction of the cause, then the whole proceeding is _coram non judge_, and actions

## 5 The Principles of Public Law 237

will lie." For this Pigot's dictum in the Year Book of Edward IV.,1 and other Year Books, were vouched, and further illustrations were given. Thus "if the court of Common Pleas holds plea in debt trespass, etc., without an original, it is not void for they are judges of those pleas, and it cannot be said that the plea is _coram non judice_.2 But there is little doubt that, at the beginning of the seventeenth century, there was a tendency to magnify the consequences of the immunity of the judges which flowed from their status as judges of a court of record. As we have seen, the consequences of this status were a useful argument to prove the independence of these courts from the interference of rival courts, such as the court of Star Chamber.3 Therefore, in the case of _Floyd_ v. _Barker_,4 Coke emphasized this immunity ; and though he did not wholly dissociate it from its early dependence upon the technical conception of a court of record, he put it for the first time on its modern basis of public policy. "Records," he said,5 " are of so high a nature, that for their sublimity they import verity in themselves; and none shall be received to aver anything against the record itself; and in this point the law is founded upon great reason ; for if the judicial matters of record should be drawn in question, by partial and sinister supposals and averments of offenders, or any on their behalf, there will never be an end of causes ; but controversies will be infinite." The judges are "to make an account to God and the King " only.6 Otherwise "those who are the most sincere would not be free from continual aluminations."7 Clearly we have reached the basis upon which this immunity is based by the modern cases.8

Footnote 1: Above 236. ${}^{\\

### Public Law of Xviith Century

where a judge had acted without jurisdiction. From the days of the Year Books 1 to the present day, this distinction between an abuse of jurisdiction and an absence of jurisdiction has been maintained.2 Indeed, the fact that, from the sixteenth to the nineteenth centuries, a large part of the local government of the country was carried on by justices of the peace acting under judicial forms,3 made the preservation of this distinction and its consequences a necessary safeguard to the liberty of the subject. In the second place, neither the Year Books nor the sixteenth and early seventeenth century cases draw any distinction between judges of the superior courts of record and the judges of any other courts of record.4 As late as 1840, in the case of _Calder_ v. _Halket_,5 Parke, B., laid it down without qualification that English judges, " when they act wholly without jurisdiction, whether they may suppose they had it or not, have no privilege ";6 and it is clear from the context that he meant to include judges of the superior courts of record.7

Footnote 1: Above 235-236.

Footnote 2: Terry v. Huntington (1668) Hardres 48o; Houlden v. Smith (185o) 14 Q.B. S4.

Footnote 3: Vol. iv 144, 165.

Footnote 4: In Y.B. 2 Rich. III. Mich. pl. zr a distinction is drawn in that, " Omnes curiae ad communem legem sunt Curie Domini Regis, et quilibet Curia ligatur cognaceae consentiudies alterius Curie. Sed non de alis Curiis in civilatiibus et partitis"; there is no hint of any other distinction ; we have seen that in the Case of the Marshalssea (1613) to Co. Rep 76b Coke copies the Year Book of Edward IV. (above z36-237), and uses as an instance of a court acting without jurisdiction (the case of the Common Pleas entertaining a criminal appeal.

Footnote 5: A by Moore P.C. 28.

Footnote 6: " Thirdly, the object may have been to put the judges of the native courts on the footing of judges of the superior courts of record . . protecting them from actions for things done within their jurisdiction, though erroneously or irregularly done, but leaving them liable for things done wholly without jurisdiction," ibid at pp. 74-75.

Nevertheless, during the latter part of the seventeenth century, we can see the beginnings of the modern distinction between the immunity accorded to the judges of the superior courts of record, and the judges of inferior courts. That distinction springs from the two connected but divergent roots upon which Coke had grounded the immunity of all judges of courts of record. In the first place, it is grounded upon the fact that, while the jurisdiction of the judges of inferior courts is limited by definite restrictions of subject matter, persons, or place, the jurisdiction of the judges of the superior courts is not so limited. Hence we get the rule, stated in 1666 in the case of _Peacock_ v. _Bell_,8 " that nothing shall be intended to be out of the jurisdiction of a superior court but that which specially appears to be

## The Principles of Public Law 289

so ; and, on the contrary, nothing shall be intended to be within the jurisdiction of an inferior court but that which is so expressly alleged." It follows that a superior court has jurisdiction to determine its own jurisdiction ; and that therefore an erroneous conclusion as to the ambit of its jurisdiction is merely an abuse of its jurisdiction, and not an act outside its jurisdiction. On the other hand, as an inferior court cannot determine its own jurisdiction, an erroneous conclusion as to its ambit is an act outside its jurisdiction. In the second place, it is grounded upon the fact that, while the judges of the superior courts are answerable only to God and the king,1 the judges of the inferior courts are answerable to the superior courts for any excess of jurisdiction. They can obviously be controlled by the prerogative writs,2 so that it cannot be said that they are not amenable to the jurisdiction of any court. It follows that their judges can be made liable by the machinery of the courts if they have acted outside their jurisdiction, so that their acts are _coram non judice_. Theoretically the judge of a superior court might be liable if he acted _coram non judice_ ; but there is no legal tribunal to' enforce that liability. Thus both lines of reasoning led to the same conclusion--the total immunity of the judges of the superior courts. I think that, at the end of the seventeenth century, the courts were feeling their way to the distinction upon which the total immunity of the judges of the superior courts rests ; but that the gradual way in which it was being arrived at prevented any very clear apprehension of its juridical basis.3 Indeed, though we get statements of this rule in the eighteenth century,4 I doubt whether we get any very clear statement of its juridical basis until the judgment of Willes, J., in 1867, in the case of \_The Mayor of

### Public law of XVITH CENTURY

_London v. Cox.1_ The fact that this distinction between the judges of the superior and inferior courts was not directly laid down, but only established as the indirect result of the ambit of the jurisdiction of these superior courts, and the absence of any judicial tribunal to which they could be made legally accountable, explains why so many cases have arisen in the nineteenth century in which the extent of this immunity has been questioned. The older authorities limited the immunity of all judges of courts of record to their acts in matters which fell within their jurisdiction; they drew no distinction in this respect between the judges of superior and the judges of inferior courts; and so a trap was laid for those who had not fully considered the consequences of the differences between the extent of the jurisdiction, and nature of the control to which these two classes of judges were subject. I think, therefore, that although it cannot be said that the modern immunity of the judges of the superior courts was fully established at the time of the Revolution, its juridical basis existed, and the judges were gradually becoming conscious of it. To the other effects of the Revolution settlement we must now return.

(iv) The two branches of the prerogative which Charles II. and James II. had most signably abused were specifically dealt with by the Bill of Rights. The suspending power was absolutely condemned.2 The dispensing power was not condemned absolutely, but only "as it hath been assumed and exercised of late."3 It was intended to regulate this power by further legislation.4 But the task was found to be too difficult; and the attempt was abandoned.5 The result is that the recent dispensations were

## 1 The Principles of Public Law 241

declared to be invalid ; and that no future dispensation is valid, unless it is specially provided in the statute dispensed with that a dispensation is permissible. The question of the army was dealt with by the clause that, " the raising or keeping a standing army within the kingdom in time of peace, unless it be with consent of Parliament, is against law." 1 The fact that Parliament, from that day to this, has never consented to the raising or keeping of a standing army for more than a year,2 has proved to be one of the strongest sanctions for Parliament's annual session.3

Footnote 1: I william and Mary sess. 2 c. 2 SS 6.

Footnote 2: A ppendix of the _Munny_ Act at the end of 1689, Hist. MSS, Com. z4th Rep. App. Pt. vi xix.

Footnote 3: In some of the earlier triennial blills, which failed to pass, there was a clause providing for annual session; but this was dropped in the bill which became law, probably because such a clause was seen to be unnecessary, ibid z4th Rep. App. Pt. vi xv.

Footnote 4: I William and Mary sess. 2 c. 2 SS 9; 12; 13 William III. c. 2 SS 1.

Footnote 5: I bid SS 3.

Footnote 7 SS SS 14.

Footnote 8 SS 5; with singular inconsistency the House of Commons in r30r voted a petition of the grand jury of Kent that they would turn their loyal addresses into Bills of Supply to be scandalous, insolent, and seditious, see Hallam, C.H. iii z72.

Footnote 9 SS SS 17.

Footnote 10: See IT S.T. i43-T55 for James II.'s commission.

The remaining clauses of the Bill of Rights and the Act of Settlement are of comparatively minor importance. The events of James II.'s reign sufficiently explain the insistence of both these enactments upon a Protestant dynasty ;4 and the fact that the Act of settlement was passed by a Tory Parliament explains the clause requiring the king to be a member of the Church of England.5 Similarly the condemnation of the court of High Commission;6 of the levying of money without the consent of Parliament, or for a longer time or in other manner than the same is granted of Parliament;7 of the denial of the right of the subject to petition the king;8 and of refusal to allow Protestants the right to carry arms for self-defence9--were all caused by notorious events in James II.'s reign. In defiance of an Act of Charles II.'s reign, James had, in reliance upon his ecclesiastical supremacy, erected a new court of High Commission.10 He had levied customs duties before they had been regularly granted to him by Parliament. He had prosecuted the Seven Bishops who had presented a respectful petition. He had allowed Papists to be officers in his army, and refused Protestants the right to carry arms.

Footnote 4: I william and Mary sess. 2 c. 2 SS 6.

Footnote 7 SS SS 14.

Footnote 8 SS 5; with singular inconsistency the House of Commons in r30r voted a petition of the grand jury of Kent that they would turn their loyal addresses into Bills of Supply to be scandalous, insolent, and seditious, see Hallam, C.H. iii z72.

Footnote 9 SS SS 17.

Footnote 10: See IT S.T. i43-T55 for James II.'s commission.

We look in vain for any statement of constitutional principle in the Bill of Rights. " Some controverted points of law were decided according to the sense of the best jur

### Public Law of Xviith Century

been a slight deviation from the ordinary course of succession." In the Act of Settlement one or two general principles are laid down--the clauses as to the Privy Council, as to placement, and as to the judges' tenure of office, are examples. But these principles are, after all, only of secondary importance. The most fundamental principles--the position and functions of the king and his prerogative, of Parliament, and of the courts, and the existence of the rights and liberties of the subject--are all assumed. The reason is to be found in the constitutional history of the reigns of the last two Stuart kings. These fundamental principles had in substance been settled by the legislation of the Long Parliament, and by the results of the Great Rebellion. They had not really been matters of controversy since the Re-storation. What had been in controversy was the relative weight in the constitution of the prerogative and Parliament, the control of the courts, and the manner in which the rights and liberties of the subject should be secured. All these matters of political controversy were dealt with by this legislation. But, because it was legislation enacted solely from the point of view of past conflicts, some parts of it were found to be unnecessary, and even mistaken, almost as soon as they had obtained legislative sanction. The old conflicts were over. Parliament, as the result of the Revolution, had finally won the contest for predominance in the state. It had therefore become quite unnecessary to enact that "Parliament ought to be held frequently," because it was impossible to carry on the business of the state without Parliament.1 For the same reason it soon appeared that the clauses in the Act of Settlement as to the Privy Council, and as to the disqualification of placemen for membership of the House of Commons, were mistaken. It was found necessary to repeal the former, and to modify materially the latter, before they came into operation.2

Footnote 1: Below 26r.

Footnote 2: 4 Anne c. 8 SSs 24, 25; these clauses had not yet become operative as they were only to take effect from the time when the Hanoverian dynasty succeeded.

The victory of Parliament necessarily had large effects upon both the legal and the political status of the prerogative.

Its effects upon the legal status of the prerogative have not, as we shall see,3 been wholly satisfactory. All the statements of the Tudor lawvers as to the corporate capacity of the king, as to his immortality, and his impeccability, were still accepted as part of the law.4 But, throughout the seventeenth century, Parliament had relied upon medieval precedents in support of its claims. Therefore, as a result of its victory, certain of the medieval ideas, which regarded the king as a natural man, rather than as theThe Principles of Public Law 243

corporate head and representative of the state, survived. Hence much legislation has been necessary to prevent the death of the king from causing "all the wheels of the State to stop or even to run backwards."1 Then, too, Parliament had always contended for the medieval, idea of the supremacy of the law.2 It was admitted that the king was personally above the law, and that personally he was the sovereign representative of the state.3 But the victory of the Parliament made it quite clear that his prerogative was subject to the law. For these reasons an extraordinarily complex body of legal doctrines has grown up round the prerogative, with which I shall deal in the second Part of this Book.4

Footnote 1: Maitland, L.Q.R. xvii x36.

Footnote 2: Above $3-$4, 206-207,

Footnote 3: Above 204-205, 207.

Footnote 4: The Unreformed Parliament i 566-567.

The effects of the victory of Parliament upon the political status of the king, and the relation of his prerogative to Parliament, the courts, and the subject, will be explained in the two following sections.

(3) _Parliament; and the relation of Parliament to the Prerogative._

The fact that Parliament had, as a result of the Great Rebellion, won a position in the state on an equality with that of the king and the courts ; and that it had, as a result of the Revolution, won a position of predominance in the state ; are illustrated by the tendency of the fashionable world, during the latter part of the seventeenth century, to move westwards in the direction of Westminster. " Until the reign of Charles L.," says Porritt,6 " what we know as the London season had centred, not as to-day about Parliament, but about the Inns of Court. The lawyers set the fashion in dress and amusements. They chiefly constituted the fashionable world of London ; and while they were socially supreme, the eastern side of Temple Bar was the centre of fashionable society. After the Restoration this supremacy of the Inns of Court passed to Parliament. . With the passing of this supremacy from the Inns of Court to Parliament, the fashionable world gradually moved westward of Temple Bar." This increase in the importance of Parliament had two important effects. In the first place, it tended both to provoke and to settle questions relating to its constitution, to the relations between the two Houses of Parliament, to their powers, and to their procedure and privileges. In the second place, it raised the question of the future relations of Parliament to the crown and its prerogative--of the relations, that is, of the legislative power in the state to the executive.

### Public Law of Xviith Century

(i) Questions relating to the constitution of Parliament, to the relations between the two Houses of Parliament, to their powers, and to their procedure and privileges.

The manner in which these four questions were settled will illustrate the gradual settlement of many of those parts of our public law which centre round Parliament, and will show that Parliament has now begun to assume its modern position in the constitution. A brief account of their settlement is all that will be necessary. To enlarge upon them would be to encroach unduly upon the provinces of the constitutional historian and the constitutional lawyer.

_The Constitution of Parliament._

The latter part of the seventeenth century saw the constitution of the House of Lords settled in almost its final form. It saw the beginnings of the legislation as to disqualifications for membership of the House of Commons, and as to the conduct of elections; but it saw hardly any change in the representative system.

Anson points out that it was in the seventeenth century, and especially during the latter half of the century, that "the customs of the peerage were defined and reduced to the form in which they appear in modern text books."1 This was effected chiefly by two series of decisions. Firstly, there is a series of cases upon the question of the alienation or surrender of peerages. In 1641 the House resolved that a peer cannot alien or transfer his peerage to the king "by surrender, grant, fine, or any other conveyance."2 But, down to 1678, there were some doubts as to whether or not a peer could surrender his dignity to the king by fine. Such a fine had in fact been held to be valid by the law officers in 1660.3 But in 1678, in the _Purbeck Case_, the House of Lords decided that a peer could not by fine bar, either his own title to his peerage, or that of persons claiming through him.4 Secondly, there is a series of cases as to the mode in which a person may entitle himself to a peerage, and as to the proof of such title. In 1669 the Privy Council, assisted by the judges and the law officers of the crown, came to the conclusion that barony by tenure had "been discontinued for many ages, and was not in being, and so not fit to be revived, or to admit any pretence of right to succession there-upon."5 The question was finally decided byThe principles of public law 245

the House of Lords in the same way in 1861 in the _Berkeley Case_.1 In the _Clifton Case (1673)_, and the _Freschville Case_ (1677) it was decided that the issue and receipt of a writ of summons, and the taking of his seat by the recipient in obedience to the summons, would create an hereditary peerage.2 In the _Ruthyn Case_ (1670) it was decided that the title to a peerage must be proved by matter of record, i.e. either by writ or letters patent.3

Footnote 1: Anson, op. cit. fgo. # Ibid 18g.

Footnote 2: Ibid ; but the writ must be a writ to an assembly to which the Commons were summoned, St. John Peerage Claim \[1795\] A.C. 282.

Footnote 3: 7, 8 William III. c. 25 SS 7; the practice of " sending such to Parliament as are scarce old enough to be sent to the University daily increa," says Halifax, Foxrock it 474; i thought that no one under thirty should be eligible.

Footnote 4: 12, 13 William III, c. 2; in 1695-1696 a bill had passed both Houses to exclude aliens from membership of the House of Commons; to make it necessary for knights of the shire to have a freehold estate of $f$500 a year, and borough members to have a similar estate of $f$200 a year; and to penalize corrupt practices and treating; but the king refused his assent, House of Lords MSS. (N.S.) i in no. rof6; cp. Macaulay, Hist. iv 48-r49; a somewhat similar bill dealing with the disability of aliens, and property qualification for members, was lost in the House of Lords, ibid no. rog2; Macaulay, Hist. iv 879-r88. It was held in R. v. Speyer \[1796\] z K.B. 858, that SS 7 of the Naturalization Act, 879 (33 Victoria c. 4) had implied this clause of the Act of Settlement, though the Act of Settlement is not mentioned in the schedule of Acts repealed by the Naturalization Act.

Footnote 4: Above 187-r82.

Footnote 5: 2 William and Mary sess. I c. 7.

Footnote 7: 8 William III. C. 7, made perpetual by r2 Anne st. I c. 15; a somewhat similar bill had passed the Commons, but had failed to pass the Lords in 1692-r693, Hist. MSS. Com. r4th Rep. App. Pt. vi no. 722.

Footnote 42: (

### Public Law of Xvith Century

as to the procedure to be followed in an election by sheriffs and other returning officers,1 and prohibited the practice of making conveyances of freeholds in order to multiply votes.2 Further regulations as to the conduct of elections were made by a statute of 1698.3 A statute of 1695 begins the long line of enactments which attempt to suppress bribery and treating by candidates for Parliament.4

Footnote 1: 7, 8 William III. c. 25; cp. Porritt, op. cit. i 86.-87. 2 SS 6.

Footnote 8: ro William III. c. 7; a similar provision to SS 2 of this Act occurs in an abortive bill of 1696, House of Lords MSS. (N.S.) ii 377 no. 1693.

Footnote 4: 7, 8 William III. c. 4; before this date the House had attempted to repress this evil by its own standing orders; Marvel tells us that in 1677 the House agreed to "a standing order to the Committee of Privileges for the judging of all elections to Parliament for the future, that if any one should spend before the day of the election above SS16, except in his own dwelling house, in order to such election, or shall make or give any reward or promise, that it shall be accounted bribery and vacate his choice," Works ii 538; the order was renewed in 1678, ibid 62a; see above 245. n. 5. 8 Above 210. 4 Portritt, op. cit. i 382. 7 25 Charles II. c. g.

There was but little change in the representative system. We have seen that the last occasion upon which the crown exercised its old prerogative of creating boroughs, with the right of returning members to the House of Commons, was in 1673.5 A few boroughs, which had once returned members to the House but had ceased to do so, had been restored to their right by resolutions of the Commons in the earlier half of the century.6 By a statute of 16727 the county palatine and city of Durham were each given the right to return two members. These were all the changes made during this period; so that none of the anomalies which disfigured the representative system was remedied. The reasons for this absence of reform are obvious. In the first place, William, like Charles II. and James II., had found that it was necessary to corrupt the House of Commons in order to manage it.8 It is clear that neither he nor the larger landowners 9 were willing to give up the opportunities for management afforded by the anomalies of the representative system. In the second place,

## 2 The Principles of Public Law 247

it was beginning to be seen that the power to dispose of a seat in Parliament was pecuniarily valuable.1 As the House of Commons increased in importance, it soon came to be openly recognized that a seat in Parliament was a piece of property of constantly increasing value, for which there was a ready and a regular market,2 These reasons combined to prevent any extensive reform of the House of Commons till 1832; and they naturally produced, during the whole of the eighteenth and the first quarter of the nineteenth centuries, large direct effects upon the development of the public law of this country, and almost equally large indirect effects upon the development of many branches of its private law. In particular, this failure to pass any measure of Parliamentary reform had, as we shall now see, a considerable influence upon the relations between the two Houses of Parliament.

Footnote 1: The earliest instance of a direct sale of a seat comes from 1698, but Porrit, op. cit. i 354, considers that as yet their sale was not " open and frequent."

Footnote 2: At the general election of 1701: Davennant said that it was reported that " there were known brokers who have tried to stock job elections upon the exchange and that for many boroughs there was a stated price," Works iii 326, cited Porrit, op, cit. i 354.

_The relations between the two Houses of Parliament._

We have seen that, even before the outbreak of the Civil War, the authority of the House of Commons had been increasing at the expense of the House of Lords.3 The Restoration did not arrest this process.4 During Charles II.'s reign the authority of the House of Commons was evidently growing greater than that of the House of Lords, and the initiative was passing to it. To some extent the House of Lords contributed to this result by its own slackness--"By not," as Clarendon complains,5 "enquiring into or considering the public state of the kingdom, or providing remedies for growing evils, or indeed meddling with anything in the government, till they were invited to it by some message or overture from the House of Commons : in so much that they sat not early in the morning, according to the former customs of Parliaments, but came not together till ten of the clock ; and very often adjourned as soon as they met because nothing was brought from the House of Commons that administered cause of consultation : and upon that ground often adjourned for one or two days together, while the other House sat, and drew the eyes of the kingdom upon them, as the only vigilant people for their good." There was no thought, indeed, of dispensing with a second chamber. The recent experiences of the doings of a single chamber had quite convinced the majority of English men of the

### Public Law of Xvith Century

need for some such check upon the tyrannous activities of such a chamber.1 But it was quite clear that the House of Lords was becoming simply a second chamber which acted as a check upon the House of Commons, and that it could no longer claim to possess co-ordinate authority--still less to be an "upper " House.

Footnote 1: Firth, op. cit. 296, citing a treatise on government by Neville, which was published in 1680, in which the author declares that, " ' if we had no such peerage now, upon the old constitutions, yet we should be necessitated to make an artificial peerage or senate instead of it."

Two illustrations will make this clear. The conduct of the House of Lords in rejecting the Exclusion Bill in 1680, is the action expected of a second chamber, which is not convinced that the country has made up its mind.2 Similarly its conduct in giving way to the House of Commons in 1688, and accepting its resolution as to the vacancy of the throne, is the action expected of a second chamber, which has reason to think that the House of Commons has the nation behind it, and knows that a decision is a matter of great urgency.3 But, though the House of Lords was thus coming to hold, in relation to the House of Commons, its modern position of a delaying and revising body, its position in this period was not quite the same as that which it has ultimately taken. During the whole of this period the king still played an active part in the government. He could and did perform the same sort of function in relation to the House of Commons as was performed by the House of Lords. By the use of his prerogative of prorogation or dissolution, and by refusing his consent to bills, he could in substance refer back to the country bills passed by both Houses, or by one or other House. Thus in the Oxford Parliament it was certain that the House of Commons would again pass the Exclusion Bill. If it had done so, the House of Lords, according to the modern theory of the constitution, would have had no option but to concur. But Charles took the matter into his own hands, stopped the progress of the Bill by a dissolution, and thus, in substance, appealed to the country. As we have seen, there is no doubt that he had more correctly appreciated the "will of the people " than the House of Commons, and that his action saved the country from a second civil war.4 It is not until the king ceases to play an active part in the government that the relations between the two Houses will be completely settled upon their modern basis.

Footnote 2: Above 187.

It was hardly to be expected that the House of Lords would submit to this change in its constitutional position without a struggle. Struggle it did; and it is largely for this reason that we find more controversies between the two Houses during this

## 3 The Principles of Public Law 249

period than at any other period in their history. It is not till the struggle over the reform bill of 1832, and the late controversies of the nineteenth and the present centuries, that there have been so many quarrels between them. No doubt some of these quarrels were engineered for party purposes. Probably Charles II. was not sorry to use the dispute between the two Houses in the case of _Skinner_ v. _the East India Co._\[1\] as an excuse for lengthy .prorogations; and it is probable that Shaftesbury deliberately fermented the dispute, which arose over the case of _Shirley_ v. _Fagg_, for purposes of obstruction.\[2\]

Disputes, such as were common during the whole of this period, ceased in the eighteenth century. The reason is to be found in the fact that the defects in the representative system, which were left untouched at the Revolution, provided a means by which both the king and the House of Lords could exert a large indirect influence over the House of Commons. From this point of view we may even say that these defects helped to secure the orderly development of the constitution. A constitution in which a representative House was the predominant partner was as yet a very new phenomenon in constitutional law. A long period, in which the peaceful working of such a constitution was assured, was essential to its stability. The unacknowledged and often corrupt methods, by which harmony was secured between this representative House and the other branches of the constitution, secured this period of peaceful working; accustomed a representative House to rule, and the nation to be ruled by it; and thus paved the way for the more complete assertion of the predominance of that House, when these defects in the representative system were swept away.

The fact that the king and the House of Lords were obliged to have recourse to these methods of influencing the House of Commons to preserve their power, is the best proof of the predominant position in the state which, as a result of the Revolution, the House of Commons had secured. To understand the nature of this position, and the manner in which it was consolidated during this period, we must glance briefly at some of the powers exercised by the two Houses of Parliament during this period.

_The Powers of the two Houses of Parliament._

We have seen that it had long been well recognized that the judicial powers of Parliament belonged solely to the House of Lords.\[8\] We have seen, too, that it was during this period that their extent was finally ascertained.\[4\] It was recognized also that

### Public Law of Xvith Century

bills affecting the peerage should originate in the House of Lords, and should not be amended, though they might be rejected, by the House of Commons.1 But these were small matters compared with the complete control over finance which the Commons acquired during this period (_a_) as against the House of Lords, and (_b_) as against the king.

(_a_) As against the House of Lords, the Commons established their right to originate all bills which in any way laid a charge upon the people, and successfully resisted the claim of the House of Lords to amend such bills. In 1661 the Commons rejected a bill for the paving of streets in the neighbourhood of Westminster because it imposed a rate, and prepared a similar bill of their own. When their bill came up to the House of Lords, the House inserted a proviso to the effect that it "should not be drawn into example to their Lordships' prejudice." The Commons refused to accept this proviso, and the bill failed to pass.2 In 1661 the Commons denied the rights of the Lords to amend a money bill. A conference was held, but neither side gave way.3 In 1678 the Lords again amended a money bill. Several conferences were held, but no agreement was reached.4 But the substantial victory remained with the Commons. They have ever since been governed by the rule, which they laid down on this occasion, to the effect that, " all aids and supplies to His Majesty in Parliament are the sole gift of the Commons; and all bills for granting any such aids and supplies ought to begin with the Commons; and that it is the undoubted and sole right of the Commons to direct, limit, and appoint in such bills, the ends, purposes, and considerations, conditions, limitations, and qualifications, of such grants, which ought not to be changed or altered by the House of Lords."5

Footnote 1: Portritt, op. cit. i 562; as is there pointed out, this usage was ignored by the Long Parliament when the House of Commons introduced measures for depriving the bistops of their votes, and otherwise affecting the House of Lords.

Footnote 2: Ibid i 548-550.

Footnote 3: Ibid i 550-552.

Footnote 4: Ibid i 553-554.

It can hardly be contended that the claim of the Commons was good in law. No doubt, as a general rule, grants of money had, from the latter part of the fourteenth century, originated with the Commons; 6 and this had been recognized by Henry IV. in 1407.7 But there is no medieval authority in favour of their claim that such grants could not originate from the Lords, and that the Lords could not amend these grants.8 In 1661 theThe principles of public law 251

Lords could show cases in which similar bills had originated from them ;1 and in 1671 they asked in vain for documentary evidence that such claims had ever been conceded by the Lords.2 But the claims of the House of Commons were not therefore wholly without substantial justification. They can be to some extent justified by the change in political conditions which had taken place in the latter half of this century. It was quite obvious that the crown could no longer be expected to "live of its own." The money needed to maintain the government must be raised by taxation direct or indirect ; and the House of Commons in theory represented all but an insignificant fraction of the persons upon whom the taxes were laid. As the House had the power to enforce its claims, it might be contended that it was only fair to its constituents to enforce them.3 But no defence is possible of the wholly unjustifiable use which, during this period, the House of Commons made of these powers, when they forced the House of Lords to pass measures which they disliked by tacking them to money bills.4 It was a peculiarly unprincipled and unpatriotic form of duress.

Footnote 1: See Porritt, op. cit. 549.

Footnote 2: Ibid i 551; Hallam says of the controversies which arose on this occasion that, "the limits of the exclusive privilege claimed by the commons were discussed with considerable ability, and less heat than in the disputes concerning judicature; but, as I cannot help thinking, with a decided advantage both as to precedent and constitutional analogy on the side of the peers," C.H. iii 37.

Footnote 3: "Everything that was necessary for the public service had now to be raised by taxation in some form; and the members of the House of Commons represented almost the whole of the persons who were to be taxed. When, therefore, they claimed exclusive privileges in regard to Money Bills, they had not only some historical grounds for their pretensions, but also a powerful argument in the interests with which they were charged," Pike, Constitutional History of the House of Lords 342.

Footnote 4: See Hallam, C.H. iii 142-143.

Footnote 5: Above 175; 176; Redlich, Procedure of the House of Commons iii 167.

Footnote 6: Hallam, C.H. iii 177.

($\\delta$) As against the king, the Commons had, in Charles II.'s reign, occasionally asserted their rights to appropriate supplies for specific purposes, and to examine the accounts to see if the money had been properly expended.6 But this course could not be pursued with respect to the hereditary revenue, or the revenue granted at the beginning of the king's reign for his life; and it was not pursued in the case of any of the supplies granted by James II.'s Parliament of 1685.6 It was obvious at the Revolution that, if, as against the king, the control of the House of Commons over finance was to be made effectual, some changes must be made in methods of granting supply.

The changes made can be grouped under two main heads,

### Public Law of Xvith Century

In the first place, the revenue granted to the king in perpetuity decreased, and that granted annually for a limited term increased. In the second place, the rule of strict appropriation, universally applied to the annual or limited grants, resulted in securing for the House of Commons permanent control over the amount and kind of expenditure which the crown could incur.

(_a_) The Commons had granted both to Charles II. and to James II. taxes estimated to produce $1,200,000 a year, out of which the ordinary expenses of government were to be defrayed. Extraordinary expenses were defrayed by special grants.1 Thus, as Redlich says, down to 1688, "the financial action of the House of Commons had been substantially confined to making a life grant on the King's accession of certain customary taxes, and to granting special subsidies from time to time upon the request of the Crown."2 As Hobbes had pointed out, it was not a satisfactory system. It is hardly possible to estimate the probable expenses of the state over a long series of years--"Commonwealths," as he said, "can endure no diet."3 And in England, during the last two reigns, the political consequences of the system had not been happy. We have seen that, in the earlier part of Charles II.'s reign, the yield of the taxes estimated to produce the $1,200,000 fixed by the House of Commons, fell considerably short of the required sum; and that this had naturally led to misunderstanding and friction between the king and the House of Commons.4 On the other hand, during the latter part of his reign, and during the reign of James II., it exceeded this sum, James II. enjoyed an average annual income of $1,500,964;6 and, as he was free to spend this income as he saw fit, he had a very large discretion in the conduct of the government. It was this consequence of the old system of supplying the needs of the state which led the Commons, after the Revolution, to make some very radical changes.6

Footnote 1: Redlich, op. cit. iii 16r.

Footnote 2: "The nature of men being as it is, the setting forth of Publique Land, or of any certaine Revenue for the Commonwealth, is in value; and tendtch to the dissolution of Government, and to the condition of meree Nature, and War, as soon as ever the Soveraign Power falleth into the hands of a Monarch, or of an Assembly, that are either too negligent of money, or too hazardous in engaging the publique stock, into a long or costlywar. Commonwealths can endure no Diet: for seeing their expence is not limited by their own appetite, but by externally Accidents, and the appetites of their neighbours, the Publique Riches cannot be limited by other limits, than those which the emergent occasions shall require," Leviathan rag.

Footnote 4: Above 173.

Footnote 6: See generally Macaulay, Hist. iii 150-151; for the question whether the revenue granted to James for his life expired when he was deThe Principles of Public Law 253 yield between four and five hundred thousand a year. In addition, the Commons granted to them for their lives, and for the life of the survivor, that portion of the excise which had been settled on James II. for his life.1 This was estimated to yield about three hundred thousand a year. From this income the expenses of the royal household and the civil service were to be defrayed, and the list of expenses thus charged on this fund was known as the civil list. In 1698 an income of PS700,000 a year was settled on William for his life, out of which the expenses of the civil list were to be defrayed.2 Any surplus from the sources of revenue, from which this PS700,000 was to be produced, was to be disposed of as Parliament might direct.3 For any extra income for any other purpose the king must come to Parliament; and Parliament only made special and temporary grants. "It was taken up," says Burnet,4" as a general maxim that a Revenue for a certain and short term was the best security that the nation could have for frequent Parliaments." Thus the expenses of the army and the navy, and any further sums needed for the upkeep of the civil government, were made to depend upon such special and temporary grants. William was naturally displeased. "He said to myself," says Burnet,5" why should they entertain a jealousy of him who came to save their religion and liberties, when they trusted King James so much, who intended to destroy both? I answered, they were not jeolous of him, but of those who might succeed him; and if he would accept of the Gift for a term of years, and settle the Precedent, he would be reckoned the Deliverer of succeeding ages, as well as of the present."

Footnote 1: 2 William and Mary sess. i. c. 3.

Footnote 2: 5 William III. c. 23--this, as Redlich observes, op. cit. iii i6r, was the first civil list Act.

Footnote 3: 8 Tr.

Footnote 4: History of My Own Time (folio ed.) ii 43.

Footnote 5: 1 bid ii 43.

Footnote 7: See e.g. 2 William and Mary sess, ii c. ir; 4,5 William and Mary c. ir; 5, 6 William and Mary c. 23; 6, 7 William and Mary c. 9.

(_$_) The special and temporary grants which Parliament made for the upkeep of the army, the navy, and all other expenses of government, not comprised in the civil list, were always strictly appropriated to the specific purpose for which they were granted;6 and, from time to time, Acts were passed for an audit by Parliamentary commissioners of the expenditure of the sums so granted.7 Thus the practice of appropriation, which had only been occasional during the past two reigns, now became normal. It was, as Hatsell has said, " made part of that system of government which was then established for the better securing the rights, liberties, and privileges of the people of this

### Public Law of Xvith Century

country."1 And more was involved in this change than a mere legal security that the money voted by Parliament was devoted to the purposes for which it was given. The very act of appropriating specific sums to this or that need of the government, involved a decision upon the question which need was more, and which was less pressing ; and the right to make these decisions gave a power, not only to criticize, but also, in some measure, to control the conduct of the government. " The Commons," says Hatsell," took upon themselves the authority of judging as well of the nature, as of the _quantum_, of the particular services recommended to them by the crown ; and voted, of the army, navy, and ordnance, such proportions only as appeared to them, upon due consideration of the state of this country with respect to its foreign enemies and internal defence, necessary and expedient for those purposes."

Footnote 1: Precedents (3rd ed.) Jili 179, cited Redlich, op. cit. iii 169.

It is not surprising to find that a House which had gained these powers assumed a right to inquire into the working of all parts of the government. Thus they inquired into the mis-carriages of the war in Ireland in 1689 ; \[3\] and they "went fully into the dispute between the board of admiralty and admiral Russell after the battle of La Hogue."4 In 1694 they fully examined the policy of the admiralty during the preceding year, and, after this examination, voted their approval of it.5 They even considered the creation of a board of trade to be nominated by Parliament, with wide powers to make recommendations for the preservation and improvement of commerce.6 That the House of Commons could thus take upon itself this survey over and control of the conduct of the government, was due to the fact that the contests of this century had given it an efficient code of procedure, and had established it firmly in the possession of the privileges necessary for the effective exercise of these various powers.

Footnote 1: Ibid. 144.

Footnote 2: Ibid 145.

Footnote 3: Above 88-roo,

_Procedure and Privileges._

We have seen that, during the first half of the seventeenth century, the creation by the House of Commons of a workable code of procedure, and the assertion by it of its privileges, were the conditions precedent for success in its struggle with the crown for an independent constitutional position.7 This procedure and these privileges were found sufficient for the new and enlarged activities of the House of Commons both after the Restoration and after the Revolution.

## 1 The Principles of Public Law 255

The only two developments in procedure which need here be noticed are of comparatively minor importance; but both illustrate the growing independence of the House of Commons.

In the first place, the Speaker ceased to be the nominee of the crown, and the go-between between the crown and the House.1 He became the nominee of the House, owing duties to the House alone.2 In 1679 the Commons elected Seymour--the Speaker of the preceding Parliament. The king, knowing that he was an enemy of Danby, objected to their choice, and ordered the House to make another election. By order of the king Sir John Meres was proposed; but the House refused to elect him, and again elected Seymour. Again the king refused to accept him; and, as the Commons insisted, prorogued Parliament. Eventually the Commons chose a third person, serjeant Gregory, whom Charles accepted. As Porritt says, "the king gained his end in so far as he prevented the enemy of Danby from being again installed in the chair. But the permanent gain lay with the House of Commons."3 It is true that, in later days, the influence of the court sometimes affected the choice by the House of their Speaker. But no king again issued a direct order for the choice of a certain person; and when, in 1694, a nominee of the crown was proposed, the House resolved that "It was contrary to the undoubted right of the House of choosing their Speaker, to have any person who brought any message from the king to nominate one of them."4

Footnote 1: Above go.

In the second place, during this period the House of Commons finally made good its claim that it could only be adjourned by its own act. The king could, of course, end the session by a prorogation, or the Parliament by a dissolution. But in both these cases all the business before the House must be begun _de novo_. On the other hand, if the House merely adjourned, the business before the House was resumed, when the House met again, at the stage which it had reached when the adjournment took place.5 On several occasions the king had assumed the power to adjourn the House. James I. pursued this course in 1621.6 The attempt of Finch in 1629 to obey the order of Charles I. to adjourn the House, had occasioned the riotous scene which marked the close of that Parliament.7 Charles II. on several occasions ordered the adjournment of the House. In 1670 his order was obeyed

### Public Law of Xvith Century

without question ; 1 and in 1677 he ordered adjournments on four several occasions,2 which the Speaker obeyed without putting the question whether or no the House wished to adjourn. This episode gave rise to debates, which ended without any resolution.3 But it was generally recognized that, as Marvel puts it, "adjournments are the act of the House."4 This has always been accepted as the rule since the Revolution,5 and its establishment is one more illustration of the complete control which the House had by this time established over the ordering of its own business.

Footnote 1: Commons Journals ix 15S. 2 Marvell, Works ii 557, 558, 565, 569. 3 Ibid 571, 577-578. 4 Ibid 577-578. 577. 578. 577. 578. 579. 600. 610. 620. 630. 640. 650. 660. 670. 680. 690.

## 2 The Principles of Public Law 257

deal to do with causing the dispute between the House of Lords and the House of Commons, which delayed the enactment of the very salutary law for the reform of the procedure in trials for high treason.1 Moreover, members both of the House of Lords and of the House of Commons, and their servants, had large immunities from being sued in civil actions while Parliament was sitting, and for forty days before and after a session. This privilege may not have produced much hardship when the intervals between Parliaments were long, and sessions were short. It obviously amounted almost to a denial of justice, now that Parliament was in almost perpetual session. It was for this reason that an Act of 1700 2 provided that personal 3 actions could be brought against members of the House of Lords and Commons and their servants, immediately after a dissolution or a prorogation of Parliament, or an adjournment for more than fourteen days, and till Parliament again assembled.4 If by reason of privilege a plaintiff was prevented from prosecuting his suit, his claim was not to be barred by any statute of Limitation, and he was not to be "nonsuited, dismissed, or his suit discontinued for want of prosecution," but he was " from time to time upon the rising of the Parliament to be at liberty to proceed to judgment and execution."6 Nothing in the Act was to authorize the arrest of a member of either House on civil process.6

Footnote 1: Above 232-234.

Footnote 2: Iz., 13 William III. c. 3; for an earlier Bill which failed to pass see House of Lords MSS, (N.S.) ii 3yr no. ro89.

Footnote 3: SS 5 of the Act provided that it was not to extend to real or mixed actions; SS 4 provided that proceedings at law or in equity against the "king's original and immediate debtor 11 were not to be stayed by privilege of Parliament.

Footnote 4 SS SS 6.

More important from the point of view of public law are the extensions of privilege, which both the Houses collectively sometimes sought to establish. We have seen that, during the Long Parliament, claims to sanction anything which the House wished, and to punish any conduct of which it disapproved, were justified under cover of the elastic phrase " privilege."7 We have seen too, that, during the Exclusion Bill agitation, the House of Commons was guilty of much arbitrary conduct under cover of the same plea.8 Privilege, in fact, in the eyes of the House of Lords and the House of Commons, comprised a set of powers almost as vague and elastic as those comprised in the prerogative. Like prerogative, its relations to the law had never been accurately ascertained. Nor was it possible that any certain conclusion as to its relations to the law should be reached under Charles II. and James II. The law courts were, from the middle of Charles II.'s reign, presided over by the partisans of the crown, and

### Public Law of Xvith Century

therefore any conclusions to which they came upon this topic were justly suspected. It was not till after the Revolution, when the Bench had been purged, and when the judges' tenure of office had been made secure, that any sort of settlement of the law upon this topic could be made.1 Even then its settlement has been extremely slow and difficult. Assemblies, whether representative or otherwise, are as indulgent to their own claims to exercise arbitrary powers as they are severe upon the claims of others to exercise such powers. They are as impatient of the control of the law as they are indignant at any one else's attempts to evade this control. We shall see that the judges appointed after the Revolution--and especially Sir John Holt--ably and courageously vindicated the supremacy of the law as against arbitrary extensions of privilege attempted both by the House of Lords and the House of Commons.2 By thus vindicating the supremacy of the law in these cases, they both laid the foundations for the ultimate settlement of the relations between privilege and the law, and effectually protected the liberties of the subject.

Footnote 1: Below 269-272.

But, before I can deal with this topic, I must first say something of the effects which these various developments in the constitutional position of the two Houses of Parliament had upon the relations between Parliament on the one side, and the crown and its prerogative on the other.

- The relations between Parliament and the prerogative.

We have seen that the constitutional law of Charles II.'s and James II.'s reigns did not effectively solve the question of the whereabouts of the sovereign power in the state.3 Neither king nor Parliament could lay claim to it. Nor was it solved by the Revolution, and the legislation which settled the law of the constitution upon its modern basis. All that was established by this legislation was the view contended for by Parliament in the early part of the century, that the sovereign power in the state was the king in Parliament.4 Neither the king nor the House of Lords nor the House of Commons was sovereign. If these three partners could not agree, there was no active sovereign. The existing law as administered by the courts was supreme.

Footnote 4: Above 84-86 ; cp. North, Examen 333, 334-

In truth, the attainment of this result was the attainment of the ideal aimed at by a large, perhaps the largest number, of the Parliamentary statesmen of this century. A king and his ministers, a House of Lords, and a House of Commons, who

## 1 The Principles of Public Law 259

moved each in their allotted spheres, without encroaching upon the spheres of the others ; and over all the law ready to punish any illegality committed by any minister or member of either House of Parliament--that was the ideal which floated before the minds of most of the constitutionally minded Englishmen of this period.1 It was essentially a legal ideal, the product of that alliance between Parliament and the common law, which Coke had done so much to cement.2 But, politically, it was an impossible ideal. Between three such partners no enduring harmony could be expected. If they fell out, one or other must prove the stronger, and cause his will to prevail. That one, whatever the law might say, must be politically the sovereign.

Footnote 1: Cp. Macaulay, Hist. ii 249--It was universally supposed that the government would, as in time past, be conducted by functionaries independent of each other, and that William would exercise a general superintendence over them all."

The history of the Long Parliament had proved this. We have seen that the logic of events had compelled the House of Commons in the Grand Remonstrance, and in the Nineteen Propositions, to demand that the king should appoint as his ministers only those men who were approved by the House of Commons.3 They had seen that it was not enough to secure that the king's ministers obeyed the law. They must also secure that those ministers would follow the policy approved by the House--"It may often fall out that the Commons may have just cause to take exceptions at some men for being councillors, and yet not charge those men with crimes, for there be grounds of diffidence which lie not in proof."4 But, at the Restoration, these ideas were considered to be revolutionary. As we can see from Hale's tract,5 the strictly legal theory of the constitution revived. It was not to be supposed that Parliament had any right to indicate to the king the persons whom he should appoint to offices in the state, or to ask the king to dismiss them, unless it was able to prove that they had acted illegally. One of the fallacies that underlay Temple's scheme for the reform of the Privy Council,6 was the idea that a Council of respectable men, whom no one could suspect of wishing to break the law, would put a stop to the quarrels between Parliament and the king's ministers.

Footnote 2: Vol. v 444, 452-454. 8 Above 177-120, I40.

Footnote 3: Grand Remonstrance SS rg8.

Footnote 4: Above 204-205; vol. v App. III. 6 Above 186.

As soon as an opposition to the crown developed, it became clear that the strictly legal theory of the constitution would not work. A power to impeach ministers guilty of crimes was not a very serviceable weapon to a Parliament which wished

### Public Law of Xvith Century

to control policy.1 Occasionally, indeed, the Commons asked the king to remove an official whose acts they disliked without accusing him of any crime.2 But such requests never produced much effect. The Commons found that, if they wished to get rid of a minister, they must proceed by way of impeachment, and accuse him of some crime. They were obliged therefore to work their power of impeachment for all it was worth. Never were impeachments so numerous as in the latter half of the seventeenth century : never were the criminal acts with which ministers were charged supported by such slender evidence. We have seen that it was almost forgotten that an impeachment was, after all, a criminal proceeding3; and that a man ought no more to be found guilty upon an impeachment than he ought upon an indictment, unless some definite crime could be proved against him. The results were unfortunate. The House of Commons was always complaining of the illegalities committed by the king's ministers, and of the manner in which the king's judges perverted the law ; and, at the same time, instead of setting an example to those ministers and judges, it was constantly engaged in perverting the law on its own account, in order to get rid of persons whose political views and programme it disliked. If we blame the king for perverting the law to get rid of his political opponents, we must in fairness remember that the House of Commons was constantly trying to do exactly the same thing.

Footnote 1: Vol. i 383-384:

Footnote 2: See 6 S.T. to33--address in 1674 to remove the duke of Lauderdale; ibid 1054--address in 1674 to remove the duke of Buckingham; ibid 1062--proposal in 1674 for an address to remove the earl of Arlington negatived; 8 S.T. 217-218--address in 1680 to remove Sir George Jeffreys.

Footnote 3: Vol. i 384 and n. z. 4: Above 232.

Footnote 4: Ibid.

The legal theory of the constitution put the House of Commons in a thoroughly false position. And yet that theory was not in any way altered by the Bill of Rights, and was actually endorsed by the Act of Settlement. The clause of the Act of Settlement which relates to the Privy Council 4 is directed to securing evidence of the legal responsibility of the king's ministers for their acts. The clause providing that no royal pardon shall be pleaded in bar of an impeachment,5 is aimed at preventing the king from stopping the hearing of such an impeachment, and so shielding his ministers from legal responsibility. The clause excluding placement from the House of Commons 6 assumes that the House has nothing to do with the appointment of the king's ministers ; that these ministers are the nomine

## The Principles of Public Law 261

them with suspicion as the emissaries of a rival power ; and that their presence in the House can only have the effect of preventing the House from impartially exercising that control and criticism which is necessary to secure the proper working of the constitution.

We are sometimes inclined to wonder at the blindness of the House of Commons. It was obvious that it had become the predominant partner in the constitution. It was becoming more and more obvious that no government could work smoothly unless the king's ministers could command a majority in the House of Commons ; and that the House could not adequately exercise the large powers of control, which it was assuming, unless the heads of the government departments were present in it to explain and defend the policy of the government. Why did not the House see all this? Probably the explanation must be sought, partly in the history of the constitutional controversies of this century, partly in the circumstances under which the Revolution was effected, and partly in the immediate circumstances under which the Act of Settlement was passed.

Throughout the constitutional controversies of this century the ideal of the Parliamentary statesmen and the common lawyers had been the establishment of the powers and privileges of Parliament, and the supremacy of the law over the king's ministers. There were precedents which proved the right of the House of Commons to impeach ministers who had acted illegally. There were precedents which proved its right to advise the king as to the policy which, in its opinion, he should pursue. There were no precedents for interfering with the king's free choice of his ministers. The circumstances under which the Revolution was effected tended to confirm the Parliamentary statesmen in this point of view. It was effected by a coalition of parties, and with the minimum of formal legal change. The men who effected it were as opposed to republican schemes of government as king James himself. The regicides were excepted from the Act of Grace.\[1\] The regicide Ludlow, who returned to England, found that hatred of the judges of Charles I. had in no wise abated ; and he was obliged to return to Switzerland.\[2\] It was hardly likely, therefore, that the men who effected the Revolution would recognize that the predominant position in the constitution, which the House of Commons had secured, made the ministry as dependent upon its approval as upon the approval of the king. The statesman who propounded such a notion, would have seemed, in the opinion of many, to be treading the path

### Public Law of Xvith Century

which in 1642 had led to civil war.1 Therefore the true position remained unrecognized. In the Parliament which sat from 1695-1698 a Whig ministry, acting with a Whig majority in the House of Commons, had successfully carried the country through a period of great strain and stress.2 But, when it lost its majority in the ensuing Parliament, no one considered that it was its duty to resign. Hence in that Parliament we get back to the old state of things. The ministry could not carry their measures in the House of Commons. The House of Commons, because it disliked the policy of the ministers, pursued them with the old weapon of impeachment. As it was under these circumstances that the Act of Settlement was passed, it is hardly surprising to find that the House of Commons wished to furbish up all its old weapons against ministers whom it disliked. The Tories had adopted the creed of the Parliamentary statesmen of the earlier part of the century.3 They could hardly be expected to see that the very completeness of the victory which that creed had won necessitated a further development along the path trodden by the Long Parliament.

Footnote 1: This is illustrated by a debate in the House of Commons in 1692 summarized by Macaulay, Hist. iii 376-377: an address to the crown had been proposed to remove Solmes and put Talmansh in his place

## The Principles of Public Law 263

would reconcile all the differences between king and Parliament, afforded the best of all securities for the protection of the liberties of the subject. That supremacy had been secured by the abolition of the jurisdiction of the Council and the court of Star Chamber in 1641; 1 but the protection of this supreme law had been but a poor protection in the latter part of Charles II,'s and in James II.'s reigns. The independent position gained by the courts after the Revolution restored its efficiency. The judges had now nothing to fear, either from the crown, or from either one of the two Houses of Parliament. They could be removed only by the joint action of the three branches of the legislature.2 Therefore they could develop by their decisions the principles of constitutional law, as freely and as impartially as they were accustomed to develop any of the other branches of English law. Sir John Holt 3 heads a long line of distinguished judges whose decisions have, with occasional assistance from the legislature, created some of the most important parts of our public law, and more especially those parts of it which deal with the position of the subject and his relations to the state.

Footnote 1: Vol. i 575-516; above 112. * Above 234. * For his career see below 516-523. * Vol. v 351-352; 354-355. * Ibid 352; below 516-522.

Throughout the course of English history a large part of our constitutional law has been made by judicial decisions; for our constitutional law is simply a part of the common law. It was for this reason that the judges were forced to play a leading part in the constitutional controversies of this century;4 and it was for this reason that the crown found itself obliged to appoint and dismiss them for political reasons--to the detriment both of the quality of the bench, and of the authority of the law.5 Therefore it is to the arguments both of the bench and the bar in the great constitutional cases of this period, that we still look for the earliest authoritative statements of some of the leading principles of our modern constitutional law. Cases like _Bates's Case, Darne's Case, Elto's Case_, or the _Case of Ship Money_ are still important, sometimes for the statement of legal principles to be found there, sometimes to enable us to understand legislation, such as the Petition of Right, which was passed to correct the law laid down in them. But, when the great constitutional controversies had been settled, and when the judges ceased to be appointed for political reasons, their decisions upon constitutional questions naturally acquired a different and a more permanent value than is possessed by many of these earlier decisions, which were given during this period of political conflict. The judges were able to confine themselves to the sphere to which they were

### Public law of Xvith century

more accustomed, and which they were better fitted to occupy. They were no longer dragged in to give the authority of the law to this or that party's views upon political questions. They were asked to develop, by the decision of concrete cases, those fundamental principles of constitutional law which had now become fixed.

These concrete cases arose from litigation initiated either by the crown against the subject, or by the subject against the crown or its officials, or by subject against subject. It is for this reason that, those parts of our constitutional law which deal with the rights and duties of the subject, depend so largely on case law, and to a very great extent on case law made since the Revolution. If we look at some of Holt's decisions in some of the constitutional cases which came before the courts immediately after the Revolution, we shall see the beginnings of some very important branches of the modern law. I shall consider these cases under two heads:-Firstly, cases which turn upon the rights and duties of the subject as against the crown; and secondly, cases which turn upon the rights and duties of the subject in relation to Parliamentary privilege.

(i) Cases which turn upon the rights and duties of the subject as against the crown.

(_a_) The growth of England's colonies raised some fundamental questions as to the position of English subjects residing in these colonies. What was their position as against the crown? Could they claim all the rights which English subjects had in England? In the case of _Blankard_ v. \_Gadry_1 Holt answered this question by distinguishing settled from conquered colonies. In the former " all laws in force in England are in force there " in the latter, " the laws of England do not take place there until declared by the conqueror." If an infidel country is conquered, " their laws by conquest do not entirely cease, but only such as are against the law of God; and that in such cases, where the laws are rejected or silent, the conquered country shall be governed according to the rule of natural equity." Holt, thus, in substance anticipated Lord Mansfield's more famous judgment in the case of _Campbell_ v. _Hall_.2

Footnote 1: (1604) 2 Salk. 411. (1774) 20 S.T. 239.

(_b_) It was also a case connected with colonial institutions which gave rise to what is perhaps the earliest direct judicial decision that English law does not recognize slavery. Slavery was known in many of the colonies. But what would be the attitude of the English courts to slaves brought to England? In 1677 it had been decided that English law would recognise the status of a

## The Principles of Public Law 265

slave.1 But the Revolution had quickened the sense of personal liberty ; and Holt anticipated Lord Mansfield's decision in \_Sommersett's Case_2 when he held that, " By the common law no man can have a property in another "; 3 and that, " as soon as a negro comes to England he is free ; one may be a villein in England but not a slave."4 But general statements, such as this, as to the personal freedom of the subject are of little avail unless means are provided to assert them. In the writ of Habeas Corpus, as improved by the Legislature, the common law had acquired a remedy of the greatest power, the history of which I shall relate in the second Part of this Book.5 As we shall see, the law on this topic centres principally round this writ.

Footnote 1: Butts v. Penny (t677) 2 Lev. 207-4 the Court held, that negroes being usually bought and sold among merchants, as merchandize, and also being infields, there might be a property in them sufficient to maintain trover "; and this decision had been followed in Gully v. Cleve (t694) x Ld. Raym. 147; Hargrave points out in his argument in Sommersett's Case (t777) x S.T. at pp. 52-53, that the former case was probably brought for negroes in India, and that the latter case, if not brought for negroes in America, was decided without solemn argument.

Footnote 2: This point was looked upon to be so clear law, that it was never drawn in question in his memory, but once by Sir Francis Winnington at the bar," Rev v. Kendal and Row r Ltd. Raym. at p. 66,

We cannot, of course, expect that all the problems connected with the liberty of the subject should be finally settled immediately after the Revolution. The question whether a person could be arrested under a general warrant 6 was not settled till Lord Camden's decision in _Wilkes_ v. _Wood_,7 and Lord Mansfield's decision in _Leach_ v. _Money_.8 The question whether any member of the Privy Council could commit to prison on any charge was settled in the affirmative by Holt in _Kex_ v. _Kendal and Row_;9 but that case was overruled by Lord Camden who, in _Entick_ v. _Carrington_,10 held that, if such a power existed at all, it was confined to the case of a committal for high treason.11 Holt was probably influenced by the fact that the practice of making these committals on this authority was constant throughout the seventeenth century.12

Footnote 7: This point was looked upon to be so clear law, that it was never drawn in question in his memory, but once by Sir Francis Winnington at the bar," Rev v. Kendal and Row r Ltd. Raym. at p. 66,

Footnote 8: This point was looked upon to be so clear law, that it was never drawn in question in his memory, but once by Sir Francis Winnington at the bar," Rev v. Kendal and Row r Ltd. Raym. at p. 66,

Footnote 9: This point was looked upon to be so clear law, that it was never drawn in question in his memory, but once by Sir Francis Winnington at the bar," Rev v. Kendal and Row r Ltd. Raym. at p. 66,

Footnote 10: This point was looked upon to be so clear law, that it was never drawn in question in his memory, but once by Sir Francis Winnington at the bar," Rev v. Kendal and Row r Ltd. Raym. at p. 66,

Footnote 11: It was not possible to have a proof of the fact that

### Public Law of Xvith Century

(_e_) Similarly, the question of the subjects' right to freedom of discussion was not settled by Holt on its modern basis. The refusal of Parliament to renew the Licensing Act1 had left this question to the common law. Discussion was free, except in so far as it was restrained by the law of libel as administered by the common law courts. But, as we shall see,2 the common law courts had inherited the law which they administered from the Star Chamber. Naturally it was coloured by the prevalent political conceptions of the day. It is therefore not surprising that Holt laid it down, in _Rex v. Tutchin_,3 that any criticism of the government amounted to a seditious libel.4 We shall see that this was good law in Holt's day. It gradually became obsolete when, in the course of the eighteenth century, and as the result of the new political conceptions which the Revolution had introduced, men's ideas as to the relations of rulers to their subjects were fundamentally changed.5

Footnote 1: Below 375-376. 2 Pt. II. c. SS 2. 3 14 S.T. rogs.

Footnote 4: "To say that corrupt officers are appointed to administer affairs is certainly a reflection on the government. If people should not be called to account for possessing the people with an ill opinion of the government, no government can subsist. For it is very necessary for all governments that the people should have a good opinion of it. And nothing can be worse to any government than to endeavour to procure aimosities as to the management of it; this has always been looked upon as a crime, and no government can be safe without it be punished," 14 S.T. at p. trz8; Holt's action in arresting or reprimanding persons who misrepresented or reflected upon his decisions is consistent with this view of the law, see Luttrell's Diary iv 55, 512.

Footnote 5: See Stephen, H.C.L. ii 299, 300.

Footnote 4: Vol. iii 463. 7 Pt. II. c. SS 7.

Footnote 8: (1700) 14 S.T. at pp. 29-38 ; for Lord Somers' judgment in that case see Pt. II. c. SS 1: Holt decided perfectly correctly, in the then state of the law, that the king could make the grant of his hereditary revenue under which the Bankers claimed, because such revenue was his own property.

(_d_) The question what remedies (if any) the subject has against the crown or its servants for wrongs committed by them against him, was adjudicated upon by Holt in two important cases.

The first of these cases raises the question whether the subject has any remedy against the crown for a breach of contract committed by the crown. We have seen that it had been recognized since the days of Bracton that the crown could not be sued by an ordinary action;6 but remedies by way of petition of right and monstrans de droit were available, by which a subject could recover his property from the crown.7 But could the crown be sued by petition of right for breach of contract? The question was raised and answered in the affirmative by Holt and the House of Lords in the _Bankers' Case_.8

Footnote 8: (1700) 14 S.T. at pp. 29-38 ; for Lord Somers' judgment in that case see Pt. II. c. SS 1: Holt decided perfectly correctly, in the then state of the law, that the king could make the grant of his hereditary revenue under which the Bankers claimed, because such revenue was his own property.

The second of these cases raises the question what remedy the subject has against the crown or its servants for tots committed by the servants of the crown. It was well recognized that no tort

## 6 The Principles of Public Law 267

could be imputed to the crown, because the king could do no wrong.1 It was also fully recognized after the Revolution that all servants of the crown were personally responsible for torts committed by them, even though they had been in fact committed on the instructions of the crown.2 That question had been settled once for all by Danby's impeachment.3 But what were the limits of this principle? Suppose that the tort had been committed, not by the defendant in person, but by one of his subordinates. No doubt if the defendant had authorized the subordinate to commit the tort he would be liable; for to authorize wrong is to do wrong. But suppose that he had not authorized the commission of the tort, and that it had been done by the subordinate, in the course of his employment, without authority. This was the problem raised by the case of _Lane v. Cotton.4_ Holt held that, in such a case, the defendant (in that case the Postmaster-General) was liable for the wholly unauthorized misdeeds of one of his subordinates. He considered that the Postmaster-General was on the same footing as a sheriff or a gaoler, both of whom were answerable for the misdeeds of their deputies;5 and further, that he exercised a public calling, and could therefore be made liable like other persons (such as innkeepers or carriers), who exercised public callings, for any failure in performance, or for improper performance.6 The other judges dissented. They took the view which has prevailed,7 and held that the head of a department of the central government is not liable for the unauthorized misdeeds of his subordinates. It was pointed out by Powys, J., that the doctrine of employers' liability could not be applied to such a case, both for technical reasons, and on grounds of public policy. For technical reasons, because such employees are the servants, not of the head of the department, but of the crown; and on grounds of public policy, because it would be obviously unfair to make the head of a department personally liable to satisfy such claims.8 Holt's reasoning in this case is perhaps an instance ofFootnote 1: The $\\chi^{2}$ factor is not a factor of $1/2$.

Footnote 2: The $\\chi^{2}$ factor is not a factor of $1/2$.

### Public Law of Xvitin Century

a strain of legal conservatism which, as we shall see,1 characterizes some of his other decisions and dicta. But we should also remember three things. In the first place, the doctrine of employers' liability was then very new doctrine. Neither its real basis nor its limitations were clearly established.2 In the second place, in the middle ages and later, these deputies of an official were in fact his servants employed and paid by him, and not servants of the crown.3 In the third place, the immunity conferred upon departments of the central government by the established rule in many cases works injustice.4 It may well be that a perception of this fact led Holt to think that it would be wise to follow the medieval precedents, and helped him to decide the case in a way which would have avoided this injustice.

Footnote 2: The $\\chi^{2}$ factor is not a factor of $1/2$.

Footnote 3: The $\\chi^{2}$ factor is not a factor of $1/2$.

Footnote 4: It is not a factor of $1/2$.

All these cases illustrate the manner in which the courts, after the Revolution, set about the task of settling the principles of our constitutional law upon their modern basis. They show that, as against the crown, the supremacy of the common law was fully established, and that it was both an impartial and an efficient protection of the liberties of the subject against the claims of the prerogative. We must now consider the question how far its supremacy was established as against the privileges claimed by both the Houses of Parliament, and how far it was able to protect the subject from arbitrary action based on claims of privilege.

(ii) Cases which turn upon the rights and duties of the subject in relation to Parliamentary privilege.

The rights and duties of the subject in relation to Parliamentary privilege depend upon the view which is taken of the relation of those privileges to the law. This was a new question in the seventeenth century, upon which there was little or no authority. It had never been really considered by the courts in the Middle Ages, because they had consistently declined to express any opinion upon it.5 But, in the seventeenth century, it became a pressing question of much practical importance. If, as the Houses sometimes claimed, the courts could not go behind their assertion that any given question was covered by privilege, it was clear that the law might in effect be changed by the resolution of a single House, and that the subject had no protection against any sort of arbitrary act which that House might choose to say was privileged. Charles I. had the law on his side when

## The Principles of Public Law 269

he protested against this claim ;1 and both the Long Parliament and the Parliaments of Charles 11.'s reign had shown that this was no imaginary danger.2 When Parliament got an acknowledged predominance in the state, the danger was considerably increased.

Footnote 1: See Charles I.'s answer to the Nineteen Propositions, Rushworth vol. i, Pt. iii 725 seqq ; above 100, 147 n. i.

Unfortunately the issue had been obscured by the manner in which such questions had been brought before the courts during the Stuart period, and by the bias of judges in favour of the crown. Thus, in _Eflot's Case_,3 the charge of uttering certain seditious words in the House, which was fully answered by the plea of privilege, was mixed up with the charge of causing a riot in the House, which was not. Under these circumstances, the judges could hardly do 'otherwise than overrule a plea to the jurisdiction, because, as to part of the charge, they had jurisdiction ; and, as a matter of fact, their action in so doing was not assigned as a cause of error when that case was reversed by the House of Lords.4 Similarly, after the Restoration, both the exaggerated ideas which the Houses held as to the immunity conferred by privilege, and their just suspicions of the impartiality of the judges, caused them to take legally indefensible exceptions to the conduct of the judges. Thus, in one case, an information was brought against Williams the Speaker for publishing, by order of the House, a seditious libel, to wit Dangerfield's narrative ;5 and in others, plaintiffs had sued Topham, the serjeant-at-arms, and recovered damages for acts done by order of the House.6 In all these cases the defendants had pursued the same course as that pursued by Sir John Eliot--they had pleaded to the jurisdiction. Pemberton, C.J., was examined by the House of Commons as to the reason for his decision in one of these actions against Topham. He explained that in such a case the defendant should have pleaded in bar and proved the facts ; and that then, if the facts proved showed that the acts complained of were covered by privilege, he might have had judgment in his favour. By pleading to the jurisdiction he tied the hands of the court. The action was an action for trespass ; and it could not be maintained that

### Public Law of Xvith Century

the mere assertion of privilege, contained in a plea to the jurisdiction, excluded the jurisdiction of the court, unless the defendant proved facts to show that the occasion was privileged.1 Much the same reasoning was evidently applied in the case of Williams. He was charged with a seditious libel. By pleading to the jurisdiction he prevented the court from inquiring whether or not it was a libel, and whether or not it was privileged. It was a case in which the court prima facie had jurisdiction, and so they overruled the plea.2 It is significant that a bill to overrule the decision in this case, which was sent up to the House of Lords in 1695-1696,3 failed to pass.

Footnote 1: "Nothing which is pleadable in bar is pleadable to the jurisdiction, ... The justification here is a proper matter of bar, and it is a good justification; but whether the court shall be excluded from their jurisdiction, that they shall not know whether this be true or no, is the question. For if this be pleaded to the jurisdiction there is an end of it. Whether Mr, Topham had such an order or not, cannot be a question upon a plea to the jurisdiction, for the hands of the court are tied up... In this case if Mr. Topham comes and pleads this by way of bar, no court will deny but it is a good justification. ... Your authority will be allowed ; but the question is whether this shall stop the court that they shall not examine it. For any man living may plead such a plea. Now the putting him to plead this by way of bar is only to see whether what he has pleaded is true, " z S.T. 826-827.

Footnote 2: 2 Shower 47T.

Footnote 3: House of Lords MSS, (N.S.) ii roo no. g98.

Footnote 4: They voted that Pemberton had been guilty of a breach of privilege and took him into custody, 12 S.T. 834.

No doubt these cases were inspired by political motives. The crown wished to make things unpleasant for the House of Commons and its officials. On the other hand, the House of Commons defeated its own ends by the unfounded notion that its assertion that an act was privileged ousted the jurisdiction of the courts. It was not likely that it would abate its claims after the Revolution.4 But there was now a much better chance that the questions at issue would be impartially considered by the courts ; and that some certain rules would be at last evolved, which would not unduly restrict the privileges of the House, and yet would maintain the supremacy of the law, and give some protection to the subject.

Footnote 4: 1: 4. 1: 4.

## The Principles of Public Law 271

question,1 and that its allegation that it had such jurisdiction by the law and custom of Parliament must be disregarded.2 The Lords were very angry with Holt. They summoned him before them, and required him to give reasons for his decision. But he stood his ground, and maintained that the Lords had no power to interfere with a decision of the court, unless it came before them by writ of error.3 He thus successfully asserted the principle that the courts had the right to pronounce upon the existence of a privilege claimed by the House of Lords.

Footnote 1: Vol. i 392.

Footnote 2: "If there was any such law and custom of Parliament (the which Mr. Attorney said was _inter acana impeeti_, which is a strange notion of a law, though it may be good in politics; and for which the Lords would not thank him, when they considered that the law which governs the inheritance of their diagnities is _inter acana_, for _mixora est serious ubi jius est vagum of incratum_), yet when this comes incidentally in question before them (the judges, they ought to addage, and inter-meddle with it, and they adjudge things of as high nature every day; for the construe and expound Acts of Parliament, and adjudge them to be void," Skin. at p. 536; the statement that they could adjudge Acts of Parliament to be void was an exaggeration, see vol. ii 442-443.

Footnote 3: "He said, that if the record was removed before the peers by error, so that it came judicially before them, he would give his reasons very willingly; but if he gave them in this case, it would be of very ill consequence to all judges hereafter in all cases," I Ld. Raym. at p. 18.

4 (1704) 2 Ld. Raym. q38; i 4 S.T. 695. 8 (1705) 2 Ld. Raym. i105.

Footnote 4: "But they say that this is a matter out of our jurisdiction and we ought not to enlarge it. I agree we ought not to encroach or enlarge our jurisdiction ; by so doing we usup both on the right of the Queen and the people; but we may determine on a charter granted by the King, or on a matter of custom or prescription, when it comes before us without encroaching on the Parliament. And if it be a matter within our jurisdiction, we are bound by our oaths to judge of it. . We do not deny them their right of examining elections, but we must not be frightened, when a matter of property comes before us, by saying it belongs to the Parliament, we must exert the Queen's jurisdiction. My opinion is founded on the law of England," z Ld. Raym. at pp. 956-957; his view is perhaps stated more explicitly in Paty's Case--" The privileges of the House of Commons are well known, and are founded upon the law of the land, and are nothing but the law. . If they declare themselves to have privileges, which they have no legal claims to, the people of England will not be estopped by that declaration," z Ld. Raym. at pp. 1714-1715; cp. vol i 392-394.

### Public Law of Xvitin Century

was dissented from by the other judges ; but it was upheld by the House of Lords ; and it was followed in 1839 in the case of _Stockdale_ v. _Hansard_.1 In _Paty's Case_ Holt, again dissenting from the other judges, decided that if the House commits a person, and specifies the ground of the commitment, the court can judge of its sufficiency ; and that, if it sees that it is not sufficient, it must discharge the prisoner.2 The probable correctness of this view of the law was admitted by the House when, in 1840,3 on the suggestion of Lord Campbell, it applied the dictum of the court in _Burdett_ v. _Abbot_,4 and omitted all mention of the substantial cause of the commitment, and returned simply that the prisoner was committed for contempt of the House. In this way it turned the flank, so to speak, of Holt's decision, by showing that it had exercised an undoubted privilege. It could therefore take the benefit of the principle that, in the exercise of its undoubted privileges, it is the sole judge of the occasion and manner of their exercise.5

Footnote 1: g Ad. and E. 1.

Footnote 2: " Holt, C.J., said, that the legality of the commitment depended upon the vote recited in the warrant. That this was not such an imprisonment as the freemen of England ought to be bound by ; for that this, which was only doing a legal act, could not be made illegal by the vote of the House of Commons; for that neither House of Parliament, nor both Houses jointly, could dispose of the liberty or property of the subject; for to this purpose the Queen must join," 2 Ld. Raym. at p. Iiir.

Footnote 3: The Sheriff of Middlesex's Case, 11 Ad. and E. 273 ; Lives of the Chief Justices ii i04 n.

Footnote 4: (rSSrr) $\\neq$ East at p. 150. ${}^{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{ \\text{\\text{\\text{\\

## 6 Influence of Political Theories 278

in times of political or social unrest. And some of these political theories, by giving an ideal and a programme to the parties from whose conflicts our public law has emerged in its final form, have exercised a real, though an indirect, influence on that form. They have helped to group the combatants and to define the issues; and, therefore, we must take some account of their influence.

### The Influence of Political Theories on the Development of English Public Law

We have seen that, during the sixteenth century, political speculation was more active on the Continent than in England ;1 and that this phenomenon was due to the fact, that on the Continent, the change from medieval to modern political conditions, and the settlement of the strike between Roman Catholic and Protestant, had not been effected so gradually or so peacefully as in England.2 On the Continent the contests, political and religious, which had accompanied the birth of the new territorial state, had produced rival theories as to the government of the state, and as to the relation of the people to their rulers.

Footnote 1: Vol. iv 193-199, 214-215.

Bodin's theory of sovereignty had given Europe a political philosophy which fitted the new political facts of the sixteenth century.3 The sovereignty, which he analysed and explained, was not necessarily confined to a state in which a single person was sovereign. But Bodin considered this to be the best form of government, and it was certainly the prevalent form of government in the great progressive states of Europe. Under these circumstances, sovereignty came to be thought of as naturally annexed to the person of the king.4 King and state were identified; and, since the new territorial state had assumed that divinity which, in the Middle Ages, had been largely intercepted by pope and emperor, the sovereign king could claim that he held his position by divine right, and that he was answerable for his conduct to God alone.6

Footnote 1: footnotemark:

Footnote 2: Ibid r9-20, 47-48, 108-Iii, 166-173.

Footnote 4: " Most men will arrive at the idea of sovereignty because they will seem to see it encircling the didem of Henry VIII, or Elizabeth," Figgis, Divine Right of Kings, 234.

On the Continent this theory of the state had come, by the end of the sixteenth century, to be the prevailing theory.6 But it had naturally aroused opposition from many quarters. Writers like Hotman proved from history that, in the past, kings had never occupied this position in the state.7 Others maintained that the relations of a king to his subjects were contractual in their

### Public Law of Xvith Century

nature ; and that the subject had, therefore, a moral or natural right, of a quasi-legal kind, to oppose a king who broke his contract by a tyrannical exercise of his powers.1 We have seen, too, that the aid of religious opposition was invoked. Religious dissent from the cred of the state inspired political opposition on the part both of Roman Catholics and Protestants ; and that opposition gave rise to much political theory, designed to emphasize the divine or natural rights of subjects, as against the divine right of their rulers.2

Footnote 1: Vol. iv98, 199.

The political controversies of the Stuart period introduced England to these diverse continental political theories, and produced a general resemblance between English and continental political speculation. The Stuart kings wished to make England a state after the continental model ; and their theory of divine right gave to the king and his prerogative the same sovereign power in the state as continental kings possessed.2 To these claims, and to the theory upon which they were founded, the claims of the law and of Parliament to control the prerogative, were opposed; and their claims were based upon historical reasoning, upon theories of natural rights, and upon theories as to the contractual nature of the king's relations to his subjects.4 Similarly, as we have seen, religion was the source of much political theory both in support of and in opposition to the claims of the king,5 But, though there is a general resemblance between English and continental political speculation, English speculations are coloured by their environment. The medieval views of the common lawpers as to the supremacy of the common law, and the development of Parliamentary power and privilege, gave a weight to arguments based on history and precedent which elsewhere they never possessed ; and it was these arguments which finally prevailed at the Revolution.6 It is true that religious opposition had a large effect upon the course of the political controversies of the century. The religious element in the political opposition to the earlier Stuart s destroyed the constitution for a short period;7 and the fact that the church finally turned against James II. made the Revolution bloodless.8 For all that, the Revolution was essentially the victory of the lawpers and Parliament. It is true also that some of the continental political theories emerge and influence the course of the constitutional controversy ; but they cannot be said to have had any decisive effect upon the settlement reached. The original contract be

## 1 Influence of Political Theories 275

tween king and people was used to justify James II.'s deposition ; and Locke borrowed it to construct a theoretical justification for the results actually achieved by the Revolution.1 Hobbes, the one really great English political theorist of this period, analysed for Englishmen in masterly style the conception of sovereignty.2 But, during this period, his influence was comparatively small. His theory of sovereignty was not fully grasped by the majority of English lawyers and statesmen. It is, as we shall see, quite incompatible with the widely accepted theory put forward by Locke to justify the Revolution.3 The older and vaguer view, held throughout the century by the Parliamentary statesmen, that the king in Parliament is supreme in the state,4 was still thought by many to be sufficient; and even if the sovereignty of the king in Parliament was admitted, the idea that their powers were legally illimitable was not very firmly grasped. Therefore, the old ideas that they must somehow or other be controlled by natural or moral laws still lingered on.6

Footnote 1: Below 284-287.

Footnote 2: Below 296-298.

Footnote 3: Below 298-299.

Footnote 4: Above 204-207, 260-262.

Footnote 5: " Upon these two foundations, the law of nature and the law of revelation, depend all human laws; that is to say, no human laws should be suffered to contradict these," Bl. Comm. i 42.

Footnote 6: Below 284-287.

Thus, at the end of the seventeenth century, English political theory had, like English public law, diverged from continental political theory. A new political theory was needed to explain the government of a state in which a Parliament was the predominant partner. This theory Locke attempted to supply;6 and his treatment of the subject foreshadows a change in the character of political speculation. Throughout the seventeenth century, the speculations of political theorists had been based on the medieval view that problems of political theory--problems as to the form of government and as to the relations of the people to the government--were quasi-legal or quasi-moral problems, to which only one absolutely right conclusion was possible.7 But the Revolution settlement was a compromise; and the party government which succeeded it, tended to introduce the idea that such problems were, not so much problems of absolute right and wrong, as questions to be decided by asking what in the circumstances was expedient or possible. As yet, however, we see only the beginnings of this change.8 Its full effects for good and evil will not appear till the nineteenth century.

Footnote 7: Above 104, 106-107; below 290-292.

This summary sketch of the relations of political theory to the development of public law indicates the main lines upon

### Public Law of Xvitin Century

which this subject must be treated. In the first place, it will be necessary to deal with the theory of the divine right of kings; and, in the second place, with the opposing theories which were called forth by the Stuart insistence on this theory of divine right. In the third place, something must be said of the change in the character of political speculation which is foreshadowed at the close of this period; and, in the fourth place, some account must be given of Hobbes, and of the reasons why his theories failed to exercise any very appreciable influence during this century.

1. _The Theory of the Divine Right of Kings._

That the king, as the representative of the state, had in some sort a divine right was fully admitted in the Tudor period.1 As we have seen, such a theory was a necessary consequence of the Reformation settlement.2 But we have seen that the Tudors were hardly in a position to insist upon the divinity of hereditary right.3 James I., however, could fairly contend that his accession, in the face of an existing Parliamentary settlement of the crown, was due entirely to the divinity of his hereditary right. This view fitted in exactly with the theory, which his characteristically Scotch intellect had evolved, as to the position of the king in the state;4 and therefore we are not surprised to find that the theory of the divine right of the king emerges in his writings in its final form.5 "The kingly power," to use Filmer's words, " is by the law of God, so it hath no inferior law to limit it."6 He is above the law of the state, which he can mitigate or suspend at his will.7 This doctrine developed with the development of the opposition to the crown; but it did not become a really popular doctrine till the period of the Civil War.8 Then the assertion of extreme republican doctrines made the assertion of the divinity and sovereignty of the king the creed of all those who supported his cause. For this reason the theory of divine right was elaborated, and certain consequences, implicit in it, assumed great importance. In the first place, the denial of the hereditary right of the king was answered, not only by the assertion of the divinity of this right, but also by the denial of any right whatsoever to a merely de facto government existing

## 1.1 Influence of Political Theories 277

in contravention of this right.1 In the second place, the assertion of the right to resist the king was met by the doctrines of passive obedience, and of the duty of non-resistance.2 Even if the king ordered his subjects to do acts which were contrary to the law of God, he must not be actively resisted,3 although it might be necessary to refuse active obedience to such a command.4 These corollaries of the theory gained support from the misery necessarily entailed by the Civil War, and from the unpopularity of Cromwell's military rule. To many who had lived through this period Filmer's contention that, " the greatest liberty in the world (if it be duly considered) is for a people to live under a monarch," and that, " all other shows and pretexts of liberty are but several degrees of slavery, and a liberty only to destroy liberty,"5--would have appeared to be an obvious truism.

Footnote 1: In James I.'s reign Overall's Convocation Book shows that the divinity of any _de facto government_ was asserted by the Church of England, Figgis, op. cit, t37; but, " the execution of Charles I, and the exclusion of his heir led men to dwell upon the distinction between a _de facto_ and a _de jure_ authority. The confusion apparent in _Overall's Convocation Book_ has now disappeared from the popular mind. No one now, whichever party he favours, but has a clear enough sense that it is possible to assert Divine Right for the lawful heir without predicating it of an unsurper," ibid t4.7.

Footnote 2: The doctrine of passive obedience is really a necessary consequence of the religious character of the theory of divine right--4 When civil obedience is inculcated as part of God's law, the case cannot be ignored of the government's endeavouring to persecuate the true religion," ibid z06.

Footnote 4: As Figgis points out, op. cit. z09-225, no one disputed the thesis that the law must not be resisted, the question which was in dispute was whether the king's commands could be resisted; this ultimately resolves itself (like the rest of the constitutional questions at issue) into the question whether or no the king is sovereign.

It is not therefore surprising that the years following the Restoration are the palmy days of the theory of divine right. The divinity of hereditary right had been signally proved by the Restoration itself, and the dire consequences of resistance to the powers that be had been proved by the anarchy of the preceding years. The strength of the supporters of the theory is shown by the manner in which Charles II. was able to bring the Exclusion contest to a victorious issue.6 There can be little doubt that they would have kept James II. on his throne, in spite of all his unconstitutional acts, if he had not attempted " to use this theory of divine right against the church, in whose defence it was formed, and in favour of the very power it was fashioned to attack."7

Footnote 8: Patriarcha, chap. i SS r.

It was during the period of the Commonwealth that the most popular exposition of the theory was written by Filmer. The book was entitled _Patriarcha_, and was published by his son after his death, at the height of the Exclusion controversy. Filmer rested the theory upon a new basis. He did not rely, as most

### Public law of Xvith century

writers before him had relied, upon the words of a number of texts which seemed to support the doctrine, but upon the theory that any natural right has divine approval, that the king's right to rule is a natural right, and that therefore it is divine.1 He supported this theory by the contention that society originates in the patiarchal family, which is ruled by a monarchical head. The rights of that head are natural and therefore divine. Adam ruled his family by his divine right; and, by the same right; the king, as the heir and representative of Adam, rules his kingdom.2 Thus, as Figgis says,34 for direct divine right he substituted a constructive theory of divine approval." The fact that this new argument was welcomed on all sides shows that the age was becoming more rational and less theological.4 A catena of textual authority did not carry so much weight in 1681 as it had carried earlier in the century. Hobbes's skilful use of texts had shown that they were double-edged weapons. Reason rather than authority was required to persuade; for, " though," says Halifax,5 " in some well-chosen auditories good resolute nonsense backed with authority may prevail, yet generally men are become so good judges of what they hear, that the clergy ought to be very wary before they go about to impose upon their understandings."

Footnote 1: Figgis, op. cit. 146-147.

Footnote 2: The subjecting of children, being the fountain of all royal authority, by the ordination of God himself; it follows that civil power, not only in general is by divine institution, but even the assignment of it specifically to the eldest parents, which quite takes away that new and common distinction which refres only power universal and absolute to God, but power respective in regard of the special form of government to the choice of the people," Patriarcha, chap. 1 SS 4; " It is true, all kings be not the natural parents of their subjects, yet they all either arc, or are to be reputed the next heirs to those first progenitors who were at first the natural parents of the whole people, and in their right succeed to the exercise of supreme jurisdiction," ibid chap. 1 SS 8.

Footnote 3: Op. cit. 150.

- Ibid 149; as Figgis, ibid 167.163, points out, this "changed method of conducting the controversy appears also in an earlier work--Nalson's Common Interest of King and People."
- Character of a Trimmer, Works (ed. Foxcroft) ii 308.
- Op. cit. 150.
-

## Influence of Political Theories 279

of the king to tyrannize; and that the former right was more conducive than the latter to the well-being of the state. By the use of these arguments Locke completely demolished Filmer's work.1 As Figgis says,2 "No arguments from expediency, no fresh reading of history, could affect the elaborate accumulation of texts made by Mainwaring in support of his doctrine. The only possible way to meet him was to deny the interpretation or the applicability of the passages quoted. In fact, considerations of utility or historical circumstances could not affect the ordinary argument for divine right. But with Filmer's arguments this is not the case. For the whole question of what constitutes the law of nature is involved; and it is easy to argue, as did Locke, for the principle of utility, the instinct of self-preservation, as of natural and therefore divine origin."

Footnote 1: Two Treatises of Government, Bk. i.

Footnote 2: "It must not be forgotten, that the English clergy claimed the phraseology of the Bill of Rights in support of their contention that the Revolution did not transgress the principle of non-resistance. The strength of popular belief in the principle is attested by the very insertion of the word \*abdicated' in that document. Again, the fiction of the suposititious birth of the Pretender is a proof of the influence the Whigg felt it necessary to counteract," ibid x9o.

The strength of the theory is evidenced by the fiction of abdication which appears in the Bill of Rights, and the insistence on the story that James's son was supposititious.3 But though it inspired the schism of the non-jurors, and though it lingered on as a religious sentiment, it ceased to be a political force after the Revolution. It was inconsistent with the Parliamenty settlement of the succession to the throne, and with the obvious fact that James had been deposed; and it was abandoned by enlightened Tories like Swift and Bolingbroke.4 But, in its day, the theory had done much for the development of English public law; and the ideas which underlay it, differently expressed, were destined, in the future, to have a considerable effect.

Footnote 3: "There can be no laws without a supreme power to command or make them. In all aristocracies the nobles are above the laws, and in all democracies the people. By the like reason in a monarchy the king must of necessity be above the laws," Patriarcha, chap. iii SS 8.

In the seventeenth century it had helped to assert the independence of the state as against the claims of religious bodies --whether Roman Catholic or Presbyterian--to dictate to it ; for it had enabled the state to meet those churches' claim to divinity by its counterclaim to a like divinity.4 It had helped to familiarize English public law with the theory of sovereignty, and thus to complete the edifice of the modern English state.5 The Whig theorists, as we shall see, never really grasped this theory.6 But it is enunciated quite clearly by Filmer,7 and it

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was admitted by enlightened politicians after the Revolution. It is quite clear, for instance, that Halifax understood it thoroughly.1 In the latter half of the seventeenth century it helped indirectly to secure the stability of the state. At the time of the Exclusion Bill, it gave no small support to Charles II. in his successful resistance to a measure, the passing of which would have produced an outbreak of civil war; 2 and at the Revolution, the fact that it was a theory of divine right designed to secure the state against papal encroachments, and not a merely secular theory of royal absolutism, deprived James II. of all his adherents, and so made the Revolution bloodless.3

Footnote 25: https://www.math

## 1 Influence of Political Theories 281

Footnote 1: This is the first author of the author of the _The University of Chicago_.

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There is, in the first place, the opposition of Parliament and the lawyers, and, in the second place, the opposition of the religious non-conformists ; and both these forms of opposition gave rise to political theories, based on supposed inalienable natural or divine rights, contractual or otherwise, formed to justify resistance to any attempt by the government to contravene these rights. .

Of the opposition of the lawyers in alliance with Parliament I have already spoken at length.1 We have seen that, at the Revolution, their contention that the prerogative was subject to law, and that the law was supreme, was realized.2 We have seen, too, that Parliament asserted its right, not merely to an independent position, but to the position of predominant partner in the state. The views for which the Stuart kings had contended, and which Filmer had maintained, were decisively rejected. The king could not suspend or modify the law as he saw fit--on the contrary the law controlled the acts of the king. Parliament with its powers and its privileges was not dependent solely on the king's will--on the contrary it was a more essential part of the government than the king, and capable of regulating even the succession to the throne. It is the legislature and not the king which, according to Locke, " gives form, life and unity to the commonwealth."3 Thus it happens that the practical results secured by the lawyers, in alliance with Parliament, dominate all the political theories of the latter half of the century, which opposed the theory of the divine right of kings.4

Footnote 1: Above 82-86, 88, 107-103.

Footnote 2: Two Treasties of Government, Bk, ii SS 222.

Footnote 3: See Halifax, Some Cautious, etc., Foxcroft ii 479-48o, for the large part which the lawyers continued to play in Parliament, " They have not only engrossed the chair of the Speaker, but that of a committee is hardly thought to be well filled except it be by a man of the robe; " see vol. ii 430-434; vol. iv r14, 184, 187-189, for the same phenomenon in earlier days.

Footnote 4: Good, Democratic Ideas 44:48, 114-115.

Footnote 5: Good, op. cit. 2o-29; cp. Figgis, Divine Right of Kings 177 seq.

This is illustrated by the comparatively small permanent effect which political theories based on religious opposition have had on the development of our public law. No doubt, in the earlier half of the century, the theory of the sovereignty of the people, and their right to depose a tyrannical or an idolatrous king, preached by Knox and Buchanan,6 had a large influence upon the events which had led up to the Great Rebellion, and upon the course of the civil war.7 No doubt these same theories, preached by the Jesuits, had helped on the continent to keep alive a body of political theory opposed to absolut

## Influence of Political Theories 288

and the resemblance between their political theories and those of the Jesuits 1 was a controversial weapon of no mean force, ready to the hands of the upholders of the divine right of kings. The use which they made of it is illustrated by the opening sentences of Filmer's _Patriarcha.2_ "Since the time that school divinity began to flourish, there hath been a common opinion maintained . which affirms--'Mankind is naturally endowed and born with freedom from all subjection, and at liberty to choose what form of government it please, and that the power which any one man hath over others was at first bestowed according to the discretion of the multitude.' This tenet was first hatched in the schools, and hath been fostered by all succeeding Papists for good divinity. The divines, also, of the reformed churches have entertained it. . Upon the ground of this doctrine, both Jesuits and some other zealous favourers of the Geneva discipline have built a perilous conclusion, which is, that the people or multitude have power to punish or deprive the prime if he transgress the laws of the kingdom ; witness Parsons and Buchanan ; the first under the name of Dolman, in the third chapter of his first book, labours to prove that kings have been lawfully chastized by their commonwealth. The latter, in his book 'De Jure regni apud Scotos,' maintains a liberty of the people to depose their princip. Cardinal Bellarmine and Calvin both look asquint this way." It was hardly likely that an opposition theory, handicapped by the support of Jesuits and Presbyterians, would have carried much weight in England. Thus it happens that the opposition in England to the theory of the divine right of kings was of a purely secular character, based on the traditional reverence of Englishmen for the common law, and on the ascertained powers and privileges of Parliament.

Footnote 1: At the time of the Exclusion Bill the Jesuit Dolman's Conference about the next Succession to the Crown of England, published in 1593, was reprinted, Figgis, op. cit. rot, 145.

But the position in the state secured by Parliament and the law needed a theoretic basis to support it. It was inevitable that that basis should be found in some sort of divine or natural right of the subject; for a divine right of the king could only be met by the assertion of a counter-right which could claim an equally good sanction.3 The period of the Commonwealth familiarized men with the theory that all mankind had certain natural in-alienable rights, which it must be the first business of the state to safeguard ; and, as we have seen, some of these rights appeared,

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in some of the constitutions of this period, as fundamental principles, which no power in the state could change.1 Further, all these constitutions assumed that men were free, and that the basis of all government was consent.2 It was not difficult to combine these ideas into the theory that the state originates in a contract, made by the members of a state with each other,3 that they shall all submit to a common authority ; but that, by making this contract, they do not give up the natural rights which they enjoy as human beings. These natural rights, therefore, are precedent to the powers exercisable by the state, and the powers of the state must be so exercised as not to contravene them. Indeed their better maintenance is one of the main objects which men had in view when they agreed to form a state. Thus, while the royalists saw the essence of the state in the sovereignty of the divinely appointed king, those who held this view saw it in the machinery set up by the people for the maintenance of their natural rights. These natural rights, and not the prerogative of the divinely appointed king, were above the law of the state and its mechanism. The theory of the divine right of the king was thus countered by the theory of the natural rights of the subject. It followed that the government of the state, so far from being the superior of the subject, was his agent or delegate to carry out certain purposes, and that that agent or delegate could be dismissed if it failed to carry out the functions for which it was appointed.4 It was this theory of the state which the framers of the Bill of Rights adopted--James II. had broken the original contract ; and it was this theory which Locke elaborated and used to explain and justify the Revolution settlement.

Footnote 1: Above 153, 157.

Footnote 2: Above 152-157.

Footnote 3: Thus differing from the older forms of the contract theory which supposed that the contract was made with the king, vol. ivg8; as Leslie Stephen says, Life of Hobbes 177, the contract theory, "Had acquired especial currency from the great book in which Grouts had adopted it, when applying the Law of Nature to regulate the ethics of peace and war " ; for Grouts use vol. v27, 55-58.

Locke necessarily begins his theory of politics by an account of the condition of mankind in a state of nature. It was a state of perfect freedom and equality; 4 but it was not a state of license.6 For " the state of nature has a law of nature to govern it which obliges everyone, and reason, which is that law, teaches all mankind who will but consult it, that being all equal andInfluence of Political Theories 285 independent, no one ought to harm another in his life, health, liberty, or possessions."1 In this state of nature the execution of the law of nature is "put into every man's hands."2 This state differs from a state of war, in that the laws of nature hold in the former state, but not in the latter.3 But in a state of nature there is not much security for the observance of the laws of nature;4 and so men agree with each other "to join and unite into a community for their comfortable, safe, and peaceful living, one amongst another, in a secure enjoyment of their properties, and a greater security against any that are not of it."6 Men thus submit themselves to a state, and thereby debar themselves from the power, which they had in the state of nature, to take what measures they please for their self-preservation, and to enforce their own rights.6 But they do not thereby deprive themselves of the other natural rights which belong inalienably to all men. The state must govern in accordance with the laws which secure these natural rights of life, liberty, and property.7 Its powers are limited by these conditions; for these powers are conferred upon it by the agreement of the community, and "nobody can transfer to another more power than he has in himself, and nobody has an absolute arbitrary power over himself, or over any other, to destroy his own life, or to take away the life or property of another."8 Hence if governments act "contrary to their trust," they are ipso facto dissolved;9 and as to whether or no they have acted contrary to their trust the people is judge--" for who shall be judge whether his trustee or deputy acts well and according to the trust reposed in him, but he who deputes him and must, by having deputed him, have still a power to discard him when he fails in his trust?"10 It follows that, if the object of creating a political society is to provide a security for the peaceful enjoyment of life, liberty, and property, absolute monarchy is inconsistent with this object; and a society so governed can hardly be considered to be a political society.11 For, in such a society, there is no security at all that the monarch will not violate all those

### 286 Public Law of Xviith Century

natural rights which it is the chief object of the state to maintain.1

Footnote 1: "If it be asked what security, what fence is there in such a state against the violence and oppression of this absolute ruler, the very question can scarce be borne. They are ready to tell you that it deserves death only to ask after safety, ... As if when men, quitting the state of Nature, entered into society, they agreed that all of them but one should be under the restraint of laws; but that he should still retain all the liberty of the state of Nature, increased with power, and made licentious by impunity. This is to think that men are so foolish that they take care to avoid what mischies may be done them by polecats or foxes, but are content, nay, think it safety, to be devoured by lions," Locke, op. cit. Bk. ii SS93.

The fact that Locke's book is a justification of the constitutional results of the Revolution, is clearly shown by the nature of the fundamental laws, by which, according to his theory, the action of the state must be governed. " These are the bounds which the trust that is put in them by the society, and the law of God and Nature, have set to the legislative power of every commonwealth, in all forms of government. First : they are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favourite at court and the countryman at plough. Secondly : these laws also ought to be designed for no other end ultimately but the good of the people. Thirdly : they must not raise taxes on the property of the people without the consent of the people given by themselves or their deputies. ... Fourthly : Legislative neither must nor can transfer the power of making laws to anybody else, or place it anywhere but where the people have." 2 These conditions are, so to speak, the memorandum of association of the State, and any breach of them will be not only ultra vires, but a cause for the dissolution of the state. Obviously there is no sovereign in such a state. Indeed. Locke seems to deny that a state in which the government is legally omnipotent is a true political society.3 He makes no attempt to determine how disputes as to the limits of the natural rights of the subject are to be settled ; and though, to secure the better observance of the law, the legislative and the executive powers are divided,4 he makes no attempt to provide a method for settling disputes between them. The general statement that the legislature is supreme5 does not carry us very far; and he admits that, as

## Influence of Political Theories 287

between an executive armed with the extensive powers vested in the king by his prerogative, and a legislature which depends upon his will for their convening, there can be no judge. The only remedy is for the people to use their inalienable natural rights and rise in revolution. To the objection that this lays "a perpetual foundation for disorder," he can only reply that this course will never be pursued "till the inconvenience is so great that the majority feel it and are weary of it," and that wise princes will never run this risk.1

Footnote 1: Locke, op. cit. Bk. ii SS r68.

The theoretical objections to Locke's views are obvious. But, in spite of these objections, they have had an enormous influence both in England and abroad. This is due mainly to two causes. In the first place, they reflected the political ideas of the Whig party of the period. In the second place, they put into a popular and semi-scientific form the ideals of that party

(i) That they reflected the political ideas of the Whig party of the period we can see clearly enough if we look at the writings of one of the most eminent of its representatives--the Marquis of Halifax. From the point of view of political theory, Halifax's political views are open to the same sort of theoretical objections as those of Locke. Though, as we have seen, he had a firm grasp of the conception of sovereignty,2 he can yet praise "our mixed government,"3 and "our blessed constitution in which dominion and liberty are so happily reconciled"4--the government which has attained the happy mean between monarchy--"a thing that leaveth men no liberty," and a commonwealth--which "alloweth them no quiet";5 and he can acquiesce in the view that sovereignty is in the king in Parliament, without considering that, if the king and Parliament fall out, there is in fact no sovereign.6 In such a case the sovereignty is in fact in the law and its interpreters; and yet he ridiculed the notion that government could be left to an undefinable common law.7 He would have admitted that Parliament was the predominant, power in the constitution;8 but he condemns the party system

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without which a large assembly would be an unorganised mob;1 and his view that no placement should be admitted in the House of Commons,2 would have left the House without any guidance from the executive ; and, by irrevocably separating the executive from the legislature, would have left the House no means of peaceably asserting its power. Locke's political theories really reflect a good deal of the inconsequence of the political ideas of the party to which he belonged.

Footnote 1: Some Cavitions offered to the considerations of those who are to choose members to serve in the ensuing Parliament, Foxcroft ii 480-48I; cf. Political Thoughts, ibid ii 505-507; at the same time some of his criticisms are very true, e.g. " Party turneth all thought into talking instead of doing, " it makest a man thrust his understanding into a corner and confine it, till by degrees he destroys it,"

" It is generally an effect of wantness, peace and plenty, which beget humour, pride, etc., and that is called zeal and public spirit;" cp. Hobbes, Leviathan rzz, " All uniting of strength by private men, is, if for evil intent, unjust; if for intent unknown, dangerous to the Publique and unjustly concealed."

2 Some Cavitions, etc., Foxcroft ii 487, " It is not less sure that a Member of Parliament, of all others, ought least to be exempted from the rule that no man should serve two masters."

3 Above 284 n. 4; cp. Character of a Trimmer, Foxcroft ii 295.

4 Above 286 ; cp. Character of a Trimmer 842-86.

5 Ibid 32-322; Halifax advocated tolerance even to lay papists, but not to popish pristas;" they are to be looked upon as men who will continue in an eternal state of hostility till the nation is entirely subdued to them," ibid 318; with regard to the lay papists he finely says, " There is a smell in our native earth better than all the perfumes of the East; there is something in a mother, though never so angry, that the children will naturally trust sooner than the most studied civilities of strangers, let them be never so hospitable; therefore it is not advisable, nor at all agreeing with the Rules of Governing Produce, to provoke men by hardships to forget that nature, which else is sure to be of our side," ibid 319; for Locke's position on this matter see his Letters on Toleration, and Leslie Stephen, English Thought in the Eighteenth Century ii 45-51.

6 Locke, Two Tretissies BK. ii 8 T35; cp. Halifax, Political Thoughts, Foxcroft ii 490-497, " Of Fundamentals."

7 " The social compact has long been obsolete, but the doctrines which it covered became the permanent creed of the Whigs, and were accepted more systematically both by the English utilitarians and the French revolutionists," Leslie Stephen, English Thought in the Eighteenth Century ii 449.

## Influence of Political Theories 289

exceeded their commissions, fostered that spirit of self-reliance in the nation which centuries of self-government had implanted.1 Locke's political theories thus set up a rational ideal of government, and made for a practical business-like manner of dealing with political problems. These were virtues which compensated for any amount of merely logical imperfection. The manner in which the question of sovereignty, misunderstood by Locke and ignored by the statesmen who made the Revolution settlement, was peaceably settled by the growth of the Cabinet system of government, is the best illustration of the manner in which the theoretical defects in the Whig theory of government were remedied by the practical common-sense in political matters which that theory helped to develop.

Footnote 1: Above 59-67; cp, vol. iv rG3-rG5, rR7.

But the Whig theory of government had its defects. It tended to produce a spirit which led men to regard politics as guided, not by certain divine or natural principles, but by utilitarian principles, which altered with altered circumstances.2 "Circumstances must come in," wrote Halifax,3 "and are to be made a part of the matter of which we are to judge ; positive decisions are always dangerous, more especially in politics "; and he scoffed at the idea of "fundamentals".4 No doubt this spirit made for tolerance. No doubt it helped to keep the machine of government running smoothly. But it tended to lower the ideals of statesmen at a time when they could least bear to be lowered. The Whigs were not at the time of the Revolution the majority of the nation ;5 and, in order to maintain their position, they used all the methods of corruption which the defective representative system, and the low public morality both of members of Parliament and their constituents, afforded.6 The Whig party thus gradually degenerated into a body of politicians whose main concern was to keep themselves in office. It was not surprising that they succumbed when, at the beginning of George III.'s reign, the influence of the crown was turned against them. The Tory party had absorbed some of the Whig views and had, at the same time, retained a few of its

### 290 Public Law of Xvitin Century

own ideals. With the help of the king it was able to triumph over a party, which had come to think more of perfecting the machinery of corruption by which it retained office, than of the principles for which it had once stood. As we shall now see, the opportunism, and the appeals to reason and utility, which we find in Locke's political theories and in the Whig outlook on government, foreshadow a great change in the character of political speculation.

The Change in the Character of Political Speculation.

The Renaissance, the Reformation, and the rise of the modern territorial state, had overthrown the medieval idea that all Western Europe was one political community under pope and emperor, guided by the same set of divinely dictated religious and moral laws ; and that it was the object of the state to maintain and enforce by apt rules these divinely dictated laws. Europe was no longer one community, and the different states, into which it had split up, were by no means agreed as to the contents of the divinely dictated laws which should govern their action.1 The result was that the relations of the various independent states among themselves were, in fact, guided by considerations of self-interest and expediency. It is true that Grotius and the other writers on international law maintained that certain moral rules ought to govern these relations.2 It is true that these rules were sometimes observed, and became the foundation of those international customs and treaties which are the real sources of the international law of the present day. But neither then, nor at any other time, have those rules succeeded in doing more than prove to these independent nations that it is in some cases expedient to observe certain laws in their dealings with one another. They have not succeeded in inducing states to regulate their dealings by reference to any principle or principles higher than that of safeguarding their material interests.

Footnote 1: Vol. iv ii-23. ${}^{2}$ Vol. v 27, 5o-6o.

But the medieval view, that political questions should be determined by fixed moral or religious standards, lasted much longer in the case of questions which arose as between different parties in the same state. Both the government and the opposition to the government based their claims on natural or divine laws ; and they endeavoured to prove their claims, both by an appeal to biblical texts, and by the authority of precedents, drawn either from biblical history, or from the history of ancient or modern states. History was ransacked for instances to prove particular theses as to the meaning and contents of this or that moral or religious law, from which the writer

## Influence of Political Theories 291

hoped to prove the correctness of his political faith. And this method of political reasoning was employed, not only when the government or the opposition to the government sought to prove its case by reference to natural or divine laws, but also when they sought to base their respective claims upon the law of the particular state. History was wilfully misread by all parties in order to prove a particular interpretation of the law. In England, where the main weight of the constitutional controversy turned upon the interpretation of the common law and Parliamentary history, this misuse of history by both sides is especially marked. Coke and Pryne are as flagrant offenders as Finch or Berkeley or Herbert; and the House of Commons as any Stuart king.

It is obvious that this method of political reasoning is directly inherited from the mediaeval view that the supremacy of law, divine or human, must be maintained. It borrows both the language and the concepts of its medieval past. But political theory necessarily follows very closely the facts of contemporary political life. It is made with a view to contemporary problems, and is therefore cast in the mould of contemporary ideas. Hence, in spite of the use of mediaeval language and mediaeval concepts, we can see in this century a change in the nature of the problems which political theorists were trying to solve, and a consequent change in the character of their speculations. The coming of the territorial state had made the problem of sovereign the political problem of the century. That tended to make the mediaeval ideal--the securing of the supremacy of law divine or human--sink into the background. The maintenance of that supremacy was not regarded, as in the Middle Ages, as an end in itself; but rather men argued for the supremacy of this or that version of divine or human law, in order to prove a thesis as to the balance of power, or the whereabouts of the sovereign power in the state. Obviously, theories of the divine right of kings or of a social compact, used to prove theses of this kind, are very different in their orientation from similar theories used, as they were used in the Middle Ages, to justify particular expedients for securing the supremacy of law.

This change in the character of political speculation, which we can see in the seventeenth century, will pave the way to yet further changes. The analysis of sovereignty will tend to separate morals from law, and to draw a hard and fast line between moral right and legal right; and the insistence on the legal supremacy of the sovereign will tend to banish ethical ideals from political reasoning. It will tend to substitute for these ethical ideals considerations of utility or expediency, and to make the dominant aim of politics the securing of the greatest material advantage

### Public Law of Xvith Century

for the strongest party in the state. Necessarily this change will react on methods of political reasoning. Both in the Middle Ages and in the seventeenth century political theories were deduced logically from fixed postulates. But in modern times, when no such fixed postulates are recognized, they have tended to become merely a series of generalizations arrived at inductively from the teachings of history and considerations of expediency. But the conclusions of a science, which proceeds on these lines, are far more indefinite and far less authoritative than they were in the days when its conclusions were assumed to be logical deductions from great moral or religious principles. In fact, under the influence of the indeterminate and conflicting ideals of various groups of modern politicians, they tend to become merely a repertoire of arguments for the particular thesis which the writer happens to favour. Political reasoning tends more and more to turn upon considerations of expediency; and its conclusions can only be justified or condemned by their results. Thus somewhat the same set of principles which have long been applied to settle the international relations of states, tend more and more to be applied to settle political questions arising within the state.

We see the beginnings of this change at the close of this period. We have seen that Filmer's new argument for the divine right of kings was assailable by arguments as to its improbability based on grounds of utility.1 We have seen that Locke's conception of the original contract, and of the contents of the natural rights of the subject, were also based on obvious grounds of utility.2 Halifax,8 like Selden, was wholly sceptical as to the existence of these divine or natural or fundamental rights. In his writings the law of nature is reduced to a preference for virtue or an instinct of self-preservation.4 The only fundamental principle in politics which he admits is the principle of sovereignty.5 Fundamental principles designed to keep a constitution unchanged he will have none of--constitutions must be changed " as often as the good of the people requiretly it ";6 and the sovereign power will certainly make these changes whenever it sees fit to do so.7 Fundamental laws of nature cannot be settled by men, for all

## Influence of Political Theories 293

such laws "must vary for the good of the whole."1 But as yet the change is only beginning. Locke is still at pains to show that there is some historical basis for his conception of the original contract, from which the rights and liberties of the people flow.2 The original contract has not yet been reduced, as Blackstone reduced it,3 to a mere method of expressing the truth that all government is founded on the consent of the governed. Locke, therefore, cannot frankly base his political theories upon the principle of utility.4 Leslie Stephen found it "strange to see a man of such vast intellectual vigour, and, above all, with so firm a grasps of facts, allowing himself to be trammelled with this vexatious figment."5 But two sufficient reasons compelled him to use the machinery of natural rights and original contract to justify the practical conclusions which flow more naturally from the principle of utility. In the first place, it was the accepted method of political reasoning ; and, long after the original contract was recognized to be a fiction, reverence for church and king, and for custom and tradition, helped to counteract the view that state machinery and political programmes were matters depending solely upon logic and utility. In the second place, it was necessary for Locke to adopt this method of reasoning from the purely forensic point of view. So long as a Stuart restoration was a possible thing, the maintenance of the theory of the divine or natural rights of the people was needed as a counterpoise to the theory of the divine right of the king.6 We shall now see

### Public Law of Xvith Century

that it was largely because Hobbes attempted, in the middle of this century, to construct a political theory on the sole bases of logic and expediency, that his influence over his own generation was so small; and that it was for exactly the same reason that his merits came to be fully appreciated at the beginning of the nineteenth century.

Hobbes was perhaps the greatest, and certainly the most original and stimulating political philosopher, that England has ever produced. Like Bentham, he claimed to be much more than a political philosopher. His political philosophy, as expounded in the Leviathan and his other works, is a deduction from, and an application of, the general principles by which he sought to explain the genesis of human knowledge, and the evolution of human life.

He was a thorough-going materialist,1 and a worshipper of logical reasoning.2 Matter and motion were for him the two ultimate facts of the universe;3 and all human activities, intellectual or otherwise, he considered to be forms of motion. Man differed from the beasts in that his intellectual motions were somewhat different. Firstly, he is curious.4 "The beast flies from or approaches a new object, only considering whether it will 'serve his turn.' The man endeavours to discover the cause. Hence arises all philosophy, " which is . .

## INFLUENCE OF POLITICAL THEORIES 295

Indeed the power to reason rightly, and thus to ascertain truth, depends upon our capacity to "rightly order names in our affirmations." In other words, the power to frame correct definitions is a condition precedent to the attainment of all exact knowledge.1

Footnote 1: The proof of the theorem is a bit of the form \[1\], which is a bit of the form \[2\], which is a bit of the form \[3\], which is a bit of the form \[4\], which is a bit of the form \[5\], which is a bit of the form \[6\], which is a bit of the form \[7\], which is a bit of the form \[8\], which is a bit of the form \[9\], which is a bit of the form \[10\], which is a bit of the form \[11\], which is a bit of the form \[12\], which is a bit of the form \[13\], which is a bit of the form \[14\], which is a bit of the form \[15\], which is a bit of the form \[16\], which is a bit of the form \[17\], which is a bit of the form \[18\], which is a bit of the form \[19\], which is a bit of the form \[Public Law of Xvith Century

descriptive names given to signify certain of our sensations. As men's sensations are differently affected by the same things, these descriptive names necessarily differ in meaning so widely that "they can never be true grounds of any ratiocination."1 But, if this is so, what test have we as to the validity of our conclusions? The answer is, if we get our definitions exact, and reason from them correctly, we shall be able to detect a wrong conclusion by its absurdity--the sense of which is peculiar to man.2

Footnote 1: "In reasoning a man must take heed of words ; which besides the signification of what we imagine of their nature, have a signification also of the nature, disposition, and interest of the speaker ; such as are the names of Vertues, and Vices ; For one man called _Wisdom_, what another calcleth _Fare_ ; and one _cruely_, what another _justice_ . . And therefore such names can never be true grounds of any ratiocination. No more can Metaphors, and Tropes of speech, "Leviathan 17. 2 1 3 Ibid 63. 4 4 Ibid 62, 4 5 5 6 7 8 Ibid 62, 4 5 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 5 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 21 22 23 24 25 26 27 28 29 31 32 33 34 35 36 37 38 39 41 5 5 6 7 8 9 20 21 23 24 25 26 27 28 29 32 33 34 35 36 37 38 39 42 43 44 5 5 6 7 8 9 35 7 9 43 5 7 9 5 8 9 6 9 7 10 11 12 13 14 15 16 17 18 19 22 23 24 25 26 27 28 29 33 34 35 36 37 38 39 44 5 6 7 8 9 9 10 11 12 14 15 17 19 23 24 25 26 27 28 29 34 35 36 37 38 39 44 5 6 7 8 9 9 11 12 13 14 15 16 17 18 19 23 24 25 26 27 28 29 35 36 37 38 39 43 44 5 6 7 8 9 12 23 36 37 39 5 7 9 13 14 15 16 17 19 24 25 26 27 28 29 36 37 38 39 44 5 6 7 8 9 10 11 12 13 15 17 19 25 26 27 29 37 38 39 5 7 9 11 12 14 16 18 19 26 27 28 29 39 40 41 5 5 6 7 8 9 12 29 30 42 43 44 5 6 7 8 9 13 14 15 16 17 19 26 27 28 29 35 36 37 38 39 5 7 9 14 15 16 17 19 27 29 36 37 39 41 5 6 7 8 9 16 28 38 39 5 7 9 17 29 39 5 7 9 18 20 21 22 23 24 25 26 27 29 36 37 38 39 5 7 9 10 11 12 13 14 15 17 19 28 39 41 5 6 7 8 9 11 12 13 16 17 19 29 30 43 44 5 6 7 8 9 10 12 14 15 16 17 19 27 28 29 36 37 38 39 5 7 9 11 12 13 14 15 16 17 18 19 29 31 32 34 35 36 37 38 39 42 43 5 6 7 8 9 10 11 12 13 14 15 17 19 26 27 28 29 37 38 39 5

## 1.1 Influence of Political Theories

The state. Its essence is the sovereign thus created;1 and differences between states turn wholly upon differences in the constitution of the sovereign power.2

Footnote 1: "In him consisteth the Essence of the Commonwealth ; which (to define it) is One Person, of whose Acts a great Mulititude by mutuali Covenants one with another, have made themselves every one the Author, to the end he may use the strength and means of them all, as he shall think expedient, for their Peace and Common Defence," Leviathan 88,

Footnote 2: Ibid q4, r15.

Footnote 3: Ibid q0, r137.

Footnote 4: Ibid q0, r137.

Footnote 5: Ibid q0, r137.

Footnote 6: Ibid q0, r137.

Footnote 7: Ibid q0, r137.

Footnote 8: Ibid q0, r137.

Footnote 9: Ibid q0, r138.

Footnote 10: "It is not that \_$uris

### 298 Public Law of Xvith Century

It is equally absurd to suppose that the sovereign can be controlled by religious rules. On the contrary, the sovereign, because he is sovereign, has the right to dictate the doctrines, religious or otherwise, which are preached in his state, and to choose the teachers.1 In fact, the sovereign is "the supreme pastor."2 All other pastors "are his ministers, in the same manner as magistrates of towns, judges in courts of justice, and commanders of armies."3 As such supreme pastor, he has authority "not only to preach ... but also to baptize, and to administer the sacrament of the Lord's Supper."4 This despotic control over religion is justified in two ways. In the first place, the necessary articles of the Christian faith are whittled down to one only--a belief that Jesus is the Christ.5 Other matters are, comparatively speaking, indifferent, and ordinances made as to them must be obeyed as law, as, by disobedience to law, we break the law of God.6 In the second place, even if a sovereign is an infidel, resistance will be an offence against the law of God. Subjects must obey; " and for their faith it is internal and invisible; they have the licence that Naaman had."7 Hobbes thus abolishes all mysticism from law, religion, and the state. Man is simply a machine; and the state is likewise a machine manufactured by him.8 It is "based upon selfish motives and is worked by individual interests." It is no living organism, but simply " organised force."9 If this was the true theory of the state, Hobbes was fully justified in saying that civil philosophy was no older than his own books.10 It is no wonder that he was suspected of atheism. It is no wonder that his speculations roused the fury of both lawyers11 and churchen. His political philosophy attacked the practice and the theories of both; for it was fatal, both to the technicalities of law and theology, and to those divine and natural rights upon which the political theories of lawyers and churchen rested. No doubt his writings helped to teach Halifax and a few others the doctrine

## Influence of Political Theories

of sovereignty.But his speculations could have no great influence till the divine right of kings, and the natural rights of the people, ceased to form the premises from which all political theories were deduced.

We have seen that belief in the divine right of kings disappeared after the Revolution;1 and the death-blow to the theory of the natural rights of peoples based upon an original contract .was given by Hume,2 and Burke.3 It then became possible to base political reasoning frankly upon considerations of expediency and utility. We can see the final conflict between the old methods of political reasoning in their decrepitde, and the new methods in their young and vigorous youth, in Bentham's criticisms on Blackstone's political philosophy in his **F**ragment on Government. Bentham, in his "Theory of Legislation," gave a pseudo-scientific form to the principle of utility, and mobilized it, so to speak, for the purpose of effecting political and legal reforms. He was able to adopt Locke's principles, and apply them in much greater detail to all branches of the law, because he was no longer hampered by the apparatus of original contract and natural rights, which Locke had been obliged to employ. At the same time he and his school fully accepted Hobbes's doctrine of sovereignty,4 and advocated the use of the sovereign legislature as the best- way of effecting those extensive law reforms which the principle of utility demanded.5 When the new Whigs finally defeated the Tories in 1832, they proceeded to carry out the principles of Locke, as restated and elaborated and applied to existing abuses by Bentham, using as their weapon that sovereign legislature which Hobbes had been the first Englishman to understand and to analyse. As we have seen, the fact that Burke had been able to strike out for himself a political creed, which combined the strong points of the old methods of political reasoning and the new, was destined in later days to do much to modify the narrow outlook engendered by utilitarianism, and by the _a priori_ philosophies of law politics and economics which came in its train.6

## 300 Public Law of Xviiiii Century

The result of the development of English public law during this century had been to create a state which differed from that of every other state in Europe. The English people had refused to identify king and state; they had so developed their medieval Parliament that it had become the predominant power in the state; and they had maintained the supremacy of the law over officials as well as subjects, and even over the prerogative of the king. Foreign nations did not understand such a constitution. To many Frenchmen in the seventeenth and eighteenth centuries the English seemed to be a barabarous race who killed and deposed their kings.1 Their government seemed to be ever distracted by faction--more stormy, Voltaire said, than the waves of the sea which surrounds their island; and, like the government of Poland, to be incapable of maintaining authority, or of pursuing any fixed line of policy.2 But Halifax's penetrating glance saw "the miserable deformity" which existed beneath the " glittering outside of unbounded authority," with which, in the seventeenth century; the brilliant court of Louis XIV. dazzled Europe.3 In the course of the eighteenth century, many Frenchmen began to echo his praise of that " blessed constitution in which dominion and liberty are so happily reconciled";4 and, consequently, the English constitution and its theory, as expounded by Locke, began to exercise a profound influence upon the thinkers whose 'books prepared the way for the French Revolution.5 Both the prosperity and the achievements of England in the eighteenth century, showed that Halifax had spoken truly when he said that, " those strugglings, which are natural to all mixed governments, while they are kept from growing into convulsions, do by a mutual agitation of the several parts rather support and strengthen, than weaken or main the constitution; and the whole frame; instead of being torn or disjointed, cometh to be the better and closer knit by being thus exercised."6

Footnote 1: See references cited by Buckle, History of Civilization in England ii 173-174 and nn., 231, 332 (ed. 1903); cp. Gooch, English Democratic Ideas 356.

Footnote 2: See authorities cited by Sorel, L'Europe et la. Revolution Francaise i 63, 345 nn. I and 4.

Footnote 3: Character of a Trimmer, Foxcroft ii 297-298.

Footnote 4: Ibid 296.

But, in the seventeenth century, the civil war and the political unrest, which had made England the one great free state in Europe, had not been as favourable to purely legal development as the ordered, and, in many respects, enlightened despotism of Louis XIV. It will be nearly a century and a half before English law can show legislation in any way comparable to those French

## INFLUENCE OF POLITICAL THEORIES 301

Ordonnances of the seventeenth and eighteenth centuries, which entitle the French nation to the fame of being the pioneers in the work of codification.1 But, in spite of this political unrest, English law had begun, during the latter half of the century, to develop in many directions, and, as the result of these developments, to assume its modern form. The history of these developments will form the subject of the two following chapters.

## Chapter The Latter Half of the Seventeenth Century

The Enacted Law

From the purely legal point of view, the most important result of the Great Rebellion had been to reduce to insignificance very many of those courts which had, in the preceding period, been formidable rivals of the common law. The jurisdiction of the Council and its various offshoots had come to an end in England.1 The jurisdiction of the court of Admiralty was rigorously curtailed.2 The court of High Commission had disappeared;3 and, though the other ecclesiastical courts had been restored, they were firmly controlled by the common law courts. On the other hand, the court of Chancery, though often attacked during the Commonwealth period, had never wholly disappeared.4 At the Restoration equity began again to develop upon the lines upon which it had been developing before the Great Rebellion;6 and the court of Chancery, like the courts of common law, took over some of the jurisdiction of the courts which had either disappeared or become definitely subordinate.6 Thus, just as the Restoration introduced many of the modern features of the political life of the state,7 so it introduced the dominant modern feature of its legal life--the definite superiority of the courts of common law and the court of Chancery. From henceforward it is quite clear that the main sources of the professional development of the law will be found in the activities of these courts. And this characteristic is reproduced in the enacted law of this period. So far as it touches on legal doctrine, it is mainly concerned with the doctrines of common law or equity. It is true that a small place is still left for the activities of the court of Admiralty and the ecclesiastical courts; it is true that the civilians and canonists of Doctors Commons8 will develop a The Pioclamations

body of doctrine upon topics which still fall within their jurisdiction; and it is true that some of the topics with which they deal will increase in importance during the eighteenth century. But, during this period, their activity is not very important; and the enacted law relating to matters falling within their jurisdiction is scanty. I shall therefore deal with the history of the branches of law which they developed in the next Book of this History. In this chapter I shall deal with the enacted law of the latter part of the seventeenth century; and, in the following chapter, with the professional development of law and equity during the same period.

We have seen that, in the preceding period, it was necessary, in dealing with the enacted law, to take some account of the proclamations as well as of the Statutes.1 During this period the proclamations have not quite the same importance. After the abolition of the Star Chamber, there was no tribunal which would punish a breach of a proclamation, unless the conduct ordered or forbidden by it was illegal.2 The legislative supremacy of Parliament, and the growing definiteness of the restrictions upon the prerogative during Charles IL's and James II.'s reigns, were restricting proclamations to the sphere of executive as distinct from legislative acts; and this process was complete after the Revolution.2 Thus some of them simply contain general warnings and exhortations to obey the law, and to refrain from obviously immoral or illegal courses of conduct, such as drunkenness, debauchery, or profanity;3 and a very large number simply enforce the provisions of Acts of Parliament, or exercise powers which these Acts of Parliament had conferred upon the crown.4 But though they are for the most part simply executive acts, definitely subordinate to statutes, they illustrate many of those sides of the

### The Enacted Law

national life, and many of those new developments, which appeared to call for regulation by the state. Thus they still afford a good introduction to the statute law of this period ; and therefore, by way of introduction to my account of the statute law, I shall say a few words as to the chief topics with which they deal.

Most of the historical events of the period are reflected in the proclamations. The orders that the thirtieth of January should be observed as a day of humiliation,1 and the twenty-ninth of May as a day of rejoicing,2 commemorate the victory of royalty. The great Plague,3 the fire of London,4 and the Popish Plot5 occasioned very many proclamations. The proclamation against tumultuous petitions points to the division of the nation into distinct political parties at the end of Charles II.'s reign, and the growing bitterness between them.6 Proclamations were issued against Monmouth and his supporters;7 and it was James II.'s proclamation of the Declaration of Indulgence which set in motion the sequence of events which brought about the Revolution.8 After the Revolution we get the proclamation of war with France,9 a series of measures directed against Popish recusants and adherents of James II.,10 and many orders necessitated by the recoinage.11

Footnote 10: Did nos. 4370-3485 (1659); 3491, 3492 (1667).

Footnote 11: Did nos. 4464 (1695); 4176-4169 (1695-1696); 4188 (1696); 4225 (1697-1698); 4264 (1695); 4177 (1695-1696); 4225 (1697-1698); 4267 (1699); 4307 (1701-1702).

Footnote 12: Did nos. 4405 (1664); 4177-4169 (1695-1696); 4198 (1696); 4225 (1697).

Footnote 13: Did nos. 4060 (1690-1691); 4075 (1691); 4098 (1692); 4112 (1692-1693); 4144 (1694); 418F (1695-1696); 4218 (1696-1697); 4284 (1700-1701); 4299 (1701-1702).

Footnote 14: Did no. 3494 (1667).

Footnote 15: Did nos. 3402 (1679); 4267 (1697); 4276 (1698); 428 (1697-1698); 4272 (1699); 4276 (1699); 4307 (1701-1702).

Footnote 16: Did nos. 4406 (1695); 4177-4169 (1695-1696); 4198 (1696); 4225 (1697).

Footnote 17: Did nos. 3405 (1664); 3566 (1672); 4032 (1689-1690); 4058 (1690).

Footnote 18: Did nos. 4060 (1690-1691); 4075 (1691); 4098 (1692); 4112 (1692-1693); 4144 (1694); 418F (1695-1696); 4218 (1696-1697); 4284 (1700-1701); 4299 (1701-1702).

Footnote 19: Did nos. 3494 (1667).

Footnote 20: Did nos. 3402 (1664).

Footnote 21: Did nos. 3405 (1664); 3566 (1672); 4032 (1689-1690); 4058 (1690).

Footnote 22: Did nos. 3405 (1664); 3566 (1672); 4032 (1689-1690); 4058 (1690).

Footnote 23: Did nos. 4060 (1690-1691); 4075 (1691); 4098 (1692); 4112 (1692-1693); 4144 (1694); 418F (1695-1696); 4218 (1696-1697); 4284 (1700-1701); 4299 (1701-17The Proclamations

payment at a future date;1 and there was no special provision for sick or disabled sailors. The scandals denounced in the statute book, and graphically described by Pepys,2 were to a large extent removed after the Revolution.3 William III. founded Greenwich Hospital for disabled sailors; and both the executive and the legislature made regulations as to its administration.4 The trade of fishing, which furnished valuable recruits for the navy, was encouraged;5 and, in 1660-1661 and the two following years, the Political Lent was ordered to be observed.6 The Navigation Acts were enforced by one proclamation,7 and, by another, provision was made for the erection of lighthouses on the North and South Forelands.8 Other proclamations provide for the digging of saltpeter,9 and prohibit its export.10 Another prohibits the export of cannon.11 A proclamation of James II. contains regulations for the behaviour of the soldiers,12 and a proclamation of William III. deals with false muster rolls by which officers drew pay for non-existent soldiers.13 The absence of any special provision for mained soldiers at the beginning of Charles II.'s reign, is illustrated by a proclamation of 1660-1661, which ordered that their parishes should relieve soldiers, who came provided with recommendations signed by certain persons named therein;14 and the foundation of Chelsea Hospital for their relief is alluded to in a proclamation of 1684-1685.15

Footnote 1: See 18, 19 Charles II. c. r SSS r, 8; and Pepys, Diary (Wheatley's ed.) vii 35o-35f for his successful defence before Parliament of the payment of the men by ticket in 1667-1668.

Footnote 2: Diary vg ; ibid at p. r07 he writes, " Did business, though not much, at the office; because of the horrible crowd and lamentable moan of the poor seamen that lie starving in the streets for lack of money"; ibid vi 220, " this day a poor seamen, almost starved for want of food, lay in our yard z-dying. I sent him half-a-crown, and we ordered his ticket to be paid."

Footnote 3: 9 William III. c. at SS 6 dealt for the first time with the abuse arising from the giving by seamen of a power of attorney to receive their wages, and coupling it with a will making such atomwise their executors.

Footnote 4: Tudor and Stuart Proclamations i no. 4227 (r606-1697); 7; 8 William III. c. 2r; 8, 9 William III. c. 2s.

Footnote 5: Tudor and Stuart Proclamations i nos. 3235 (r660); 3325 (1661).

Footnote 6: Ibid nos. 3287 (1660-r661); 3330 (r661); 3376 (r602-1603); 3390 (r663-r664); for the Political Lent see vol. iv 300, 328.

Footnote 7: Ibid no. 3363 (1662). 8 Ibid no. 3360 (1662). 9 Ibid no. 3464 (1660). 10 Ibid no. 3395 (1663-1664); 4019 (r689).

Footnote 10: Ibid no. 3730 (1681). 13 Ibid no. 3815 (1685).

Footnote 11: Ibid no. 4008 (1689).

Footnote 12: Ibid no. 3272 (1650); in 1662 two statutes were passed to raise money for soldiers who had fought for the king, 14 Charles II. cc. 8, 9; and provision was made for taking the accounts of its expenditure by 22, 33 Charles II. c. 2r.

Footnote 13: Ibid no. 3762 (r684-1685).

Footnote 14: Ibid no. 3762 (r684-1685).

Footnote 15: Ibid no. 3762 (r684-1685).

Footnote 16: Ibid no. 3762 (r684-1685).

Footnote 17: Ibid no. 3762 (r684-1685).

Footnote 18: Ibid no. 3762 (r684-1685).

Footnote 19: Ibid no. 3762 (r684-1685).

Footnote 20: Vol. vi,--20

### The Enacted Law

of these proclamations aimed at suppressing the export of raw material, especially wool,1 and the import of foreign manufactured articles. At different periods glass,2 paper,3 alum,4 needles,5 aertheware,6 buttons,7 iron-wire,8 and cordage,9 got protection. In further pursuance of this policy of encouraging native manufactures, regulations were made for ensuring good quality in the articles produced. Thus powers of supervision over their respective crafts were given to the company of starch-makers,10 to the company of horners,11 to the company of water-men,12 and to a society of frame-work knittters,13 In addition, the export of the machines used by the frame-work knittters was prohibited.14 Foreign trade was still, as we shall see, in the hands of trading companies, which had exclusive powers of trading, and large powers of control. There are many proclamations which regulated the admission to these companies,15 and upheld their privileges, especially their privileges of exclusive trade.16

Footnote 14: http://www.stsci.edu/~The Proclamations 307

gistering Policys of Assurances in London "; \[1\] and the growth of the practice of banking, from an allusion to the Gold-smiths' loans to the king,\[2\] which is made in a proclamation called forth by a run upon them, consequent upon the presence of the Dutch fleet in the Medway.\[3\] From proclamations of William III.'s reign as to the issue of Exchequer Bills,\[4\] we can see the beginnings of those new forms of property which originated in shares in trading companies, and were fostered by the growth of a national debt.\[5\]

It is principally in connection with commerce that proclamations relating to the over-sea possessions of the crown and the colonies make their appearance. The possession of Tangier led to treaties with other powers on the African coast.\[6\] The policy of the statutes directed to the securing of the colonial trade for England was strictly enforced.\[7\] The practice of "spiriting" persons away to the colonies, which had existed during a large part of the seventeenth century,\[8\] was repressed ; and regulations were laid down as to the shipment of persons who had contracted to serve there.\[9\] The policy of giving a tobacco monopoly to America was maintained.\[10\] The colonization of Jamaica was encouraged by the promise of grants of land and other privileges to those who settled there;\[11\] and the colonization of America by the transportation of vagabonds and other undesirable persons.\[12\] The "The Enacted Law"

The settlement of St. Christopher, after its restitution by the French, was regulated by a proclamation of 1671;1 and the grant of Pennsylvania to Sir W. Penn is recorded in a proclamation of 1681.2

The Proclamations 309 to emerge. In 1667-1668 the following rules were made to protect English harbours from foreign belligerents and privateers.1 There shall be no hostilities in English ports, havens, roads, or creeks between foreign belligerents. Offenders are confiscate _ipso facto_, any commission notwithstanding. 2. Foreign men-of-war are not to hover round our ports to surprise merchanten. Trade and commerce is to be protected. 3. If a merchant ship and an enemy warship be in English ports together, the merchant is to be allowed to go out two tides before the warship. Two opposite men-of-war not to go out together. 4. All ships victualling for sea to be visited and war-like vessels detained. 5. Foreign privateers with prizes not to stay more than twenty-four hours in any port, and not to break bulk or sell any prize goods. They are not to be meddled with except the prizes contain the goods of English subjects. 6. No goods are to be bought from foreign ships except through the customs, on pain of forfeiture as _bona priatum_. 7. No English subject is to engage in any foreign quarrel without licence from the King, the L. High Admiral, etc." These rules were in substance repeated in a proclamation of 1676;2 and, from a proclamation of 1684,3 it appears that the rule that enemy ships make enemy goods had been expressly provided for in several treaties.

Footnote 1: Tudor and Stuart Proclamations i no. 351z.

Footnote 2: Ibid no. 363i. 3 1 Ibid no. 3758.

Footnote 3: Ibid no. 3245 (1660); 376 (1679-1680); for earlier measures of repression see vol. iv 304; vol. v 199-201.

Footnote 4: Ibid no. 3245 (1660); 376 (1679-1680); for earlier measures of repression see vol. iv 304; vol. v 199-201.

Footnote 5: Tudor and Stuart Proclamations i no. 3364 (1662); for the history of this belief see Leckky, History of England in the Eighteenth Century i 83-90; the power was never exercised by the Hanoverian kings, though it was supposed still to belong to the Staurts, Ibid 276-278.

Footnote 6: Tudor and Stuart Proclamations i nos. 3253 (1660)--a fire at Southwold; 3266 (1660)--a fire at Milton Abbas; 331z (1662)--for the Protestants of Lithuania; 3509 (1667)--fire at Bieseter; 3516 (1667)--668), 3537 (1679)--redemption of captives at Algiers; 363z (1676)--fire at Southwark; 3379 (1682-1683)--fire at Wapping; 376z (1684)--Chelsea Hospital; 3826 (1685-1680)--French Protestants; 3993 (1689) --Irish Protestants; 4055 (1690)--Teginmouth and Shaldon which had been plumdered by the French; 4274 (1690)--fire at Wolverhampton; 4279 (1700)--fire at Bermondsey; for earlier proclamations of a similar kind see vol. iv 306.

Of the many new developments that were taking place during this period in manners and social life, the proclamations continue to give valuable illustrations. Duelling was still prevalent on small provocation, and proclamations continued to appear against it.4 It was still believed that the king's touch would cure the disease that went by the name of the King's Evil; and rules, to be published in every market town, were made as to the times at which the ceremony was to take place.5 Very many briefs, authorizing charitable collections for deserving objects of very various kinds both at home or abroad, continued to be published all through this period;6 and the success of one of these collections, made in 1685-1686, for the distressed Protestants of France, was not very pleasing to James II.1 The Post Office was reorganized, and was proving to be a valuable source of revenue. We find, therefore, many proclamations as to the rates of conveyance, and the arrangements for the supply of post horses.2 The increased trade and prosperity of the country was beginning to put a severe strain upon the existing machinery for maintaining the highways. The increased size of the waygons cut up the inadequate roads; and both the executive and the legislature still attempted the hopeless task of trying to limit the size and weight of the carriage, instead of re-making the roads.3 The same causes put an equally severe strain upon the machinery for keeping the peace; and so both the proclamations and the statutes testify to the boldness with which highway carried on their depredations all over the country.4 The continued need for more stringent regulations as to buildings in London was recognized.5 Something was done after the great fire by the legislature,6 and by the orders, made in accordance with statutory powers then given, to widen the streets, to provide for a regular building line, and to ensure substantial building.7 Some attempt also was made to provide for the cleansing of streets of some parts of London;8 and regulations were made for the licensing and hiring of hackney coaches.9

Footnote 19 The Proclaimations

demand his money back if he left before the end of the play ; " and forasmuch as 'tis impossible to command those vast engines (which move the scenes and machines) and to order such a number of persons as must be employed in works of this nature, if any but such as belong thereunto be suffered to press in amongst them," no one was allowed to go on to the stage or behind the scenes.1

Footnote 1: Tudor and Stuart Proclaimations i no. 3588 (1673-1674); there is also an earlier proclamation of 1670, no. 3536.

Since the control of the Press, and the reporting of news concerning the government, were still regarded as being essentially matters which were under the control of the prerogative,2 problems connected with the Press and the dissemination of news continue to be fully illustrated by these proclamations. The publishing or reporting of any sort of matter concerning the government without licence was considered to be an offence,3 and in 1668 the sale of news books, gazettes, or pamphlets to hawkers, to cry about the streets, was forbidden.4 In 1686-1687 it was resolved to license pedlars, to prevent them from dispersing scandalous books ;5 and in 1688 they were forbidden to sell any books.6 It was upon the Stationers Company that the government chiefly relied to carry out their orders as to the control of the Press ;7 and in 1679 a proclamation was issued, approving their order that no book should be published which did not bear upon it the printer's or publisher's name.8 Sometimes proclamations were issued to protect copyright 9--thus in 1671 one was issued to prevent the infringement of a privilege granted to Edward Atkyns for the printing of books concerning the common law.10 There were other ways, besides the Press, in which news or criticism distasteful to the government was published. During the Commonwealth the coffee-houses had become important centres of social, literary, and political life ; and from them news, criticisms, and rumours were quickly disseminated. "People generally believed," says Clarendon,11 " that those houses had a charter of privilege to speak what they would,

### The Enacted Law

without being in danger to be called in question." In 1666 the licence then assumed by them had attracted the attention of the king. Clarendon recommended, either their suppression, or the employment of spies. The king seemed inclined to take the former course; but, to Clarendon's chagrin, he was dissuaded by Coventry.1 However, in 1675; they were suppressed.2 But this raised such an outery that the proclamation was recalled, on condition that the coffee-house keepers entered into recognizances to prevent scandalous papers or libels from being brought to their houses, or read in them, and gave information within two days of any scandalous reports circulated there.3

Footnote 1: Life (ed. 1843) 1100. He pointed out that the prohibition of the sale of coffee would be bad for the revenue; and also, " that it had been permitted in Cromwell's time, and that the king's friends had used more liberty of speech in those places than they dust do in any other; and that he thought it would be better to leave them as they were, without running the hazard of ill being continued, notwithstanding his command to the contrary."

Footnote 2: Tudor and Stuart Proclamations i no. 3622; the legality of this course was exceedingly dubious; and so recourse was had to the idea that, being nuisances (above 303 n. 2), they could be suppressed; North, Lives of the North s i 198, says, " His lordish upon the main thought that retaining of coffee might be an innocent trade; but as it was used to nourish addition, spread lies, scandalize great mean and the like, it might also be a common nuisance"; for the discussions on this subject see S.P. Dom. 1675:1676 496-497, 500, 502; cp. North, Examen i38. 3 Tudor and Stuart Proclamations i no. 3625.

Footnote 3: For Joseph Keble see below 557-558.

We shall see that many of the topics covered by these proclamations were dealt with more fully, either by statutes, or by the rules of the common law. With the rules of the common law I shall deal in the following chapter and in the Second Part of this Book. Here we must consider the results achieved by the statutes of this period.

The editions of the statutes during this period are not very numerous. In 1667 the king's printer issued an edition of the statutes at large then in force, from 16 Charles I. to 19 Charles II., together with the titles of those expired or repealed, and an index. In the same year Thomas Manby issued a similar work, based on Pulton's edition of the statutes. He gave an abridgment of the statutes expired and repealed, and the titles of the private Acts. In 1670 this was brought up to date, and issued with Pulton's Statutes; and in 1673 the same author issued a short abridgment of the statutes of Charles I. and II.'s reigns under alphabetical heads. It was preceded by a chronological table of the statutes public and private, and followed by lists of the lords spiritual and temporal and members of the House of Commons.4 In 1676 we have the first issue of Joseph Keble's4 edition of the

**COMMERCE AND INDUSTRY 313**

**statutes from Magna Carta to the present time. The statutes were printed in paragraphs ; the heads of** **Pulton's and Rastell's** **Abridgments, and references to the reports and other legal works, were inserted in the margin ; and the titles of statutes expired, repealed, altered, or out of use were inserted. Further issues bringing it up to date were made in** **168i,** **1684,** **1695, and** **1706.**

**With the contents of the important statutes relating to public law I have already dealt. Of the rest, the largest group relates to commerce and industry ; and with them I shall deal in the first place. The statutes which extend or modify old rules, or create new rules of law, are not, as a whole, of the first importance. The only statutes which effected important permanent modifications of the law are the statute abolishing the military tenures, and the statutes of Distribution with which I have already dealt ; 1 the statutes which regulated the Press ; and the statute of Frauds, which, as we shall see, was chiefly important for the beneficial changes which it made in the law of evidence. In the second and third place, therefore, I shall deal with the statute law relating to the Press, and the statute of Frauds. Fourthly, I shall briefly summarize the other statutes which modified existing branches of law ; and, lastly, I shall say something of the reasons for the striking absence of any great legislative reforms at the Revolution.**

Footnote 1: Vol. iii 45, 51, 67, 67, 559-653.

Footnote 2: See Charles II,'s Instructions for the Council of Trade, S.P. Dom, xxi 27, printed by Cunningham, op, cit. iii 973-975.

#### 1.4.1 Commerce and Industry

\*\*Throughout this period the legislation upon these topics is inspired by aims very similar to those which inspired the legislation of the preceding period.**2** **The changes which can be observed are due, not to difference of aim, but to differences in the political machinery of the state, and in the economic machinery of commerce and industry. I shall therefore deal with the legislation upon these topics under somewhat the same heads as I dealt with it in the preceding period ; 3 and, in conclusion, I shall point out the significance of the effects which the changed political and economic machinery were beginning to have upon political and economic theory. The subject will fall under the following heads : (1) National defence ; (2) Colonial trade ; (3) Foreign trade and native industry ; (4) Agriculture, the .prices of food, and wages ; (5) the Poor Law.**

### 814 The Enacted Law

(1) _National Defence._

In Charles II.'s reign the militia was reorganized; \[1\] and, after the Revolution, we reach the period of standing armies governed by the Mutiny Acts.\[2\] But, in this period as in the last, it was the navy to which the legislature paid the most attention. Naval discipline,\[8\] the care of naval stores,\[4\] the encouragement of volunteers, the organization of Greenwich hospital,\[5\] the examination of abuses in the management of the navy and of the accounts of money voted for the navy,\[6\] provision for the repair of harbours,\[7\] and provision of carriage for ordonnance and naval stores \[8\]--are all the occasion for lengthy statutes. But we are here concerned, not with the statutes dealing directly with naval organization, but with the manner in which the navy and the other forces of the crown were indirectly encouraged by the regulation of commerce and industry.

It was easier to encourage the navy by such legislation than the army. But there are two sets of measures which operated in favour of both. Firstly, encouragement was given to the manufacturers of munitions of war. In 1660 \[9\] the manufacturers of gunpowder were encouraged by a permission to export if the price did not exceed a certain amount--with the proviso, however, that the king could at any time forbid its export, or the export of arms and ammunition. In 1685 \[10\] the manufacturers of gunpowder and other munitions were still further encouraged by the prohibition of their import without royal licence. Secondly, as in the preceding period,\[11\] the crown did all it could to encourage the production of saltpretre. In 1694 it was allowed to be freely imported for one year in English ships, and the maximum price at which it could be sold was fixed.\[12\] Companies which set out to produce it were incorporated. But they had very little success.\[13\] The most valuable source of supply was found to be the East Indies ; and a proviso was inserted in several of the East India Company's charters that it should sell the crown a fixed quantity of saltpretre each year at a fixed price.\[14\]

The measures passed to encourage the naval strength of the

## 11 Commerce and Industry

### 11.1 Commerce and Industry

The Commerce and Industry are the most important ones to understand the nature of the commerce and the nature of the commerce and the nature of the commerce and the nature of the commerce. The Commerce and Industry are the most important ones to understand the nature of the commerce and the nature of the commerce and the nature of the commerce. The Commerce and Industry are the most important ones to understand the nature of the commerce and the nature of the commerce.

### The Enacted Law

on every voyage of men who had never made a voyage before.1 It is true that none of these societies or companies were financially successful. But they no doubt gave employment and training to a number of seamen, and so increased the class upon whom the navy was accustomed to draw.

Footnote 1: I o William III. c. 14 SS 9. "Every master of a by-boat or by-boats shall carry with him at least two fresh men in six, viz. one man that hath made no more than one voyage and one man who hath never been at sea before. ... And further that all masters of fishing shing shall carry with them in their ships' company at least one such fresh man that never was at sea before in every five men they carry."

Secondly, the encouragement of the mercantile marine. In 1662 2 and 1670-1671 3 the building of ships of certain dimensions and with a certain armament was encouraged, by giving to their owners a rebate on the customs payable on goods imported in them on their first two voyages; and in 1694 another similar Act was passed which gave even better terms.4 In 16856 foreign built ships employed in the coasting trade were made liable to extra duties. Then, too, the legislation passed for the prevention of the too easy surrender of ships to privateers, either by cowardice or by collusion,6 and for the better suppression of piracy,7 was obviously designed to help the mercantile marine against some of the most prevalent dangers which at that period it was called upon to face. But the most famous of all the measures passed to encourage English shipping was the Navigation Act of 1660.8 Of its provisions and effect I must speak at somewhat greater length.

Footnote 2: I o William III. c. 14 SS 9. "Every master of a by-boat or by-boats shall carry with him at least two fresh men in six, viz. one man that hath made no more than one voyage and one man who hath never been at sea before. ... And further that all masters of fishing shing shall carry with them in their ships' company at least one such fresh man that never was at sea before in every five men they carry."

Footnote 3: I o William III. c. 14 SS 9. "Every master of a by-boat or by-boats shall carry with him at least two fresh men in six, viz. one man that hath made no more than one voyage and one man who hath never been at sea before. ... And further that all masters of fishing shing shall carry with them in their ships' company at least one such fresh man that never was at sea before in every five men they carry."

Footnote 4: I o Charles II. c. 14 SS 9. "Every master of a by-boat or by-boats shall carry with him at least two fresh men in six, viz. one man that hath made no more than one voyage and one man who hath never been at sea before. ... And further that all masters of fishing shing shall carry with them in their ships' company at least one such fresh man that never was at sea before in every five men they carry."

Footnote 5: I o Charles II. c. 14 SS 9. "Every master of a by-boat or by-boats shall carry with him at least two fresh men in six, viz. one man that hath made no more than one voyage and one man who hath never been at sea before. ... And further that all masters of fishing shing shall carry with them in their ships' company at least one such fresh man that never was at sea before in every five men they carry."

Footnote 6: I o Charles II. c. 14 SS 9. "Every master of a by-boat or by-boats shall carry with him at least two fresh men in six, viz. one man that hath made no more than one voyage and one man who hath never been at sea before. ... And further that all masters of fishing shing shall carry with them in their ships' company at least one such fresh man that never was at sea before in every five men they carry."

Footnote 7: I o Williams III. c. 14 SS 9. "Poly.

## 10 Commerce and Industry

policy of that Act was followed in the more stringent Act of 166o. The Act, in effect, provided that no goods should be imported from countries in Asia, Africa, or America, whether in the possession of the crown or not, except in English ships, the master and three fourths of the mariners of which must be English.1 No alien could exercise the trade of a merchant or factor in any of the Plantations.2 Goods of foreign growth, production, or manufacture, must be imported only from the countries where they were grown, produced, or manufactured.3 Fish imported, which had not been caught by the owners of the vessels importing, must pay double custom.4 No alien ship could take part in the coasting trade.5 Exemptions from customs duties given to English ships were only to be enjoyed by ships of which the master and three fourths of the crew were English.6 Provisions were made for the registration of foreign ships purchased by Englishmen, and the issue of certificates that they were entitled to the privileges of an English ship;7 but, in 1662, with a view to encourage the shipbuilding industry, the privileges given to English ships manned and owned by Englishmen were confined to ships built in England or the Plantations.8 Certain enumerated commodities, produced in the English Plantations, were to be shipped only to other English Plantations or to England;9 and ships sailing from England to the Plantations must give a bond that they would convey goods loaded in the Plantations to England.10 Conversely, in 1663, it was enacted that no commodity grown, produced, or manufactured in Europe should be imported into the Plantations, unless shipped in England on an English ship manned as provided by the Act of 166o.11 These rules were further enforced by an Act of 1695-1696, which provided that no goods should be imported into or exported out of 24o n. 3 There were occasional but only occasional dispensations from these Acts, and generally only in time of war in the interest of national defence, L.Q.R. xxxvii 420, 422-423.

Footnote 57: The author is grateful to the referees

### 318 The Enacted Law

any Plantation in Asia, Africa or America, or should be carried from one port in a Plantation to another, or to England, except in English ships manned as provided by the Act of 166o.1

Footnote 1: 1, 8 William III. c. 22; amended by g William III. c. 42; for the discussions of the former Act see House of Lords MSS. ii 233-234 no. 1047.

The chief object of the Act of 166o was, " the increase of shipping and the encouragement of navigation of this nation, wherein, under the good providence and protection of God, the wealth, safety and strength of this kingdom is so much concerned."2 All the evidence goes to show that it succeeded in attaining this object. Contemporary opinion is unanimous that it was the main cause of the rapid increase of our mercantile marine during this period.3 No doubt the framers of the Act hoped that this increase would take place at the expense of the Dutch, and enable England to capture a share of their carrying trade.4 There is, however, no evidence that Dutch trade or shipping was seriously damaged by the Act; and there is some evidence that it actually damaged our Baltic and Scandinavian trade, and our colonial sugar trade, owing to the fact that the number of our ships did not suffice for all the branches of our foreign and colonial trade.5 It might therefore be thought that the Act was injurious to our trade, and was, commercially, a mistake. But so short-sighted a view was not taken by the statesmen of those days. The objects which the Act set out to attain were not only the wealth, but the safety and strength of the kingdom. The increase of English shipping which it caused increased English sea power, and so ensured the safety and strength of the kingdom by diminishing the danger of Holland's naval power.6 And,

## 11 Commerce and Industry 319

though the Act may have for some time injured rather than benefited England's wealth, in the long run it probably benefited it; for, it so increased England's mercantile marine that, when, in the eighteenth century, Holland's commercial prosperity declined, England was able to capture the carrying trade which Holland formerly possessed. The Act itself, and the steady adherence to its policy, is almost the'only bright spot in the statesmanship of the Restoration period. The statesmen of this period, though often both immoral and corrupt, did fix their eyes firmly on the maintenance of England's sea power. They did not hesitate to sacrifice immediate commercial gain to attain this object; and, having attained it, they ultimately attained all. From this point of view both their patriotism and their foresight compares very favourably with the patriotism and the foresight of some of those party politicians who, in the years before the Great War, had usurped the places formerly occupied by statesmen.1

Footnote 1: The somewhat short-sighted view of professional economists is illustrated by the following passage from Cunningham, opc. cit. 364, 365--the italics are mine. " The evidence as to the malign effects of the Act of Navigation, not only on the Baltic Trade, but on the Sugar Colonies and also on the royal revenue is such, that we can only wonder at the persistence with which the Council of Trade adhered to it. _It may have had incidental advantages of which we can hardly judge_, but we are forced to suppose that in the opinion of experts it was serving its purpose, and did contribute to the rapid increase of the mercantile marine which occurred during the latter half of the seventeenth century"; this passage may usefully be compared with the following passage from Child's Discourse of Trade (1694) 173, which is as true now as when it was written: " Being in a good condition of strength at home, in reference to the navy, and all other kind of military preparations for defence (and

### The Enacted Law

## 6 Commerce -and Industry

making of England a staple for goods exported from and imported into the colonies--was carried out. It is clear that its realization was a task which required delicate handling, because it was necessary to reconcile the somewhat conflicting interests of England and the colonies. The political and economic strength of England was to be increased ; but that must be effected without impeding the economic development of what were as yet but infant communities. This delicate task was on the whole performed very successfully. The advantages given to England, and the advantages, either given to the colonies by legislation, or accruing to them by reason of their connection with England, helped forward the political and economic growth of both.

England secured very real and definite advantages. We have seen that certain enumerated products of the colonies could be exported only to England ; and that goods of European manufacture could only be imported from England \[1\]. In addition, in 1698, the English wool manufacture was protected against the competition of any rival manufacture in the colonies, by the prohibition of the export of the woollen manufactures of any American colony to any other colony or any other place whatsoever \[2\]. "The object," as Sir William Ashley has said, "was to prevent all manufacture for a distant market, while not interfering with manufacture within the family, or for purely local needs \[3\]. " One or two other Acts, dealing in a similar manner with other manufactures, were passed in the eighteenth century \[4\]. At first sight it might seem that all this legislation imposed, for the benefit of England, a whole series of very serious disadvantages on the colonies. But Sir William Ashley has shown that the disadvantages have been much exaggerated \[5\]. There were many articles, other than those enumerated, which the colonies could export to whatever place they liked \[6\], and the Acts relating to colonial manufactures caused no great hardship, because it is not probable that, even if they had not been passed, there would have been any great development of colonial manufactures \[7\]. Moreover, as we shall now see, the English legislation and the English connection secured to the colonies very substantial compensating advantages.

In the first place, the policy of the Navigation Acts secured

### The Enacted Law

to the colonists and to colonial ships the advantages which were enjoyed by Englishmen and English ships.1 Consequently, in some of the colonies, particularly in New England, an active shipbuilding industry was created. "American shipbuilding was allowed to develop under the stimulus it received from the opportunity of employment in English trade;"2 and this policy was adhered to in spite of the protests of the English shipbuilders.3 Further, by an Act of 1662, some of the colonial products were protected by a prohibition of imports from the Netherlands or Germany;4 and, in the eighteenth century, the import of colonial pitch, tar, hemp, masts, and spars was encouraged by a bounty, in order that England might be independent of foreign countries for a supply of these essential naval stores.5 In the second place, the trade of certain of the colonies was directly encouraged by the prohibition of the growth of tobacco in England,6 and by the imposition upon tobacco grown elsewhere of duties three times as high as those levied on colonial tobaccos.7 In the third place, the colonists were indirectly benefited by the protection of the English navy, and by the opportunities of gaining an entry into fresh markets which were opened up by the naval victories of the second quarter of the eighteenth century.8 In the fourth place, English capital helped to develop the natural resources of the American colonies. "The progress," says Adam Smith, "of our North American and West Indian colonies, would have been much less rapid, had no capital but what belonged to themselves been employed in exporting their surplus produce."9

Footnote 1: Above 317.

Footnote 2: Cunningham, op. cit. ii 480; Ashley, op. cit. 313, 314--"When we recall Child's lamination over the inferiority of English ships in point of construction and ease of navigation, and the much lower freight rates which the Dutch were able to offer for this and other reasons, it certainly seems very probable that, but for some such forcible exclusion of foreign ships, the development of New England ship building would have been retarded by half a century or more."

Footnote 3: ddagger}$ Iq. Charles II. c. rr SS23--enumerating spicery, grocery, tobacco, potash, pitch, tar, salt, rozen, deal boards, fir, timber, and olive oil.

Footnote 4: Ashley, op. cit. 328-329; Cunningham, op. cit. ii 485-486, and the preamble to 3 and 4 Anne c. toc, there.

Footnote 6: zz Charles II. c. 34; r5 Charles II. c. 7 SS5; 22, 23 Charles II. c. 46; that this prohibition was unpopular appears from Pepys, Diary yii 117-138; he writes, "She tells me how the lifeguard, which we thought a little while since was sent down into the country about some insurrection, was sent to Wincomb, to spoil the tobacco there, which it seems the people there do plant contrary to law, and have always done;" see vol. iv. 340.

Footnote 7: Ashley, op. cit. 378.

Footnote 8: Wealth of Nations, Bk. iii chap, i; cp. Ashley, op. cit. 331-332, citing Burke's speech on American taxation.

There is therefore some ground for contending that a large measure of success attended the efforts of the legislature so to

## 6 Commerce and Industry

regulate the colonial trade that it benefited both the sea power and the commerce and industry of the mother country and the colonies. But we should observe that this policy was pursued, not by entrusting this trade to one of those companies which had flourished in the preceding period,1 but by general statutes.2 Both the objects at which the legislature aimed in its regulation of the colonial trade, and the methods which it adopted to attain them, tell us something of the policy which it pursued in relation to the foreign trade of the country, and in relation to its native industry.

Footnote 1: Vol. iv 319-320.

Footnote 2: "Though several of the trading Companies survived the Revolution, they no longer served as a satisfactory medium for enforcing rules of trade, as they had done in the times of Elizabeth; the plantation trade could be controlled, without being confined to a privileged body of merchants, through the machinery of the Navigation Acts," Cunningham, op, cit. 472.

(3) _Foreign trade and native industry._

We have seen that the commercial legislation of the Tudor and early Stuart period, and the commercial policy pursued by the Tudor and early Stuart kings, had given England the control of her own foreign trade,3 had made London a financial centre comparable to the commercial cities of the Netherlands,4 and had encouraged the growth of native manufactures.5 These had been the broad results of a commercial policy which aimed, not unsuccessfully, at organizing both external and internal trade, and all branches of industry, with a view to the maintenance and increase of national strength. Throughout this period the same policy was pursued.6 But the constitutional changes, which resulted from the Rebellion and the Revolution, left their marks upon the machinery for enforcing obedience to this commercial legislation, and encouraged the growth of differences of opinion as to the best means of attaining the desired results. The fact that the power yielded by the executive government was diminished by the Rebellion, and still further diminished by the Revolution, left its mark upon the machinery by which this policy was enforced; and the advent of party government encouraged discussions and differences of opinion as to the kind of legislation which would best conduce to the maintenance and increase of national strength. In the first place, therefore, I shall illustrate from the legislation of this period the essential continuity of the commercial policy pursued; and, in the second place, the modifications in the manner in which it was pursued, which resulted from constitutional changes in the state.

### The Enacted Law

(i) The essential continuity of the policy pursued.

In its endeavours to promote commerce and industry, the legislature did not neglect such essential matters as the improvement of means of communication, and the maintenance of the purity of the coinage.

The roads in many parts of England were, during this period and later, a disgrace;1 but, throughout this period, we find both general2 and local 3 acts which gave powers to make and repair roads, and sometimes to defray the cost by a toll charged upon those who used them.4 Throughout this period the Post Office was supplying a very real need for a means of communication,6 and was proving to be a valuable source of revenue. It was regulated by statute, and the charges which it was authorized to make were fixed.6 But, for some time, the Post Office only carried letters to distant places in England or abroad. Private companies were formed to convey letters to or from different parts of London. Thus a company was formed in 1680, which instituted a penny letter post for the collection and delivery of letters within the Bills of Mortality. But the Duke of York, in whom the profits of the Post Office were tested, threatened legal proceedings; and the company was dissolved. A second company began operations in 168 t under the management of Dockwra. Legal proceedings were taken against it; and, as a result, the Post Office took over the concern, and retained Dockwra to manage it.7

Footnote 1: Cunningham, op. cit. ii 535-539.

Footnote 2: 14 Charles II. c. 6; 22 Charles II, c. 12; 3 William and Mary c. 12; 7, 8 William III. c. 29.

Footnote 3: 14 Charles II. c. 2; 21 Charles II. c. xiv and r6, r7 Charles II. c. xix (Hertford, Cambridge and Huntington); 7, 8 William III. c. 26 (Norfolk); 9 William III. c. 18 (Gloucester).

Footnote 4: 7, 8 William III. c. 26; 9 William III. c. 18.

Footnote 5: 15 Petty says that, during the last forty years, " the postage of letters have increased from one to twenty," Economic Writings (ed. Hull) 305.

Footnote 6: 22 Charles II. c. 35.

Footnote 7: Scott, Joint Stock Companies iii 43-51.

Footnote 8: Cunningham, op. cit. ii 432.

Footnote 9: 18, 19 Charles II. c. 5; 25 Charles II. c. 8; r James II. c. 7; modified by 7, 8 William III. c. 13, which was repealed by 8, 9 William III. c. 1.

By the end of the century the currency had become very bad. This was the result, not of debasement,8 but of the permission to export bullion given in 1663,9 and of the practice of coining gold and silver without charge.10 A change in the value of gold and silver might make it profitable to export them, or melt them down for sale to the silver and gold smiths. The result was that only the lightest pieces remained in circulation; and they were often made lighter by clipping. Hence great difficulties arose in the conduct of business. "Great contentions do daily arise amongst the

**COMMERC AND INDUSTRY 825**

king's subjects in fairs, markets, shops, and other places throughout the kingdom about the passing or refusing of the same, to the disturbance of the public peace ; many bargains doings and dealings are totally prevented and laid aside, which lessens trade in general ; persons before they conclude in any bargains are necessitated first to settle the price or value of the very money they are to receive for their goods."1 This state of things was remedied by the recoimage of 1696.2 The cost, amounting to $\\not!!The Enacted Law

ment of their prohibition of the import into Flanders of English woollen manufactures. But though the crown had ceased to be able to impose or remit customs duties, or to remove prohibitions on import or export imposed by Act of Parliament, it still possessed large powers to regulate foreign trade. The extent of this prerogative was exhaustively discussed in 1684 in the case of the _East India Company_ v. \_Sandys.\_1

Footnote 1: To S.T. 371. \*Ibid at pp. 524-530. \*All other nations have governed themselves by this principle; and upon this ground stands the court of Admiralty in this kingdom, viz. that there might be uniform judgments given there to all other nations in the world, in causes relating to commerce, navigation and the like. And in as much as the common and statute laws of this realm are too strait and narrow to govern and decide differences arising about foreign commerce, and can never be thought to bear any sort of proportion to the universal law of all nations, as the interests of all foreign trade do necessitate them to contend for; it will become us that are judges in Westminster Hall ... to ... take notice of the law of nations," zo S.T. at p. 529. \*Ibid at p. 533. \*Ibid at pp. 533. \*Ibid at pp.

## Commerce and Industry 827

A monopoly is a grant whereby persons are restricted of some freedom which they formerly possessed, or are hindered in their lawful trade.1 But it is clear that before the grant of this charter there was no liberty to trade to the Indies.2 This charter therefore cannot be said to create a monopoly. Moreover, the laws of foreign countries, which permit these societies, punish monopolies as severely as our own;3 and societies with these privileges have been allowed to be good both by Parliament, and by many famous lawyers of this and earlier centuries.4

Footnote 1: "A monopoly is an institution or allowance by the king, by his grant, commission, or otherwise, to any person or persons, bodies politic or corporate, of, or for the sole buying, selling, making, or using anything; whereby any person or persons, body politic or corporate, are sought to be restrained of any freedom or liberty they had before, or hindered in their lawful trade," to S.T. at p. 542.

Footnote 2: Ibid at pp. 542-543.

Footnote 3: Ibid at pp. 538, 542.

Footnote 4: "Such companies have been erected in England, and those companies have been in quiet possession of their privileges for such a number of years; they have passed the approbation of many learned men; they have been thought for the public advantage of the nation by so many kings and princes, with the advice of their council both in and out of parliament; all statutes and authorities of law that we can meet with in our books affirm it, and none that I can meet with oppose it," ibid at p. 552.

Footnote 5: "Above 315-316.

Footnote 6: to S.T. at pp. 546-547.

7 Ibid at pp. 538-539--"Such companies and societies ought to be continued and supported upon the natural equity and justice, that no other persons should be permitted either to reap the profit, or to endanger the loss of what hath been begun, and been carried on by them, with great hazard and expense"; cp. Child, A Discourse of Trade (r694) 102-103, r09.

8 Pt. II. c. 4 I. SS 4.

Footnote 8: Pt. II. c. 4 I. SS 4.

Footnote 9: Vol. iv 321-322.

It is clear that for the exercise of the particular prerogative called in question in the _East India Company_ v. _Sandys_ there was abundant authority. Moreover, as we have seen,8 and as Jeffreys points out, it could be justified both on grounds of public policy and on grounds of natural equity. On grounds of public policy, because it had been proved that the trade to India needed to be organized in some such way;6 on grounds of natural equity, because the Company had created forts, settled factories, and made treaties with native prices.7 We shall see that, for both these reasons, this particular Company retained its exclusive rights to trade, long after similar rights, formerly enjoyed by other companies, had disappeared.8

Footnote 8: It did at pp. 542-543.

We have seen that the law allowed that the crown had also certain powers over domestic trade.9 It could grant charters to corporate towns, giving them powers to regulate trade. It could grant the franchise of fair. And many of the franchises and privileges so granted involved an element of exclusion. Thus the right to trade in a particular town might be given to a particular body of persons; and, if a franchise of fair were granted, no rival fair could be set up within a certain distance. It is true that there might be a doubt as to how far the crown could make

### 828 The Enacted Law

new grants, similar in kind to some of those possessed by the older corporations, and legalized by long continued custom.1 But certain privileges it could clearly grant ; and, as Jeffreys pointed out in the _East India Company_ v. _Sandys_, all these rights and privileges really flowed from its power to regulate domestic trade.2 The fact that "inland traffic is most concerned either in corporations, markets, or fairs, which all proceed from the crown, does plainly evince that the king's prerogative has a more immediate influence over dealings in merchandizes than it has over other mechanic crafts and mysteries ; and that, as Mr. Attorney did well observe, to prevent frauds, deceits, and other abuses either in weights, measures, or otherwise, which would certainly interrupt such commerce."3

Footnote 1: Vol. iv 346 and n. 3.

Footnote 2: No S.T. at p. 524.

Thus, at the end of the Stuart period, the prerogatives of the crown over the regulation of trade, foreign and domestic, were, in theory, much the same as they were at the beginning of this period. But it should be noted that the object of the exercise of these prerogatives was somewhat different in the case of foreign trade to what it was in the case of domestic trade. In the case of foreign trade the great object was "to keep the balance equal between this and foreign countries."4 In the case of domestic trade one of the main objects of the crown was to secure skill in the workman and good quality in the articles produced.5 In neither case could the crown by its prerogative do all that was required. If the export trade was to balance the import, if the skill of the workman and the quality of the article produced were to be maintained, measures must be taken which only Parliament could sanction. With the statutes passed to secure these objects I shall deal in the two following sections :--

Footnote 3: "For foreign trade can never be of advantage to this kingdom, except the balance be kept equal between this and other countries; which can never be done, but by keeping up to proportional rules for the regulation thereof with other countries, ibid at p. 539.

Footnote 4: "Ibid at p. 524.

($\\mathit{\\theta}$) Measures taken to encourage native manufactures.

The most important of the native industries was still the manufacture of wool ; and manufacturers had no difficulty in getting what protection they considered necessary. One group of these statutes prohibited the export of raw materials used in this manufacture. In 16606 the export of wool, woolfells, yarn, and fullers earth was prohibited ; in 16627 the prohibition was repeated, and the penalties for disobedience were made more severe ; and other evasions of these Acts were dealt with in

**COMMERCES AND INDUSTRY 829**

1688,11695-1696,2and1697-1698.3A statute of 1698 4 protected the woollen industry from Irish, and, as we have seen,5 from colonial competition, by preventing the export of woollen manufactures from those places. With a view to increase the consumption of these manufactures, statutes of 1666 6 and 1678 7 made it necessary that corpses should be buried in woollen shrouds and coverings. The latter statute provided an elaborate machinery to secure obedience to the law. Clergymen were to keep a register of burials, and must get an affidavit that the Act had been complied with from the relatives of the deceased.8 These affidavits as well as the burials were to be registered.9

Other trades also were encouraged by endeavours to facilitate a cheap supply of the raw materials used by them. In 1662,10 in order to protect those who manufactured articles from leather, the export of ox skins or hides, tanned or untanned, was prohibited. But this protection was found to be disadvantageous to the farmers, and the Act was repealed in 1667-1668.11In 1662 11 the dyeing trade was encouraged by a repeal of the prohibition of the import of logwood.

Throughout this period, statutes were passed to encourage particular manufactures, by prohibiting the import of rival foreign products. We have seen that the wool trade got protection in this way against Irish and colonial products.13 In 1662 14 the import of foreign bone lace, cutwork, embroidery, bandstrings, buttons, and needle work was prohibited. In the same year 15 the import of foreign wool cards and iron wire was prohibited. In 1678 the import of a large number of French products was prohibited.16 This Act was repealed in 1685,17 and a tariff was imposed on French goods.18 But the policy of prohibition was revived in 1688 ;19 and it was continued till 1695-1696,20 when

### 830 The Enacted Law

a high tariff was substituted.1 In 16892 the silk trade was protected by a prohibition of the import of silk from Turkey, Persia, India and China ; and in 1696-16973 penalties were imposed on those who smuggled the varieties of silk known as Lustrings, and alamodes. In 1698-16994 restrictions were put upon the wearing or use of silks or calciocs imported from India.

Footnote 1: For the detailed history of this legislation see Ashley, Surveys Historic and Economic 272-284 ; below 340.

Footnote 2: 2: William and Mary c. g; modified by 5 William and Mary c. g. 3.

Footnote 3: 8, 9 William III. C. g; House of Lords MSS. ii 542 no. 1753.

Conversely, English manufactures and industries were encouraged by facilitating their export. In 1660 the export of a large number of manufactured goods was unconditionally allowed ;5 in 1670-16716 and 16887 the export of beer, ale and mum was permitted ; in 16948 the export of iron, copper, and mumdick metal ; in 1695-16969 the export of sail cloth ; and in 1697-169810 the export of watches, sword hilts, plate, and other silver manufactures.

Other methods of encouraging English manufactures also appear on the statute book. In 166311 foreigners were encouraged to set up manufactures from hemp and flax. They were not to be liable to aliens' taxes, and, if they carried on the trade for three years, they were to be naturalized. In 1695-169612 the linen manufacture of Ireland was encouraged by a remission of the duty on Irish linen ; and in 167213 it was enacted that aliens should pay no more export duty than natives on native commodities or goods manufactured in this country. The metal industry was encouraged by a repeal of the statute of Henry IV.'s reign which made alchemy a felony ;14 and by the definition of what was to be accounted a mine royal,15 and of the extent of the king's rights therein.16 In 1695-169617 an attempt was made to preserve for England the new process of frame knitting, by prohibiting the export of knitting frames or any parts of them.

Footnote 1: For the detailed history of this legislation see Ashley, Surveys Historic and Economic 272-284 ; below 340.

Footnote 2: 2 William and Mary c. g; modified by 5 William and Mary c. g. 3.

Footnote 3: 8, 9 William III. C. g; House of Lords MSS. ii 542 no. 1753.

Footnote 4: 17 William III. C. g; Inc. 4 & 10.

Footnote 4: 22, 23 Charles II. C. g. 3.

Footnote 5: 6 William and Mary c. g. 7. 8 William III. C. g; No. 39 & 2.

Footnote 10: 9 William III. C. g; by SS 2 it was provided that no parts of clocks or watches were to be exported, and the maker's name must be engraved on each.

Footnote 11: 175 Charles II. C. g. 3.

Footnote 12: 7, 8 William III. C. g; No. 39.

Footnote 13: 17 William and Mary c. g; No. 39.

Footnote 14: 17 William and Mary c. g; No. 39.

Footnote 15: 17 William and Mary c. g. 3.

Footnote 16: 17, 8 William III. C. g; No. 345-351.

Footnote 17: 17, 8 William III. C. g; No. 345-351.

Footnote 18: 17 William and Mary c. g. 3.

Footnote 19: 17, 8 William III. C. g; No. 345-351.

Footnote 20: 21, 22, 23 Charles II. C. g. 3.

Footnote 21: 22, 23 Charles II. C. g. 3.

Footnote 22: 23 Charles II. C. g. 3.

Footnote 23: 24 Charles II. C. g. 3.

Footnote 25: 26 William and Mary c. g. 3.

## 6 Commerce and Industry 381

make such grants had been prescribed by the Act of 1624 \[1\]. We have seen, too, that that Act had saved the rights of the crown to make monopoly grants to corporations or companies " for the maintenance, enlargement or ordering of any trade or merchandyze \[2\]." \[3\] This saving had been abused by the earlier Stuarts \[3\], but it was conclusive in favour of the crown's power to make such grants as those in issue in the case of the _East India Company v. Sandy's \[4\]_. The conditions laid down by the statute for making such grants to individuals are, as we have seen \[5\], the foundation of our modern patent law. But as yet the ordinary courts had little chance to develop it. All through this period, cases which involved the making, the regulation, and the revocation of these patents, generally came before the Council \[6\]. The Council decided such questions as, Who of two claimants was the first inventor \[7\], Whether a patentee was working his patent \[8\], Whether the invention was really new \[9\], Whether it was in the public interest to grant a patent \[10\]. Very few cases of this sort came before the courts of common law \[11\] or the court of Chancery \[12\]. It was not till the following period that the Council abandoned this jurisdiction to these courts \[12\]. It was not till quite the end of that century that applications to decide these questions ceased to be made to it \[14\].

(_e_) Measures taken to secure the skill of the workmen and the quality of the goods.

Of these measures there is but little to be said. We have seen that in the preceding period the medieval gills had ceased to be effective disciplinary bodies \[15\]. The new regime, established in the preceding period, was maintained in this period with very little alteration. The Elizabeth statutes as to apprenticeship \[16\] operated to secure skill in the workmen ; and it was only very occasionally that they required to be modified or supplemented \[17\].

### 892 The Enacted Law

In order to secure good quality in the article produced, the device of giving powers to a company entrusted with the supervision of a particular trade, was still employed in many cases.1 In one or two cases statutes were passed requiring all engaged in a particular trade to observe the rules for the conduct of that trade laid down in the statute ;2 and, as the older machinery decays,3 statutes of this kind will become more common.4

Footnote 1: I2 Charles II. c. 22 (Dutch Bays) ; I4 Charles II. c. 5 (Norwich stuffs) ; I4 Charles II. c. 5 (silk) ; I4 Charles II. c. 32 (broad cloth) ; 22, 23 Charles II. c. 8 (Kiderminster wears) ; 8, 9 William III. c. 9 (cloth factors--governors of Blackwell Hall).

Footnote 2: I2 Charles II. c. 25 SS IT (wine trade) ; I4 Charles II. c. 26; 4 William and Mary c. 7, and Hist. MSS. Com. r4th Rep. App. Pt. vi 75 no. 563, 105, no. 594 (trade in butter) ; 9 William III. c. 39 (gold and silver wire drawing trade).

Footnote 3: Below 34!.

Footnote 5: Vol. iv 319-322, 355-36!.

Footnote 6: I2 Charles II. c. 32 SS 4--'' If any merchant or other person ... transport ... any wool ... he shall be disabled to require any debt or account of any factor or others for or concerning any debt or estate properly belonging to such offender."

Footnote 7: r William and Mary c. 32; cp. r2 Charles II. c. 25 SS 2 which appointed commissioners to grant wine licences.

Footnote 8: E.g. 14 Charles II. c. 18 SS IT; 18, 19 Charles II, c. 2; 10 William III. c. 3.

Footnote 8: E.g. 29, 30 Charles II. c. 1 SS 70 (import of French goods) ; 9 William III. c. 9 SS 2 (import of foreign lace).

Footnote 9: 30 Charles II. c. 3 SS 9.

Footnote 11: E.g. 14 Charles II. c. 26 SS 5: 4 William and Mary c. 7 SS 6; 10 William III. c. 2.

## 6 Commerce and Industry 333

(ii) Modifications resulting from constitutional changes in the state.

The law regulating foreign trade and native industry was modified by the constitutional changes in the state in three main directions. In the first place, the power of the central government to regulate commerce and industry was very much diminished after the Great Rebellion. The abolition of the Star Chamber, and the other branches of the Council which exercised a similar jurisdiction in different parts of England, meant that the Council had lost almost all its coercive power. Thus, just as it had ceased to be able to exercise effective control over the officials of the local government,1 so it ceased to be able to exercise effective control over commerce and industry.2 It could no longer attempt, as in the preceding period, to enforce the commercial policy of the state. That policy was, as we have seen, much the same as it had been in the preceding period ; but we have also seen that the Acts of Parliament on which it rested were often left to be enforced by some person interested or by a common informer.3 The result, as Dr. Cunningham has said, was a great development of economic freedom;4 and this increase in economic freedom was both rendered permanent and accentuated by the Revolution. In the second place, the importance of the commercial element in English life and politics had greatly increased after the Great Rebellion. Naturally, commercial men took advantage of their increased economic freedom ; and, as the Revolution owed its success mainly to their support, they were able to exercise a greatly increased influence upon the course of legislation. We can see the results in the growing increase of the influence of capital,5 and the growth of the influence of purely economic points of view.6 "The success of Puritanism meant the triumph of the new commercial morality, which held good among moneyed men. No room was left for authoritative insistence on moral as distinguished from legal obligations."7 In the third place, this tendency to adopt purely economic points of view was accentuated by the system of party government which prevailed after the Revolution. Upholders of different lines of economic policy tended to identify themselves with one or other of the political parties in the state.8 Their discussion tended to give rise to the growth of bodies of economic doctrine, which naturally tended to react upon the policy pursued by the state in relation to commerce and industry. We can see that,

### The Enacted Law

in the future, doctrines of the economists will have as much influence on the policy of the statesmen, as the policy of statesmen upon the doctrines of the economists.1

Footnote 1: Below 355:356.

The effect of these changes is apparent both in legal doctrine and in the course of legislation. Firstly, the increase in economic freedom is reflected in the diminution of the powers of the crown to regulate foreign and domestic trade. Secondly, the growth of the political importance of the commercial men, and the increased importance of capital, are reflected in the rapid development of our modern commercial law. Thirdly, the same influence leads to a development of the policy of the legislative protection and encouragement of native industries, which has affected the whole of the subsequent history of commerce and industry in this country. I shall consider these changes under these three heads :--

(_a_) We have seen that the powers of the crown to regulate foreign and domestic trade had been asserted by Jeffreys, C.J., in the case of _The East India Company_ v. _Sandys.2_ He asserted them in large terms, but in substantial accordance with the older authorities ; and there does not seem to have been any disposition to question the correctness of his decision.3 These prerogatives of the crown were not complained of as abuses in the Bill of Rights ; nor do they seem to have been questioned by the courts after the Revolution ;4 but they tended to be more restrictively construed. In 1691 the law officers of the crown were of opinion that, if a trade was in substance a new trade in a region "not before traded in by any English subjects," an exclusive right to trade could be granted, but under no other circumstances.5 In 1693 Parliament resolved that, " It is the right of all Englishmen to trade to the East Indies, or any part of the world, unless prohibited by Act of Parliament."6 And, as a matter of fact, after the Revolution, exclusive rights to trade ceased to be granted without Parliamentary sanction. Indeed, both before and after the Revolution, Parliament intervened to secure greater freedom of trade, by making it easy for any one who wished to become a member of some of the regulated companies, which controlled certain branches of trade ;7 and this course was advocated by Child.8 On the other hand, it

## 6 Commerce and Industry 385

was admitted that certain branches of foreign trade could not be carried on without this or other special privileges, and that it was not fair to deprive companies of their privileges when they had spent money in organizing and establishing their trade. For these reasons the privileges secured to the East India Company,1 and the Hudson's Bay Company,2 were allowed to continue either in their original or in a modified form.

Footnote 1: Cunningham, op. cit. ii 269.

Footnote 2: Ibid 282 ; in the case of the African company its exclusive privileges were got rid of, but independent merchants were required to pay certain percentages on goods carried from or to African ports to help the company keep up its forts, 9 William IIIL, c. 26 SS 7; Scott, Joint Stock Companies ii 23.

This does not mean that the idea that the crown had large and vague prerogatives to regulate foreign trade in the interests of the nation wholly disappeared. In 1718 Mr. West, the counsel of the Board of Trade, summed up, in a very instructive opinion, the views then generally held as to the extent of the prerogative.3 "That particular subjects should have an uncontrollable liberty of all manner of trading, is not only against the policy of our nation, but of all other Governments whatsoever. I do, therefore, take it to be law, that the Crown may, upon special occasion, and for reasons of state restrain the same ; and that not only in cases of war, plague, or scarcity of any commodity, of more necessary use at home, for the provision of the subject, or the defence of the kingdom, etc. . . but even for the preservation of the balance of trade ; as suppose a foreign price, though in other respects preserving a fair correspondence and in amity with us, yet will not punctually observe such treaties of commerce as may have been made between the two nations ; or, in case there are no such treaties existing, refuses to enter into such a regulation of trade as may be for the mutual advantage and benefit of both dominions. On such occasion, I am of opinion that the King, by his prerogative, may prohibit and restrain all his subjects, in general, from exporting particular commodities, etc., or else, generally from trading to such a particular country or place. . . Without such a power it is obvious that the Government of England could not be upon equal terms with the rest of its neighbours, and since trade depends principally upon such treaties and alliances as are entered into by the Crown with foreign prices ; and, since the power of entering into such treaties is vested absolutely in the Crown, it necessarily follows that the management and direction of trade must, in a great measure, belong to the King. Things of this nature

### The Enacted Law

are not to be considered strictly according to those municipal laws, and those ordinary rules, by which the private property of subjects resident within the kingdom is determined; but a regard must also be had to the laws of nations, to the policy and safety of the kingdom; the particular interest and advantages of private men must, in such cases, give way to the general good; and acting against that, though in a way of commerce, is an offence punishable at the common law. Foreign trades carried on by particular subjects for their private advantage, which are really destructive unto, or else tending to the general disadvantage of the kingdom, are under the power of the Crown to be restrained or totally prohibited. Carrying on such trades is, in truth (what some Acts of Parliament have declared some trades to be1), being guilty of common nuisances: and if the Crown, which in its administration of government is to regard the advantage of the whole realm, should not be invested with sufficient power to repress and restrain such common mischiefs, it has not a power to do right to all its subjects."

Footnote 1: Above 332.

Thus, the crown's prerogative to regulate foreign trade, being still regarded as a branch of its wide prerogative to control foreign affairs, was necessarily large and vague. In fact this view of the law came very naturally to an age which believed in the theory that foreign trade should be so regulated as to increase the strength of the nation. But it was equally natural that this large and vague prerogative should gradually be lost sight of, as the belief grew up that the only way in which the strength of the nation could be increased, was the encouragement of manufacturers who carried on native industries;2 and that, still later, it should wholly decay, as the new and false theory gained ground, that in all trade, domestic and foreign, the particular interest of the trader (which he could be trusted to look after) was identical with the interest of the nation at large.

Footnote 2: The promotion of industry of every kind had become the primary object which Parliament pursued in its efforts to build up the wealth and power of England. During the period of White ascendancy attention was concentrated on this aspect of economic life," Cunningham, op. cit. it 494; "from the Revolution till the revolut of the colonies the regulation of commerce was considered, not so much with reference to other elements of natural power, or even in its bearing on revenue, but chiefly with a view to the promotion of industry,"' Ibid 459.

The opinion which I have cited attributes to the crown, on similar grounds, a large prerogative to regulate internal trade for the good of the nation. But this prerogative had never been so wide or so ill defined. It was not connected with the crown's undisputed power over foreign affairs; and the limitations imposed upon the king's power to legislate, and to interfere with the

**COMMERC AND INDUSTRY 387**

subject's property, prevented the exercise of any very large control. We have seen that it had been admitted in the preceding period that the powers over trade granted to corporations, though valid by prescription or custom, could not be justified by a recent royal grant.1 After the Revolution these grants were sometimes jealously scrutinized if they seemed to run counter to the new ideas of economic freedom. In the case of the _Mayor of Winton_ v. \_Witks_2 Holt, C.J., refused to uphold an alleged privilege of the city of Winchester that no one, not free of the gild merchant and apprentied for seven years, could exercise any trade in the city. "All people," he said,3 " are at liberty to live in this place, and their skill and industry are the means they have to get their bread ; and consequently it is unreasonable to restrain them from exercising their trades within this place, within which, having a liberty to live, they ought also of consequence to have all lawful means of supporting themselves." But these exclusive rights could not be got rid of so easily. There are many cases in the eighteenth century in which their validity was upheld.4 And, though the same causes, which were making for the decay of the large prerogatives of the crown to regulate foreign trade, were making these franchises seem more and more anomalous, they were not finally abolished till the passing of the Municipal Corporation Act of 1835.5

Footnote 1: Vol. iv 346 n. 3.

Footnote 2: (1705) 2 Ld. Raym. r129; cp. two contrary opinions of Levinz and Agar upon a similar case given in the Modern Conveyancer (3rd ed. 1725) iii 98.

Footnote 3: At p. r133.

Footnote 4: Bodic v. Fennell (1748) i Wils, 233; in Wooley v. Idle (1766) 4 Burr. r951 Lord Mansfield said, at p. r952, that such a custom was " warranted by a vast number of cases."

Footnote 5: 5, 6 William IV, c. 76 SS 14.

Footnote 7: r2 Charles II. c. r3.

Footnote 8: I4 Charles II. c. 23.

Footnote 9: Vol. v1,--22

$(b)$ Of the rapid development of the doctrines of our modern commercial law I shall speak in the second Part of this Book.6 As in the preceding period, it was mainly the work of the courts, and it therefore leaves few marks on the statute book. But during this period it was so marked that it occasioned one or two statutes ; and it is implied in many more.

The earliest of the statutes occasioned by the development of commerce is a statute of 1660 which reduced the legal rate of interest to 6 per cent.7 It recites that " the abatement of interest from ten in the hundred in former times hath been found by notable experience beneficial to the advancement of trade, and improvement of land by good husbandry," and that it was advantageous to reduce it " to a nearer proportion with foreign states with whom we traffic." In 1662 8 the constitution of the court, created to try insurance cases by Elizabeth's statute of

### The Enacted Law

1601,1 was improved, and its powers were enlarged. In 1696-16972 an Act was passed to " restrain the number and ill practice of brokers and stock jobbers." It is clear from SS 10 of the Act that speculation in options to buy stock and shares was well known.8 In 1697-1698 a statute was passed to allow a protest on the non-payment of an inland bill of exchange, and to settle the form of the protest.4 It is quite clear from an Act passed in 1667-16685 to settle " freedom and intercourse of trade between England and Scotland," that it had already begun to be seen that, in the interest of trade, a closer union between England and Scotland was desirable. But it is the assumptions implicit in the provisions of many of the statutes of this period which are the best evidence of the growth of the doctrines of our modern commercial law. In the statutes, even more than in the pro-clamations,6 there are many indications of their existence. It is clear from a statute of 1670-1671 that banks and banking were established institutions in the reign of Charles II. ;7 and in the loans of the bankers to that king,8 and in the provisions of statutes of his reign for borrowing money on the security of an Act of Parliament,9 we can see the beginnings of a national debt. The Bank of England and our present national debt owe their origin to a statute of 1694.10 Orders on the Exchequer were made freely transferable in 1667-1668;11 and, in the statutes establishing joint stock companies of various kinds, similar provision was made for the transferability of their shares.12 It is clear from the statutes establishing the Bank of England that bills of exchange were part of the ordinary machinery of commerce;12 and that statute established our modern Bank of England notes.14 In the statutes establishing joint stock companies we see, not only transferable shares, but also provisions regulating calls on shares, the election and powers of directors,

## 6 Commerce and Industry 899

general meetings, voting at such meetings, and the powers of these companies.1 It is clear that, by the end of this period, the modern mechanism of a commerce organized upon a capitalistic basis has been reached ; and naturally, as we shall see later, this mechanism necessitated corresponding developments of legal doctrine.

Footnote 1: See 4 William and Mary c. 17.

(_c_) The same influence of the commercial men led to a development of the policy of protecting native industries, which has affected the whole subsequent history of commerce and industry in this country. But to explain why this was so it is necessary to say something of the two somewhat divergent lines of economic policy which emerged during this period.

We have seen that, in the preceding period, divergencies of opinion upon economic policy existed. Burghley was inclined to abandon the policy of requiring English merchants to use English ships, because it impeded the increase of English trade and the growth of native industries.2 On the other hand, a return to the older policy was begun by the earlier Stuarts,3 and was, in this period, carried out very thoroughly by the Navigation Acts.4 In this period we see other differences of opinion upon economic policy ; but they have left a deeper mark upon our economic history than the differences of the earlier period, because, having identified themselves with the two great political parties which now divided the state, they were both hardened and perpetuated.

Footnote 4: Above 317-318.

It is essential to the success of any system of party government that the two parties should be agreed on certain fundamental matters. And so we find that on economic questions all parties agreed on such matters as the policy of the Navigation Acts, and the expediency of giving some protection to English trade. But the two parties which divided the state took different views as to the form which that protection should take, which were coloured very largely by their political views. It was to the interest both of the crown and of the landowners that the customs revenue should be large. The crown drew a large part of its revenue from this source ; and the greater the amount of this revenue the lighter the taxes upon land. It was therefore to the interest of the crown and the Tory party to keep up the volume of exports and imports upon which customs duties were payable.5 On the other hand, it was to the interest of the commercial men and manufacturers to encourage native industries.

### The Enacted Law

They had no interest in the maintenance of the customs revenue at a high figure ; and they approved of measures which would totally prohibit those branches of foreign trade which seemed to be able to compete successfully with the industrial development of this country.1 National power, they considered, could best be increased by the encouragement of native industry.2 But, as we have seen, these commercial men were generally Whigs ; and so these two different lines of economic policy became identified with the two political parties in the state. Naturally they have left their mark upon the statute book ; and the discussions which they called forth tended to the growth of divergent bodies of economic doctrine.

Footnote 1: Ashley, op. cit. 273-284; this point of view is illustrated by a paper written by Alderman Patience Ward, printed S.P. Dom. 1675-1676 276-277 ; and in the reasons for prohibiting the export of wool given to the House of Commons, ibid 373-375 ; the other point of view to some extent comes out in reasons for allowing a limited exportation, ibid 375-376.

Footnote 2: Above 329-330.

Footnote 3: 15 Charles II. c. 7 SS 9.

Footnote 4: 29, 30 Charles II. c. 8 SS 7o.

Footnote 5: 16, Joint Stock Companies ii 145-149.

The views of the court and Tory party can be seen in the statutes of 1663,3 which allowed the free export of foreign coin or bullion in order to promote trade ; in the statute of 1685, which repealed the Act of 1678 4 prohibiting a large number of French manufactured goods;5 and in the encouragement given by James II. to the East India Company,6 in spite of the objections that its trade involved the export of bullion, and the import of goods which competed with English wool and silk manufactures. The views of the Whig party can be seen in the statute of 1678 which prohibited a large number of French manufactured goods;7 in their hostility to the East India Company ;8 and in the large number of statutes passed after the Revolution to protect native industries. Throughout the century statesmen had derived many hints from the economic policy of the Dutch ;9 but the Whig ideas were, if not borrowed from, at least justified by the example of, Colbert's policy in France. In framing his tariff he had considered mainly the interest of the native producer; and his success in fostering industry by this means seemed conclusive to those who were interested mainly in the promotion of native manufactures.10

## 11 Commerce and Industry 341

The Revolution meant the triumph of the line of policy advocated by the Whigs.1 And their steady adherence to this line of policy achieved much. "That the Whigs made grievous mistakes is true, but it is also true that the main object they had at heart was achieved to an extraordinary extent during the period when they were in power. At the time of the Civil War, English industry was but little developed, and English agriculture was very backward. When the _Wealth of Nations_ was published, both had advanced enormously."2 Obviously it was this progress which made it possible, during the latter part of the eighteenth century, to take full advantage of those mechanical inventions which produced the Industrial Revolution. And the economic policy pursued by the Whigs accentuated the political effects of the Revolution. We have seen that the Revolution, by diminishing the power of the crown, gave a larger measure of economic freedom.3 The industrial development, consequent on the Whig policy, increased it. Both before and after the Revolution it was the individual capitalist or the joint stock company which had done most to develop native industry; and, as it developed, it tended more and more to be organized upon a capitalistic basis. From this three important results flowed, which will in future cause large modifications of legal doctrines and rules. In the first place, the older regulations, designed to secure skill in the workman and quality in the article produced, gradually became obsolete. They could not be applied easily to industries thus organized; and the capitalist could be trusted to supervise these matters, as the success of his business depended upon the adequacy of his supervision.4 In the second place, those engaged in industry tended to become less and less independent workmen, and more and more wage earners.5 In the third place, the rapid development of our modern commercial law,6 which originated in and was adapted to a system of commerce and industry organized on this basis, was assured.

Footnote 1: " During the period of Whig ascendency, the economic policy of the country became a thorough-going imitation of the principles of Louis XIV.'s great minister Colbert, though they were put into effect, not by royal mandates as in France, but by Parliamentary legislation," Cunningham, op. cit. i 406.

Footnote 2: Ibid 60r.

Footnote 3: Above 333.

Footnote 4: Child, A Discourse of Trade (t594) t4,8, t49; Cunningham, op. cit. ii 57r-57

### 342 The Enacted Law

(4) _Agriculture, the prices of food, and wages._

That the prosperity of agriculture was a condition precedent to the prosperity of all other branches of commerce and industry was as firmly and as universally held in this period as in the last.1 " The encouragement of tillage," it was said in the preamble to a statute of 1663,2 " ought to be in an especial manner regarded and endeavoured, and the surest and effectualest means of promoting and advancing any trade occupation or mystery being by rendering it profitable to the users thereof." All through this period, therefore, agriculture had a large measure of protection and encouragement from the legislature; agricultural methods were improved, with the result that the area of land under cultivation was enlarged; and, as a result, we see that the tendency, which had begun in the preceding period,3 to put capital into the land, and to treat farming as a business to be run for profit, made considerable progress. I shall examine the course and effects of the legislation upon agriculture under these three heads.

Footnote 1: Vol. iv 362 seqq.

Footnote 2: I5 Charles II. c. 7--the grammar is a little odd, though the meaning is unmistakable.

(i) The legislature aimed at so stimulating the agricultural industry that it could produce a sufficient food supply for the nation. With that object in view it, in the first place, protected it from foreign competition. Thus it imposed an import duty on corn in 1660,4 in 1663 5 it imposed duties upon fatted cattle and sheep imported, in 1666 6 it prohibited the import of such cattle and declared such import to be a common nuisance, and in 1667-1668 7 it increased the penalties for the infringement of the Act of 1666. By a statute of 1660 8 the statute of 1666 was made perpetual; and it was provided that no butter or cheese should be imported from Ireland. But it was necessary to do more than this. The farmers who grew corn must be protected from being obliged to sell at unprofitable prices if the harvest was too abundant for the needs of the nation, because, if they were thus ruined and let land go out of cultivation, the effects of a year of scarcity would be aggravated. To obviate this danger the legislature had, in 1660,9 allowed the export of certain food-stuffs when the price did not exceed a certain amount. In 1663 more elaborate provisions were made as to the conditions under which the export of grain was to be permitted. If its price did not exceed certain

## 1 Commerce and Industry 343

rates, specified in the Act, it could be exported, paying customs duties; and if it were imported, when the price was at these specified rates, it must pay an import duty. Further, when these specified rates prevailed, grain could be bought and stored in granaries, notwithstanding the law as to forestalling and regrating, provided that there was no attempt to forestall the market, or to sell the grain so bought in the same market within three months from its purchase.1 In 1670,2 the prices, on the attainment of which export was allowed, were raised, and the duties payable on import were rearranged on a sliding scale which fell as the price increased. The same Act provided also for the raising of the prices, on the attainment of which the other commodities mentioned in the Act of 16603 could be exported. In 1690,4 partly in consequence of the prohibition of all French imports, the distillation of spirits from corn was encouraged, and its export was allowed--a liberty considerably restricted in 1698,5 in order that the price of corn might not be unduly raised.

Footnote 1: 15 Charles II. c. 7 SS8 &-3.

Footnote 2: 22 Charles II. c. 13; r James II. c. 10 provided a machinery for ascertaining the prices on the basis of which the import duty was payable. In 1698, owing to its being a time of scarcity, the export of corn and certain other food-stuffs was prohibited for a year; but the king was given power to permit the export of corn by proclamation if the price decreased.

Footnote 3: Above 342 n. q.

Footnote 4: 2 William and Mary sess. 2 c. q.

Footnote 5: 8 no William III. c. 4.

Footnote 7: 7 Op. cit. ii 541; he points out, ibid, that the bounty " was continued with suspensions in the four famine years of 1698, 1709, 1740, and 1757."

It is clear that the object of all this legislation was so to regulate the various branches of the agricultural industry, that it should be able to produce abundant food supply at reasonable prices. In furtherance of this policy a new step was taken in 1689.6 The export of corn was encouraged by a bounty when the price fell to a certain level. The adherence to this policy, in Dr. Cunningham's opinion, had the results which its authors expected. " By promoting the growth of corn to serve as a commodity for export in favourable seasons, a motive was brought into play for growing as much as would meet the home consumption in unfavourable years."7 This policy had of course its political aspect. We have seen that the Whig policy of encouraging the growth of native industries by protection, tended to diminish the customs revenue, and so to throw a greater fiscal burden on the land.8 The results of this bounty system, by ensuring the prosperity of agriculture, helped the landed propriators to bear this burden.9 Further, it enabled the country to support the increase in population to which the progress of native industries gave rise. From this point of view it had an effect similar to

### 344 The Enacted Law

the effect produced by the repeal of the Corn Laws in r846. But, unlike that measure, it attained this result by ensuring the prosperity both of agriculture and of industrial development. The belief in the necessarily beneferent action of the free play of economic forces, had not yet relieved statesmen from the labour of considering the probable effects upon national strength of their commercial and industrial legislation.

(ii) We have seen that, towards the close of the preceding period, the agitation against that species of inclusive which converted arable into pasture had died down.1 We have seen that it had died down mainly because the increased gain to be made from arable farming had caused the large inclosures, which at the beginning of the sixteenth century threatened to depopulate the country, to be no longer profitable.2 On the other hand, that species of enclosure which tended to improve the productiveness of the land either (_a_) by getting rid of the common field system of cultivation, or (_b_) by draining and developing parts of the country which had never been cultivated, continued to progress.3

Footnote 1: Vol. iv 368. 2 Ibid.

Footnote 2: Gomer, Common Land and Inclosure r54-14 Inclosure continued steadily throughout the seventeenth century, and the inclosures of the eighteenth and nineteenth centuries were no new phenomena but the natural completion of a great continuous movement."

Footnote 3: Vol. iv 368. 3 Ch. 10. 116 Gomer, op. cit. 56.

Footnote 4: A large body of evidence as to inclosures and their distribution, mainly affecting the latter part of the century, lies in the Chancery Enrolled Decrees, where cases of inclusive suits and agreements occur in large numbers," Gomer, op. cit. 767-168.

(_a_) It is probable that the inclosures which were made to get rid of the common field system of cultivation did not proceed at so rapid a rate as in the eighteenth century. We have seen that between 1607 and 1692 no inclosure Act was passed, and that such Acts do not become common till George II.'s reign.5 In 1664 an attempt was made to pass a bill " to inclose and improve commons and waste lands" ; but it failed.5 On the other hand, it is probable that this species of inclosure proceeded continuously by agreement among the shareholders in the common fields. Suits to enforce or to confirm such agreements were in this period often brought before the court of Chancery ;6 and, if the agreement were proved, the court would decree its specific performance, even though all the parties to the agreement were not parties to the suit.7 Apparently in some cases the court was prepared to make a decree, even though all the shareholders

## 6 Commerce and Industry

Concerned had not agreed.1 A bill was introduced into the House of Lords in 1666 to confirm these decrees, but it failed;2 and in 16893 and 17064 the court laid it down that it had no power to coerce any but the parties to an agreement. It was probably the difficulty of arriving at, or of proving, an agreement that made it clear that a private Act of Parliament was the only effectual method of procedure.5

Footnote 1: This seems to be hinted at in the case cited in the last note; and considering the nature of the distribution of strips in the common fields it is difficult to see how any sort of inclosure could be made without prejudicing those not parties to the agreement; see Gonner, op. cit. 168; he says that these decrees were used, not only to bind a minority, but also third persons who might be ignorant of the proceedings--that this was illegal is clearly stated by the author of the legal text book on the _Law of Commons and Commons_ (1698), but his language leaves no doubt as to its occurrence."

Footnote 2: Gonner, op. cit. 56.

Footnote 3: Delabere v. Beddingfield (r689) a Vern. ro3--where a distinction, as to the power of the court to override a minority, was drawn between an agreement to sint a common and an agreement to inclose.

(_b_) All through this period the process of reclaiming waste land proceeded. Elaborate Acts of Parliament provided for the draining of Bedford level,6 Deeping Fenn in Lincolnshire,7 and Sedgmore.8 It is fairly clear, therefore, that the progress of the kinds of inclosure which improved the fertility of the soil was by no means stopped during this period.9 It is true that we hear less about inclosure than in the sixteenth, or in the eighteenth and nineteenth centuries. But this is probably due to the fact that, on the whole, it caused less hardship than it did in the earlier or the later period. It did not, as in the earlier period, depopulate the country, and it was more possible in this period, than in the eighteenth and nineteenth centuries, for a small holder to live from his holding.10 But this introduces us to our third head--the tendency to treat farming as a business run for profit.

(iii) We have seen that in the preceding period capital had been applied to agriculture, and that in many cases farming was

### The Enacted Law

pursued, not for subsistence, but as a business.1 The legislative encouragement given to agriculture, and especially the system of bounties on the export of corn,2 strengthened this tendency. But the effects upon the position of the small landowners were ultimately serious. The large farmer could hold his stock for a longer period, and he could afford new and expensive machinery.3 Thus it happened that in the farming, as in the manufacturing industries,4 the new capitalistic organization tended to crowd out the small man.5 But, at the end of the seventeenth century, the progress of inclosure, and of this new organization of the farming industry, had not gone far enough to produce these results. We can see, it is true, the beginnings of the causes which will produce these results ; but the results themselves are as yet in the future.

Footnote 1: Vol. iv 371.

Footnote 2: Cunningham, op. cit. ii 541.

Footnote 3: Ibid 544.

Footnote 4: Above 341.

Footnote 5: Gonne, op. cit. 378-379.

Footnote 6: Above 342-343.

Footnote 7: Above 342-343.

Footnote 8: 12 Charles II. c. 25 SS zz; SS r3 gave certain officials the power to fix these prices from time to time.

These developments, both in the manufacturing and in the farming industries, help us to understand analogous developments which were taking place in the laws as to the regulation of prices and wages.

It is clear that the legislature still took the view that a fair price, having regard to all the circumstances, must be charged for food and other necessaries.6 The best illustration of the maintenance of this attitude is the series of statutes which regulated the export of grain.7 Moreover, other statutes directly fixed, or empowered certain persons to fix, the prices of wine 8 and coal.9 It is clear, too, that the law as to forestalling and regrating,10 though modified in special cases,11 was still relied upon to prevent an artificial rise in prices by means of speculation.12 Certain statutes passed to prevent butchers speculating in cattle are illustrations of this.13 But, as with the legislation as to the skill of workmen and the quality of the article produced,14 so with this statutory regulation of food prices--it is clear that the growth of the capitalistic organization of all branches of industry will strengthen the tendency to allow prices to be determined simply by the relation of supply to demand. And, just as in its regulation of industry, the legislature tended to rely more on general

## 6 Commerce and Industry

1.1 Statutes and less on the supervision of special gilds or companies ;1 so, in its regulation of these prices, it will tend to rely less on measures directly prescribing their amount, and more upon legislation, such as that designed to encourage agriculture, which will ensure a low price by providing an adequate supply. Public opinion was inclining to the view expressed by Child, that it was vain to hope by laws to oppose the " force subtlety and violence" of " the general course of trade." 2

Footnote 1: Above 323.

Footnote 2: A New Discourse of Trade (r694) r47--he is arguing that, if foreigners can afford to give a better price for our wool, they will get it; " they that can give the best price for a commodity shall never fail to have it, by one means or other, notwithstanding the opposition of any laws, or interposition of any power by sea or land; of such force subtlety and violence is the general course of trade"; cp. Economic Writings of Petty (Ed. Hull) i gr-5z for a discussion as to the natural causes which determine food prices; for the influence of commercial men like Child, and scientific writers like Petty, in discrediting legislation to fix prices, see below 356-359.

The laws as to the rates of wages payable to workmen follow a somewhat similar course. We have seen that, under the Tudors and early Stuart kings, the legislation both as to prices and wages were part of a coherent scheme for the regulation of the relation of employer and workman. The main incidents of that relation were regulated by law; and, in so far as they were regulated by law, they could not be affected by the agreement of the parties. Thus a combination of workmen to raise wages so fixed was as definitely illegal as a combination of employers to raise prices above their statutory level, if they were fixed by statute; or, if they were not fixed by statute, above their natural level by acts which amounted to forestalling or regrating. Similarly, an individual workman was not free to refuse work offered to him; and, though there was no statutory duty imposed on a master to employ, the Council interfered if he dismissed his workman merely because work was slack.3 During this period the statutes which created these legal relations between employers and workmen were still in force. And that the ideas which underlay them were still approved is clear from the statute of 1666,4 which provided for the rebuilding of London after the great fire. It was obvious that large numbers of workmen connected with the building industries, and large quantities of building materials, would be needed. Special rules, it was thought, ought to be made to meet these extraordinary circumstances; and these special rules naturally reflected the prevailing legal and economic ideas. In order that builders might get their materials at reasonable prices,6 the Act provided that the judges of the King's Bench, on the complaint of the mayor and aldermen, should summon a number of brick makers, tile makers, and lime burners

### 348 The Enacted Law

carrying on business within five miles of the Thames, and settle such a price "as may equally respect the honest profit of the said brick makers, tile makers, lime burners, and carriers, and the necessity and convenience of the builder." In order that no artificer, workman, or labourer might "make the common calamity a pretence to extort unreasonable or excessive wages," it was provided that the judges should, upon the like complaint, fix the rates of wages.1 A refusal to sell at the prices, or to work at the wages so fixed, a departure from work without excuse, or an agreement to give higher prices or wages, was made punishable by a month's imprisonment or a fine not exceeding $\\not{\\xi}$1o.

Footnote 1: SS 15--the Act enumerates brick makers, tile makers, lime burners, carpenters, bricklayers, masons, plasterers, joiners, plumbers; cp. Tudor and Stuart Proclamations i no. 3$44 (r687) for a proclamation forbidding foreigners to entice away work-people; see vol. iv 3$3-3$5 for the law on this topic, which the proclamation was evidentiy intended to enforce.

It is clear from these clauses of this statute, that the prevalent legal and economic ideas as to the proper mode of regulating the relation of employer and workman, were much the same as they had been in the preceding period; and in fact, there is some evidence that the justices of the peace still continued to assess the rates of wages in accordance with the Elizabeth statutes.2 But it is evident that in practice the Tudor scheme was not being consistently applied. In fact this scheme suffered, more than any other part of the industrial and commercial system of the Tudors, from the abolition of the control of the Council. Though by statute workmen could not refuse work,3 there was no correlative obligation upon employers to employ, now that the coercive authority of the Council had disappeared; 4 and the machinery for the assessment of fair wages does not seem to have been used much beyond the end of the century.5 The capitalist had in sub

**COMMERCE AND INDUSTRY 849**

stance freed himself from the obligations which the Tudor scheme imposed upon him; but the workmen still remained liable to them. It is not suprising to find that, early in the following century, both the executive 1 and the legislature 2 found it necessary to interfere to suppress strikes, and to fix wages in many of those trades which had become organized upon a capitalistic basis.

Footnote 1: See the Proclamation of 1778 against unlawful clubs of woolcombers and weavers, cited by Cunningham, op. cit. ii 508-509; as early as 1671 the mayor of Newcastle-upon-Tyne had been obliged to suppress a tumult caused by the tumultuous assembling of the keelmen, on pretext of being ill dealt with by the masters of the coleries as to hire and wages, S.P. Dom. 1671 297.

Footnote 2: Stephen, H.C.L., iii 206--these Acts of the earlier part of the eighteenth century were, "for the most part Acts relating to particular trades, and prohibiting combinations in respect of the wages payable in those trades."

We shall now see that these changes in the economic machinery, and in the laws which guided its working, had serious effects upon the poor law and its administration.

(5) _The Poor Law._

We have seen that the Elizabeth poor law aimed at relieving the impotent, educating the children of those who could not maintain themselves, coercing the idle and vagrant, and providing work for the able-bodied; that the parish, acting under the supervision of the justices of the peace, was the unit for performing these duties; and that the parish was responsible for the relief of the impotent who were settled there.3 We have seen that the success of the system largely depended on the measures taken to coerce the vagabond, and provide work for the deserving poor;4 and that, throughout the earlier years of the seventeenth century, the justices were compelled to take adequate measures to perform these and the other duties imposed upon them by the strict supervision of the Council.5 During this period the administration of the poor law failed to effect the same results as it had effected in the preceding period. This failure was due, partly to the breakdown of the whole system during the Great Rebellion, and to the absence of any adequate supervision after the Restoration by the central government; partly to the unwise policy of applying the idea of settlement to the able-bodied and industrious poor; and partly to the fact that, under the changed economic and constitutional conditions of this period, the poor law was ceasing to be an integral part of the general commercial and industrial policy of the state.

Footnote 3: Vol. iv 392-407; for a bill, which was lost in the House of Lords, to provide for places which were not in any parish see Hist. MSS. Com. 7th Rep. 173-174.

Footnote 4: Vol. iv 395-396.

(i) It is clear that, during the Great Rebellion, the administration of the poor law in London and elsewhere had brokenThe Enacted Law

down. Charitable institutions suffered either from want of funds or from actual malversation.1 Nor were efforts of the government to restore some sort of system of poor relief in London very successful;2 and, as Miss Leonard says, " in the rest of the country there was probably the same disorganization and less attempt to remedy matters."2 The justices were either unable or unwilling to provide stock to set the poor to work; and, during the war, there was not the same need for it, as employment was abundant.4 Thus the whole system of providing work for the poor disappeared. Something, it is true, was done for the impotent. As Miss Leonard says,5 "the privation of the helpless old and young appealed far more to the sympathy of overseers and ratepayers than the needs of the able-bodied poor. Besides it was far easier to grant pensions than to superintend work and supply materials." The Restoration brought no improvement. The parishes and the justices were left to take very much their own line,6 It is true that the legislature in 16627 provided that one or more workhouses should be set up within the parishes comprised in the Bills of Mortality,8 the governors of which should be able to arrest and set to work idle and disorderly persons. It is true that in 1666 an effort was made to provide work for poor prisoners awaiting their trial for criminal offences.9 But it is clear from the literature of the last half of the seventeenth century that there was no general system in force throughout the country for setting the poor to work.10 The Act of 1662 assumes that this will be done;11 but, for the most part, both it and other Acts passed during this period are far more concerned with punishing the vagand and the vagabond,12 with providing that rogues shall be punished by transportation to the Plantations or otherwise,13 with compelling parents to support their bas

## 80 Commerce and Industry

children,1 and with the regulations for the apprenticing of pauper children.2 Moreover, as we shall now see, this Act of 1662 considerably complicated an already difficult problem by its provisions as to the settlement of the able-bodied and industrious poor. This new departure gave rise to a branch of the law which, as Eden justly remarks, " has been more profitable to the profession of the law than any other point in English jurisprudence."3

Footnote 1: 14 Charles II. c. r2 SS19.

Footnote 2: 8, 9 William III. c. 30 SS5; for this Act see also House of Lords MSS, ii SS548 no. r167; for projects to establish a corporation for the whole kingdom to set up workhouses to set the poor to work see S.P. Dom. r690-169r, 369, 42.

(ii) The parish was the unit for the administration of the poor law; and the provision which different parishes made for dealing with the poor, and the natural advantages which they possessed, were very various. The preamble to the Act of 16624 tells us that some parishes made better provision than others for providing work for the able-bodied poor, and that some parishes were better able to relieve them than others because they had larger commons and wastes. The paupers had found this out; and "endeavoured to settle themselves in those parishes where there is the best stock, the largest commons or waste to build cottages, and the most woods for them to burn and destroy, and when they have consumed it, then to another parish, and at last become rogues and vagabonds, to the great discouragement of parishes to provide stock, when it is liable to be devoured by strangers." To remedy this evil the Act proceeded to apply the idea of settlement to the able-bodied and industrious poor.

Footnote 3: Op. cit. i76-177.

We have seen that the parish was liable to relieve the impotent or the vagabonds, who had acquired a settlement there, either by birth or residence, for periods fixed by statute.5 But the parish was under no liability to relieve the able-bodied and industrious poor, unless the pauper was in fact resident there when he applied for relief.6 The principle of founding liability to relieve upon settlement applied only to the impotent or the vagrant. The Act of 16627 now extended the principle to the able-bodied and industrious poor by a clause which in substance runs as follows: On a complaint of the churchwardens or overseers of a parish, made to a justice of the peace, within forty days after any person had come to reside in any tenement in the parish under the value of \_$10 a year, any two justices could remove such person to the parish where he was last "legally settled either as a native householder, sojourner, apprentice, or servant for the space of forty days at the least," unless he gave

### The Enacted Law

such security to discharge the parish of its prospective liability as the justices thought sufficient.1 It was provided in 1685 that the forty days continuance in the parish should run from the delivery of a notice in writing of his place of residence and the number of his family to the overseers.2 In 16913 it was provided that this notice should be read publicly in the church of the parish after Divine Service, and registered ; and that service as a parish officer, payment of rates, service by an unmarried person for a year, apprenticeship, and residence--should give a settlement without notice.

Footnote 1: SS 3 of the Act contained a proviso for persons going to work in other parishes in time of harvest, who got a certificate from the minister, or churchwardens, or overseers of the parish; the confirmation of an order for removal was ruled to be conclusive as against all the world that the pauper was settled in the parish to which he was ordered to be removed, Rev v. Inhabitants of Rislip (1699) x Ld. Raym. 394.

Footnote 2: SS 3 William and Mary c. 11; SS 8 if of the Act provided for the keeping of a parish register of those entitled to relief, and for its annual revision.

Footnote 3: \*A Discourse of Trade (1694) 85-88; at p. 88 he says, " For the laws against minutes, and empowering the parishions to take security before they suffer any poor person to inhabit amongst them : it may be they were prudent constitutions at the times they were made (and before England was a place of trade) and may be so still in some countries, but I am sure in cities and great towns of trade they are altogether improper, and contrary to the practice of other cities and trading towns abroad."

It is obvious that the stringency of the law as to settlement seriously interfered with the mobility of labour, at the very time when the growth of the capitalistic organization of industry was making it more requisite than at any former time that labour should be mobile. This was pointed out by Child,4 and was partially remedied by the legislature in 1696-1697.5 This Act recites that persons chargeable to the parish where they live might be able to find work and maintain themselves in other parishes, that they are not allowed to do so because they cannot give the security required upon coming to those other parishes, and that if this were allowed " manufactures would employ more hands." It then enacts in substance that, if a person coming to dwell in a parish brings a certificate from the churchwardens or overseers of the parish where he is settled, admitting that he is there legally settled, he cannot be removed to his parish of settlement until he becomes chargeable to the parish ; and that, when he becomes so chargeable, the parish giving the certificate is liable to maintain him and his family. In order to clear up some doubts which had arisen as to the construction of this statute, it was enacted in 1697-16986 that a person coming to live in a parish with such a certificate, could never acquire a legal settlement unless he leased a tenement there of the yearly value of $10, or executed some parish office. This Act did

**COMMERCE AND INDUSTRY 353**

something to remedy the defects of the law, but not very much; as the granting or refusal to grant a certificate was entirely at the discretion of the churchwardens and overseers of the parish of settlement.1

Footnote 1: See Adam Smith's remarks in the Wealth of Nations, Bk, i c, x; and Eden, op. cit. i 77-184.

It is clear that the evil effects of these restrictions will be more and more severely felt as the number of wage earners, and the fluctuations of trade, increase with the growth of the capitalistic organization of industry, and the greater freedom of trade which resulted therefrom.2 Moreover, the fact that the poorer classes were put under these disabilities tended to give them a peculiar status; and, as we shall now see, this strengthened existing tendencies to regard those in receipt of parish relief, not as a class which was receiving a benefit to which it had a legal right,3 but as a class to which the stigma of disability was attached.

Footnote 2: Cunningham, op. cit. ii 571, ${}^{\\circ}$ Vol. iv 400.

Footnote 3: Ibid.

(iii) We have seen that the Elizabeth poor law was the logical consequence of the economic policy pursued by the state. If the measures taken to carry out this economic policy did not avail to prevent distress or unemployment or vagrancy, the machinery of the poor law intervened as a necessary consequence. It followed that the persons relieved by its agency did not have the peculiar status which is the lot of the modern pauper.4 There was no " stigma of pauperism" attaching to such persons. But, with the changes which, at the end of this period, were beginning to take place in economic and constitutional conditions, we can see the beginnings of this new idea. In the first place, the new organization of industry tended to introduce the idea that the prosperity or failure of any given business was dependent upon the skill of those who managed it, and called for no interference by the state.5 No doubt a course of business which led to constant failures in many undertakings, which ruined many persons, and thus endangered the commercial prosperity of the nation, would produce some legislative interference. The Bubble Act, passed in 1720,6 in consequence of the rash speculation which accompanied the rise of the South Sea Company, is an instance of legislation of this kind. But, otherwise, the idea was growing that success or failure in any given business was due to individual merit or demerit, and that the active supervision and regulation, which was characteristic of the preceding period, was a mistake. And this idea reacted upon the position of the workman. Though he was not, owing to the law of settlement, left free to choose his place of abode, yet it was beginning to be

### The Enacted Law

thought that, if he was driven to apply to the parish for assistance, it was more often than not his own fault. In the second place, this idea was fostered by the break down of the machinery for providing work for the able-bodied and deserving poor,1 which had been caused by the absence of any adequate supervision by the central government.2 The recipients of poor relief were for the most part the impotent or the vagrants. Hence the receipt of such relief came to be associated with some form of incapacity. As we have seen,3 the disabilities imposed by the new law of settlement upon the able-bodied and industrious poor tended to foster this idea. But it is perhaps most strikingly illustrated by a section of the Act of 1696-1697.4 In order that the money raised for the relief of the poor and impotent "might not be misapplied and squandered by the idle sturdy and disorderly beggars," it was enacted that the recipients of relief and their wives and children should wear, as a distinctive badge, "a large Roman P " embroidered on their right sleeve ;6 and that no one not wearing this badge was to be entitled to relief. It is clear, therefore, that, at the end of the seventeenth century, the administration of the poor law was giving rise to serious problems which required very careful handling ; but the history of the handling which they received belongs to the following period.

Footnote 1: See Hist, MSSS, Com. zth Rep, App. Pt. vi 448 no. 222 for an attempt in 1689-1696 to give life to the earlier legislation on this subject, and to compel the overseets to account.

Footnote 2: Above 349-350; the growth of the system of out relief, which necessarily followed, is illustrated by the case of Waltham v. Sparks (1696) r Ld. Raym. at P. 42, where it was said that the justices strictly had no authority to order maintenance of this kind, but that they all did it, and "communis error facit jus"; we begin to get cases on the question as to when such maintenance could be ordered, see the curious case of inhabitants of St. Andrews v. Jacob Mendez (1702) r Ld. Raym, 699--a few father, who had turned his daughter out of doors because she had become a Christian, could not be ordered to maintain her unless it was shown that she was poor.

Footnote 3: See 351-353.

Footnote 4: 8, 9 William III, c. 30 SS 2.

Footnote 5: \*: Shall upon the shoulder of the right sleeve of the uppermost garment. in an open and visible manner wear such badge or mark as is hereinafter mentioned that is to say a large Roman P, together with the first letter of the name of the parish or place whereof such poor person is an inhabitant cut either in red or blue cloth as by the churchwardens and overseers of the poor it shall be directed."

Changes in economic and constitutional conditions were, as we have seen, intimately related. The constitutional changes made for the increased influence of the commercial men upon the government of the state, and a greater freedom from governmental control. All branches of the local government, the administration of the poor law, and all branches of commerce and industry, were left very much more free than ever before to follow their own course. This increased freedom naturally reacted upon the prevailing economic ideas, and thus caused a

**COMMERCE AND INDUSTRY 355**

modification of the attitude of the state to commerce and industry. 'Of this modification I must, in conclusion, say a few words, because it helps us to understand the nature of the changes which had taken place in this century, and the nature of the still larger changes which will take place in the next.

We have seen that there had been a great change in economic ideas in the sixteenth century. The moral aim, which comes out clearly in the economic legislation of the Middle Ages, had given place to the material aim of increasing the strength and power of the state. To accomplish this end it was obviously desirable to allow individuals more freedom in conducting their business. If they were allowed more freedom to make profits as they could, they increased the trade and riches of the nation. And thus the medieval ideal of securing honest manufacture, a just price, reasonable profit, and a fair wage, tends to sink into the background. But, if the strength and power of the state were to be maintained and increased by an expanding trade, it was still necessary to secure some of these objects. They must be secured if new customers were to be got and kept, and if industrial peace was to be maintained. And so many of the medieval rules, and much of the medieval machinery, was retained in order to secure, not so much the medieval ideal of fairness and justice, as the new ideal of increasing the strength and power of the state. But necessarily the new system was a national system controlled at all points by general statutes. And, because it was a national system, and not a system controlled and applied by towns and trade gilds, it was less exacting in its requirements, and left a freer scope to the individual.1

Footnote 1: Vol. iv 315-326.

During this period the economic freedom of the individual advanced a stage further. The commercial men conquered for themselves more political power than they had ever possessed before. Consequently there is a great deal more reasoned discussion upon economic subjects than at any preceding period; and the economic point of view exercises a great deal more influence upon the course of legislation. But these economic discussions were, for the most part, the discussions of practical business men; and their economic point of view was limited to the advocacy of the measures which their experience had suggested were necessary to the maintenance of the strength and power of the state, and the prosperity of its commerce.2 The

### The Enacted Law

economic literature of the time is therefore eminently practical. "By far the larger number of contemporary tracts were written by men who were advocating some particular proposal, and who adduced general reasons in favour of the special scheme they had in view."1 But "'general reasons" naturally tend to the formation of theories ; and so we can see in a good deal of the literature the growth of particular theories on economic subjects.2 Thus we get the beginnings of a distinctively economic point of view which, as it gathers strength and cohesion, will have a progressively increasing influence on the course of legislation. It is true that, during the whole of this period, all economic theory accepts as an axiom the view that the increase and maintenance of the power of the state is the ultimate test by which all legislation upon industry and commerce must be judged. But the views of writers as to the measures which will best secure this object are naturally coloured by their education and calling. As commerce and the political power of commercial men increased, naturally their views began to prevail; and the prevalence of their views meant the growth of the theory that the wealth and power of the state would be best maintained and increased by legislation favourable to the development of commerce on the new capitalistic lines.

Obviously this involved the abolition of many of those legislative restrictions on the freedom of industry, which the sixteenth century had taken over from the Middle Ages in a modified form. Thus Child criticizes the laws limiting the price of beer,3 the laws against engrossing,4 the law forbidding a man to use any manual occupation unless he had been first apprenticed,5 "all bylaws used among the society and other artifcers limiting masters to keep but one apprentice at a time,"6 the laws " that oblige our people to the making of strong substantial (and as we call it loyal) cloth of a certain length breadth and weight,"7 the laws "limiting the numbers of looms or kind of servants or times of working,"8 the laws prohibiting "a weaver from being a fuller tucker or dyer, or a fuller or tucker from keeping a loom."9 He contends that exporters should have a discretion, as each individual "best knows what will please his customers beyond the seas."10 But, it might be asked, if these regulations are to disappear in order to secure an increased trade, what is to take their

**COMMERCE AND INDUSTRY** **357**

place? The answer given in some cases was that more general laws would serve. Thus, in order to secure the good quality of the cloth manufactured in England, Child suggests that the quality and measure of certain standard varieties should be guaranteed by a public seal;1 and that all other varieties should be sealed with the maker's mark, the counterfeiting of which should be a serious offence.2 In other cases, it was said that no laws at all were necessary because, if made, they would not be efficacious. They would not, it was said, be efficacious either (i) because they were opposed to the general course and custom of the trade, or, (ii) because they attempted to effect what was naturally impossible. Let us glance at these two reasons for abandoning legislative control.

Footnote 1: A New Discourse on Trade (1694) I50.

(i) Mun 3 demonstrated that laws prohibiting the export of bullion were futile; and we have seen that Child, speaking of the legislation prohibiting the export of wool, expressed his opinion that such prohibition was futile because, whatever the law might say, those who could give the best price for a commodity would be certain to get it.4 Again, it had been argued that, unless foreign trade was controlled by companies, shop-keepers and other inexperienced people might turn merchants; and that " they will, through ignorance, neglect buying and sending out our native manufactures, and will send out our money or bills of exchange to buy foreign commodities, which is an apparent national loss." To this Child replied that shop-keepers are, like everyone else, "'led by their profit," and "'if it be for their advantage to send out manufactures they will do it without forcing; and if it be for their profit to send over money or bills of exchange they will do that, and so will merchants, as soon and as much as they."5 Obviously the moral is in both these cases that the course of trade should be left to regulate such matters. As North put it, "'no people ever yet grew great by politics, but it is peace, industry, and freedom that bring trade and wealth and nothing else."6 And that it was beginning to be recognized on all hands that the course of trade might, in many cases, be too strong for the legislature, is clear from a conversation which Pepys tells us 7 he had with an official of the unit. "To another question

### 358 the enacted law

of mine he made me fully understand that the old law of prohibiting bullion to be exported, is, and ever was, a folly and an injury, rather than good. Arguing thus, that if the exportations exceed importations, then the balance must be brought home in money, which, when our merchants know cannot be carried out again, they will forbear to bring home in money, but let it lie abroad for trade, or keep in foreign banks: or, if our importations exceed our exportations, then, to keep credit, the merchants will and must find ways of carrying out money by stealth, which is a most easy thing to do, and is everywhere done; and therefore the law against it signifies nothing in the world." The men who knew the world of commerce had a very practical knowledge of what laws were efficacious and what not; and they could not help seeing that, to use Petty's words, "too many matters have been regulated by laws which nature, long custom, and general consent, ought only to have governed."1

Footnote 1: Political Arithmetick, Pref., Economic Writings (Ed. Hull) i 243.

(ii) The view that certain kinds of legislation were ineffacious, somewhat easily slides into the view that they were ineffacacious because they were " naturally " impossible. And this view was materially assisted by Petty's economic writings. As Hull has pointed out, the influence of Bacon on Petty was marked. He was "an eager member of that group of experimental investigators, working in the spirit of the "Novum Organum," who began the systematic pursuit of scientific knowledge in England."2 And he was one of the first to try to give some sort of scientific reasons for economic phenomena, and to explain these phenomena by "natural " causes.3 Thus he explained how the phenomenon of rent arises--it is, he says, the surplus after the husbandman has provided seed for the next harvest, and provided for his maintenance.4 Similarly he endeavoured to discover " the natural standards of usury or exchange "; and he condemned laws which limit the rate of interest, because it is vain to legislate against giving a rate of interest

## 1 **Commerce and Industry** **959**

which the hazardous character of the security makes it necessary for the lender to demand.1 So with regard to food prices--they must be determined by the natural law of demand and supply.2 Thus the new scientific methods applied to economic phenomena often led to the adoption of a point of view, and to conclusions, similar to those arrived at by commercial men anxious for greater freedom to push their trades. The scientific inquirer naturally tended to isolate the phenomena which he was investigating. The commercial man naturally tended to consider that the strength and power of the state would be best secured by measures which ensured the expansion of commerce. The scientific man demonstrated the futility of attempting to legislate against the natural laws which he had discovered. The commercial man found in these demonstrations an additional argument in favour of the policy which he advocated.3

Footnote 1: As for usury, the least that can be, is the rent of so much land as the money lent will buy, when the security is undoubted; but when the security is casual, then a kind of insurance must be interwoven with the simple natural interest, which may advance the very very consciously unto any height below the principal itself. But of the vanity and fruitlessness of making civil positive laws against the laws of nature, I have spoken elsewhere, and instanced in several particulars," ibid 48; cp. North, Discourse upon Trade, Select Tracts gar.

Footnote 2: A Treatise of Taxes, Works (Ed. Hull) 57-52.

Footnote 3: The beginnings of this combination may perhaps be illustrated by what is truly said in the Preface to North's Discourse upon Trade as to the characteristics of that tract--\* I find trade here treated at another rate than usually has been; I mean philosophically; for the ordinary and vulgar conceits, being meet husk and rubbish are waived; and so proceeding with like care comes to a judgment of the nicest disputes and questions concerning trade"; it also comes out in the Merchants' criticism of the Bullion Expotation Bill of 169o, Hist. MSS. Com. 13th Rep: App. Pt, v no. 330 pp. R87-R82, no. 353 pp. 205-207.

Footnote 4: Above 348.

Footnote 5: Above 356.

Now it is obvious that, as these ideas prevail with the legislature, the character and course of the legislation on commerce and industry will alter. The old medieval restrictions and machinery, if not actually abolished, will gradually become obsolete. No doubt some such development was advantageous, and in fact necessary, to the continued expansion of the trade of the country. But it had its dangers. The chief of these dangers will be that the legislature will regard the expansion of trade, and the resulting increase of wealth, as an end in itself, and not merely as an aid to securing and increasing the strength and prosperity of the nation as a whole. Already we can see some signs that this point of view was beginning to emerge. The Tudor scheme for the regulation of wages was obsolete.4 Child maintained that the laws against engrossing were a mistake.6 Petty advocated the repeal of the laws which forbade foreigners to purchase land, and imposed upon foreign traders extra duties,

### 860 The Enacted Law

because these laws interfered with the increase of trade.1 He did not consider that it might be to the interest of the nation to sacrifice some immediate gain, to prevent foreigners from acquiring an influence over English trade, which might, in the event of war, be used to our disadvantage. As yet, however, this danger is in the future. The commercial men had gained a position of great influence in the House of Commons ; but they did not as yet dominate it; and they were not as yet governed wholly by the commercial point of view. They still distinguished, as Mun 2 put it, " between the gain of the kingdom and the profit of the merchant "; and this is perhaps most strikingly illustrated by the fact that the policy of the Navigation Acts was maintained, although it was hurtful to the development of some branches of commerce and industry.3 As yet, too, the scientific study of economic phenomena is in its infancy. But the commercial and industrial legislation of the latter part of the eighteenth and the nineteenth centuries will show us that this danger will increase as the commercial point of view gains greater political weight, and as the study of economic questions becomes more "scientific."

Footnote 1: "Note that selling of lands to foreignors for gold and silver, would inlarge the stock of the kingdom : whereas doing the same between one another, doth effect nothing. For he that turmeth all his land into money disposes himself for trade ; and he that parreth with his money for land, doth the contrary; but to sell land to foreignors, increaseth both money and people, and consequently trade. Wherefore it is to be thought, that when the laws denying strangers to purchase, and not permitting them to trade, without paying extraordinary duties, were made ; that then, the public state of things, and interest of the nation, were far different: from what they are now," Political Arithmetick, Economic Writings (Ed. Hull) i 313; cp, Child, A New Discourse on Trade (1694) 140 seqq., who recommends an Act for the naturalisation of strangers for somewhat similar reasons.

Footnote 2: England's Treasure by Foreign Trade (Ed. Ashley) 14 ; and cp, Barbon's remarks on the wine trade, Discourse concerning coming new money lighter 46--"Tho" the importing of wines be certainly cited out against, yet it is one of the best trades to England ; for being a very bulky commodity it pays a great freight ; and being for the use of the richer people it pays a greater duty to the king, and that without complaint. For England being an island, and the riches and strength of it being from trade and shipping, those commodities that are bulky ought to be valued as most profitable."

We must now turn to the other branches of law in which the legislature of the latter half of the seventeenth century showed its activity.

_The Press_

" I deny not," wrote Milton in his Areopagitica, " but that it is of greatest concernment in the Church and Commonwealth to have a vigilant eye how books demean themselves as well as men ; and thereafter to confine, imprison and do sharpest justice on them as malefactors : for books are not absolutely dead things, but do contain a potency of life in them, to be as active as that

## The Press

Soul was whose progeny they are ; may, they do preserve as in a vial, the purest efficacy and extraction of that living intellect that bred them. I know they are as lively and as vigorously productive as those fabulous dragon's teeth ; and being sown up and down, may chance to spring up armed men. And yet on the other hand, unless wariness be used, as good almost kill a man as kill a good book ; who kills a man kills a reasonable creature, God's image ; but he who destroys a good book kills reason itself. . We should be wary, therefore, what persecution we raise against the living labours of public men, how we spill that seasoned life of man preserved and stored up in books." Milton in this eloquent passage states some of the problems which introduction of printing set to the state. How to punish the writers of actually harmful books, how to prevent the publication of books likely to do harm, and yet leave a liberty of writing and publishing sufficient to maintain and increase the learning of the nation.

To solve this problem the Tudors and early Stuarts employed three kinds of expedients. Firstly, they punished as criminal offences the publication of treasonable, seditious, heretical, or blasphemous books. Secondly, they gave large powers of control over printing and publishing to the Stationers' company, which they had incorporated mainly in order that it might supervise this new industry ; and these powers they supplemented when necessary by direct governmental action. Thirdly, they issued comprehensive ordinances, based partly on the needs of the state, but chiefly upon the rules which the Stationers' company had devised for the organization and control of printing. The body of law, thus formed, was the foundation of the press law of the latter part of the seventeenth century, and to some extent of our modern law.

With the first of these expedients I shall not deal at this point. Treasonable, seditious, heretical, or blasphemous publications were dealt with, partly by special statutes or proclamations, partly by the growth of the criminal and civil law of libel. I have already mentioned some of the statutes,1 and proclamations2 directed against various publications of this kind ; and I have already said something of the way in which the Star Chamber dealt with libels.3 With the beginnings of the modern law of libel, criminal and civil, which was based to a large extent on the law created by the Star Chamber, I shall deal in the second Part of this Book.4 Here I shall describe the two other formsThe Enacted Law

of control which emerged during the sixteenth and seventeenth centuries. We shall see that, as the result of their working, unlicensed printing' was suppressed, and the conception of copyright was originated. We shall see, too, that the differences between the control exercised indirectly through the Stationers' company, and that exercised directly by the crown, are at the root of two very different theories as to the origin and nature of copyright.

(1) For the beginnings of the associations, which in 1556 were incorporated as the Stationers' company, we must go back to the fourteenth century.1 In 1357 there is evidence of the existence of a society of writers of court hand and text letters.2 In 1403, these writers of text letters, and those "commonly called limners (i.e. illuminators), and other good folks, citizens of London, who were wont to bind and sell books," were formed into a craft presided over by two wardens, the one a limner and the other a text writer, whose duty it was to provide for the "good rules and governance " of these allied crafts.3 It would seem that about the same period the word " Stationer " was beginning to be applied to the men who thus made or dealt in books.4 Certainly, in 1480, it was applied to persons whose craft consisted in binding, dressing, and gilding MSS.;5 and it is probable, from the account given by Christopher Barker in 1582, that the word "Stationer " was applied to all the various members of this joint craft.6

Footnote 1: For this subject generally see the Introductions to vols. i, ii and iv of Arber's Transcript of the Stationers' Registers.

Footnote 2: Arber, op, cit. i. _xxii_.

Footnote 3: Ibid _xxii_--' that the names of the Wardens so elected may be presented each year before the Mayor, for the time being, and they be there sworn well and diligently to oversee, that good rule and governance is had and exercised by all folks of the same trades in all works unto the said trades pertaining."

Footnote 4: Ibid ii 5-6.

Footnote 5: Ibid iv 24, cites from the accounts of the Keeper of the king's Great Wardobe in the City of London several disbursements to " Piers Bandwyn stacioner for binding gilding and dressing books."

Footnote 6: Ibid i _xxii_--' that the time of king Henry the eighte, there were but fewe Printers, and those of good credit and of component wealth, at whiche type and before, there was an other sort of men, that were writers, Lymners of books and dyverse things for the Church and other uses, called Stacioners.

With the rise of printing, changes necessarily took place. The craft of the printers was obviously closely allied to the craft of the Stationers ; and Barker tells us that the Stationers " have, and partly to this daye do use to buy their bookes in grosse of the saide printers, to bynde them up, and sell them in their shops, whereby they well mayntayned their families."7 The Stationers thus appear as the persons who bought from the printers the books which they bound and sold. They were the The Press

Capitalists upon whom the printers depended.1 And this view is confirmed by the provisions of the statute of 1533-1534, passed to regulate the prices of books, and to prohibit both the importation of foreign-bound books, and the retail sale by aliens of any printed books. The preamble to the statute makes it clear that the craft of printing was already allied with the crafts of book binding and book selling; but the statute itself protects, not the printers, but the book binders, the book sellers, and the book-buying public.2 Thus it is not surprising to find that, when the new craft of printing allied itself with the older association of crafts connected with the production of books, the association was called by the name of its richer and more important members, and became first the craft, and then the company of Stationiers.3 From an early date the Stationers and text writers had settled round St. Paul's Churchyard; and the name Paternoster Row had been given to the street which they chiefly inhabited, because there they sold "all sorts of books, then in use, namely, A.B.C. or Absies, with the Pater noster, Ave, Creede, Graces, etc."4

Footnote 1: Barker says, Arber, op, cit. i _xxr_, "In King Edward the sixth his Dayes, Printers and printing began greatly to increase, but the provision of letter, and many other things belonging to printing, was so exceeding chargeable, that most of those printers were Dryven Throughe necessisite, to compound before hand with the book-sellers at so lowe value, as the printers themselves were most yames small gayners, and often loosers."

Footnote 2: By "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the", "the ", "the", "the", "the ", "the", "the ", "the", "the ", "the", "the ", "the ", "the ", "the ", "the ", "the ", "the ", "the ", ", "the ", ", "the ", ", "the ", ", ", "the ",

### The Enacted Law

contravention of any statute, Act, or proclamation.1 In return, they expected the company to assist the government in preventing the publication of treasenable, seditious, or heretical books, in discovering the authors or printers of any obnoxious works that appeared, and in carrying out the regulations which they made from time to time.3 In the performance of this task the system of registration of published books adopted by the company was an invaluable aid. Unless a printer or publisher had a special patent of privilege from the crown, authorizing him to print a certain book, or certain books of a defined class, he was expected to register with the company all books which he printed or published.3 On each registration the company was entitled to a small fee.4 This system no doubt helped to control the press. Moreover, it was not without its advantages to the printer or publisher; and it is this advantage which is interesting to the legal historian.

Footnote 1: See the clauses of the Charter, above 363 n. 6, and various proclamations cited above 317; cp. Arber, op, cit. 159b; and for some good illustrations of the way in which they exercised their powers see the entries 1st February, 1594, 23rd October, 1597, ibid if 393a-396a; for an order of 1635, made to settle certain industrial disputes, and to regulate the rights of masters and jaumeymen, see ibid v2f-24.

Footnote 2: See the Star Chamber Decree of 1566, printed Arber, op, cit. i i45b; cp. Documents relating to the Bishop of London's search for and list of printing presses in 1583, ibid v2f0r-168b; the orders as to searches and inquiries (1576) if 5a, 5b; and orders as to printing, ibid 6a, 6b.

Footnote 3: Arber, op, cit. ii 24, 25; for the licences granted by the crown see below 365-366; occasionally these patents were brought in to be confirmed by the Company, ibid i 32a.

Footnote 4: Ibid.

Footnote 5: See e.g. Arber, op. cit. i zzib--" Receed of Alexandre lacye for his fyne for that he printed _balllets_ which was other mens coppes. xid. "; such entries are frequent; see e.g. i3b-3zq for a list.

Footnote 6: Ibid iii rta (1596)--" Assigned over unto him (William Leeke) for his copie from master harrison the elder, in full court holder this day by the said master harrison's consent A booke called Venus and Adonis"; ibid 78a (160a)--an assignment of Stowe's Chronicle; ibid 406-707 (1698)--an assignment of " all the estate right title and interest" in 68 works--" Salvo jure culesuqueque"; for an entry saving the rights of a particular person see ibid ii 283a (501).

Footnote 7: Ibid iii rta; this entry of zznd July, r564, is the earliest entry of such a sale; it runs as follows: " Receaved of Thomas Marse for his tycence for pyrimidine of Dygges _Promofication_ and his _tectonics_ which he boughte of lucas harsyon."

Footnote 8: Ibid iii rta; this entry of zznd July, r564, is the earliest entry of such a sale; it runs as follows: " Receaved of Thomas Marse for his tycence for pyrimidine of Dygges _Promofication_ and his _tectonics_ which he boughte of lucas harsyon."

Footnote 9: Ibid iii rta; this entry of zznd July, r564, is the earliest entry of such a sale; it runs as follows: " Receaved of Thomas Marse for his tycence for pyrimidine of Dygges _Promofication_ and his _tectonics_ which he boughte of lucas harsyon."

Footnote 8: Ibid iii rta; this entry of zznd July, r564, is the earliest entry of such a sale; it runs as follows: " Receaved of Thomas Marse for his tycence for pyrimidine of Dygges _Promofication_ and his _tectonics_ which he boughte of lucas harsyon."

Footnote 9: Ibid iii rta; this entry of zznd July, r564, is the earliest entry of such a sale; it runs as follows: " Receaved of Thomas Marse for his tycence for pyrimidine of Dygges _Promofication_ and his _tectonics_ which he boughte of lucas harsyon."

By registration the printer or publisher got an incontestable title to the book registered in his name. It therefore tended to give clearness and precision to the idea of literary property or copyright. The registers show us the growth of this idea. Copyright is protected by the imposition of penalties upon those who infringed it.5 It is assigned,6 sold,7 settled,8 given in trust;9The Press 365 and limited grants are made.\[1\] Its duration is nowhere stated, unless it is expressly created for a limited period.\[2\] It is therefore most probable that it was perpetual; and if we regard it, as it was then clearly regarded, as a form of property, it would naturally be considered to be perpetual, unless a general enactment or order could be pointed to which expressly limited it. Nowhere can such general enactment or order be found. The only limitation on the right of the owner of the copy was an order of 1588 that, if a book was out of print, and, after warning, the owner did not reprint within six months, any member of the company could do so, provided that the author did not refuse, and the owner of the copyright was given such part of the 'profit as the Master and Wardens of the company might order.\[3\]

From the point of view of legal history, the invention of this new form of property is the most important result of the control over the press exercised by the Stationers' company in the sixteenth and early seventeenth centuries. But we have seen that the Tudors, though they gave large powers to companies of this kind, sometimes intervened to control directly the industries subject to their supervision.\[4\] This occurred in the case of the press as in the case of other industries. And, just as in the case of other industries this control gave rise to the conception of a patent right,\[5\] so, in the case of the press, it gave rise to further developments in the conception of copyright.

We have seen that the crown controlled other industries by granting patents of monopoly to certain favoured persons. It adopted the same plan with regard to the printing and publishing industry. Patents were issued to certain persons, giving them the monopoly of printing certain books, or certain kinds of books, for a certain period.\[6\] Thus, to take a few out of many instances, in 1559 R. Tottell had a licence to print during his life " all manner of books concerning the common laws of this realm ";\[7\] and W. Seres had a licence for his life to print primers and books of private prayers.\[8\] In 1589 T. Bright, M.D., had a licence for fifteen years to print all works in shorthand, and any other works

### The Enacted Law

he might compile.1 In 1623 George Wither, the poet, was given a monopoly for fifty-one years in his 'Hymns and Songs of the Church,' and certain other privileges.2 In the majority of cases these privileges were given to the printers; and in many cases to the company of Stationers.3 In fact the company sometimes protested against grants to other persons.4 It would appear, from Barker's report to Burghley in 1582, that these grants were made in many cases to printers who were impoverished, owing to the fact that the most profitable copyrights had become the property of the booksellers;5 and that these grants were not considered by Parliament to be contrary to public policy, can be seen from the fact that the Act of James I., which regulated monopoly patents, provided that it should not extend to "any letters patent or grants of privilege heretofore made or hereafter to be made of, for, or concerning printing."6 The great legal interest of this device consists in the fact that it introduced two new ideas into the conception of copyright. In the first place, copyright no longer depended solely upon the registration by a member of the company of the particular book. It might originate in a grant from the crown, and therefore might belong, not only to a member of the company, but to anyone else. This device, therefore, helped to introduce the idea of author's copyright side by side with the copyright of the publisher or printer. In the second place, these patents introduced the idea of a copyright limited as to duration. Many of these grants were so limited;7 and this, as we have seen, was a conception that did not appear with respect to copyright acquired by registration with the company.

Footnote 1: Arber, op. cit. ii. 16.

Footnote 2: Ibid iv 13,.

Footnote 3: Ibid iii 42--a grant by James I, on 2oth Oct., 1603, of the right to print Primers, Psalters, Almanacks, and Prognostations for ever; Ibid 317, 317b--a second and larger grant to the same effect in 1676.

Footnote 4: See ibid iv 12-20 for an account of the controversy, literary and otherwise, between Writer and the Stationers' company; on Wither's petition, the Council had ordered the Stationers to respect his rights--apparently without much effect, S.P. Dom. 1633-1634 533, ckeliii 80.

Footnote 5: Arber, op. cit. i 174, 175--'The Booksellers being grown the greater and wealthier number have now many of the best Copies and keepe no printing howse, neither beare any charge of letter or other furniture but onile pay for the workmanship. . so that the architect printer growing every daye more and more unable to provide letter and other furniture, requisite for the execution of any good work . will in type be . prejudicial to the commonwealth. These considerations have enforced printers to procure granness from her Majestic of some certainve Copies for the better myrauntenance of furniture, Correctours, and other workmen, who cannot suddaynely be provided, nor suddenly put away ; and if they shoulde, must of necessitite either wantt necessarie lying, or print bookes, pamphletts, and other trifles, more daungerous than profitable."

Footnote 6: 2r James I, c. 3 SS ro.

Footnote 7: Arber, op. cit. ii. 15, 16.

${}^{#}$Arber, op. cit. ii. 15, 16.

The Press \[111\] 367

printers, publishers and others, was satisfactory neither to the state nor to the industry itself. The state, in its warfare against nonconformists, political and religious, found that it needed more stringent rules, and a better machinery for their enforcement. The industry itself suffered from these monopoly patents, because, the right to print a large number of the most profitable books having become vested in a favoured few, there was no chance for the journeymen to rise in their trade and become master printers. At the same time, as there was no adequate limitation upon the number of apprentices which a printer could take, the number of these discontented journeymen was constantly increasing. They formed an organization which systematically pirated the books belonging to the patentees.1 Concessions were made, and a peace was patched up.2 But the result of this controversy, which was being carried on between the years 1578 and 1586, was the assumption by the government of a direct control of the press. The Stationers' company still retained its powers and privileges. But, for the future, it was more closely supervised by the government, and its regulations became merely supplementary to the comprehensive ordinances issued by the government.

Footnote 1: For an account of this controversy see Arber, op. cit. ii 17-21; for some cases in the Star Chamber bearing upon it see ibid 753-769, 790-793, 794-800, 800-804.

Footnote 2: Ibid 781-785; see ibid 786-789 for the list of copyrights presented by the patentees for the use of the poor of the Stationers' company.

(2) The two detailed ordinances which controlled the press were issued by the Star Chamber in 1586 and 1637. It is to these two ordinances that we must look for the origin of the licensing laws. At the same time they recognize the new legal conception of copyright, to which the regulations of the company and the patents of the crown had given birth.

That the somewhat general orders hitherto issued by the Council,3 and the control exercised by the company of Stationers, were insufficient means of restraint, had been for some time apparent. In 1577 William Lambard had drawn an Act, " to restraine the licentious printing, selling, and uttering of unprofitable and hurtful Inglishe books," and had further corrected it in 1580.4 According to this Act, the press was to be subjected to the control of certain governors, without whose licence nothing was to be printed or published. The disorders in the company had emphasised the need for a general regulation of this kind; and therefore in 1586 5 an ordinance, much more comprehensive than Lambard's Act, was issued by the Star Chamber.

Footnote 3: For an order of 1566 see Tanner, Constitutional Documents 245-247.

Footnote 4: Arber, op. cit. ii 751-753.

All presses were to be notified to the company. No printing was to take place in any place except London, Oxford, and The Enacted Law

Cambridge. The archbishop of Canterbury and the bishop of London were to decide as to the number of presses needed ; and no new press was to be set up till the number of presses had fallen below this limit. The company, the archbishop, and the bishop, were to act together in choosing a new master printer when a new appointment became necessary. All books must be licensed by the archbishop and bishop, except books issued by the queen's printer for the queen's service, and except books of the common law, which were to be licensed by the two chief justices and the chief baron. No books contrary to any statute or royal injunction were to be printed ; and no books contrary to " any letters patentes commissions or prohibicions under the great scale of England, or contrary to any allowed ordynance settt downe for the good governance of the Company of Staconers." This last provision, it will be observed, prevented printing in breach of copyright. The number of apprentices which master printers could take was limited ; and power was given to the company to search for and deface offending books, presses, and type. Printers, publishers, booksellers, or binders who took part in the issue of books contrary to this ordinance were liable to be prosecuted before the court of High Commission.1

Footnote 1: For an instance of such a prosecution see S.P. Dom. 1631-1633, clxxovili r3.

The ordinance of 16372 is far more elaborate. It was caused, partly by the recrudescence of trouble between the journeymen and the master printers, but chiefly by the fact that the growing intensity of the political and religious controversies of the day seemed to require a more stringent control of the press. Thus, while the main part of the ordinance is concerned with licensing regulations, we get provisions designed to remedy the grievances of the journeymen, and to protect the copyrights of the printers and publishers. The provisions of the ordinance were to be enforced either by the court of High Commission or in the Star Chamber.

Footnote 2: Arber, op. cit. iv 529-536.

In the first place, it prohibited the publication or importation of all unlicensed books, and provided an elaborate scheme of licensing, together with subsidiary provisions designed to make it impossible that any unlicensed books should appear. Books of law were to be licensed by the two chief justices and the chief baron ; books of history and politics by the secretaries of state ; books of heraldry by the earl marshall ; and "all other books, whether of Divinitie, Phisicke, Philosophie, Poetry or whatsoever " by the archbishop of Canterbury and the bishop of London. All books were to bear the names of the printer and the author.

The Press \[869\] No one who had not served a seven years' apprenticeship to the trade of bookseller, printer, or book-binder, was to trade in books. No more than twenty master printers were to be allowed; and no one of them was to have more than two presses, except one who had been master or upper warden of the Stationers' company, in which case he might keep three. No one was to erect or manufacture a press, or cast type, without notice to the company. Only four type founders were to be allowed. The number of apprentices which a master printer might have was limited. Large powers of search were given to the Stationers' company to discover breaches of the ordinance. Books imported were to be landed only at the port of London.

In the second place, the ordinance directly assisted the journeymen by provisions that only apprentices or free men of the company were to be employed to print, and that the company must take measures to provide employment for all journeymen who were out of work. A master printer was to be obliged to give work to at least one such journeyman if required to do so; and, conversely, a master printer could require any journeyman out of work to enter his employment.1 Indirectly it assisted the journeymen by a provision that no English book should be printed beyond the sea and imported.

Footnote 1: Cp. the rules that an edition should consist only of a limited number of copies, that work might be provided for the journeymen, Arber, op. cit. ii 6a; ibid 883--a similar order of rg87.

In the third place, copyright was protected by a clause which prohibited the forgery of the mark of the company upon any book, or of the mark of any person who had a privilege to print the book. Such books were not to be printed without the consent of the company, or the persons having the privilege to print.

This ordinance thus sums up and codifies the policy pursued during this period with regard to the press. The provisions as to licensing outline the policy which was pursued almost continuously till 1694. The industrial provisions in favour of the journeymen, and the powers of supervision given to the company of Stationers, simply apply to this industry the same policy as was pursued with reference to many other industries.2 The provisions protecting the privileges of authors, printers, or publishers to the sole right of printing certain books, contain the germs of the law of copyright. But we should do well to note that, under these provisions, copyright is closely bound up, both with the privileges of the Stationers' company, and with the patents issued by the crown giving a sole right to print; and we shall see that this double origin of copyright has been the source of very

### The Enacted Law

different theories as to its nature. Here, as in many other cases, the manner in which a right first gained adequate protection and recognition, has had a large influence upon its future development.1

Footnote 1: Below 378-379.

The victory of the Parliament destroyed all this machinery for the control of the press, because it depended directly for its existence and motive power upon the prerogative of the crown, and upon the courts of Star Chamber and High Commission. What policy would the Parliament pursue? The matter did not long remain doubtful. A revolutionary government is peculiarly open to attack and peculiarly sensitive to criticism. At the same time the company of Stationers, and all the industries which they represented, feared that unlicensed printing would mean the loss of the valuable copyrights belonging to the company itself, and to its members.

In a petition, which they addressed to Parliament,2 they pointed out that an unlicensed press was a danger to religion and to the state;3 that the company was best fitted to be entrusted with the control of this industry;4 and, further, that unless the industry was regulated, there was no security for copyright, without which the industries they represented would perish.5 The destruction of copyright, they said, was the destruction of a species of property, the existence of which could be justified upon the same grounds as any other species of property.6 Community of copies would make the trade in books hazardous, and be hurtful to the state, the trade, and the public. It would discourage authors from writing, and ruin orphans and widows whose estate consisted in the income derived from their copyrights. It would impoverish the company itself, because its chief wealth consisted in copyrights, and it would be therefore the less able to regulate the industries it represented, and to giveThe Press

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pecuninary assistance to the state. Finally, unless some sort of regulation was made, there was no security against the importation of objectionable books from abroad, and no protection for the native industry. Milton pointed out in vain that it was perfectly possible to suppress mischievous and libellous books, and to protect copyright, without a system of licensing.1 In vain he asked the Parliament "to consider what nation it is whereof ye are and whereof ye are the governors : a nation not slow and dull, but of a quick ingenious and piercing spirit, acute to invent, subtle and sinewy to discourse, not beneath the reach of any point the highest that human capacity can soar to." In vain he reminded them that "errors in a good government and in a bad are equally almost incident." His advice to Parliament to treat its detractors with contempt fell on deaf ears ; and his vision of the nation, " as an eagle renewing her mighty youth, and kindling her undazzled eyes at the full mid-day beam, purging and unscaling her long abused sight at the fountain itself of heavenly radiance, while the whole noise of timorous and flocking birds, with those that love the twilight, flutter about, amazed at what she means," remained merely a vision. Milton's Areopagitica was, to use his own words, "a strain of too high a mood " to be appreciated by a mere representative assembly.

Footnote 1: "And as for regulating the Press, let no man think to have the honour of advising ye better than yourselve have done in that order published next before this ; that no book be printed, unless the printer's, and the author's name, or at least the printer's be registered. Those which otherwise come forth, ifthey be found mischievous and libellous, the fire and the executioner will be the timeliest and the most effectual remedy that man's prevention can use ; . And, how it (the present order) got the upper hand of your precedent order ; it may be doubted there was in it the fraud of some old patentees and monopolizers in the trade of bookselling, who, under pretence of the poor in their company not to be defrauded, and the first retaining of each man his several copy, which God forbid should be gainsaid, brought divers glorying colours to the House."

The ordinances of the Commonwealth all proceeded upon the lines indicated by the petition of the Stationers' company, and show a gradual approximation to the provisions of the Star Chamber ordinance of 1637. The ordinance of 16432 prohibited any publication of the orders of either House except by order of the House ; and no other book was to be " printed, bound, stitched, or put to sale " unless both licensed and entered in the register of the Stationers' company.3 The copyrights of the company and private persons were not to be infringed, either by printing or importing printed copies. Extensive powers of search and arrest were given to the company, in order that these

### The Enacted Law

provisions might be duly carried out. The ordinance of 16471 provided again for the licensing of all printed matter, and ordered that the author's, printer's, and licenser's name should be on every book. The members of the committees for the militia in London, Middlesex, and Surrey, justices of the peace, and head officers of corporations, were to see to its enforcement. In 16492 a more elaborate ordinance was issued, even more closely modelled on the Star Chamber ordinance of 1637. In addition to provisions as to licensing, printing presses were restricted to London, the two Universities, York, and one press in Finsbury used to print the Bible and the Fsalms; printers must enter into a bond of $300 to observe the ordinance; and no house could be let to a printer, nor implements for printing manufactured, without notice being given to the Stationers' company. Imported books must be landed in London only, and viewed by the master and wardens of the company before they were sold; and no books formerly printed in this country were to be imported. Copyright was not to be infringed. Hawkers of pamphlets and ballad singers were suppressed. In 1652=1653,3 the whole business of printing was put directly under the control of the Council of State, which was to limit the number of presses, master printers, and apprentices. The Stationers' company was to carry out the rules laid down for it by the Council.

Footnote 1: Aarts and Ordinances of the Interregnum i zozt-1023.

Footnote 2: Ibid ii 445-254.

Footnote 3: Ibid ii 606-609.

After the Restoration the provisions of the ordinance of 1637 were in substance enacted by the statute passed in 1662, " for preventing the frequent abuses in printing seditious, treasonable, and unlicensed books and pamphets, and for regulating of printing and printing presses."4 The Act was, in the first instance, passed for two years; but it was continued from time to time till 1679, when it expired.5 It was revived again for seven years in 1685.6 Its effect was to give statutory force to the measures which the crown had taken to control the press in the earlier part of the century, and, as we might expect, the crown did not suffer it to be a dead letter. The press was controlled both indirectly through the Stationers' company, and directly by the licensers appointed by the crown.7 In 1662 L'EstraThe Press

**378**

licenser; and he, as Arber truly says,1\*\* "gagged the London Press then, as it has never been gagged before or since."

Copyright cases were still heard by the Council;2 and the crown availed itself of the exemption of the printing trade from the provisions of James I.'s statute of monopolies 3 to grant, both to individuals and to the company of Stationers, patents giving the sole right of printing books.4 Occasionally a monopoly of this kind was pronounced to be void, when it gave a sole right to print' such things as blank writs, which, by no stretch of the imagination, could be classed as books or pamphlets.5 But generally they were upheld ; and the prerogative of the crown to make these grants was asserted in the widest terms. Thus, in one case, a sole right of printing almanacs was defended on the grounds, either that the almanac was part of the book of common prayer, and therefore based upon "a public constitution," so that the king had the sole right to print it; or that it had no certain author and therefore the copyright, being a sort of res nullius, vested in the king.6 In another case, the sole right of the king to print psalters and primers was said to rest upon the fact that he was head of the church; and it was said that he could restrain and license prognostications of all kinds, because otherwise it would be of dangerous consequence to the government.7 Similarly

### The Enacted Law

the king was said to have the sole right to print books dealing with matters of state or with law; and, that being so, he could grant this right to others. No one, it was said, could discuss matters of state without his sanction;1 while the copyright of all law books must belong to him because the laws were the king's laws.2 Even the legend about the official reporters of Year Books was pressed into the service of those who argued for the king's patentee--the king had paid for their production, and therefore he alone had a right to print them.3 So far were these rights pushed that, when the king's patentee had got hold of the MS. of the third part of Croke's repcrts and printed it without the consent of the owner, the House of Lords refused to give the owner any redress.4 We shall see that the result of the law laid down in these cases was to perpetuate the confusion introduced by the Star Chamber ordinances as to the principles upon which the law of copyright was based.5

Footnote 1: "Matters of State and things that concern the Government were never left to any man's liberty to print that would," Company of Stationers v. Seymour (1677) r Mod. at p. 258.

Footnote 2: "The King hath a particular prerogative over law books, and so he would have had, if the art of printing had never been known. The reasons are, I. All the laws of England are called the King's laws," the Stationers v. the Patentees about the printing of Roll's Abridgment, Carter's Rep. 8q at p. gr; cp. S.P. Dom. 1667-1668 481-482.

Footnote 3: "Certainly the sameThe Press

### The Enacted Law

seditious books ; but no particular penalty was imposed for the publication of these books, which were left to be dealt with by the common law. On the other hand, it penalized conduct which in no way concerned the safety of church or state. Neither House of Parliament could authorize the printing of documents which they might think it desirable to publish. Custom House officers must open packets of imported books in the presence of one of the company of Stationers ; but how can it be known that the packet contains books till it is opened ? Smiths must not make iron work for presses without notice to the company ; but how can a smith know whether any particular piece of iron work is to be used for a press ? Other reasons were based upon the powers of oppression which the Act gave to the licenser and the company, and the arbitrary penalties which might be imposed under it. Others were based upon the new ideas, which were beginning to prevail, as to the injustice of fettering unduly the freedom of the individual. Why should the trade in books be confined to the port of London ? Why, when imported, should they wait an indefinite time till they had passed the licenser ? Why should restrictions be placed on the industries of type founding and bookselling ? Why should the number of workmen be restricted ? Why should there be an obligation to employ workmen when there was no work for them to do ? Other reasons were based upon the hardships to authors. They were fettered by the rights of patentees, whose privileges were based upon crown grants of doubtful validity, and by the privileges of the company of Stationers, who could hinder, perhaps from corrupt motives, the publication of useful books. Other reasons were based on the harm done to learning. The most useful and essential books were monopolized by the patentees. These were often badly printed ; and, as foreign editions of such books could not be imported, scholars could not get the best editions.

These arguments are on a different plane from those which Milton had used without success. But, because they were suited to the temper of the times, and to the comprehension, both of the assembly which used them, and of the assembly to which they were addressed, they succeeded where Milton had failed. The Licensing Act disappeared for ever ; and, with it, disappeared the whole of the machinery for the regulation of the printing and other cognate trades, which had been laboriously built up by the Tudor and early Stuart 'kings, in substance continued under the Commonwealth, and given Parliamentary sanction after the Restoration.

There is reason to think that Parliament did not mean to abandon completely the older policy. Two petitions, similar toThe Press

1977

those addressed to Parliament in 1643,1 had been presented to the House of Commons. One, from the company of Stationers, represented the danger that would ensue to the owners of copyrights if nothing was substituted for the Act.2 The other, from members of the printing trade, pointed out the dangers of leaving the trade open, and the advantages of restricting the number of workmen and apprentices.3 The House of Commons appointed a committee to prepare a bill to establish a new set of regulations for the printing trade; 4 and it may well be that the knowledge that such a bill was contemplated, caused the refusal to renew the Licensing Act to pass without remark. But this bill never matured, and so the whole of the older law disappeared.

Footnote 1: Above 370:

- "Journals of the House of Commons, March 30, 1691.
- "Ibid, April 1, 1691.
- "Ibid, Feb. 1r, 1691; Feb. 27, other members were added; March 2, bill presented; March 7, read a first time; March 1r, order for second reading; April 1, read a second time; April 3, additional powers given to the committee; for another bill introduced into the House of Lords in 1698-1699, which attempted to regulate the press much in the old way, which failed to pass that House, see House of Lords MSS. iii 271 no. 1339; ibid iv 420 no. 1706.
- "8 Anne c. 19.
- "The owners of copyright had petitioned Parliament for a bill to protect their copyrights in 1703, 1706, and 1709; they pointed out that an action for damages was a wholly inadequate remedy," for by the common law, a bookseller can recover no more costs than he can prove damage; but it is impossible for him to prove the tenth, may perhaps the hundredth part of the damage he suffers; because a thousand counterfeit copies may be dispersed into as many different hands, and he not be able to prove the sale of ten. Besides, the defendant is always a pauper; and so the plaintiff must lose his costs of suit . therefore the only remedy by the common law is to confine a beggar to the rules of the King's Bench or Fleet; and there he will continue the evil practice with impunity," cited by Willes, J., Millar v. Taylor (1769) 4 Burr. at p. 2318.

### 378 The Enacted Law

these results we have reached the conditions under which the development of the various branches of our modern law relating to the press will take place in the following period.

It is in the development, during this period, of the law relating to the control of the press that we must look for the origins of copyright, antecedent to the Act of 1709. Those origins must, as we have seen, be sought, partly in the action of the Stationers' company, and partly in the action of the crown. The Stationers' company had so protected copyright that it had come to be in substance a right of property;1 and, their powers to give protection having been recognized by the common and statute law,2 there was good ground for holding that a right of copyright existed at common law. But we have seen that the right was also based upon royal patents giving an exclusive right to print;3 and that both the rights gained by registration with the company, and the rights granted by these patents, were protected, in the earlier part of the seventeenth century, by the courts of High Commission and Star Chamber; and, in the latter part of the century, by the remedies provided by the Licensing Act. Plaintiffs naturally had recourse to these remedies, and not to unsatisfactory actions for damages at common law;4 and this gave rise to the view that copyright was not so much a right of property recognized by the common law, as a right dependent upon royal grant, exercised directly in favour of a patentee, or indirectly through the powers conferred by the crown on the company. As all the cases of copyright reported during this period turned on the rights of these royal patentees, the right was naturally treated by the courts as dependent upon royal grant.

Footnote 1: Above 36+365.

Footnote 2: 4 Charles II. c. 33 SS 5 distinctly recognizes that copyright is gained either by virtue of royal letters patent, or by registration with the Stationers' company; for an interesting case turning upon such registration see Genealogical History of the Croke Family in App. xxx 855-857.

Footnote 3: Above 365-366, 373-374.

Footnote 4: Above 377 n, 6.

Footnote 5: 4 Burr. 2393.

In the eighteenth century the question whether or not copyright existed at common law, independently of royal grant, was elaborately argued in the case of _Millar_ v. _Taylor_ in 1769.5 The majority of the court of King's Bench decided that it was a right of property which existed at common law. But, shortly afterwards, the decision of the House of Lords in _Donaldson_ v. _Beckett6_ that copyright depended solely on the Act of 1709, made the question one of merely academic interest. It was a question, however, upon which the most divergent opinions continued to

## 7 The Statute of Frauds 879

exist. In 1854 this divergence clearly appears in the opinions of the judges, and in the judgments of the House of Lords, in the case of _Jeffreys_ v. _Boosey.1_ But it can hardly be doubted that the view taken by the majority of the judges, both in this case and in the cases of the eighteenth century, that it existed at common law, is historically correct.2 Many of these judgments, and notably the judgment of Erle, J., in _Jeffreys_ v. _Boosey_, display a remarkable historical insight into the origins and mode of development of this branch of the law. As Erle, J., points out, and as the history which I have just related shows, the fact that there are hardly any common law actions for infringment of copyright before the Act of 1709, is not conclusive against the existence of copyright at common law. Their absence is fully accounted for by the fact that more convenient remedies then existed which plaintiffs naturally employed.3 To suppose that copyright depended solely on royal patents or on these special remedies, is to ignore the manner in which the Stationers' company had, without any reference to these patents or these remedies, built it up on the basis described by Erle, J., as "'the most elementary principles of securing to industry its fruits, and to capital its profits." 4

Footnote 1: 4 H.L.C. 875.

Footnote 2: The state of judicial opinion is thus summed up by Erle, J., 4 H.L.C. at p. 875, "In the learned conflict ending with _Donaldson_ v. _Beckett_ the numbers for copyright at common law are in a great majority; Lord Mansfield, Aston, and Wille, J.J., against Yates in _Millary_ v. _Taylor_ and ten judges against one for copyright at common law, and either eight judges against three, or seven against four, for an action for infringment in _Donaldson_ v. _Beckett_"; later, Lords Kenyon and Ellenborough were of the same opinion as Yates, J., in 1; Jeffreys, W. Boosey, Erle, Wightman, Maule, J., and Colloridge, C.J., were in favour of the view that copyright existed at common law; Jervis, C.J., Pollock, C.B., Parke, B., and Lords Brougham and St. Leonards were against it; Crompton, J., Alderson, B., and Lord Cranworth, L.C., did not express an opinion.

Footnote 3: 4 H.L.C. at p. 876; Erle, J., said that, " no record of an action on the case for infringment of copyright prior to the statute of Anne, has been found "; but there appears to be a reference to such an action in The Company of Stationers v. Parker (1685) Skin. 234-235, where it is said that, in The Company of Stationers v. Wright (1683) the company brought an action on the case on their patents; and cp. Ponder v. Bradyl, Lily's Entries 67, in which an action on the case was brought for printing the Pilgrim's Progress, but was not proceeded with, _per_ Willes, J., Millar v. Taylor 4 Burr. at p. 2317.

Footnote 4: 4 H.L.C. at p. 870.

Footnote 5: 4 H.L.C. at p. 870.

Footnote 6: 4 H.L.C. at p. 870.

Footnote 7: 4 H.L.C. at p. 870.

Footnote 8: 2g Charles II. c. 3.

Footnote 9: 4 H.L.C. at p. 870.

Footnote 10: 4 H.L.C. at p. 875.

Footnote 11: 4 H.L.C. at p. 875.

Footnote 12: The state of judicial opinion is thus summed up by Erle, J., 4 H.L.C. at p. 875, "In the learned conflict ending with _Donaldson_ v. _Beckett_ the numbers for copyright at common law are in a great majority; Lord Mansfield, Aston, and Wille, J.J., against Yates in _Millary_ v. _Taylor_ and ten judges against one for copyright at common law, and either eight judges against three, or seven against four, for an action for infringment in _Donaldson_ v. _Beckett_"; later, Lords Kenyon and Ellenborough were of the same opinion as Yates, J., in 1; Jeffreys, W. Boosey, Erle, Wightman, Maule, J., and Colloridge, C.J., were in favour of the view that copyright existed at common law; Jervis, C.J., Pollock, C.B., Parke, B., and Lords Brougham and St. Leonards were against it; Crompton, J., Alderson, B., and Lord Cranworth, L.C., did not express an opinion.

Footnote 13: 4 H.L.C. at p. 876; Erle, J., said that, " no record of an action on the case for infringment of copyright prior to the statute of Anne, has been found "; but there appears to be a reference to such an action in The Company of Stationers v. Parker (1685) Skin. 234-235, where it is said that, in The Company of Stationers v. Wright (1683) the company brought an action on the case on their patents; and cp. Ponder v. Bradyl, Lily's Entries 67, in which an action on the case was brought for printing the Pilgrim's Progress, but was not proceeded with, _per_ Willes, J., Millar v. Taylor 4 Burr. at p. 2317.

### The Enacted Law

have made important additions to many departments both of law and equity. Thirdly, though some of its clauses have been modified or replaced by later legislation, the principles which it has introduced, and many of the detailed applications of those principles which have been worked out by the courts, are part of our law to-day. Fourthly, the most divergent views as to the effects of the statute have been expressed, both by the judges who have interpreted and applied it, and by writers who have explained and systematized the branches of law affected by it.

It is clear that in a history of English law a detailed consideration of the clauses of this statute, and their interpretation, would be out of place. It is equally clear that in such a history some account must be given of its origins, its contents, the causes for its enactment, and its subsequent history. I shall therefore deal with it under the following heads: (1) its enactment and authorship; (2) its contents; (3) the statute in relation to the law of the seventeenth century; and (4) its later history.

1. _The enactment and authorship of the statute.1_

Footnote 1: On this matter the authorities are the Ninth Report of the Royal Commission on Historical MSS, Pt. ii; the Journals of the House of Lords and House of Commons; and a paper by Crawford D. Hening on "The Original Drafts of the Statute of Frauds and their Authors" in Pennsylvania Law Rev. lxi 283-316, in which the information contained in the above cited authorities, and from other sources, is collected, and fascillics of parts of the original drafts of the statute, and amendments to them, are given,

Footnote 2: Journals of the House of Lords xii 638, 645; it will be observed that the bill on its first reading is referred to by its preamble and is not called by its title, Ninth Rep. etc. Pt. ii App. 45.

The present statute of Frauds is the last of four attempts to pass a law for the prevention of frauds and perjuries. We can see the manner in which the statute actually enacted assumed its present shape, and form some conclusions as to the persons responsible for it, if we examine these four attempts in chronological order.

(i) On February 16, 1673, "An Act for preventing many fraudulent practices which are commonly endeavoured to be upheld by perjury and subornation of perjury," was read a first time in the House of Lords; and on February 20, 1673, it was committed under the title, "An Act for the prevention of Frauds and Perjuries." 2 The committee met and adjourned, but took no further proceedings.3 This was a comparatively short bill, which was possibly drafted by the future Lord Nottingham, and certainly contains an amendment in his handwriting.4 The textThe STATUTE OF FRAUDS 881

of the bill will be found in the Appendix,1 and it may be summarized as follows : Firstly, interests in land created by parol, and not put into writing by direction of the parties, were to have the effect of estates at will merely. An addition to this clause, in Lord Nottingham's handwriting, made a deed or note in writing necessary for the assignment, transfer, or surrender of these interests. It will be observed that this clause differed from the corresponding clause in the statute ultimately passed, in that there is no provision for signature by the parties or their agents. Secondly, in actions for debt and other personal actions on parol contracts, of which no memorandum in writing was taken by the direction of the parties, no more than a fixed amount of damages (the amount is left blank in the draft) was to be recovered ; but the clause was not to apply to contracts for goods sold or money lent, or to obligations to pay upon a quantum merit, or upon a contract created by construction of law. Here again there is no provision as to signature by the parties. Thirdly, wills of lands made in time of sickness were to be void, unless the testator was, after the making thereof, seen abroad in some public place. No will of lands was to be revocable by parol, but only by some other will, codicil, or instrument in writing. Nothing was said about wills of chattels personal. Fourthly, declarations, creations or assignments of trust, other than trusts arising or resulting by operation of law, must be made in writing. Fifthly, trust estates were made liable to execution for the debts of the cestuqiue trust. Sixthly, trust estates in fee simple descending to the heir were to be liable to the debts of the deceased in the same way as legal estates.

Footnote 1: App. I.; it is printed Pennis, Law Rev. lxi 285-287; and the points in which it differed from the statute ultimately passed are summarized, ibid 289-290.

(ii) On April 14, 1675, the House of Lords read a first time another " Act for prevention of Frauds and Perjuries." 2 It passed its second reading on the following day, and was committed.3 Lord Nottingham was not on the committee.4 On the 19th, North, C.J., and Windham, J., were ordered to attend the committee.5 On May 10 it was reported with amendments, and ordered to be engrossed.6 On May 12 it was read a third time, and sent to the Commons.7 On May 26 it was read a first time by the Commons ;8 but it was not committed, and, owing to a pr

### The Enacted Law

introduced, was the bill of 1673 as amended by Lord Nottingham.1 It was the amendments and additions made to it in committee that caused this bill to assume substantially the shape of our present statute of Frauds.2 The amendments were made in the committee to which, as we have seen, North, C.J., and Windham, J., had been added ; and many were suggested by North.3 The additions were chiefly due to North, C.J., and Sir Leoline Jenkins. To North was due the clauses as to the estate pur autre vie;4 as to the time from which a judgment bound the lands of the person against whom it was given, and as to the binding effect of judgments upon lands in the hands of bona fide purchasers for value;5 as to the time from which writs of execution bound the goods of the person against whom the writs were sued forth;6 as to contracts for the sale of goods;7 as to the enrolment of recognizances;8 and the proviso to the clause making trust estates assets by descent.9 To Sir Leoline Jenkins was due the raw material for the clauses as to nuncupative wills of personality, and as to the probate of such wills.10 The clause declaring that the statute of Distribution was not to apply to the husband who took administration to his wife's estate, seems to have been added by the committee. A copy of the draft of the bill thus amended will be found in the Appendix.11

Footnote 1: Pennis. Law Rev. lxi 290.

Footnote 2: At was in the deliberations and meetings of this committee, which extended from April 17 to May 6, 1675, that the draft of the bill was wholly altered in structure and detail; and the bill as finally reported by this committee has in general the scope, and, with only some minor differences, the exact language of the statute," ibid 291.

Footnote 3: See the minutes of the committee printed in Pennis. Law Rev. lxi 291-296.

Footnote 4: 29 Charles II, c. 3 SS 12.

Footnote 5: SS 13. 14, 15.

Footnote 6: 29 Charles II, c. 3 SS 16.

Footnote 8: 8

## 7 The STATUTE OF FRAUDS 883

told it that they had "' perused the bill and finde not a worde to be altered in it."1 The further progress of the bill was stopped by a prorogation.

(iv) On February 17, 1676-1677, the same bill was again introduced into the House of Lords and read a first time.2 It was read a second time on February 19 ; and North, C.J., Windham, Jones, and Scroggs, JJ., were ordered to assist the committee.3 On March 6 it was reported with amendments, and ordered to be engrossed.4 On March 7 it was read a third time and sent to the Commons.5 On the 13th it was read a first time by the Commons, and ordered to be read a second time in a full House.6 It was read a second time on April 2 and was sent to a large committee, to which all the lawyers in the House were added.7 On April 12 it was reported with amendments.8 On the same day all the amendments, except one to make the bill temporary, were agreed to, and it was read a third time, and sent to the Lords,9 The Lords agreed to the Commons' amendments on the same day,10 and it received the royal assent on April 16.11

Footnote 10: The committee records of the House of Commons are in the free which destroyed the Houses of Parliament, see Penns, Law Rev, lst 313; but the qth Rep. of the Hist MSS. Commissioner Pt, il App. no. 336 P. 69 as follows :-\* These are to introduce the words ' not being copy-hold or customary interest 'in $ 3, and the words 'in or,' before 'concerning 'in $ 4, to change 'and no other person 'into or by some other person 'in $ 5, to introduce the words 'which lands and tenements reoriors styles rents and other herdefitaments by force and virtue of such execution shall accordingly be held and enjoyed free and discharged from all incumbrances of such person or persons as shall be so reised or possessed in trust for ye person against whom such execution shall be sued ' in $ 10, and the words ' till fourteen days at the least 'in $ 20."

Footnote 11: The committee records of the House of Commons are in the free which destroyed the Houses of Parliament, see Penns, Law Rev, lst 313; but the qth Rep. of the Hist MSS. Commissioner Pt, il App. no. 336 P. 69 asys, 'As amended in the Lords' Committee it is identical with the Act 29 Car, il 5. a, except that the words, ' where the estate thereby bequeathed shall exceed the value of twenty pounds,' and 'or where he or she shall have been resident for the space of ten days or more next before the making of such will 'in $ 8 are wanting in the Draft, which moreover has 'three days 'instead of 'six days 'in $ 70."

The amendments made by the committee of the House of Lords were not important,12 and those made by the committee of the House of Commons were even less important.13 It may be noted that the proviso to the clause making trust estates assets by descent was again drawn and put forward by North, C.J., and inserted in the bill.14

Footnote 13: The committee records of the House of Commons are in the free which destroyed the Houses of Parliament, see Penns, Law Rev, lst 313; but the qth Rep. of the Hist MSS. Commissioner Pt, il App. no. 336 P. 69 asys, 'As amended in the Lords' Committee it is identical with the Act 29 Car, il 5. a, except that the words, ' where the estate thereby bequeathed shall exceed the value of twenty pounds,' and 'or where he or she shall have been resident for the space of ten days or more next before the making of such will 'in $ 8 are wanting in the Draft, which moreover has 'three days 'instead of 'six days 'in $ 70."

Footnote 14: Penns. Law Rev, lst 312; it appears as SS 7 of the statute.

The conclusions as to the authorship of the statute to be

### The Enacted Law

drawn from this discussion substantiate the claims made by Lord Nottingham in _Alsh v. Abdy_,1 and for North, C.J., by his brother.2 Lord Nottingham is responsible for the original draft of SSSS 1, 3, 6, 7, 8, 9, 10, though many of these clauses were subsequently altered in committee.3 North helped to draft SSSS 2, 4, and 25, and he drafted SSSS 5 and 11-18.4 But, though Nottingham and North are mainly responsible for the statute, they were helped by Jenkins, who supplied the raw material for SSSS 19-24,5 and by the other judges and members of the committees of April 17 to May 6, 1675, and February 20 to March 6, 1676, who put into their present form SSSS 2, 4, 6, 9, 10 and 25.6 Thus Nottingham's statement that the Act had had its first rise from him, but that it had afterwards received some additions and improvements from the judges and civilians,7 is substantially accurate; though it neither lays sufficient stress on the importance of these additions and improvements, nor gives us any hint of the facts that North's share in the authorship of the statute is at least equal to Nottingham's, and that many of the amendments, which gave the statute its present form, are due to him.

Footnote 1: (1678) SS Swansat, 66, " And I said that I had some reason to know the meaning of this law ; for it had its first rise from me, who brought in the bill into the Lords' House, though it afterwards received some additions and improvements from the Judges and Civilians."

Footnote 2: Lives of the North's IAT, " He had a great hand in the Statute of Frauds and Perjuries, of which the Lord Nottingham said that every line was worth a subsidy. . For I find in some notes of his and hints of amendments in the law, every one of those points which were there taken care of "; but there seems to be no evidence for his statements that Hale had something to do with the preparation of the statute, and that it originated with North.

Footnote 3: Pennis. Law Rev. lxi 374, 315. 41bid 314-316. 51bid 314-316. 61bid 314-316. 61 Above 352 nn. 9 and 10. 61 In the Record Commission edition of the statutes SS 13 includes SSSS 13 and 14 of the ordinary editions ; for convenience I have adopted the numbering of the SSSS in the ordinary editions, though the numbering of the Record Commission edition is clearly more correct; in the preceding section I have followed the correct numbering of the Record Commission of the statutes.

We must now turn to the contents of the statute.

The statute is stated to be passed, " for prevention of many fraudulent practices which are commonly endeavoured to be upheld by perjury and subornation of perjury "; and most of its clauses are concerned with carrying out this object, by making written or other adequate evidence necessary for certain transactions. The transactions thus required to be evidenced in a prescribed way are : (i) Certain conveyances of interests in land. Leases, estates, and interests in freehold, or terms of years, or any uncertain interests in land (other than leases not exceeding three years at a rent of two-thirds the full value) must be in writing,

## 7 The STATUTE OF FRAUDS 385

signed by the parties. If they are not, they will have the force only of estates at will. Assignments and surrenders of such interests must also be in writing \[1\]. (ii) Wills of real estate must be in writing signed by the testator, or by some other person in his presence and by his direction, and attested in his presence by three or four credible witnesses ; and such wills were only to be revocable, either by another will or codicil executed in like manner ; or by a writing signed by the testator in the presence of three or four witnesses declaring the will revoked ; or by the destruction or obliteration of the document by the testator, or by some one else in his presence and by his directions and consent \[2\]. The statute did not apply to the execution of walls of personal property if the estate was of the value of $\\not\\leq$30 or less \[3\], or if it was a will of a soldier on actual military service or of a mariner or seaman at sea \[4\]. But, in other cases, a nuncupative will of personal property was not to be valid unless (_a_) it was proved by the oath of three witnesses who were present at its making, and were requested by the testator to bear witness to it ; and (_b_) it was made during the last sickness of the deceased, and in the house in which he had been resident ten days before its making \[5\]. Further, after a period of six months from the making of a nuncupative will, no testimony was to be received to prove it, unless such testimony had been committed to writing within six days of its making \[6\]. No written will of personal estate was to be revoked or altered by words, or by a nuncupative will, unless the words were, in the lifetime of the testator, committed to writing, and proved by three witnesses to have been read to and allowed by the testator \[7\]. (iii) Declarations or assignments of trust. Declarations or creations of trusts of lands or tenements must be " manifested and proved " by a writing signed by the party creating the trust, or by his will in writing \[8\]. The same

### The Enacted Law

form was required for the grant or assignment of any trust;1 but the statute was not to apply to trusts which arose or were transferred or extinguished by operation of law.2 (iv) Contracts. Five classes of contracts were declared to be unenforceable by action unless evidenced by a note or memorandum in writing signed by the party to be charged therewith;3 and contracts for the sale of goods for the price of _$10_ or upwards were not to be " allowed to be good," unless evidenced by either acceptance and actual receipt, or by a gift of something as earnest, or by part payment, or by a note or memorandum in writing signed by the parties to be charged.4

Footnote 1: SS 9: SS 4; they are (i) a special promise by an executor or administrator to answer damages out of his own estate; (j) a promise to answer for the debt, default, or mis-carriage of another person; (j) an agreement made in consideration of marriage; (k) contracts or sales of any lands, temements, or hereditaments or any interest in or concerning them; and (j) an agreement which is not to be performed within a year from the making thereof.

Footnote 2: SS 8.

Footnote 3: SS 4; they are (i) a special promise by an executor or administrator to answer damages out of his own estate; (j) a promise to answer for the debt, default, or mis-carriage of another person; (j) an agreement made in consideration of marriage; (k) contracts or sales of any lands, temements, or hereditaments or any interest in or concerning them; and (j) an agreement which is not to be performed within a year from the making thereof.

Footnote 4: SS 7; it was never finally decided whether non-compliance with this section had the same effect as non-compliance with SS 4, and rendered the contract only unenforceable by action, or whether it rendered it void; Lord Blackburn in Maddison v. Alderson (1883) SS A.C. at p. 488, and Brett, L.J., in Britain v. Rossiter (f87g) ir O.B.D. at p. 127, took the view that non-compliance with SS 7 rendered the contract unenforceable, and this conclusion seems to follow from the decision of the court in Bailey v. Sweeting (1861) g C.B. N.S. 843; and cp. Morris v. Baron and Co. (1918) A.C. at pp. 15:16, 24-25, 30-31; on the other hand, Bosanquet, J., in Layhloharp v. Bryant (1836) g Bing, N.C. at p. 747, Jerry, Kelly, C.J., in Leroux, R.W. (1852) t2 C.B. at p. 82a, and Erle, C.J., in Williams v. Wheeler (1860) s C.B., N.S. at p. 312, took the view that such non-compliance rendered the contract void; the doubt is now academic in this country by reason of the provisions of SS 4 of the Sale of Goods Act, 1893, which adopts the phraseology of SS 8 of the Statute of Frauds; but, having regard to the words " allowed to be good," and the requirement that the _parties_ to be charged, must sign (cp. SS 7), there is a good deal to be said for the view that non-compliance with this SS entailed the avoidance of the contract; and this seems to have been the view which commended itselffo S. M. Lekke, see Papers of the Juristical Society i 28r.

Footnote 5: SS 8.

Footnote 6: SS 8.

Footnote 7: Vol. iii 1z3-r25. * SS 1z,

## 7 The Statute of Frauds 887

descended to the heir as special occupant, it was made liable to debts while in his hands, as if it were real property; and if there was no special occupant, it was to go to the personal representative, and to be assets in his hands, as if it were personal property.1 The amendments in the law of procedure provided that judgments charging the land should, as against bona fide purchasers for value, be operative only from the date on which they were signed;2 that recognizances should, as against such purchasers, be operative only from the date of enrolment;3 and that writs of execution should bind the property in the goods of the person, against whom they were issued, only from the time when the writ was delivered to the sheriff to be executed.4 The amendment in the law of succession was the provision that the husband, taking administration to his wife, was not to be bound to distribute the estate in accordance with the statute of Distribution.6

Footnote 1: SS 1.2.

Footnote 2: SS 1.3.

Footnote 3: SS 1.4 set out the old practice, and SS 1.5 provided that the precise date of signing judgment should be entered on the record.

Footnote 4: SS 1.6.

Footnote 5: SS 25; vol. iii 559-56L.

Footnote 6: SS 25; vol. iii 559-56L.

Footnote 7: SS 25; SSupon some of its clauses, unless we bear in mind the state of the law at the time when these interpretations were arrived at, the intellectual bias of different judges both in courts of law and in courts of equity, and the gradual modifications of the law in the succeeding centuries.

To understand the statute in relation to the law of the seventeenth century, we must, in the first place, look at certain of the rules of procedure and evidence then in force. In the second place, we must inquire whether, at this period, the requirement of written evidence of the transactions affected by the statute was so expedient that such evidence was, either generally used, or might fairly, as a matter of public policy, be rendered necessary. In the third place, we must inquire on what principle, if any, the contracts named in the fourth and seventeenth sections were selected, and why they were so loosely described that they have given rise to the enormous mass of case law that has accumulated round them.

At the period when the statute of Frauds was passed the institution of trial by jury was in a transition state. In the first place, the medieval method of controlling the jury by writ of attaint was obsolete,1 the sixteenth and early seventeenth century method of controlling it by fine or imprisonment had been decided by _Bushell's Case_ to be illegal,2 and the modern device of getting an order for a new trial, when the verdict was clearly against the weight of evidence, was in its infancy,3 In the second place, the jury, though generally guided by the evidence, might still decide a case from its own knowledge of the facts--the fact that it had this power was assigned by Vaughan, C. J., in _Bushell's Case_, as one of the main reasons why it could not be punished for finding a verdict contrary to the directions of the court.4 It was therefore a wise precaution to make certain kinds of evidence necessary for the proof of certain transactions, because it placed a limitation upon the uncontrolled discretion of the jury. There was also another reason for the adoption of this precaution. We shall see that the courts were beginning at this period to construct a law of parol evidence.6 But as yet there were few settled rules; and some of the rules, which were settled, precluded the courts from getting information upon the facts at issue from those who were most likely to know them. Neither the parties to an action, nor their husbands or wives, nor any persons who had any interest in the result of the litigation, were competent witnesses.6 The effect of some of these rules, which lasted until they

## 7 The structure of frauds 889

were removed by a series of statutes passed between 1844 and 1854,1 has been pointedly illustrated by Lord Bowen.2 "The merchant whose name was forged to a bill of exchange had to sit by, silent and unheard, while his acquaintances were called to offer conjectures and beliefs as to the authenticity of the disputed signature from what they knew of his other writings. If a farmer in his gig ran over a foot-passenger in the road, the two persons whom the law singled out to prohibit from becoming witnesses were the farmer and the foot-passenger." And we can see from a tale told by Roger North that, in this period, these rules were capable of working grave injustice.3

Footnote 1: 6, 7 Victoria c. 85; r4, r5 Victoria c. 99 SS 2; r6, r7 Victoria c. 83 SS 1, 2.

Though the plan adopted by the statute, of requiring that certain transactions should only be capable of proof by certain specified evidence, does not preclude the risk of forgery or perjury,4 it does ensure that some evidence of these transactions is submitted to the court ; and it thereby renders the prosecution of wholly baseless claims more difficult. Therefore, by reason both of the defects then existing in the system of trial by jury, and of the defects in the law of evidence, the requirement that certain transactions must be proved by certain specified evidence probably effected a considerable improvement in the law of that period.

(ii) The rules of procedure and evidence, which I have just described, go some way to answering the second question. It is clear that they rendered written evidence expedient in cases in which it would be unnecessary or even inexpedient to require it to-day. That being so, it is probable, both that such evidence was then more generally used, and that it was good policy to encourage its use. Indeed, the expediency of making written evidence necessary for conveying land, for the creation or assignment of trusts of interests in lands, and for wills, was obvious

### 390 The Enacted Law

before the statute was passed;1 and it has never been seriously questioned. If the clauses of the statute relating to these matters are not law at the present day, it is because the legislature has been so convinced of the soundness of the principle whichundrelies them, that it has replaced them by other enactments, which require even more elaborate forms. It is the clauses which make written or other specified evidence necessary for certain kinds of contracts that have aroused the most serious criticism. It has been said that they are not only not expedient, but even actively harmful, because they are contrary to ordinary business habits;2 and that they tend, both to encourage the dishonest evasion of obligations,3 and to defeat just claims.4 No doubt this criticism is well founded if we look at these clauses in relation to the law of the present day; and it has some weight if we look at them in relation to the law of the seventeenth century. But, from the latter point of view, any inconvenience resulting from their operation is, I think, outweighed by the fact that they did go some way to meet the evil consequences of the defective condition, both of the system of trial by jury, and of the law of evidence.

Footnote 1: See Lord Ellesmere's statement in 1603, Cary 27-28, cited vol. v 333-334; below 394-395.

Footnote 2: "The chief objection to the statute, and the cause to which most of its difficulties may be traced, seems to lie in this, that the prescribed mole of transacting business is so far at variance with the natural mode, that there is always in practice a conflict between them. . The statute, in prescribing a general use of writing, is at variance with a natural law of social action. Hence it is very commonly disregarded and so operates as a positive danger instead of a safeguard. . If it comes to pass that men may act, almost habitually, in a manner which will bring on them the penalties of the law, or at least deprive them of its protection, and yet without any imputation of moral blame on the score of dishonesty or even of negligence, it surely affords a strong argument to show, that in such case the law is in fault, and has attempted to guide the conduct of men in a wrong direction; and such seems to be the case with the Statute of Frauds," Papers of the Juridical Society i 289; cf. Stephen, L.Q.R.; i 6.

4 The special peculiarity of the zyth section of the Statute of Frauds is that it is in the nature of things impossible that it ever should have any operation, except that of enabling a man to escape from the discussion of the question whether he has or has not been guilty of a deliberate fraud by breaking his word. In some cases no doubt this may protect an honest man against perjury . but in the vast majority of cases its operation is simply to enable a man to break a promise with impunity, because he did not write it down with sufficient formality," L.Q.R. i 3, 4; cp. Papers of the Juridical Society i 288-280.

Footnote 4: In Siewewerwitt v. Archibald (1851) r7 Q.B. at p. r10 (cited L.Q.R.; i 3) Campbell, C.J., said, "I regret to say that the view which I take of the law in this case compels me to come to the conclusion that the defendant is entitled to our judgment, although the merits are entirely against him; although, believing that he had broken his contract, he could only have defended the action in the hope of mitigating the damages; and although he was not aware of the objection on which he now relites, till within a few days before the trial."

## 7 The **T**atute of\*\* **Fraudds** **891**

upon which the contracts named in the statute were selected;1 and, in the second place, that the draftsmanship of these clauses is so bad that they have given rise at different periods to an infinite number of hardly reconcilable decisions.2 It can hardly be denied that there is some truth in these criticisms. But here again I think that their force can be somewhat mitigated by looking at them from the point of view of the law of the seventeenth century.

Footnote 1: "The statute describes the contracts which it would affect, not specifically, but generically, according to various characteristics, which are neither very philosophical nor very definite. In the class of agreements not to be performed within a year the duration of the contract is taken as the test; and therein contracts relating to every possible subject may be included. In the agreements relating to interests in land and the sale of goods the statute seems to have regard to the importance and value of the subject of the contract. The agreements relating to marriage seem to have been included on account of the uncertainty of such transactions; and in the case of executors and suveties, the object appears to be to afford protection to those classes of persons. Arbitrary descriptions, not based on any sound scientific distinctions, are necessarily very vague and uncertain in application, because they have no counterpart in reality," Papers of the Juristical Society i z5o-28i.

Footnote 2: "Stephen, L.Q.R. i, 7, 8.

Footnote 4: "There hath been a variety of resolutions, both in Chnecry and the House of Lords, on this head; notwithstanding which, this matter seems as undetermined as any in equity," Eq. Cas. Ab. i z13; vol. v 377; below 654.

Footnote 5: 22, z3 Charles II. c. ro.

Footnote 6: "Vol. iii 556:559.

Footnote 7: 1bid 576-533.

Footnote 8: 23 Charles II. c. ro.

Footnote 9: 7: 1bid 576-533.

Footnote 10: 11: 12: 13: 14: 15: 16: 17: 18: 19: 20: 21: 22: 23: 24: 25: 26: 27: 28: 29: 30: 31: 32: 33: 34: 35: 36: 37: 38: 39: 40: 41: 42: 43: 44: 45: 46: 47: 48: 49: 50: 51: 52: 53: 54: 55: 56: 57: 58: 59: 60: 61: 62: 63: 64: 65: 66: 67: 68: 69: 70: 71: 72: 73: 74: 75: 76: 77: 78: 79: 80: 81: 82: 83: 84: 85: 86: 87: 88: 89: 90: 91: 92: 93: 94: 95: 96: 97: 98: 99: 99: 90: 91: 93: 95: 97: 99: 91: 96: 99: 92: 93: 97: 98: 99: 90: 91: 93: 99: 94: 99: 95: 96: 97: 99: 98: 99: 99: 99: 90: 91: 93: 99: 91: 94: 99: 95: 97: 99: 99: 99: 91: 99: 92: 93: 99: 94: 99: 95: 99: 96: 99: 97: 99: 98: 99: 99: 99: 99: 90: 91: 99:The Enacted Law

making of such contracts. Contracts of suretyship and contracts not to be performed within the year are, by the nature of the case, continuing contracts. Having regard to the rules of evidence then in force,1 it might be very difficult, when they came to be enforced, to give any evidence of their formation. Therefore it was good policy to provide that they must be evidenced by writing.

Footnote 1: Above 388-38o.

The other contracts--agreements made in consideration of marriage, agreements for the sale of interests in lands, and sales of goods--can be explained by reference to the idea underlying the clauses of the statute relating to the transfer of property.2 They were all contracts which were intended to lead up to some transfer of property ; and, therefore, they fell within the principle of the clauses of the statute which required certain conveyances to be in writing.3 The sale of goods, in fact, operated as a conveyance. But, in this case, the framers of the statute recognized that it would be absurd to require all such sales to be evidenced in one way. They only required specified evidence if the price was over PS10--a larger sum in the seventeenth than in the twentieth century ; and they allowed such a contract to be proved, either by writing, or by certain other acts which evidenced the conclusion of the contract. For these reasons, therefore, I think that the list of contracts specified in the statute was not selected in a wholly arbitrary fashion.

Footnote 2: It was no doubt because it was realized that this was the intent of the framers of the statute that it was held, after a little conflict of opinion, that the statute did not apply to the contract to many, but only to a promise to settle property in consideration of marriage, Philport v. Waller (r682) 3. Lev. 65, Freeman, K.B. 541; Harrison v. Cage (r697) t Ltd. Raym. at p 386; Cork v. Baker (1717) t Stra. 34 ; cp. Wigmore, Celebration Essays 486-488.

(_b_) To undertake a defence of the draftsmanship of these clauses of the statute would be a rash adventure. The long line of cases needed to explain them would seem to afford conclusive proof of its utter want of skill. But to be fair to its framers we should, I think, remember three things. Firstly, the law of contract was as yet young ; it had been developed wholly by decided cases ; and it had very few rules as to the characteristics and incidents of particular contracts. It follows that the framers of the statute were legislating on a branch of the law which was not fully developed, and on a topic which had not before been the subject of legislation. We know from our own experience that statutes framed under these conditions always do, and always must, give rise to many difficulties of construction, when their provisions come to be applied to the infinitely various combinations of facts. From this point of view we may compare these

## 7 The Statute of Frauds 998

clauses of the _statute of Frauds_ to our early Company \_Acts and to our Workmen's Compensation_Acts. Secondly, the want of uniformity in the interpretation applied to these clauses has been partly due to differences between courts of common law and the court of Chancery. We shall see \[1\] that these courts differed in their methods of interpretation, and sometimes in their views as to the expediency and value of these clauses. Obviously difficulties arising from this cause cannot be ascribed to faulty \_drafts-manship. Thirdly, these clauses of the statute have been long-lived. They have remained amid changes, not only in legal, but also in social and commercial ideas. But case law is naturally influenced by these changes--that it is so influenced is not the least of the advantages which it possesses. It follows that changes in the mental attitude of succeeding generations of judges have influenced their _manner of interpreting the statute_; and that it is to these changes that the conflicting character of the \_decisions on the statute is partly _due. But with these two last points I must deal more fully in the following section._

_(4) The later history of the statute._

\_From a very early period the manner in which the statute was treated by the court of Chancery was somewhat different from the manner in which it was treated by the courts of common law. The court of Chancery was inclined to construe its clauses in a somewhat restrictive fashion, and even to modify them materially. Thus, though the statute required that trusts of interests in land should be evidenced by writing, it was laid down that they could be proved by parol, if insistence on the letter of the statute would facilitate a fraud. \[2\] Similarly, though contracts for the sale of interests in land were required to be similarly evidenced, the court would, as we shall see, \[3\] decree specific performance, if there was a parol contract sufficiently evidenced by acts of part performance. No doubt this restrictive method of interpreting the statute was due to the fact that the causes \_which made the provisions of the statute useful in the courts of common law _did not operate in the court of Chancery. The court of Chancery did not depend upon a jury to ascertain the facts, nor were the parties debarred from giving evidence. \[4\]_

_Thus the bias of the court of Chancery was against a too literal construction of the statute_; and naturally that bias was also found

### The Enacted Law

in the decisions of judges - like Lord Mansfield, who aimed at improving the law by the recognition of equitable principles. Thus, in the case of _Simon_ v. _Metivier_,1 Lord Mansfield decided that sales by auction were not within the statute, if the buyer gave his name. He said,2 in giving judgment, " the key to the construction of the Act is the intent of the Legislature ; and therefore many cases, though seemingly within the letter, have been let out of it ; more instances have indeed occurred in courts of Equity than of Law, but the rule is in both the same. For instance, when a man admits the contract to have been made, it is out of the statute, for here there can be no perjury. Again, no advantage shall be taken of this statute to protect the fraud of another. Therefore, if the contract is executed, it is never set aside. And there are many other general rules by way of exception to the statute." Wilmot, J., in the same case, said,3 " Had the Statute of Frauds been always carried into execution according to the letter, it would have done ten times more mischief than it has done good, by protecting, rather than by preventing, frauds. I, therefore, incline to think sales by auction openly transacted before 500 people are not within the statute." On the other hand, the bias of courts of law and of most of the common law judges was in favour of giving full effect to the provisions of the statute. Lord Ellenborough, in the case of _Hinde_ v. _Whitehouse_,4 after referring to these opinions of Lord Mansfield and Wilmot, J., said,5 " With all deference to these opinions I do not at present feel any sufficient reason for dispensing with the express requisition of a memorandum in writing in a statute applying to all sales of goods above the value of $\\not{\\leq}$10, without exception, merely because the quantum of parol evidence in the case of an auction is likely to render the danger of perjury less considerable." He considered that such a view would give rise to an "'indefiniteness of construction " which " would be destructive of all certainty of practice."

Footnote 1: (1766) v. W. Bl. 599. 2 At p. 600. 3 At p. 601. 4 (7866) 7 East 558. 4 At p. 568. 5 6 (7757) I Burr. at pp. 420, 421; cp, Whitchurch v. Whitchurch (7227) Gilb. Rep. at p. 177 where Jekyll, M.R., Raymond, C.J., and Gilbert, C.B., say, " All such laws as have been appointed to restrain the natural dominion have been very restrictively construed, because: solemnities that are appointed are to hinder frauds and perjuries, in the proof of improper instruments, and hindering the party himself from surprise."

We can see the same difference of view between Lord Mansfield and other judges in their remarks on the clauses of the statute which impose formalities upon wills. In _Windham_ v. _Chetavyd_${}^{#}$ Lord Mansfield said, " I am persuaded many more fair wills have been overturned for want of the form, than fraudulent have been prevented by introducing it. I have had a good deal of experience at the delegates ; and hardly recollect a case of a forged or surprise."

## 7 The Statute of Frauds

1.1 Fraudulent will, where it has not been solemnly attested. It is clear that judges should lean against objections to the formality. They have always done so, in every construction upon the words of the statute. And still more ought they to do so, if that system would spread a snare, in which many honest wills must unavoidably be entangled." On the other hand, Blackstone considered the statute to be, " a great and necessary security to private property";1 and, as we might expect, Lord Kenyon expressed views upon the proper mode of construing the statute diametrically opposed to the views of Lord Mansfield. In _Chater_ v. \_Beckett_2 he said,3 "'I lament extremely that exceptions were ever introduced in construing the statute of Frauds; it is a very beneficial statute, and if the courts had at first abided by the strict letter of the Act it would have prevented a multitude of suits that have since been brought." And in _Chaplin_ v. \_Rogers_4 he said,5 "'It is of great consequence to preserve unimpaired the several provisions of the Statute of Frauds, which is one of the wisest laws in our Statute Book."

Footnote 1: Comm. iv 432. (1797) 7 T.R. 201. 3 Ibid at p. 204. 4 (1800) I East 192. 6 Smith v. Westall (1698) r L.d. Raym. 316. 7 Papers of the Juristical Society i. 279. 8 Hanau v. Ehrlich \[rq72\] A.C. 39. 9 At p. 42. 10 Papers of the Juristical Society i 278-279.

The Enacted Law

Abinger have found occasion to lament over the difficulty in attempting to reconcile the cases." It was long a doubtful point whether a contract under seal, which was not signed, was rendered unenforceable by the statute;1 and it was not till 19102 that it was decided that, if a contract fell within the terms of both the fourth and the seventeenth3 sections, the provisions of both must be complied with.

Footnote 1: Bl. Comm. ii 3c6; cp. Cooch v. Goodman (1842) z Q.B. at p. 597; it was decided in Cherry v. Heming (1849) 4 Each at p. 636 that the statute did not apply to contracts under seal--" The statute," said Parke, B., " was never meant to apply to the most solen instrument which the law recognises." It may be noted that in Lernayev v. Stanley (1681) 3 Lew, i, and in Warneford v. Warneford (1727) 1 Stra. 764, it was said that sealing a will was equivalent to signing it; but in Smith v. Evans (1751) 1 Wils. K.B. 313 this was said to be "very strange doctrine."

Footnote 2: Presled Miners Ltd., v. Garner Ltd. \[1960\] z K.B. 776, \[1961\] 1 K.B. 425 C.A.

Footnote 3: SS 17 is now represented by SS 4 of the Sale of Goods Act 1893 which repelaled and substantially re-enacted it, above 386 n. 4.

Footnote 4: Above 395.

Footnote 5: Leake, Papers of the Judicial Society i 271; Stephen, L.Q.R. i ; Pollock, L.Q.R. xixix 247.

Footnote 6: See Second Report of the Mercantile Law Commissioners p. 6, cited Leake, Papers of the Juridiad Society i 2ogon n.

No doubt some of these difficulties have arisen from obscurities in draftsmanship which might have been avoided; but it can hardly be denied that many have arisen from obscurities, which are inevitable when a statute attempts to legislate for matters upon which there is no previous statutory authority, and very little authority in the decided cases. And it is clear that the very different views held by different judges, as to the purpose and wisdom of the statute, have largely contributed to these difficulties.

At the present day most questions arising upon the construction of these sections are covered by authority; and the courts follow the rules which have been authoritatively fixed because they are fixed.4 We no longer find them bestowing upon the statute the hearty praise bestowed by Kenyon and Ellenborough. On the contrary, the prevailing feeling both in the legal 5 and the commercial 6 world is, and has for a long time been, that these clauses have outlived their usefulness, and are quite out of place amid the changed legal and commercial conditions of to-day. This is clearly the last phase. But, when these clauses are at length repealed, let us remember that, though their longevity has troubled litigants, they once had their use; and that the long lines of cases, to which they have given rise, have occasionally contributed something of permanent value to the development of our law. The true character and the essential features of the contract of surety-ship, the difference between the contracts of sale and hire, the difference between a void and an unenforceable contract--have been elucidated principally by the cases which have arisen upon their construction. And let us, who are historians, remember that

## Various Branches of the Law 397

it was one of these cases which reasserted the true historical doctrine, that consideration is not merely one of several possible pieces of evidence for the conclusion of a simple contract, but the necessary condition precedent for the existence of such a contract.1 We shall see that it is probable that the assertion of this principle was not unconnected with the fact that the courts had considered the effect of putting a contract into writing chiefly in connection with the statute of Frauds, and that that statute had provided that such contracts, if not reduced to writing, should be, not void, but only unenforceable by action. It followed that even a contract in writing must satisfy the test of validity imposed upon all contracts not under seal--the test of consideration.2

Footnote 1: Rann v, Hughes (1778) 7 T.R. 350 n.; for the history of the doctrine of consideration see Pt. II. c, 3 SS t.

Footnote 2: Pt. II. c, 3 SS r.

Footnote 3: I2 Charles II. c. 24.

#### Various Branches of the Law

Under this head I shall record briefly the less important changes and developments made by the legislature in various branches of the law. I shall divide these branches of the law into the following groups : (i) the Land Law ; (2) Crime and Tort ; (3) Evidence ; (4) Civil Procedure ; and (5) the Ecclesiasticl Law and Jurisdiction.

1. _The Land Law._ Apart from the Act abolishing the military tenures,3 there are only small changes of detail to record. In 1664-1665 an attempt was made to improve the procedure by which a creditor, who was secured by a Statute Merchant or Staple, could assert his rights.4 In 1666 it was enacted that, if an estate was granted pur autre vie, and the cestuique vie remained beyond the sea or did not appear for seven years, he should be accounted dead ; but that, if he afterwards appeared, his estate should revest in him, and he should recover the mesne profits with interest.5 In 1689 6 permission was given to sell goods distrained for rent if they were not replevied within five days ; corn, hay, or straw were allowed to be distrained ; and new remedies were given both for bound breach and for wrongful distress. In 1691 the statute of Fraudulent Devises provided that, if a man died leaving his heir liable to pay specialty creditors, and devised away his lands, such devise should be deemed to be fraudulent as against these creditors ; and it empowered them to sue the heir and devisee jointly.7 It further provided that, if the

### 998 The Enacted Law

heir or devisee aliened the land descended or devised before action brought, the heir or devisee should become personally liable to pay the debt to the extent of the value of the land.1 The fact that the equity of redemption was now an estate in the land fully protected by the court of Chancery,2 had made several mortgages of the same piece of property possible, and had given opportunities to fraudulent mortgagors, of which they had not been slow to take advantage. It was therefore enacted in 1692 that a mortgagor who borrowed money upon mortgage, without disclosing the existence of judgments, statutes, or recognizances to which he was liable, should, unless he paid up the judgments, statutes, or recognizances within six months after demand by the mortgagee, lose his equity of redemption;3 and that, if a mortgagor mortgaged his land a second time without disclosing the existence of the first mortgage, he should cease to have any equity of redemption as against the second mortgagee.4 It was specially provided that the second mortgagee should be able to redeem.5 The fact that mesne tenure, in the case of estates in fee simple, was now of little importance, is illustrated by an Act of 1695-1696, which provided that a licence in mortmain granted by the crown should be sufficient, whether or not the land was held in chief.6 In 1696-1697 some small improvements were made in the procedure upon a writ of partition.7 In 1698 it was provided (in effect) that a posthumous child should be able to succeed its father under the limitations of a strict settlement, although no trustees to preserve contingent remainders had been appointed.8 In 1700 natural born subjects were permitted to take by inheritance, in spite of the fact that one of their ancestors, through whom they traced their descent, was an alien.9

Footnote 1: SSSSSS 4-6; as to the interpretation of these sections of the Act see British Mutual Investment Company v. Smart (1875) L.R. to Ch. Ap. at pp. 577-578; for the provisions of the Statute of Frands as to the liability of land to debts see above 386-387.

Footnote 11: SS SS SS 4-6; as to the interpretation of these sections of the Act see British Mutual Investment Company v. Smart (1875) L.R. to Ch. Ap. at pp. 577-578; for the provisions of the Statute of Frands as to the liability of land to debts see above 386-387.

## Various Branches of the Law 399

1. _Crime and Tort._

Under this head there are a large number of statutes which either create new offences or sharpen the penalties for offences already recognized. They are extremely miscellaneous in character: but they can be divided into fairly well defined groups.

1. In the first place, there is a group of crimes which directly affect the government of the state.

Of these high treason and offences connected therewith are of course the most important. We shall see that the growth and extension of the doctrine of constructive treason went far to fill up the many gaps in Edward III.'s statute.1 But it was sometimes thought advisable to supplement these doctrines by direct legislation. Thus a statute of 1661 made it treason, during the life of Charles II., to intend any bodily harm tending to the death of the king, his deposition, a levying of war in the realm, or a stirring of any foreigners to invade the realm; provided that such intention was declared by printing, writing, preaching, or malicious and advised speaking.2 Again, as in the preceding period,3 the special circumstances in which the kingdom was placed, or particular dangers to the king, caused special varieties of treason to be created. Thus in 1665 all those who, during the continuance of the war with the United Provinces, did not return to England when ordered to do so by proclamation, or who continued to serve in the army or navy of the United Provinces, were declared guilty of high treason.4 In 1691 the export of arms to France, or setting out for or returning from France without licence, was made treason.5 In 1697-1698 those who had gone to France since December, 1688, or who had borne arms in the service of James II., were declared to be guilty of treason if they returned without licence;6 and those who corresponded with James II., or remitted money to him, or received a pardon or a title of honour from him, were declared guilty of the same offence.7 The recognition by Louis XIV. of the title of James II.'s son, was the occasion in 1701 of two Acts, one of which made it treason to correspond with the Pretender,8 and the other to compass the death of the Princess Anne or the hindrance of her succession to the throne.9 There is also a group of offences which can be

### The Enacted Law

## 6 Various Branches of the Law 401

remedy these defects. After making provision for the trial, in any place at sea or upon land in any of the Plantations, of "piracies, felonies and robberies committed in or upon the sea," or in any place subject to Admiralty jurisdiction,1 the Act provided that the following offences should be punished as piracy : if piracy, robbery, or an act of hostility was committed by a British subject on a British subject under colour of a commission from any foreign prince ; or if a commander or seaman turned pirate, or voluntarily yielded the ship to a pirate ; or if he brought messages from a pirate enemy or rebel ; or if he attempted to persuade any commander or seaman to yield up or run away with ship or cargo, or to turn pirate ; or if he laid violent hands on the commander to hinder him from fighting, or imprisoned the commander, or attempted to raise a mutiny.2 Persons aiding and abetting pirates, either before or after the fact, were to be considered as accessories, and were to be liable to the same punishment as the principals.3

Footnote 1: SS3: I-6. SS SS8 7 and 8. SS8 9 and ro. 4 Vol. i 550-552.

Footnote 2: SS8: Marsden, Law and Custom of the Sea (Navy Records Soc.) i gg _note_.

Footnote 3: See Coke, Third Insit., cap. xlix. ? R. v. Dawson, r3 S.T. at p. 454.

Footnote 4: Attorney-General for Hongdong v. Kwoka-Sing, L.K., SSP.C. at pp. rgg, zoo.

Footnote 5: H.C.L., ii as; in his opinion, "it may be safely stated that in modern times at least, no case has been treated as piracy unless the ship itself has been taken from the control of its lawful master and either plundered or carried off or scuttled by the criminals, or unless the criminals have been cruising as robbers and thieves."

This statute introduced the distinction between piracy by statute, and piracy at common law or ex jure gentium. The latter species of this offence fell under the criminal jurisdiction of the Admiralty, which, as the result of Henry VIII's legislation, eventually came to be exercised in accordance with the rules and the procedure of the common law, and by the judges of the common law courts.4 In the fourteenth century it had not become an offence distinct from robbery or murder on land ;5 and, though it had become distinct in the seventeenth century,6 no attempt to define it seems to have been made till 1696. In that year it was defined by Sir Charles Hedges, the judge of the court of Admiralty, as follows : " Piracy is only a sea term for robbery ; piracy being a robbery within the jurisdiction of the Admiralty. ... If the mariners of any ship shall violently dispossess the master, and afterwards carry away the ship itself or any of the goods with a felonious intention, in any place where the Lord Admiral hath jurisdiction, this is robbery and piracy."7 This definition was approved by Holt, C.J., and the other common law judges composing the court, and by the Privy Council in 1873 ; but, as Stephen has pointed out,9 it is not altogether satisfactory. The infrequency of the offence in modern times 10 is no doubt the reason why its nature has not been more precisely settled.

The Lancated Law

The same causes which had led to legislation for the repression of piracy and cognate offences, led to the enactment, in the same year, of a statute for the punishment of governors of colonies, who were proved to be guilty of oppressing their subjects, or of breaking the laws of England or their own colonies.1 It is clear that the legal position of such a governor was as yet very uncertain. The statute recites that they did not consider themselves " punishable here nor accountable for such crimes and offences to any person within their respective governments;" and so it provided that their crimes should be punishable by the King's Bench, or by such commissioners in England as the king might assign. It was not till the nineteenth century that it has been definitely decided that a governor, who breaks the law, is also amenable to the jurisdiction of the courts of his own colony.2

Footnote 1: I'll William III. C. Iz.

Footnote 2: In Mostyn v. Fabrigas (1774) I Cowp, at pp. 172-173 Lord Mansfield said, "It is truly said that a governor is in the nature of a viecroy; and therefore locally during his government, no civil or criminal action will lie against him : the reason is because upon process he would be subject to imprisonment "; but this dictum has, as to civil actions, been overruled; see Hill v. Bigge (I84) 3 Moo. P.C. 46S, and see pp. 48r-48z; Musgrave v. Pulido (1879) 5 A.C. at p. 107.

(ii) In the second place several statutes were passed to punish more severely offences against property.

Firstly, there are statutes relating to theft and cognate offences. In 1691 thieves and their accomplices were deprived of clergy, if they robbed any person ; if they stole from or robbed any dwelling-house, the owner thereof or an occupant being therein and being put in fear ; or if they broke into any dwelling-house or shop or warehouse annexed thereto in the daytime, and took goods to the value of 5s.3 The same Act also made the buying and receiving of stolen goods, knowing them to be stolen,4 and the stealing by lodgers of furniture and other chattels let to them, felonious.5 In 1698 thieves and their accomplices, if they stole goods to the value of 5s. in any shop, warehouse, coach-house, or stable, were deprived of clergy, even though the premises were not broken open, or the owners or occupants not put in fear.6

Footnote 3: I'll William III. C. Iz.

Footnote 4: In Mostyn v. Fabrigas (1774) I Cowp, at pp. 172-173 Lord Mansfield said, "It is truly said that a governor is in the nature of a viecroy; and therefore locally during his government, no civil or criminal action will lie against him : the reason is because upon process he would be subject to imprisonment "; but this dictum has, as to civil actions, been overruled; see Hill v. Bigge (I84) 3 Moo. P.C. 46S, and see pp. 48r-48z; Musgrave v. Pulido (1879) 5 A.C. at p. 107.

Footnote 5: In Mostyn v. Fabrigas (1774) I Cowp, at pp. 172-173 Lord Mansfield said, "It is truly said that a governor is in the nature of a viecroy; and therefore locally during his government, no civil or criminal action will lie against him : the reason is because upon process he would be subject to imprisonment "; but this dictum has, as to civil actions, been overruled; see Hill v. Bigge (I84) 3 Moo. P.C. 46S, and see pp. 48r-48z; Musgrave v. Pulido (1879) 5 A.C. at p. 107.

Footnote 6: In Vol William III. C. Iz.

Footnote 7: 15 Charles II. c. z.

Footnote 8: 22, 23 Charles II. c. z SS 1; SS 3 provided that a person convicted could elect, instead of being hung, to be transported for seven years; for a bill introduced into

## 5 Various Branches of the Law 403

destruction of plantations and inclosures, a tort for which treble the damage was recoverable ; \[1\] an Act of 1697-1698 provided penalties for the making or selling of fire-works, and the throwing or permitting them to be thrown from houses \[2\].

Thirdly, there is a miscellaneous group of statutes against the infringement of various rights connected with sport. Statutes of 1661 and 1691 \[8\] were passed to suppress the offences of unlawfully coursing, hunting, and killing of deer ; and statutes of 1670-1671 and 1692 provided penalties for poaching, and machinery for arresting poachers, and defined the persons who were to be allowed to keep guns, dogs, and other apparatus of sport \[4\]. It is clear from these statutes that the main principles of the Game Laws \[6\] have emerged.

(iii) In this, as in the preceding period \[6\], the law punished very inadequately injuries to the person which did not result in death. Only one Act \[7\] was passed to amend the law in this respect ; and probably that would not have been passed if Sir John Coventry, a distinguished member of the House of Commons, had not been savagely assaulted by some courtiers, on account of a reference which he had made in the course of a debate to the king's relations with actresses \[8\]. The Act \[9\] relates in the preamble the history of the assault, and makes provision for the apprehension of the culprits in its first five sections. Then, "for the prevention of like mischiefs for the time to come," it provides that certain forms of disablement, inflicted with intent to main or disfigure \[10\], shall be felony without benefit of clergy. Although this was the only Act dealing with aggravated assaults, it was "so narrowly construed that in the well-known case of $R$. v. _Woodburne and Coke_\[11\] the prisoner took the point that his intent was to murder and not to disfigure. He

### The Enacted Law

was convicted because the chief justice told the jury that he must be convicted if they thought he meant to disfigure in order to kill."1

Footnote 1: Stephen, H.C.L, iii iii.r2.

(iv) There are one or two Acts which publish offences against morality or religion, or practices which seemed to be contrary to public policy. An Act of 16942 was designed to render more effectual the Act of 16243 against profane cursing and swearing; and, to make certain that the penalties should be wide;y known, it was ordered that the Act should be publicly read four times a year in all parish churches.4 In 1677 an Act was passed "for the better observation of the Lord's day commonly called Sunday," which imposed various penalties on tradesmen or others who followed their ordinary callings on that day.5 In 1697-16986 penalties were imposed upon parsons who, having been educated in or having made profession of the Christian religion, denied "any one of the persons in the Holy Trinity to be God," or asserted that there are more Gods than one, or denied the truth of the Christian religion, or the Holy Scriptures to be of divine authority. In 1664 the struggle of the legislature with the gambler began. An Act passed in that year imposed a penalty on any person who acquired money or property by fraud in playing at games, or in bearing a share in the stakes, or in betting on the players. It further provided that, if any person betted on the players of such games, and lost any sum exceeding $100, the loser could not be compelled to pay; that the contract to pay, and all securities given for the same, should be void; and that the winner should forfeit treble the value of any winnings above the sum of $100 which he had made.7 In 1698 lotteries were declared to be public nuisances, and a penalty was imposed on those who held them, or took part in them.8

(v) Throughout the seventeenth century, the border country between England and Scotland continued, in spite of the union of the crowns, to be in a very unsettled state. In 1631 a petition to the king alleged that "the want of education on the borders of Cumberland was so great, that the poor inhabitants

## 2 Various Branches of the Law 405

cannot say the Lord's Prayer, and their ignorance of God draws them to robbing, stealing, and all other manner of lewd vices."1 There was very little improvement in the latter part of the century. Roger North, who had gone on circuit with his brother in these districts, says,2 "the county of Northumberland hath been exceedingly infested with thioing of cattle, which is the remains of the Border trade, since the union with Scotland, after the way used in time of peace before. For, as in Italy, the murderer, running into the next territory was safe : so here they stole on either side, and the other under a different jurisdiction was an asylum. . After the union, to prevent this thieving trade, the crown sent commissioners of over and terminer directed to an equal number of English and Scotch, extending to certain limits on each side of the border ; and being continued it is therefore called the border commission. And these meet in their sessions, and hang up at another rate than the assizes ; for we are told that at one sessions, they hanged eighteen for not reading _sicut cienci._ This hath made a considerable reform ; but yet there is need of an officer they call a country keeper, who hath a salary from the country, and is bound to make good all the stolen cattle unless found out and restored." A continuous series of statutes3 throughout this period illustrates the need for establishing a special machinery for dealing with the crimes there committed.

Footnote 1: S.P. Dom. r629-f63r 473; clxxvii r.

Footnote 2: Lives of the North s i r78-179.

Footnote 3: 14 Charles II. c. 22; 18; 19 Charles II. c, 3; 29; 30 Charles II. c. 2; ; r James II. c. 4; 7, 8 William III. c. 7; 12, 13 William III. c. 6;

Footnote 4: 7, 8 William III. c. 3; ; vol. i 390; vol. iv 499 ; above 233-234.

Footnote 5: 4 William and Mary c. 8, the preamble runs, "Whereas the highways and roads . . have been of late time more infested with thioes and robbers than formerly for want of due and sufficient encouragement given and means used for the discovery and apprehension of such offenders, whereby so many murders and robberies have been committed that it is become dangerous in many parts of the nation for travellers to pass on their lawful occasions to the great dishonour of the laws of this realm and the government thereof; "see Macaulay, History of England (ed. 1864) i chap. iii

### The Enacted Law

reward of $\\not\\leq\_{40}$ was promised ;1 and, in addition, the horse, arms, and property taken with the highwayman, provided that they belonged to him.2 The Act of 1698,8 which increased the punishment for certain forms of theft,4 provided that any one who arrested and prosecuted such a thief to conviction, should be entitled to a certificate, which was to be assignable once but not more than once, releasing the holder from all parish and ward offices in the parish or ward where the felony was committed ; and further that any such thief who, being out of prison, gave information which led to the conviction of two other such offenders, should be entitled to a pardon, which was also to be a bar to an appeal for the same crime.5 The same Act also provided that persons convicted and entitled to benefit of clergy should be burnt in the cheek and not in the hand;6 that no fees should be payable by witnesses bound over to give evidence against a prisoner accused of treason or felony ; that no more than 2s should be exacted for drawing an indictment against any felon ;7 and that clerks and others who drew defective indictments were to be liable to a penalty of $\\not\\leq\_{5}$.8 The exclusion of offences from the benefit of clergy continued;9 and in 1691 it was provided that if a prisoner charged with any of these offences stood mute, the effect was to be the same as if he had pleaded and been convicted.10 On the other hand, the same Act extended the benefit of clergy to women ;11 but it was enacted in the following year that the extension was to be for a first offence only.12 In 1692 some small improvements were made in the procedure of the Crown Office;13 and, in the same year, another statute attempted to prevent malicious informations for misdemeanour exhibited in the King's Bench by the Master of the Crown Office; and made some improvements in the process for the reversal of outlawries, other than outlawries on charges of treason or felony.14 In 1694 it was provided that felons who pleaded a pardon might be compelled to give security for good behaviour for seven years.15 In the same year an attempt was

## 4 Various Branches of the Law 407

made to stop the hindering of proceedings at quarter sessions by obtaining (for no sufficient cause) writs of certiorari to remove them before trial.1 In 1698-1699 powers were given to the justices of the peace to levy rates for building or repairing the country gaols.2

Footnote 1: 5, 6 William and Mary c, Tr; made perpetual by 8, 9 William III. c. 33 ; a bill had been passed by the House of Commons upon similar lines in 1667, but the judges had opposed it, and it was lost in the House of Lords, Hist. MSS. Com. 8th Rep. 173 no. 99; ibid 116 no. 129.

Footnote 2: 17 William III. c. tg,

Footnote 3: Above 384-386.

Footnote 4: Above 406.

Footnote 5: 22 Charles II. c. 5; r2 Charles II. c. 7z was passed to determine which of the judicial proceedings of the Commonwealth should stand good, and which were to be void ; SS 8 of the Act provided that the judges, barons of the Exchequer, commissioners of sewers, bankrupts, and charitable uses should cease to hold office on May 8, 166o.

Footnote 6: 17 William and Mary c. 4.

Footnote 7: 18 William III. c. tg,

Footnote 8: 29 Charles II. c. 5; r2 Charles II. c. 7z was passed to determine which of the judicial proceedings of the Commonwealth should stand good, and which were to be void ; SS 8 of the Act provided that the judges, barons of the Exchequer, commissioners of sewers, bankrupts, and charitable uses should cease to hold office on May 8, 166o.

Footnote 8: 19 William and Mary c. 4.

Footnote 9: 20 Charles II. c. 5; r2 Charles II. c. 7z was passed to determine which of the judicial proceedings of the Commonwealth should stand good, and which were to be void ; SS 8 of the Act provided that the judges, barons of the Exchequer, commissioners of sewers, bankrupts, and charitable uses should cease to hold office on May 8, 166o.

Footnote 10: 21 May 11.

Footnote 4: 22 Charles II. c. 3; r2 Charles II. c. 7z was passed to determine which of the judicial proceedings of the Commonwealth should stand good, and which were to be void ; SS 8 of the Act provided that the judges, barons of the Exchequer, commissioners of sewers, bankrupts, and charitable uses should cease to hold office on May 8, 166o.

### The Enacted Law

In order to relieve creditors, whose debtors, with intent to delay their creditors' actions, remained in prison, it provided a means by which creditors could proceed to judgment against such prisoners.2 Further provisions for the benefit both of creditors and debtors were made by an Act of 1696-1697.3 That Act made provision for punishing gaolers who allowed persons imprisoned for debt to escape, and for permitting creditors to take further proceedings against such escaped prisoners; for compelling sheriffs to arrest debtors though they fled to pretended privileged places such as Whitefriars; 4 and for settling the chamber rent that such prisoners could be compelled to pay. The inconvenient rule, that, upon the death of the parties or some of them before final judgment, an action abated, was partially remedied. In 1665 it was provided that the death of either party between verdict and judgment in real, personal, or mixed actions was not to render the judgment liable to be reversed; 5 and in 1696-1697, that if there were two or more plaintiffs or defendants and one died, and the right to sue or the liability to be sued survived to the others, there should be no abatement of the action.6 Attempts were made to prevent the delays which could be interposed by bringing writs of error. An act of 1661 7 extended to certain other actions the rule made by an Act of 1606,8 that execution was not to be stayed by writ of error, unless security for double the amount of the sum adjudged to be due and costs were given; and, if the judgment was affirmed, the plaintiff in error was to pay double costs.9 In 1698 it was provided that no fine recovery or judgment in a real or personal action should be reversed for error after twenty years.10 Several statutes endeavoured to amend defects in

## 5 Various Branches of the Law 409 the jury system.

In 1664-1665 a property qualification was required for jurors; changes were made in the mode of summons; and penalties were imposed on sheriffs who took bribes to excuse the appearance of particular persons.1 In 1695-1696 an attempt was made to remedy some of the delays in proceeding to trial at assizes, and in summoning jurors.2 In 1665 " the intricate and dilatory proceedings" upon the action of replevin were in some points amended.3 In 16924 provision was made for the more easy discovery of judgments given in the courts of common law.

Very few statutes relate to the law of pleading. An Act of 1664-1665 enumerated certain defects of form which, in civil cases, were not to stay judgments or be a ground for their reversal; 5 and an Act of 1696-1697 allowed a plaintiff in an action on a penal bond to assign as many breaches as he pleased.6

Footnote 1: 16, 17 Charles II. c. 3; modified by 4 William and Mary c. 24 SS 16; for another bill on this subject in 1678 see Hist. MSS. Com. 9th Rep. App. Pt. ii 122 no. 614.

One or two Acts deal with the officials of the Courts and their fees. In 1692 power was given to the chief justices to appoint commissioners to take special bails in the country; 7 and in 16658 and 16949 certain old fees or exactions by officials of the courts of common law were taken away. As in the preceding period,10 attempts were made to discourage the bringing of frivolous or trifling suits in the courts of common law. It was provided in 1670-1671,11 that, if the damages recovered by a plaintiff in a personal action (other than an action for assault or an action in which the title to land was in question) were under 40s., he should receive only the same sum for costs as he had recovered for damages; and in 1696-1697 successful plaintiffs and defendants in certain actions were given a statutory right to costs.12

Footnote 1: 16, 17 Charles II. c. 3; modified by 4 William and Mary c. 24 SS 16; for another bill on this subject in 1678 see Hist. MSS. Com. 9th Rep. App. Pt. ii 122 no. 614.

Footnote 2: 7, 8 William III. c. 32; supplemented by 8; 9 William III. c. 10.

Footnote 3: 17 Charles II. c. 7.

Footnote 4: 4 William and Mary c. 20.

Footnote 5: 16, 17 Charles II. c. 8 SS 1-it did not apply to appeals of felony or pleas of the crown other than revenue cases; for earlier statutes on this subject see vol. iv 535-536.

Footnote 4: 8, 9 William III. c. 7 SS 8.

Footnote 7: 4 William and Mary c. 4.

Footnote 8: 17 Charles II. c. 6-an argument called damages cleer exacted by the protohontaries of the King's Bench and Common Pleas; for this see vol. i 255-256.

Footnote 9: 5, 6 William and Mary c. 12--capias pro fine--a fine for breach of the peace payable to the king by unsuccessful defendants in actions for trespas, but compounded for by the payment of a small sum to an official, and never estreated into the Exchequer; the officials abused the process, outlawing defendants unless they compounded to their satisfaction, see Runnington, Ejectment 405.

Footnote 10: Vol. iv 539.

Footnote 11: 22, 23 Charles II. c. 9 SS 9, extended to Wales by ii William III. c. 9.

Footnote 12: 8, 9 William III. c. 17 SS 8. 1-4; for the history of the law as to costs see vol. iv 536-538.

### The Enacted Law

and (ii) statutes dealing with the ecclesiastical jurisdiction over the administration of the estates of deceased persons.

(i) Several statutes relate to marriages, births, and burials. In 1660 all marriages solemnized since 1642, according to the law then in force, were confirmed.1 In 1694 two Acts had imposed a duty on marriage licences ; and it had been provided that no person should marry without having got such a licence, unless banns had first been published.2 An Act of 1695-16963 imposed penalties on persons marrying, and on priests who performed the marriage ceremony, or who permitted others to perform it, without licence or banns. It further provided for the notification of all births to the person, and the keeping by him of a register of births;4 and for the notification by him to the collectors of the tax on burials of all cases in which he had buried a person resident in another parish.5 In 1677 regulations were made as to gifts for the augmentation of livings;6 and in 1691 as to the amount of titles on flax and ,7 and in 1695-1696 as to the recovery of small titles.8 The writ _de haeretico comuurando_ was abolished in 1677--with a proviso that its abolition was not to take away the ecclesiastical jurisdiction in cases of blasphemy, heresy, and schism.9 On its repeal; a news letter tells us, "the chancellor observed, and was hummed for it, that the Parliament had taken away Smithfield Purgatory."10 In 1688 it was provided that the simoniacal promotion of a clerk should not, after the death of such person, prejudice an innocent patron, or the _bona fide_ lessee of such person.11

(ii) With the Statutes of Distribution--the most important of the statutes affecting the ecclesiastical jurisdiction over the administration of the estates of deceased persons--I have already dealt.12 I have dealt also with the statutes of 1692 and 1695-16Absence of Legislative Reforms 411 r696 which abolished the restrictions on testation which still existed in the province of York and in Wales1 The only other statute on this topic is an Act of 1678, which provided that the personal representatives of executors de son tort, who had wasted or converted to their own use the goods of the deceased, should be liable to make good the damage caused by their testator or intestate.2

Footnote 1: 4 William and Mary c. 2; 7, 8 William III, c. 38; vol. iii 55a2.

In this series of statutes there are hardly any indications of the great Revolution which had taken place in 1688. It is clear that that Revolution was not accompanied by any great reforms in private law; and, as we have seen,3 the changes which it made directly in our public law were comparatively small. It is true, as we shall see,4 that bills were from time to time introduced which, if carried, would have introduced more extensive reforms. But, as the statute book shows, they never become law. The reason for this we must now consider.

Footnote 2: 30 Charles II. c, 7, made perpetual 4 William and Mary c, 24 SS1; cp. Hist. MSS, Com. 9th Rep. App. Pt, ii 103 no, 502, and cp, ibid nos. 518, 580.

Footnote 3: Above 241:242.

_The reasons for the Absence of any Great Legislative Reforms at the Revolution_

The cause of this phenomenon is to be found in the political character of the Revolution. We have seen that its character was shaped by the fact that is was the work of a coalition of all parties in the state for a particular object; that all parties were agreed in the necessity of getting rid of a Roman Catholic king, who had deliberately broken the law in order to favour his religion and enlarge his prerogative; but that it was only a very inconsiderable minority who wished for any further changes. We have seen, too, that the political experiments of the Commonwealth period had instilled a healthy fear of any departure from the established constitutional order which was not absolutely necessary.5 As it was with public, so it was with private law. The extensive law reforms projected by the Commonwealth statesmen, had succeeded in convincing the great majority both of lawyers and laymen, that such reforms were likely to prove a remedy worse than any disease from which the law was suffering. But, to understand both the strength of and the justification for this feeling, it is necessary at this point to make a short digression, and to give a brief account of the reforms which were proposed during the period of the Commonwealth, and of the legislative measures which were actually passed. We shall then be in a

### The Enacted Law

position to understand why the Revolution was not accompanied by any large legislative changes, and to come to some conclusions upon the question whether this phenomenon was beneficial or otherwise to the development of English law. The subject therefore falls under three heads : (1) the law reforms proposed during the Commonwealth period; (2) the legislation of the Commonwealth; (3) the question whether, at the end of the seventeenth century, large measures of legislative reform would have been beneficial to the English legal system.

1. _The law reforms proposed during the Commonwealth period._

The English legal system, as it existed at the period when the Commonwealth was established, was the product of a gradual and a continuous growth, which had corresponded with the growth of the nation. It had been adapted to the new needs created by this national growth by many different methods. We have seen that the failure of the mediaeval common law to cope with the problems set by the growth of the modern state, had led, during the sixteenth and seventeenth centuries, to the growth of new courts and councils, which had both supplemented the deficiencies of the mediaeval common law, and had originated new bodies of law.1 But the rivalry which naturally sprung up between the common law and these new bodies of law had made for the expansion of the common law.2 That expansion had taken place, partly by means of judicial decisions, partly by legal fictions, partly by the adaptation of mediaeval machinery to new uses, and partly by changes in, or additions to, the law made by the legislature.3 But, though the law had thus been adapted to the needs of the modern state, the methods by which it had been thus adapted had led to conflicts of jurisdiction between rival courts,4 to a cumbersome, a dilatory, and an expensive procedure,5 and to other abuses, in which many of the officials of the courts,6 and many members of the legal profession,7 had a vested interest. Naturally, at a period when all existing institutions were put upon their trial, these obvious abuses attracted attention. Men began to ask why they they should be suffered to continue in a new made state. And, as the men who asked these questions were the rulers of the state, it was certain that a determined attempt to reform these anomalies would be made.

Footnote 1: Vol. v chaps. iii and iv. * Ibid chap. v. * Vol. iv chap. ii. * Vol. i 459+65, so8-516, 553-558, 610-611; vol. v 428-433, 438+440, 492-493- * Pt. II. c. 7 SS 2. * Vol. i 256-259, 424-428. * Ibid 257-262, 422-425, 425. * Above 152-154, 158-159.

## Absence of Legislative Reforms 418

religious programme these sets generally added a political programme : 1 and, as part of their political programme, they advocated some very radical plans of law reform. There were those who wished to "clear the law of everything, "either properly and directly, or collaterally and obliquely repugnant to the law of God," a method . .

### 414 The Enacted Law

connected with the prerogatives of the monarchy now abolished, others with the privileges of lawpers and officials, others with the old ecclesiastical order, others with the intricacy of legal rules--were to be abolished. Thus reformed, the law was to cease to be an expensive burden to the people, and become the means of distributing justice and protection cheaply and quickly. The aims of these more moderate reformers are illustrated by a tract written by John Warr in 1649, upon "The Corruption and Deficiency of the Laws of England."1

" The proper fountain of good and righteous laws," is, he says, "a spirit of understanding with freedom, and having a simple respect to people's rights,"2 "So far as the laws advance the people's freedoms, so far they are just ;" but so far as they advance the prince's prerogative they are unrighteeous.3 The laws of England are unrighteeous because, since the Norman Conquest,4 the prerogative "hath the greatest influence and is the chiefest ingredient in the mixture of law."5 It is true that, since the Conquest, the king's power has been abridged; but, in spite of this, his interest is "the great bias and rule of law," and the interests of the people are very little respected.6 "Good patriots should study the people as favourites do the prince."7 They should therefore aim at seeing that the laws secure to all "an equal and a speedy distribution of right,"8 English law does not secure this. To those who are inclined to deny this proposition the author addresses the following list of pertinent questions, which sum up the current objections to the law, and indicate the main objects of the reformers :--9

"Why are there so many delays, turnings and windings, in the laws of England?

"Why is the law a meander of intricacies, where a man must have contrary winds before he can arrive at his desired port?

"Why are so many men destroyed for want of a formality and punctilio in law ? And who would not blush to behold seemingly grave and learned sages prefer a letter, syllable, or word before the weight and merit of a cause?

"Why do the issue of most law suits depend upon precedents rather than the rule, especially the rule of reason ?

"Why are men's lives forfeited by the law upon light and trivial grounds?

"Why do some laws exceed the offence ? And, on the con

## Absence of Legislative Reforms 415

trary, other offences are of greater demerit than the penalty of the law?

" Why is the law still kept in an unknown tongue, and the necessity of it rather countenanced than corrected?

" Why are not courts rejourned into every county, that people may have right at their own doors, and such tedious journeys may be prevented?

" Why under pretence of equity and a court of conscience are wrongs doubled and trebled upon us, the court of Chancery being as extortionous or more than any other court?"

All these undoubtedly evils should be redressed. Nor should people be apprehensive that such a reformation would sweep away the state, and the fundamental laws upon which it rests, "The notion of a fundamental law is no such idol as men make it. For, what I pray you, is fundamental law, but such customs as are of eldest date, and longest continuance? ... The more fundamental a law is, the more difficult, not the less necessary to be reformed."1 As these ideas were held by many of the Commonwealth statesmen, the introduction of large proposals of law reform was inevitable.

We can distinguish two chief sets of these proposals. The first set is contained in the bills which were considered by the Little Parliament in 1653,2 and the second, in a little book written by William Shepherd, entitled _England's Balme.3_

Cromwell intended to introduce measures of law reform both in the Parliament of 16544 and in that of 1656;5 and this book represents the opinion of one who had been summoned to discuss the measures to be introduced in 1656.6 I have already given

### The Enacted Law

some account of the changes proposed, and the changes actually made in the judicial system during this period.1 Here I shall describe shortly the chief changes which were proposed to be made in the various branches of the substantive law.

Footnote 1: I did not have any meaning to be confused with the fact that

## 4 Absence of Legislative Reforms 417

and the estate was to go to the heir, and be assets as if it were an estate in fee simple.1 The half blood was to be admitted to succeed in default of heirs of the whole blood.2 Younger children were to have a third of their parent's real property, if they were neither advanced by the parent nor married with his consent, and if they had not acquired land by descent from the parent by local custom, nor been barred by the parents' declaration made before two witnesses or in writing.3

Footnote 1: Somers' Tracts vi 235, Sect. xxi; cp. 33, 34 Victoria c. 23.

_Criminal Law._--In the criminal law there had been, throughout English legal history, no extensive statutory reforms. Statutes had added new offices; but they had interfered very little with existing rules. Hence there was a large scope for the reformer's activity. The plea of "not guilty" was abolished, and for it was substituted the plea "I abide my lawful trial."4 Peine forte et dure was abolished, and standing mute was made equivalent to a conviction.5 Prisoners were allowed to have counsel, and their witnesses were to be sworn.6 Pardons as of course were abolished, and, where they were formerly issued, the prisoner was to be acquitted.7 The benefit of clergy was taken away, and, in certain cases in which clergy might have been pleaded, the punishment was mitigated.8 Women sentenced to death were no longer to be burnt, but to be hung.9 Provision was made for rewards to prosecutors and others by whose assistance criminals had been brought to justice.10 Forfeiture of goods in consequence of suicide was abolished.11 No civil action was to lie for goods feloniously taken till the offender had been prosecuted.12 Special provision was made for duelling and challenges to duels,13 for drunkenness, cursing, swearing, and Sabbath breaking.14

Footnote 1: Somers' Tracts vi 235, Sect. xxi; cp. 33, 34 Victoria c. 23.

_Equity._--We have seen that the delays and expense of the court of Chancery had caused such an outcry against the court

### The Enacted Law

that, all through this period, attempts had been made to reform both the court itself and the system of equity procedure.1 Some proposals were also made for reforms in the doctrines of equity. But these were neither so numerous nor so detailed as the suggested reforms in equity procedure or in common law doctrine, because the doctrines of equity had not as yet attained to any great degree of fixity.2 Some of these proposed changes favoured the common law at the expense of the Chancery. Thus it was provided that no injunction was to be issued against proceedings at common law upon a bill of exchange;3 and in other cases the power to issue such injunctions was limited.4 It was also provided that, if a trustee was liable to account, he should be made to account by the common law action, and not in any other way.5 The period for redeeming existing mortgages was limited to two years, and thereafter to one year from the mortgage's entry after condition broken;6 and in other respects the mortgagor's position was made more onerous than it was under the existing equitable rules.7 It was further provided that, if equity relieved against a penalty or a forfeiture, double damages should as a general rule be payable by the party relieved.8

Footnote 1: Vol. i 437-434: * Vol. v 299-338.

- Somers' Tracts vi 207, Sect. xxv.
- Ibid 2az, Sect. xxii.
- Ibid 209, Sect. xxi.
- Ibid 210; six months was to be the longest period allowed for redemption, Sect. xxvi; the mortgage in possession was only to be responsible for the profits
- he hath clearly made,' deducing charges, and the amount was to be ascertained by his cath alone, Sect. xxvi.
- Ibid Sect. xxi--excepted cases were when the party Iiable was an infant, or could prove that the fault was not caused by his carelessness.
- Ibid 189; cp. 36, 37 Victoria. c, 66 8 25, 6; for a similar proposal in r673-r674 see Journals of House of Lords xii 538, 623.
- Ibid r79-180.
- Ibid r81--the ages were r7 for a male and r5 for a female.
- Ibid 180-r81.
- Ibid r80; cp. 7, 8 William III. c, 35 SSS 4 and 6; above 4to.

## Abstract

The first step is to develop a new method for computing

### The Enacted Law

recovery of land was substituted for the "chargeable and uncertain" action of ejecentent ;1 and some changes were made in the action of replevin, and some additions to the chattels which were distrainable.2 Many reforms were made in particular rules of procedure and pleading. Of the reforms in the rules of procedure the following are instances: Fines upon bills, declarations, and original writs were abolished.3 The time within which certain pleadings must be delivered, and the trial must take place, was specified; 4 and rules were made as to the qualification of jurors, and as to the modes of summoning them.5 Very detailed rules were made as to the execution of judgments against the person and property of debtors.6 Debtors who could not pay must work, and give half their earnings to the creditor.7 Even if released from prison on account of poverty, they were to be detained in the workhouse.8 Of the reforms in the rules of pleading the following are instances: Colour in pleading, and new assignments were prohibited; 9 and there was to be no demurrer of the parol in actions against infants.10 If a defendant pleaded the general issue, he must set down also the substance of the matters he proposed to rely upon at the trial.11 Tables of the fees chargeable both in civil and criminal proceedings were provided.12 Finally, it was specially stated that, " all persons should be alike liable to the proceedings of justice without any benefit of privilege."12

Footnote 12: Somers' Tracts vi 228-229, Sect. lixixi; cp. 15, 16 Victoria c. 76 SS88 186-227; for the history of this action see Pt. II. c. x SS 1.

Footnote 13: Somers' Tracts vi 227-228; Sects. lixixi; xviii; cp. 17 Charles II. c. 7; 2 William and Mary c. 5; above 397.

Footnote 14: Ibid 216, 217, 218, Sects. xxii, xvivi, xviii, xixix.

Footnote 15: Ibid 22, 218, Ag, Sects. xxx-xxxii; cp. 16, 17 Charles II. c. 3; above 409.

Footnote 16: Ibid 217, Sect. xxi; for the doctrine of colour see vol. iii 639 n. x; for both rules see Pt. II. c. y SS 2;

Footnote 17: Ibid.

Footnote 18: Somers' Tracts vi 223, Sect. xviii; for demurrer of the parol see vol. iii 513-516.

Footnote 19: Somers' Tracts vi 217, Sect. xxv; for the general issue see Pt. II. c. 7 SS 2.

Footnote 13: Ibid 225, Sect. lvii.

Footnote 14: Ibid 221-212, Sect. i.

Footnote 15: Ibid 230, Sect. lxxxiv.

Footnote 16: Ibid 184.

Footnote 17: Ibid.

Footnote 18: Ibid.

Footnote 19: Slomers' Tracts vi 223, Sect. xviii; for demurrer of the parol see vol. iii 639 n. x; for both rules see Pt. II. c. y SS 2;

Footnote 19: Somers' Tracts vi 233, Sect. xviii; for demurrer of the parol see vol. iii 513-516.

Footnote 11: Somers' Tracts vi 217, Sect. xxv; for the general issue see Pt. II. c. 7 SS 2.

Footnote 12: Somers' Tracts vi 233-334, 239-240.

Footnote 13: Ibid 225, Sect. lvii.

Footnote 14: Ibid 221-212, Sect. i.

Footnote 15: Ibid 230, Sect. lxxxiv.

Footnote 16: Ibid 184.

Footnote 17: Ibid.

Footnote 18: Ibid 231, Sect. lxxxiv.

Footnote 19: Ibid 184.

Footnote 19: Ibid 232, Sect. lxxxiv.

Footnote 17: Ibid.

Footnote 18: Ibid 234, Sect. lxxxiv.

Footnote 19: Ibid 184.

Footnote 19: Ibid 235, Sect. lxxxiv.

Footnote 19: Ibid 184.

Footnote 19: Ibid 236, Sect. lxxxiv.

Footnote 19: Ibid 184.

Footnote 19: Ibid 237, Sect. lxxx.

Footnote 19: Ibid 238, Sect. lxxxiv.

Footnote 19: Ibid 184.

Footnote 19: Ibid 239, Sect. lxxxiv.

Footnote 19: Ibid 184.

Footnote 19: Ibid 230, Sect. lxxxiv.

Footnote 19: Ibid 184.

Footnote 19: Ibid 231, Sect. lxxxiv.

Footnote 19: Ibid 184.

Footnote 19: Ibid 232, Sect. lxxxiv.

Footnote 19: Ibid 184.

Footnote 19: Ibid 233, Sect. lxxxiv.

Footnote 19: Ibid 184.

Footnote 19: Ibid 235, Sect. lxxxiv.

Footnote 19: Ibid 18

## Abstract of Legislative Reforms 421

Similarly, the idea that the law was perverted by the ingenuity of the lawyers is illustrated by the exclusion of practising lawyers, judges, and officers of the courts from the final court of appeal,1 and by the rule that "no argument by counsel shall be admitted upon special verdicts or demurrers touching the exposition of any Act of Parliament."2

Footnote 1: Somers' Tracts vi 240; vol. i 429.

Footnote 2: Somers' Tracts vi 249; Sect. xxvi.

The proposals made by William Shepherd in _England's Balme_ are similar in character; but they deal in greater detail with legal machinery and doctrines, and they contain some suggestions as to the restatement of these doctrines. We have seen that he advocated something in the nature of a fusion of law and equity, and a uniform code of procedure.3 He is somewhat critical as to the advantages of the jury;4 and recommends that it should be dispensed with in the smaller local courts,6 that there should be a property qualification for jurors,6 and that the court of appeal should have power to fine a jury for a perverse verdict.7 Among the many suggestions which he makes as to the reforms of legal doctrine, we may note the proposal to abolish the maxim _actic personalis moritur cum persona_,8 the enactment of a law on the lines of Lord Campbell's Act,9 a reform of the bankruptcy law with a view to the more severe punishment of fraudulent bankrupts,10 and a measure making land liable to all the debts of a deceased person.11 We can see Puritan influences in the suggestion that the law should be purged of all relics of heathenism, idolatry, superstition, and profaneness;12 and we can see the prevalent suspicion of the legal profession in the suggestion that the judges should be made accountable to the law for any miscarriage of justice,13 that they should never sit alone,14 and that, "some honest godly man, though no lawyer, have an allowance to sit with them

### The Enacted Law

when he will, to see and report the manner and justice of their proceedings to the Lord Protector."1 At the same time he was a lawyer who had written many books upon the law.2 He was quite conscious of the need, 'which had already been forcibly stated by Bacon,3 for a restatement of the law. He would have liked, " To make one plain, complete, and methodical treatise or Abridgment of the whole common and statute law . . . . to which all cases may be referred : and therein to make those things that are now obscure and uncertain, clear and certain. And to have all the judges subscribe it for the settled law, and to have it confirmed by the Parliament."4

Footnote 1: At pp. 45, 46.

Footnote 2: Ibid 485-489.

Footnote 3: Above 477-420 and notes.

Some few of the proposals in these long lists of projected law reforms were accepted, and became law, either during the Commonwealth period, or during the latter years of the seventeenth century. But, for the acceptance of the majority of them, it has been necessary to wait till the nineteenth and twentieth centuries;5 and some are still unrealized. There were two closely connected reasons why so few were accepted during the seventeenth century. Firstly, during the Commonwealth period, no really stable government existed. There was, as we have seen,6 no common consent as to the form of constitution to be adopted, and, in default of such consent, it was necessary to govern the country by means of the army. But, under these circumstances, it was impossible to legislate on the scale which the enactment of these suggested reforms would have necessitated. The enactment of the measures needed to safeguard the state against enemies, domestic and foreign, came first, and taxed all the resources of the government. Secondly, the establishment of the Commonwealth was very distasteful to the majority of the lawyers. They had held a very important position in the early days of the Long Parliament. But, from the time that the Long Parliament had been first purged and then dissolved by the army, their importance in the state had diminished. Moreover, the execution of the king, and the overthrow of the old constitution, seemed to the majority of them to be the end of all law ; and it was certainly fatal to the realization of that supremacy of the law, which many had hoped would come with the final defeat of the king.7

## 4 Absence of Legislative Reforms 423

It would of course have been possible to remove certain abuses in the law--e.g. the peine forte et dure, and the benefit of clergy, without the help of the lawyers. But it was not possible, without their help, to pursue with any success a policy of constructive law reform. It was not possible, for instance, to make a successful code, or to carry a workable measure for the registration of conveyances. But the reformers of this period had not learnt the lesson that it is only those who understand a technical system who can restate it or reform it effectually. It is true that Hale, Whitelocke, and Lane, C.B., were on the committee responsible for the law reforms proposed in the Parliament of 1653. But the majority of the committee were laymen;1 and it is clear that their proposals were bitterly opposed by the lawyers.2 Some of these proposals were, it is true, absurd--for instance the proposal that the court of final appeal should be staffed by lawyers who had never practised.3 Others--for instance the scheme for the registration of conveyances--were so drawn that they needed the active assistance of the lawyers to put them into workable shape. Others, on the other hand, contained valuable suggestions for the removal of obvious abuses, which could easily have been carried. But the lawyers, partly out of dislike to the domination of the army, partly from resentment at the charges of corruption freely made against them, offered, both in 1653 and all through the Commonwealth period, an indiscriminate opposition to all these proposed reforms. We shall now see that their opposition had a very large measure of success.

Footnote 3: The names of the committee are given in Somers' Tracts vi 177.

Footnote 4: Ludlow, i 43o, citing Somers' Tracts vi 177, says, \*\*' Upon the debate of registering deeds in each county, for want of which, within a certain time fixed after the sale, such sales should be void, and being so registered, that land should not be subject to any incumbrance : this word _inembrane_ was so managed by the lawyers, that it took up three months' time before it could be ascertained by the committee.' 4 Above 152-157.

Footnote 5: Vol. i 429-434.

Until the publication by the Statute Law Committee of the Acts and Ordinances of the Interregnum, there was no complete edition of the actual legislation of this period. This collection enables us to estimate the nature of the actual legislation of the period, and to distinguish what was enacted from what was merely proposed. With the legislation upon public law,4 and upon the judicial system6 I have already dealt. Here I must deal with the legislation upon private law.

### The Enacted Law

Upon matters of private law the changes made were far less extensive than the changes made in public law, or in the judicial machinery of the state. These Acts and Ordinances show a very considerable measure of continuity, sometimes with the legislation of the earlier half of the century, but more often with the legislation of the latter half. Of course there are enactments which are quite peculiar to this period. Some were the necessary consequences of the changes made in the public law of the state. Thus the abolition of the court of Wards made it necessary to provide for the guardianship of idiots and lunatics;1 the abolition of the corrective jurisdiction of the ecclesiastical courts made it necessary to provide for the punishment of incest, adultery, and fornication;2 and it was the suppression of the Constable and Marshal's court which made it necessary to provide a special commission to punish offences connected with the unwarrantable assumption of coats of arms or crests.3 Others were due to the fact that the Commonwealth was a Puritan government. Thus there is an Act abolishing stage plays, and imposing penalties on both actors and spectators;4 and another prohibiting cock matches.5 But it is only very occasionally that we meet with a reform in the law which was not carried out wholly or partially in the latter half of the seventeenth century. Almost the only instance is the Act providing that all legal proceedings should be in English, and written in ordinary hand and not in court hand; and that "all the report books of the resolutions of judges and other books of the law of England," should be translated into English ; and that for the future they should be written in English.6

Footnote 1: Acts and Ordinances of the Interregnum i 767 (1653).

Footnote 2: Ibid ii 387 (1659).

Footnote 3: Ibid i 838 (1645-7646) ; for the jurisdiction of the Constable and Marshal's court over these matters see vol. i 578-580.

Footnote 4: Acts and Ordinances of the Interregnum i 1070 (1647-1648).

Footnote 5: Ibid ii 861 (1654).

This continuity between the Acts and Ordinances of the Interregnum, and the legislation of the latter half of the seventeenth century, can best be illustrated by a brief enumeration of some of these Acts and Ordinances, under headings similar to those under which the statute law has been grouped. Those headings are : Commerce and Industry ; the Press ; and statutes relating to various branches of the law.

\_Commerce and Industry.--\_The Commonwealth legislation encouraged manufactures useful or essential to national defence in

## Abstract

In this paper we present a new method for constructing the _Rostorian_-

### 426 The Enacted Law

part of the seventeenth century.1 The reduction of the rate of interest to 6 p.c., made in 1660,2 was in substance a reinstment of an Act of 1651;3 and the practice of borrowing money on the security of taxing Acts was well established under the Commonwealth.4 The reclamation of the flooded areas of the eastern counties was provided for by two elaborate Acts which were the precursors of a similar Act passed in 1663.4 Some attention was paid to the poor law. The Commonwealth legislators attempted, not very successfully, to enforce for London a scheme in accordance with the principles of the Elizabethan Poor Law;; and in 1657 a law, applicable to the whole country, provided for the punishment of vagrants.7 As we have seen, the whole system of poor relief practically collapsed during this period.8

Footnote 1: Acts and Ordinances ii 451 (1650)--making of stuff in Norfolk ; cp. r4 Charles II. c. 5; above 332; ii 362 (1649-1650)--packing of butter; cp. 14 Charles II. c. 26. ${}^{3}$12 Charles II. c. 13. ${}^{4}$140 1 143 (1643), ii 159 (1649); above 338 n. 9. ${}^{5}$4 Acts and Ordinances ii 330 (1649), 899 (1654); cp. 15 Charles II. c. 17; above 345. ${}^{6}$4 Acts and Ordinances i 1642 (1647), ii 1649); cp. 14 Charles II. c. 12 $$$$4-14; 14 22 23 Charles II. c. 18; above 350. ${}^{7}$ Acts and Ordinances ii 1rog8 (1657); cp. 14 Charles II. c. 12 $$$$6, 16-18, 23; above 350. ${}^{8}$ Above 350. ${}^{10}$ Acts and Ordinances i 833 (1645-1646), ii 1643 (1655), ro57 (1657); cp. 12 Charles II. c. 24. ${}^{11}$140 141 1445 1463 14703 148 1493 1494 1503 151 152 153 154 1556 156 157 158 159 1659 1661 167 168 169 170 171 172 173 174 175 176 177 178 179 180 181 182 183 184 185 186 187 188 189 190 191 192 193 194 195 196 197 198 199 200 210 221 23 241 242 243 244 245 246 247 248 249 250 261 262 263 264 265 266 267 268 269 270 271 272 273 274 275 276 277 278 279 281 282 283 284 285 286 287 288 289 290 291 292 293 294 295 296 297 298 299 300 311 320 321 333 334 34

## Absence of Legislative Reforms 427

thieves and highwaymen,\[1\] poaching and killing deer,\[3\] and thefts on the borders;\[3\] and Acts against cursing and swearing,\[4\] the profanation of the Lord's Day,\[5\] blasphemy,\[6\] atheism,\[7\] and gaming,\[8\] were similarly foreshadowed. The Act of 1694,\[9\] to prevent delays in criminal proceedings by the issue of writs of certiorari, was anticipated in 1650.\[10\] In the law of civil procedure, there are Acts which reproduce some of the features of the statutes of Charles II.'s and William III.'s reigns as to those imprisoned for debt,\[11\] as to delays caused by the bringing of writs of error,\[12\] and as to the exaction called damages clece.\[13\] The policy of registering marriages, births, and burials, which had been adopted in 1653, was partially carried out in 1695-1696.\[14\] An Act of 1657,\[15\] which attempted to prevent the building of new houses in or near London, is reminiscent of the policy pursued in the earlier rather than in the latter half of the seventeenth century.

Upon matters of private law, therefore, the legislation of the Commonwealth was not of a revolutionary character. In fact, some legislative proposals which, during the Commonwealth, never got beyond the stage of proposals, were enacted after the Restoration.\[16\] Obviously this phenomenon affords an adequate explanation of the absence of any great legislative reforms at the Revolution. During the Commonwealth period abuses in the law were attracting much public attention, the party which ruled the state was not very favourably disposed to the lawyers, and it lent a sympathetic ear to proposals for the reform of the law. If so little was done under these favourable conditions, we can hardly expect that much would be attempted at a time when no one of

### The Enacted Law

these conditions was in existence. At the time of the Revolution abuses in the law were not attracting much attention; and the coalition of parties which accomplished it worked with the lawyers, and justified its action by arguments which the lawyers supplied.1 Naturally there was no movement to undertake reforms in the law not supported by the lawyers. The fact that the Revolution was the work of a coalition reduced the changes which it effected in public law to the smallest possible dimensions: the fact that it was a legal Revolution reduced the changes which it effected in private law to dimensions even smaller.

Footnote 1: Above 164-195, 24-242, 2 Vol. i 250-251, 262. 3 Ibid 435-436.

It is true that attempts were made to effect some reforms in the machinery both of the common law courts 2 and the court of Chancery;3 but, as we have seen, all these attempts failed. Similarly, abortive attempts were made to redress other abuses. A bill, introduced into the House of Lords in 1690,4 proposed to limit the fees payable to counsel and attornies;5 to impose penalties on counsel who took fees and then neglected to attend and plead;6 to limit the number of counsel who could be employed in any case;7 to revive and improve the writ of attaint by making a conviction involve only the payment of treble damages, and incapacity to serve on a jury or to give evidence;8 to exercise a stricter supervision over the courts by the appointment of a committee to execute the powers of 14 Edward III. St. c. 5, under which five members of the House of Lords could be appointed to hear complaints of the delays of courts of justice.9 We have seen, too, that the common lawyers fortunately failed in their attempt to limit the jurisdiction of the court of Chancery.10 The question naturally arises, Was this absence of reform beneficial or otherwise to the future development of the English legal system?

Footnote 1: By the author of Chancery, the

## Absence of Legislative Reforms 429

would certainly have been beneficial to the English legal system if such anomalies as the peine forte et dure, the benefit of clergy, the exclusion of the half blood from the right to inherit real property, and the rules summed up in the maxim _actio personalis moritur cum persona_, had been removed ; and if the cumbersome forms of such proceedings as fines and recoveries, and the action of ejectment, had been replaced by a simpler procedure. But we should remember that a government, which was sufficiently in earnest in the cause of law reform to make a serious effort to abolish these and other similar anomalies, would not have been inclined to limit its activities to this work. It would probably have wished to recast and restate many branches of English law ; and there are good reasons for thinking that such an attempt, if it had been made at this time, would have been the reverse of beneficial to the English legal system.

The history of the Commonwealth period shows that the legislature would not have been able to command the legal ability necessary to ensure the success of such a scheme, because the lawyers would have bitterly opposed it ; and a scheme carried through, in the face of their opposition, would probably have been fatal to the continuous and orderly development of English law. At any time the retention of a few anomalies would be a small price to pay for securing the advantage of such a development, and more especially at this particular time. At the end of the seventeenth century the development of the modern rules of English law from their mediaval basis had been begun ; but it had only just been begun. Obviously a body of law, which in all its branches was being thus transformed by the slow process of judicial decision, was wholly unfit to be recast and restated. In continental countries, like France, where many branches of the law were based upon the civil and canon law, and upon the works of many generations of writers who had been adapting these codes to modern needs, the development of modern law had been more rapid ; and, as the Ordonances of Louis XIV. show,1 a measure of codification was possible. But even Louis XIV, could not have done for English law what he did for French law. If the development of English law had been arrested at the point which it had reached at the end of the seventeenth century, its doctrines would have been rudimentary and its rules would have been scanty. Time was needed to elaborate_its doctrines, and to work them out into detailed rules for the guidance of the activities of men in a modern state. Time was needed to educate the lawyers out of their insular pride in the excellencies of their own system, out of their insular ignoranceof its defects, and out of their insular contempt for any system but their own. Not till these results had been achieved would it be possible to $\\cdot$ top off anomalies, and reform intelligently.

The internal peace of the eighteenth century was needed to enable the country to settle down and accustom itself to constitutional government; and it was needed no less to enable the development of the rules of our modern law to proceed smoothly and continuously. The continued existence of the many anomalous survivals which disfigured the law must be suffered, that its stability and orderly development might be secured. When the modern constitution, resting ultimately upon the supremacy of the law, had been evolved ; when the modern rules of private law had been more fully developed ; then it would be time, with greater knowledge and deliberation, to take in hand those reforms which, amid the passion and turmoil of the seventeenth century, it had been possible to foreshadow, but impossible to effect.

## Chapter The Latter Half of the Seventeenth Century (Continued)

The Professional Development of the Law

The statute book gives us little direct information as to changes and developments in legal doctrine; but, in fact, large changes and developments were taking place as a result of the changed political, social, and commercial conditions which prevailed after the Restoration. We can, it is true, catch occasional glimpses in the statute book of the effects of these changed conditions upon legal doctrine--but, from it, we can get no complete picture of their extent and character. It is to the professional development of the law that we must look, if we would estimate their extensive effects upon the organization of the legal profession, upon the character of the lawyers, upon legal literature, and upon legal doctrine. Under these four heads I shall group the history of the professional development of the law during this period.

## I The Legal Profession

During the latter part of the sixteenth, and throughout the seventeenth centuries, important changes were taking place, both in ordering of the ranks of the legal profession, and in the educational system of the Inns of Court. I shall discuss these changes under these two heads.

### The Kanks of the Legal Profession

In the Middle Ages the serjeants-at-law, from whom the judges were exclusively chosen, were the heads of the legal profession. Of the lawyers outside the ranks of the serjeants--the apprentices of the law--the highest place was occupied by the benchers and readers of the Inns of Court. Then came the outer barriers, and lastly the inner barriers or students.1 Besides

### 432 I.Aw--Professional Development

these grades of persons qualified or qualifying to represent litigants before the courts, the class of attorneys, appointed for the purpose of legal business, was rapidly becoming a distinct professional body.1 They were admitted and supervised by the judges ; they were often members of the Inns of Court or Chancery ; and they shared the benefits of the thorough system of legal education there provided.2 During the latter part of the sixteenth and throughout the seventeenth centuries, this grouping of the profession was modified, chiefly by changes which took place at its lower and upper ends. At the lower end, we see a growing distinctness in the profession of the attorney, a growing separation between the attories and the barristers, and the rise of three new classes in the legal profession--pleaders,conveyancers, and solicitors--the first two of which approximate to the profession of the barrister, and the third to that of the attorney. At the upper end, the commanding position of the serjeants was modified by the growth of the pre-eminence of the law officers of the crown, and the rise of the new class of king's counsel. As the result of these changes the grouping of the legal profession begins to assume almost its modern form.

Footnote 1: Vol. ii 504-505.

The changes in the lower branches of the legal profession.

The growth of the professional attorney, and the separation between the attories and barristers.

We have seen that the distinction between the attorney who represents a person for the purposes of litigation, and the pleader who speaks for a litigant in court, is fundamental in early law. The idea that one man can represent another is foreign to early law. When first it is introduced it is regarded as an exceptional privilege, and the representative must be solemnly appointed. On the other hand, the idea that a litigant may get assistance from his friends or others to conduct his case in court is known to and recognized by early law.3 Thus the appointment by a litigant of an attorney, and the obtaining by the litigant of the assistance of a pleader, are two very different things ; and so the class of attorneys and the class of pleaders naturally tended, from a very early period, to become quite distinct. English law has retained this distinction throughout its history. But the nature of the distinction and the reasons for its maintenance have altered. In the fourteenth century, the idea that it was something unusual or exceptional that a litigant should be represented by an attorney, was beginning to break down before the statutes which gave this privilege with a free hand.4 At the same time legislation was

## 6 Ranks of the legal profession 438

separating the attorney for purposes of litigation from other attorneys.1 The former was becoming subject to the control of the courts, and was beginning to be regarded as an officer of the courts.2 He was beginning to be a person of some legal education ; and there is good reason to think that he often shared with the other apprentices of the law the benefits of the system of legal education provided by the Inns of Court and Chancey.3 It was only gradually that he ceased to be able to plead in court for his clients.4 At a much later date attorneys were heard at the side bar in the courts of Common Pleas and King's Bench ;5 and it is certain that, both in the Middle Ages and later, pleaders dealt directly with their lay clients.6 It was decided in the sixteenth century that both could refuse to testify as to matters which they had learned in the course of their professional duties.7 It might seem therefore not improbable that these two branches of the legal profession would ultimately amalgamate.

Footnote 1: Vol. ii 317, 505. 3 Ibid 505. 3 Ibid 505. 3 Ibid 505-500; that students who intended to become attorneys, and even practising attorneys, were members of the Inns of Court in the sixteenth century and later, is proved by the terms of the orders which attempted to exclude them, below 441-443. 4 Vol. ii 505-506. 3 Lives of the Norths i 45-50 Soon after his being called to the bar, he (Francis North) began to feel himself in business and . . had the favour of divers persons that out of a good will went to him, and some near relations. He was once asked if he took fees of such. 'Yes,' said he ; 'they come to do me a kindness ; and what kindness have I if I refuse their money ? The attorneys also were very civil to him ;" cp. ibid 77 for an account of the way in which in later years he was bothered by a relation ; Roger North also tells us, Discourse on the Study of the Law 39-40, how Serjeant Maynard on circuit interviewed the parties and witnesses before going into court, and contrasts this with the more distant relations that prevailed in his day. 7 Creed v. Trapp (r578-r579), Choyce Cases r2x (counsel and solicitor) ; Havers v. Randoll (r587), ibid r48 (attorey) ; see also Cary, 63, roo. 8 Above 432. VOL. V1.--28

### Low-Professional Development

the result of these regulations, the main features of the modern differences between the two branches of the profession began to take their modern shape.

The mode of the appointment of the barriers and attorneys was quite different. In the case of the barrister the judges had delegated to the Inns of Court the power of admitting their members to practise in the courts.1 They accepted those whom the benchers called to the bar of the Inn. On the other hand, the attorney was admitted directly by the judges of the court in which he sought to practise.2

Footnote 1: Vol. ii 496-497, 5o6.

Footnote 2: Ibid 317, 595; and see the evidence given by Vaughan, C.J., to a Committee of the House of Lords, Hist, MSS, Com, qth Rep. App. Pt, ii 20 no. 84.

This difference in the method of appointment is reflected in the different measures taken to discipline and regulate these two branches of the profession. The medieval statutes, which regulated professional attorneys, had given the judges power to control as well as to admit them.3 This control increased in stringency all through this period. Orders of the courts provided for their examination before admission,4 and for their conduct after admission.5 The cases show that the courts were ready to act with severity, even to the throwing an attorney over the bar, in a case of grave misconduct.6 A statute of 1605 7 regulated the method of rendering accounts to clients, provided penalties for certain forms of fraudulent or negligent conduct, laid down conditions for admission,8 and attempted to suppress unqualified practitioners. The attorney was never allowed to forget that he was an officer of the court and subject to its discipline. The barrister, on the other hand, was in no sense an officer of the court, and was much less directly under its control. It is true that he could be disbarred either by the benchers of his Inn,9 or by the Court 10 for unprofessional conduct, and in this period for professional in

## Ranks of the legal profession 435

capacity.1 But he was not so strictly controlled by the orders of the judges ; and no statute of this period attempted any regulation. He was much more directly under the control of his Inn of Court who called him to the bar, who made him Reader and finally bencher, and thus qualified him for promotion to the ranks of the serjeants and the judges.

Footnote 1: Thus in the Chancery baristers were punished for prolix or scandalous pleadings, Hill's Case (1603) Cary 27.

It is not surprising, therefore, to find that the personnel of the attorney's profession differed from the personnel of the bar. The attorneys, being officers of the court, were closely connected by their method of appointment, by their privileges, and by their business, with the other members of clerical staff of the courts. The courts of King's Bench and Common Pleas had, from the first, each admitted its own staff of attorneys; 2 and the Exchequer seems to have had a staff of clerks who acted as attorneys.3 No doubt the same persons often acted as attorneys both in the Common Pleas and in the King's Bench--this is shown by an order of 1564 which attempted in vain to suppress this practice.4 But it is obvious that the necessity for separate admission in each court emphasized the fact that the attorneys were the officers of that court; and the same fact was still further emphasized by orders for their constant attendance in their respective courts,6 and by their possession of the same privileges of exemption from

### 486 Law--Professional Development

public service, and immunity from suit, except in their own court, as the other officials of the various courts enjoyed.1

Footnote 1: Christian, op. cit. 58, 59.

Their business, too, connected them closely with these officials. We shall see that their close connection with procedure and practice brought them into daily conduct with the prothonotaries, the cursitors, and the other clerks of the court.2 Indeed, it would seem that the connection was so close that it sometimes resulted in a combination to enrich the attorney at the expense of the client.3 The orders of the judges, which required that a candidate for admission as attorney should have served five years as a common solicitor, or as clerk to a judge, serjeant, barrister, attorney, or to a clerk of one of the courts of common law,4 show us that the attorney belonged essentially to the clerical side of the law. On the other hand, the barrister had no permanent connection with clerkship, or the clerical staff of the courts. He must know the forms of the court ; but he was interested, not in the mechanical copying or working of these forms, but in the legal principles applied through them ; and he was drawn from a social stratum different from that from which the attorney was drawn. No doubt in this period men who had begun as clerks made their way to the bar, and even to the bench.5 But generally in this period, as in the period of Fortescue,6 the expense of a career at the Inns of Court caused the barristers to be drawn from the sons of men of independent means, or of the more prosperous and successful men in various walks of life.

Footnote 1: The racetk of the Law 247, 302-303.

Footnote 8: One famous instance is Saunders, C.J., below 564 ; but generally a prosperous career as an attorney led to posts like the clerk of the peace or clerk of asie; Keesby, Mermors go-91, tells of one Benson, " The most notable and formidable man of business of his time, and that had raised himself from being clerk to a country attorney to be clerk of the peace at the Old Bailey, to clerk of asie of the northern circuit, and to an estate of $\\chi$2500 per annum, but not without suspicion of great frauds and oppressions."

Footnote 4: Vol. ii 494.

The education of the attorney and the barrister was necessarily different, and tended to become more different. Both branches of the profession needed and got an education in the theory and the practice of the law. But the main part of the education of the attorney consisted in his apprenticeship to a practitioner, during which he learned the construction and the use of the common forms and processes of the legal machine. On the

**RANS OF THE LEGAL PROFESSION 437**

other hand, the main part of the education of the barrier consisted in mooting and discussion, in reading and reporting, from which he learned the principles of the law both substantive and adjective.1 The attorneys read books ; and, as members of the Inns of Court and Chancery, took the benefit of the legal education there given : similarly, the barriers sometimes learned draftsmanship by acting as clerks in the offices of the courts,2 and the rules of practice and the forensic art by conversing with, and the assistance of older practitioners.3 But in the legal education of these two branches of the legal profession the stress laid upon the practical and the theoretical side was quite different. "Although," says Roger North, " I was not a regular student to proceed in order and take in all the Year Books, but read the more modern reports, I digested them well by commonplace, which was a good foundation and preparative for me to build upon, which I afterwards learnt in practice. And I must own to that, more of my skill in the law than from hard reading ; but without a competency of the latter, the others would not have done, no more than bare reading without practice which pedantiseth a student, but never makes him a clever lawyer." 4

Footnote 1: Vol. ii 506-508 ; below 48r seqq.

Footnote 2: Dyer, C.J., in r567 told a jury of attorneys and clerks of the Common Pleas that he himself had acted as a clerk, Pravisue Denici 46 ; as Roger North says, Lives of the Norths i 28, " Forms are better understood and learned by writing than by reading ; for that exercise allows time ; which consideration hath made clerkship so recommendable to beginers that most enter the profession of the law that way."

Footnote 3: Below 498 ; cp. vol. ii 508 and n. I.

Footnote 4: Lives of the Norths iii 89.

Footnote 5: Vol. v 38r-38z.

Footnote 6: The Complent Solicitor, Entering Clerk, and Attorney, first published r668, 2nd ed. r683.

Footnote 7: The Practie Part of the Law, Shewing the office of an Attorney, and a guide for Solicitors in all the courts of Westminster, first published r678, 3rd ed, r70z.

The reason for these differences in their mode of education we must seek in the difference of the work which fell to their lot. This difference of work is brought out clearly in the literature which some of the attorneys composed for their fellow practitioners. If we look at books like the Attorney's Academy,8 the Compleat Solicitor,6 the Practiek Part of the Law,7 or the Practising Attorney,8 we are at once struck by their intensely practical character. They are concerned with the process of the different courts, with instructions as to the manner and time of taking the various steps in an action, with the forms of pleading, with the modes of executing judgment, with the fees payable at the different offices of the courts, with the forms of conveyances and other documents which clients would be likely to need. A good deal of law is sometimes interspersed ; but it is treated and regarded wholly

### Law-Professional Development

from a severely practical standpoint. It is set out in bare rules, with no attempt to state the underlying principles, because it was knowledge in this form that the attorneys required.1 On the other hand, the successful barrier must know something of legal principles underlying the rules of the common law. He must know something of the Year Books and the older cases if he was to argue points of law successfully, or give advice on cases stated to him.2 The art of examining witnesses, and of presenting the facts in a manner favourable to his client, was more important than a minute knowledge of how to put and keep in motion the formal machinery of process.

Footnote 1: Thus C. G. Cock, English Law (765t) 43, says, "I know the labours and pains of a faithful and honest attorney is great and very painful and laborious, in running from office to office, from clerk to clerk, counsel to counsel, judge to judge, court to court."

Footnote 2: \<\<It was not moroseness, but reason, that inclined his lodship to deal as much as the did with the Year Books ; and however at present that sort of reading is obsolete and despised, I guess there will not be found a truly learned judicious common lawyer without it," Lives of the Norths i 28.

This division of work did not come all at once. In the Middle Ages the management of process was a very much more complicated and serious matter than it was at the end of the seventeenth century.3 It was often pre-eminently a question for counsel, as the whole case might depend upon a single skillful move. And in this period, as at the present day, the younger members of the bar were brought more closely into touch with this part of the attorney's work than the leaders. The future judge, Sir James Whitelocke,4 the future lord keeper Guildford, and his biographer and brother Roger North, all occupied themselves with court keeping while they were waiting for a practice. As Roger North explained,5 they found that it taught them much both of the theory and the practice of the law ; and, as he said, " the knowledge how to conduct such a court fits a man to be a practiser even at the Common Pleas Bar."

Footnote 3: Vol. ii 520-521 ; vol. iii 520-627. .

Footnote 4: Whitelocke was called in ftoo ; at Michaelmas, 160t, he tells us, " The collider of St. John in Oxon \[of which he had been a fellow\], bestowed on me the stewardship of thet lands," Liber, Fam. (C.S.) 15.

But, towards the end of this period, the division of work between the two branches of the profession was becoming more clearly defined. For instance, in the business of court keeping, the ordinary business of the managerial courts was falling to the attorneys,6 while the barristers continued to be judges of the

## 7 Ranks of the Legal Professor 489

larger franchise courts.1 Roger North laments 2 that the attorneys had encroached upon the practice of the younger members of the bar, because the latter " have left the mechanic part of their practice, that is to speak with the client at the first instance, to state his business, and to advise the action." He pointed out that it would not do for the younger barrister to ignore entirely such learning. " If young gentlemen will ever think to secure a practice to themselves, they must set pen to paper, and be mechanics and operators in the law as well as students and pleaders. Here speculative law will help very few into the world ... the other can scarcely fail." But, obviously, it was becoming evident that the barrister must give more attention and time to the speculative part of the law ; that they must therefore curtail somewhat their training in the work of the attorney's branch of the profession ; and acquire it, as lord keeper Guildford acquired it,3 and as students now acquire it, in their student days. The "mechanic side " of their own profession could be learnt in the chambers of their seniors.4

Footnote 1: Francis North was judge of the franchise of Ely, Lives of the Norths i 55; Roger North was temporal Steward to the See of Canterbury, ibid iii roj the judge of the court of Pleas in Durham and Lancaster was in later days always one of the judges of the courts of common law, vol. i riza n, 3; and the chancellorship of Durham was frequently held by judges or eminent equity practitioners, such as Romilly, Eldon, and Redesdale, Romilly, Memoirs i 429, 431.

Footnote 2: Lives of the Norths iii 139-- Anciently, as I have been informed, all conveyancing, court keeping, and return the making of brevist at the assizes was done by the lawyers. Now the attorneys have the greatest share ; " and this tendency was evident as early as r65r--C. G. Cock, English Law 44, says that the attorneys often kept "those pestilencies of England, Lords" Courts, they take all the work, which was therefore the way of educating and bringing into practice the young lawyer."

Footnote 3: Below 447.

Footnote 4: "The first undertaker in business doth all; and he must go through in the cause. ; he is instructed and can instruct others; he is restored to on all occasions; he (perhaps) disburseth money, and is easy to let himself into the business," Lives of the Norths iii 139.

Two consequences followed from this division of work.

In the first place, as Roger North pointed out, the class of work which the attorney did tended to bring him much more closely into touch with the lay client than the barrister.5 The barrister must be consulted when difficulties occurred ; but it was the attorney, and not the lay client, who knew when such a difficulty occurred, and how to state it clearly. Therefore he, rather than the lay client, tended to be the client of the barrister. We shall see that this tendency to remove the lay client from direct contact with the barrister was increased by the introduction of written pleadings. The attorney, with the help sometimes of counsel and sometimes of the officials of the court, prepared these pleadings from his client's instructions. The barrister argued the

### Law-Professional Development

case on the basis of the pleadings so settled ; and thus he tended to become much further removed from the actual litigant, than was possible in the days when he orally pleaded at the bar the tale which he had himself elicited from the lay client, and for the truth of which he took some responsibility \[1\]. It is clear from Harrison \[2\] that the change was beginning in Elizabeth's reign ; it is clear from Roger North that, though it had not hardened into a fixed rule of professional etiquette \[3\], it was almost complete by the end of this period.

In the second place, the difference between the class of work done by the barrister and that done by the attorney, led to the modern difference between the legal relations between them and their clients. We do not find any difference in the Middle Ages. Both alike could sue for their fees \[4\]. But it was laid down in 1629-1630 \[5\] that a barrister, unlike an attorney \[6\], could not sue for his fees. This rule made its first appearance in the court of Chancery ; and it almost certainly originated in reminiscences of the rules of Roman law as to legal position of members of the learned professions in relation to their clients. However that may be, it clearly emphasized the truth that the work of the barrister was more "'liberal" in character than that of the attorney.

These differences had been becoming apparent all through the sixteenth century ; and in the seventeenth century they had become quite obvious. So obvious had they become that, in 1614, it could be stated quite generally by the benchers of the four Inns that "there ought always to be preserved a difference between a counsltor at law, which is the principal person next unto the serjeants and judges in administration of justice, and attorneys and solicitors which are but ministerial persons and of an inferior nature \[7\]. Therefore, as we might expect, both before and after

## 16.1 Ranks of the legal profession 441

1614, efforts had been made, both by the Inns of Court and the judges, to adjust the relations between the two branches of the profession; and these efforts have contributed materially to fix these relations in their modern form.1

Footnote 1: The first order cited by Bellot is of the year 1555 from the Middle Temple Records i 10${}\_{4}$ and runs as follows: "that no common attorney should be admitted into the Company and in all admissions it should be implied that every gentleman when he refuseth study, to practice attorneysh, shall be dismissed from this Company, and to have liberty to go and resort to the house of Chancery from whence he came"; a similar order was made by Lincoln's Inn in 1556, Black Books i 375, but six of the bench could admit a practising attorney; and the Inner Temple issued an order in 1557 that attorneys and common soliocity were not to be admitted without the consent of the parliament, Inner Temple Records i 190.

Footnote 2: The first order cited by Bellot is of the year 1555 from the Middle Temple Records i 10${}\_{4}$ and runs as follows: "that no common attorney should be admitted into the Company and in all admissions it should be implied that every gentleman when he refuseth study, to practice attorneysh, shall be dismissed from this Company, and to have liberty to go and resort to the house of Chancery from whence he came"; a similar order was made by Lincoln's Inn in 1556, Black Books i 375, but six of the bench could admit a practising attorney; and the Inner Temple issued an order in 1557 that attorneys and common soliocity were not to be admitted without the consent of the parliament, Inner Temple Records i 190.

3Black Books i 315, "Yt is ordered that from henceforth no man that shall exercise th'office of Attorneysh shall be admitted into the Feloship of this House wt'out the consent of VI of the Benche. , whereft must be two Double Redders. Item, if any man shalbe admitted as a student, and after shall' only exercise th' office of Attorneys, and shall not keep the lernings in the vacacions, that then he shall lose the Fel'schlip and his chambers. , Item, that everi attorney that kepeth not the lernings in the vacacions shall live his study, and his fellowe, being a student in the same chamber, to occupy him. Item, in everi chamber where it Attornies be, that we'm shalbe admitted ii stouthe, and where one is, one student."4L,Q.R. xavi i 339, citing the Black Books i 372, and see the case of West, the author of the Symbolegraphy, there cited.

5Ibid r38, citing orders of the judges and the Privy Council of 1557 and 1574; for these orders see below 449.

6L.Q.R. xavi i 39, 140. 7 lbid r41.

Law--Professional Development

After the Restoration the orders of the earlier part of the century were repeated;1 but it is clear that, in spite of them, attorneys, and even practising attorneys, were members, and, with the leave of the benchers, could continue to be admitted as members of the Inns.2 And apparently there was nothing to prevent students from doing the work of attorneys or solicitors. Roger North tells us that the future lord keeper Guildford, when a student, "and during his incapacity to practise above board, was contented to underpull, as they call it, and managed divers suits for his country friends and relations, which, he said, was useful to him in letting him into a knowledge of the offices and methods used there ";2 and it appears that this was so common a practice that there was a current rate of commission paid by the attorneys and solicitors in whose names the business was done.4 The practice of the Inns was still very uncertain. But, at the end of the century, it is possible to discern a tendency to exclude practising attorneys from call to the bar;6 and only to call them if they had ceased to practise, and had complied with the other conditions imposed upon students who wished to be called.6 Apparently the result of this policy was that attorneys did not become members of the Inns of Court, unless they intended to abandon their practice, and pass to the other branch of the profession. But this result was not definitely attained till the following century.7

Footnote 1: L.Q.R. xxvi 143.

Footnote 2: See an order of the benchers of Lincoln's Im of 1668 (cited ibid 143) from Black Books iii 59: "t that the names of all Attemeys, Solicitors and Clarks who have bin lately admitted into this House be delivered in at the next Council ; and that for the future noe such be admitted without first acquainting the Council therewith, and leave obtained from them for their reception and admittance into this Society."

Footnote 3: Lives of the North's 31.

Footnote 4: "t He (Francis North) made use of Mr. Baker, a solicitor in Chancery, who for his singular integrity was famous. When his Lordship (Francis North's father) paid his bill, the virtuous solicitor laid by a sum (according to an usual rate) for him, saying that it was their way, and they were allowed at the office somewhat for encouragement to them that brought business," ibid 31, 32.

This exclusion of practising attorneys from the Inns of Court was not beneficial either to the attorneys or to their clients. It was not beneficial to the attorneys, because it deprived them of the benefit of a professional organization which could safeguard their interests. It was not beneficial to their clients, because the clients were deprived of the safeguard which the discipline of a professional organization gives. The attorneys were no doubt individually amenable to the discipline of the

## 6 Ranks of the Legal Progression 443

courts to which they were attached ;1 but this was a much less effective form of discipline than that which an organized profession can apply. It was found to be difficult to apply the discipline of the courts to scattered individuals with no registered address. Hence we find that, in 1633,2 1654, 1667; 1684. and 1704,3 the judges ordered that all attorneys must, as a condition of admission, be admitted as members of an Inn of Court or Chancery. From the order of 1704 we can gather that the reasons for taking this step were to secure " better management of the business of law "; to prevent " the detriment and decay of the societies of the law "; and that the attorneys might have either chambers or an address in the Inn, so that they might be found when they were wanted.4

Footnote 1: Ibid 176-178,

Footnote 2: Praxis Utriusque Banci 175-176.

Footnote 3: L.Q.R. xxivi 141-142.

Footnote 4: Ibid 142.

These orders certainly seem inconsistent with the orders of the Inns and of the Council excluding practising attorneys. Probably Dr. Bellot is right when he says that the judges probably expected that the benchers would keep them out of the Inns of Court, and that therefore the result of the orders would be to force them into the Inns of Chancery.5 But, even though they continued to be members of the Inns of Court,6 the evil was not remedied, since they could only occupy the inferior position of students. They could never become barristers, readers, or benchers. Membership of the Inns of Chancery was equally useless, as these Inns were small and scattered bodies, controlled by the Inns of Court,7 and already in a decadent condition.8 Thus, neither the Inns of Court nor the Inns of Chancery could provide the attorneys with a professional organization, capable of safeguarding their own interests or those of their clients.9 It was for these reasons that, early in the following century, a new " Society of Gentlemen Practisers in the Courts of Law and Equity " was formed with the object of safeguarding these interests,10 which was a precursor of the Law Society of the present day.11

Footnote 1: Ibid 176-178,

Footnote 1: Ibid 176-178.

## 44 Law-Professional Development

The fact that the two branches of the legal profession thus came ultimately to be organized in wholly distinct bodies, was the cause which finally fixed upon its modern lines, and perpetuated, the separation between them. No doubt this separation had an old root in the ancient distinction between the pleader and the attorney ; and this old root helped to form the lines upon which the separation proceeded. But, the modern lines upon which this separation has taken place, owes far more to the new grouping of the duties of the legal profession in this period, and to the separate organization, in the following period, of those branches of the profession which were not called to the bar, or not members of the Inns of Court.

The evolution of the practical effects of this separation slowly proceeded in the two following centuries ; and professional customs grew up, which gradually hardened into rules of law. Thus, in 1846, the court of Common of Pleas ruled that there was no binding rule of law preventing a barrier from accepting a brief from a lay client ; 1 but it was a rule which had been insisted upon by the Society of Gentlemen Practisers, and recognized by the bar in the eighteenth century \[2\]. This would seem to show that, though the foundations of the modern separation were laid in the sixteenth and seventeenth centuries, the relations between the two branches of the profession were only gradually adjusted in the eighteenth and nineteenth centuries, by the help of the two organized professional bodies in which the lawyers had come to be grouped.

Footnote 1: Doe d. Bennett v. Hale 15 Q, B, 1771,

Footnote 2: Below 570-571 ; Pt. II. c. 7 SS 2.

- The rise of new classes in the legal profession.
- The Pleaders and the Conveyancers.

The division of duties between the attorneys and the barriers left several branches of professional practice not quite clearly assigned to either. The two most important of these branches were pleading and conveyancing. It is probably to this cause that we must assign the growth of the two classes of practitioners under the bar, who were neither attorneys nor barriers.

Of the changes in the law of pleading, which came with the rise of written pleadings in the sixteenth century, I shall speak later in this chapter and in the second Part of this Book \[3\]. We have seen that, during this period, pleadings written on paper, and exchanged by the attorneys of the parties, superseded the older oral pleadings at the bar \[4\]. Though, even at the end of the period, oral pleadings were still used in the real actions,

## 10.1 Ranks of the Legal Professor 445

Roger North tells us that it was "done for form and unintligibly "; and that " whatever the serjeant mumbles it is the paper book that is the text."\[1\] From an early date these written pleadings were exchanged by the attorneys of the parties, and drawn up either by the attorneys, or by the clerks in the protinonatories office.\[2\] As I have said, the attorneys and the clerks belonged essentially to the same class of persons;\[3\] and the clerks often became attorneys. Service as a clerk in a protinonatory's office, as well as service as clerk to an attorney, were accepted by the judges as qualifying for admission to the roll of attorneys;\[4\] and it is quite clear from the orders of the court of Common Pleas in I573, that these clerks sometimes acted as attorneys.\[5\] It is true that in I633 the court of Common Pleas attempted to separate the office of the clerk who drew and entered the pleadings, from the office of attorney;\[6\] but we do not find any similar order issued by the King's Bench ; and it cannot have had any very permanent result, as it is assumed in all the books of practice \[7\] that it is part of the attorney's duty to draw pleadings.\[8\] At the same time these pleadings must be entered in the protinonetary's office, and copies must be taken.\[9\] It would therefore be natural that an attorney should sometimes employ the clerks of that office to draw the pleadings if he felt doubtful about his ability to do so.\[10\]

The pleadings drawn by these attorneys or clerks were probably for the most part common form pleadings. The King's Bench in I666 ordered that special pleas and demurrers should have a counsel's hand to them;\[11\] in the Common Pleas a serjeant's

### Law-Professional Development

hand was required ;1 and it was necessary that bills in Chancery should be settled or drawn by counsel.2 It followed that the work of pleading at common law was shared between the attorneys, the clerks in the profunotaries' offices, and counsel; and in equity between the solicitors and counsel.

Footnote 1: The Compleat Solicitor 87; The Practick Part of the Law 38.

Footnote 2: Ibid 363; The Practical Register in Chancery (1774) 25-

Footnote 3: Below 625-627.

But, as the seventeenth century advanced, pleading, both at common law and in equity, tended to become more complex. It is true that at common law the disuse of the real actions, and the growth of actions on the case, had tended to simplify procedure.5 But, with the growth of case law in the common law courts and in Chancery upon various points of pleading, the rules become more detailed, the science grvw more exact, and the subject became more special. The books of entries show that the rules of common law pleading were studied with special minuteness in the profunotaries' offices.4 A student of the common law, who was attracted to this topic, would be well advised to learn the rudiments there. Similarly the rudiments of equity pleading might be learned in a solicitor's office. In both cases further instruction could be got in a barrister's chambers. At the end of this period the profunotaries themselves were generally called to the bar by virtue of their office,5 and sometimes became benchers;6 and it would seem that there was nothing in the regulations of the Inns of Court to prevent their clerks from becoming members of the Inns, or from continuing to be members, if they did not practise as attorneys or solicitors.7 And, if they decided to specialize in this art, there was no reason why they should be called to the bar. Thus we see the cause for the rise of a class of pleaders and equity draftsen who were members of the Inns of Court, but not barristers--in other words, we see the cause for the rise of one of the classes of " practitioners under the bar."8

## 11 Ranks of the Legal Professor 447

A similar set of causes gave rise to the other class of these practitioners--the conveyancers. In the Middle Ages the clerks employed by the large landowners, or the members of the monasteries, were competent to draw, and did draw, the conveyances needed in the ordinary course of estate management;1 and lay conveyancers still flourished in the sixteenth,2 and even in the seventeenth 8 centuries. They were assisted, no doubt, by the little books of precedents in conveyancing which were printed during the sixteenth century.4 But, as the land law grew more complex, more skill was required; and the rise of the commercial jurisdiction of the common law courts caused a demand for precedents of various mercantile documents. Both the size and the contents of West's Symboleography illustrate the growth in the variety and the complexity of the demands made upon the draftsmen of conveyancing and other similar documents.6 Naturally the drafting of these documents tended to become part of the legal practitioner's business. But, even at the close of this period, the legal profession did not monopolize it--the Scriveners then and later claimed to share it.6

Footnote 1: We did not mention here, but we did not mention here, but we did not mention here.

Footnote 2: We did not mention here, but we did not mention here.

Footnote 3: We did not mention here, but we did not mention here.

Footnote 4: We did not mention here, but we did not mention here.

Footnote 5: We did not mention here, but we did not mention here.

Much less was it the peculiar property of either branch of the legal profession. It was practised both by barristers and attorneys. The future Lord Guildford, when a junior barrister, not only drew but engrossed conveyances.7 West, the author of the Symboleography, was an attorney; and though Shepherd was indignant that "'the pragmatical attorney " or "'lawless servencer " should meddle in this art, he was somewhat unreasonable. As Mr, Christian says,8 "In every part of the country the attorney was at hand, ready to receive the client's instructions, while counsel were settled only in the large towns; and the operation of the statutes and rules of court, requiring the education and a long term of studentship for attorneys, had resulted in their being no longer mere ministerial persons of an inferior nature, but men reasonably well acquainted with the general body of the law, and competent to prepare at least such conveyances as were in common use." In fact, any clerk in a lawyer's office, who had experience in conveyancing, might undertake this class of work, but soon after I was admitted to the bar I was employed to draw pleadings in several cases."

Footnote 7: Lives of the North's 93; Roger North tells us; ibid iii r24, how he profited by the gift of his brother's books of precedents in conveyancing.

Footnote 8: Op. cit. 139, 140; and cp. C. G. Cock, English Law 44 (165r).

### Law-Professional Development

Roger North tells an amusing tale of how the future Lord Guildford got drunk at a circuit dinner, was run away with by his horse, and .would have fallen off in the pond where his horse had stopped to drink, if he had not been rescued by a Mr. Andrew Card, who was then a barrister's clerk, but who afterwards became "an eminent practiser of conveyancing in Grey's Inn."1 This tale shows that these clerks sometimes became members of the Inns of Court, and continued to practise their art. They were no more excluded than those clerks who specialized in pleading;2 and, similarly, there was no reason why they should be called to the bar. Thus we get the rise of the other class of the practitioners under the bar. Neither class was definitely formed at this period ; but we can see the causes which gave rise to them in the following period.3

Footnote 1: Lives of the North's 1 64-65:

Footnote 2: At Lincoln's Inn, till 1794, not only conveyancers, but paid clerks to conveyancers, were members of the Inn, and could be called to the bar when they wished; see Black Books ivis-itp (187o) for a memorial from Mr. Silverlock, a clerk to a conveyancer and a member of the Inn, protesting against the refusal of the Bench to call him, because he had received a salary as clerk ; the refusal by Lincoln's Inn to sell a chamber to a " practising clerk," Black Books iii xxxx, was probably due to the fact that he was practising as clerk to an attorney or solicitor.

Both these classes of practitioners were members of the Inns of Court. Both therefore approximated to the class of barriers rather than to the class of attorneys. It was otherwise with the last of these classes of new practitioners--the solicitors. From the earliest period in their history they were associated with the attorneys, and with the ministerial and clerical staffs of the courts.

- _The Solicitors._

In the Middle Ages solicitors were not members of the legal profession. By the end of the seventeenth century they were as much a part of it as the attorneys ; and they were rapidly tending to amalgamate with the attorneys. I must therefore endeavour to describe the origins of this new class of legal practitioners, and to account for the position in the legal profession which they came to occupy.

The history of the word "'solicitor " tells something of date when this new class of practitioners emerged.4 The word appears to have been used mainly in three senses. (1) It is used

**RANS OF THE LEGAL PROFESSION 449**

primarily to mean a person who urges, prompts, or instigates. (2) Hence it is easily used to mean a person who urges, instigates, or conducts business on behalf of another person. It was used in this sense long after it acquired a technical meaning in the law. Roger North so uses it;1 and when, at the latter part of this period, the judges of the King's Bench and Common Pleas ordered that common solicitors should not be allowed to practice in those courts, unless they had been admitted attoreys by them, they were obliged to explain that this order did not extend to private solicitors, or servants of corporations or other masters.2 (3) In the law it gets the technical meaning of a person who conducts legal business on behalf of another, but who is neither an attorney nor a barrister.

Footnote 1: "The first attack in the House was the cause of Bernardiston and Soam . there we had friends, and I was a solicitor," Lives of the North's iii r57; cp. Pepys, Diary (ed. Wheatley) i 49-50, " I went to Mr, Phelps's house where he had some business to solicit, where we met Mr, Rogers, my neighbour, who did solicit against him "; the word is used also in this sense in the head note to Henloe v. Buck (1672). 2 Lev. 66.

Footnote 2: The Practick Part of the Law (3rd ed.) 247, 302; Praxis Utriusque Banci r5. 3 Vol. iii 594 + n. r.

Footnote 28: \[ENDFOOTNOTE\]

Footnote 38: \[ENDFOOTNOTE\]

Footnote 48: \[ENDFOOTNOTE\]

Footnote 49:

Footnote 50:

Footnote 51: \[FOOTNO

### 450 Law-Professional Development

Counsellors in the same ";1 and in the statute of t605 they were classed with the attorneys, and submitted to substantially the same regulations.2

Footnote 1: The Republic Anglorum (Alston's ed.) r53 ; for this edition of r58g see Alston's ed. 144, 147-167; vol. iv z10 n. 4:

It would seem therefore that solicitors, as a professional class, began to appear in the middle of the fifteenth century ; that they did not get a recognized status for another century ; and that, in the course of the fifty years following, their status was recognized, and their place side by side with the attorney was ascertained. That it was in the last fifty years of the sixteenth century that they attained this definite status is rendered the more probable by the facts, firstly, that in the orders of all the Inns of Courts made in r557 they are not mentioned along side of the attorneys;3 secondly, that in the orders of the judges and the Privy Council issued in r574 they are so included;4 thirdly, that in these orders practising solicitors, as contrasted with practising attorneys, are tolerated if they use the exercises of learning and mooting;5 and, fourthly, that in the orders of r614 no distinction at all is drawn between attorneys and solicitors.6

Footnote 2: 3 James I. c. 7:

Footnote 3: If any hereafter admitted in Court, practise as Attorney or Solicitor, they to be dismissed and expulsed out of their Houses thereupon ; except the persons that shall be Solicitors shall also use the exercising of learning and mooting in the House, and so be allowed by the Bench,"

Footnote 4: Ibid 317.

The question arises, what was the cause for the rise of this new class of professional men? I think that the cause must be looked for in the limitations upon the sphere of the attorney's activity, which arose, partly from the older technical rules as to his appointment and functions, and partly from later rules which confined his activities to the court in which he was admitted as an attorney. Excessive technicality, which hinders necessary developments in legal rules, has often given rise to the development of parallel or supplementary rules to meet new business or social needs ; and, similarly, the technicality with which the office of attorney had come to be surrounded gave rise to a new professional class to meet the new needs occasioned by new legal and social developments. This will be apparent if we look at the limitations which the older and the later rules imposed upon the sphere of the attorney's activities.

(i) The attorney represented his client for all purposes--to win or to lose.7 He was his client's agent for all purposes connected with a particular piece of litigation, at a time when the idea of agency was not familiar.8 Hence his authority came to be confined strictly to the preparation for the particular piece of

**RANS OF THE LEGAL PROFESSION 451**

litigation in hand, and to the litigation itself.1 And, conversely, he alone could take the formal steps needed in that litigation.2 But persons engaged in litigation, whether as principals or as attorneys, might require services which could not be considered to be directly concerned with the litigation, or with the preparations for it. As early as the days of Bracton we read of bailiffs or nuncii who might be employed in services connected with litigation, but who could not take formal steps in it, such as consenting to trial by a jury.3 The need for the assistance of these persons did not grow less as time went on. Thus, a litigant who lived in the country might find it advisable to employ skilled persons to send him early information from Westminister of the next move of his opponent, or to watch and report upon his opponent's relations with sheriffs, possible jurymen, or witnesses, in the county where the action was to be tried.4 We get many illustrations of services of this kind in the Paston letters and the Plumpton correspondence. The citation given above from the Paston letters shows the need for such agents,5 and the letter from the Plumpton correspondence cited in the footnote,6 which is typical of many others, points to the same conclusion.

Footnote 1: Vol. ii 315-316.

Footnote 2: Bracton's Note Book, case r188--William the Falconer and Peter of Leicester, the men of Simon de Monfort, appeared to pursue an action against the burgesses of Nottingham; the burgesses of Nottingham defended, " Et quia predicti Willeminus et Petrus non want misi nucii necel habent potestatem ponendi se super inquisicionem sine domino suo, idee sine dide."

Footnote 3: Last note; Bracton f. zirab--Et scidemut quod non potest ballivus quicquid potest dominus suus. Non potest animo cognosce disseysinam quo minus procedast assissa, sed per assissam veritas deczrabir. Item nec potest transigree nec pasical nec journ partition fac facere nec allud, quo magis dominus sus sus segismarmitat too vel in parte, nisi hoc sit per judicum et assissam "; cp. Britton ii 15.3; vol. ii 316.

Footnote 4: That such caution was then very necessary is clear, see vol. ii 458-459.

Footnote 5: Above 449 in 4.

Footnote 6: The following letter was written to Sir R. Plumpton, Jan. 29, 1498-1499 by John Pullan, who had been admitted a student of Lincoln's Inn July 10, 1496 (Black Books i 106): --" Sir please yt your mastership to understand that I sent a letter to you with Bryan Pullan of Gavathorpe of all the eycrumstance of the matter between my master and your son and his wyle, and William Babthorpe. Sir, so yt is now that surely they intend to have a _habens corpora_ agayn the Jurrours with a _nisi prins_ this next assise in Lent, at Yorke. Therefore, Sir, ye must make special fyrnds to the Jurrours, that they may be laboured specially, to such as ye trust wybe made frindly in the cause. Sir, I have letten Mr, Kyngsemell see the dedef of gift of the chaunchery of Elton, and showed to him as your mastership presented in after the deith of the last incumbent, which presentee was in by the space of iiii or v days at the least, and desired of hym to have bis best counsell. And he answered to me thus; that _subrema_ lay not properly in the case: but the best remedy for your Incumbent was to have assise at the common law, if any land belonged to the sayd Chauchre. And if he had no land, then to have a spolaison in the spiritall court against the prestst that now occupyet, because he is one sturiber, or else to supy a _pare Impedit_ at the common law. And so is to take _no subrema_. And for these causes I rest to know your pleasure. ... Sir, as for the _subrema_ agaynst Sir John Hastings, I shall remember it. The action of wast agaynst Sir John Hastings geoth forward, as fast as the law wyll serve. ... From Lynch's Inn at London, this Tuesday next Candelmans day. Your servant and bedman, John Pullan," Plumpton Corr. (C.S.) i32-133.

### Law-Professional Development

Similarly, attorneys themselves might often need the same assistance. Edward Plumpton was general attorney for his kinsman Sir Robert Plumpton.1 In _1489-1490_ he wrote,2 " Your matter in the Excheker is grevous ; there is iii wryttes agaynst you. Whereof, I have a _dedimus potestaten_ out of the Excheker, and another out of the Chauncre, both decreted to Sir Guy Fayrfax, to resayve your hothes and my ladyes. The serech and the copy of the wrytts, out of one cort to another, cosetch much money, and the fees of them, and great soliciting." In some bills of costs of the years 1532-1544 an item "pro misis et custagis," in addition to the attorney's fee, appears with great regularity each term.3 Probably some part of it at least was spent in agents employed by the attorney. And that these were the functions of the earliest solicitors is made more probable by the fact that, in 1668, the author of the " Compleat Solicitor " finds it necessary to protest in his preface, that "'it is not enough for the Solicitor to be, as it were, the Loader to the Attorney, or the Intelligencer to the Client." It was probably exactly these functions that the solicitor of the fifteenth century performed.4 In fact, we should probably not be wrong if we concluded that these early solicitors were either the trusted servants of the litigant, or the servants or clerks of the attorney. The use of servants or clerks for these purposes was legally possible because a servant could thus act for his master without being guilty of maintenance.6

Footnote 1: Plumpton Corr. (C.S.) 44 n. $b$. ${}^{2}$ Ibid 90, 91.

Footnote 2: Ibid 90, 91.

Footnote 3: Select Cases in the Star Chamber (S.S.) ii r96-205.

Footnote 4: See C. G. Cook, English Law (r65r) 44, " And in these last times there sprang up, first under the wings of noblemen, and men of great estate, for the help of the attorney in judicial courts, but as attorney in the prerogative ones, a creature called a solicitor; these men rob both lawyvers and attorneys and all subjects"; he adds that many practice as solicitors, " under the wing or name of the attorney"; the abusive language used of the solicitor is, of course, mere common law prejudice; but this passage indicates with some accuracy the origins of the professional solicitor.

Solicitors of these two types were known all through the seventeenth century. In 1615, in the case of \_Bradford v. Woodhouse_6 we see a solicitor of the first type. The plaintiff, an attorney of the court of Common Pleas, alleged that the defendant, as the solicitor of Sir Thomas Elvys had retained him, and had then refused to pay his fees. The defence was that the action should have been brought against Sir Thomas Elvys and not against "'the servant or solicitor." We have seen, too, that in the orders issued by the King's Bench and Common Pleas at the end of this period, it was necessary to distinguish solicitors of this type from the common solicitor, whose admission to practice as an attorney it was desired to regulate.7 Similarly, it is probable

## 6 Ranks of the Legal Professor 458

from these orders that solicitors of the second type--the clerks to the attorneys--were well known.1 But, to explain fully the reason for their existence, we must look at the second set of limitations which fettered the activity of the attorney.

Footnote 1: The Practick Part of the Law 247, 302-303--common solicitors are not to be admitted attorneys unless they have practised as common solicitors for five years last past.

(ii) We have seen that an attorney was an officer of the court, and could only practise in the court in which he was admitted an attorney.2 But it is clear that, in the seventeenth century, and probably earlier, an attorney of one court could act as solicitor for his client in another court. This was laid down in so many words in the case of _Thursby v. Warren_ in 1629;3 and it was admitted in the earlier case of _Bradford v. Woodhouse_ in 1615.4 It is not improbable that this was an old practice;4 and, if it was, it obviously helped towards the growth of a class of solicitors who were professional men. No doubt the attorney of the common Pleas, who acted as solicitor in the King's Bench, employed an attorney of the King's Bench, and shared the profits ; and the same sort of profit-sharing arrangement could equally easily be entered into with a person who was an attorney of neither bench.6 Thus we get the common solicitor who, according to the orders of the King's Bench and Common Pleas issued at the end of the seventeenth century, was, after five years' practice, qualified to be admitted as an attorney.7

Footnote 2: Above 435-436.

Footnote 3: Cro. Car. at p. r60--'And all the Court conceived, that an attorney may well be a solicitor for his client in other Courts as well as in the Court where he is attorney, and is allowable, and a promise to pay him for it is lawful."

Footnote 4: Cro. Jac. zao--the plaintiff was retained as attorney in the Common Pleas where he had been admitted as attorney, and as solictor in the King's Bench, and He recovered on both retainers.

Footnote 5: It was certainly known in Elizabeth's reign, as Hudson, Star Chamber 94, cites a case of M, 45 Eliza., in which an attorney of the Common Pleas, who conducted a case in the Exchequer, was sentenced for maintenance; below 454 n. 2.

Footnote 6: Probably this accounts for the orders issued by the King's Bench and Common Pleas forbidding attorneys to allow unqualified persons to practice in their names, see Praxis Utriusque Banci, 65; the Practick Part of the Law, 247, 303.

Footnote 7: Above 436.

Footnote 8: See the passage cited from C. G. Cock, English Law (r65r), above 452 n. 4.

It is clear that the growth of the new courts and councils of the sixteenth century had a great effect upon the development of this new professional class. It is in connection with them that we hear most of the solicitor, for the simple reason that attorneys who practised in the common law courts were not recognized by them.8 Right down to the Judicature Acts, we may remember, the solicitor was associated principally with the court of Chancery. It is, in fact, to the new work and new needs introduced by the growth of the jurisdiction of such courts as the Star Chamber, the

### Law--Professional Development

court of Chancery, and the court of Requests, that the solicitor owes his elevation from the position of the servant or agent of the litigant or attorney, to the position of a professional man on a level with the attorney. To this view it may be objected that, if it were true, we should expect to find that solicitors attained a recognized professional position at an earlier period in the sixteenth century than they actually attained it. These new courts had been enlarging their jurisdiction and doing a large amount of business all through the sixteenth century. But solicitors did not, as we have seen,1 attain their new position till the latter half of the century--in fact, even at the beginning of the seventeenth century, they were considered by Hudson and Egerton to be a new and undesirable class.2 The answer to this objection is to be found in a difference between the manner in which the courts of common law and these new courts provided for the representation of litigants; and, as we shall now see, this difference has had an important bearing upon the rise and the future position of the solicitor.

Footnote 1: Above 450.

In both sets of courts at this period many services were performed by their clerical staffs, which to-day are performed by the solicitors or attorneys of the parties.3 But in the courts of common law the parties had always employed their own attorneys; and these attorneys, though officers of the court to which they were attached, were not part of the regular clerical staff of the court. It is true that members of this clerical staff sometimes acted as attorneys. But in so doing they were acting outside the scope of their official duties; and the practice seems to have been prohibited by the court of Common Pleas in 1633.4 They might indeed elect to become attorneys, but then they would cease to be clerks of the court. Thus the attorneys, though

## 48 Ranks of the Legal Professor

attached to the court, were independent professional men, who depended for their remuneration upon their own efforts in getting and keeping clients. On the other hand, the only persons who could acts as attorneys in the court of Chancery, the court of Requests, and the Star Chamber were persons who were on the clerical staff of the court. The litigant must employ some one member of this small body. In the court of Chancery the Six Clerks and their under clerks acted in this capacity.1 The court of Requests had on its staff three attorneys who "served for the plaintiff and defendant to frame their complaints and answers."2 Similarly, in the Star Chamber there were originally only two attorneys appointed for the court, but "afterwards" says Hudson, "there was a third attorney appointed, upon suggestion that it were fit the suitor might have election or some choice ; and then there was a fourth added, which surely was most unnecessary."3

Footnote 1: Vol. i 421-422.

Footnote 2: Smith, De Republica Anglorum (Alston's ed.): t67.

Footnote 3: Star Chamber 45. The court of Exchequer seems, in this respect, to have approximated to the court of Chancery, above 435 n. 3; but the statute of 1729, 2 George II. c. 23, makes it clear that, by that time, the attorneys of the court of Exchequer were very much on the same footing as the attorneys of the two Benches.

But, with the increase in the business of these courts, it became clearly impossible for these close bodies to attend adequately to the needs of litigants. A large field was therefore open to irregular agents--in other words to solicitors. That these solicitors had been employed in connection with the business of these courts all through the sixteenth century is almost certain. But it was the increase of the business of these courts in the latter part of the century which made it impossible to ignore them, and necessary to recognize them as a part of the legal profession. Conservative practitioners might regret the innovation--they might even hint that these common solicitors rendered themselves liable to the penalties of maintenance.4 But it was quite clear that they had come to stay. They eventually took over many of the functions done by the Six and the Sixty Clerks, and thus rendered these officials and their underlings one of those almost useless pieces of antiquated machinery, which did so much to make the procedure of the court a grievous burden in the eighteenth century.5 No doubt we should have

### Law-Professional Development

seen a similar phenomen in the case of the court of Requests and the Star Chamber if those courts had survived. But they did not survive. Therefore the solicitor came to be associated mainly with the court of Chancery. Thus, although solicitors were known in the common law courts in the fifteenth century and later, owing to the technical rules relating to the appointment and functions of attorneys, they came to be chiefly used in connection with business in courts falling outside the scope of the common law, because those courts had adopted the vicious system of only allowing a small number of their own officials to act as attorneys. The inevitable break down of this system was the cause of, and the opportunity for, the attainment by the solicitor of a definite place in the legal system side by side with the attorney.

The statute of 16051 treated solicitors as belonging substantially to the same class in the profession as attorneys, and subjected them to similar rules. But it is clear from the provisions as to their admission that, even then, the solicitor was regarded as inferior to the attorney. The attorney must have been brought up in the king's courts or be "otherwise well practised in _soliciting_ of causes," and also "have been found by his dealings to be skilful and of honest disposition" : all that was required of the solicitor is that he must be known "to be a man of sufficient and honest disposition."2 The soliciting of causes was regarded as preparatory work, which might qualify a man to become an attorney. That he held this inferior position may also be gathered from the protest against so regarding him, which appears in the preface to the edition of the Compleat Solicitor published in 1683;3 and that it was not wholly unjustified is evident from the confession there made, that "every idle fellow whose prodigality and ill husbandry hath forced him out of his trade or employment takes upon him to be a solicitor."4

Footnote 1: 3 James I. c. 7. ${}^{,\\

## 10.1 Ranks of the legal profession 457

mitted, they could practice as solicitors in the court to which they did not belong ;1 and common solicitors, who had been in practice for five years, could be admitted as attorneys.2 A stage further in the process of amalgamation was reached when the Act of 1729 recognized the new conditions, by allowing an attorney of one court or a solicitor to practise in another court, if he got the consent in writing of an attorney of that court;3 and by providing that attorneys could be admitted as solicitors,4 and that a solicitor admitted in one court of equity might be admitted in another court of equity.5 A still further stage was reached in 1750 when it was provided that solicitors could be admitted as attorneys.6 From that time onwards we can say that this new class of legal practitioners has become substantially amalgamated with the attorneys.

Footnote 1: Above 453: ${}^{\\text{2}}$ Above 436: ${}^{\\text{3}}$ z George II. c. 23 SS no. 4 SS 20. ${}^{\\text{4}}$ SS 20. ${}^{\\text{8}}$ SS 21. ${}^{\\text{6}}$ z3 George II. c. 26 SS 15.

Just as the influence of law administered by the new courts and councils of the sixteenth century helped to free English law from the technicalities which were cramping its development, so the rise of this new class of practitioners helped to free the attorney's profession from some of the restrictions which its medieval origin had imposed upon it. The example of and the rivalry with equity liberalized the common law. Similarly the growth of this new class of practitioners in equity, who performed duties essentially similar to those of the attorney, broadened and liberalized the organization, the powers, and the capacities of the attorney's branch of the legal profession. With the amalgamation of these two classes this branch of the profession attains its modern form.

_The changes in the higher branches of the legal profession._

1. The growth of the pre-eminence of the law officers of the crown.

The attorney and solicitor-general are not medieval officials. In the Middle Ages the king had his attorney or attorneys, his serjeants, and, from the reign of Edward IV. onwards, his solicitor; and these officials shared between them some of the work done by the modern attorney and/solicitor-general. But the offices of attorney and solicitor-general only began to assume their modern shape in the course of the sixteenth century ; and it was not till the end of the seventeenth century that they in substance attained it. By that date they had become the legal advisers of the crown. Either by themselves or their deputies they appeared on behalf of the crown in the courts. As the legal advisers and deputies of the crown they gave legal advice to all the

### Law--Professional Development

departments of the state, and appeared for them if they wished to take action in the courts. Like the judges, they received writs of attendance, requiring them to come to Parliament to give their advice to the House of Lords. But, unlike the judges, one or other of them was always a member of the House of Commons. They were coming to be regarded as the leaders of the Bar, and as its representatives if it wished to take collective action.1

Footnote 1: For a summary account of the Law Officers see Anson, the Crown Pt. i 207-208 ; for a detailed account of their modern position, duties, and privileges see G. S. Robertson, Civil Proceedings by and against the Crown g-16 ; for a specimen of the patent of the attorney and solicitor-general, and the summons of the attorney-general to the House of Lords, see App. II, (1), (2), (3).

I propose to consider, (_a_) the history of the process by which the law officers of the crown attained this position ; and (_b_) the reasons why the king's attorney and solicitor attained this position during the latter half of the seventeenth century.

(_a_) _The process by which the law officers of the crown attained their modern position._

From the very earliest period in our legal history the king has appeared by his counsel in his courts.2 In the thirteenth century these counsel were called by various names. There were "attornati regis," " narrores pro rege," men "qui sequuntur pro rege," and the king's serjeants.3 At a time when the legal profession had hardly attained even the outlines of its final form, we must not expect to find very much precision in the nomenclature of the officials who were appointed to appear for the king.4 But in the fourteenth century some of these outlines were beginning to appear. The order of the serjeants was beginning to obtain its peculiar status and privileges, and to become separated from the junior barristers and the attorneys.5 The king therefore began to appear both by his serjeants, and by his attorney

## Ranks of the Legal Progression 459

or attorneys. In the patents granted to these attorneys we can trace a gradual development of their office.

In the patents granted from the reign of Edward II. to the reign of Edward III. the powers of the king's attorney are limited, either in respect of the courts in which he is to practise, or in respect of the area over which his authority extends, or in respect of the business with which he is entrusted. Let us look at one or two illustrations. _Limitation as to courts._ September 5, 6 Edward II. the king appoints John de Norton his attorney for all his business in the King's Bench.\[1\] November 26, 16 Edward II., he appoints Walter de Fyngale at a salary of $\\not{\\leq}$10 a year for his business in the Common Bench.\[2\] And in this and the following reign there are many other examples of appointments limited to a particular court.\[2\]_Limitations as to area._ November 4, 37 Edward III., we get an elaborate patent which appoints William de Nassefeldt the king's attorney with power to practise in all the courts held in the counties of Yorkshire, Northumberland, Cumberland, and Westmoreland, as well within the liberties as without. The patent is remarkable in that it allows him to have a deputy, and specifies in great detail the particular business which he is to superintend.\[4\]_Limitations as to_

1 Pat. Roll 6 Ed. II. pt. x (no. 138) m. z0--"" "

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_business._ May 20, 41 Edward III., we get a patent to John de Asshewell giving him power to look into escheats, concealments, forfeitures, goods of felons, fugitives, and other profits of the crown in London and the suburbs.1

Footnote 1: The author is grateful to the anonymous referee for his comments on the manuscript.

In a patent dated July 13, 9 Henry IV., we get for the first time a patent which gives to the attorney, Thomas Derham, the power to act for the king in the Common Bench "and all our other courts";2 and this becomes the general form.3 In a patent directed to John Herbert, August 12, 1 Edward IV., the powers of the attorney are still further extended. He is to act as the king's attorney in all courts in England, and in the courts of the counties of Carmarthen and Cardigan in South Wales, and he is to have the power to appoint a deputy or deputies.4 This power of appointing deputies was recognized as an existing practice, and elaborated, in a patent to William Husee dated February 14, 11 Edward IV.5 From that time onwards the form of commission is practically stereotyped.6 The only difference is that, while before Henry VIII.!'s reign the attorney was as often as not appointed during good behaviour or for life, in Henry VIII.!'s reign and after he is always appointed during pleasure.

Footnote 1: Pat. Roll 41 Ed. III. pt. 7 (no. 275) m. zo-$\\cdots$"Rexomnibus etc. Sciatis quod assignarvimus detroitavimus detroitavimus detroitavimus detroitavimus detroitavimus detroitavimus detroitavimus detroitavimus detroitavimus detroitavimus detroitavimus tipnut Thomam attornatum nostrum in communi Banco et in alis curis nostris habendum officium predictum quandiu se bene gessert in oedema per recipientum focada edifico consueta,"

bidis jklid f Hy. Pt. 5 (no. 393) m. 30; ibid r Hy. VI. pt. r (no. 407) m. 28; ibid 8 Hy. VI. pt. r (no. 426) m. fp.

Footnote 4: Ibid r Ed. IV. pt. 3 (no. 494) m. 27--"In omnibus curis nostris tam in Anglia quam in VWallis in Comitatibus Kermerdyn et Cardigan in Southwallia habendum ot occupamd officium illul per se vel perf sufficientem deputatum sumu suu suu suu suu suu suu suu sietitche deputatos sno pretrimo vitze."

Footnote 5: Ibid r Ed. IV. pt. 2 (no. 528) m. 28--$\\cdots$"Sciatis quod. . ipsum (Husee) assigavinus nostrum generlament attornatum in omni us curis nostris de recordo in region nostro Anglia. . Dedimus etiam et tenore presecircum damus prelato Willemo plenam potestatem et autocritatem faciendi ordinandi et deputandi tales clericos et officiarios sub ipso in qualibus Curis predictis quales aliquis

## 6 Ranks of the legal profession 461

several attorneys with limited powers by a single attorney with much wider powers, and to give this single attorney the power to appoint deputies; that this process was complete by the end of the fifteenth century; and that, as a result, the king's attorney has become, in the sixteenth century, the most important person in the legal department of the state, and the chief representative of the crown in the courts.

These conclusions are corroborated by evidence from other sources.

In the fourteenth and the beginning of the fifteenth centuries, it is clear, from the Parliament Rolls, that the king still employed several attorneys. Thus in 1334 we have a reference to the king's attorney in the Common Bench; \[1\] in 1363 to the king's attorney, " or any one who sues for the king"; \[2\] and in 1414 to the king's attorneys.\[3\] It is clear too that the seriesants and the attorney acted together for the king.\[4\] But, later in the fifteenth century, it is usually the king's attorney who is referred to; and he is referred to, together with the seriesants and the judges, in such a way that it is clear that he is taking rank with them. Thus in 1432 \[5\] and 1439 \[6\] the judges of the two Benches, the serjeants, and the king's attorney, petition for payment of their salaries; and, though in many petitions relating to finance the king's attorneys are occasionally referred to,\[7\] in the great majority of cases it is the king's attorney.\[8\] Then too, in 1460, when the Duke of York had put forward his claim to the throne, not only the judges and the king's serjeants, but also the king's attorney were asked for their advice.\[9\]

These entries on the Parliament rolls show us that the king's attorney or attorneys, like the judges and the serjeants, were consulted by the House of Lords. It is therefore probable that from an early period they were summoned by writs of attendance. In Henry VIII.'s reign the king's attorney was an important person in the House of Lords. In some of the very first entries

### Law--Professional Development

on the Journals of that House he is not only employed by it to take bills from the Lords to the Commons,1 but also to amend bills and put them into shape.2 All through the Tudor period it is the king's attorney who is usually consulted by the government on points of law ; and it is he who conducts important state trials, not only in court, but also in their preliminary stages. We can see, for instance, that the work done by Coke and Bacon, in the courts and out of the courts, is in substance the same as that of a modern attorney-general.

Footnote 1: Lords' Journals i5b

## 4.1 Ranks of the Legal Professor 463

citor. Later patents do not differ in any very important points.1 They often refer to the last preceding patent or two or three patents, and state that the present grantee is to hold it as the preceding solicitors held it.2 There is the same diversity of practice as to the tenure of the office as in the case of the attorney;3 but the practice of making the appointment during good behaviour appears to have lasted longer in the case of the solicitor than in the case of the attorney. It is not till after the Restoration that he is appointed during the king's pleasure.4

Footnote 1: Rot. Pat. r Hy. VII. pt. r (no. 56r) m. 3; 22 Hy. VII. pt. 3 (no. 603) m. 3 (24);

13 Hy. VIII. pt. r (no. 637) m. r (17); 25 Hy. VIII. pt. r (no. 666) m. 24 (23);

1 r Eliza. pt. 3 (no. 940) m. 29 (10); 1 Charles I. pt. 24 (no. 237) entry no. 4.

Footnote 2: E.g. ibid 1 Mary pt. a (no. 865); 46 Ed. VI. pt. 6 (no. 847) m. 13.

Footnote 3: Above 460.

Footnote 4: Appointment of Finch, Chancery Docout Books (Crown office) vii p. 2.

- Lords' Journals 4 ph. 5b, above 462 nm, r and 2.
- In Wilkes v. The King (1r68) Wilm. at pp. 329-330 it is said that " The Solicitor-General is the ' secondarius atomatus'; and as the Courts take notice judicially of the Attorney-General, when there is one, they take notice of the Solicitor-General, as standing in his place, when there is none. He is a known and sworn officer of the Crown as much as the Attorney; and in the vacancy of that office, does every act, and executes every part of it;" and cp. Rex v. Wilkes (1770) 4 Burr. at p. 2554; it is clear that the solicitor-general had come to occupy this position by the end of the sixteenth century; in the Journals of the House of Commons, April r, r614, it is said that, " the Solicitor's place is but a limb of Mr. Attorney's."
- In Edward I.'s reign, it is true, we get such names as Thornton, Inge, L. Lovther, and Mutford whose names appear in the Y.B.B.; but we have seen that at this time the line between the king's resignents and attorneys not clearly drawn, above 458 ; later attorneys unless they became serjeants, e.g. Richard de Aldeburgh (r334), or had been serjeants e.g. William de Thorpe (r343) and William Husee (r472), are unknown men.

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earlier solicitors. But from 1569 such men as Bromley, Popham, Egerton, Coke, Fleming, Hobart, Bacon, Yelverton, Coventry, Heath, Noy, Banks, Littleton, Heneage, Finch, Francis North, and Somers held these offices. All these are names well known to the legal historian, and many are famous in the wider sphere of general history. In the Middle Ages the high road of preferment to the Bench was by way of the degree of serjeant and the office of king's serjeant.1 From the middle of the sixteenth century onwards, the high road of preferment to the woolsack and the presidency of the courts of common law, has been by way of the tenure of the offices of attorney and solicitor-general ; and these offices could not be held by ordinary serjeants. They were at first regarded as inferior offices ; and, at all times, the duties attached thereto made their tenure incompatible with the position of the ordinary serjeant.2

Footnote 1: Vol. ii 492.

Footnote 2: Serjeants appointed to these offices got a writ of discharge, Dugdale, Orig. Jurid. c.; liv; Chromatic Series 95 (Popham), 99 (Fleming) ; on the other hand, the duties of king's serjeant, which was also a patent office, do not seem to have been regarded as incompatible; at any rate in 1814, Shepherd king's serjeant was also solicitor-general, Pulling, Order of the Coif 183-184; the rules as to the precedence of the ranks of the legal profession, below 477, long retained traces of the time when the king's serjeants were at the head of the Bar.

The position of these legal advisers of the king and government has naturally been affected by constitutional changes in the state. The first modification in their position, due to this cause, naturally occurs at the latter part of the sixteenth and in the seventeenth centuries. It was at the latter part of the sixteenth century that the House of Commons began to assume a position of increased importance in the state. This brought forward the question of the relations of the attorney and the solicitor-general to that House. It was obviously desirable that the legal advisers of the government should be able to explain to the House the legal bearings of the government measures before it. But the law officers were attached to the House of Lords.3 They had no direct connection with the House of Commons ; and it might well have been questioned whether a person summoned to the House of Lords, though only by a writ of attendance, was capable of being a member of the House of Commons. But in 1566 Richard Onslow, the queen's solicitor, was elected a member of the House of Commons ; and, as the Crown desired that he should be made Speaker, the House decided that the fact that he was solicitor, and as such summoned by writ of attendance to the House of Lords, was no bar to his capacity to serve as a member of the House of Commons ;4 and,

## 6.1 Ranks of the legal profession 465

having decided that he could so serve, they elected him Speaker.1 In 1575 it was decided that a queen's serjeant, who was similarly summoned to the House of Lords by writ of attendance, could serve as a member of the House of Commons.2 It might therefore have been supposed that the House would have no difficulty in applying the same rule to the attorney-general, if and when the question arose. Apparently the question did not arise till 1606, when it was shelved.3 It arose again in 1614; and, in spite of the practical identity of the position of the attorney with that of the solicitor and the king's serjeants, the illogical decision was arrived at to allow the present attorney to sit, but not to allow the attorney to sit for the future.4 The Commons were jealous of the influence of the Court; the Court particularly wished Bacon, then attorney, to remain a member; and so an illogical compromise was arrived at.5 This rule, though illogical, was followed for some time.6 Francis North (1673) seems to have been the first attorney-general to sit in the House of Commons;7 and after the Revolution the practice became general. Pollexfen, William III.'s first attorney, was a member of the Convention Parliament: and both he and his successors, Treby and Somers, sat in the succeeding Parliaments without remark and without objection.

Footnote 1: I'D'Ewcs, Journal Izz.

Footnote 2: I could also be the case of the

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made them members of the Ministry, and, like other members of the Ministry, dependent for their continuance in office upon the support of the House of Commons; and, in these last days, changes in the character of legislation, resulting from changed ideas as to the objects which the state should seek to attain, have made it necessary that the attorney-general should be a member of the Cabinet.

Such then in outline is the history of the process by which the law officers of the crown have attained their present position in the state. We must now turn to a more difficult question. Why did the king's attorney and solicitor attain their modern position during the latter part of the seventeenth century?

_(b) Why did the king's attorney and the king's solicitor attain their modern position during the latter part of the seventeenth century?_

We may perhaps state the problem thus: How was it that the king came to appear in the courts, and to be advised on points of law by an attorney and a solicitor, at a time when the profession of attorney was becoming sharply divided from that of a barrier, and at a time when a solicitor was approximating to an attorney, but was still regarded as inferior to him?

In order to solve this problem we must, in the first place, consider the very large differences between the development of the king's attorney and solicitor, and the development of the ordinary attorney or solicitor; and, in the second place, the great change in the amount and the character of the demands made upon the king's legal advisers in the new age which opened in the sixteenth century. The solution of the problem will, I think, be found, partly in the results of the medieval development of the office of king's attorney, and partly in the new needs of the modern state.

In dealing with the king or with any of his officials we must always remember that "the king is prerogative"; but that in the Middle Ages the king's position and rights differed originally rather in degree than in kind from those of other men.1 The position of the king's officers, and the rules applicable to them, will be analogous to the position of and rules applicable to similar officials employed by other men, at the time when these officials and these rules first originated. But there will be a difference, for " prerogative means exceptionality."2 And this characteristic of exceptionality is present, not only in the actual rules of law at any given period, but also, and to a far

## 10.1 Ranks of the legal profession 467

greater extent, in the historical development of these rules. The fact that an official or a rule of law is connected with the king, will often cause the office or the rule to retain old ideas which elsewhere have long passed away.1 The king is not affected by statutes unless they are specially made applicable to him ; and his exalted position has often caused him and his officers to remain unaffected by the gradual changes and tendencies which affect common men. Thus, although in early days the king's officials and the law applicable to them were not so very different from the officials of, and the law applicable to, common men, they will both come, in the course of centuries, to be so different that it is difficult to see any resemblance whatsoever. The maintenance of old ideas, and the development, under the pressure of national necessities, of the differences between the rules applicable to the king's case and those applicable to the case of ordinary men, will produce a type of official and a body of law applicable to them, quite unlike anything else; and quite inexplicable, without an historical analysis of the complex pressure of the old ideas and the new needs, which have brought about the finished result.

Footnote 1: For another illustration in the law relating to the liability of the servants of the crown see vol. iii 388.

Let us apply these principles to the problem in hand--the development of the position of the king's attorney and solicitor.

We hear of a king's attorney in the thirteenth century, that is at a time when the legal profession had not yet taken its final form. Like the attorneys of other people, he is often only appointed for a particular court;2 like them he is sometimes formally admitted by the court;3 and like them he can both plead and take all the necessary steps in the action. But there are differences. The king could appoint an attorney-general--an attorney to conduct any litigation that might arise--at a time when other persons could only do so by the express licence of the king.4 The king's attorney did not represent the king in his courts, for the king was always theoretically present, but he followed the case on his behalf.5 He must see that the rights of his theoretically present but actually absent principal did not

### Law--Professional Development

suffer ; and the court must see that all the procedural advantages given to the king by his prerogative were given to his attorney. In the thirteenth and early fourteenth centuries, then, the king's attorney has all the powers and privileges of the attorneys of other men, and more besides ; for "the king is prerogative." And the consequences deduced from this fact developed with the development of the law--" in the pleadings and proceedings themselves of the king's suits," said Bacon in 1616, "what a garland of prerogatives doth the law put upon them."1

Footnote 1: The Case de Rege Inconsito, Works (Ed. Spedding) vil 693.

It is clear that the king's attorney will not be affected by the later changes in the position of the private attorney, statutory or otherwise, which came with the growth of the professional attorney. Even if he could be regarded as an officer of the court of King's Bench, he was an officer of a standing very different from that of the private attorney. He was associated with dignified officials like the protonotary or chief clerk of the crown, and not with the clerical staff of the courts.2 He was not appointed by the court to which he was attached, nor was he subject to its discipline in the same way as the ordinary attorney. Like other attoreys, he had been educated at the Inns of Court ; but, unlike them, he was generally called to the bar. Either by virtue of his powers as an attorney of the older type, or because he has been called to the bar, he can plead for the king ; and he can do as well all that an ordinary attorney can do for his client.

Footnote 2: Roger North says, Lives of the Norths iii 138-39, " The Attorney-General in the King's Bench is an officer by the Constitution, and hath a place under the Chief Justice when he sits, and puts on a round cap like the protonotary and chief clerk of the crown "; but, he adds, " profit calls him away, and to take the place of a pleader within the bar,".

At the same time, the differences which, from the outset, had existed between an attorney who appeared for the king, and an ordinary attorney, enabled his office to develop on its own lines. He could be a more general attorney than those of other men. He could be commissioned to appear, not only in all cases affecting the king in any one court, but also in all cases in any court in England.3 Thus it was possible for the king to appoint a single attorney, who, together with the king's serjeants, was responsible for giving legal advice to the king ; who, like them, was capable of appearing for the king in the courts. We have seen that, by the end of the medieval period, this official was on a level with the king's serjeants and the judges ;4 and, like them, he was summoned by writ of attendance to the House of Lords.5

Footnote 3: Above 460.

The king's attorney of the thirteenth century bears a strong family likeness to the attor

## 6 Ranks of the legal profession 469

the fifteenth century, the maintenance in his case of the old ideas connected with the office of attorney, the separate and distinct development of the ordinary attorney, and the development of the exceptional privileges of the attorney who appeared for the king, have caused the king's attorney to become an official wholly different from the ordinary professional attorney, and have thus given to his office a wholly unique character.

We can see a similar development in the office of the king's solicitor. As in the case of the king's attorney, we cannot explain, either the reason for his creation, or his original position, without a reference to the position of the ordinary solicitor. We have seen that these solicitors were employed by private litigants in the fifteenth century; that attorneys used them as their assistants; and that they performed services for their employers which did not fall within the scope of the ordinary attorney's duty; that therefore they were in the nature of trusted servants of the litigant, or servants or clerks of the attorney.1 Now, although there were not the same set of limitations upon the sphere of action of the king's attorney as there were upon the professional attorney of the private person, it is clear that the king's attorney would often want assistance. It is significant that the time when the power to appoint a deputy becomes a usual clause in the attorney's patent, is the time when the king's solicitor first appears.2 However that may be, it seems to have been recognized from the first that the expedient of allowing the attorney to appoint deputies, would not altogether meet the necessities of the case. Since the king had ceased to appoint several attorneys with co-ordinate powers, and had entrusted his business to a single attorney, it was probably thought desirable to appoint a person to act as a subordinate to the king's attorney. It was natural that he should take the title of solicitor, as the private solicitor of the period was often a person who acted as a subordinate to the attorney. From the first, therefore, the king's solicitor occupied the place which he occupies to-day; and, that being so, it was only natural that his office should develop rapidly in importance with the development of the office of king's attorney. That it was so developing at the very beginning of the sixteenth century, is clear from the fact that, in the earliest of the Journals of the House of Lords (1509), we find that he is an assistant to that House, and that he occupies a position similar to that of the king's serjeants and attorney.3

Footnote 1: Above 451-452.

That this is a correct explanation of the origin and development of the office of the king's solicitor is rendered probable by

### Law-Professional Development

the fact that it has never had any special connection with the court of Chancery. On the contrary, it would seem that the king, in 1439, appointed an attorney for his business in the Chancery.1 The private solicitor in later days was specially connected with that court. But we have seen that that connection was caused by the fact that the development of the solicitor was largely due to the inadequate provision made, both by that court and by the courts of Requests and Star Chamber, for the representation of litigants, and to the consequent employment by litigants of their own solicitors.2 The king's solicitor really represents the older class of solicitors--those employed by litigants or attorneys in the common law courts to help them in their business. Here again, therefore, a royal official preserves the memory of an older order. Here again, the development of his office has resulted in giving to that office a wholly unique character.

Footnote 1: Select Cases before the Council (S.S.) x03 n. 5.

Footnote 2: Above 455.

At the beginning of the sixteenth century, therefore, both the king's attorney and the king's solicitor were important state officials. But they had not yet attained their modern position. They were not the only legal advisers of the crown. They were not the only persons employed by the crown to appear for him in the courts. Many of these duties were shared by the king's serjeants, who, like them, were summoned to the House of Lords, who then, and later, took precedence of them. It is during the sixteenth century that they ousted the king's serjeants from their position of equality with themselves, and thus became pre-eminently the law officers of the crown.

By the beginning of the seventeenth century this development was practically complete. Hudson tells us that it was resolved, in 1604, that the king's serjeant could not, like the king's attorney, proceed on his own motion by information in the Star Chamber.3 He could apparently only act if he were specially instructed.4 In other words, the attorney-general was the only person who could take the initiative in legal proceedings on behalf of the crown. Why was it that he had thus been able to gain so decisive a superiority to the serjeants?

Footnote 3: Star Chamber, 134--\* In r and z _Star_, it was resolved by the court, that it belonged to the place of the attorney \[to inform for the king\]; and _serjeant Healze_, the king's serjeant, putting in a bill against _Sir John Lusson_ was denied that privilege.\*\*

Footnote 4: This was certainly the case later in the century; Roger North says, Lives of the North's iii 138, * There used to be two serjeants, called the king's serjeants, for long time past, and these had a greater dignity and authority than the attorney-general ; they hold the precedence still, but have little authority and no business but as Mr. Attorney call them."

The short answer to this question is because the king's

## 6 Ranks of the Legal Progression 471

serjeants were serjeants. Because they were serjeants their sphere of action was not so wide as that which was open to the king's attorney or solicitor. Though they could and did appear in other courts, their main sphere of action was the common law courts, and their chief sphere of action was the court of Common Pleas.1 The king's attorney and solicitor could do all and more than all that a king's serjeant could do. They could even plead in the court of Common Pleas when they appeared for the king.2 They were therefore more useful to the king than any member of the order of serjeants could be, in a century in which, because it was a century of change, men were required who could adapt themselves to new kinds of business. Again, because the king's serjeants were serjeants, their education and outlook were the education and outlook of common lawyers. As in the Middle Ages, it was the successful practitioners in the common law courts who became serjeants ; and the successful serjeants who became king's serjeants.3 But, in the sixteenth and seventeenth centuries, the king required lawyers who were versed, not only in the common law, but also in the law administered in the courts outside the common law courts. He required also lawyers who were conversant with the political problems of the day. The need for lawyers who had had a political as well as a legal training grew greater as the contests of jurisdiction between rival courts grew fiercer, and as the constitutional differences between king'and Parliament became more bitter. If the Stuart kings found it necessary to choose judges who would take their view of the constitutional questions of the day,4 much more did they find it necessary to choose legal advisers whose politics they could trust. But the serjeants, because they were pure common lawyers, could not be trusted to see eye to eye with the king on many of these political questions. They were too well read in that medieval common law which taught that the law should be supreme in the state, and that Parliament had powers and privileges which could not be overridden.

Footnote 1: Vol. ii 490-491.

Footnote 2: "In the Common Pleas the attorney-general may come into and sit in the court, and appear to speak in the king's business, for he hath power _ad_ _perdendum_ _et_ _lacratum_ _pro_ _reg_, but he cannot take the place of a serjeant at the bar," Lives of the Norths, u u 139.

The order of the serjeants was essentially medieval ; and the king's serjeants were medieval officials. Like many other medieval officials, they were obliged to give place to officials who had originally occupied a humbler position, because these officials were, for that very reason, more capable of adaptation to

### Law-Professional Development

the needs of the modern state. Thus the rise of the king's attorney and solicitor, at the expense of the king's serjeants, is, in the legal sphere, a phenomenon of the same kind as the rise, in the political sphere, of the king's secretaries, at the expense of many older medieval functionaries.1

Footnote 1: The term "the king's attorney" is the same as the one in the legal sphere, but it is not the same as the one in the legal sphere.

The rule that the office of the king's attorney and solicitor could not be held by a serjeant had originated in the idea that any member of the order of the serjeants, and a fortiori a king's serjeant, was superior to the king's attorney or solicitor;2 and, though in this period this reason for the rule was no longer applicable, the rule was maintained because the king found it a convenient rule. It enabled him to emancipate himself from the control of men who were primarily common lawyers, and to appoint as his legal advisers men who were in touch with the political questions of the day, and with his view of those questions. We shall now see that, as a result, the order of the serjeants began to lose that pre-eminence in the legal profession which it enjoyed in the Middle Ages. The former pre-eminence of the king's serjeants had, as we have seen, gradually passed to the law officers of the crown, who, by the end of the sixteenth century, had become the acknowledged heads of the profession. We shall now see that, during the seventeenth century, the pre-eminence of these law officers extended itself to a set of counsel who originally were immediately connected with them; and that this extension weakened still further the position of the whole order of serjeants.

Footnote 2: The term "the king's attorney" is the same as the one in the legal sphere, but it is not the same as the one in the legal sphere.

- The rise of the order of king's counsel. It soon became clear that the king's attorney and solicitor could not by themselves do all the work which their office imposed upon them. It is to this cause that we must ascribe the rise of a body of ''king's learned counsel," who are the ancestors of our modern king's counsel. It would seem from D'Ewes that a body of persons so designated was known at the very beginning of Elizabeth's reign. Describing the places which the various members or assistants or attendants upon the House of Lords occupied, he says,3 '' On the Woolsack on the left hand of the Estate, and on the south side of the House, sate the Master of the Rolls, the Lord Chief Baron, the Queen's learned Council, and others. And note that all these may properly be said to sit on the Innerside of the Woolsacks, and the Queen's Learned Council on the outside of the Woolsacks, next the Earls." The learned counsel here referred to may of course be only the judges and the

## 6 Ranks of the legal profession 473

law officers. But, in a judges' order of 1594,1 they are again referred to in a way that makes it reasonably clear that there was a body of counsel retained by the crown, who were regarded as ranking next after the serjeants; and it is quite certain that such a body was known at the end of Elizabeth's reign, because, in 1603, James I. says that he had continued in their places " the learned Council to the late Queen our sister."2 It is probable that these counsel were appointed by the crown, on the nomination of the attorney-general, to act as his assistants.

Footnote 1: "You found me of the Learned Counest Extraordinary, without patent or fee; a kind of _individual vagum_. You established me and brought me into Ordinary, Soon after, you placed me Solitcitor, where I served seven years," Letter of Bacon to the king 1620-1621, Spedding, Letters and Life vii 68,

Francis Bacon was constantly employed by Elizabeth in legal work of the kind which fell to these learned counsel. And it would seem from the wording of James I.'s warrant in 1603 that he had been directly appointed by the queen. James does not say when he was so appointed, nor does Bacon when, at a later date, he was recounting the stages of his advancement in the legal profession.3 But we may perhaps conjecture that Coke, in his capacity of attorney, would be the last person to nominate Bacon, and that Bacon's influence secured from the queen a direct appointment without reference to her attorney. And this conjecture is perhaps supported by the fact that Bacon's appointment had not apparently been renewed at the beginning of the new reign.4 It is fairly clear from James I.'s warrant that Bacon's position was no better than that of any other of the queen's learned counsel.5 Probably they all had a certain precedence 6--but that is all. Bacon himself admits that the office was " without patent or fee," and very vague in character.

Footnote 2: "Where we have perceived by a letter from our Council at Whitshell that Francis Bacon., was one of the learned Council to the late Queen, our sister by specialist commandement, and that in the warrant granted by us to them for the contenweance of their places he is not named, we have thought good to allow him in such sort as she did. And therefore doe require you to signify our pleasure to him and to the rest of our learned Council, and others to whom it shall appertain to be thereof certyled, that our meaning is that he shall continue to be of our learned Council, in such manner as before he was to the Queen, during our pleasure "; cp. S.P. Dom, r600 cclxiv r18 (cited Tanner, Constitutional Documents 248) where they are referred to in a way which shows that they were distinct both from the Council and the judges; S.P. Dom. 1671-1678123, lxvii 72 where Lord Harrington asks Salisbury to cause a suit to be referred to the king's counsel at law, because he can get a more speedy decision from them than from the judges who were then on circuit; and they are referred to again as assistants of the attorney-general in 1620, S.P. Dom. 1679-1623197, cxvii 7T.

Footnote 3: "You found me of the Learned Counest Extraordinary, without patent or fee; a kind of _individual vagum_. You established me and brought me into Ordinary, Soon after, you placed me Solitcitor, where I served seven years," Letter of Bacon to the king 1620-1621, Spedding, Letters and Life vii 68,

Footnote 4: Above n, 2, ${}^{\\rm

### 47.1. $\\mathrm{LAW}$--Professional Development

"established and brought into ordinary." The patent 1 recites that the king has appointed Bacon "our councillor at law or one of our Counsel learned in the law ";" that he has given him, place and precedence in our courts or elsewhere, all the other advantages that pertain to the office, and all powers necessary to the performance of its duties ;3 that the office is to be held during good behaviour with as ample an authority " as any other of our counsel learned in the law or as the said Francis himself by the word of Queen Elizabeth our predecessor or by our warrant has held it, provided that this grant does not derogate from any office heretofore granted by us or our ancestors ";4 and lastly the king has granted Bacon a fee of $\\not$$\\

## 10.1 Ranks of the legal profession 475

by royal writ. At the present day the declaration which they make,1 and the ceremony of being called within the bar of the several courts, are strongly reminiscent of the serjeants' oath, and the ceremony used in the court of Common Pleas on the creation of a serjeant.2 But, though they thus became an established order in the legal profession, the nature of their duties was at first in no way affected. They were appointed to give assistance and advice to the law officers of the crown. Thus in Charles II.'s reign they were consulted in capital cases and in " cases of state."3 In James II.'s reign they were expected to give a favourable opinion as to the legality of the proposed exercise of the dispensing power.4 Roger North tells us that, after he had been made king's counsel, his brother "ordered the matter so that I was ordered to attend the attorney-general upon all capital and other cases of state, to consult with and assist Mr. Attorney, for the more steady conduct of the king's law business."4 And the rule which exists at the present day, that a king's counsel cannot appear against the crown without a licence from the crown, is a survival from the days when these counsel were really the king's counsel, and the assistants of the law officers of the crown.6

Footnote 1: For the serjeants' oath and the modern declaration of a King's Counsel see App, III. (2).

Footnote 2: For the ceremony in the court of Common Pleas used at the creation of a serjeant see Obj. ii 488-489; for the formalities surviving in the eighteenth century see Foss, Judges viii 220-azar; the serjeants' feasts were discontinued at the beginning of George III.'s reign, and the gift of rings to the judges and officers of the courts in 1787--though the gift of rings to other officers of state continued, ibid.

Footnote 3: In \_"When matters of life and death were depending he (Sir Robert Sawyer, the attorney-general) used to summon the king's counsel to attend him at his chamber, where it was freely consulted if there were a fitting evidence to proceed upon or not; and if the general opinion was that the evidence did not come up, he never pushed any trial against any man," Lives of the North s 1 377-378; similarly North tells us, Examen 38-39, that Bridgman, L.K., consulted them as to the issue of commissions of marital law, and as to the issue of injunctions in the Bankers' Case--" I remember about this time, there was at his house a meeting of the Attorney and Soliticor-general and some of the King's Counsel to consult upon these two points; and they all agreed they were rocks upon which they must split, if they could not otherwise decline them."4 In this time of peril he (Sir Robert Sawyer) was so kind to his friends, the king's counsel, as to give them warning to study the points; for they 'would be asked whether the king might not, by his royal grant, appoint officers unqualified with _non obstanites_ to the test laws; and that the first case would be concerning the soldiery," Lives of the North s 1 378.

Footnote 5: Ibid iii 1zg.

Footnote 6: The phrase which Blackstone, Comm. iii 27 uses, is reminiscent of the older order; he says, " From both these degrees (serjeants and apprentices) some are usually selected to be his majesty's counsel learned in the law; the two principal of whom are called his attorney and solicitor-general."

There were signs, even at the end of the seventeenth century, that this new order of counsel was ceasing to be in any real sense the king's counsel. Roger North tells us that " of late their appointment hath been more frequent and out of favour more

### 476 Iaw-Professional Development

than merit in the profession ";1 and it was only natural that the law officers should not wish to consult men promoted on these grounds. Apparently it was chiefly by the favour of his brother that Roger North himself was consulted.2 Obviously the order of king's counsel was coming to be a body of counsel to whom precedence had been given, either because of their professional eminence, or because they could bring interest to bear in the right quarter. In the eighteenth century they came to be simply a class of counsel who, for one reason or another, had been given a rank superior to that of ordinary counsel.3 But they were still exposed to disabilities which were survivals from the time when they were really the king's counsel. They could not appear against the crown without the crown's licence; and, as the office was a paid office, appointment to it vacated a seat in Parliament. On that account barriers sometimes, instead of becoming king's counsel, got a patent of precedence, which gave them the same precedence as king's counsel, without exposing them to the disabilities of that office.4 This practice shows that the king's counsel had ceased to perform the functions for which they were originally created. The assistance which they formerly gave to the law officers of the crown came to be given by the treasury solicitor--the germs of which office we can see in the seventeenth century,5 or by counsel employed and paid by the treasury.

Footnote 1: Lives of the Norths iii $x\_{3}8$; the alteration in the mode of payment, above 47% n. 7, points in this direction.

Footnote 2: Above 475.

Footnote 3: A custom has of late years prevailed of granting letters patent of precedence to such barriers as the crown thinks proper to honour with that mark of distinction; whereby they are entitled to such rank and preaudience as are assigned in their respective patents, sometimes next after the king's attorney-general, but usually next after his majesty's counsel then being. These (as well as the queen's attorney and solicitor-general) rank promiscuously with the king's counsel, and together with them sit within the bar of the respective courts : but receive no salaries, and are not swom; and therefore are at liberty to be retained in causes against the crown," Bl. Com. iii 28; when Strange resigned the office of solicitor-general and his other appointments in 1742, the king gave him a patent of precedence next after the attorney-general, 2 Strange at p. 17%.

Footnote 4: Lives of the Norths iii $x\_{3}8$--\* Still new under officers are made, as the Solicitor of the Exchequer, who was a runner up and down to call for process about the king's debts and dispatch them, is a sort of mechanic Attorney-General, and both in effect more, as to the prosecating and solicitor part, then attorney and solicitor part together. This employment was first conspicuous under Jones who prosecuted the popish plot; after came to Graham and Burton (as to whom see Burnet, History of My Own Times Pt. I. ii 29S), and since to Whitmore and Aaron Smith "; the whole passage is interesting as a first, though somewhat slight attempt to trace the history of the law officers of the crown. North was, in a sense, not so very wide of the mark when he said that, "the attorney-general was anciently little more than a sort of Aaron Smith in the law "--but he probably did not grasp quite firmly the fact that, when the king's attorney first appeared, the modern distinctions between the ranks in the legal profession had not grown up, and that consequently the king's attorney never held quite the same position as that of the ordinary attorney; cp. Examen 174 (the pages are here wrongly numbered and it should be p. rz2) for an account of Mr. Graysham, who held the office of solicitor of the Exchequer; it is clear that he did for the king the work done for an ordinary suitor by his attorney--he had, as North says, " The

## 7 Ranks of the Legal Professor 477

The effect of these changes upon the older ordering of the legal profession were threefold. They affected the precedence of the various orders of barriers ; they affected the position of the serjeants ; and they affected the Inns of Court.

Firstly, in the Middle Ages the king's serjeants were at the head of the bar, then came the serjeants, and then the other barriers.1 In the earlier half of the seventeenth century no clear rules of precedence seem to have existed. Apparently the serjeants had precedence in the court of Common Pleas, even over the attorney and solicitor-general, unless the attorney or solicitor were appearing for the crown;2 and in the court of Chancery Bacon seems to have assumed that he, as chancellor, could settle questions of precedence as he pleased.3 But probably by the end of the seventeenth century,4 and certainly before Blackstone wrote,6 it was settled that the king's serjeants took precedence of the attorney and solicitor-general, that the attorney and solicitor-general took precedence of all the king's counsel or barristers who had got patents of precedence, and that the king's counsel or barristers with patents of precedence took precedence of the serjeants. Though the attorney and solicitor-general had long been in fact the leaders of the bar, it was not till 1814 that they were given by royal warrant precedence over the king's serjeants.6 It is clear, however, that, by the end of this period, the general body of the serjeants had ceased to be at the head of the bar, and that the precedence of the various members of the bar was beginning to be settled in its modern form.

Footnote 1: The author was supported by the National Science Foundation of China under the contract No. 10

### Law--Professional Development

the judges should be exclusively appointed from their order--had practically disappeared. It survived, but in name only. From the Tudor period it had become the custom to make any barrister, whom it was desired to appoint to a seat on the bench, a serjeant pro forma.1 Thus, although nominally the judges and serjeants were still brothers of one order, though they still had their Serjeants' Inn where they occasionally consulted together on pending cases,2 in fact the old solidarity of the order had gone. During this period the law officers of the crown had established a prescriptive right to the best judicial appointments; and they were never ordinary serjeants. This meant that the bench was not in fact composed of men who had at heart the privileges and interests of the order of serjeants. Francis North, when chief justice of the Common Pleas, countenanced the practice of allowing other barristers to make " side bar" motions--a practice by which his brother, then newly called, benefited ; and when the serjeants, to mark their disapproval, refused to plead, he threatened to throw open the Common Pleas bar.3 The members of the new order of king's counsel were appointed from among lawyers whose politics the government thought that it could trust.4 Obviously they were far more likely than the serjeants to be promoted to the bench, in an age in which the politics rather than the learning of the judges were the main consideration. Hence we must date from this period the beginnings of the decline of the order of the serjeants.5 Their position was perhaps slightly strengthened after the Revolution, when the judges ceased to be appointed for political reasons. But the fact that the law officers were never members of their order, and the fact that the king's counsel took rank above them, condemned them to an anomalous position, in which we can see one of the causes for their ultimate extinction.

Footnote 1: Vol. v 340-34 I.

Footnote 2: See Lives of the North s 89 for a tale of how Hale, C.B., made the case of Barnafiston v. Soame, " a table case in Serjeants' Inn Hall," in order that if the serjeants' opinions coincided with his own, " his sentence in court might be adorned with the adjunct of the opinions of the serjeants' bench; to whom (as is sometimes done) the case had been put."

Footnote 3: Ibid x32-x34; Roger North thus describes these side bar motions: " It hath been the usage of the King's Bench at the side bar below in the hall, and of the Common Pleas in the chamber within the Treasury, to hear attorneys and young counsel that came to move them about matters of form and practice."

Footnote 4: Above 472-475.

The third effect of these changes was to alter somewhat the constitution of the Inns of Court. These Societies had been and to a large extent still were wholly self-governing. Their benches

## Ranks of the Legal Progression 479

had been recruited by co-opting the ablest members of the 1nn ; and it was obligatory upon all benchers to read or to have read a certain number of lectures.1 But, in the latter half of the seventeenth century, this manner of recruiting the benchers was affected by the claim of the king's counsel to be elected as of right. It is obvious that this meant that the crown could practically make a barrister a bencher by appointing him king's counsel.

Footnote 1: Vol. ii 497, 503, 504; vol. iv 463-264; below 490-49r.

The question whether the king's counsel had this right was raised by Francis North in 1668, who claimed to be raised to the bench of his Inn on his appointment to the office of king's counsel.2 It was obviously a question upon which there could be no direct authority. The king's counsel were a comparatively new order; and the question never arose in the case of serjeants, because the serjeant, on his appointment, ceased to be a member of his Inn of Court, and became a member of Serjeants' Inn.3 But the prevailing tendency was in favour of North's claim. In the latter part of the sixteenth and in the earlier part of the seventeenth centuries the Readers and benchers had shown themselves amenable to influences of various kinds.4 Francis Bacon owed his rapid advancement at Gray's Inn to his family connections.6 In 1614 Lincoln's Inn specially admitted without fees a relation of Lord Ellesmere.6 In 1618 a member of the Council of the North was called to the bench by Gray's Inn and excused from reading.7 In 1622 the bench of Gray's Inn revoked an order as to the precedence of a bencher in obedience to letters from the king.8 It was coming to be customary to elect other lawyers whom the king had directly or indirectly appointed to high posts in the administration of the law--such as protonotaries 9 or masters in Chancery.10 In the case of North, therefore, the judges had no difficulty in coming to the conclusion that his appointment as king's counsel gave him a right to be called to the bench; and the benchers were obliged reluctantly to

### Law--Professional Development

acquisece.1 The Inns recovered their liberty of choice after the Revolution.2 But they usually called king's counsel to the bench; and it was not till t845 that it was solemnly decided that they were under no legal obligation to do so.3

Footnote 1: North having represented his case to the judges, they reprimanded the benchers when they appeared in court, " for their insolence, as if a person whom his majesty had thought fit to make one of his counsel extraordinary was not worthy to come into their company ; and so dismissed them unheard with declaration that until they had done their duty in calling Mr. North to the Bench, they must not expect to be heard as counsel in his majesty's courts. This was English, and that evening they conformed and so were reinstated ${}^{7}$; cp. Black Books iii 141 (t683) for a call to the bench of a barrier because he was made king's counsel.

Footnote 2: Inner Temple Records iii 321-322-- on an appeal to the judges brought by one Fry, an ancient of Gray's Inn in t869-t690, complaining that he had been twice passed over in calls to the bench, the judges held, " that the call to the Bench was no matter of right in any person, but was in point of government only, and that it was discretionary, and both person and time ought to be left to the judgment of the Bench, in whom the government of the society resided, and that unless the appellant had been called and then disheched no cause need be assigned why the Bench refused the appellant'"; cp. Foss, Judges vi 38.

Footnote 3: In the case of Mr. Hayward, cited Pulling, Order of the Coif. 171 n. 2.

Footnote 4: Francis North's promotion was a conspicuous instance, above 205-206; below 531-533.

It is clear that the fact that the benchers, whether under compulsion or voluntarily, elected those to whom the crown had given the rank of king's counsel or other legal preferment, tended to alter the character of the benches of the Inns. Their benches ceased to be composed solely of the able men of the junior bar, who had won their way thither, partly by their abilities in the courts, and partly by their willingness to take an important part as Readers in the educational work of the Inns. Instead, they were composed of men who were sometimes distinguished practitioners, and generally, in addition, rising politicians of the legal variety.4 Such men could not be expected to take the whole-hearted interest in the educational work of the Inn that had been taken by the benchers of the older school. The benchers who had refused to call Francis North had evidently perceived this. They alleged, says Roger North, " that if young men by favour so preferred came up straight to the Bench, and by their precedence topped the rest of the ancient benchers, it might in time destroy the government of the Society."5 And events proved that there was some reason in these apprehensions. Just as these changes struck at the collegiate life of the order of the serjeants, so they struck at the collegiate government and education of the Inns of Court. In the middle of the nineteenth century vice-chancellor Stuart said, " the multitudinous and indiscriminate creation of Queen's Counsel has made the number of Benchers in the two most considerable Inns of Court too unwieldy for the proper government of those societies."6 Their

## 11 Educational System

effects on the educational system of the Inns were more immediately felt, because they were only one of the many causes which, as we shall see immediately, were destroying the older educational system. But we can hardly doubt that the effect of these causes was aggravated by this change in the personnel of the governing bodies of the Inns, which was the indirect consequence of the new grouping of the higher ranks of the legal profession.

### The Educational System of the Inns of Court

The first half of the sixteenth century was the golden age of the educational system of the Inns of Court. The system of legal education created in the Middle Ages1 then reached its fullest development.2 It was a system eminently well suited to the needs of a youthful system of law, the literature of which was as yet of a manageable size. It was perhaps the only system possible for an age in which there was no printed books. It was a very practical system--it produced pleaders and advocates ; and at the same time theory was not neglected--it produced accomplished lawyers. This system was maintained right down to the outbreak of the Great Rebellion. But it had begun to decline in the latter part of the sixteenth century, and it was maintained with increasing difficulty in the earlier half of the seventeenth century. It collapsed during the Commonwealth period ; and, in spite of attempts by the Inns of Court and the judges to revive it after the Restoration, it never recovered. By the end of this period the Inns of Court had ceased to be educational bodies ; and the student was left to make his own arrangements for his education.

Footnote 1: Vol. ii 506-508; see Putnam, Justices of the Peace (Oxford Studies vol. vii) 167-173.

The history of the decline and fall of the educational system of the Inns of Court thus falls into three periods :--(1) the late sixteenth and early seventeenth centuries ; (2) the Commonwealth period ; and (3) the latter part of the seventeenth century.

The late sixteenth and early seventeenth centuries.

That we must date the beginnings of the decline of the educational system of the Inns of Court from the latter half of the sixteenth century, is reasonably clear from a comparison of two sets of Judge's orders, issued in 15578 and 15914 respectively. In the first of these sets of orders it is provided _inter alia_ that moot cases in the vacation shall not contain more than two arguable points, and that none of the bench are to argue more than two points.5 We gather from this that the Reader's cases had been

### Low-Professional Development

too full of arguable points, and that the benchers engrossed all the argument. This clearly points to such excessive zeal on the part of Readers and benchers that the moots were not so instructive to the students as they might have been. The second set of orders tells a very different tale. "Whereas," it runs, "the Readings in Houses of Court have time out of mind continued in every Lent and every August yearly, by the space of three weeks at the least, till of late years, that divers Readers in the same Houses have made an end of their reading in farr shorter time, and have read fewer Readings, than by the antient Orders of the said Houses they ought to do; to the great hindrance of learning, not only in the said Houses of Court, but also in the Houses of Chancery, by reason that the Exercises of Moots, very profitable for study, are by occasion thereof cut off almost the one half thereof or more . which, if it should be permitted, would be almost an utter overthrow of the learning and study of the law "--therefore the judges proceed to make orders that the accustomed length and number of readings be maintained.1

Footnote 1: "That all Single Readers in every of the said Houses of Court, shall continue every of their Readings by the whole space of three weeks, or till Friday in the third week after the beginning of every such Reading, at the least. And that there shall be as many Readings, in every of the said three weeks, as by Antient Orders of the same Houses have been accustomed. And if there shall be any cause allowed by the Benchers of the said Houses for fewer Readings; there shall be, notwithstanding any such cause or excuse, three Readings in every of the said three weeks at the least; any Order to be taken to the contrary notwithstanding."

The causes for this decline of the educational system during this period are mainly three--the introduction of printing, the disinclination of the students, and the disinclination of their teachers.

(i) The effects of the introduction of printing upon the system of legal education were as extensive as its effects upon the system of law reporting.2 It led to the growth of a very much larger legal literature, and it made this literature far more accessible. The students could buy books; and the Inns began to pay increased attention to their libraries.3 Coke recognized that "timely and orderly reading " was as necessary a part of legal education as the practice of moots, and attendance upon Readings and at the courts.4 The list of books which D'Ewes read in the course of his studies at the Temple, shows that this fact was well ap

## 6 Educational System

preciated by serious students.1 But this introduced a new problem into legal education. What should be the relation of the students' reading to lectures, and to practical exercises in pleading or advocacy? Coke saw that it was a serious problem, and he warned the student that he could not safely neglect either method of acquiring legal knowledge. "There be two things," he said, "to be avoided by him as enemies to learning, _prepostera lectin_, and _prepostera praxis_."2

Footnote 1: Below 486. $ Co. Litt. 70b.

(ii) The second of the causes for the decline of the old system is largely a direct consequence of the first. Many students neglected Coke's advice. The printed book seemed to provide a short cut to knowledge; and they thought that they could safely neglect the readings, moots, and other exercises required by the Inns. Then, as now, they excused themselves for their non-compliance with the academic routine, by the plea that they could get all the knowledge they wanted more easily and more accurately by their own reading; and this excuse was exceedingly likely to be used by the many students of good family who came to the Inns, not that they might live by the law, but that they might get a good general education.3 Two entries on the records of Lincoln's Inn illustrate this feeling among the students. The first shows that they had devised a plan of doing their mooting by deputy. In 1615 the Bench found it necessary to order that in the case of those who " doe the graunde mootes by depuytes, the depuytes shalbe centred into the Booke of Exercises, and not those that take them up."4 Another method of evasion called forth the following order in 1628: "Forsomuch as it is generally observed that very many of the Utter, Barristers and students of this Society under the Barr, lyable to be charged with the exercises of the House, put themselves out of commons when they should be charged . althoughe such as so continue out of commons remayne in the House or towne; it is ordered that such as shall so doe shall be nevertheless lyable to exercise, notice being left at their chamber, and shalbe cast again in commons."5

(iii) If the barriers and benchers had been as determined to carry on the old system as their predecessors, they could no doubt have overcome the disinclination of the students. But they themselves had begun to show signs of a similar disinclination. This

### Law-Professional Development

was perhaps partly due to the same cause. Many probably thought that less teaching was needed, now that the students could read the printed books. But it was also due to the prosperity of the legal profession.1 The lawyers found that the time required for the preparation of readings interfered so much with their practices, that they were willing to pay a fine to escape this duty. Thus the Inns found it almost impossible to get any of their members to " read double "; and very difficult to get any one to read single.2 Sometimes it was necessary to bribe them to take office. This is illustrated by an entry in the Black Books of Lincoln's Inn of the year 1605. A Mr. Thomas Hitchcocke, whose turn it was "to read single," was "interested " to take office. "'Who answered and confessed that he had thought upon his Reading, and made some entrance and progresse therein, but protested that he coulde not go throughe and finishe the same to Reade this sommer who were refrayninge and loseinge a greate parte of his practize this presente terme and the next alloy." He was nevertheless appointed Reader, but given $\\not{\\sim}$20 above the usual allowances, " towards his losse and hinderance."' Similarly barriers preferred to be fined and to pay rather than to take the office of Reader in the Inns of Chancery.4 It is no wonder that students found the readings dull,6 or that Coke, comparing the modern with the ancient readings, complained that the former had lost their former authority and were " obscure and dark."6 They were often the work of reluctant teachers lecturing equally reluctant students. The old system needed the willing co-operation of students, barristers, and benchers. All now desired to see the end of it.

Footnote 1: See vol. iv 255-256 for the large increase in the business of the courts in the latter part of Elizabeth's reign.

Footnote 2: See e.g. Black Books ii 33-"It seemed very difficult to affect (i.e. to get Benchers to read double) for that they suppose that their table Readings is rather a hindrance than a furtherance unto them in their proceeding, besides their charge ; for fines for not Reading see ibid to, 15, 27; Pension Book z1, 106, 171, 177, 270, 271, 272; at Lincoln's Inn, and probably at the other Inns, a bencher who paid his fine for not reading, retained his seat on the bench, Black Books ii 780; this was certainly the case later in the century, below 489 n. 3-

Footnote 3: Black Books ii 87.

Footnote 4: Ibl 229, 250, 270, 294; and sometimes, if a Reader appeared, he found no audience ibid 293.

Footnote 5: D'Ewes, Autobiography i 251-"Mr. Ward, the reader, began on Monday morning August the and (t624), being but a dull and easy lawyer, and gave little satisfaction to his auditors all the time of his reading."

Footnote 6: Co. Litt. 280-- By the authority of Littleton, ancient Readings may be cited for proof of the law, but the new Readings have not that honour, for that they are so obscure and dark."

7: Above 487-482. 8 Dugdale, Orig. Jurid. 313-314.

## 1 Educational System

the same year similar orders were issued by the judges to Lincoln's Inn. The benchers criticized some of these orders, but promised to see that most of them were carried into effect.1 Further orders were issued by the judges and the benchers of the four Inns in 15952 and 1614,3 and by the judges in 1627.4 In 1630 the judges, at the command of the Privy Council, again repeated their orders.6 The need for these repeated orders illustrates the decline of the old system; but they were not wholly without effect. Good readings were sometimes given. D'Ewes, in his autobiography, notes that February 27, 1626, 4 Mr. Thomas Mallet, the Queen's Solicitor, began his Lent Reading in our Middle Temple, and performed it very well."6 The Inns backed up the orders of the judges by detailed regulations;7 and the judges rebuked Readers who had failed to read, or had read too shortly,8 and also the benchers, if they discovered that their orders had been disobeyed.9

Footnote 1: Black Books ii 31-34.

Footnote 2: Dugdale, op. cit. 316; Black Books ii 47-48.

Footnote 3: Dugdale, op. cit. 317-378; Black Books ii 440.

Footnote 4: Dugdale, op. cit. 310-320; Black Books ii 456.

Footnote 5: Dugdale, op. cit. 320-321; Black Books ii 454.

Footnote 6: Dugdale, op. cit. 320-322; Black Books ii 454.

Footnote 7: Black Books ii 54, 94, 262; and see ibid 165-167 for a comprehensive set of rules for shoots and exercises published in 1614; Pension Book 4, 16-17, 39, 243.

Footnote 8: A number of dellemoments from Gray's Inn were directed to be sequestered from the bench and from commons by the judges in 1605, Pension Book 169, 170.

Footnote 9: In 1606 the benchers of Lincoln's Inn and of the other Inns had been summored by the judges to answer for their disobeyence to their orders; they were told, * that offence was taken in yr de Readers wech were in y Leent last before past in every ye same Inns of Court, did not contrusive their Readings soe longe tyme as they should have done; and yt for ye same defaltes . . as also for faile of attendance and assistance to ye Reader of ye Inner Temple (who . . was forced to give over his Reading at ye beginning of ye 3 weeke for want of company both at Bench and Barr) the Judges thought fit yet ye Governors in ye same Houses of Court should proceed to censure and course of reformacion according to their private Orders therein," Black Books ii 97-95.

10 Op. cit. i 304-305.

### Law-Professional Development

penning my arguments before I uttered them, and seldom speaking less than half an hour in the pronouncing them. I brought in also many law cases after dinner, and argued them in English; upon which I bestowed not much less study than upon the cases or moot points upon which I sat, as many of them still remaining by me in written copies do sufficiently witness." But we can also see from his autobiography that the old lectures, moots, and exercises were not now the only methods by which the student acquired his knowledge. D'Ewes tells us how he read Littleton's Tenures--" the very key as it were of the common law,"' parts of Coke's reports, and Keilway's reports.2 He tells us how he made reports in the Star Chamber and the Common Pleas,3 and how he studied records at the Tower. At first he studied these records "only to find out the matter in law contained in them," and then for the light which they threw upon English history.4 So interesting did he find this study that it usurped the place of the common law, and led to the production of his book on the Elizabeth Parliaments by which he is chiefly remembered.5

Footnote 1: Op. cit. i R1--" Friday morning, April I3 (162n) I added an end to my reading of Sir Thomas Littleton's French Tenures, being the very key, as it were, of our common law, and accounted the most absolute work that was ever written touching it."

Footnote 2: Ibid z16--April 162a he read most of the first four parts of Coke's reports; ibid z24--Feb. I623 he finished Co. Rep. pt. 5, and began Keilway's reports, " which I read afterwards with more satisfaction and delight than I had done formerly any other piece of our common law"; ibid z31--April 1623 he read Co. Rep. pt 6.

Footnote 3: Vol. v 163 n. 1, 369 n. 2; op. cit. i z20, z43, 257, 300.

Footnote 4: "On Thursday, the 4th day of September, in the afternoon, I first began studying records at the Tower of London. . From this day forward, I never wholly gave over the study of records; but spent many days and months about it, to my great content and satisfaction; and at last grew so perfect in it, that when I had sent for a copy or transcript of a record, I could without the view of the original, discover many errors which had slipped from the pen of the clerk. I at first read records only to find out the matter of law contained in them, but afterwards perceiving other excellencies might be observed from them, both historical and national, I always continued the study of them after I had left the Middle Temple and given over the study of the common law itself. I especially searched the records of the Exchequer : intending, . to restore to Great Britain its true history--the exactest that ever was penned of any nation in the Christian world," op. cit. i z35:z36.

Footnote 5: Vol. v 405 ; cp. ibid i z09-47o for his account of the transcription of the Journals of the Houses of Lords and Commons.

## 1 Educational System

the civil war to adapt the old system to the new conditions ; and, when war broke out, it was obviously quite impossible to undertake an adjustment, which would have needed tactful and patient consideration on the part of judges, benchers, and students, and equally tactful exercise of authority on the part of the Privy Council.

The records of the Inns show that attempts were made to restore the old order. Thus, in 1646, it appears that at Gray's Inn the students were complaining that they had no opportunity of performing their exercises, and so qualifying for call. The bench therefore ordered that the ensuing vacation should be kept as in the old days ;1 and in 1647 the students were allowed to keep their exercises by performing only one moot a day.2 In 1651 Lincoln's Inn ordered the due performance of the customary exercises both in term and vacation.3 But it appears from a further order in 1655 that the order of 1651 had been entirely neglected--and more neglected at Lincoln's Inn than at the other Inns.4 So bad, in fact, was the state of affairs at that Inn that "the Judges in the Publique Courts att Westminster" took notice of the neglect of exercises in that House.5 But, in spite of the recommendations of Parliament,6 and the efforts of judges and benchers, the old system of legal education could not be revived. The readers refused to read.7 The orders issued were neglected by benchers, barristers, and students.8 It was growing more and more antiquated, and no attempt was made to reform it intelligently. As we shall now see, not even the Restoration of the old order in Church and State could restore it.

Footnote 1: Pension Book 360.

Footnote 2: Ibid 365.

Footnote 3: Black Books is 391 ; cp. Pension Book 41344--an order of 1655.

Footnote 4: Black Books is 405--'the Masters of the Bench, being unwilling to be behind other Inns of Court in a thing tending to the furtherance of students in the law, doe order that the usual exercises of moots and bolts be continued.'

Footnote 5: In 1657 Parliament recommended Cornwell and the Council to make the judges' reodings and exercises in the Inns of Court, Burton, Diary, June 26, 1657--cited Robinson, Anticipations under the Commonwealth of Changes in the Law, Essays A.A.L.H. i 477.

Footnote 7: Pension Book xilv:xlv ; Black Books ii _xxvii_.

Footnote 8: 'During these eleven years (1642-1660) a recommendation of the Council of State and 17 minutes of the Bench endeavour to revive education ... but the result is best put in the words of the Minute of 1659, 'that the holding up of the Commons in Vacation, intended by the Bench for reviving exercises in the Vacations, which have been nevertheless neglected, is a charge, _beside the fruitlessness thereof_, too great for the Revenue of the House,' " Black Books ii _xxvii_.

In 1669 Prynne, in the preface to his Animadversions on Coke's Fourth Institute, put in a strong plea for the revival of

### Law-Professional Development

the old educational system of the Inns of Court. "I shall importunately intreat all Benchers and others of my own profession to gratifie both themselves, their posterities, yea, the King and whole kingdom, by their unanimous cordial endeavours to support, (and) encourage the declining diligent study, and publickee exercises of the Common law . especially Readings in all Innes of Court and Chancery now overmuch neglected, discontinued, or perfunctorily performed, through slaothfulness, selfishness, or pretended novel Exemptions from them by those advanced by the law, who have least reason to decline and discourage them, or for want of publickee Privileges formerly due and peculiar to Readers :1 which I hope they shall uninterruptedly enjoy for the future, especially from those of their own Robe."

Footnote 1: This perhaps refers to the fact that, in some of the Inns, the call to the Bar was made, not as before by the Reader, but by the governing body of the Inn; thus at Gray's Inn in 1629 it was ordered that "the calling to Barre shalbee only by pencion, and not by the Reader," Pension Book ago.

Prynne's hopes were not destined to be realized ; but there were many who recognized the justice and urgency of the cause which he pleaded. The Inns of Court tried to reconstitute the old machinery ;2 but their orders do not seem to have had much effect ; and, in 1664, their efforts were enforced by a set of orders, issued by the lord chancellor and all the judges, for the government of the Inns.3 The benchers were to see to the proper government of the Inns of Chancery. Only genuine students of the law were to be allowed to reside in the Inn. No student was to be called unless he was of seven years standing, had been frequently in commons, and had kept his exercises ; and no barrister was to practise in the courts at Westminster till he was of three years standing. Benchers or Readers who refused to read were to be lined, and, if that was of no avail, complaint was to be made to the judges. Readings were to continue for the periods heretofore usual, and members of the Inns were to attend to argue the Reader's cases. Benchers must see that commons were kept both in term and vacation, and that the usual exercises were then performed.

Footnote 2: See Black Books iii 9-10, 17, 32-33, 40, 60, 61; Calendar of Inner Temple Records iii 4, 13, 21, 22; Pension Book 437-438, 442, 446, 448.

Footnote 3: Black Books iii 45-449.

Footnote 4: Calendar of Inner Temple Records iii 86-187; Black Books iii 67, 85, 103, 123; 160.

Footnote 5: Ibid.

These orders of the judges had no more permanent effect than the orders of the Inns. It is true that attempts were made to carry them out.4 Orders were issued for the performance of exercises;6 and benchers who refused to read were fin

## 6 Educational System

and even reported to the judges.1 At Lincoln's Inn, for instance, these attempts were made up till 1677 ; but apparently at that date those who opposed the revival of the old educational system gained the upper hand.2 The last reading at Lincoln's Inn took place in that year ; and readings in the other Inns of Court ceased at about the same period.3 It was obvious that, when the benchers ceased to perform their educational duties, they could not expect that the barriers and students would perform theirs. Barriers ceased to, be expected to take any share in the education of the students, and, like the benchers, wholly escaped their obligations. Like the benchers, too, they ceased even to incur a fine for their neglect. The students also escaped, but at a price. " It is now usual," said Master Worsley in 1734, " that when a gentleman bath failed, and been fined for so doing, to account his exercise over, he being no more called to that exercise. But formerly such fine was only lookt upon as a punishment for the neglect and did not excuse the performance of the exercise."4 Apparently at the Middle Temple all the obligations of the student could be compounded for the sum of $38 6s. 2d.5 It was the same with the obligation of residence. In theory residence was obligatory on all students. But Master Worsley explains the ingenious device by which it was evaded. The student agreed "with those who made a practice of supplying gentlemen " as follows :--the tenant of the chambers surrendered them to the student. The student gave a bond to re-surrender in three years. He was then admitted on the terms of the bond. The whole cost, including the fee to the tenant of five guineas, came to $8 4s.6

Footnote 1: Black Books iii 103-r04-"to the end," it is there said, " that they may not practise or be heard at the Barr or in the Circuit, nor have any other privileges of their profession till they conforme; " " cp. Pension Book, 255, 256.

Footnote 2: Black Books iii _xiii_, _xiv_.

Footnote 3: See Pension Book 457 n. 4; Master Worsley's Book 125 n. 1; from which it appears that at the Middle Temple the last Reader who read was appointed in 1684; we may perhaps see the last stage before final abolition in an order of the Inner Temple made in 1685-t686, Calendar iii 231, " William Longneville, chosen reader, having paid 150 li., is declared an absolute and complete reader,"--when a person can get the status of reader by payment it is clear that the whole institution will soon disappear. For an elementary reading at New Inn in 1692 see below 563.

Footnote 4: Ibid 212--this sum was made up of a number of payments, due in the case where " a gentleman forlet his vacations, keeps not his terms, and fails in the performance of his exercises."

Roger North described the state of affairs at the end of this period with substantial accuracy when he said, that,7 "' Of all the professions in the world, that pretend to book-learning, none is so destitute of institution as that of the common law. Academic

### 14.3 Low-Professional Development

studies, which take in that of the civil law, have tutors and professors to aid them, and the students are entertained in colleges, under a discipline, in the midst of societies, that are or should be devoted to study. But for the Common law, however, there are Societies, which have the outward show, or pretence of collegiate institution; yet in reality, nothing of that sort is now to be found in them; and, whereas, in more ancient times there were exercises used in the Hall, they were more for probation than institution; now even those are shrunk into mere form and that preserved only for conformity to rules, that gentlemen by tale of appearances in exercises, rather than any sort of performances, might be entitled to be called to the Bar. But none of these called Masters, and distinguished as Benchers, with the power of ordering, and disposing all the common affairs of the Society, ever pretended to take upon them the direction of the students, either to put them, or lead them in any way."

Why then did the old system so completely and irrevocably break down during this period, in spite of all efforts to revive it? There were three main causes. Firstly, all the causes which were leading to its decline in the earlier part of the century were operating with increased force in this period.1 Secondly, the Privy Council and the judges did not exercise so strict a control as in the preceding period. The executive government, at the latter part of the Stuart period, had neither the power nor the wish to superintend the activities of bodies entrusted with educational, commercial, or governmental duties in the same spirit and in the same way as it had superintended them in the preceding period.2 No doubt the government was careful to see that the members of these bodies were politically and religiously orthodox; but its activity generally stopped there. In 1686, it is true, there was " great discourse of a visitation intended by the lord chamber into the several societies belonging to the law, and that there will be a great regulation made amongst them, especially amongst the bench in each society ""--but it came to nothing. Thus the Inns of Court, like other similar bodies, were left to go their own way. Thirdly, to the governing bodies of the Inns their educational and disciplinary duties were growing more and more distasteful. Of the reasons for this distaste, which gave the final blow to the old system, I must say a few words.

Footnote 1: Above 482-486.

We have seen that the rule that all king's counsel must be called to the bench tended to alter the character of the bench.4 There was no need for these benchers to read in order to gain further promotion in the law. They had therefore no inducement

## 6 Educational System

1.1 to read ; and, similarly, the custom of electing such persons as masters of Chancery1 or masters of Requests2 supplied another class of benchers who were quite unfitted to take their part in the old educational routine. On one occasion the king interfered when the benchers fined a fellow-bencher, who was a master of Requests, because he refused to read ;3 and this was not a solitary instance of royal interference with a similar object.4 Even if the benchers were not king's counsel or high officials, there was not the same inducement to read as heretofore. In former days it was the Readers who became benchers, and finally serjeants. But the degree of serjeant was now given by favour,6 and to have been a Reader no longer improved a lawyer's chances. Sir John Bramston in his autobiography ascribes, with some reason, the cessation of readings to this cause.6

Footnote 1: In r66r it was declared that a master in Chancery, being a bencher, was not exempt from the usual exercises, Black Books iii 3; but, in r66, when such a master insisted that, being a master, he could not be tempted to read, he was passed over, and "it was left to his own discretion what compensation he will make for this indulgence and favour," ibid 33.

Footnote 2: Ibid 32.

Footnote 3: Ibid 64, 449, 450 (1669).

Footnote 4: Thus, in r66z, the king asked the Inner Temple to excuse the attorney of the Duchy of Lancaster from reading, Calendar of Inner Temple Records iii 9; S.P. Dom. r66z-166z, 342-343, liii 6o; ibid r673-1675, 327; for an earlier interference in r62z, made in order to override a decision that a particular bencher should always take place after all who have or shall read, see Pension Book 25a-255.

Footnote 5: Vol. v 353.

Footnote 6: Sir John Bramston tells us that his father read twice before he was made a sejeant, " And here I cannot slip observing the difference of the types. Now since the restitution of the Kinge more are called to be serjeants that never read at all than that have read once. The reasons given were that there wanted serjeants, there was not type for readings, that manie fit had binn on the King's side in the warr, and either wanted monie or were to be indulgated, etc. ; yet readings were iniowned, and some read that found one advantage. Formerly, they read constantly a fortnight, since but a week, and at this type readings are totally in all the Inns of Court layd aside ; and to speak truth, with great reason, for it was a step once to the dignite of a sejeant, but not see now," Bramston's Autobiography (C.S.) 6; the manner in which any excuse was sejeed upon to put off readings is illustrated by an order of the Inner Temple in r67z to the effect that, as the other three Inns had put off their readings that summer vacation, and as there was no precedent for one Inns alone holding a reading, the reading is to be put off, Calendar ill 86.

Footnote 7: Ibid 20; cp. Calendar of Inner Temple Records iii 56, for an order of the Inner Temple in r66r directed against the extravagance of these feasts.

1.2 to read ; and, similarly, the custom of electing such persons as masters of Chancery1 or masters of Requests2 supplied another class of benchers who were quite unfitted to take their part in the old educational routine. On one occasion the king interfered when the benchers fined a fellow-bencher, who was a master of Requests, because he refused to read ;3 and this was not a solitary instance of royal interference with a similar object.4 Even if the benchers were not king's counsel or high officials, there was not the same inducement to read as heretofore. In former days it was the Readers who became benchers, and finally serjeants. But the degree of serjeant was now given by favour,6 and to have been a Reader no longer improved a lawyer's chances. Sir John Bramston in his autobiography ascribes, with some reason, the cessation of readings to this cause.6

Footnote 7: Ibid 20; cp. Calendar of Inner Temple Records iii 56, for an order of the Inner Temple in r66r directed against the extravagance of these feasts.

But, though readings ceased, the Readers' feasts continued longer. In the earlier part of the century the judges' orders had attempted to restrain the extravagance of these feasts.7 After the Restoration they became so extravagant that in r664 the judges,8 and in 1678 the king,9 interfered to limit the expenditure of all Readers other than the Recorder of London or a king's counsel. Their extravagance can be seen from Roger North's account of the feast given by his brother, when he read in r67z, during his tenure of the office of solicitor-general. In the three

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or four days which it lasted it cost at least $\\measuredangle 1000$--" the grandees of the Court dined there and of the quality (as they call it) enough."1 It :is obvious that the prospect of being obliged to incur this enormous expense would make most persons far prefer to pay a moderate fine to escape from reading.

Footnote 1: Lives of the Norths i 97-98.

It is not surprising to find that under these influences the collegiate life of the Inns disappeared At the present day the best dean of a college is a man who understands and is understood by the undergraduate members of his college; and that understanding can only be created by the intimate relations of teacher and pupil, supplemented by social intercourse. When the benchers were really the teachers of the students and barristers, when they lived with them and mixed with them, it was not difficult to maintain good relations between them. But when the benchers, who governed the Inns, ceased to be in these intimate relations with barristers and students, difficulties began. We hear of disorder in the Inns aggravated by want of tact, of the breaking of windows, and threats to pump the benchers or some of them.2 In 1678-1679, just before the fire in the Middle Temple, a formidable rebellion had begun, and the benchers dared not come into the Hall.3 In 1680 there were disorders at Lincoln's Inn,4 and in 1681 a rebellion at the Inner Temple, which could only be appeased by the intervention of the judges.5 Obviously such difficulties were increased by the extravagant Readers' feasts. They encouraged disorder;6 and it was of little use for the judges or benchers to attempt to suppress extravagance among the junior members of the Inn in the face of such examples.7 The disorders at the Readers' feasts were made an excuse--poor enough as North pointed out 8--for suppressing readings; and,

## 11 Educational System

Similarly, the difficulty which the new school of benchers found in governing their Inns, made them ready enough to suppress the collegiate life of the Inns, by acquiescing in the breach of the rules which required all students to reside there during term and during some parts of the Vacation.1

Footnote 1: Above 489; thus reversing the old policy which insisted that terms and "\*" learning vacations " should be kept, vol. ii 507; Dugdale, Orig: Jurid. 317, 320; Black Books iii 446, 448, 449.

Thus both the educational and the collegiate character of the Inns disappeared. The educational system was no doubt antiquated; but it still had in it very great virtues. In our own days the system of mooting has been revived in various centres of legal education, to the profit of teacher and student alike. If the benchers had really wished to do their duty, they could have reformed and worked the old system. The trouble was that they did not want to reform it. They had come to be a set of men who were, or who considered themselves to be, too busy or too important to be troubled with the education of students; they failed to do their duty; and their example was easily followed both by barristers and students. The decay of the educational system, having made it unnecessary to insist upon the residence of the students, the rules as to residence fell into abeyance; and thus a collegiate system--which of all systems is the best aid to education, and of all the most difficult to create artificially--was destroyed. The age was corrupt. The standard of public morality was low. But, after making all possible allowances of this kind, we must admit that the injury inflicted upon English law by the benchers of this period, was as great as the benefits conferred by their ancestors who had founded the Inns, and created the system of legal education there carried on. By their action all public teaching of English law was stopped for nearly a century and a half. It is only gradually that the Inns of Court, following the example of other educational bodies, have in our own days again begun to fulfil those functions in return for which the state had, long ago, given them the exclusive privilege of licensing their students to practise in the courts.2

Footnote 2: As to this see an article by the author in Col, Law Rev. 1910, 735-737.

From the latter half of the seventeenth century to the middle of the nineteenth century the student was left to his own resources. We have seen that, in the earlier part of the century, books had been written to instruct him as to his course of reading.3 During this period some valuable advice on this subject

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was given by Hale in his preface to Rolle's Abridgment,1 and by Phillips in a book entitled "Studii Legalis Ratio, or Directions for the Study of the Law," published in 1675; but the best of these books is "A Discourse on the Study of the Laws" by Roger North, which was not published till 1824. This little tract displays all the excellencies which made North so admirable a biographer.2 His eye for picturesque details, his enthusiasm for anything which had aroused his interest, his capacity for shrewd criticism, and his broad common sense, give this Discourse an interest which books on methods of study rarely possess. The telling illustrations with which he points his remarks and his counsels, give us glimpses of the state of professional feeling, and of the standards of professional conduct, not to be found elsewhere. It is a valuable historical document because the author thought it worth while to write down information which many lawyers of that day would have regarded as mere common places. From this point of view it is comparable to Fortescue's De Laudibus.8

Footnote 1: Collect. Jurid. i at pp. 276-278.

Footnote 2: For Roger North and his books see below 619-624.

Footnote 3: For Roger North and his books see below 619-624.

Footnote 4: At p. 7.

Footnote 5: At p. 9.

Footnote 6: During the English times, as they are called, when the Rump abolished Latin and French, divers books were translated, as the great work of Coke's Reports, etc.; but upon the revival of the law, these all died, and are now but waste paper," p. rz.

North begins by warning the student that the law is a jealous mistress--"it requires the whole man, and must be his north star, by which he is to direct his time, from the beginning of his undertaking it, to the end of his life." 4 At the same time he reminds him that, if he would be a really learned lawyer, he must, as aids to the study of English law, know something of English history.5 and of the civil law.6 " Similarly it is a vast advantage to be not only a common lawyer, but a general scholar, as in latter times Selden was ; for that you call a mere lawyer, seldom reaches better preterm than to be a puisne judge, if at all to be ever invited from his chamber." 7 To acquire knowledge of the law the student must read, commonplace, report, and converse about law. When he has become an adept in these arts, he may then begin to think about practising.8

Footnote 6: At p. 9.

Footnote 8: At p. 36-37.

Footnote 9: At p. 9.

Footnote 9: At p. During the English times, as they are called, when the Rump abolished Latin and French, divers books were translated, as the great work of Coke's Reports, etc.; but upon the revival of the law, these all died, and are now but waste paper," p. rz.

To read law a knowledge of law French was regarded by North as quite indispensable--"lawyer and law French are coincident." There had been a revival of that tongue after the Commonwealth period ; and North's political bias led him to exaggerate somewhat its permanence.9 But, even now, there

## 6 Educational System

is some truth in his dictum that "a man may be a wrangler, but never a lawyer, without a knowledge of the authentic books of the law in their genuine language."1 Littleton was still the primary text book ; and North wisely advises the student to begin by reading it in the original French,2 and without Coke's comment.3 Coke's comment he perhaps unduly depreciates--Coke was not a royalist; but there is some truth in his dictum that it is "only a commonplace book exhausted," with the titles so disposed as to follow Littleton's text.4 He does not advise the ordinary student to attempt to read all the Year Books ; but the Year Books of Henry VII. he regards as indispensable;5 and he notes that really great lawyers, like Hale, Maynard, and others, have made themselves masters of them.6 The actual course of reading which he recommends will best be seen from his own table :--7

Footnote 1: At p. r4,

Footnote 2: \*I should absolutely interdict reading Littleton etc. in any other than French, and, however it is translated, and the English concolumed with it, it should be used only as subsidiary, to give light to the French when it is obscure, and not as a text. For really the Law is scarce expressible properly in English, and, when it is done, it must be Francoise, or very uncouth," pp. I-2-13.

Footnote 3: At p. r1,

Footnote 4: At pp. I-9-20.

Footnote 5: At pp. I-9-21.

Footnote 6: At pp. I-9-20.

Footnote 7: At p. 41.

Footnote 8: At p. 40.

Footnote 9: At p. 41.

Footnote 10: At p. r4,

Footnote 11: At p. r4,

Footnote 12: \*I should absolutely interdict reading Littleton etc. in any other than French, and, however it is translated, and the English concolumed with it, it should be used only as subsidiary, to give light to the French when it is obscure, and not as a text. For really the Law is scarce expressible properly in English, and, when it is done, it must be Francoise, or very uncouth," pp. I-2-13.

Footnote 26: At pp. I-9-21.

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stands resolved, yet it is a wonderful accomplishment, and without it a lawyer cannot be accounted learned in the law."1

Footnote 1: At p. 40.

North recognized that reading was of little use unless the student "commonplaced " what he read. By "commonplacing " he meant the construction of an alphabetical abridgment of the law. It was an old and well-established method of acquiring legal knowledge.2 The Abridgments of the Year Books,3 and Rolle's Abridgment,4 are practitioners' commonplace books (very possibly begun in their authors' student days) which have got into print. But it is probable that the decay of the educational system of the Inns of Court, was the reason why all the books, written at this period to advise students, stress the importance of making such a commonplace.5 North gives practical advice as to its construction;6 and repeats the warning, needed as much now as then, that no one else's commonplace will be of the slightest value.7 In fact, as he truly says, ready-made commonplaces, abridgments, or indices " are the student's enemies." 8

Footnote 2: Hale's remarks, Collect. Jurid. i z76-278, are chiefly directed to the use and right mode of constructing such a book.

Footnote 4: Vol. i 543-545.

Footnote 5: See note 30 at pp. iot-roz of North's Discourse.

Footnote 6: At pp. 26-29, 41-42.

The commonplace book or abridgment of North's day, and long afterwards,9 was for the most part an abstract of case law. From the days of the earliest Year Books,10 commonplace books were of this type. And, similarly, from these early days, it was recognized that students must not only abridge the older cases reported by others : they must also go to the courts and report modern cases for themselves.11 So well was this fact recognized that the judges encouraged their presence, and sometimes explained points of law with a view to assist the students. The Crib, of which we read in the Year Books,12 had its counterpart in the seventeenth century. " I have known," says North,14 " the court of King's Bench sitting every day from eight till twelve, and the Lord Chief Justice Hales managing matters of law to all imaginable advantage to the students, and in that he took a pleasure or rather pride ; he encouraged arguing when it was to the purpose,

## 12 Educational System

and used to debate with counsel, so as the court might have been taken for an academy of Sciences as well as the seat of justice." It had also its counterpart in the eighteenth and nineteenth centuries, as a famous tale told by Lord Campbell about Lord Kenyon, a student, and "a porcelain vase with a handle to it" will testify.1 North gives the student some advice about reporting, He advises him, firstly, to avoid the court of King's Bench, which was often crowded with people who came to hear the latest _cause celebre_, and to attend the court of Common Pleas, where solid matters of law were debated ;2 and, secondly, not to begin reporting till he was well grounded in law by his reading and common-placing, and could profit by what he heard.3

Footnote 1: Lives of the Chief Justices iii 85 n, ; cp, ibid ii 329 and note--" I have a lively recollection that at Guildhall, the students having a box close by him (Lord Kenyon) he handed the record to us, and he would point out to us the important issues to be tried."

Footnote 2: "The other error is going to the King's Bench and not the Common Pleas. It is said that the Common Law is at home in the Common Pleas, but a guest in the King's Bench ; and it is certain that the business of that court is less frequent of law than at the Common Bench. The causes of the Crown, Corporations, matters of the Peace, and concerning the Government, take up most of that little time they allow, which, as I said, are more faction and wrangling than law. But at the Common Pleas there is little but merely matters of law agitated," p. 35; a student can, he says, always get a place in the Common Pleas, but in the King's Bench he may go at six, and yet not get a good place, p. 36.

Footnote 3: At pp. 33-34.

Footnote 4: Monthly tells us, Memoirs i 48-49, that he, Baynes, Holroyd, and Christian, " formed a little society for arguing points of law. . One argued on each side as counsel, the other two acted the part of judges, and were obliged to give at length the reasons of their decisions."

Footnote 5: I have heard Serjeant Maynard say the law is _ars bablativa_, meaning that all the learning in the world will not set a man up in bar practice without a faculty of a ready utterance of it."4 It is, in fact, the place which discussion should occupy in a legal curriculum that distinguishes a training in law from the training in other sciences. Reading, commonplacing, and reporting may teach a man the principles of the law : they will not teach him to be a practical lawyer. It was the recognition of this fact which was the strong point of the older system of legal education. It is the non-recognition of this fact which is the weak part of our modern system of public teaching and examinations in law. The sacrifice of the old system destroyed to a large extent that organized discussion which prepared the students for actual practice. In our modern system it does not take the place which it once took, unless, as at Oxford and at one or two other places, the pupils are wiser than their teachers, and set up for themselves a moot club, which reproduces some of the advantages of that old system which the benchers of this period were too selfish to maintain.6

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North does not say anything in his Discourse of the modern practice of reading in Chambers, probably because it was not then established.1 But it is clear that in his day the junior barriers gained experience in somewhat similar ways. Jeoffrey Palmer, the attorney-general, "'took a pleasure to encourage young students, and admitted diverse of them, in his Society of the Middle Temple, to have access to him at evenings, and to converse familiarly with him; and he was not only affable, but condescended to put cases, as they term it, with them."2 Francis North gained much from his connection with him;3 and he never ceased to be grateful to his family.4 Roger North was helped in a similar way by his brother.5 As we have seen, the students sometimes did the work of solicitors,6 and gained experience by court keeping 7--occupations which correspond to the modern custom of reading for some months in a solicitor's office.

Footnote 1: Lord Campbell, Lives of the Chief Justices ii 329 says, that "the _puffilising_ system " was introduced at the latter part of the eighteenth century by the celebrated Tom Warren and Mr. Justice Buller; Romilly tells us, Memoirs i 33, that he became the pupil of Mr. Spranger, an equity draftman; and that though "his drawing business was hardly sufficient to give employment, even to a single pupil," he allowed Romilly the use of his library, and let him pass all mornings and most evenings at his house--''' he directed my reading; he explained what I did not understand ; he removed many of the difficulties I met with."

Footnote 2: Examen 511.

Footnote 3: Lives of the North's i 45, 47.

Footnote 4: Ibid rq3.

Footnote 6: Above 442.

Footnote 7: Above 438.

Footnote 8: Vol. ii 5gr-596.

North's Discourse gives us a detailed account of the manner in which the students of the seventeenth century supplied for themselves the place of the instruction formerly given by the Inns of Court. It is clear from his account that legal education, like many other things, then began to present the characteristics which it preserved till quite modern times ; and we begin to see some of its effects. A student who pursued with industry such a course as North suggested, could make himself a competent English lawyer ; but he would probably learn very little else but the rules of English law. And, knowing little else, he would naturally be wholly constitute of any power to criticize what he knew. This was one of the causes of that complacent assurance of the excellence of English institutions and English law, which characterized the lawyers of the eighteenth century, and found its literary expression in Blackstone's Commentaries. Thus the solitary education, to which the law student was condemned, produced effects which, from this point of view, were not unlike the effects of the narrow and self-centered outlook of the medieval common lawyers.8

Footnote 8: Lives of the North's i 45, 47.

Great lawyers appeared, as we shall see, who rose superior to all the defects of the legal education of the period. Genius willThe Lawyers

always strike out a path. But we cannot doubt that the average standard of the learning of the English lawyer in this period and the next would have been both higher and more liberal ; we cannot doubt that the development of English law would have been freer and less technical ; if the older system of legal education, instead of being destroyed, had been adapted to the needs of modern English Law. This will appear more clearly in the eighteenth than in the seventeenth century. But, as we shall now see, we begin to see the effects of the new conditions in the lawyers, in the legal literature, and in the state of the law of this period.

## II The Lawyers

There are famous names among the lawyers of this period ; but, until the Revolution, the causes which had made for the deterioration of the Bench in the first half of this century operated with increasing force.\[1\] Nor is the reason far to seek. The abolition of the jurisdiction of the Council,\[2\] and the position of supremacy to which, as a result of the Great Rebellion, the common law had attained,\[3\] brought it into much closer connection with the political controversies of the day. As these controversies became more and more embittered, it became a matter of the first importance to the government to have a bench of judges upon whom it could rely. Thus judges were appointed and dismissed for purely political reasons more freely than at any other period in our legal history ;\[4\] and, as the leaders of the profession refused to accept office upon these terms, the bench not only ceased to be respected, but even excited feelings of hatred and contempt.\[5\] Then, too, the period of transition, through which legal education and the organization of the profession were passing, did not tend to raise its tone. The old order was passing and the profession had not yet settled into the new ways.\[5\] For both these reasons the reigns of the last two Stuart kings, as compared with the sixteenth and earlier part of the seventeenth centuries, show a marked deterioration in the quality both of the bench and of the practising lawyers. It is true that we begin to see the results of the victory which the common law had won in the appearance of new branches of the common law,\[7\] and in the manner in which old branches of the common law were beginning to assume their modern shape.\[8\] It is true that the relations of equity to the law were beginning to

### 500 Law-Professional Development

assume their modern form ; and that the principles of equity were beginning to be systematized.1 Modern conditions and modern principles were beginning to emerge ; but the political controversies, and the changes in professional education and organization, were retarding influences. It is not till the Revolution had settled these political controversies that the improvement in the quality of the Bench, and the gradual reorganization of the profession, enabled the development of our modern rules of common law and equity to progress rapidly and continuously.

Footnote 1: Below 640-671.

The history of the career of some of the leading lawyers of this period will illustrate these features of the legal development of this period. I shall say something, firstly, of the judges, and other distinguished common lawyers ; and, secondly, of the chancellors, the officials of the court of Chancery, and the Chancery Bar.

_The Judges and Other Distinguished Common Lawyers_

A large number of the common lawyers belonged to that party of Parliamentary royalists, who had come over to the side of the king before the outbreak of the civil war.2 Others, who had continued to side with the Parliament, or who had even accepted office under the Commonwealth, had welcomed or even helped to forward the Restoration. Lord Chancellor Clarendon had therefore a good field from which to choose the judges. And he was very competent to make a good choice. In his earlier years he had been associated with that band of literate lawyers of whom Selden was the most distinguished ;3 and in his choice of some of the judges we can see the influence of these old associations. Hale, the most learned lawyer of this or any period, was made chief baron of the Exchequer ; and Bridgman was made chief justice of the Common Pleas. Of them I shall speak later.4 Wadham Wyndam5--the nephew and the brother of a judge--was made a judge of the King's Bench. Roger North classes him with Rolle and Hale as a student of records ;6 he won the praise of his contemporaries for his abilities as a judge;7 and his learning lives in the notes to Hale's edition of Fitzherbert's Natura Brevium. In Clarendon's appointments to the post of chief justice of the King's Bench political or personal influences are more apparent. Robert Foster8 (1660-1663), Robert Hyde9 (1663-1665)--a cousin of Clarendon and a nephew of Sir Nicholas

**JUDGES AND COMMON LAWYERS 501**

Hyde1--and John Kelyng2 (1665-1671), were all strong royalists. Some of Kelyng's proceedings--notably his action in finding jurors for returning verdicts contrary to the direction of the court --were voted to be illegal by the House of Commons in 1667.3 But all these chief justices were competent lawyers; and we shall see that Kelyng has left some valuable reports.4 Further, it should be noted that, for a few years after the Restoration, the tenure of the judges' offices was not "'durante bene placito," but "'quamdiu se bene gesserint."5

### 502 Law-Professional Development

fact he seems to have hated arbitrary authority ; and this probably led him to promote with some zeal Clarendon's impeachment--an action which may have helped him to the attainment of his seat on the bench 1--and to arrive at his decision in _Bushell's Case_. It should be remembered, too, that in the case of \_Thomas v. Sorrel_2 he made a not unsuccessful attempt to explain the principles, and to reduce to some sort of order, "the dark learning" 3 as to the limits of the crown's dispensing power. He was a friend of Selden, and one of his executors ; and, as his reports show, learned in the common and ecclesiastical law. But the appointment of men of this calibre ceased to be made, when the increase in the violence of party passion began to influence the appointments of the judges. It was found necessary to appoint them during pleasure, and to make the fullest use of the royal pleasure in order to secure decisions favourable to the king.4 The effect upon the quality of the bench was disastrous ; and it was the more disastrous as the policy pursued by the king became more and more divergent from the political creed of the majority of the abiler lawyers of the day.

Footnote 1: I was not aware of the fact that the majority of the lawyers belonged to what we may call the constitutional party.5 Their principles were in substance those set forth by Hale.6 They stood for the supremacy of the law, and for the maintenance, both of the prerogative as defined by law, and of the rights and privileges of Parliament. In other words, they formed the backbone of the party which came to be called Whig. As the king's policy developed, it became increasingly difficult to find an able lawyer who would adopt the king's views as to the relation of the prerogative to the law and to Parliament. No doubt, able lawyers could be found, who honestly thought that the prerogative had a greater weight in the constitution than Hale, and those who thought with him, admitted. Finch, afterwards lord chancellor Nottingham, is the most eminent example;7 and another is Francis North, chief justice of the Common Pleas and afterwards lord keeper.8 But the reasoned royalist views of such men did which disposed him to least reverence to the crown, and most to popular authority; yet without inclination to any change in government," Clarendon, Life i 923-924; and cp. Pepys' Diary v 352 for a somewhat similar estimate of his character.

Footnote 1: I was, Judges vii 180. 2 (I673) Vaughan Rep. 330.

Footnote 4: I did not. 332; above 223.

Footnote 5: I did not. 332; above 223.

Footnote 6: A direct proof of the attempt to render the judges subservient to the court is to be seen in the substitution of the old form in their patents, of ${}^{\\prime}$ durante bene placito," for ${}^{\\prime}$ quandria se bene gessenti," which had been conceded by Charles I., and had been adopted in all the earlier patents after the Restoration," Foss, Judges vii 4.

Footnote 8: North, Lives i 5o; in the Examen at p. 513 he says--" So few gentlemen of the law were noted for loyalty (I use the word of that time) that it was made a wonder at court that a young lawyer should be so ; ${}^{\\prime}$ see Luttrell's Diary i 9g-too for an illustration of the state of the feeling in the lans of Court in 681.

Footnote 7: Above 204-205. 7 Below 539-540.

Footnote 8: Below 531-535.

Footnote 9: Above 204-205. 7 Below 539-540.

Footnote 8: Below 531-535.

## Judges and Common Lawyers 503

not meet the needs of the Court in cases of political importance. The Court could never be quite sure that they would not allow their judicial qualities to get the upper hand. It wanted men of whom it could be sure. That being so, it was quite certain that a judge, who was both learned and honest, would hold his seat on the bench by a very precarious tenure ; and that, in cases of great importance, very extraordinary means would be taken to ensure a favourable decision. The career of Francis Pemberton, and the appointment of Saunders are very good illustrations of the sort of measures to which the Court was obliged to have recourse.

Pemberton1 was a good lawyer with a large practice, and he was quite prepared to go to some lengths to meet the wishes of the Court. But he proved himself to be too honest a lawyer to be wholly trustworthy. In 1679 he was made a judge of the King's Bench ; but he was removed the following year, probably at the instigation of Scroggs, because he did not show that implicit belief in the witnesses for the Popish Plot which Scroggs then professed.2 In 1681 he was made chief justice of the King's Bench ; but in 1683 he was removed to the Common Pleas, because it was not quite certain that his views upon the Quo Warranto proceedings against the City of London were favourable to the Crown.3 In the same year he was dismissed, probably because he showed a judicial impartiality on the trial of Lord Russell, which, in the opinion of the Court, was wholly out of place in the conduct of a trial for high treason.4 Saunders, who succeeded Pemberton as chief justice of the King's Bench in 1683, was, as we shall see, a great pleader, and the author of some famous reports.6 He owed his promotion to the fact that a favourable decision in the case against the City of London was vital to the success of the design so to remodel the corporations as to render them subservient to the crown. Extraordinary emer

### 504 Law-Professional Development

gencies demand extraordinary measures ; and so Saunders, who had drawn the pleadings for the crown in that case, was raised to the bench. He only just lived long enough to perform the service which was expected from him.1

Footnote 1: "When sentence was to be given, Saunders was struck with an apolery : so he could not come into court : but he sent his judgment in writing, and died a few days after," Burnet, op. cit. 347.

The type of man that the crown found to be most amenable to its wishes was the political lawyer, without principles, with a fluent tongue, and with a little knowledge of law. Very perfect examples of this type were found in Scroggs and Jeffreys, Jeffreys became lord chancellor, and I shall speak of his career in that connection.2 He attained to a much higher degree of in-famy than Scroggs, and he was a good deal the abler lawyer and politician. But the career of Scroggs will illustrate sufficiently well the kind of man to whom the Court was obliged to have recourse, if it wished to secure verdicts in important cases.

Footnote 2: Below 527-530.

Scroggs 3 entered Gray's Inn in 1641, and was called to the bar in 1653. He became a bencher of Gray's Inn and serjeant at law in 1669. Through the importunity of Danby, he was made a judge of the King's Bench, in place of Sir W. Ellis, in 1676.4 He signalized his promotion to the Bench by a speech which was said to contain more loyalty than the many hundred sermons that had been printed since the Restoration.5 In 1678 Sir Richard Rainsford--a respectable but mediocre lawyer6--was removed from the office of chief justice of the King's Bench to make way for Scroggs. There were some fears that this change would cause popular apprehension ;7 and the conduct of Scroggs soon showed that these fears were well grounded. After holding office for three years, his unpopularity became so great that the

**JUDGES AND COMMON LAWYERS 505**

king found it necessary to remove him. But he had served the king faithfully ; and so he was solaced by a pension of ,1500 a year, and by the promotion of his son to the rank of king's counsel.1 He died in 1683:

Footnote 1: Foss, Judges vii 171.

Roger North says of Scroggs,2 "His person was large, visage comedy, and speech witty and bold. He was a great voluptuary, and companion of high court rakes. His debaucheries were egregious and his life loose." His capacity for drink was only equalled by that of Jeffreys. Wine is the main theme of all his letters preserved in the Hatton correspondence,3 and apparently he suffered from the gout even while he was at the bar. In the amusing account, which Charles Hatton gives of the confusion caused in Westminster Hall by the incursion of a mad cow, he relates that, " Serjeant Scroggs, who of late hath had a fit of the gout, was perfectly cured, strip himself of his gown and coif, and with great activity vaulted over the bar."4 Similarly, Jeffreys was his only rival in his capacity for abusive and intemperate language.

Footnote 2: C.S.T. 1; Trial of Federal, Pickering and Grove (1678) 7 S.T. 79; Trial of Green, Berry and Hill (1679) 7 S.T. 759; Trial of Whitehead, Harcourt, Fenwick, Gawen and Turner (1679) 7 S.T. 317; Trial of Langhorn (1679) 7 S.T. 418.

The course which he took in the various trials arising out of the Popish Plot showed that the court had chosen the right man to serve it. It is quite clear that he was animated by a desire, not to discover the truth, but to please the court. In the first trials the testimony of Oates and his fellows was admitted without criticism, and the existence of the Plot was treated as clearly proved.4 Scroggs seems to have thought that this course of action was pleasing to the Court, where he erroneously supposed Shaftesbury to be all-powerful. But Oates's further disclosures seemed likely to implicate the queen. Before the trial of Wakeman, the queen's physician, Scroggs had visited the Court at Windsor. This visit, and perhaps the instructions or hints

### 506 Law--Professional Development

there given to him, caused him to doubt the correctness of his views as to the attitude of the Court to the Plot; and North told him plainly that Shaftesbury had no influence at all at Court.1 Scroggs never did things by halves. At the trial of Wakeman and others2 he turned against Oates, and the prisoners were acquitted. But in later cases he apparently continued to rely upon the testimony of Oates and his fellows, notwithstanding his strictures upon them in Wakeman's Case.3 On the other hand, in _Elizabeth Cellier's Case_, he refused to receive Dangerfield's evidence;4 and in the _Earst of Castlemaine's Case_ he disparaged his credibility and procured an acquittal.5 It is fairly clear that in all these trials his course was shaped by what he knew or conjectured to be the wishes of the Court. Similarly, he probably obeyed instructions when he suppressed a Protestant paper--the Weekly Pacquet of Advice from Rome6--and convicted the editor for a libel on himself;7 and he certainly obeyed,instructions when he defeated Shaftesbury's attempt to indict the Duke of York as a popish recusant, by discharging the grand jury.8

Footnote 1: North, Lives i r96--'' Coming from Windsor in the Lord Chief Justice North's coach, he took the opportunity, and desired his lorsdhip to tell him seriously if my lord Shaftesbury had really so great power with the king as he was thought to have. His lorsdhip answered quick, ' No my lord no more than your footnan hath with you.' Upon that, the other hung his head, and considering the matter said nothing for a good while, and then passed to other discourse. After that time he turned as fierce against Oates and his plot as ever before he had named for it."

Footnote 2: Trial of Wakeman, Marshall, Rumley and Corker (1679) 7 S.T. 59i.

Footnote 3: Trial of Anderson, Russel, Parris, Starkey, Corker, Marshal, and Lumsden (1680) 7 S.T. 87i.

Footnote 4: Ibid r043. 8 Ibid r067, \*8 S.T. rg8.

Footnote 5: 7(1680) 7 S.T. 87. 111; Luttrell's Diary i 50-5i.

Footnote 6: 8 S.T. rg8.

Footnote 7: S.T. 702; cp. Hatton Correspondence (C.S.) i r89, r92; Luttrell's Diary i 74.

Footnote 8: 10 SS S.T. 763.

Footnote 11: "That the Lord Chief Justice is very much addicted to swearing and cursing in his common discourse; and to drink to excess, to the great disparagement of the dignity and gravity of his said place," SS S.T. at p. 170; Oates told the Lords of the Council that " " he believed he should be able to prove that my lord Chief J. danced naked," Hatton Correspondence (C.S.) 220; for a similar escapade of Jeffreys see below 530.

His action on Wakeman's trial, at a time when Protestant fervour was at its height, aroused so great a storm of indignation that he thought it necessary to defend his action by a speech delivered in the court of King's Bench.9 But it made little impression. Oates and Bedloe exhibited to the Council thirteen articles, recounting his misleeds in his conduct of the Popish Plot trials, and his suppression of the Weekly Pacquet,10 and commenting upon his loose life.11 But, as we might expect, the Council, "were satisfied with Scroggs' vindication, and left him to his remedy at law against his accusers."12 Parliament, however, intervened, and, in 1680-1681, impeached him for high treason--intervened, and

## 5 Judges and Common Lawyers 507

of which he was clearly not guilty.1 The proceedings were suspended by a dissolution ; but they were resumed in the ensuing Parliament, and Scroggs put in an answer.2 The speedy dissolution of Parliament put an end to the proceedings. But, as we have seen, the Court found it advisable to dismiss him.3

Footnote 1: He was accused of having traitorously endeavoured to subvert the established law and religion; of arbitrarily discharging the grand jury before it had made its presentations; of his actions in relation to the Weekly Pacquet; of the imposition of arbitrary fines; of refusal to accept ball; of granting general warrants; of defaming the witnesses to the Pophis Plot; of excesses and debauchenies and atheistical disourses, 8 S.T. 167-200 i pending the impeachment, he did not preside in his court, " being (as is said) commanded by the king to forbear," Luttrell i 64.

Footnote 2: SS S.T. 215.

Such chief justices as Scroggs and Jeffreys lowered the tone of the bench; and the policy which led to their appointment lowered it still further, because it necessarily involved the dismissal of many other judges. Some judges were dismissed because they could not get on with these chiefs. Probably both Pemberton 4 and Robert Atkyns 5 were dismissed because they could not agree with Scroggs. Others were dismissed to facilitate the promotion of these men. Thus, Scroggs' upward career involved the dismissal of Ellis and Rainsford.6 A still larger number were dismissed because they could not be relied upon to give the decisions desired by the court. In 1679, Bertie, a judge of the Common Pleas, Wilde, a judge of the King's Bench, Thurland and Bramston, barons of the Exchequer, were suddenly and simultaneously dismissed, probably for political reasons;7 and Dolben, a judge of the King's Bench, was dismissed in 1683, because it was thought that he was likely to decide against the crown in the Quo Warranto proceedings against the City of London.8 Moreover, many of the persons whom these chief justices recommended as judges, were wholly unfit for the post. We shall see that Jeffreys, in spite of lord keeper Guildford's opposition, got Robert Wright made a judge, although he was not only a notoriously incompetent lawyer and a

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man of immoral life, but also guilty of perjury.1 It was not likely that such judges would resist any opportunity which they might have of adding to their incomes. It was alleged that Seroggs was bribed to procure the acquittal of Wakeman2--though, when this was hinted at by Shaftsbury, he denied that he had been offered any money.2 Roger North tells us that Jeffreys made large sums of money out of the chartered towns, by frightening them into a surrender of their charters, and by getting paid for procuring new charters;3 and it is certain that he and other courtiers made large sums of money out of those accused of complicity in Monmouth's rebellion.4

Footnote 1: Below 530.

Footnote 2: Luttrell says, Diary i 74, " the Portugall gold had so blinded his eyes, that he could not distinguish high treason (with which Wakeman was accused) from loyalty to his king."

The marquis of Halifax wrote his pamphlet entitled " The Character of a Trimmer "6 at some date between 1684 and 1685." From that pamphlet I shall transcribe a few sentences, because they describe with substantial accuracy the state of the bench at the end of Charles II.1/s reign, and because they contain a prophetic warning of the consequences of allowing such a state of things to continue. He says 8:--" The authority of a king, who is head of the law, as well as the density of public justice, is debased when the clear stream of law is puddled and disturbed by bunglers, or conveyed by unclean instruments to the people. Our Trimmer would have them appear in their full lustre, and would be grieved to see the day when, instead of their speaking with authority from the seats of justice, they should speak out of a grate with a lamenting voice, like prisoners that desire to be rescued. He wisheth that the Bench may ever have a natural as well as a legal superiority to the Bar; he thinketh men's abilities very much misplaced when the reason of him that pleads is visibly too strong for those who are to judge and give sentence. If ever such an unnatural method should be introduced, it is then that Westminster Hall might be said to stand upon its head; and though justice itself can never be so, yet the administration of it would be rendered ridiculous. When men are made judges of what they do not understand the world censueth such a choice,

## Judges and common lawyers 509

not out of ill will to the man, but fear for themselves. ... The inferences will be very severe in such cases, for either it will be thought that such men bought what they knew not how to deserve, or which is as bad, that obedience shall be looked upon as a better qualification in a judge than skill or sincerity. When such sacred things as the laws are not only touched but guided by profane hands, men will fear that out of the tree of the law, from whence we expect shade and shelter, such workmen will make cudgels to beat us with. ... To see the laws mangled, disguised, made speak quite another language than their own; to see them thrown from the dignity of protecting mankind to the disgraceful office of destroying them, and, notwithstanding their innocence in themselves, to be made the worst instruments that the most refined malice and villainy can make use of, will raise men's anger above the power of laying it down again, and tempt them to follow the ill example given them of judging without hearing when so provoked by their desire of revenge."

Halifax's warnings were addressed to Charles II. It is doubtful whether he would have listened to them. James II. wholly disregarded them. The spirit in which he expected his judges to administer what he was pleased to call justice, is very fairly represented by a sentence from Jeffreys' speech, as chancellor, to Herbert, when he was made chief justice of the King's Bench. "Be sure," he said, " to execute the law to the utmost of its vengeance upon those that are now knowne, and we have reason to remember them, by the name of Whigs; and you are likewise to remember the snivelling trimmers; for you know what our Savivour Jesus Christ says in the Gospell, that 'they that are not for us are against us.''1 James, as he told Sir Thomas Jones when he dismissed him from the post of chief justice of the Common Pleas, was determined to have twelve judges of his opinion.2 But, as he was of opinion that he could _inter alia_ repeal all the penal laws against religious dissenters by the exercise of his dispensing and suspending powers, and that he could govern his troops by martial law in time of peace,3 he naturally found it difficult to find twelve lawyers who would support him. Even those who were prepared to go some distance in upholding the prerogative, were not prepared to sanction such projects as these.4

Footnote 1: Collect Jurid. ii 407.

Footnote 2: Foss, Judges vii 249, 250.

Footnote 3: The judges, on being consulted, are said to have declared this to be illegal in Charles II,'s reign, Hatton Correspondence (C.S.) i 111; above 475 n. 3-.

Footnote 4: See North, Lives i 377-378, for an account of the resignations of Sir Robert Sawyer, the attorney-general, and Sir Heneage Finch, the solicitor-general, on this ground; and cp. Rereby, Memoirs 36r.

But, though James could not get twelve lawyers to do his

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bidding, he was determined to get twelve judges. The least disobedience was the signal for dismissal. Herbert, who had gone all lengths in magnifying the prerogative in the case of _Gadden v. Hales_,1 was removed to the Common Pleas, because he refused to order a soldier, who had been condemned and sentenced at Reading, to be executed at Plymouth;2 and Wythens, who had concurred with him, was dismissed.3 Holt lost his place as re-order of London for refusing to sentence to death a soldier found guilty of desertion.4 Jones, whom Parliament had directed to be impeached with Scroggs in 1680, who had given the decision against the City of London, who had shown much harshness to the accused at the trials of Elizabeth Gaunt and Cornish, was dismissed in 1686 because he declined to uphold the dispensing power.5 At the same time chief baron Monstage6 and baron Nevill.7 were dismissed for the same cause; and the old cavalier, Sir Job Charlton, who, much to his regret, had been removed from the chief juischeship of Chester to the bench of the Common Pleas to make room for Jeffreys, was dismissed from the Common Pleas and sent back to Chester.8 Levine was dismissed because he refused to sentence a soldier for desertion, and for opposition to the dispensing power.9 Sir John Powell and Sir Richard Holloway were dismissed for their opinions in _The Seven Bishops' Case_.10 Their successors were objects of contempt to the nation at large. Reresby notes that the attendance at the assizes to meet Allibone--one of James II.'s Roman Catholic judges--was, much to Allibone's disgust, very scanty.11 Luttrell notes in 1686 that "the judges, since their opinion of the king's dispensing power, have not in their circuits had that respect as formerly."12

Footnote 11: Memoirs 378

## 1 Judges and Common Lawyers

### 1.1.1 practice.

Thus practically all the legal talent of the day was to be found at the bar. This is sufficiently illustrated by the names of the counsel who appeared for the Seven Bishops. They included the late chief justice Pemberton, the late Judge Levine, the late attorney-general Sir Robert Sawyer, the late solicitor-general Heneage Finch--Lord Nottingham's son, Pollexfen, William III.'s first chief justice of the Common Pleas, Sir George Treby, Pollexfen's successor in that office, and'Somers, the future lord chancellor. When we compare these names with the names of the judges who tried the case--with Wright and Allibone, and even with Holloway and Powell, we must admit that Halifiax's prophecy had come true. Westminster Hall was indeed standing on its head.

From the list of eminent lawyers who appeared in that famous case two well-known names are absent--Maynard and Holt. They were absent because, being king's serjeants, they could not appear for the bishops; and they would not appear against them. Of Holt I shall speak at some length a little later.\[2\] Here I must say something of Maynard.\[3\] His life covered almost the whole of the seventeenth century (1602-1690); and his career forms a connecting link between the lawyers of the early seventeenth century and the lawers of the eighteenth century--between lawyers of the type of Coke and lawyers of the type of Holt.

From his early manhood Maynard had played some part in the political, and an important part in the professional, life of the day. He was pupil of Noy, and sat in Charles L.'s first Parliament. During the period before the Long Parliament he had been a friend of the future lord chancellor Clarendon, who admired his abilities while lamenting his defection from the king.\[4\] He had been one of the managers of Strafford's and Laud's impeachments, had sat in Cromwell's Parliament of 1656, been imprisoned for a legal argument he had urged against one of Cromwell's collectors of customs, and served as serjeant to the Commonwealth and to the Protector. He had sat in Richard Cromwell's Parliament; and had taken some part in forwarding the Restoration. At the Restoration he was made king's serjeant and knighted; and, as king's serjeant, he had walked in the coronation procession of Charles II., as he had walked, as the Protector's serjeant, in the funeral procession of Oliver Cromwell.\[6\] He was a member of all

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the Parliaments of Charles II.'s and James II.'s reigns, and generally supported constitutional principles 1--a support which he found the easier to make compatible with his position as king's serjeant, because his views on specific points of constitutional doctrine had the vagueness which was characteristic of a lawyer of the earlier half of the seventeenth century.2 In James II.'s reign he definitely opposed the grant of supply for a standing army, and a bill which would have made the mere verbal assertion of the Duke of Monmouth's legitimacy treason.3 He lived to congrutulate William III. in the name of the legal profession ; and, to the king's remark that he had outlived all the men of law of his time, to make his historic reply that " he had like to have outlived the law itself if his highness had not come over." He took a leading part in the debates upon the Bill of Rights in the Convention Parliament; and acted as one of the commissioners of the great seal till a few months before his death in 169o.

Footnote 1: 4: Though the serjeant never failed to conform to all things required of him in public, as oaths, tests, etc., yet for all that, he continued a favourite in the Presbyterian congregations ; and is at this day among them extolled as a saint, and his wonderful charities and other good works related : and to give him his due, he was to his last breath at the bottom as true as steel to the principles of the late times, when he first entered upon the stage of business, " North, Lives i 49.

Footnote 2: 4: On constitutional questions he steered as a rule a wary and somewhat ambiguous course, professing equal solicitude for the royal prerogative and the power and privileges of Parliament, acknowledging the existence of a dispensing power, without either defining its limits, or admitting that it had none, at one time reissiting the king's attempts to adjour parliament by a message from the Speaker's chair, and at another counselling acquiescence in his arbitrary rejection of a duly elected Speaker," J. M. Rigg, Dict, Nat. Biog.

Footnote 3: Ibid.

Footnote 4: North, Lives i 26.

Footnote 5: Y.B. r, 2 Ed. II. (S.S.) xxi, xxii.

Footnote 6: Vol. ii 53o.

Like most of the eminent lawyers of the old school, he was a student of Year Books and records. "He had such a relish of the old Year Books, that he carried one in his coach to divert his time in travel, and said that he chose it before any comedy." 4 His MS. of the Year Books of Edward $\\cdot$ II.'s reign, and certain Exchequer memoranda of Edward I.'s reign, were published as the first volume of the 1678 edition of the Year Books ; and, with it, was printed his digest to the MS.6 Both, as we have seen, were printed with scandalous carelessness.6 That he was a student of records his collection in Lincoln's Inn library clearly shows.7 Like all the lawyers of this school, he was an accomplished pleader. North regards him as incontestably the most eminent pleader of the latter part of the seventeenth century--the greatest praise that he can give that famous pleader, chief justice Saunders, is to say that he came nearest to Maynard.8 He was, as we

**JUDGES AND COMMON LAWYERS 513**

might expect from his studies, a mine of information upon old crown law,1 and, for this reason, eminently fitted to be king's serjeant.

But, eminent as he was as a lawyer, it cannot be said that he was noted for a very high standard of professional honour. North tells us that it was credibly reported of him that, "being leading counsel in a small fee'd cause, he would give it up to the judges' mistake, and not contend to set him right that he might gain credit to mislead him in some other cause in which he was well fee'd";2 and further, that in his pleadings he "used to lay traps for the judges and very cunning ones"--though he admits he employed this device with tact and discretion.3 A Chancery suit, which Lord Nottingham decided against him, would seem to show that he had no very fine sense of equity in his business dealings;4 and, though reputed charitable,5 he was, if North is to be believed, capable of great meanness in money matters.6

Footnote 1: North, Lives i 57, speaking of the Forest Eyre, says, " Here the whole time of the several sessions being taken up with the transaction of causes of this nature, the judges well skilled in the old crown law and the prerogative, and no person more deeply learned than Serjeant Maynard, who though a counsel was also an assistant to the court "; extensive collections illustrative of forest law are among his MSS., Report of Commissioners on Public Records (x837) 376.

Footnote 2: Lives i 59.

Footnote 3: Maynard v. Moseley (i676) 3 Swanst, 65r.

Footnote 4: Lives i 148-149--" One afternoon at the _nisi frius_ court of the Common Pleas in Westminster Hall, before the judge sat, a poor half-stured old woman who sold sweetments to school boys and footnote at the end of the bar, desired the serjeant to pay her two shillings for keeping his hat two terms. She spoke two or three times and he took no notice of her : and then I told the serjeant, 'the poor woman wanted her money and I thought he would do well to pay her.' The serjeant fumbled a little, and then said to the "Lend me a shilling." 'Ay with all my heart, 'quoth I, 'to pay the poor woman," He took it and gave it her ; but she asked for another. I said, 'I would lend him that also to pay the woman," ' No don't boy (said he) for I never intend to pay you this.' And he was as good as his word ; for however he came off with that woman, having been as they say a wonderful charitable man, I am sure he died in my debt. But in this manner (as I guess he intended) I stood corrected for medling.,"

VOL VI.--33

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them who were shortly afterwards raised to the bench, were destined to occupy in the state a constitutional position which was equally modern.

From the beginning of William III.'s reign the judges ceased to be appointed "durante bene placito";1 and we have seen that the Act of Settlement gave statutory stability to their tenure of office.2 From the point of view both of our constitutional and of our legal history, this new independence of the bench was one of the most important results of the Revolution. From the point of view of constitutional history its effect has been, as we have seen, to establish finally that rule of law for which Coke had contended.3 Though the judges still attended at Whitehall 4 to receive instructions as to the conduct of business on circuit, it was now wholly impossible for the government to use them, as they had been used in the seventeenth century, to support the legality of government measures. From the point of view of legal history its effect has been to guarantee an orderly development of the law free from all governmental interference, and to raise the tone of the legal profession. From henceforth, as Foss puts it,5 "the judges succeeded each other in quiet independence, scarcely even leaving the seats they occupied till incapacitated by infirmity or removed by death." And their remuneration 6 was sufficient to attract the ablest men. We have seen that in 1627 Whitelock reckoned his clear profit as judge of the King's Bench as $974 los. 1od.; and that Mr. Justice Rokeby, a judge of the Common Pleas from 1689 to 1695, and of the King's Bench from 1695 to 1699, received an annual income which averaged something over $1500 a year.7

Footnote 1: Foss, Judges wil 291.

Footnote 2: Above 234, 262-263.

Footnote 3: Luttrell's Diary in 26r (169r), " The judges attended at Whitehall, and received their instructions from the lord president how to behave themselves in their respective circuits "; ibid 4g2 (169z) there is a similar entry; cp. vol. i 273.

Footnote 4: Judges wil 291.

William III.'s judges were of course men who supported the Revolution settlement. They had been party men--as many of our judges at the present day have been party men. But there were no lack of good lawyers who satisfied the political test ; for, as we have seen, the Revolution was the victory of exactly those principles which the majority of the common lawyers had held throughout the century.8 Pollexfen was made chief justice of the Common Pleas. I shall say something more of him when dealing with his reports.9 Here it will be sufficient to say that,

## Judges and Common Lawyers 515

though he was quite competent to fill this position, he was perhaps more famous as an advocate than as a lawyer. His successor Treby1 was a first rate lawyer. He was the author of the annotations in the margin of Dyer's reports; and, as Foss says, "his various arguments on the question of monopolies, in defence of the city charters, and in the bankers' case (in which he differed from his colleagues) sufficiently attest the extent of his learning." Sir Robert Atkyns,2 who became chief baron of the Exchequer, had a family and an hereditary connection with that court. His father had been baron of the Exchequer from 166o till his death in 1669;3 and his younger brother had held the same post from 1679 to 1686, when, on the dismissal of Montague, he had been made chief baron.4 He himself had held the post of judge of the Common Pleas from 1672 to 168o. He had then been dismissed, mainly because his political views were not in agreement with those of his chief, North, or of Scroggs. After his dismissal he lived in retirement, but he had taken an active interest in politics, and in cases of political importance. He had advised Lord Russell as to his line of defence, and maintained his innocence in two controversial pamphlets.5 He wrote two pamphlets on the dispensing power--one an historical summary of the subject, and the other a reply to Herbert's defence of his judgment in _Godden v. Hales_;6 and a third on James II.'s ecclesiastical commission.7 He also published his own argument in defence of Williams, the Speaker of the House of Commons, who was indicted for publishing, by order of the House, Dangerfield's narrative of the Popish Plot.8 As was perhaps to be expected, the argument unduly magnifies the privileges of Parliament, and it maintains that the courts have no jurisdiction to inquire into their limitations.9 He seems to have been averse to accepting the post of chief baron at the Revolution,10 probably because he did not wish to supersede his brother. But when he saw that his brother would be superseded in any event, he consented to accept it. He held it till

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1694, when he resigned at the age of seventy-three. He still continued to take a literary interest in law and politics; but the topics which he chose were reminiscent of the politics of his youth. Of the two tracts which he published, one was written to prove that the Chancery had no power to issue injunctions to stop common law actions,1 and the other to prove that the House of Lords had no power to hear appeals from the court of Chancery.2 They were naturally quite powerless to revive controversies which, when he wrote, were completely settled. But these and the other tracts which he wrote show that he was a very learned lawyer, and a man of well-balanced mind--a worthy companion of such colleagues as Treby and Holt.

Holt--the most distinguished of all the judges appointed after the Revolution--was made chief justice of the King's Bench in 1689. He may be considered as representative of the common law of the latter part of the seventeenth and the earlier years of the eighteenth centuries, as Maynard is of the common law of the early seventeenth century. Of him, therefore and of his career I must speak at somewhat greater length.

Holt 3 was born at Thame in 1642. His father was a serjeant at law, and recorder of Reading and Abingdon. He left Oxford without taking a degree, and was called to the bar in r663. Towards the latter part of Charles II.'s reign he had acquired a large practice. In 1679 he was one of the counsel for Danby upon his impeachment, and for two of the popish lords accused of complicity in the popish plot. He appeared for the crown in some of the state trials of the period ; but, towards the end of the reign, he was more generally employed for the defence. He defended Pilkington, who was charged with riot in connection with the disputed election to the office of sheriff of the City of London,4 Sir Patience Ward who was charged with perjury,6 and Lord Russell who was charged with high treason,6 But, though he was inclined to Whig opinions, he never took part with the more extreme Whigs. He argued in favour of the East India Company in the great case of Monopolies ;7 and, what was more important, he seems to have been convinced of the legality of the decision in the Quo Warranto proceedings against the City of London.8

Footnote 3: Vol. 464-465; vol. v 236-237 ; it was perhaps inspired by the attempts which were made after the Revolution to effect this result by legislation, vol. i 464.

Footnote 4: Ibid 375 n. i; above 182-183.

Footnote 5: Foss, Judges vii 386:395, Dict. Nat. Biog.

Footnote 6: (t683) 9 S.T. 187. 8 Ibid 299. * Ibid 578. 7 (t683) ro S.T. 371. 8 Foss, op. cit. vii 388-389.

It was probably both the moderation of his political opinions, and his rising legal reputation, that induced James II. to knight

## Judges and Common Lawyers 517

him in 1686, and to give him the posts of recorder of London and king's serjeant. The office of recorder he only held for a very short time. A soldier was tried before him at the Old Bailey for desertion, and found guilty. Holt doubted whether the offence was felony, and delayed sentence, acquainting the chancellor, Jeffreys, with his doubts. The judges were summoned to advise upon the point. Nine of them met and decided that the offence of desertion was felony. Notwithstanding this opinion, Holt refused to give sentence--" but in his absence his Deputy gave judgment, and the soldier was executed."1 Though dismissed from his office of recorder,2 he was allowed to retain his post of king's serjeant, which prevented him from appearing against the crown; and, as we have seen, it was probably for this reason that he was not briefed in the case of the Seven Bishops.

Footnote 1: Bramston, Autobiography (C.S.) 245:246.

Footnote 2: Ibid 276.

He attended the Convention Parliament as a legal assessor. In 1689 he became a member of the House of Commons; and, at a conference with the House of Lords, he defended the view of the Commons that the action of James in leaving the kingdom was an " abdication" rather than a "desertion." But his career as a member of Parliament was short. In April, 1689, he was made (with universal approval) chief justice of the King's Bench; and, in the following September, a privy councillor. On the dismissal of Somers in 1700 William III. offered him the Great Seal; but, contrary to general expectation,3 he declined it, saying that, " he had never had but one Chancery cause in his life, which he lost, and consequently could not think himself fully qualified for so great a trust." No doubt also he thought it unwise to exchange his secure position as chief justice for the unstable office of chancellor. He consented, however, to act as chief commissioner of the seal till a new keeper was appointed. On the death of William he was immediately reappointed chief justice, and held the office till his death in 1710.

Footnote 3: Ibid 276.

The Revolution had created a new set of political conditions; and expanding trade was creating a new set of commercial conditions. Under these circumstances, the common law had need of a judge, who was sufficiently conversant with modern needs and modern thought to appreciate the nature of the problems demanding solutions; who had sufficient statesmanship to see the best solutions; who was a sufficiently good lawyer to put those solutions into a form which harmonized with the principles and technical rules of the common law. Holt satisfied all these needs. He was a learned common lawyer; but he fully appreciated the modern political and commercial

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conditions under which he administered justice. Consequently he used his legal learning so to develop the rules of the common law that they could do substantial justice under these new conditions. From this point of view we may regard him as the father of the long line of great judges who have made our modern common law.

The three fields of law in which these powers were conspicuously displayed were criminal law, constitutional law, and commercial law, With Holt's contribution to constitutional law I have already dealt.1 I shall therefore deal here only with his contributions to criminal and commercial law.

Footnote 1: Above 264-268, 270-272.

Footnote 2: Campbell, Lives of the Chief Justices ii 175-176, citing Clarendon's Journal ii 328-329.

(i) Ibid 174, citing the Trial of Haagen Swendsen (1702) 14 S.T. at p. 581.

(ii) Vol. v 192.

(iii) See the extracts from the Trials of Lord Preston (1691) 12 S.T. 646-822, and Rookwood (1696) 13 S.T. 154, cited Campbell, Lives of the Chief Justices ii 143-145.

(iv) " Trial of Lord Preston (1691) 12 S.T. at p. 743. Lord Preston admitted Holt's fairness to him, Ibid at p. 739.

(v) Trial of Harrison (1692) 12 S.T., 834 at p. 864.

(v) Trial of Canburne (1696) 13 S.T. 122--" Look you, keeper, you should take off the prisoners' irons when they are at the bar, for they should stand at their ease when they are tried "; this was also one of the resolutions of the judges on the trial of the regicides in 1660, Kelyng's Rep. ro ; but obviously little regard had been paid to it ; in Layer's Case (1722) the rule was strictly construed, and held not to apply to the time of arraignment, Bl. Comm. iv 317.

## 5 Judges and common lawyers 519

which he never failed to procure an acquittal,1 and his action in causing the prosecutor in one of these trials to be indicted as a cheat, stopped this form of persecution;2 It would not be going too far to say that Holt revolutionized the conduct of criminal proceedings; and it was this achievement which most impressed his lay contemporaries. Steele wrote of him in the Tatler,3 "Wherever he was judge, he never forgot that he was also, counsel. The criminal before him was always sure he stood before his country, and, in a sort, the parent of it. The prisoner knew, that though his spirit was broken with guilt, and incapable of language to defend itself, all would be gathered from him which could conduce to his safety; and that his judge would wrest no law to destroy him, nor conceal any that could save him."

Footnote 1: Foss, Judges vii 395; the following tale, related by Foss, will bear repetition: " In a trial of an old woman for witchcraft the witness against her declared that she used a ' spell.' ' Let me see it,' said the judge. A scrap of parchment being handed up to him, he asked the old woman how she came by it, and on her answering,' A young gentleman, my lord, gave it me to cure my daughter's age'; inquired whether it cured her. ' Oh I yes, my lord, and many others,' replied the old woman. He then turned to the jury and said, 'Gententemen, when I was young and thoughtless, and out of money, I and some companions, as unthinking as myself, went to this woman's house, then a public one, and having no money to pay our reclosing, I hit upon a stratagem to get off scot free. Seeing her daughter ill of an age I pretended I had a spell to cure her. I wrote the classic line you see, and gave it her; so if any is punishable, it is I, and not the poor woman."

Footnote 2: Trial of Hathaway (1702) 14 S.T. 639.

Footnote 3: No. xiv (May 12, 1709).

Footnote 4: Vol. 1 553-555, 570-573; vol. v 143-148, 153-154.

Footnote 5: Above 341.

(i) _Commercial Law._

Both the extent and the nature of the influence which Holt's decisions have had on the development of our commercial law have been very remarkable. I shall deal firstly with its extent, and secondly with its nature.

(1) We have seen that Coke's attack on the court of Admiralty, and the political results of the Great Rebellion, had given the common law a large commercial jurisdiction.4 We have seen, too, that the latter part of the seventeenth century was an era of expanding trade.5 Commercial cases, therefore, came with increasing frequency before the common law courts. But the judges of this period had shown very little appreciation of these new conditions. They were far more at home with the rules of pleading procedure and process, with established doctrines of the land law, and with the other branches of the common law which figured largely in the older books. Holt was the first judge since the Restoration to appreciate the modern conditions of trade, and the importance of moulding the doctrines of the common law to fit

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them. Of the many branches of the law, in which he showed this power, I shall say something later in this chapter,1 and in the second Part of this Book.2 Here it will be sufficient to give four illustrative instances.

Footnote 1: Below 63r, 634-640.

Footnote 2: Ft. II. c. 4 I.

In the first place, he firmly fixed in the common law the modern doctrine of employer's liability. It was a modification of the older principles of liability, which was rendered absolutely necessary by the changed commercial conditions.3 That Holt appreciated the nature of this necessity is clear from the fact that he not only expounded it in its modern form, but also based it upon the principle now generally accepted. In \_Sir Robert Wayland's Case_4 he said, "It is more reasonable that he (the master) should suffer for the cheats of his servant than strangers and tradesmen." When we look at the confused reasons for the doctrine given by many of the judges of this and later periods,5 we must admit that this is a remarkable instance of Holt's power of stating modern doctrine in the form, and of basing it upon the grounds, which have been ultimately adopted. In the second place, his decisions go a very long way towards introducing into, and making part of the common law, the main principles of the law as to negotiable instruments.6 We shall see that, before his time, these instruments had been well enough known to the merchants, and that they had come before the courts. But we shall see that the courts, contenting themselves with following mercantile practice, had done little to make this mercantile practice a part of the law. Holt incorporated this mercantile practice into the common law. As a result of his decisions, the common law acquired definite rules as to the legal position of the various parties to a bill of exchange, and as to the effects of drawing and negotiating such a bill. He recognised also the assignability of a bill of lading.7 In the third place, in the case of _Coggs v. Bernard_,8 he went a long way towards settling the various forms of the contract of bailment. In the fourth place, he would have liked to relax some of the older restrictions on the activities of traders, the wisdom of which was beginning to be questioned by commercial men and economic thinkers. As we have seen, he disliked the claim of cities to restrict trade in the city to a narrow circle;9 and a case decided in 1692 shows that he was prepared to modify, when necessary, the severity of the common law rules as to forestallingJUDGES AND COMMON LAWYERS 521 and regrating.1 Those rules were not wholly obsolete,2 nor were they altogether unreasonable.3 But Holt saw, and the legislature indorsed his opinion,4 that some modifications were needed to bring them into conformity with new social and commercial conditions.

Footnote 1: _Anon._ I Shower, K.B. 292; the report runs as follows:--\*: Indictment for forestalling by buying at Billingsgate of fish. And held by Holt Chief Justice on trial at Nisi Prius, that the party was not guilty ; for Billingsgate was a market time out of mind, and so the party was acquitted ; and by him, were it otherwise, all the fishmongers were liable to prosecutions. _Note_,--This was at the instance of that company against a poor woman that cried fish;" for the law on this topic see vol. iv 375:379:

Footnote 2: In 1693 and r698 the law against forestalling and regrating was put in force against dealers of grain and other victuals, Tudor and Stuart Proclamations nos. 4131, 4253.

Footnote 3: Vol. iv 379.

Footnote 4: No William III. c. r3.

Footnote 5: (1704) 2 Ld. Raym. oog.

Footnote 6: Pt, II c. 3 SS 3; cp, vol. iii 450-451.

Footnote 7: R. v. Toler (1707) r Ltd. Raym. at p. 557.

Footnote 8: See Pt. II. c. 4 I. SS 2 for the detailed history of this matter.

(2) The nature of Holt's influence upon commercial law was necessarily determined by the nature of his intellectual equipment. It has sometimes been said that he was learned in the civil law. It is true that in _Coggs_ v. \_Bernard_5 he cites Justinian's Institutes, and quotes the commentaries of Vininius. It is true that he may have looked at some of the authorities which the civilians were accustomed to cite, when they argued questions of maritime and commercial law before him. But it is clear from _Coggs_ v. _Bernard_ that he knew a great deal more about Bracton, from whom he cites large extracts, and the other English authorities, than of the writers upon the civil law. And it is fairly clear that, in the numerous cases in which he settled the leading principles of the law of negotiable instruments, he relied mainly on the evidence of the merchants. There is no evidence that he was learned, as Lord Mansfield was learned, in the civil law or in foreign systems of commercial law. He was very much alive to the importance of understanding the commercial needs of his own day; and he appreciated the necessity of so moulding the common law that it could satisfy them. But he was essentially a common lawyer; and, unlike Lord Mansfield, he had many of the conservative instincts of the common lawyer. Thus, Lord Mansfield developed the conception of quasi-contract; but we shall see that Holt was averse to the extension of assumpist, by which this development was effected.6 Holt once described the appeal of murder as "a noble remedy, and a badge of the rights and liberties of an Englishman."7 We can hardly imagine Lord Mansfield using these words. Then, too, the obstinacy of his refusal to allow that promissory notes were negotiable, was partly caused by his legal conservatism. No doubt, as we shall see,8 it was not due entirely to this cause. It was due partly to his perception that promissory

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notes differed from bills of exchange ; and his inference (for which he had authority in foreign systems of law) that it was only bills of exchange which had the status of negotiability. This reason is quite intelligible. But the resistance of the merchants to this view of the law roused in him a feeling of indignation, because, as he thought, mere merchants were attempting "to give the law to Westminster Hall ;" and this indignation blinded him to the practical inconvenience of his decisions. Probably Lord Mansfield would neither have felt this indignation, nor disregarded the practical consequences of so deciding.

Holt's legal conservatism perhaps prevented him from developing our commercial law so rapidly as it might otherwise have been developed. It prevented its condition from being in his time, and for some time to come, wholly satisfactory to the merchants.1 But it has had one beneficial effect--it has helped to make the common law more uniform. If Holt had been more learned in foreign systems of law, he might have been tempted to introduce their principles in bulk. The result would have been that commercial law, though administered by the common law courts, would have remained a very separate branch of the common law. The nature of Holt's training prevented him from being able to do this. Though he was quite aware that new principles must be introduced to meet new needs, though he did not hesitate to introduce them, he naturally expressed them in the technical form, and supported them by the technical reasoning, of the only system of law with which he was thoroughly well acquainted. They were thus incorporated into the common law and became an integral part of it. To accomplish this feat a man of Holt's intellectual equipment was needed. Coke had conquered a large commercial jurisdiction for the common law. Holt made good progress in the settlement of this domain on common law principles. No doubt to complete its settlement the cosmopolitan learning of a jurist like Mansfield was needed. But the fact that a common lawyer like Holt had begun that settlement, made it easier for the common law at a later date to assimilate intelligently the foreign ideas which were necessary for its completion. Thus the fact that Holt combined appreciation of modern commercial conditions, with an exclusive or almost exclusive training in the common law, helped, in no small degree, to ensure ultimately a very much more thorough incorporation of the principles of the Law Merchant with the common law, than would otherwise have been possible.

Footnote 1: Vol. i 572-573.

**CHANECILORS AND OFFICIALS 528**

of the judges, show us that, by the end of the century, the modern conditions of legal development have been reached.

_The Chancellors, the Officials of the Court of Chancery, and the Chancery Bar_

The chancellors1 of the latter part of this century illustrate both the transition character of the period through which equity was passing, and the varying influences which, from that day to this, the political conditions of the day have had upon the appointments to this office. The transition character of the period is illustrated by Clarendon--Charles II.'s first chancellor. He was essentially a statesman, who, from some points of view, recalls the great ecclesiastical chancellors of the Middle Ages. The other chancellors of the period illustrate the influence of the different sets of political conditions under which they were appointed. Political conditions have always influenced the appointments to this office, because the holder is not only a judge, but also a great officer of state ; and varying political conditions have given rise to various types of chancellors, some of which have been very constant throughout our legal history. Let us look at the types of chancellors which, under these influences, emerge during this period. Firstly, we have a type represented by Shaftesbury and Jeffreys. They were men who owed their position entirely to the exigencies of the party politics of the day, and were obviously not well fitted to preside in the court of Chancery. Fortunately this type of chancellor did not survive the Revolution. The remaining types have been more constant. Secondly, we get a type composed of men who were both able politicians and good lawyers. This type is represented in this period by North and Somers. Thirdly, it sometimes happened that the political situation, and the state of the legal profession, were such that no very eminent man was availableLaw--Professional Development

for the post. Thus we get comparatively undistinguished chancellors, who owed their appointment to a lucky accident. This type is represented by the two lord keepers Bridgman and Nathan Wright. Lastly, we have the chancellors whose names are landmarks in our system of equity. This period produced one chancell of this type--Lord Nottingham--to whose genius it is largely due that our modern system of equity begins to emerge. The careers of these various types of chancellors will tell us something of the conditions under which equity was developing, during this period, into a regular system.

Clarendon belongs to the general history of England rather than to legal history.1 Both as a lawyer and as a politician he belonged to the earlier half of the seventeenth century ; and we have seen that the fact that he preserved the prejudices and ideals of that period helped him, at the Restoration, to resettle the government upon its old foundations.2 We have seen, too, that his adherence to his old political ideals gradually alienated the king, and exasperated the Parliament ; and that he died in exile3--the last of the constitutional statesmen of the early seventeenth century. While he was chancellor he had but little time to devote to the judicial duties of his office. The orders which he issued, generally in conjunction with Sir Harbottle Grimstone the master of the Rolls, effected some improvements in the organization and procedure of the court.4 His administration of justice is generally admitted to have been pure ;5 his judicial appointments were as good as many of those after his fall were bad ; and his practice of never sitting without the assistance of two judges,6 if it did not make for much progress, made at least for order and continuity in the development of equity.

Footnote 1: Above 137, 141, 175, 178 ; see also Foss, Judges vii 122-134; Dict. Nat. Biog. ; his life written by himself (ed. 1842).

Footnote 2: Above 175-176.

Footnote 3: Above 176-179.

Footnote 4: Sanders, Chancy Orders i 292-322.

Footnote 5: For Anthony Wood's allegations to the contrary see Foss, Judges vii 132--as Foss says--''' the general imputation of bribery is sufficiently refuted, as well by the absence of any specific charge being brought forward at a time when they would have been welcomed and encouraged, as by his leaving, after such opportunities of accumulation, his family so poorly provided for.'

Footnote 6: Foss, Judges vii 133.

Footnote 7: Ibid vii 70-84 ; Dict. Nat. Biog. ; Christie, Life of the First Earl of Shaftesbury.

Let us now turn to the different types of chancellors to which various political conditions have given rise.

Firstly, we have two chancellors--Shaftesbury and Jeffreys--who owed their appointments entirely to the political exigencies of the day, and were obviously not well fitted to preside in the court of Chancery.

Anthony Ashley Cooper,7 the future earl of Shaftesbury, was a

## 5.1 Chancellors and officials 525

member of Lincoln's Inn ; and his first wife was a daughter of lord keeper Coventry. But, though he moved in legal circles, he never practised. He had devoted himself to politics, first on the side of the king, and then on the side of the Parliament. During the Commonwealth period he had taken an active interest in the extensive law reforms then projected ;1 and it is probable that his experience at this period gave him a good insight into some of the most crying abuses of the law and the law courts, and particularly of the court of Chancery. He was active in promoting the Restoration; his abilities, industry, and wit soon gained him the favour of Charles II. ; and he was made chancellor of the Exchequer in 166o. Though he opposed Clarendon's impeachment, he was wholly opposed to Clarendon's policy. His outlook was, in a greater degree than that of any other statesmen of the day, towards the future ;2 and in many points his policy agreed with that of Charles. Like the other members of Cabal, he favoured toleration, and a war with Holland. But he was wholly opposed to Charles's ulterior design of overthrowing the constitution and the church by means of French arms. His discovery of these designs threw him into opposition. As a leader of the opposition he became the first great demagogue and party leader that England had yet seen.3 He helped to carry the Habeas Corpus Act ; and he led the agitation for Exclusion. But he was out-manceuvred by Charles ; and, after the dissolution of the Oxford Parliament in 1681, his party was ruined. He dabbled in treason, and ended his days in exile in Holland.

Footnote 1: Vol. i 431-434; above 412 seqq.

Footnote 2: Ranke, History of England iv 166-169--\* He started from the conception of tolerance as Locke had done. He may be regarded as the principal founder of that great party which, in opposition to the prerogative and to uniformity, has inscribed upon its banner political freedom and religious tolerance."

Footnote 3: Traill, Shakesbury (English Worthy Series) 206--\* Those three most notable actors on the stage of English politics, the modern demagogue, the modern party leader, and the modern Parliamentary debater--are in him foreshadowed."

Footnote 4: Christie, op. cit. ii 93-94 ; Christie thinks * that he had made difficulties about affixing the Great Seal to the Declaration of Indulgence, and that his objections, which probably applied only to the Roman Catholics, were removed by the addition of a proviso that they were not to be allowed the privilege of public worship."

Footnote 5: Ibid in 94-95 Christie gives good reasons for thinking that North's account of Bridgman's refusal to issue injunctions to stop actions brought against the bankers (Examan 38; Lives of the North s ir5) is inaccurate; he says--\* What is probably true is that Bridgman refused, not to grant an injunction in Chancery, but to sanction a declaration under the great seal for protection of the bankers ;" this is made more probable by Shaftesbury's letter to Locke of November, 1674, cited. Christie ii 60, in which he says,

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issuing a commission to try by martial law offences of the troops which the king was raising for the Dutch war.1 It was clearly advisable to have a chancellor more in sympathy with the government. Shaftesbury had indeed opposed the stop of the Exchequer;2 but he had defended it in Parliament;3 and he certainly issued at least one injunction _misi_, the effect of which was to delay a creditor's action against a banker.4 It is not clear that he was ever asked to seal a commission to try troops by martial law; but it is clear that he was in favour of religious toleration, and would not therefore have opposed a Declaration of Indulgence. He was essentially a politician, and a strenuous advocate of the political cause with which he happened to be identified. His career shows us that he had some of the modern demagogue's contempt for legal technicalities when they impeded his programme, and all his reverence for them when they could be made to serve his purpose 5--a weakness upon which Charles II. observed with his accustomed wit and grossness of language.6 Such a chancellor was not likely to be popular in his court. We cannot, indeed, accept Roger North's account 7 as literally true; for he was a bitter political opponent. But we can well believe that the conservative officials of the court, and the older members of the Chancery bar, suspected a man who had had a hand in the projected reforms of the Commonwealth period, and intended to

## 5.3 Chancellors and officials 527

issue a comprehensive set of orders to correct abuses in the procedure of the court; \[1\] and that they were standardized by his fashionable appearance, and by the manner in which he brushed aside technicalities in order to do speedy justice. That the justice he did was both pure and speedy, Dryden--another political opponent--has testified in a well-known passage of his Absalom and Achitophel; \[2\] and we may reasonably suppose that he represented the views of the suitor, as North represented the views of the official and the practitioner. If Shaftesbury had held office longer, his talents and experience as an administrator might have effected some valuable reforms in the organization of the court; and the litigant would have rejoiced in his clear intellect and impatience of unnecessary delay. But we can hardly suppose that he could have done anything for the technical development of the principles of equity.

The career of Jeffreys \[2\] is the most striking proof of the bitterness of political faction at the latter part of Charles II.'s, and during the whole of James II.'s reigns. Jeffreys was not without legal ability, as may be seen from his judgment in the _East India Company v. Sandys._\[4\] He was a skilful examiner and cross-examiner; \[2\] and, at the trial of Titus Oates, he laid down the salutary rule that a witness ought not to be produced " to swear that he did forswear himself before." \[6\] Apparently, too, he would have favoured a change in the law which prohibited prisoners accused of treason or felony from having the assistance of counsel, or their witnesses sworn.\[7\] He was quick to seize the crucial

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points of a case ; and both as an advocate and as a judge he could present it skillfully to a jury.1 He had a keen eye for the misbehaviour of other magistrates--as the aldermen of Bristol, engaged in the lucrative trade of transporting rogues to the West Indies and then selling them, found to their cost.2 These qualities gained him some praise as a judge and a chancellor in cases where neither the crown nor his party were concerned. But in cases where they were concerned there was nothing judicial in his manners or behaviour. His loud voice, his extraordinary powers of invective, and the ferocious aspect which he could assume, made him terrible to the unfortunate persons who appeared before him, professionally or otherwise ; and the effects of these qualities were heightened by the drunken orgies in which he constantly indulged. The state trials, in which these qualities were displayed, made the most noise in his own day, and have given him the historical reputation which he deserves.3

Footnote 1: Campbell, Chancellors iii 586 says--" His summing up in the Lady Ivy's case (t684) to S.T. 555 . . . is most masterly. The evidence was exceedingly complicated, and he gives a beautiful sketch of the whole, both documentary and parol."

Footnote 2: Lives of the Norths i 28a;=286.

Footnote 3: Burnet, History of My Time (Airy's ed.) Pt. I. vol ii 395, says " he was scandalously vicious, and was drunk every day; besides a drunkenness of fury in his temper, that looked like enthusiasm. He did not consider the derencies of his post, nor did he so much (as) affect to seem impartial ..., but run out upon all occasions into declarations that did not become the bar, much less the Bench; " to this Cashov appends a note to the effect that Sir J. Jekyll, M.R., said that he " made a great chancellor in the business of that Court. In mere private matters he was thought an able and an upright judge wherever he sat, " but, as Onslowly jvally remarks, when the crown or his party were concerned, his behaviour was generally as described by Burnet ; Roger North's testimony agrees ; he says, Lives of the Norths i 28S, " When he was in temper, and matters of indifference came before him, he became his seat of justice better than any other l ever saw in his place; " but, " No one that had any expectations from him was safe from his public contempt and derision. Those above or those that could hurt or benefit him, and none else, might depend on fair quartet at his hands; " and, " He seemed to lay nothing of his business to heart nor care what he did or left undone; and spent in the Chancey Court what time he thought fit to spare. Many times on days of causes at his house, the company have waited five hours in a morning, and after eleven, he hath come out inflamed and staring like one distracted. And that visage he put on when he animadverted on such as he took offence at, which made him a terror to real offenders; whom also be terrified with his face and voice, as if the thunder of the day of judgment broke over their heads; " cp. Foss, Judes vii 237-238.

4: Ibid vii 28a-229.

5: Lives of the Norths iii 97.

6: Foss, Judes vii 242--he saved Sir W. Clayton, who had helped him to preferment in the City of London, from being hanged; " and even when in the midst of his bloodiest commission, he listened with calmness to the remonstrances of a clergyman of Tautton against his proceedings, and . . . . presented him on his return to London to a cannory in Bristol Cathedral."

## 5 Chancellors and officials 529

self more and more licence. "He hath," wrote Charles Hatton in 1679, " the three chief qualifications of a lawyer : Boldness, Boldness, Boldness."1 His manners grew more overbearing and his behaviour more coarse. Occasionally, indeed, he was made to suffer for his behaviour. When at the bar he was publicly rebuked by baron Weston,2 and when chief justice he was obliged to apologize to the justices of Middlesex.3 But generally his licence was unrestrained ; with the result that he was more universally hated than any judge before or since, both by the public at large, and by his fellow lawyers, whom he delighted to hold up to ridicule both in 4 and out 5 of court.

Footnote 1: Hatton Correspondence (C.S.) i rgg. ${}^{2}$ Foss, Judges vii rgr.

Footnote 2: Memoirs of Sir John Rersby 294-295.

Footnote 4: "Scarce a day passed that he did not chide some one or other of the bar when he sat in Chancery ; and it was commonly a lecture of a quarter of an hour long," Lives of the North s i a88.

Footnote 8: Rersby tells us, Memoirs 355, that, after a dinner with Jeffreys on Jan. 18, r686, " the Chancellor, having drunk smartly at the table (which was his custom) called for one Montfort, a gentleman of his that had been a comedian ... and made him give us a cause, that is, plead before him in a feigned action, when he acted all the principal lawyers of the age, in their tone of voice, and action or gesture of body; and thus ridiculed not only the lawyers, but the law itself;" Evelyn, Diary, Oct. 31, 1685, pronounced him to be " of nature cruel and a slave of the Court."

Footnote 4: Lives of the North s i 273-274.

Footnote 7: Foss, Judges vii 234-332; see Hist. MSS, Com. 14th Rep. App. Pt. vi 308 for an account of the Earl of Pembroke's Amendment of Records Bill (i693), in which it is alleged that he amended records in order to favour his own interests.

Throughout his life he cared only for his own advancement, and was wholly unscrupulous as to the means by which it was secured. His first preferments came from the City of London, where he filled the posts of common serjeant (1671), and recorder (1678). But the City was Whig ; and he soon saw that the easiest path of advance was through the royal favour. He made friends with the notorious Chiffinch ;6 the Crown soon found him useful ; and he earned the censure of Parliament in t68o. Through the influence of the Duchess of Portsmouth, he was made chief justice of Chester in the same year, in which post he began to show the qualities which have made his name infamous.7

Footnote 8: Bramston, Autobiography (C.S.) i rgg. ${}^{2}$ Foss, Judges vii rgr.

After the dissolution of the Oxford Parliament his fortune was made. A man of his parts was exactly the man required to manage the various trials which arose out of the Ryehouse Plot; and, after Monmouth's rebellion, he was exactly fitted to put in force the policy of "'Frightfulness" upon which James was resolved. Even before Charles's death his boldness and ready wit had enabled him to undermine the influence of North; and, as a reward for his services in the western counties, he was made lord chancellor.8 As lord chancellor he was absolutely unscrupulous

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in his appointments to the Bench. Even before he was chancellor, he had induced Charles to appoint Robert Wright to a judgeship in the King's Bench, in spite of the fact that he was guilty of perjury and fraud.1 Naturally he raised no objection to the manner in which James II. appointed and dismissed judges merely to serve his political ends, with the result that, by his own confession, the bench was never more degraded.2 His elevation, by diminishing the necessity for self-control, changed his manners, if any thing, for the worse. Reresby relates that in February, 1686, "My Lord Chancellor had like to have died of a fit of the stone which he brought upon himself by a great debauch of wine at alderman Duncomb's where he and My lord Treasurer, with others, drank to that height that t'was whispered that they stripped into their shirts, and had not an accident prevented; would have got upon a signpost to drink the King's health."3 Though he was still as keen as ever to discover abuses ;4 though his strong common sense, and the nebulous condition of many of the doctrines of equity, enabled him to dispense a certain measure of justice, both counsel and suitors continued to suffer under his tongue.5 When the crash came, it was this failing that led to his discovery and hastened his end. He had so frightened a scrivener of Wapping, who was a suitor before him in the court of Chancery, that the man recognized him through his disguise, and set the mob on him. He was with difficulty rescued from their clutches, and died shortly afterwards in the Tower.6

Footnote 1: Lives of the North's 1324-327.

Footnote 2: Clarendon relates in his diary (ii 179) that on one occasion Jeffreys had said that most of the judges were roques; and on another (ii 185) he called the judges a Thousand Fools and Knaves and said that Chief Justice Wright was a beast.

Footnote 3: Memos 357.

Footnote 4: The lord chancellor hath fell fool upon several practices in the chancery; he committed a register, two or three clerks in chancery, and a lawyer or two, to the Fleet, and suspended a master in chancery from his place," Luttrell's Diary i 363.

Footnote 5: Above 528 n. 3, 529 n. 4.

Footnote 6: Luves of the North's i 289-290; Luttrell i 486; Bramston's Autobiography (C.S.J) 339.

Secondly, we have the type of chancellors--represented in this period by North and Somers--who were both politicians and good lawyers.

To the Whig historians of the last century it would have seemed almost sacrilegious to put these two men into one category ; and yet Ncrth, though not so big a man as Somers, though neither

## 53 Conclusions and officials 581

so skilful nor so successful a politician, was, with the exception of Nottingham, perhaps the most enlightened of the Tories, just as Somers was amongst the most far sighted of the Whigs. Moreover, from the point of view of the history of equity, they stand very much upon the same plane. Neither can be said to have done anything considerable for the organization or procedure of the court; and it is not clear that either contributed very materially to the advancement of the system of equity. Both were sound lawyers and good judges. Both had intellectual interests outside the law.1 Both were interested in the collection of historical records.2 Both were firmly and honestly convinced of the truth of their political creeds.

Footnote 1: For North see Lives of the Norths i 373-374, 383-393, 434; for Somers see Foss, Judges vi 362-363--he was president of the Royal Society 1698-1703, and was a friend of Newton, Locke, Addison, and Bayle.

Footnote 2: For North see below 532; for Somers see Foss, Judges vii 363--he collected 60 quarto vols. of MSSs, most of which were destroyed by fire in 1752, and many tracts, a selection of which were published as the Somers' Tracts in 1795 and 180g.

Norths's Life in the Lives of the Norths is the primary authority; see also Dict. Nat. Biog.; and Foss, Judges vii 260-270.

H. was the hero of his brother Roger, who, by writing his biography, has erected to his memory an imperishable monument. We cannot indeed accept as literally true the almost faultless character which he has pictured for us. But Evelyn described him as "a most knowing, learned, and ingenious man, and besides an excellent person, of ingenious and sweet disposition, very skilful in music, painting, the new philosophy, and political studies."4 It is, I think, safe to say that there is a good deal more truth in the picture which his brother has drawn, than in the pictures drawn by his political opponents in the seventeenth and in the nineteenth centuries. His rise in his profession was due largely to his industry and capacity, but more especially to the happy chance that he was a convinced Tory of a moderate type, at a time when an able lawyer, who was also a Tory, was a phenomenon rarely seen.

Footnote 4: Diary Jan. 23rd, 1683.

The great constitutional lawyers of the earlier part of the seventeenth century had been, for the most part, on the side of the Parliament;5 and in the latter part of this century most of the ablest lawyers of the day were on the same side.6 North, though justly diffident as to his capacity as a courtier and a politician,7 was a really learned lawyer, well versed in constitutional law and

### Law--Professional Development

history. His researches had led him to see, what most historians admit to-day, that medieval precedents were not by any means conclusively in favour of all the claims of Parliament.1 As soon as he had sufficient leisure, he made a more extensive study of records ; and had transcripts made for him with a view to the composition of a history of Parliaments.2 This study only confirmed him in the belief that "a public view of all the records of state and parliament would be for the advantage of the monarchy."3 We may call this political bias if we please ; but it is at least arguable that it is evidence of considerable historical insight.

Footnote 1: Lives of the Norths i 353-355. 2 Ibid 354:

Footnote 3: 4: 5: 6: 7: 8: 9: 10: 11: 12: 13: 14: 15: 16: 17: 18: 19: 20: 21: 22: 23: 24: 25: 26: 27: 28: 29: 30: 31: 32: 33: 34: 35: 36: 37: 38: 39: 40: 41: 42: 43: 44: 45: 46: 47: 48: 49: 50: 51: 52: 53: 54: 55: 56: 57: 58: 59: 60: 61: 62: 63: 64: 65: 66: 67: 68: 69: 70: 71: 72: 73: 74: 75: 76: 77: 78: 79: 80: 81: 82: 83: 84: 85: 86: 87: 88: 89: 90: 91: 92: 93: 94: 95: 96: 97: 98: 99: 99: 90: 91: 93: 95: 97: 99: 91: 96: 99: 92: 93: 97: 99: 98: 99: 90: 91: 93: 99: 91: 94: 95: 96: 97: 99: 98: 99: 99: 90: 91: 99: 92: 93: 94: 95: 97: 99: 99: 99: 90: 91: 99: 92: 93: 95: 97: 99: 99: 90: 91: 99: 93: 99: 94: 95: 96: 97: 99: 99: 98: 99: 99: 99: 90: 91: 99: 92: 93: 95: 97: 99: 99: 99: 90: 91: 99: 92: 93: 95:

## 6 Chancellors and officials 538

personal density, as he showed by the manner in which he asserted his right, when made king's counsel, to be called to the bench of his Inn;1 and, as we have seen, he dealt very effectually with the serjeants, who engineered a strike to protest against some favours which he had shown to his brother,2 In legal ability he was more than a match for the counsel who practised before him;3 nor is there any evidence that his brother's account of his careful and expeditious manner of trying cases4 is incorrect. In the witchi trials with which he was concerned he showed an enlightenment beyond that of many of his contemporaries.5

Footnote 20: I did not have any other friends.

Footnote 21: I did not mention that he did not have any other friends.

Footnote 1: The $\\alpha$-dependence of the $\\alpha$-dependence

## 5 Chancellors and officials 535

minister of state."1 He desired to resign;2 and his resignation would probably soon have been accepted. But vexation at his treatment, and apprehension of the consequences of the policy which the Court was pursuing,3 hastened his end. He died in 1685. His character was not strong enough to make him a successful politician at such a period. But he gave wise counsel; and it is safe to say that if, after the dissolution of the Oxford Parliament and the defeat of the Whigs, the Stuart s had accepted his counsels, there would have been no Revolution in 1688.

Footnote 1: Lives of the North s i 355; for illustrations of the way in which his advice was put aside, and he himself slighted see ibid 334, 338.

Footnote 2: ibid 34.6.

Footnote 3: North says that his brother warned James II, of the consequences of this policy, ibid 358-359; and, if his report of his advice is correct, it was prophetic.

It is not surprising that Addison at the beginning of the eighteenth century,4 and the Whig historians of the nineteenth century, pictured Somers as the embodiment of the perfect Whig. He stood for exactly the set of principles which triumphed at the Revolution; and his whole career, with the possible exception of his conduct in sealing the Partition Treaties, was in accordance with the straightest canons of that old Whig orthodoxy,5 to which Burke appealed against the charges made against him by the new Whigs who favoured the French Revolution.

Somers was called to the bar in 1676;6 and he soon acquired a comfortable practice. Four political tracts which he published in 1681,7 and the debate in the Temple, in the same year, on the question of sending up an address of thanks to the king for dissolving the Oxford Parliament, shows that he had identified himself with the Whig party.8 He made his name as a barrister and as a Whig by his short concluding speech for the defence in the trial of the Seven Bishops. The terse and effective manner in which he presented their case--well known from Macaulay's description--showed that he was not only a master of legal principles, but also a master of the art of presenting them in a lucid form.9 He took

### 536 Law-Professional Development

some part in framing the Bill of Rights ;1 and was made by William first solicitor and then attorney-general. In 1693 he became lord keeper. He was driven out of office in 1700 by the attacks of his political opponents, who then had the majority in Parliament. In the following year he was impeached, chiefly for his conduct in relation to the Partition Treaties ;2 but, as the Commons did not appear to support their accusations, the impeachment was dismissed. The recognition of the Pretender's title to the throne produced a Whig reaction, and Somers might have returned to power if William had lived. But William's death confirmed the Tories in power for some years longer ; and Somers remained without office. But he promoted legal reforms,3 helped to secure the passing of the Regency Bill which was designed to facilitate the Hanoverian succession,4 and took an active part in carrying the Act of Union with Scotland. From 1708-1710 he was Lord President of the Council ; and, on the accession of George I., he became a member of the Cabinet without office. He died in 1716.

Footnote 1: Above 230-231.

Footnote 2: He was also charged with obtaining grants for his own benefit, with aiding and abetting the piratical exploits of Captain Kidd, and with mal-administration in his court, see 14.S.T. 234.

Footnote 3: Those, for instance, which were enacted by 4 Anne c. 16.

Footnote 4: Anne c. 8.

Of his ability as a lawyer there can be no question. Both the Acts which he promoted for the reform of the law, and the universal opinion of contemporary lawyers, are conclusive. Unfortunately, we have only one trustworthy specimen of his powers as a judge--the famous judgment in the _Bankers' Case_.5 It is the most elaborate judgment ever delivered in Westminster Hall, being in fact an historical treatise on the obscure topic of the legal remedies available against the Crown. It is perhaps arguable that Somers, following the prevailing habit of his own day and of many days to come, gave too definite a meaning to mediaeval precedents, and was too quick to see, in the miscellaneous petitions of an earlier age, the petition of right of his own day.6 However that may be, it can hardly be denied that his efforts have been of permanent service to the continuous development of this branch of the law. It is due to them that the law acquired one clear and authoritative precedent in favour of taking a large view of the scope of the petition of right, without which it would have been much more difficult for the judges of the nineteenth century to make of it a remedy in some measure adequate to the needs of the modern state.7 Somers also was present when the

## 53 Chancellors and officials 587

House of Lords reversed the decision of the Court of Queen's Bench in 1703-1704 in the case of _Ashby_ v. _White_,1 and upheld the correct view contained in Holt's dissenting judgment. As chancellor he asserted his right to nominate the judges--a right which had been assumed both by James II.,2 and exercised by William III, while the great seal had been in commission;3 and he issued a few short orders as to procedure.4 But there are no very full reports of the cases which he decided; and we cannot gather from these cases that he left any very great mark on the development of equity. It is rather as a constitutional lawyer, a statesman, and a man of letters, than as a great chancellor, that he lives in history.

Footnote 1: I'd 5.T. 695 ; Lords' journals xvii 369; see ibid 527-534 for a statement of the Lords' reasons; above 271.

Footnote 2: Branson's autobiography (C.S.) 207.

Thirdly, we have the type of chancellor, represented by the two lord keepers Bridgman and Nathan Wright, who owed their appointments to a lucky accident.

Bridgman 5 succeeded Clarendon in 1667, and held the seal as keeper till he was superseded by Shaftesbury in 1672. He had made his name as a conveyancer during the Commonwealth period; and his book of precedents in conveyancing, which was published after his death, passed through many editions.6 At the Restoration he was made, first, chief baron of the Exchequer, in which capacity he presided at the trial of the Regicides, and a few months later chief justice of the Common Pleas. As chief justice he won applause. He impressed Pepys, who saw him at a meeting of the Council, as "'a mighty able man ";7 Lord Nottingham spoke of him as "'eminent both for learning and integrity;8 and we shall see that he performed one considerable service to legal doctrine by his important contribution as counsel, conveyancer, and judge to the establishment of the modern rule against perpetuities.9 As chancellor he appears

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to have taken some interest in foreign politics.1 It would seem that his appointment was popular, and that great things were expected from him.2 But these expectations were not realized. Since his mind was that of a lawyer of a somewhat strict and technical type,3 it was not likely that he would make a good administrator of equity. He hardly seemed to understand what equity was, says Burnet,4 with the result that he could never come to a conclusion. "In his time the Court of Chancery ran out of order into delays and endless motions in causes."5 As we have seen, the new political necessities of the day caused his removal.6 Both in religion and politics he belonged to much the same school as Clarendon. The scruples of such men were irksome alike to the king and to the new opposition which was growing up in Parliament. Somewhat to his own surprise he was dismissed with a pension in 1672.7

Footnote 1: See his letters to Williamson in S.P. Dom. 1667-r668 494, 500, 503-504-

Footnote 2: Foxcroft, Life of Halifax i 54.

Footnote 3: An illustration of this is the well-known tale told by North, Lives of the Norths i 26, that he objected to a small alteration in Westminster Hall, which would have moved the court of Common Pleas out of the drought of the door, because Magna Carta having said that it must be held in certo leoo, to move it at all would be illegal, "and all the pleas would be coram non judice"--which, says North, makes me think of Erasmus's saying that the lawyers were doctissimon genus indoctissimorum hominum.

Footnote 4: History of My Own Time Pt. I. vol. i 454.

Footnote 5: North, op. cit. 175; at p. 259 he says--"The Lord Bridgman, who was a very good common law judge, made a very bad chancellor. For his timidious manner of creating and judging abundance of points some on one side and some on another, and, if possible, contriving that each should have a competent share, made work for registers, solicitors, and counsel who dressed up cases to fit his humour.

Wright 8 was called to the bar in 1672. He was junior counsel for the prosecution in the case of the Seven Bishops; and acquired a considerable practice in William III.'s reign. After the dismissal of Somers in 1700, in consequence of the advent of the Tories to power, it was found to be difficult to induce any lawyer to take the seals. The chief justices declined to give up their positions for so insecure an office; and so, after a short interval, in which the seal was in commission, it was given to Wright, who held it till 1705. Though it is said that he had a manual of the practice and rules of the Court composed for him,9 he never made himself really competent to perform his judicial duties in the court of Chancery. As under Bridgman, business got into arrear; and though there is no reason to suppose that his administration of justice was not pure, there were rumours that he accepted money for the disposal of offices and livings. In 1705 the Whigs were gaining ground; and, as Wright was despised even by his own party, his fall was inevitable.

## 53 Conclusions and officials 589

Lastly, I must give some account of the one really great chancellor of this period--Heneage - Finch, earl of Nottingham.1

Footnote 1: For a review of the results of the 1621 and 1621 papers, see \[1\].

Of the family of Finches and their legal eminence I have already spoken.2 We have seen that the future earl of Nottingham was the grandson of Sir Moyle Finch, and the son of Lineage Finch, the recorder of London in 1621 and the Speaker in Charles I.'s first Parliament. He was born in December, 1621, and was called to the bar by the Inner Temple in 1645. He got into a good practice under the Commonwealth, and soon acquired a reputation both as a lawyer 3 and as an orator.4 At the Restoration he was made solicitor-general, and conducted the trials of the Regicides. In 1661 he was made Treasurer and Reader of his Inn, and the king was present at his Reader's feast. In 1670 he became attorney-general, and in 1673 lord keeper. In 1675 he was made lord chancellor, and in 1681 earl of Nottingham. He died in 1682.

Footnote 2: For a review of the results of the 1621 and 1621 papers, see \[1\].

Footnote 3: For a review of the results of the 1621 and 1621 papers, see \[1\].

Footnote 4: The author is grateful to the anonymous referee for the 1621 and 1621 papers.

Footnote 5: The author is grateful to the anonymous referee for the 1621 and 1621 papers.

Footnote 6: The author is grateful to the anonymous referee for the 1621 and 1621 papers.

As a politician, Finch belonged to that school of learned lawyers of the royalist type, to which his friend and protege North belonged. He believed in an extensive royal prerogative; and he was not prepared to allow a very extensive liberty to the subject, if that liberty seemed to fetter unduly the free action of the executive government. In _Jenkes' Case's_--the case which contributed materially to the passing of the Habeas Corpus Act of 1679 6--he held that the Chancery could not issue the writ in vacation.7 In the debate in the House of Commons in 1673 on the king's Declaration of Indulgence, he maintained the king's right to suspend statutes ;8 but in this very debate we can see the difficulties in which the king's supporters were placed by the conflict between their constitutional and their religious opinions. Finch was a strong churchman ; and, when he became chancellor, showed himself specially careful in the exercise of his ecclesiastical patronage.9 Though, on this occasion, he defended the king's right to issue a Declaration of Indulgence, he concluded his defence with the motion that the king should be petitioned not to exercise

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it again.1 In the controversies as to the extent of the appellate jurisdiction of the House of Lords, he maintained that the House had no right to hear appeals, either from the court of Chancery,2 or from the ecclesiastical courts;3 and that in both cases such appeals ought to be made to delegates appointed by the king. His views prevailed as to appeals from the ecclesiastical courts--Henry VIII.'s statute4 was quite clear; but not as to appeals from the court of Chancery, although it is most probable that his opinion was right.5 On the other hand, he could assert on occasion the rights and privileges of the House of Commons--in 1671 he upheld successfully their objections to the Lords' interference with their money bills;6 and he refused to seal the pardon which Danby procured to shelter himself from impeachment.7 In an age in which, only too frequently, judges displayed on the bench the prejudices of the political party which they favoured, Finch brought into politics something of the impartiality which should characterize the judge. Though he believed in the Popish Plot, he was conspicuous for his fairness when, as Lord High Steward, he presided at the trial of Lord Stafford.8 He was almost the only politician of the period who retained, throughout his career, the confidence of both king and Parliament.

Footnote 1: Dict. Nat. Biog; in 1663 he was chairman of a committee which addressed the king to withdraw the Declaration of Indulgence which he had lately issued, ibid.

Footnote 2: Vol. i 374; Hale, Jurisdiction of the House of Lords, Hargrave's Pref. clii n. $n$, citing the first chapter of Nottingham's Prolegomena; for this work see below SSs2-

## 54 Chancellors and officials 541

mastered the technical learning of the law without being mastered by it; and a statesman who was in close touch with the political conditions and the intellectual ideas of his age. Hence he was able so to mould the technical development of scattered and nebulous equitable rules and conceptions, that they gained a precise meaning and a definite place in our legal system; and so to fashion their contents, that they harmonized with these political conditions and intellectual ideas. He was always anxious that his decisions should be not only technically sound, but also that they should commend themselves to the common sense of laymen at home or abroad;1 and that, on questions of public law; they should harmonize with existing political conditions. It is because he was so keenly sensible to the necessity of thus harmonizing legal rules with the public opinion of the day, that, in so many of his decisions, familiar rules of modern law take for the first time their modern shape. This characteristic can be also illustrated from some of his rulings upon points of international or constitutional law, which came before him as chancellor. Thus, the rules which he laid down as to the effect to be given by English courts to a foreign judgment, and as to the recognition which these courts should give to rights conferred by foreign law,3 contain the germs of some of the principles of our modern private international law. Similarly, he was one of the first, if not the first of English lawyers, to recognize clearly the distinction between the rights given to a state by treaty, which fall wholly outside the sphere of municipal law and municipal courts, and the rights conferred upon individuals by municipal law, with which municipal courts can deal.3

Footnote 1: Thus, even in considering such a question as the construction of a devise, he has an eye to the opinion of the laymen-\* this kind of rigorous construction is against natural and universal justice, and would be laughed at in any other part of the world," Nurse v. Yerworth (1674) 3 Swants. at p. 62o.

Footnote 2: * It is against the law of nations not to give credit to the judgment and sentences of foreign countries, till they be reversed by the law, and according to the form, of those countries wherever they were given. For what right hand one kingdom to reverse the judgment of another? And how can we refuse to let a sentence take place till it be reversed? And what confusion would follow in Christendom, if they should serve us so abroad, and give no credit to our sentences," 2 Swants. at p. 32.

Footnote 3: Blad v. Bamfield (1674) 3 Swants. 605.

But it is in the sphere of equity that these powers were most conspicuously displayed, because equity had reached a stage of development at which it badly needed a legal statesman of this type. It is his work as a great equity judge that has given him his distinguished position in our legal history.

It is a happy accident that Lord Nottingham is the first of our great chancellors to leave some written memorials of his work. Of these I shall, in the first place, give some account. I shall

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then say something of his qualities as a judge of the court of Chancery, of the nature of his contribution to the development of the principles of equity, and of the effects of his work upon the character of the equity administered by court of Chancery.

(i) _Lord Nottingham's writings._

Lord Nottingham has left several MSS., but the only parts of these MSS, which have as yet been printed, are some selections from his reports of the cases which he decided as chancellor.1 These selected cases were printed by Swanston, to illustrate the three volumes of Chancery reports which he published between i821 and 1827; and, to any one who has read them, it is obvious that, both from the point of view of the modern law, and from the point of view of legal history, all these cases should be published. It is desirable from the point of view of the modern law, because the accounts of Lord Nottingham's decisions in the printed equity reports of the period are very inadequate;2 and, as it may be necessary, even now, to go back to some of his decisions for a ruling upon a question of equity, it is clearly advisable that we should know what his opinion really was, and what were the reasons he gave for it. It is desirable from the point of view of legal history, because the legal historian cannot otherwise come to any certain conclusions as to the character of the man or the effect of his work.

Footnote 1: The reports begin from the time when he was made lord keeper to within a month and four or five days of his death, Hargrave, Pref. to Hale's Jurisdiction of the House of Lords clii $n$. .

Footnote 2: See below 676-676 for the equity reports ; we get some of Lord Nottingham's decisions in Vernon; Nelson, Freeman, Modern, Dickens, Reports of Cases in Chancery, Cases argued and discussed in Chancery; the set of reports devoted to his decisions-- Reports tempoe Finch--is very inadequate, below 677.

The other MSS., no part of which has yet been printed, contain a treatise upon equity, and a treatise upon equity practice. Both Hargrave & and Lord Campbell 4 give us some account of a treatise upon the principles of equity styled " Prolegomena." But this treatise is not in the Hargrave MSS. ; and presumably it is in the possession of the representative of Lord Nottingham. It would

## 54 Conclusions and officials 543

Obviously be a most valuable historical document, as it would give an account of equity just at the time when it was beginning to assume its modern shape, written by the man who was mainly responsible for the shape which it was assuming. The treatise on equity practice is, Sir F. Pollock thinks, a draft prepared by the some officers of the court with a view to the issue of a revised code of rules.1 The rules are critically annotated, probably by Lord Nottingham. If published it would shed some light upon the equity practice of this period; but clearly it would not be so historically valuable as the publication of the entire MSS. of the reports and of the Prolegomena, since it would not give us what we chiefly want, namely, some exact information as to the state of the development of the substantive rules of equity.

Footnote 1: Sir F. Pollock tells me that a copy of this treatise, from the Hon. Henry.Legge's copy, is in Lincoln's Inn Library; that it is among C. P. Cooper's collections; and that a note in C. P. Cooper's hand suggests that the original is " The autograph of Ltd. Notts. which is supposed to be in the possession of the Earl of Winchelsea."

(ii) _His qualities as a judge of the court of Chancey_.

A very cursory reading of Lord Nottingham's decisions proves that he had all the qualities of a great judge. His analyses of complicated facts are masterly, both for their minuteness, and. for the clearness with which the results of the analysis are stated.2 He can enunciate a principle, and reason from it closely and logically; and this power enables him to distinguish between different principles, and to define the spheres of their application. Two very good illustrations of these qualities are to be found in the _Duke of Norfolk's Case_,3 and the case of _Cook v. Fountain_.4 In the first case he settled the true principle which should govern the law against remoteness of limitation; and, as we shall see,5 this enabled him to enunciate a rule which not only settled what limitations were illegal because they infringed the rule, but also what limitations were permissible. In the second case he analysed the various kinds of trust; and, as we shall see,6 his statements of the conditions under which the court should permit the existence of constructive trusts is in substance that adopted by our modern law. These powers enabled him to deal successfully with cases which involved the consideration of the limits of equitable interference with legal rules. A good illustration will be found in the case of _Nurse_ v. \_Yerworth_7 in which he considers the manner in which equity should treat the legal doctrine of merger, and regulate the use of attendant terms.

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He sometimes found it necessary to draw fine distinctions. He reports a case in which he, Shaftesbury, and Bridgeman had all come to somewhat different conclusions ;1 and it was cases of this kind that gave some point to Roger North's gibe that he distinguished for the sake of distinguishing.2 But, to judge from the reasoning of his own reports, it was only a second rate lawyer who could hold this opinion,3 His distinctions are fine and technical, when the facts of the case and the existing rules of law and equity made fine and technical distinctions necessary ; but they are always explained in the clearest language ; and they are justified, not merely as the logical consequences of technical principles, but as being, in the circumstances, the rules most likely to do justice to the parties.4 In fact, Nottingham, like all really great judges, never lost sight of the practical consequences of the rules which he laid down. With all his mastery of legal principle and power of analysis, he had a concrete mind. This led him to sift with the utmost patience the facts of the case before him, and, when reasoning upon the legal consequences of those facts, to keep them always in his mind.

Footnote 1: Parker v. Dee (1674) 3 Swanst. 550.

Footnote 2: " During his time the business, I cannot say the justice, of the court flourished exceedingly. For he was a formalist, and took pleasure in hearing and deciding ; and gave way to all kinds of motions the counsel would offer; supposing that if he split the hair and with his gold scales determined reasonably on one side of the motion, justice was nicely done. Not imagining what torment the people endured who were drawn through the law, and there tossed in a blanket," Lives of the North's 1259.

Footnote 3: " Thus Wharth, Tirue Brion no. 69, says, "the was a great refiner, but never made use of nice distinctions to prejudude truth."

Footnote 4: See e.g., Parker v. Dee (1678) 3 Swanst. 550.

Footnote 5: "Howard v. Duke of Norfolk (1681) 2 Swanst. at p. 4.58 ; probably the metaphor of the candles originated with Twysden, J.; it was current at that time in the professional, see Pt. II. c. t SS 6.

Footnote 6: "Maynard v. Moseley (1676) 3 Swanst, at p. 655.

Footnote 7: "Above 539 ; Pepys, Diary v. 126, wrote, after hearing Finch plead before the House of Lords," I do really think that he is truly a man of as great elequence as ever I heard, or ever hope to hear in all my life ;" cp, ibid vili 302.

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He sometimes found it necessary to draw fine distinctions. He reports a case in which he, Shaftesbury, and Bridgeman had all come to somewhat different conclusions ;1 and it was cases of this kind that gave some point to Roger North's gibe that he distinguished for the sake of distinguishing.2 But, to judge from the reasoning of his own reports, it was only a second rate lawyer who could hold this opinion,3 His distinctions are fine and technical, when the facts of the case and the existing rules of law and equity made fine and technical distinctions necessary ; but they are always explained in the clearest language ; and they are justified, not merely as the logical consequences of technical principles, but as being, in the circumstances, the rules most likely to do justice to the parties.4 In fact, Nottingham, like all really great judges, never lost sight of the practical consequences of the rules which he laid down. With all his mastery of legal principle and power of analysis, he had a concrete mind. This led him to sift with the utmost patience the facts of the case before him, and, when reasoning upon the legal consequences of those facts, to keep them always in his mind.

Footnote 1: "This instance we had in the Chancellor Nottingham, who had so great a talent in speaking and expression, that however exquisite his judgment otherwise was, it had not force to contain the other within bounds ; but a handsome turn of expression

## 1.1. **Chancellors and officials 545**

affected.${}^{1}$ Possibly he may sometimes have applied to the exposition of a technical doctrine an amount of eloquence which seemed incongruuous;${}^{2}$ but North's and Burnet's insinuations are contradicted by all the contemporary evidence,${}^{3}$ and indeed by the style in which the reports of his decisions are drawn up.

He was one of the few judges of this period whose extraordinary abilities impressed the laymen of his own day. Burnet cannot deny his eminence as a judge, though he cannot forbear to insinuate his distrust of his character and politics;${}^{4}$ but the author of the second part of Dryden's Absalom and Achitophel points to the true cause of his greatness when he emphasizes his sincerity, his uprightness, his mastery of legal principles, and his eloquence.${}^{8}$ Such a man could not but produce a great and lasting effect upon the doctrines administered by his court.

(iii) _His contribution to the development of the principles of equity._

Of Lord Nottingham's work upon the doctrines of equity I shall speak when I describe the condition of equity at the close of this period.${}^{6}$ Here it will be sufficient to enumerate some of the most important of the topics with which his decisions deal. The most important of all is the _Duke of Norfolk's Case_, in which he originated the modern rule against perpetuities.${}^{7}$ Then we have _Cook_ v. _Fountain,${}^{8}$_ in which he classified trusts; _Grey_ v. _Grey,${}^{9}$_ in which the question of whether a purchase by a father in his son's name must, in the absence of evidence, be presumed to be a trust must out whether material or not, which gave him the character of a trifier that he did not so much deserve," Lives of the North's iii r98.

${}^{1}$ History of My Own Time (Airy's Ed.) ii 43-${}^{2}$ Thus in Grey v. Grey (1677) $\\cong$ Swanst. at pp. 598-599, he says, " As land can never lineally ascend, so neither shall the trust of land lineship ascend, when it is left to the construction of law, for the reason .${}^{3}$ is not, as any Lord Coke says, from natural philosophy, _guia gravia deorsum_, but from moral philosophy _quia amor desecndit son ascendit_, and from divinity, because fathers are bound to provide for their children."

${}^{4}$ History of My Own Time (Airy's Ed.) ii 43-${}^{4}$He was a man of probity and well versed in the law: but very ill bred and both vain and hughty. . He thought he was bound to justify the court in all debates in the House of Lords, which he did with the vehinence of a pleader rather than with the solenimity of a senator. He was an incorrupt judge, and in his court could resist the strongest applications even from the king, though he did it nowhere else; " that " he did it nowhere else " is not true, as the episode of Danby's pardon shows, above 540.

${}^{8}$ At Sincere was Omri, and not only knew, But Israel's sanctions into practice drew, Our laws, that did a boundless ocean seem, Were coasted all, and fathom'd all by him, No rabbit speaks, like him, with myste sense, So just, and with such charm of eloquence."

${}^{9}$ Below 640-671.

${}^{7}$ Howard v. Duke of Norfolk (1681r) 2 Swanst. 454 ; Pt. II, c. x 8 6.

${}^{8}$ (1672) 3 Swanst. 585 ; below 643.

${}^{9}$ (1677) 2 Swanst. 594 ; below 644.

VOL VI.--35

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for the father or an advancement to the son, was settled in favour of the latter view ; _Salsbury_ v. _Bagott_,1 in which the doctrine of notice was explained ; _Coulston_ v. \_Gardiner_2 in which he discusses the effect of a sequestration upon purchasers of the property sequestered ; _Nurse_ v. _Yerworth_,3 in which the equitable treatment of the legal doctrine of merger is discussed ; _Thorborough_ v. _Baker_,4 in which it was decided that the executor, and not the heir of the mortgage, is entitled to the money secured by the mortgage. In all these cases important doctrines of modern equity appeared in their modern shape. And Lord Nottingham was conscious that he was laying down the law for the future. In _Tabor_ v. _Tabor_,5 speaking of the doctrine laid down in _Thorborough_ v. _Baker_, he says, " This has long been a controverted point, and was never fully settled till my time. . . Therefore it is not fit to look too far backwards, or to give occasion for multiplying suits ; for God forbid that men should search the register's files to find out how many decrees have been made for payment of mortgage money to the heir, and then stir up the executors or administrators to sue the heir for it again." As we shall now see, he was doing more than settle the doctrines of equity. He was also settling on a new basis the character of the equity which the court of Chancery was for the future to administer.

Footnote 1: (1677) 2 Swant. 603; below 667; (1680-r68r) 3 Swant. 37r. 3 (1674) 3 Swant. 608. 4 (1675) 3 Swant. 628. 5 (1679) 3 Swant. at p. 638. 6 (1679) 3 Swant. at p. 638. 6 (1681) 3 Ch. Cases at p. 47 ; or as it is reported in 2 Swant. at p. 457 (1 am in a very great straight by the advice which hath been given me ; for as on one side 1 Amy concur with the three Chief Justices, since, if I should err so doing, I should err very excusably, because I should errze cusp fatri bus, so on the other side, where the deree must be mine and I alone am to answer for it, I dare not (notwithstanding the reverence 1 have for their advice) pronounce a deree in any case where I cannot concur with it myself; " cp. Reports in Chancery, Pref.

(iv) _The effect of his work upon the character of the equity administered by the court of Chancery._

Throughout the seventeenth century, and especially since the Restoration, equity had been developing into a regular system. But the process had been proceeding so silently that lawyers still sometimes spoke of equity as if it depended on the conscience of the chancellor, in the same way as it depended upon his conscience in the earlier part of the sixteenth century.6 And to some extent it still did depend on his conscience. Lord Nottingham, differing in the _Duke of Norfolk's Case_ from the opinions of some of the judges, could say, " I must be saved by my own faith, and must not decree against my own conscience and reason ;" 7 and that case showed that the elasticity still retained by equity, in consequence of the survival of the older ideas, sometimes gave a great chancellor

## 54 Chancellors and officials 547

larger opportunities of moulding the rules of his court to meet modern needs, than were open to the common law judges. In Hale's opinion a much slighter technical equipment fitted a man to practise in the Chancery than was necessary to enable him to practise in the common law courts.1 -

But the conventional language used about equity was becoming more and more untrue. Lord Nottingham said of Hale that, "He did look upon equity as a part of the common law, and one of the grounds of it; and therefore as near as could, he did always reduce it to certain rules and principles, that men might study it as a science, and not think the administration of it had anything arbitrary in it."2 And he himself laid it down that, "'With such a conscience as is only _naturals et interna_, this Court has nothing to do; the conscience by which I am to proceed is merely _avilis et politica_, and tied to certain measures; and it is infinitely better for the public that a trust security or agreement, which is wholly secret, should miscarry, than that men should lose their estates by the mere fancy and imagination of a chancellor."3

Footnote 1: Runnington in his Life of Hale (prefixed to Hale's History of the Common Law p. x) tells us that Hale is reported to have said; "A little law, a good tongue, and a good memory, would fit a man for the Chancery; " and cp. below 550 n. 6, 668-67o.

Footnote 2: Burnet, Life and Death of Sir Matthew Hale 176.

Footnote 3: Cook v. Fountain (1672) 3 Swansat, at p. 6oo.

Footnote 4: On this matter see below 67o.

This change in the character of equity was a consequence of the change in the relations between law and equity which marked the latter part of the seventeenth century.4 We have seen that the chancellors had often served as chief justices in the common law courts. We shall see that now, as in the past, there was no hard and fast separation between the Chancery and the common law bars.5 Hence the ideas and modes of thought of the common law made themselves more and more felt in the court of Chancery. And, of all these ideas, the one which had the greatest effect in changing the character of equity was, as we shall see,6 the final acceptance by the Chancery of the common law view as to the binding force of precedents. It was not, indeed, till the end of the eighteenth century that the doctrines of equity became completely fixed.7 But it is in Lord Nottingham's time that the decisive step in this direction was taken; for it was he who first clearly defined the sort of conscience by which, in the future, the chancellor must guide himself; and it was the acceptance of this definition which made this development possible.

Footnote 4: Vol. iv 277; vol. v 220-224; below 550-551.

This summary of the career of Lord Nottingham, and of the various aspects of his work upon equity, shows us that he deserves

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a place by the side of such chancellors as Ellesmere and Bacon. His work was different from, and yet a continuation of theirs. They had organized and systematized the court of Chancery, its practice, and its procedure.1 He began the work of organizing and systematizing the principles upon which the court acted ; and, as a result of his work, equity began to assume its final form. His success was due partly to his own industry and genius,2 partly to the fact that the time was ripe for the beginning of such a settlement.3 The man and the opportunity happily coincided; and so, whether we look at his influence upon the principles of equity, or upon the character of equity itself, we must admit that he deserves his traditional title of the Father of Modern Equity.

Footnote 1: Vol. v 323-234, 236-238, 251-254.

We must now turn to the officials of the court of Chancery, and the Chancery Bar.

Amongst the officials of the court of Chancery there are but few notable names. The only two who call for notice are two masters of the Rolls--Sir Harbottle Grimston and Sir John Trevor.

They are curiously opposite characters. Grimston 4 belonged to the school of Parliamentary lawyers of the early part of the seventeenth century. He was a broad churchman with strong Protestant leanings,5 and a supporter of constitutional monarchy.6 His constitutional opinions were strengthened, and perhaps formed, by his marriage with the daughter of Sir George Croke, whose reports he translated and edited.7 Like many other lawyers, he favoured the Restoration ; and he served as Speaker in the Convention Parliament. In 166o he was made master of the Rolls at the age of sixty-six, and held that office with credit for twenty-three years.8 As a large number of the rules and orders of the court issued during that period bear his name as well as that of the chancellor, it is probable that succeeding chancellors found his experience useful. He was the patron and protector of Burnet,Chancellors and officials 549

whom he made the preacher at the Rolls. Charles tried to get Grimston to dismiss him ; \[1\] but it was not till quite the end of his life (Dec., 1684) that an anti-catholic sermon, which Burnet preached at Grimston's request on the fifth of November, caused the king to take matters into his own hands and order his dismissal. \[2\] Grimston died in the succeeding January.

Trevor \[3\] was a courtier, a relation of Jeffreys, and his imitator in his political immorality and capacity for abusive speech. "He was bred,"-says North, \[4\] "a sort of clerk in old Arthur Trevor's chamber--an eminent and worthy professor of the law in the Inner Temple. A gentleman that visited Mr. Arthur Trevor at his going out, observed a strange looking boy in his clerk's seat (for no person ever had a worse squint than he had) and asked, who that youth was? "A kinsman of mine," said Arthur Trevor, that I have allowed to sit here to learn the knavish part of the law." It is clear, however, that he studied the law diligently and with success. He became Reader and Treasurer of his Inn in 1674-1675; and a member of Parliament in 1679 and 1681. He soon saw that he could best make his fortune by ingratiating himself with his kinsman Jeffreys. He was the only person who defended him in the Parliament of 1681; and he was soon rewarded. He became king's counsel in 1683, Speaker of James II.'s Parliament in 1685--an office in which he did not shine \[5\]--and master of the Rolls in the same year. Some said that, if James had reigned longer, he might have supplanted Jeffreys. \[6\] He ceased to be master of the Rolls at the Revolution ; but, being a competent lawyer, \[7\] and an adept in all the arts of political corruption, he was soon after made a commissioner of the Great Seal, and Speaker. \[8\] But his skill in these arts was the cause of his retirement from political life. It was discovered that he had taken a bribe; and in 1695 he was obliged, as Speaker, to preside over the debate upon his own conduct, to put the motion that he was guilty of a high crime and misdemeanour, and to declare that "the ayes had it." \[9\] He was expelled the House, but was allowed to retain the mastership of the Rolls to which he had been reappointed in 1693--'''' to the great encouragement," says North, "of prudent bribery for ever after." But, though he still retained on the bench the brutal manners of the pre-Revolution

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days,1 there is no evidence that he was a corrupt judge, and some evidence that his decisions were approved.2 He retained his office till his death in 1717.

Footnote 1: Foss, Judges viii 7o.

Footnote 2: He was frequently, says Foss, appealed to as an authority by Iord chancellor Harcourt.

During this period a separate Chancery bar was beginning to spring up; and it is clear that the leaders made large incomes. The scale of fees seems to have been high;3 and, to some extent, the bar profited from the long arrears of causes, and the frequent re-hearings of cases, which even then were becoming scandalous.4 "I have heard," North tells us, " Sir John Churchill, a famous Chancery practiser, say, that in his walk from Lincoln's Inn down to the Temple Hall, where, in Lord Keeper Bridgman's time causes and motions out of term were heard, he had taken $\\not{\\xi}28$ with breviates, only for motions and defences for hastening and retarding hearings."5 Also it would seem that, in the somewhat unformed condition in which the principles of equity still were, the Chancery barriser did not require so much learning as the barriser who practised before the common law courts;6 and that the chancellor could materially affect, by his favour or disfavour, the reputation and the popularity of the counsel who practised before him. Roger North made his fortune at the Chancery bar while his brother was chancellor;7 and, though he held the office of queen's attorney, the disfavour of Jeffreys caused his practice almost to disappear.8 But, though a separate Chancery bar was growing up, it was never wholly separate from the common law bar. The leaders of the common law bar often appeared in Chancery, just as the chief justices sometimes became

## Literature of the Common Law 551

chancellors. But with the effect of the growth of these links between the two jurisdictions upon the relations of law and equity, I cannot deal fully, until I have described the literature and the condition of law and equity at the close of this period.

## III

The Literature of the Law

Some of the legal literature of this period has already been described--the leading works upon pleading,1 the chief abridgments of the statutes,2 the controversial books as to the relations between law and equity,3 some of the books upon practice,4 and the two reprints of the Register of Writs 5 and the Year Books 6 which have become the standard editions of those works. Here I shall deal with the rest of the printed legal literature of this period.7 In the first place, I shall say something of the literature of the common law, and in the second place of the literature of equity. Lastly I shall say something of Roger North and his literary works. These works demand and deserve special treatment in a history of English law. They are literature, and not merely legal literature; and the greater part of them is devoted to a description of the legal life of the period by an acute and critical observer who had seen it on all its sides. There are many problems in our legal history which would be elucidated if every century had produced a Roger North.

Footnote 1: Vol. v 385-387.

Footnote 2: Vol. iv 313; above 312-313.

Footnote 3: Above 516; vol. v 271.

Footnote 4: Vol. v 387-382.

Footnote 5: Vol. ii 513 n. r.; vol. v 380.

Footnote 7: There are a good many MSS, of this period still unprinted; for instance, in Hist. MSS. Com., 7th Rep. App., Pt i at p. 517 there is an account of some legal MSS, in the possession of G, H. Finch, Esq.

Footnote 8: Vol. v 358-363.

#### The Literature of the Common Law

This literature falls under two heads : (1) the Reports ; and (2) the Law Books.

1. The Reports.

In the first place, I shall, as in the preceding period,8 give in tabular form a list of the reports which contain cases decided during this period, and some of the most important facts concerning them. In the second place, I shall say something of the reporters themselves, and of the characteristics of their reports.

- \[16\] J.-P. Wang, J.-P. Wang, and J.-P. Wang, "A new approach to the determination of the $\\beta$

## Literature of the Common Law 555

Some of these reports still retain the characteristics which marked the reports of the preceding period.\[1\] But generally they tend to approach more nearly to the modern style of law reporting. On the whole they are less discursive, and attain a much higher level of accuracy. In the first place, I shall say something of the older characteristics retained by some of these reports, and, in the second place, I shall point out the respects in which they are more satisfactory than the older series.

1. _The older characteristics._ Firstly, some of these reports still continue to be quite as much books of precedents in pleading as reports. This characteristic comes out very strongly in Lutwyche's reports. They are entitled, "Un livre des Entries : contenant aussi un Report des Resolutions del Court sur diverse Exceptions Prises as Pleadings, et sur auters matters en Ley. . Et ascus Observations sur diverse des les Presidents." The third volume of Lord Raymond's reports contains the pleadings in the cases. Similarly we shall see that Saunders' reports are essentially a pleader's book ; and that this characteristic has been emphasized by the work done upon them by serjeant Williams and by subsequent editors.\[2\]

Secondly, the subject matter of some of these reports is arranged under alphabetical heads after the manner of an abridgment. Instances are Salkeld, Lutwyche, and Cases tempore Holt. It is, as we have seen, a plan which was foreshadowed in some of the very early MSS. of the Year Books.\[3\] Its recrudescence at this period is no doubt due to the fact that no first rate abridgment of the common law had been written since Rolle,\[4\] and that therefore the lawyers felt the need for books which grouped the newer cases in this convenient manner.

Thirdly, we still get some unsatisfactory reports of the old pattern.\[5\] Some of them are anonymous ; others, which are not anonymous, are inaccurate ; others, which bear well-known names, have been posthumously published from MSS., which were probably never prepared by their authors for the press. Let us take one or two examples of these defective reports.

The two series of anonymous reports are Cases tempore Holt, and the miscellaneous set of reports grouped together under the comprehensive title " Modern."

Of the first of these series, "Giles Jacob--immortalized by Pope as the 'blunderbuss of law,' and the author of the Lives and Characters of the English poets, Essays on Human Nature

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and Human Happiness, the Law Dictionary, and a vast number of other books--is reputed to be the collector."1 The preface tells us that the cases not published before had been procured at considerable expense, and that some of them had been reported by Farresley, who, as we shall now see, was one of the contributors to the Modern Reports.

Footnote 1: Wallace, the Reporters 398; see W. R. Bridgman, Legal Bibliography 165-173, for a list of his numerous works, the most famous of which was his Law Dictionary.

The history of the Modern Reports2 is very curious. The series, as will be seen from the Table, is made up of numbers of detached, and, for the most part, anonymous volumes, which, in the course of the eighteenth century, were gradually collected, edited, and published in the form in which we know them. The first volume is assigned by some to one Anthony Colquit, and by others to Joseph Washington$--a friend of Lord Somers and the author of several other works.4 The second has been assigned with some reason to the same Joseph Washington.5 The third, fourth, and fifth are anonymous ; but the fifth was edited by Nelson, who appears to claim, without warrant as it would seem, that he had also collected the other four parts.6 The sixth volume is anonymous. The seventh is collected and edited by Thomas Farresley.7 The eighth and ninth are anonymous;8 and the tenth is by Lucas--a barrister who quitted the profession of the law for that of the church.9 The eleventh is anonymous ;10 and the twelfth has been conjectured, on somewhat slender grounds, to be the work of some judge--possibly Sir Robert

## Literature of the Common Law 557

Eyre, C.J.1 It will be seen from the Table that various collected editions of these volumes were published from time to time. The standard edition is by Leach, who also edited Croke and Shower. His services were considerable. They are thus summarized by Mr. Wallace:2 "He corrected the abstracts; so defective, in some cases, as to require entirely new ones. He gave at the commencement of each term the names of the Judges, Solicitors and Attorneys-General; modernized the references, changing them from the old titles of Modern Cases in Law and Equity, Cases temp. Mac, Cases temp. Queen Anne, and Cases temp. Will. , into the more convenient references to his own series, 8th, 9th, 10th, 11th, 12th Modern. He added many notes and references to the same cases elsewhere. To the 7th, 9th, and 11th volumes he made large supplementary additions of Reports, giving in all three hundred and eighty-one MS. cases, of which he states that one hundred and thirty-seven had never before appeared in print. He separated into better and chronological divisions some of the reports in old Modern. To the first seven volumes and to the eleventh he added new indexes, and in the other volumes corrected the old ones." The only volume in which he failed to incorporate all that had appeared in previous editions is the eleventh. The Dublin edition of that volume, published in 1794, contains new cases, and improved reports of old cases not incorporated in Leach's edition,3 which are attributed to Thomas Lutwyche, the son of the judge and reporter.4 Naturally the reports contained in this miscellaneous series vary in merit. The first, second, sixth, ninth, tenth, and twelfth volumes are good. The third, fourth, fifth, and seventh are indifferent. The eighth and eleventh are bad.5

Footnote 1: Wallace, op, cit. 389; Hardwicke in Middleton v. Crofts (1736) Ridgway t. Hardwicke at p. r26, refers to a MS, report taken by Eyre, C.J.; but it is not clear that he was referring to zz Modern; and, if it was, it would not follow that Eyre, C.J., wrote the rest of the volume; Mr. Wallace seems to think that it is clear that z2 Modern was written by a judge, citing, p. r45, where a judgment is reported in the first person; but this is not conclusive, as the words are put into the mouth of Holt, C.J.

Footnote 2: Op, cit. 353.

Footnote 3: Ibid 387-388.

Footnote 4: The additions consist of a number of cases in Anne's reign, and accurately reported and improved versions of some of the older reports, ibid 387-388.

Footnote 5: Ibid 355-356.

Footnote 6: "As to the cases I chose rather to present them as rudely as taken, with the particular times of debate and such number rolls thereof as I then had; than by a more methodical digestion to obscure the truth and certainty of the matter. And on consideration of the various accidents that happen from the beginning to the end of a case

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Hence it is necessary to look into several places for cases which extend over several days. He gives us, as Mr. Wallace says, materials for a report rather than a report.1 His industry was great; but he is essentially a reporter of the old discursive type, who contents himself with merely noting down the doings of the court.2 Hence it has been said that, though inaccurate, he is "a tolerable historian of the law."3 Carter's reports were disredited by the judges of his own day. Holt disowned, and Treby questioned, their authority.4 Conberbach, a recorder of Chester and one of the judges of North Wales,5 is generally regarded as inaccurate;6 but this is probably due to the fact that his son published these reports from notes of his father's, which were never intended by their author for the press.7

Footnote 1: One, 3f6.

Footnote 2: Thus in 1 Keble 562-563 we have a report of Clarendon's speech to Sir R. Hyde when he was made chief justice of the King's Bench, and of Hyde's reply.

Footnote 3: Per Burnet, J., Batchelor v. Bleg (1772) 3 Wils, at p. 330.

Footnote 4: Wallace, op. cit. 328-329; Carter also wrote the Lex Cusumanria.

Footnote 5: See the Pref. to his reports.

Footnote 6: See Preface.

Footnote 7: See Preface.

Footnote 8: Ibid ; Wallace, op. cit. 399-400.

Footnote 9: The Preface states that no directions were left for publication, but that, as the MS. had been tent and copied, it was thought best to publish it; cp. ibid 334-335.

It is probable that other sets of reports owe their indifferent reputation to the same cause. Thus the third volume of Salkeld has never had the authority of the first two volumes, because it consists of scattered notes, made indeed by Salkeld, but not prepared by him for publication.8 It is possible that some of the cases in Vaughan were published from the loose notes of the late chief justice.9 The MS. of Freeman's reports was stolen by a servant, and published without the consent of the author's family.10 It is probable that Shower's King's Bench Reports are printed from a defective MS.11

Footnote 10: Ibid 399.

Footnote 11: Wallace, ibid at pp. 392-393, cites Umfreville who, speaking of a MS. in the Lansdown Collection, says, " This MS. greatly controls the printed Shower, and contains many good cases not printed, and seems to be his regulated collection of cases, prepared, as I conceive by himself, and metabolized from his note-book, with a view to the press. But his papers after his death, falling into the hands of a book-seller, he, _cans a lveri_, at different times printed his general collection, without due consideration had of those selected cases, which were the only cases, I conceive, Sir Bartholemew ever intended for the press."

Thus we can still trace in the reports of this period some of the same defects which are apparent in the reports of the preceding period. Moreover, there is some evidence that the operations of the licenser may occasionally have effected alterations in a report.12

## Literature of the Common Law 559

But the errors in these reports are not so serious as the errors in the older reports. In the first place, as we approach more closely to our modern law, the errors are more easily detected. In the second place, many of these reports have been edited with some care. Mr. Wallace, in a passage already cited,1 has described the services which Leach did for the series of Modern Reports. As we have seen, Leach also edited Croke's reports, and Shower's King's Bench Reports.2 Similarly Freeman's Common Law Reports were edited in 1826 by Smirke, and his Chancey Cases in 1823 by Hovendon.3 In the third place, the errors in these reports can often be corrected by the more accurate versions of the same case contained in one or more of the better reports of this period.

Footnote 1: Above 557:

Footnote 2: Wallace, op., cit. 391.

Footnote 3: Wallace, op., cit. 391.

Footnote 4: For Bridgman see above 537-538.

Footnote 5: Wallace, op., cit. 391.

Footnote 6: We willface, op., cit. 3902; it would appear that he took reports in the K.B. and Exch, in the region of Charles I., which have not been published, ibid 302; Holt, C.J., in Gidley v. Williams (1701) r Ltd. Raym. at p. 636, alludes to other MS, reports in his possession.

(ii) _The improved character of the reports of this period._

The majority of the reports of this period are free from the serious defects which marked the reports of the preceding period. They are accurate reports taken by competent, and, in many cases, distinguished men; and the same process of editing, which has improved some of the inferior reports of this period, has added very considerably to their value. It is true that some of them were not prepared by their authors for the press. But they often seem to have been printed from full and accurate notes; and, in many cases, these reports were both prepared by their authors for the press, and published by them. These characteristics of the majority of the reporters will appear from a rapid survey of the list. Firstly, I shall deal with the reporters who were judges of some one of the common law courts; secondly, with those who were not; and thirdly, with the most famous of all the reports of this period--those made by Saunders.

(1) Bridgman's reports were written by a man who had held the offices of chief baron of the Exchequer (166o), chief justice of the Common Pleas (166o), and lord keeper (1667-1672);4 and, though not published till 1823, the MS. was known to the profession, and approved by such authorities as Hale and Holt.5 Sir Thomas Raymond held the office of baron of the Exchequer in 1679, judge of the Common Pleas in 168o, and judge of the

### 560 Law-Professional Development

King's Bench in 1680-1683.1 His more famous son, Lord Raymond, held the posts of solicitor-general (1710), and attorney-general (1720), and rose to be chief justice of the King's Bench (1725-1733). Both sets of reports have always had a good reputation.2 Lord Raymond, it is true, did not profess to have taken all the reports in his collection; and he acknowledges the receipt of cases taken by many other persons.3 But no doubt he satisfied himself of their accuracy before he used them. The larger number of his reports were taken while Holt was on the bench,4 and in them will be found the best accounts of Holt's judicial achievements. Levinz was attorney-general in 1679, and was made a judge of the Common Pleas in 1681. Though inclined to royalist views, he was too timid to be altogether satisfactory to his employers. He refused to accept responsibility for the proclamation against tumultuous petitions, and named Francis North to the House of Commons as its author,5 for which Roger North blames him--perhaps too severely.6 But he was too good a lawyer to be able to please James; and he was dismissed, because his views upon the dispensing powers and the enforcement of martial law were not to the king's liking.7 He returned to the bar and his practice as a pleader, for which he was eminently well fitted.8 He left a book of entries as well as his reports; and the latter were thought so well of that they were translated by Salkeld, and published by him in French and English.9

Footnote 1: Poss, Judges vii r58-159; the only tale to his discredit is told by North, Lives i r67-168, and is to the effect that by his "passive behaviour" he allowed two women to be convicted of witchcraft on the usual ridiculous evidence.

Footnote 2: Wallace, op. cit. 304, 407-402.

Footnote 3: The title of the book is " Reports of Cases taken and collected by Lord Raymond "; and " he acknowledges cases taken by Mr. Place, Mr. Nott, Mr. Mather, Mr. Daly (or Doyle), Mr. Salkheld, Mr Jacob, Mr. Shelley, Mr. Northey, Mr. Lutwoyche, Mr. Cheshyre, Mr. Thornhill, Mr. Peire Williams, Baron Bury, and Mr. Pengelly," Wallace, op. cit. 402+03.

Footnote 4: Ibid 403.

Footnote 5: Foss, Judges vii 252.

Footnote 6: Sir Creswell Levins came not to the bar the next day (after his dismissal), which was the last day of the texture, but he came and practised the day after at Nisi Prius in Westminster Hall, and is not likely, 'tis thought, to loose by the change," Bramston's Autobiography (C.S.) 221; he notes his own dismissal in his reports, 3 Lev. 257.

## Literature of the Common Law 561

till 1873.1 Of Vaughan I have already spoken--he belonged essentially to the constitutional party.2 Sir Thomas Jones is said by North to have been a student of records.3 He was a judge of the King's Bench(1676-1683), and chief justice of the Common Pleas(1683-1686). He was also a Story ; and North characterizes him as "a very reverend and learned judge, a gentleman and impartial, but being of Welsh extraction, was apt to be warm."4 But, like many others, he could not see eye to eye with James on the question of the dispensing power, and so " he had his quietus."5 The reputation of his reports is good--Hargrave thought it worth while to translate them.6 Ventris was a judge of the Court of Common Pleas 1689-1691.7 His reports, which were published after his death, have generally been considered to be of good authority. In 1726 they had reached a fourth edition.8 Pollexfen 9 was a Whig. He argued on the constitutional side in all the great cases of the day--the trials of College, Fitz-Harris, and the Seven Bishops, the Quo Warranto proceedings against the City of London, and many others.10 It caused considerable surprise that he acted for the crown when Jeffreys went his infamous circuit in the West ; and it is probable that he only so acted because he was the leader of that circuit.11 He had his reward after the Revolution, becoming successively attorney-general (1689), and chief justice of the Common Pleas (1689-1691). Naturally North has nothing good to say either of his character12 or of his reports.13Law--Professional Development

Equally naturally he is praised by Burnet as an honest man and learned lawyer. But even Burnet characterizes his intellect as "perplexed "--a bad fault in a lawyer;1 and his reports have less value than one would expect, because they tell us very much more of the reporter's arguments than of the decision of the court. It is therefore not very surprising that they still remain in the original very imperfect edition in which they were first published.2

Footnote 1: History of My Own Time (ed. 1724) i 460.

Freeman was lord chancellor of Ireland 1707-1710. His reports were approved by judges of the eighteenth century, and were considered to be worth re-editing in the early part of the nineteenth century.3 Lutwyche4 was a judge of the Common Pleas i 686-1689; but he was one of the judges who supported James's views of his dispensing power, and so lost his place at the revolution. He continued to practice till 1704. Like Levine, he was essentially a pleader; and his reports are drawn up in the old style--the record in Latin and the report of argument and decision in French. They were valuable to the pleaders of this period; but the less necessary to them because of the merits of Saunders' reports.5 Nelson issued an edition, or rather an abridgment of them in 1718, which is quite valueless. Fortescue,6 a descendant of the famous Fortescue,7 was a baron of the Exchequer (1717-1718), a judge of the King's Bench (1718-1727), and a judge of the Common Pleas (1729-1746). In 1714 he published for the first time his ancestor's famous tract,8 De Monarchia, or "the difference between an absolute and a limited monarchy";9 and he probably had a hand in the edition of the De Laudibus which was published in 1741.10 His reports are, for the most part, short summaries of cases; and some are notes of the briefest description. In one case he gives at length one of his own arguments as counsel;11 and at the end of his book he inserts notes on the precedence of the judges,12 Aurum Reginae,12 and the "grand opinion for the prerogative concerning the royal family."14 His reports never got beyond the first edition. Comyn's

## Literature of the Common Law 563

reports are far fuller and more illuminating. Their author was baron of the Exchequer (1726-1736), judge of the Common Pleas (1736-1738), chief baron of the Exchequer (1738-1740), and the author of the famous Digest. Both the reports and the Digest were published posthumously.1 The former have been twice re-edited. The latest edition is by Rose, and was published in 1792.2

Footnote 1: Foss, Judges viii ir2-I4; Wallace, op, cit. 412.

Footnote 2: It is stated in the Preface that its publication was demanded by the legal profession.

(2) It will thus be seen that the majority of those who reported cases of this period attained to the Bench. As we shall now see, the better reporters of this period, even though they did not attain to the bench of one of the common law courts, sometimes held minor judicial posts, and had always attained some eminence in their profession. Sir Bartholomew Shower3 was recorder of London in the worst period of James II.'s reign, one of the counsel against the Seven Bishops, and, after the Revolution, one of the leaders of the Tory Party, and counsel for many of the Jacobite conspirators. Both his character and his learning have been furiously assailed by the great Whig historians of the last century ; and there is no doubt that his decision that soldiers who deserted could be capitally punished was thoroughly bad law. His reports have often been criticized ; but it is fair to remember that they were printed from a rough MS, never intended to be printed as it stood ;4 and that, even in this imperfect form, they have passed through three editions. Skinner was a judge of the court of Marshalsea. His reports are good ; but most of them had appeared before, so that they never gained much vogue.5 Carthew was a bencher of the Inner Temple ; and, in the days when readings were few and far between, gave an elementary reading at New Inn on the Statute of Uses.6 His reports have a good reputation for accuracy, and have reached a second edition.7 Perhaps the best of this series of reports is that written by Salkeld. He was chief justice of the Great Sessions for Carmarthen, Cardigan, and Pembroke, and helped to translate Levinz. His first two volumes, by which he must be judged, were published under supervision of Lord Hardwicke, and have reached a sixth edition.8

Footnote 8: Dict. Nat. Biog. 4 Above 558 n. ir.

Footnote 8: Wallace, op, cit. 394.

Footnote 9: Collect. Jundi, 1 399-the date of the reading was 1692.

Footnote 10: Wallace, op, cit. 397-398; Dict. Nat. Biog.

Footnote 11: Ibid; Wallace, op, cit. 399-400; above 558.

(3) Saunders' reports stand in a class by themselves. They are, by a long way, the most famous reports of this period ; and,

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both in matter and form, can be classed with the best of the reports of the preceding period--even with the reports of Plowden and Coke. I shall, in the first place, relate the extraordinary career of their author; and, in the second place, give some account of the history and characteristics of his reports.

Fortunately Saunders' career and character have been sketched by a contemporary who was also an artist in characterization. Roger North's account is one of his happiest efforts;1 and, as Saunders was a lawyer and a pleader, who kept aloof as far as possible from politics, it is not spoiled by political bias. I cannot do better than copy, with some rearrangement, the account which he has left us.

Footnote 1: Lives of the North's 1 293-296; and there are further particulars in his autobiography, ibid iii 90-93.

Saunders' origin and parentage were of the humblest. He was born in the parish of Barnwood near Gloucester, and, when a boy, found his way to London. There he lived the life of "'a poor beggar boy without known parents or relations."2 Somehow or other, "'he had found a way to live by subsequuismess (in Clement's Inn, as I remember) and courting the attorneys' clerks for scraps. The extraordinary observance and diligence of the boy made the society willing to do him good. He appeared very ambitious to learn to write ; and one of the attorneys got a board knocked up at a window on the top of a staircase ; and that was his desk where he sat and wrote copies of court and other hands the clerks gave him. He made himself so expert a writer that he took in business and earned some pence by hackney writing. And thus by degrees he pushed his faculties and fell to forms, and, by books that were lent him, became an exquisite entering clerk ; and by the same course of improvement with himself, an able counsel, first in special pleading then at large."3 He was admitted at the Middle Temple in 1660, and was called to the bar in 1664. Two years later he began to compile his reports ; and, after another two years, his name occurs frequently in other sets of reports.4 Nor is this surprising. His talents, his industry, and his curious education, had combined to make him the first pleader of the day. Of his skill at this art his reports, which as we shall see are wholly concerned with points of pleading, are the best evidence. "None came so near as he to be a match for Serjeant Maynard. His great dexterity was in the art of special pleading, and he would

## Literature of the common law 565

lay snares that often caught his,superiors who were not aware of his traps."1 He was equally able in maintaining his pleadings in court. "'Wit and repartee in an affected rusticity were natural to him."2 He thought clearly, and "'his judgment was profound."2 He always worked his hardest for his clients--whether his fees were single or double. He never betrayed a client to court a judge--as was too frequently the custom in those days.4 In fact, "if he had any fault it was playing tricks to serve his clients," which sometimes brought down upon his head a reprimand from the court.5 "'As to his ordinary dealing he was as honest as the driven snow was white."6 He was severely handicapped by his bodily defects and his manner of life. "'He was a fetid mass that offended his neighbours at the bar in the sharpest degree. Those whose ill fortune it was to stand near him were confessors, and, in the summer time, almost martyrs. This hateful decay of his carcase came upon him by continual sottishness; for, to say nothing of brandy, he was seldom without a pot of ale at his nose or near him. That exercise was all he used; the rest of his life was sitting at his desk or piping at home."7 When prosperity came, he never attempted to alter his mode of life. "'His home was a tailor's house in Butcher Row called his lodging, and the man's wife was his nurse or worse."8 He never moved till he was compelled to take a better house by his promotion to the post of chief justice of the King's Bench; and then the tailor and his wife moved with him. There he pursued a more luxurious, but otherwise similar manner of life, adding gardening to his musical recreations.9 We can see from this account of his manner of life that he was a genuine simple creature; and this, joined to a ready wit and

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cheerful manner, reconciled his contemporaries to the inconvenience of his neighbourhood, and made him the idol of the students.1 "He was a very Silenius to the boys, as in this place I may term the students of the law, to make them merry whenever they had a mind to it. . . I have seen him for hours and half hours together, before the court sat, stand at the bar with an audience of students over against him, putting of cases and debating so as suited their capacities and encouraged their industry. And so in the Temple, he seldom moved without a parcel of youths hanging about him, and he merry and jesting with them."2 North was perfectly right when he said of this skilful pleader and great lawyer that he was "'born but not bred a gentleman."3 He himself would have desired no higher praise.

Footnote 1: "And how touchy soever we were that stood in the very great stench of his carase at the bar, we could not be heartily angry, because he would go by the jests and droll upon us and himself that reconciled us to patience," Lives of the Norths iii 92.

Footnote 2: Ibid i ago; cp, ibid iii gr. 3 Ibid gr. 4 " In no time did he lean to faction, but did his business without offence to any. He put officious talk of government and politics with jests, and so made his wife a catholoni or shield to cover all his weak places and infirmities," ibid i ago.

Footnote 5: "When the court fell into a steady course of using the law against all kinds of offenders, this man was taken into the king's business ; and had the part of drawing and perusal of almost all indentments and informations that were then to be prosecuted, with the pleadings therein if any were special ; and had the settling of the large pleadings in the _quo warranto_ against London," Lives of the Norths i ago.

Footnote 6: "A boy to, 2IO.

Footnote 7: "A boy to, 2IO.

Footnote 8: As to this matter and North's defence of it see next note.

As we might expect, he shunned politics.4 But the government naturally made use of so eminent a pleader and so faithful an advocate. He was very frequently employed on government work at the end of Charles II.'s reign;5 and naturally he was called in to settle the pleadings in the Quo Warranto cases, and especially in the great Quo Warranto case against the City of London.6 It was a case which needed the most skilful pleading and advocacy ; and, politically, it was, with some reason, regarded as by far the most important case of the day. For success meant nothing less than the destruction of the greatest stronghold of the Whig opposition in the country.7 Charles II., with his usual acuteness, had perceived the native honesty of Saunders's disposition, and the honourable manner in which he did his duty to his clients. It occurred to him that, if he appointed him to the post of chief justice of the King's Bench, he could be trusted to be as faithful to him as a judge, as he had been when he was one of his clients at the bar. And so, in spite of the obvious irregularity of entrusting a counsel, who had got up the case for the crown, with the duty of deciding it,8 Saunders was made chief justice.9 But

## Literature of the Common Law 567

the promotion was fatal to him. The change in his habits caused his health to give way.1 "It was pity to see a mind conscious of its own strength labour under the load of a disease, and strive with an unapt instrument--a broken body--to act its part with but sorry success compared with the former passages of his life. _Quantum mutations ab i/i/o_."2 He broke down in court,3 and was on his death-bed when the judgment in the Quo Warranto Case was given. He could only send a message that his judgment was for the king.4

Footnote 1: The 2nd (May 22nd 1683), being the last sitting in Middlesex after the term, the lord chief justice Sanders, as he was sitting upon the bench and trying of causes, was taken very ill, and was forced to go off the bench," Luttrell, Diary i 259.

Footnote 4: Lives of the North s i 296.

His reports 5 have had a history which is almost as remarkable as that of their author.

Footnote 6: His reports are of course his principal work; he also wrote some observations on 22 Charles II. c. r against seditious conventies, which were published in r685.

There are many instances in which commentaries upon an ancient statute or an old leading case, have gradually become a good deal more important than the original text of the statute or case. Saunders' reports are the only one of our series of reports which have undergone this process. They were first published in r686--the records in Latin, the reports in French; and in 1722 an English edition of the reports appeared. In 1799 appeared the third edition--the first edited by serjeant Williams. He translated and annotated the Latin pleadings, and made each case a peg, on which he hung an elaborate disquisition upon the rule or rules of pleading laid down in it. In this way he made "Williams Saunders" a book in which the pleaders of his day could find all the authorities upon the technical rules of their art. His edition was successful, and he published a fourth edition in r809. In r824 a fifth edition, edited by his son Edward Vaughan Williams and Mr. Justice Patterson, added a second layer of notes. A sixth edition by Edward Vaughan'Williams appeared in 1845; and the incorporation in it of the effects of the great legislative reforms, which had taken place since 1824, added still further to the dimensions of the commentary. The reforms of the latter half of

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the nineteenth century, which destroyed the old system of pleading, necessarily destroyed much of the usefulness of the original text. It came to have about as much or as little bearing upon the law of pleading actually used, as the Year Books had upon the law of Saunders' own day. But the notes had kept pace with the times. Hence in the next edition, published by Sir Edward Vaughan Williams in 1871, the notes did what they had long been threatening to do--they swallowed up the text. The greater part of the text was omitted as obsolete, and the cases were only printed in an abridged form.1

Footnote 1: See Wallace, op. cit. 342-343; and the Prefaces to the third and subsequent editions of the reports.

The remarkable career of this book is due, firstly, to the qualities of the book itself; and, secondly, to the circumstances of the time at which it was published, and the manner of the development of the common law during the succeeding century and a half.

Firstly, as we might expect, the reports partake of the transition character of the period. In many respects they resemble the reports of the preceding period. The pleadings are set out at length in the original Latin, and the report itself is in French. The French, too, is remarkably good. It is much more like the French of the Year Books of the reigns of Edward IV. or Henry VII. than the doggerel that passed for French, which is to be found in many of the reports of the late sixteenth and early seventeenth centuries.2 Then, too, the reporter sometimes permits his personality to appear, He recalls the events in court on the day he argued the case which he is reporting. Thus he tells us that, while arguing strenuously, " Twysden Justice interrupted," and said to him, " what makes you labour so? The Court is of your opinion and the matter clear."3 He criticises the rulings of the court, and the conduct of the judges. Thus, in one case, he blames the court for having been led away by his argument.4 In another case, which was compromised, he tells us that, in his opinion, the opposite party had the better case.6 His skill in pleading sometimes led to differences of opinion with judges who wished to do substantial justice. An action had been brought on a covenant for non-repair of a house. As a matter of fact the house had been repaired before action brought--but by the plaintiff. The pleadings had ended in a demurrer. Saunders had given four reasons for his contention that, on the pleadings as they

## Literature of the common law 569

stood, the fact that the plaintiff had done the repairs did not properly appear, and could not be regarded. "But Hale Chief Justice would not hear those reasons; but the other side alleging that the plaintiff himself had repaired the dwelling-house, and could have no proportion of the expenses of it, he said that the plaintiff having showed the aforesaid cause of his demurrer specially, and the defendant refusing to amend his plea as he ought before the demurrer was joined, but had pleaded so on purpose to trick the plaintiff, he gave judgment for the plaintiff immediately (_quasi_ in a passion); . but in my opinion, without any consideration of the matter in law, whether the plea was sufficient or not."1 In another case he tells us that he was reprehended by the court for pleading so subtly that justice was defeated; but defends himself by showing that, if all the facts were known, the justice of the case was the contrary to what the court supposed, and that his subtle plea really made for justice, as was proved by subsequent proceedings on the equity side of the Exchequer.2 In most respects, however, these reports are very good specimens of reports of a more modern type. The facts are stated, and the arguments are reported, clearly and tersely; the point at issue is put with a conciseness and a precision of which only a special pleader, who was a master of his subject, was capable; and apposite authorities only are cited. They are much less discusse than Coke or Flowden's reports, and confine themselves rigidly to the point or points at issue. This is due to what perhaps is their most striking characteristic-- their exclusive concern with the law of pleading. The cases reported travel over most of the branches of the common law, but all of them are regarded from this one point of view--a fact which is sufficiently explained by the history of the career of their author.

Footnote 1: Walton v. Waterhouse (1672) z Saunders 422; North tells us, Lives of the Norths i 295, that, " Hale could not bear his irregularity of life; and for that, and suspicion of his tricks, used to bear hard upon him in the court'-- but, " no ill usage from the bench was too hard for his hold of business being such as scarce any could do but himself."

Secondly, the circumstances of the time at which they were published helped to give the reports of the most eminent pleader of the day a unique position; and the course of the development of the law in the succeeding century gave them their unique history.

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At all periods points of pleading have bulked large in the reports. We have seen that the reporters, who made the earliest Year Books, wrote rather to instruct pleaders than to fix points of substantive law ;1 and throughout our legal history the needs of the pleaders have been regarded as of paramount importance. Good pleading, Coke said, is the "touchstone of the true sense of the law."2 But, in the days when there were many different forms of action, each subject to its peculiar rules, the peculiar rules as to the management of these distinct forms were as important as the rules of pleading.3 Moreover, in the days of oral pleading, the rules were in practice less strict, because there were more opportunities for amendment before a fatal mistake had been made.4 But, when Saunders wrote, many of those different forms of action were practically obsolete. The adaptation of Trespass and its offshoots to new needs were causing these actions on the case to cover the whole field of the common law.5 Less attention need therefore be paid to the intricacies of process ; and the new system of written pleadings6 demanded that more attention should be paid to the rules of pleading.

Footnote 1: Vol. ii 538, 554-555.

Footnote 2: Vol. ii 520-521; vol. iii 623-627.

Footnote 3: Vol. ii 536; vol. iii 626-627; vol. v 416-418; below 625-627; "the variety of these kinds of actions are almost as infinite as they are numerous, daily increasing and continually receiving new forms, according to the growing decetis and fraudulent inventions of wicked men," the Compleat Solicier (t63) 191.

Footnote 4: Vol. ii 648-653; below 660, 633; Pt. II. c. 7 SS 2.

Footnote 5: Vol. ii 648-653.

Footnote 6: Vol. v 355-337; below 600; App. IV, (1).

Under the new system, which had superseded the old in the course of the sixteenth century,7 the pleadings did not come before the court till they were complete. There was therefore much less chance of avoiding a fatal error before it was too late. At the same time the numerous cases decided upon points of pleading had tended to increase the minuteness, strictness, and precision of the rules of pleading. Practising lawyers, therefore, were laying an increasing stress upon the importance of these rules--a fact which is illustrated by the very large number of books of all kinds which were being published upon this topic at this period.8 And these lawyers had some reason; for this growth in minuteness and strictness and precision, made the manner in which the issue was reached and formulated of more importance than the substantial merits of the case. It made it more and more possible for a skillful pleader to snatch a decision, in spite of a total absence of any substantial merit ; and, conversely, it made it quite impossible to win the strongest case unless it was properly placed before the court.9 Saunders' reports

## Literature of the Common Law 571

summed up the ascertained rules of this increasingly exact science. They contained a selection of leading cases in which the modern rules were clearly, concisely, and authoritatively laid down. In fact, these reports did for the modern rules of pleading what Coke's reports did for many branches of the common law1--they provided a selection of authorities behind which it was rarely necessary to go.

Footnote 1: Vol. v. 490. ${}^{,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,,, ,

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arguments. It was true that the greater part of the authorities then used in the courts were written in Latin and French;1 so that he could contend that "a man may be a wrangler but never a lawyer without the knowledge of the authentic books of the law in their genuine language."2 It was true that the abbreviated French used by the lawyers was a serviceable and accurate shorthand;3 and it was true that the precedents of pleading, and technical rules and doctrines of pleading, could be most easily expressed in the original tongues.4 But, as the seventeenth century progressed, these arguments were gradually ceasing to carry so much weight. New branches of law were arising which were governed by principles not so easily expressed in French. For instance, we get the rise of many new branches of commercial law; and many new developments in the land law had been introduced by equity, the language of which had always been English. Then, too, an increasing number of the older authorities were being translated into English, so that a lawyer who knew only English might yet make himself fairly competent. It is clear, if we look only at the list of reports, that the lawyers were demanding English books. The majority of them were originally written in English; and, even if they had been originally written in French, they were translated, either before being published or shortly afterwards.

Footnote 1: " Even the modern Reports mostly are in French, and, as I said, all the ancient as well as divers authentic tracts, as Fitzhebert's Natura Brevium, Staumford's Pleas of the Crown, Crompton's jurisdiction of Courts, etc., are only to be had in French," Discourse on the Study of the Law 1z.

Footnote 2: Ib I3; vol. ii 481; cp. Lives of the Norths i 398 for a tale illustrating the importance attached by Francis North to this study.

Footnote 3: " It is a language so religiously embraced by all good lawyers that it is the custom for such to write their notes, or reports taken at the bar, as the shortest, and it is in reality the most apt way for expressing the law," Discourse on the Study of the Law 13; Lives of the Norths i 29.

Footnote 4: " All moots and exercises, may, many practices of the law, must be in French, at the bar of the courts of justice; as when Assizes or Appeals are arraigned, the Array, that is, Pannels of Juries challenged or excepted to, it must be done in French; so Counts, Bars, and such transactions as reach no farther than the Bench and Counsel, with the officers, and not to the Country ..., are to be done in Law French; also replications at the Common Pleas Bar in real actions," Discourse on the Study of the Law 13; cp. Foss, Judges will 77-78 for the objection raised by eminent lawyers to the Act of 4 George IL, c. 26, which provided that the proceedings of the courts should be in English.

The second of these new features is the first appearance of reports of cases decided by the House of Lords. The result of the constitutional controversies of this period had been to settle the position of the House of Lords as the final court of appeal from courts of law and equity.5 Naturally practitioners wanted some information as to its decisions. The first person who ventured to publish this information was Bartholomew Shower,

## Literature of the Common Law 578

the author of a series of King's Bench Reports.1 His reports of " Cases in Parliament resolved and adjudged upon petitions and writs of error" were published anonymously in 1698. For the most part they are simply accounts of the arguments used on each side, and a bare statement of the result of the appeal. In the preface to the book this new departure in law reporting is justified, upon the grounds that the cases reported were interesting to the lawyers and statesmen, and instructive to the nobility before whom these cases came.2 But it soon appeared that the nobility did not appreciate this desire to instruct them. The House voted their publication a breach of privilege; 3 and:the maintenance of this attitude seems to have stopped the publication of such reports during the greater part of the eighteenth century.4 No more reports of House of Lords Cases appeared till 1784; 5 and no more cases of this period appeared till Clles, in 1789, collected and edited from different sources a selection of cases of the last years of the seventeenth and the early years of the eighteenth centuries.6

Footnote 1: Above 563:

Footnote 2: "It may be hoped that these reports may probably convince the young nobles of this realm, and all who are employed in and about their education, that some general knowledge of the laws of England, and some acquaintance with history and other learning, cannot be unworthy the ambition of every nobleman's son, who has any hopes to sit as judge in that august assembly."

Footnote 3: In 1698-1696 Lutrill notes that " The lord chancellor reprimanded the book seller that printed the book of cases adjudged by the lords in parliament, as being imperfectly taken; and ordered that no person presume to print or publish the proceedings of their house," Diary is 488.

Footnote 4: Campbell, Chancellos iv i36; Campbell says, ibid n., that " Lord Hardwicke, so recently as the year 1762, threatened to put this rule in force against Sir Michael Foster, who, in his admirable work on crown law, introduced some cases decided by the House of Lords," citing Life of Sir M. Foster 45.

- Brown, Reports of Cases upon Appeals and Writs of Error determined in the High Court of Parliament; see Wallace, op. cit. 413-414.

- Cases heard and determined upon Appeals and Writs of Error from 1697-173. The Preface tells us that some of the cases came from a MS. of Sir Lucius O'Brien of the Irish Bar, which contained also cases reported by Shower and Brown; others from a printed collection of W. Harwood. " The volume," says Clles, " fills up in a very great measure the chasm between Shower and Brown. It however appears from the journals, and from our books of reports, that a great number of other cases have received the final judgment of the Lords in that period, which have not yet been published."

${}^{7}$ Vol. v 276-278.

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describing them I must give some account of the rest of the legal literature of the common law.

(2) The Law Books.

If we look at the law books of this period as a whole they can be described as considerable in quantity but very ordinary in quality. But to this description two exceptions must be made. Hale produced works upon criminal law, constitutional law and legal history which have become legal classes; and Dugdale produced a work upon the origins of the Inns of Court and the legal profession, a chronological list of the series of judges, law officers, and king's serjeants, and some notes upon legal history and legal literature, which are still valuable. I shall therefore deal in the first place with these two men and their books, and, in the second place, with the rest of the legal literature of the period. Of the two Hale is by far the more important. Indeed his peculiar combination of qualities makes him one of the most interesting characters to be found in our legal history.

Hale1 (1609-1676) was the son of a barrier who abandoned the law because he had scruples as to the morality of the practice of "giving colour" in pleading; and his son inherited something of his moral sensitiveness. He was educated in Puritan principles; but, as sometimes happens in such cases, the severity of these principles caused a reaction. At Oxford he developed, like many others both before and since his time, a taste for amusements and athletics. But, unlike most others, these tastes were short-lived. Serjeant Glanville persuaded him to study the law; and he is said to have taken to the study with so much ardour that he read sixteen hours a day. He was a pupil of Nov;2 and he soon became acquainted with Selden, who encouraged him to pursue other studies besides law.3 In fact he not only studied subjects

## Literature of the Common Law 575

akin to law, such as Roman law and English history, but also mathematics, natural science, and philosophy ; and the depth and sincerity of his religious beliefs led him also to the study of theology.1 He soon made a name for himself at the bar. He probably advised Strafford on the occasion of his impeachment ; and he certainly advised Bramston, Laud, and other persons accused by the Long Parliament. It is said that he advised Charles I. to plead to the jurisdiction of the High Court of Justice.2 However, in 1649 he took the engagement to be faithful to the Commonwealth; and in 1654, by the advice of his royalist friends,3 he accepted the offer of judge of the Common Pleas, and sat for the Parliament which was summoned in that year. He continued to hold his place as judge till the death of Cromwell, and won universal prase by his demeanour.4 He refused to take a new commission from Richard Cromwell, and was very active in forwarding the Restoration. But his wise advice, that a treaty should be made with the king on the lines of the Treaty of Newport, was rejected.5 He was on the commission for the trial of the Regicides (1660); and in the same year was made chief baron of the Exchequer. When the City was rebuilt after the fire of London, he acted on the commission which sat to adjudicate upon the rights of the landlords and tenants of the properties which had been burnt.6 In 1671 he was made chief justice of the King's Bench, a position which he filled to the satisfaction of both king and people. In 1676 failing health compelled him to insist upon resigning. The king accepted his resignation with great unwillingness ;7 and he continued his salary during his life, though Hale asked him only to give it during pleasure.8 Hale died on Christmas day of the same year ; and, on some dispute appearing likely to

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arise as to whether the last quarterly instalment of his salary was payable, Charles settled the matter,"by paying it at once to his executor.1

Footnote 1: Burnet, op. cit. ro4.

It may at first sight seem strange that a man of Hale's puritanically sensitive conscience.9 and genuine piety should have been able to attract the admiration of Charles. It is not strange if we look a little more closely at his character. The almost unanimous opinion of his contemporaries makes it quite clear that his deep religious convictions had so directed his great natural abilities, that they had produced a really beautiful character, comparable, among English judges, only to that of Sir Thomas More. His abilities excited universal admiration, and the manner in which he used them disarmed all envy. Even when he was at the bar "one good word of his was of more advantage to a young man than all the favour of the court could be."3 Fortunately Burnet has done for him something of the service that Roper did for More. Burnet's life enables us to realize the extraordinary combination of moral qualities, which made him universally beloved in his lifetime, with intellectual qualities, which enabled him to write the books that have left an enduring mark upon our legal history.

Footnote 1: A. J. M. 1998, 1999

## Literature of the common law 577

to anger by the tricks played by a man like Saunders.1 He would often persuade parties to allow him to arbitrate instead of going to law, and would never take any money for such services, because he was acting as judge; and if people suggested that he in consequence lost much time, he said, "can I spend my time better than to make people friends?"2 If he saw clearly that a cause was unjust he refused to meddle with it.3 " If a young gentleman happened to be retain'd to argue a point in law, where he was on the contrary side, he would very often mend the objections when he came to repeat them, and always commend the gentleman if there was room for it."4

Footnote 1: Above 569.

Footnote 3: Ibid r43.

Footnote 4: Ibid r8o-r81.

Footnote 5: Baxter, Additional Notes on the Life and Death of Sir M. Hale, Pref., " I wondered when he told me how small his estate was, after such ways of getting as were before him."

It is thus obvious that mere pecuniary gain was the last thing he thought of; and he left but a small estate, considering the practice which he had had at the bar, and the high judicial posts which he had filled.6 This was partly due to his extraordinary generosity. Burnet tells us 6 that " he laid aside the tenth penny of all he got for the poor, and took great care to be informed of proper objects for his charities; and after he was a judge many of the perquisities of his place, as his dividend of the Rule and Box money, was sent by him to the Jayls to discharge poor prisoners, who never knew from whose hands the relief came." In fact he was charitable in the widest sense of the word--"I never knew any man," says Baxter, " more free from speaking evil of others behind their backs."7 He knew how to suppress irrelevant speech in his court;8 but listened with the most careful attention to all that the parties could urge, and was always ready to be corrected if, in his summing up, he omitted or misstated anything.9 In an age which was to experience such judges as Scroggs and Jeffreys, he was distinguished for his humanity, and scrupulous fairness to prisoners.10 A contemporary diarist, cited by Foss, tells a characteristic tale of how, with some difficulty, he persuaded a jury to acquit a starving man who had taken a loaf to save his life.11

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His ''mercifulness extended even to his beasts.''1 ''He was scarce ever seen more angry than with one of his servants for neglecting a bird that he kept, so that it died for want of food.''2 He was sincerely religious, and he thought and wrote much upon theological questions; but there was no sign of intolerance in his disposition. He befriended royalists in the days of the Commonwealth,''3 and protestant dissenters in the days of Charles II.;'4 he tried in vain to secure from Parliament a larger measure of toleration for the latter;'5 and some of the most broadminded and learned churchmen of the day were his friends.''6

Footnote 1: I am grateful to the anonymous referee for his comments on the manuscript.

Footnote 2: I am grateful to the anonymous referee for his comments on the manuscript.

Footnote 3: I am grateful to the anonymous referee for his comments on the manuscript.

It is true that he had the defects of some of his qualities. He himself found that his fixed rule, to take no brief in a cause which appeared unjust, led him unwittingly to do injustice, if he acted upon it without very careful enquiry into all the facts and circumstances of each case.''7 His charity, in spite of remonstrances, was apt to be indiscriminate;'8 and he sometimes pushed his fear of influencing his judgment by taking gifts to absurd lengths.''9 His thread of ostentation and vanity led him to go so shabbily clothed that even Baxter demonstrated with him.''10 It is probable, too, that his sincere religious beliefs led him to see no harm in the act which posterity, and more especially the unhistorically minded Whig historians of the last century,11 have most condemned--the sentencing of two witches to death, at a time when the rationalizing and sceptical spirit of the day was beginning to cause the bad example; the sheriff replied that he could not do enough for Hale, as he had saved his life; and it turned out that the sheriff was the starving man, who had since come into a large estate.

Footnote 3: I am grateful to the anonymous referee for his comments on the manuscript.

Footnote 4: I am grateful to the anonymous referee for his comments on the manuscript.

Footnote 5: I am grateful to the anonymous referee for his comments on the manuscript.

Footnote 6: I am grateful to the anonymous referee for his comments on the manuscript.

Footnote 7: ''He abandoned much of the scrupulosity he had about causes that appeared at first view unjust, upon this occasion: there were two causes brought to him, which by the ignorance of the party or their attorney, were so ill represented to him, that they seemed to be very bad, but he enquiring more narrowly into them, found they were really very good and just," ibid 143-144.

Footnote 8: Ibid 149-150.

Footnote 9: Thus the insisted on paying for some venison sent to him as a present while on circuit, though he was informed that this was a mere customary courtesy, ibid 6z ; and, ''after he was made a judge, he would needs pay more for every purchase he made than it was worth ... and when some represented to him that he made ill bargains he said, it became judges to pay more for what they bought, than the true value; that those with whom they dealt might not think they had any right to their favour, by having sold things to them at an easie rate,'' ibid 153.

Footnote 10: Baxter, op. cit. Pref.--'His habit was so coarse and plain that I, who am thought to be guilty of a culpable neglect therein, have been bold to desire him to lay by some things that seemed too money.''11 See Campbell, Lives of the Chief Justices i 56r-567.

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His ''mercifulness extended even to his beasts.''1 ''He was scarce ever seen more angry than with one of his servants for neglecting a bird that he kept, so that it died for want of food.''11 He was sincerely religious, and he thought and wrote much upon theological questions; but there was no sign of intolerance in his disposition. He befriended royalists in the days of the Commonwealth,''3 and protestant dissenters in the days of Charles II.;'4 he tried in vain to secure from Parliament a larger measure of toleration for the latter;'5 and some of the most broadminded and learned churchmen of the day were his friends.''6

Footnote 11: I am grateful to the anonymous referee for his comments on the manuscript.

Footnote 12: I am grateful to the anonymous referee for his comments on the manuscript.

It is true that he had the defects of some of his qualities. He himself found that his fixed rule, to take no brief in a cause which appeared unjust, led him unwittingly to do injustice, if he acted upon it without very careful enquiry into all the facts and circumstances of each case.''7 His charity, in spite of remonstrances, was apt to be indiscriminate;'8 and he sometimes pushed his fear of influencing his judgment by taking gifts to absurd lengths.''9 His thread of ostentation and vanity led him to go so shabbily clothed that even Baxter demonstrated with him.''10 It is probable, too, that his sincere religious beliefs led him to see no harm in the act which posterity, and more especially the unhistorically minded Whig historians of the last century,11 have most condemned--the sentencing of two witches to death, at a time when the rationalizing and sceptical spirit of the day was beginning to cause the

## Literature of the Common Law 579

more enlightened to doubt the existence of witchcraft.1 But we should remember that the sentence was in accordance with the law, and that the existence of witches was vouched for by the Bible. Therefore a man of Hale's mind and temper could hardly be expected to doubt.2 And these are, after all, small matters. When all deductions have been made, there is no doubt that Hale was a man of a really saintly character, who, by his genuine goodness, attracted the affection of all those with whom he came into merely passing contact. Burnet3 tells us that he had seen him often, but had had no further communication with him; and, "in my life I never saw so much gravity tempered with that sweetness, and set off with so much vivacity as appeared in his looks and behaviour, which disposed me to a veneration for him, which I never had for any with whom I was not acquainted." He was, says Baxter, a man " who would not have done an unjust act for any worldly price or motive."4

Footnote 1: North acted on the modern view, Lives of the Norths i 166-169; but Raymond allowed witches to be convicted, ibid iii x30, i x31; no doubt it was a difficult position for judges; as North says, ibid i x66, " It is seldom that a poor old wretch is brought to trial upon that account, but there is, at the heels of her, a popular rage that does little less than demand her to be put to death; and, if the judge is so clear and open as to declare against that impious vulgar opinion. , the country men (the triers) cry, this judge hath no religion, for he cloth not believe witches; and so, to show they have some, hang the poor wretches."

Footnote 2: In his summing up, 6 S.T. 7oo he said, " that there were such creatures as witches he made no doubt at all; for first the scriptures had affirmed so much. Secondly, the wisdom of all nations had provided laws against such persons, which is an argument of their confidence of such a crime. And such hath been the judgment of this kingdom, as appears by that Act of Parliament which hath provided punishments proportionable to the quality of the offences."

Footnote 3: Of cit. ref.

Footnote 4: C. Lives of the Norths i 79-97; iii 93-roz; cp. Hargrave's remarks about North's account of Hale in his Pref. to the Law Tracts.

Footnote 5: And I must not part without subjoining my solem protestation, that nothing is here set down for any such invidious purposes but merely for the sake of truth; first, in general, for all truth is profitable; and secondly, in particular, for justice to the character I write of (i.e. his brother) against whom never anything was urged so peremporoly as the authority of Hales, as if one must of necessity be in the wrong because another was presumed to be in the right," Lives, i go i further, ibid iii roz, he spitefully and quite untruly says of Burnet that the " wanted both information and understanding " for the writing of his life.

The only discordant note in the view held of Hale's character by his contemporaries is struck by Roger North,5 and by his own confession his testimony is biased.6 Even he can only ridicule his scientific studies; and attribute to him a liking for flattery, a shortness of temper, and a greater readiness to accept presents in his declining years, for which there is no other evidence whatever.7 And, in spite of all that he can allege, he is forced to praise him

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as a judge and as a man, and to confess that he could only wish that he might be happy enough to live to see such another.1

Footnote 1: Thus he says, Lives ! So, "He became the cushion exceedingly well; his manner of hearing patient, his directions pertinent, and his discourses copious and, although he hesitated often, fluent. His stop for a word by the produce always paid for the delay; and on some occasions he would utter sentences heroic; "" in the main he was a most excellent person, and in the way of English justice an incomparable magistrate. So I leave the discourse of this great man, wishing I may be so happy to live to see such another, with all his faults," ibid iii ior-roz.

Lord chancellor Finch could hold him up as an example to his successor; 2Charles II. pasted from him with real regret; 3 and yet North thought it necessary, in order to justify his brother's political career, to pick what holes he could in his character. This fact tells us much of the growth of bitterness between political parties at the end of Charles II.'s reign. Hale was a consummate constitutional lawyer who was, even by North's own confession, quite ready to give the crown its due, and equally ready (too ready North thought) to uphold the constitutional rights of the people.4 His character had made him universally respected; and his legal pre-eminence was so universally admitted that his rulings were generally accepted as final.5 If Charles had entrusted himself to the guidance of men like Hale, there was, as we have seen, at least a possibility that the constitutional law of the state might have been gradually adapted to the constitutional situation as it existed after the Restoration.6

Footnote 4: "I have heard him (Lord Keeper Guildford) say that, while Hales was chief baron of the Exchequer, by means of his great learning even against his inclination, he did the crown more justice in that court than any others in his place had done with all their good will and less knowledge. But his lordship knew also his foible which was leaning towards the popular; yet when he knew the law was for the king (as well he might being acquainted with all the records of the court to which men of the law are commonly strangers), he failed not to judge accordingly," Lives I ?9, so; cp. ibid iii ror. If Pepys had realized the character of Hale, he would hardly have taken the trouble to interview him upon a case of false imprisonment pending in his court, in which Pepys was officially implicated, Diary, Nov. 25, t662, and references in the index to Wheatley's Ed. _sub rev. Field_.

Footnote 5: Below $8r.

Footnote 6: For Hale's general constitutional position see above 204-205.

Footnote 7: Op. cit. Pref.

Hale's unique legal reputation was thus due partly to his character, which led him to apply his great talents to anything he undertook with all his strength--" all his hours," says Baxter," " were precious to him; " partly to his opportunities and environment, of which he took the fullest advantage. His character

## Literature of the common law 581

and talents made him easily the greatest English lawyer of his day. His association with the school of historical jurists, of whom Selden was the chief,1 made him, with the exception of Francis Bacon, the most scientific jurist that England had yet seen. At the same time his active life as a barrister and a judge, during the troubled period of the Rebellion and the Commonwealth, made him an acute political thinker. Let us look at him under these three aspects.

Footnote 1: Vol. v 407-41z.

(i) He was a consummate master of English law on all sides. As a barrister no one was his superior--"he might have had what practice he pleased."2 Nor is this surprising if we consider the thoroughness of his legal studies. Like most of the barristers of that date, he compiled a large commonplace book which is, with many of his other manuscripts, in Lincoln's Inn library.3 This book was once borrowed by a judge of the King's Bench, when Hale had become chief baron; and "the judge having perused it said, that though it was composed by him so early, he did not think that any lawyer in England could do it better, except he himself would again set about it."4 Of his excellence as a judge contemporary testimony is unanimous. An eminent lawyer--probably Lord Nottingham5--who knew him well, sent Burnet an account of his character as a man, as a lawyer, and a judge.6 He says, "He hath sat as a judge in all the courts of law, and in two of them as Chief, but still wherever he sat, all business of consequence followed him, and no man was content to sit down by the judgment of any other court, till the case were brought before him, to see whether he were of the same mind. And his opinion being once known, men did readily acquiesce in it." As chief baron of the Exchequer he had an equitable jurisdiction ;7 and as a judge in equity, his authority was equally great. He was often called in to advise the chancellor; and his thorough mastery both of common law and equity, his power of clear and logical thought, and his absolute impartiality,8 made him an ideal assistant in an age in which it was still necessary for equity to mitigate the strictness of the law, in an age in which the principles of equity

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were still very far from fixed. "As great a lawyer as he was, he would never suffer the strictness of law to prevail against conscience, as great a chancellor as he was, he would make use of all the niceties and subtleties in law, when it tended to support right and equity." Indeed he has some claims to be considered the teacher of Lord Nottingham, the father of our modern system of equity.1 He gave reasoned and critical judgments, reviewing the practice of the court, and commenting upon its expediency ; "and from his observations and discourses, the Chancery hath taken occasion to establish many of those rules by which it governs itself at this day." Even North was obliged to admit that the court of King's Bench was under his presidency a veritable school of law.2

Footnote 1: Above 545-548.

Footnote 2: Discourse on the Study of the Laws 32-33, cited above 496-497.

(ii) There is no doubt that Hale's undisputed pre-eminence as a lawyer was due to the fact that he had made himself something very much more than a mere common lawyer--something more even than a mere English lawyer. The wide range of his studies and interests had made him a scientific jurist.

The impulse to give a larger range to his studies came from Selden, and from his intercourse with the members of his school.3 And those studies were of wide range--" he used to say no man could be absolutely a master in any profession, without having some skill in other sciences."4 Thus, as we have seen,5 he studied mathematics, natural science, medicine, ancient history, and especially philosophy, and divinity--"he got," says Baxter,6 "all new or old books of philosophy that he could meet with as eagerly as if he had been a boy at the University." Though these studies no doubt broadened his outlook, it cannot be said that he attained any particular eminence in them.7 Studies which were much more important, because they bore directly on the study of the law, were his researches into Roman law and English legal and constitutional history.

Footnote 3: Above 574. 3: Above 574.

## Literature of the Common Law 583

and therefore \_lamented much that it was so little studied in England."\_1

Footnote 1: Op. cit. 24.

In his methods of studying legal and constitutional history he showed himself a true disciple of Selden. He spent, as he says in his will, forty years in gathering a magnificent collection of manuscripts bearing upon many different sides of legal and constitutional history ; and he left many MSS. treatises upon _topics connected therewith in a more or less complete condition.2_ These treatises show that he knew well how to make use of the store of learning which he had gathered to explain the law of his own day. By his will he prohibited the publication of any of those treatises, other than those which he had expressly permitted to be published in his lifetime ; and, in the part of his will in which he left the largest part of his manuscripts to Lincoln's Inn, he specially enjoined the Inn not to print them. They were, he truly said, " a treasure that are not fit for every man's \_view, nor is every man capable of making use of them." Roger North, with some reason, criticized this injunction,3 which Burnet endeavours to explain _by saying that he feared that they might, if published, be mutilated by the censor.4_ This is an explanation which _might account for his injunction against publishing his own treatises. It can hardly explain his injunction against publishing the records which he had collected. Probably we may see in both these injunctions a proof of the scholarly spirit in which he pursued his studies in law and history. He was content to gather his authorities at the fountain-head, and assimilate them, before he used them as the foundation of his books. He did not, like Coke,5 at once insert bodily into his _books any piece of undigested information from the records which he had acquired. He did not wish any books to appear under his name until they had received his final revision._ " Such works," he truly said, " rarely come out to the due advantage of the author.6_ As for his collection of records, he wished them to be used only by men who, like himself, were intent on extracting the truth from them, and not by men who would search them to prove some particular thesis which they were

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interested in maintaining.1 He could not but know that this was the use which, then and earlier, had been made of records; and he did not wish his collection to be used in that spirit and with that object. He wished them to be used in the true historical spirit which illuminated his own works. His prohibition against publication was perhaps in that age the best way to effect this result.

Footnote 1: "It would have nothing of these books printed, but entirely preserved together for the use of the industrious learned members of that Society."

Hale's studies in Roman law gave him a grasp of the rationale of legal principles; and his studies in legal history gave him a thorough knowledge of the evolution of the rules of English law. As we have seen, they made him so thoroughly a master of the technicalities of the common law, and they gave him so just a perception of the equitable restrictions that should be placed upon those technicalities, that he could on occasion use them for the purpose of securing justice.2 It is obvious that a man who had so thoroughly mastered the law would be capable, not only of expounding and applying its rules, but also of viewing it as a whole, of setting it out in an orderly form, and of criticizing its rules. Burnet tells us3 that some persons once said to him that "they looked on the common law as a study that could not be brought into a scheme, nor formed into a rational science, by reason of the indigestedness of it, and the multiplicity of the cases in it." But Hale replied that "he was not of their mind, and so, quickly after, he drew with his own hand a scheme of the whole order and parts of it in a large sheet of paper, to the great satisfaction of those to whom he sent it."4

Footnote 2: Above 58a.

Footnote 3: At the same time he was fully conscious of the difficulty of producing a systematic code: "Some pressed him to compile a body of the English law. ... But he said, as it was a great and noble design, which would be of vast advantage to the nation; so it was too much for a private man to undertake; it was not to be entered upon, but by the command of a prince, and with the communicated endeavours of some of the most eminent of the profession," Burnet, op, cit. 121.

Hale's attainments as a jurist thus explain the reasons for the excellencies of his legal treatises. They also explain why the most important of these treatises deal with the two topics of public law for which a sound knowledge of legal history was absolutely essential -- constitutional law and criminal law; and why they include also works of an analytical kind, designed to show the relations of different parts of English law. It is fortunate for succeeding generations of English lawyers and historians that his injunction against printing his treatises has been to some extent disregarded. Many, as we shall see, have been printed; and naturally they cover a wide field. But in fairness to their author we must remember that no one of them was completely and finally revised by him.

## Literature of the Common Law 585

(iii) The fact that Hale's active life as a barrister and a judge had made him an acute political thinker is most strikingly illustrated by the second part of his reply to Hobbes' Dialogue of the Common Law. We have seen that it contains an able analysis of the political and constitutional theory of the English state in the latter half of the seventeenth century, which was substantially accepted as true by all parties after the Revolution.1 The same qualities of accurate and impartial analysis, which enabled him to write this tract, are also displayed in his tract on "The Amendment or Alteration of the Lawes."2 His experiences of the attempted law reforms of the Commonwealth had led him to reflect on the shortcomings of English law. We shall see that these experiences suggested some very practical proposals for their reform.

Footnote 1: Above 204-207, 258-262. ${}^{\\lx@sectionsign}$ Below 592:594.

Hale's printed works fall into five main groups; (1) One purely historical work--the History of the Common Law; (2) his works on constitutional or public law; (3) his works on the criminal law; (4) his scientific and critical works; and (5) his works on the civil part of the law.

(1) Hale's one purely historical work is his History of the Common Law. It was first published anonymously in 1713, and reprinted with Hale's name attached in 1716. A third edition appeared in 1739. The fourth to the sixth editions were edited by serjeant Runnington (1779-1820), who prefixed a life of Hale, and added very extensive notes. This work--the first history of the common law ever written--is an able sketch, but only a sketch; and it is clear that the author did not mean it to be published. It consists of twelve chapters, the titles of which indicate the contents of the book, and illustrate its fragmentary character.8 But, in spite of its fragmentary character, it has very considerable merits. It gives us a clear statement of the development of the most important external features of the common law--the difference between common and statute law; the relation of the common law

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to other bodies of law recognized by it, such as ecclesiastical law, the law merchant, maritime law, and martial law; the characteristics and advantages of a trial by jury; the main features of the system of pleading recognized by the common law at different periods; the relations of English Law to Welsh, Irish, and Scotch law, and to the law observed in the Channel Islands and the Isle of Man. The author throughout bases his text on the best authorities accessible to him. That its weakest part is that which deals with the pre-Conquest period is no fault of his. From the Conquest onwards he shows that he is a master of the principal original authorities and authors. In his chapters on Norman law, and in other parts of his book,1 he shows acquaintance with foreign bodies of law; and a capacity to compare the development of English with foreign law, without which, as Maitland has said, no complete or critical legal history is possible. No doubt current controversies have caused him to give an unduly long space to a question which, in our eyes, is a purely academic discussion--the question in what sense, if at all, William I. could be said to be a conqueror.2 Then too there is a very meagre account of the history of legal doctrine--the history of the law of inheritance is the only body of legal doctrine adequately treated; and the treatment of the period from Edward II. to his own day is so sketchy that it is hardly even an outline. The book is really a series of essays, some of which are united to others by a chronological thread. But, when all deductions have been made, it is, in my opinion, the ablest introductory sketch of a history of English law that appeared till the publication of Pollock and Maitland's volumes in 1895.

Footnote 1: E.g., at various points in chapters ix-xii.

My reasons for an opinion, which is more favourable to Hale's work than that expressed by Maitland,3 are as follows: in the first place, Hale shows a very wide knowledge of both the legal and the historical literature of his subject--a good deal wider knowledge than that shown by Reeves, who confines himself for the most part to the strictly legal authorities. In the second place, his wide reading gave him a sense of historical perspective which enables him to map out the important epochs, and to stress the important topics and tendencies in those epochs. In the third place, his complete mastery of the law of his own day enables him to detect the remote origins of the important doctrines of

## Literature of the Common Law 587

later law, to give to the history of those doctrines their due weight, and thus, even when dealing with remote periods, to avoid unprofitable antiquarianism. Sketch as it is, Hale's history is a living history because the author had a clear view of the whole of its course. Maitland once said that in the hands of a master there might be made of the history of English law one of the great books of the world.1 To my mind Hale's sketch shows that, if he had devoted to it all his powers, he might have produced such a book.2 And this opinion is, it seems to me, borne out by the evidence of his other works. Thus, the scantiness of his history in its later periods is supplemented by his preface to Rolle's Abridgment. That preface is not, it is true, purely historical--it contains a good account of some of the salient characteristics of the English law of Hale's day; but its main value is historical.3 We shall see that it gives us a valuable summary of the leading differences between the common law of Hale's own day and that of the Year Books--of the differences, that is, between the modern and the medieval common law.4 But the strongest evidence in favour of this view is afforded by the characteristics of his works on constitutional and public law, and on criminal law.

Footnote 1: Collected Works u59.

Footnote 2: Maitland said, ibid 5, "No man of his age was better qualified or better equipped for the task than Sir Matthew Hale; none had a wider or deeper knowledge of the materials; he was perhaps the last great English lawyer who habitually studied records; he studied them on in hand and to good purpose. Add to this that, besides being the most eminent lawyer and judge of his time, he was a student of general history, found relaxation in the pages of Hoveden and Matthew Paris, read Roman law, did not desplise continental literature, felt an impulse towards scientific arrangement, took wide and liberal views of the object and method of law."

Footnote 3: As North, Lives u1 rot says, it is " most worth reading because it gives a history of the changes of the law."

Footnote 4: Below 6za-6za66.

Footnote 5: "The jurisdiction of the Lords' House, or Parliament, considered according to Antitent Records."

Footnote 6: Before the Restoration Hale had written three tracts bearing on the subject--(r) Inception de Jurbius Coronae, or De Jure Regio--an outline written soon after r64r, in which he maintains that the jurisdiction of the House of Lords was exercised as part of the consilium ordinarium, and that therefore the judges and other members of the consilium had a voice, Hargrave, Pref. csci-ccxi ; (a) Preparatory Notes Touching the

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points his views have not prevailed--e.g. his view of the inability of the House to hear appeals from the courts of equity,1 and his view that its jurisdiction to hear cases in error depends rather upon a commission from the king than upon inherent right.4 But generally he lays down the law which has prevailed. And it is interesting to note that he made a suggestion as to the exercise by the House of its jurisdiction through a judicial committee, which substantially represents the modern practice, though the result has been obtained by a road different from that which he proposed.3 The whole book is a striking testimony to Hale's mastery of records, to his impartiality, and to his statesmanlike qualities.

Footnote 1: The author is grateful to the anonymous referee for his comments.

Another considerable treatise, which touches constitutional law at many points, was published in the Hargrave Law Tracts. It is in three parts. The first part deals with the right of the king and private persons to the rivers and foreshore, the second with sea ports, and the third and longest with the custom of goods imported and exported.4 It is the first systematic treatise upon all these topics ; and Hale was especially well fitted to deal with them, by reason both of his mastery of records, and of his practical knowledge of the law upon these topics, which he had acquired as chief baron of the Exchequer. The third part of this treatise is especially interesting. The question of the king's imposing power had not long been settled. An impartial account of this branch of the law, by a man who had lived during the Rights of the Crown, in which a similar view is taken, ibid cexvii-ccxiii; (3) Pragogativa Regis, which, in so far as it relates to the House of Lords, is a transcript of the foregoing, ibid cexvii-ccxivi. After the Restoration lie wrote (x) A Discourse or History Concerning the Power of jurisdiction in the King's Council and in Parliament, in eleven chapters, mainly concerned with the claims of the Lords to exercise original jurisdiction, ibid cexv-ccxivi; (2) Preparatory Notes Touching Parliamentary Proceedings, in twenty-seven chapters, mainly concerned with the question of the appellate jurisdiction from Chancey, ibid cexvii-ccxivii; (3) This Treatise; Hargrave says, at p. cexvii, that "it is probably Hale's latest performance on the jurisdiction exercised by the lords in parliament"; for, in chap. 28, he cites a King's Bench case of 1673; "under the title there is written by Lord Hale, _this book is perfected, but I have not yet revised it after it's writeint_, _M.H._"

1 jurisdiction of the Lords' House 201; below 670.

2 Ibid x45, 147, 753-154; vol.1370-371.

3 " That the appointment of tvers of petitions, which is always done by the king the first day of a session, may not be a piece only of name and formality, as it is now used ; but that a select number of the most judicious lords spiritual and temporal, and that not too excessive a number, together with the judges, be appointed, and these to be commissioned under the great seal for that purpose, to whom as occasion requires petitions for reversals of decreres may be referred. And the like commission for examining of judgments in writs of error;" ibid zoz.

4 "A treatise in three parts : Pars Prima-- De Juri Maris et Brachiorum ejusdem. Pars Secunda--De Portibus Maris. Pars Tertia--Concerning the custom of goods imported and exported," Hargrave Law Tracts t-24S; the first part contains seven chapters, the second twelve, and the third twenty-eight; the MS, is not in Hale's hand, but Hargrave had no doubt as to the authorship--in fact, the internal evidence of style and treatment is conclusive.

## Literature of the Common Law 589

time when the right to impose customs duties had been one of the most fiercely controverted political questions of the day, is invaluable.1 In his short work on "Sheriffs' Accounts,"2 written for the Lord Treasurer and the chancellor of the Exchequer, he deals with another branch of the revenue. It shows Hale's mastery of the early history of the Exchequer, and of the history and seventeenth century practice of the financial relations of the sheriffs and the crown; and it contains some valuable suggestions for improvements in the existing practice.

Footnote 1: Above 42:48.

Another paper published in the Hargrave Law Tracts deals with the rivalry of the courts of King's Bench and Common Pleas.3 It gives us an interesting account of the process, organization, and jurisdiction of the King's Bench, and of the devices used by the Common Pleas to compete with the King's Bench. It concludes with making five proposals for a settlement of the question of jurisdiction similar to those contained in Chapter VIII.4 of the tract on the Amendment of the laws. In his " Discourse touching Provision for the Poor" he makes some interesting suggestions as to the reforms needed in the law and administration of poor relief.5 Some of his suggestions as to the organization of several parishes for the erection of a workhouse, where the poor could be profitably employed, anticipate the measures carried out at the beginning of the nineteenth century.

Footnote 3: A discourse concerning the Courts of King's Bench and Common Pleas, Hargrave Law Tracts 359-370; on this subject see vol. i 200, 221-222.

Footnote 4: At pp. 372-376.

Footnote 5: A Discourse touching Provision for the Poor; as Miss Leonard says, Early History of Poor Relief 276; the tract shows that the administration of the poor law had decayed owing to the absence of the strong control exercised by the Council in the earlier part of the century; see above 349-351.

Footnote 6: See Dict. Nat. Biog. for an account of this MS, which is in Lincoln's Inn Library; and for Hale's views on this matter see above 205 and vol. v App. III.

All these treatises illustrate Hale's wide historical and legal knowledge, and his political wisdom. It is to be regretted that his " Preparatory Notes touching the Rights of the Crown" are still in MS.6 It is a work on the various branches of the prerogative; and it is obvious that a work on such a subject, written at this period by a man of Hale's talents and impartiality, possesses a very great historical importance for the constitutional history of this and later periods.

Footnote 6: See Dict. Nat. Biog. for an account of this MS, which is in Lincoln's Inn Library; and for Hale's views on this matter see above 205 and vol. v App. III.

(3) Hale's most important work upon criminal law is his unfinished " History of the Pleas of the Crown." The author had designed a work in three books. The subject of the first was to be capital offences--treasons and felonies; and it was to be divided into two parts--the kinds of treasons and felonies, and the method of procedure upon them. The subject of the second was to

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be non-capital crimes ; and of the third, franchises and liberties. Only the first book was completed. But it was left in the most perfect state of any of his works. The whole had been transcribed ; and a large part of it had received the author's final revision.1 In 168o the House of Commons ordered it to be printed ; but the first edition was not published till 1736. It was edited with some care by Sollom Emlyn. The subject had been carefully studied by Hale all through his professional career ; and we shall see that he had summarized it at an earlier period.2 This book, so far as it extends, gives a complete presentment of this branch of the law, both in its development and in its condition at Hale's own time. It was a branch of the law which could not then be adequately described without a very complete knowledge of the history of the law ; and, partly because it contained very ancient ideas and rules, partly because it had been added to, and in many details modified, by a variety of statutes, it greatly needed systematic treatment. Coke,3 Staunford,4 and Pulton,4 had summarized it, in a somewhat unsystematic form. Hale, because he was a competent historian, jurist, and lawyer, did the work which they endeavoured to do infinitely better.5 Ever since its first publication it has been regarded as a book of the highest authority.

Footnote 1: See Emlyn's Pref. ; and the Pref. to Foster's Discourse of Crown Law.

Footnote 2: Below 59.

Footnote 3: Vol. v 469-470.

Footnote 4: Ibid 392-393.

Footnote 5: Stephen, H.C.L., ii zzs, " It is not only of the highest authority, but shows a depth of thought and a comprehensiveness of design which puts it in quite a different category from Coke's Institutes. It is written on an excellent plan, and is far more of a treatise and far less of an index or mere work of practice than any book on the subject known to me."

Footnote \*: The Analysis of the Civil Part of the Law, Pref. ; it was first published in 1773, with the Hale's History of the Common Law.

(4) All these works show that Hale was essentially a scientific lawyer. He could view English law as a whole and appreciate the relationship of its various parts. These qualities are perhaps most strikingly brought out in the group of scientific and critical works which we must now consider.

(i) Hale was able to suggest a methodical arrangement of English law, which was at once scientific and practical. He himself said very truly that, "for the most part the most methodical distributors of any science rarely appear subtle or acute in the sciences themselves, because, while they principally study the former, they are less studious and advertent of the latter."6 English lawyers had been and are still too much engaged in acquiring the mastery of their science to care much about method. Hale, being a master of English law and a student of other sciences, was able to

## Literature of the Common Law 591

"Analysis of the Civil Part of the Law," though only a preliminary sketch, was said by Blackstone to be the most scientific and comprehensive that had yet appeared ; and he adopted it as the basis of the arrangement of his Commentaries.1 Hale seems to have originated the idea--which he had no doubt adapted from the Institutes--of grouping the law round the rights of persons, the rights of things, wrongs, and remedies. Whatever may be alleged against the scientific character of this arrangement, it does introduce into the treatment of the law some method ; and Blackstone proved that it was a method round which the law of his day could be grouped. We should always remember that a method must accommodate itself to the material ; and that, if the material is not wholly logical, too logical a method will merely introduce an additional element of confusion. The Analysis dealt only with the civil part of the law. In his "Summary of the Pleas of the Crown" 2 Hale attempted to methodize the criminal law. The first edition of this work was printed from a surreptitious and very faulty copy;3 and the book itself was written while he was quite a young man, and for his own use only. He made, it is said, occasional additions to it, and carried it with him on circuit.4 It is not surprising, therefore, to find that it is not always accurate.5 But it was a useful summary and it passed through seven editions.6 Historically it is interesting as the first attempt to introduce some order into this branch of the law. Offences are divided into (1) those immediately against God, such as heresy and witcheraft ; and (2) those immediately against man. Of the latter some are capital, and some are not. Capital offences are either treasons or felonies. Felonies are offences either against the life of a man, against his goods, or against his habitation. Noncapital offences are either at common law--such as various kinds of misprison, bribery, extortion, breach of peace, deceit, nuisance ; or they are created by statute. Having thus discussed the substantive part of the law he deals with the adjective part, and describes the competence of the courts having criminal jurisdiction, modes of trial, process, pleas, trial, judgment, and execution. We have seen that his " History of the Pleas of the Crown " shows that he was as capable of producing a finished picture as a preliminary study.

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(ii) A man who could introduce some order and method into the unmethodical mass of the rules and principles of English law, who could produce a readable sketch of English legal history, necessarily had a considerable critical faculty. We can see specimens of it in the manner in which, in his "History of the Common Law," he deals with the history of pleading and evidence.1 And, indeed, a man, who had taken some part in the government under the Commonwealth, must have been well acquainted with the many far-reaching projects of law reform then put forward.2 Thus we are not surprised to find that Hale wrote a tract upon "The Amendment or Alteration of the Lawes."3 This tract was printed by Hargrave in his collection of Law Tracts. It is incomplete; but the introductory part, in which the author lays down the general principles which should guide the law reformer, is complete; and it is safe to say that no wiser tract on this topic has ever been written in the whole course of the history of English law.

Footnote 1: Thus he gives at pp. 213-214 (6th ed.) a useful account of the main defects of the law of pleading as it existed at his day; at p. 345 he makes some very true remarks upon the superiority of the oral evidence at common law to the written evidence in courts of equity--4 that it is _one tenus_, personally, and not in writing; wherein often time, yea too often, a crafty clerk, commissioner or examiner, will make a witness speak what he truly never meant by dressing of it up in his own terms, phrases, and expressions. Whereas on the other hand, many times the very _manner_ of delivering testimony, will give a probable indication, whether the witness speaks truly or falsely. And by this means also he has an opportunity to correct, amend or explain his testimony, upon further questioning with him; which he can never have, after a deposition is set down in writing."

Footnote 2: Above 412-423.

Footnote 3: Considerations touching the Amendment or Alteration of Lawes, Harg, Law Tracts 253-259, as to the MS. see Introd. note at p. 249--it appears that it was copied from Hale's original MS. in 1690 by Sir R. Southwell; it is divided into eight chapters. 44 4

## Literature of the Common Law 598

the inferior world--to wit, Time."1 He knew, too, the weaknesses of uninformed agitators for change. Sometimes, as he truly says, they are inspired by a personal grievance. Sometimes they think the law is foolish merely because they do not undersand it2 --"and upon this account they will become Solons . . and frame a law that they themselves may know and approve because they make it; and, as the Israelites in the wilderness, they would have Gods that they may see."3 Sometimes they press some new expedient which they have invented, without any consideration of the resulting inconveniences.4 On the other hand, he could appreciate the faults of an unintelligent conservatism, which leads men, "especially those that are aged and have been long educated in the profession and practice of the law," to attach a superstitious veneration to old forms.5 His knowledge of history taught him that law must change with the times. " The matter changeth the custom; the contracts the commerce; the dispositions educations tempers of men and societies change in a long tract of time; and so must their laws in some measure be changed, or they will not be usefull for their state and condition."6 He has some useful suggestions as to the advantages of the co-operation of the judges with Parliament in affecting law reforms, which, if they had been followed, might, in our own days, have saved suitors much in costs.7

Footnote 1: At p. 254:

Footnote 2: At p. 257:

Footnote 3: At p. 267.

Footnote 4: At p. 268.

Footnote 5: At p. 269.

Footnote 6: At pp. 269.

Footnote 7: At When such bills are twice read and committed and have been once or twice particularly debated at the committee, it may be very fit to call the judges to a solemn debate at the committee of the house of commons, where they may give the reasons, why they go so far, and why no further; and that their opinions be asked touching any alterations or amendments offered, and the reasons in relation thereinto; for it many times falls out, that a very good and profitable bill is suddenly spoiled with a word inserted or a word exchanged, which would be prevented, if the controversy of the bill were first heard to it. . . When the bill comes to the lords and is twice read and committed, it were fit, that all the judges attend the committee for the reasons above given. Bills thus prepared and hampered would have fewer flaws, and necessity of supplemental or explanatory laws, than faith of late times happened," p. 273:

Footnote

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the state of the statute book, and the literature of the law.1 If, however, the tract advocating the enrolling and registering of all conveyances of lands, which is printed in the Somers' Tracts, is by Hale, we have the substance of some of his proposals for the amendment of the land law.2 But, though this tract on the amendment of the laws is imperfect, it is perhaps the most striking testimony to the almost prophetic character of the criticism which a combined knowledge of legal history, legal theory, and modern law can inspire. If in the chapter on the "over tenacious holding of laws," we are quick to see the more in the eye of the eighteenth century, in the chapter on the "over hastiness and forwardness to alteration in laws," we ought not to refuse to see the beam in the eye of the period in which we now live.

Footnote 1: See p. 275, where the plan of the work is sketched out; Hargrave says that there is another MS. of the tract, " which seems to have been his first essay on the subject," in which there is a chapter on the books of the statute and common law with a view to the creation of a digest.

Footnote 2: Somers' Tracts xi Sr-90; it is a careful discussion stating clearly the advantages, disadvantages, and difficulties; it may well have been written by Hale, who seems to have been very uncertain as to the expediency of the project; North, Lives i i${}\_{42}$; says, " Hale had turned that matter in his thoughts, and composed a treatise not so much against the thing (for he wishes it could be) as against the manner of establishing of it; of which he is not satisfied, but fears more holes may be made than mended by it." This is a good description of the point of view taken in this tract.

(5) Hale's published writings upon the civil as opposed to the criminal part of the law are not nearly so important. They are confined to two sets of annotations upon two classical treatises. The first and most important set of these notes is upon Fitzherbert's new Natura Brevium.3 It was published in 1730; and to Hale's commentary was added some references to Year Books and reports collected by Sir Wadham Windham, a judge of the court of King's Bench who was Hale's contemporary, and, like him, of the school of Selden.4 The second set of these notes is upon Coke's First Institute, which, by divers mesne conveyances, passed to Butler, and was by him incorporated with his and Hargrave's classical edition of that work.5

Footnote 3: See the Pref. xxxiv; the notes are chiefly on the first rz6 SSs.

This review of Hale's life and works shows that he was the greatest common lawyer who had arisen since Coke; and, that, though his influence has not been so great as that of Coke, he was as a lawyer, Coke's superior. The position which they respectively occupy in our legal history is as different as their character and mental outlook. Coke, as we have seen, stands midway between the medie

## Literature of the Common Law 595

modern common lawyers. Coke was essentially a fighter both in the legal and political arena : when Hale was on the bench the legal contests about the jurisdiction of courts had been settled, and there was a lull in political strife. He was what Coke never was--a true historian ; and, like Bacon, he had studied other things besides law, and other bodies of law besides the English common law. He possessed what Coke never possessed, a judicial impartiality, even when he was dealing with matters of public law.

Both his writings and his decisions exhibit an essentially modern point of view. This was due mainly to two causes. Firstly, it was due to the spirit of the age. The Great Rebellion had produced the same effect upon the mental outlook of the common lawyers as it had produced upon the constitution--it had introduced into both the modern atmosphere and the modern conditions.1 It is true that the political controversies of the period immediately succeeding Hale's death prevented these influences from exercising their full effect. But we shall see that, in spite of these retarding influences, modern doctrines, especially upon points of private law, stated in a modern way, were beginning to appear in the reports; and, that after the Revolution this tendency was much accentuated. Secondly, it was due to Hale's first-hand knowledge of legal and constitutional history. This knowledge enabled him to attain an impartiality which was impossible to most lawyers who had lived through the Great Rebellion and the Revolution. The post-Revolution lawyers naturally adopted without criticism the legal and historical views upon controverted points of public law which the Revolution had caused to prevail. It is not till almost our own day that, our growing appreciation of the historical value of the public records, has enabled us to reach anything like the standard of knowledge which Hale applied to the elucidation of the public law of the seventeenth century; and that the cessation of the practical influence of seventeenth century politics has enabled us to attain anything like his standard of impartiality. Hence until quite modern times, it has been impossible to appreciate fully his true greatness as an historian and a lawyer.

Footnote 1: Above 16r.162, 203-208; below 640.

Dugdale 2 (1605-1686), too, belonged to that band of students of records and historical scholars which flourished in the first half of the seventeenth century.3 His father studied the civil law at St. John's College, Oxford, and became bursar and steward of theLaw--professional Development

College. He intended that his son should become an English lawyer. But the son preferred historical research. He attracted the notice of Spelman and Hatton; and they got him his first post in the Heralds' College. There he prospered, and became eventually Garter king-of-arms. His chief works--the Antiquities of Warwickshire and the Monasticon1--are historical rather than legal. But the understanding and the use of the records upon which both these works were based involved a knowledge of early legal history. For his own purposes Dugdale had gradually put together much information upon certain topics connected with legal history. Those who had seen his notes persuaded him to publish them;2 and the two works (usually bound together) which resulted, have given him his place in English legal history. The two works are the "Origines Juridicales," and the "Chronica Series."

Footnote 1: For this Dodsworth had collected much of the material of vols i and ii; but Dugdale edited them and published them ; the third volume was wholly Dugdale's.

Footnote 2: " And, having in my long searches, for the better informing myself in the Historical knowledge of our Laws; Courts of Justice; Conveyance of Estates; Manner and Forms of Tryall; Punishment in Cases Criminall, etc. made some short observations, which I never deemed fit for, or worthy of being made publique to the world ; much less intended for that purpose; yet such hath been the importunity of some, to whose judgments I rather submit, than my own; as that, I have also adroutured them to the press, as an introduction to these Tables; for which I crave pardon from the skillfull in this profession: Hoping, that as I meddle not therein further than an historian, my forwardness in so doing, may the more tolerably be dispensed with," Orig. Jurid. Pref.

The Origines Juridicales3 give us, in somewhat scattered form, some information about the origins of English law and English legal institutions, and a catalogue of law writers and law books. The book is chiefly valuable for the information which it gives us as to the history of the legal profession and of the Inns of Court. Dugdale tells us much of the forms and ceremonies of the legal life of the past and of his own day--of the creation of serjeants; of the origins, officers, social customs, educational and disciplinary arrangements, of the Inns of Court and Chancery; of the manner in which the Inns were controlled by the judges and the government. Till the publication by the Inns of Court of their records in the latter half of the last century, his book was the chief authority for the history of the Inns; and it is by no means superseded even at the present day. Because he carries down his history to his own day, and can speak of matters which he has himself observed, his book has, for the seventeenth century, a value somewhat like that which Fortescue's De Laudibus has for the fifteenth century.4

## Literature of the Common Law 597

The Chronica Series 1 is a chronological table of the chancellors, treasurers, judges, law officers, and king's serjeants, from the Conquest till his own day. It is constructed from the records to which reference is always made; and the references are usually correct. It is a very valuable piece of work, which, for all time, will be useful to legal historians.

Footnote 1: "A Chronologie of the Lord Chancellors and Keopers of the Great Seal, Lord Treasurers, Justices Itinerant, Justices of the King's Bench and Common Pleas, Barons of the Exchequer, Masters of the Rolls, King's Attorneys and Sollicitors, and Serjeants at law."

Hale was essentially a lawyer. Dugdale was essentially an historian. But Hale has illuminated many dark places in our constitutional history, just as Dugdale has helped to elucidate the history of some of our legal institutions. Both worthily carried on the work of the school which had, in the earlier part of the century, formed a partnership between law and history from which both had profited. They perpetuated its traditions in an age in which legal literature had begun to decline somewhat from the standards which the founders of that school had set. That this decline in quality, though not in quantity, had begun, we shall see when we have examined the different types of law books , published during this period.

But for the edition of the Term Catalogues 2 edited by Edward Arber, it would be very difficult to get any clear ideas as to the number and kind of law books published during this period. These Catalogues are an almost complete series from 1668-1709; 3 and they give us a unique view of the important books published in all subjects during this period. We can see from these Catalogues that the number of law books published was large. Indeed it would seem that, at the end of the century, the booksellers found it difficult to get rid of their surplus stock, since, in 1698, they advertised a lottery (in which there were to be no blanks) to dispose of about 2,900 volumes of Reports, books of Entries, and other valuable law books.4 We can see too that the publication of law books--like the publication of

### Law--Professional Development

books upon other special topics--was, for the most part, in the hands of a syndicate of publishers.1

Footnote 1: "There never was, in those times, an entire trade edition of a book ; but a certain set of the publishing bookellers would combine together into a syndicate for the production of a particular work ; and such syndicates usually worked together in sets, and produced books of the same general type and character. Thus, a law syndicate would produce law books ; a nonconformist syndicate, nonconformist books ; and the like," Term Catalogues iii Pref. ix.

It would be as impossible as it is unnecessary to describe, or even to enumerate, this mass of literature. The course which I propose to adopt is as follows :-In order to give some idea of the mass of legal literature which issued from the press, and the comparative popularity of the legal topics dealt with by it, I have extracted from the Term Catalogues and printed in the Appendix 2 a list of the books issued during this period grouped under certain heads. These heads are (i) Practice and Pleading ; (ii) Students' Books ; (iii) Conveyancing and the Land Law ; (iv) Criminal Law ; (v) Commercial Law ; (vi) Special Branches of the Common Law ; (vii) Ecclesiastical Law ; (viii) Local Government ; (ix) Central Government ; (x) Political Tracts ; (xi) Legal History ; (xii) General. I shall take each of these heads separately and say something about the character of the books contained in it. It is obviously unnecessary to notice each book individually. Many have been already described ; many are almost identical specimens of a particular type of book ; and the descriptions of most of them in the Catalogues are so full that no other is necessary. Thus the enumeration of the books in the Appendix, and the account of the general character of each of these heads in the text, will give us a fairly accurate idea of the general characteristics of the legal literature of the period. We shall see that, these characteristics will tell us something of the main features of the development of the law.

(i) _Practice and Pleading_ --A reference to the Appendix will show that the books on this topic are far more numerous than those upon any other topic. We have seen that the old book of practice--the Natura Brevium--was still found useful ;3 and that the Register with Theloall's Digest was reprinted.4 But it is clear that books of the newer type, introduced by the Attorney's Academy,5 were becoming very much more popular. Of these books we get a very great variety. Some, e.g. Style's "Practical Register,"6 group the rules of practice, together with a little information as to the substantive law, under alphabetical heads. Others, e.g. the "Compleat Solicitor,"7 or the "Practick part of

## Literature of the Common Law 599

the law,"1 describe the various courts of common law and equity at Westminster, and give an account of the practice of each separately. The former work gives also some information as to the practice of the Marshalsea and Palace Court; and the latter tells us something of the practice of the court of Admiralty, and the ecclesiastical courts. Both books deal with the practice of the various courts held in the city of London; and state the fees payable on taking different steps in an action or suit. Others deal only with the practice of some particular court. Thus we have treatises upon the courts in Wales,2 the court of Common Pleas,3 the courts held by judges of assize,4 and the court of Exchequer.5 Others deal with a particular topic connected with procedure. Thus we have treatises devoted to judicial writs,6 to trials by jury,7 to personal actions and writs of error,8 to the Filacer's office,9 to fines, recoveries, statutes, judgments, and bargains and sales.10 The last-mentioned book will remind us that some aspects of procedure were closely connected with some aspects of conveyancing. But books on practice or pleading in the common law courts, and books on conveyancing, are never, so far as I have observed, combined. We shall see that this combination was more usual in the case of the books which dealt with Chancery procedure and pleading.11

Footnote 1: Term Catalogues i 24, 434, ii 531; App. IV., (t) xix; a third edition was issued in 1702.

Footnote 2: Practica Walliae, or the proceedings in the Great Sessions of Wales, Term Catalogues, i 124; App. IV. (t) xii.

Footnote 3: The Course and Practice of the Court of Common Pleas at Westminster, ibid i 1z4; App. IV. (t) xii.

Footnote 4: The Office of the Clerk of Assize, ibid i 242, ii 406; App. iv (t) xix.

Footnote 5: A Compendium of the several Branches of Practice in the Court of Exchequer at Westminster, ibid ii 231, 274; App. IV. (t) xii.

Footnote 6: Officina Brevium, Select and Approved Forms of Judicial Writs ibid i 359; App. IV. (t) xxixi.

Footnote 7: Tryals per Pais, ibid i 498; App. IV. (t) xxx.

Footnote 8: The Common Law Epitomized, ibid i 338; App. IV. (t) xxx.

Footnote 9: Jus Filizari, ibid ii 72; App. IV. (t) xxxvii.

Footnote 10: The Practical Counsellor in the Law, ibid i 58-59; App. IV. (t) iv,

Footnote 11: Below 616;

Footnote 12: Term Catalogues i 165; App. IV (t) xv.,

Footnote 13: Ibid ii 15; App. IV. (t) xxxi.

Footnote 14: Ibid iii 54; App. IV. (t) xix.

Footnote 15: Ibid ii 55; App. IV. (t) xxxi.

Footnote 16: The Practical Counsellor in the Law, ibid i 58-59; App. IV. (t) xvi.

Footnote 17: Ibid ii 55; App. IV. (t) xxxi.

Footnote 18: Ibid ii 55; App. IV. (t) xxxi.

Footnote 19: Ibid ii 72; App. IV. (t) xxxvii.

Footnote 20: The Practical Counsellor in the Law, ibid i 58-59; App. IV. (t) xv.,

Footnote 21: Below 616;

Footnote 22: Ibid ii 72; App. IV. (t) xxxi.

Footnote 23: Ibid ii 72; App. IV. (t) xxxi.

Footnote 24: Ibid ii 72; App. IV. (t) xxxi.

Footnote 25: Ibid ii 72; App. IV. (t) xxxi.

Footnote 26: The Practical Counsellor in the Law, ibid i 58-59; App. IV. (t) xv.,

Footnote 27: Ibid ii 72; App. IV. (t) xxxi.

Footnote 28: Ibid ii 72; App. IV. (t) xxxi.

Footnote 29: Ibid ii 72; App. IV. (t) xxxvii.

Footnote 30: The Practical Counsellor in the Law, ibid i 58-59; App. IV. (t) xxx.

Footnote 31: Ibid ii 72; App. IV. (t) xxxi.

Footnote 32: Ibid ii 72; App. IV. (t) xxxi.

Footnote 33: Ibid ii 72; App. IV. (t) xxxi.

Footnote 34: Ibid ii 72; App. IV. (t) xxxi.

Footnote 35: Ibid ii 72; App. IV. (t) xxxi.

Footnote 36: The Practical Counsellor in the Law, ibid i 58-59; App. IV. (t) xxx.

Footnote 37: Ibid ii 72; App. IV. (t) xxxi.

Footnote 38: Ibid ii 72; App. IV. (t) xxxi.

Footnote 39: Ibid ii 72; App. IV

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I have already given some account of the most important collections of precedents of pleading published during this period.1 The Appendix shows that they were very numerous and of all sizes. We should here notice that we also get books which give, in addition to precedents of pleading, some information about the art of pleading--" The Method of Pleading by Rule and President" published in 16972 is an illustration. Other books are wholly devoted to the art of pleading. I have already described the " Doctrina Placitandi," which was, perhaps, the most notable of these books.8 A shorter book is one entitled " Regula Placitandi" published in 1691; 9 and, to William Brown's collection of precedents, published in 1699 under the title of " Methodus Novissima Intrandi Placita Generalia," a short tabular analysis of the art is prefixed by the author.5 The number and variety of these collections of precedents and books on the art of pleading is a true index of the great and growing importance of this topic at this period.

Footnote 1: Vol. v 385-386.

Footnote 2: Term Catalogues ii 60; App. IV, (i) xviii; it contains " particular cases, notes and arguments, relating to the advantage and method in pleading," and it is designed for the clerk and attorneys of the King's Bench and Common Pleas.

Footnote 3: Vol. v 386-387.

Footnote 4: Term Catalogues ii 368, 485, iii i47; App. IV, (i) xlv.

Footnote 5: Ibid iii 137; App. IV, (i) 1; cp. also Hansard's Entries, ibid ii 145; App. IV.

Footnote 6: Vol. v 396-40.

Footnote 7: Ibid 393-396; see Putnam, Justices of the Peace 177-181.

Footnote 8: Term Catalogues i 77; App. IV, (2) vi,

Footnote 9: Ibid i 3, 53, 467, ii 76; App. IV, (2) i,

Footnote 10: Ibid i 159, ii 96, 263; App. IV, (2) ix.

(ii) \_Students' Books.--\_Even in the preceding period, the beginnings of the decay of the educational system of the Inns of Court had caused the production of many law books specially written for students; 6 and we have seen that, during this period, some of the lectures given by the Readers of the 1nns of Court got into print.7 We have seen, too, that the students' literature of the preceding period was on the whole of a good quality. But it deteriorated during this period. The older books, such as Littleton,8 Coke,9 and the Doctor and Student,10 were reprinted; but no book of this period comes anywhere near the standard attained by them. This literature reflects, on the one hand, the rapid decay of the old educational system, and, on the other, the absorption of the legal profession in practice and pleading.

Footnote 7: Arm Catalogues i 206; App. IV, (2) xiii,

Footnote 8: Term Catalogues i 206; App. IV, (2) xiii,

Footnote 9: Ibid i 3, 53, 467, ii 76; App. IV, (2) i,

Footnote 10: Ibid i 159, ii 96, 263; App. IV, (2) ix.

We have seen that spasmodic endeavours were made from time to time to revive the old moots.11 Perhaps it was these endeavours which called forth " Hughes' Queries, or Choice Queries for Moots."12 But we have seen that, for the most part,

## Literature of the common law 601

the student was thrown upon his own resources ; and that consequently the method of getting and assimilating a knowledge of law, which was universally recommended and generally followed, was the making of a commonplace book under alphabetical heads. Hence we are not surprised to find that the publishers in 168o and 1681 issued "$,$$\\Lambda$n Alphabetical Disposition of all the Heads necessary for a Perfect Commonplace."1 The first issued was by Samuel Brewster of Lincoln's Inn. It is an elaborate scheme for the arrangement of the law under 1622 numbered heads and subheads.2 The Bodleian Library contains an interleaved and much annotated copy.

Footnote 1: The author is grateful to the anonymous referee for his constructive comments.

As in the preceding period, there was a demand for short books giving to the student elementary information as to the best modes of study, a few general ideas as to law in general, and as to English law in particular.3 The "Studii legalis Ratio" of W. Philipps 4 is a book on the same lines as those written in the preceding period by Fulbecke and Dodderidge. It tells the student something of the kinds of knowledge essential to him--he must know Latin.and French, and must be able to write these languages grammatically. It gives him a little elementary information as to the various kinds and species of laws, such as the law of nature, the law of God, and Roman law ; and then it goes on to discourse of the main features of the common law and its position in the state. It concludes by giving a list of the chief books on English law which he must study. Two books introductory to the study of English law are "Brydall's "Speculum Juris Anglicani," 5 and the "Enchiridion Legum."6 The first gives an account of some of the salient features of English law under the heads of written or statutory law, and unwritten or customary law. The second discusses the varieties of law--the law of nature, of nations, and civil or municipal law, and the differences between English and Roman law ; it advises the student as to his reading ; and makes some very practical suggestions as to reforms needed in English law. In the opinion of the author salient defects in the administration of the law are the impanelling of jurors of insufficient intelligence, the fact that many counsel are allowed to practise

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without sufficient legal education, the amount of their fees, the number of attornies, the expenses of the officers of the courts, the partiality of the judges to favoured counsel, and the uncertainty of the rules and orders of the courts. Both books are clearly written ; and they were doubtless useful to the students for whom they were intended. Another book of somewhat the same class, but more in, the nature of a "cram " book, is " The Young Lawyer's Recreation."1 It contains a few legal anecdotes, discusses shortly a number of miscellaneous topics, and illustrates them by a few cases shortly stated.

Footnote 1: Term Catalogues ii 478 ; App. IV. (a) xx.

Some of the text-books upon special topics, such as conveyancing, criminal law, and local and central government, were adapted to the use of students, if they were not written expressly for them. But the most numerous class of books written expressly for their use are those dealing with pleading and practice. Thus in 1674 William Brown composed for their benefit a book entitled. " Modus intrandi Placita Generalia," designed to teach them " the rudiments of clerkship, and such general pleadings and process as are used at this day in the courts of record at Westminster;"2 and in 1675 George Townsend, the second protonotary of the Common Pleas, issued " A Preparative to Pleading," designed to instruct the young clerks of that court.3 Both books reached a second edition in this period. A comprehensive work, designed to instruct young clerks in the elements of their art, both as clerks and as practitioners, was published in 1693, under the title of "Instructor Clericalis ";4 and reached a third edition in 1700. It starts from the very beginning--" The first thing requisite for a young clerk is to learn to write well," are its opening words. It then proceeds to explain the usual abbreviations found in legal documents, the law terms, the essoin and return days, and various writs connected with process; it gives simple specimens of declarations and other pleadings, and rules as to their delivery; and, at the end, notes on various topics connected with practice and pleading arranged under alphabetical heads. Another very successful book, devoted to the conveyancing rather than to the pleading side of the clerk's work, was " The Young Clerk's Tutor Enlarged," which, in 1689, attained to a twelfth edition.5 This edition is described as being, " A collection of the best presidents of recognizances, obligations, conditions, acquitances, bills of sale, warrants of attorney,6 etc. Also the names of men and women

## Literature of the Common Law 603

in Latin, with the days of the date, sums of money, and trades, in their proper cases; with many other things necessary. To which is annexed several of the best copies both of Court and Chancey Hand."

The number of these books of practice and pleading shows that books upon these topics had the readiest sale among students at the end of this period. This was the natural consequence of the condition of legal education. We have seen that the public teaching of the law had ceased; and that the leading lawyers, immersed in practice, had ceased to occupy themselves with the needs of students. If these lawyers wrote at all, they wrote for practitioners. The only teaching which the student got, he got in chambers or in an office. The character of that teaching is naturally reflected in the character of the books which were most popular during this period.

(iii) _Conoveancing and the land law._\*\*-No work on the land law as a whole appeared during this period. No doubt Coke upon Littleton, noted up, sufficed for most needs. We have only some books of a semi-popular character, meant to meet the needs of farmers and landowners, as well as lawyers,1 and two books on special topics. Of these two books the first was a new and enlarged edition of Coke's Copyrighted,2 the second, a special treatise on the law of commons.3 In this, as in other branches of the law, the practical side of the law tended to oust the theoretical; with the result that by far the largest number of books upon this branch of the law deal with it from the point of view of the conveyancer.

Footnote 1: Landlords' Law. A Treatise very fit for the perusal of most men, Term Catalogues i 15, 447; App. IV. (3) i; The Tenants' Law. A Treatise of great use for Tenants and Farmers of all kinds, Ibid i 45, 53, 183, ii 56; App. IV. (3) ii.

Footnote 2: Ibid i 159; App. IV. (3) iii; vol. v 460.

The books upon conveyancing possess, as a whole, much the same characteristics as the books published at the beginning of the century.4 We still see survivals from the days when books

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of precedents in conveyancing were compiled as much for laymen as for lawyers, and contained a very miscellaneous mass of various kinds of documents. Thus in 1700 there was published in two parts a reprint of a book entitled "The Experienced Secretary, or The Citizen and Countryman's Companion."1 The first part contains postal directions, a short dictionary, and "the art of inditing letters relating to trade, friendship, or other occasions." The second part contains precedents of bonds, bills, letters of attorney, releases, acquittances, warrants of attorney, assignments, bills of sale, letters of licence, indentures, bills of exchange. But books of this popular kind tended to fall apart from professional works; and among the professional works we see certain lines of cleavage. Thus precedents of mercantile documents tend to fall apart from precedents in conveyancing.2 Collections of precedents in conveyancing tend to fall apart from books dealing with the theory of conveyancing.3 And, among precedents in conveyancing, we must distinguish between the shorter tracts which were designed for clerks and attorneys,4 and the more serious works intended for the more experienced practitioners;5 and between books which set out to give precedents in all branches of conveyancing, and those which dealt only with some special branch, such as fines and recoveries.6

Footnote 1: Term Catalogues iii 179.

Footnote 2: Thus ibid i 405; App. IV. (5) v; and ii 558; App. IV. (5) viii, we have books of precedents specially devoted to mercantile documents; on the other hand, the two are still combined in Arcana Clericalia, ibid i 173; App. IV. (3) iv; and it may also be noted that in the Additions to Bridgman's Conveyances there is a deed of partnership; that in vol. i of the Modern Conveyancer (3rd ed., 1706) there is a precedent of an assignment of the moiety of a patent (p. 72), a mortgage of a government annuity (p. 465), of tallies (p. 470), and of bank stock (p. 473); and that, ibid vol. ii (1725) at pp. 97:178 there are several precedents connected with bankrupty proceedings.

Footnote 3: Such as Arts Clericalis, ibid ii 335; App. IV. (3) vii; the Modern Conveyancer, ibid ii 53; App. IV. (3) xiv; Ars Transfenfendi Dominium, ibid iii 55, x47; App. IV. (3) xv, by J. Brydall, for whom see below 655.

Footnote 4: Such as The Young Clerk's Guide, ibid i 477, ii 294, 342; App. IV. (3) ix; The Clerk's Grammar, ibid ii 6, ii 147; App. IV. (3) xi; Ars Transfendi Dominium App. IV. (3) xv, by John Brydall.

Footnote 5: Such as the works mentioned in the next note.

Footnote 6: Such as Modus Transferendi Status, ibid i 258; App. IV. (3) vi; A Compendious and Accurate Treatise upon Recoveries, ibid i 303, ii 432; App. IV. (3) vii; Modus transferendi status per recorder, iii 76; App. IV. (3) xvi.

Footnote 7: Roger North tells us how valuable he found the gift which his brother made to him of " all his draughts, such as he himself had corrected, and after which conveyances had been ingrossed," Lives i 95; iii 124.

Footnote 8: Term Catalogues i 507, ii 300; App. IV. (3) x.

Most of these books are anonymous--probably none of them were the work of very eminent men. In fact, the eminent barrier, who had accumulated a store of such precedents, considered them much too valuable to publish.7 The only book of precedents which bears a distinguished name is Bridgman's collection,8 which was published after his death by his clerk, Thomas

## Literature of the Common Law 605

Page Johnson. We have seen that, during the Commonwealth period, Bridgman devoted himself to conveyancing, and, as a conveyancer, gave very considerable assistance to his royalist friends.1 It was during this period that most of the precedents contained in this collection were drawn by him.2 It is the first book of precedents in conveyancing of the modern type; and for that reason he has been rightly called the father of modern conveyancers.3

Footnote 1: Above 537:

Footnote 2: "It was, that these precedents were framed and advised by him; they being for the most part settlements between persons of the greatest honour in the kingdom. And that they were really his, no man can better attest than myself, who was then his clerk, and a witness to the execution, if not of all, yet of the more considerable part of them," Preface.

Footnote 3: _Per_ Serjeant Hill _arg_, in Goodtitle v. Funcuan (1781) 2 Dougl. at p, 568; Davidson, Precedents in Conveyancing (3rd ed.) Introd. r2, says that " no one holds a more conspicuous station in the annals of conveyancing."

Footnote 4: Dict. Nat. Biog.

Footnote 5: It is said that he published thirty-six books, the names of seventeen of which are given in the Dict. Nat. Biog. ; and that he left thirty others in MS.

(iv) _Griminal Law._--The only writer, besides Hale, who produced much upon the criminal law was John Brydall, of Queen's College, Oxford, and Lincoln's Inn, and secretary to Sir Harbottle Grimston.4 He was a prolific writer of small books, chiefly upon legal topics.6 In one of his books, entitled " Decus et Tutamen," 6 he summarized the law of treason, as it existed before the statute of Edward III., under that statute, and under other statutes creating new treasons. In another of his books, " Jus Criminum," he summarized the law as to felony and treason; and to it he added a second part, " Judicium Criminis," which dealt with punishments and procedure. He knew some Roman law; and his books, though short, are clearly arranged, and based on the leading authorities. There are also other similar summaries written by Brydall and others.7 Some books on this topic were written with a political object, such as Babington's book of " Advice to Grand Jurors in Cases of Blood."8 Its object was to show that, if homicide is proved, the grand jury ought always to find a true bill, and not ignore it merely because they think that in the circumstances no murder has been committed.9 Apparently this was a frequent habit, especially in cases of homicide arising out of duels.10 The greater part of the book consists of

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a discursive account of various topics connected with criminal procedure. Several others were written to explain the laws against Roman Catholics \[1\] and Protestant Nonconformists.\[2\] One dealt with the laws against profaneness, immorality, and debauchery.\[3\] Another semi-popular book, which went through three editions, called itself the " Travellers' Guide and Countries Safety," and dealt with the laws against highwaymen, and steps to be taken by the victim to get damages.\[4\]

(v) \_Commercial Law.--\_The common lawyers had hardly as yet begun to write on this topic. Some books on the law of bankruptcy are the only contribution that can clearly be ascribed to them.\[5\] The important literature was still in the hands of merchants and civilians, like Malynes,\[6\] Marius,\[7\] and Molloy.\[8\] It was in this period that the standard edition of Malynes, supplemented by many other tracts both legal and commercial, was published.\[9\] Besides these books, there are only three others--one upon the customs duties,\[10\] and two sets of precedents of mercantile documents.\[11\]

(vi) \_Special branches of the Common Law.--\_Very few books upon special branches of the common law have as yet made their appearance. Two published by Shepherd, one on actions on the case for slander,\[13\] and the other on actions on the case for "contracts, assumpits, deceipts, nuisances, trover and conversion, delivery of goods, and other malefeasances and misfeasance,"\[13\] illustrate the growth of the modern law of contract and tort round the actions on the case. Both books had some success, as they went through more than one edition. A third book was published on the law of obligations and conditions.\[14\] There is also a book on the law of husband and wife\[15\]--a subject

## Literature of the Common Law 607

which had been treated of in the book on Women's Laws published in the preceding period;1 and books by Brydall on the law as to persons of unsound mind,2 and on the law of bastardy.3

Footnote 1: Vol. v 396-397.

Footnote 2: Non compos media, or the Law relating to natural Fools, nad folks, or lunatick persons, 1700; at the end are a few remarks on drunken persons.

Footnote 3: Lex Spuriorum, or the Law relating to Bastardy collected from the common, civil and ecclesiastal laws, 1703; the last chapter deals with the remedies for the right heir against suppositionitus births.

(vii) _Local Government._--Of the general character of the books on local government I have already spoken.6 They present the same general character in this period; and cover the ground very adequately. All the county officials, from the sheriff and the justices of the peace to the constable and the scavenger, all the courts, from the quarter sessions to the leet and hundred court, are dealt with, either in long treatises written for lawyers who advised the amateur officials, or in short tracts written for the amateurs themselves.7 Many of the older books, such as Lambard's, Kitchin's, and Dalton's, reappeared; and many new books covering the same ground were published. And, besides the books dealing with what we may call the ordinary machinery of local government, we get tracts upon special sides of that machinery, and upon special authorities created for special purposes. Thus, we have seen that Hale wrote upon Sheriffs' accounts and the Poor Law;8 and we have books upon the Laws and Custom of Romney Marsh,9

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upon the commissioners of sewers,1 and upon the laws and customs of the miners in the Forest of Dean.2 The only town which attracted any special literature was the City of London. On this topic two books were published.3 The chief impression which we carry away after looking at this list is the fact that the local government is still carried on through courts and judicial forms of a very medieval type.

Footnote 1: Term Catalogues ii 160, 342; App. IV, (8) xxii.

Footnote 2: Ibid ii 199; App. IV, (8) xxii.

(ix) \_Central Government.--\_The contrast between the large quantity of literature upon local government and the poverty of the literature on the central government is remarkable. But we must remember that it was a period in which the censorship was severe; and that literature on this topic would naturally be scrutinized with vigilance. In one respect, however, this literature faithfully reflects the political position. As a result of the Great Rebellion, Parliament had become a permanent and, in the last resort, the most powerful body in the state. It is not therefore surprising to find that almost all this literature is concerned with the position and practice of Parliament. The best book on Parliamentary procedure is Elsynge's book entitled "The Method and Manner of Holding Parlaments."4 The MS. was written by the father of the Henry Elsynge, who was clerk to the House of Commons in Charles II.'s reign. It is a very clearly written book; and it has always been regarded as authoritative. It will be seen from the Appendix that several similar books on this topic appeared at this time.5 Other books dealt with the constitution and privileges of Parliament;6 and Selden's tract on the judicature of Parliaments was, as might be expected, much in demand.7 Other books dealt with both the Prerogative and Parliament,8 others with the king and his Prerogative,9 others with the mobility. John Brydall wrote a book on the Jura Coronae very much from the high prerogative point of view, a book on the mobility which he called "Jus Imaginis,"10 and a little tract on the use of the king's four

## Literature of the Common Law 609

principal seals1--the great seal, the privy seal, the Exchequer seal, and the signet. But none of these books have attained any reputation. Most of them were probably compilations. Perhaps their authors adopted the ingenuous view of Brydall, who, in the preface to his " Jus Imaginis," excuses himself for his want of originality by saying that, " for any person to expect new matter from the press were to put an affront on the wisest of men, who tell us that there is nothing new under the sun." At any rate most of them seem to act on his conclusion that, " It's sufficient if what was before be so metabolized as that it proves more ready for the reader's use and benefit."

Footnote 1: Jus Sigillil, Term Catalogues i 144; ii 573, 595; App. IV. (o) i.

(x) _Political Tracts._--It is particularly difficult in this period to separate books on the central government, from political tracts on the one hand, and from constitutional history on the other. In this period, as in the last, the question of the relative weight of Parliament and Prerogative in the constitution, was argued as if it were a case in the law courts, by adducing precedents from very early periods in constitutional history, and by interpreting them in accordance with the views of the writer. Hence such matters as the question whether William I. could be said to be a conqueror, and the manner in which the assemblies of John's and Henry III.!'s reigns were constituted, were elaborately and sometimes learnedly discussed, in order to prove the particular thesis of the writer.2 In fact, nothing could illustrate better the legal form into which all the political controversies of this century were cast, than the list of the political tracts of this period. It would be no exaggeration to say that all the political questions of the day find a place, and all are discussed from the lawyers' standpoint. The advantages of the jury system,3 and the right of grand jurors to ignore bills ;4 the dispensing power;5 various points connected with the jurisdiction of the House of Lords--the position of the Lord High Steward,6 the appellate jurisdiction,7 and the right of the bishops to vote in capital cases;8 various ecclesiastical questions--the right to titles,9 the legality of ecclesiastical jurisdiction,10 and the revived court of High Commission;11 the question of election

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of sheriffs in the City of London;1 the Quo Warranto proceedings;2 are all represented by numerous books and pamphlets.

Footnote 1: Term Catalogues i 571; App. IV. (to) xxx; North, Examen 60r seqq.

There are also many tracts on questions partly legal, partly political. That sturdy loyalist and student of records,3 Fabian Philipps, wrote, among many other books, one styled "Tenenda non Tollenda,"4 to protest against the abolition of the military tenures--an astonishing thesis in support of which he found no less than seventy-two reasons. What is perhaps more astonishing is that it was apparently a thesis to which Francis North was prepared to assent.5 Another question connected with the land law, about which much was written, and to which many able men advocated an affirmative answer, was, as we have seen,6 the question of establishing a compulsory system of registration of conveyances.7 The project of abolishing arrest for debt on mesne process was the occasion of several pamphlets by Fabian Philipps and others in the earlier part of this period.8 And, at the end of the period, even the old controversies between the Chancery and the common law courts, and the right of the House of Lords to hear appeals from Chancery, were revived by Sir R. Atkyns.9 All these writers used legal history to support their views. Their legal history was of course, as history, worthless; nor did it convince their opponents--historical facts are as malleable as statistics in the hands of a controversialist. But, though this use of legal history was a futile method of controversy, it was fashionable; and, to the detriment of historical knowledge, it long remained fashionable. But, after all, even historians will admit that this is a small price to pay for the continuity of our constitutional and legal development.

Footnote 1: The reader is referred to the following article: "The author is referred to the author, "The author is referred to

## Literature of the Common Law 611

either of reprints of the medieval books and documents, such as Glanvil,1 the De Laudibus,2 the Modus Tenendi Parliamentum,3 and editions of Magna Carta 4 and the Charter of the Forest 5 with Coke's comments; or of publications or reprints of some of the books of that school of historical lawyers who flourished in the preceding period, such as D'Ewes' journals,6 Cotton's records,7 Spelman's book on the law terms 8 and some of his posthumous works,9 and two editions by Dugdale of Selden's tract on the office of the Lord Chancellor.10 The only really original book is Thomas Blount's little work on "Ancient Tenures of Land."11 Blount was a barrister of the Inner Temple ; but, partly because he had considerable private means, partly because he was a Roman Catholic, he never practised.12 He devoted himself to literary pursuits, and wrote many works, some upon legal, others upon historical, and others upon miscellaneous topics. It was chiefly the historical side of law which interested him. This book gives, under the heads of the different places in which the land was situate, various curious tenures, and customs of manors, which he had come across in his study of records. It was meant both to amuse and instruct;13 and it does instruct, because it is a painstaking piece of work, taken from the original authorities, which preserved the memory of many old customs which were rapidly decaying when the book was written.14 The only other book that need be mentioned is the history of the penal laws against Roman Catholics and Protestant Nonconformists from Richard II. to Charles II.'s reign, by S. Blackerly.15 The text of the chief laws is given, and they are connected by a descriptive historical narrative. It is a very ordinary piece of work.

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(xii) _General._--Among the books which I have classified as "general" the most important are perhaps the Law Dictionaries. The old "Terms of the Law" was reissued in a corrected and augmented form;1 but it was superseded by the more elaborate works of Blount 2 and Spelman.3 Cowell's "Interpreter" also was revised and reissued by Thomas Manley.4 The least satisfactory of these books are those dealing with the theory of the law. Most of them are the short books for the use of students beginning law of which I have already spoken.5 The only considerable book of this kind is a work in seven books, entitled "Origo Legum," the author of which--George Dawson--was not a common lawyer.6 The growing importance of international law is illustrated by a translation of Grotius's great work;7 and of commercial and maritime law by the appearance of Molloy's work "De Jure Maritino et Naval."8 The beginning of modern problems and conditions is illustrated, firstly by the earliest work on Military Law, which was published in 1682;9 and secondly by three works on colonial constitutional law. The first of the latter works was a revised reprint of "The General Laws and Liberties of the Massachusetts Colony in New England";10 the second was an edition of the laws of Jamaica, with some account of its present state and government by Sir Thomas Lynch;11 and the third was "A Compendium of the Laws and Government" of Great Britain, and of "The Dominations, Plantations, and Territories thereunto belonging."12 In a book entitled "The Grandeur of the Law,"13 by H. Philipps, we have the first attempt to collect a few bio-graphical details as to distinguished members of the legal profession. They are grouped under the heads of the Nobility,The Literature of Equity

Baronets, Knights, and Esquires ; and particulars are given of their names, parentage, and offices held by them.

From this literature we can draw one or two conclusions as to the main characteristics of the legal development of this period. In the first place it is a transition period. There is still a demand for the great books of the medieval common law, such as the Year Books and the Register of Writs. Still more is there a demand for the important books of the sixteenth and early seventeenth centuries--Fitzherbert's "Natura Brevium," the "Doctor and Student," and Coke's books. At the same time we can see modern types of books emerging in the books of practice, in the books of conveyancing, in the books on commercial law, and in books on special topics of the common law. In the second place, we can see that, to the practising common lawyer, books about procedure and pleading are easily the most important. The law is still grouped round the forms of action. The rules as to the procedure of the different courts still differ ; and the rules of pleading are growing more strict and more detailed. No doubt it is for this reason that the list of books upon special topics in the common law is so scanty, and that the books upon legal theory are few and poor. The lawyers still thought in the terms of adjective rather than of substantive law, and ignored legal speculation, because their training and practice emphasized the practical and procedural point of view to the exclusion of any other. It is not till the complexity of the law of procedure and pleading is diminished, it is not till the lawyers begin to get an education which is theoretical as well as practical, that they will begin to think in terms of substantive law, to appreciate the educational value of legal theory, and to produce good books upon special topics in the common law. This as yet is in the far future. In the third place, the mass of literature upon the different sides of the common law, and the comparative scantiness of the literature of other parts of English law, illustrate the commanding position which, as a result of the Great Rebellion, the common law has attained. But this we shall see more clearly when we have looked at the literature of this period which is devoted to the chancellor's equitable jurisdiction.

The Literature of Equity

The literature of the common law, if on the whole inferior in quality, is considerable in quantity. The literature of equity, on the other hand, is very scanty. If we except the somewhat belated tracts on the relationship between law and equity,1 it

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consists of the orders of the Court, and some books on practice and pleading, one book upon a special topic--Duke's book upon Charitable Uses, and two sets of reports. It is true than many of the cases decided during this period were embodied in some of the common law reports, and in sets of Chancery reports published early in the eighteenth century. But the only reports devoted exclusively to equity, which were published before 1700, are these two sets.

The reason both for the scantiness and the form of the literature of equity during this period is to be found in the fact that equity was passing through a transition stage. We have seen that it had ceased to depend wholly on the conscience of the chancellor; and that it had not yet become an entirely regular system.1 On the one hand, it was acquiring a number of principles which were being developed by the practice of the court. It was necessary for the lawyers to know what that practice was, and so books of practice and reports were printed. On the other hand, though the chancellors of this period had a good deal less discretion than the chancellors of the preceding period, they had a good deal more discretion in the creation of new and the application of established rules, than the judges of the common law courts. Thus the conditions were favourable for the production of books of practice and reports; but the time was as yet hardly ripe for the production of a systematic treatise upon equity. In 1732 the author of the first volume of Equity Cases Aborided seems to have considered the plan of writing a "regular institute" of equity. But he decided, on the whole wisely, that an abridgment of decided cases would be more useful and more satisfactory.2

Footnote 1: Vol. v 336-338.

Footnote 2: The earliest systematic work upon modern equity seems to be an anonymous "Treatise of Equity" published in 1737, and attributed to Henry Ballow, who had been called to the bar in 1738, Black Books of Lincoln's Inn iii z88; Fonblanque, Treatise of Equity, Pref.; Fonblanque's Treatise was an edition of Ballow's Treatise; references were inserted, and the information was brought up to date by voluminous notes.

Here I shall describe, in the first place, the orders of the court and the books on practice and pleading; in the second place, Duke's book upon Charitable Uses; and, in the third place, the reports published during this period, or devoted mainly to cases decided during this period. In the fourth place, I must just mention some other later reports in which cases of this period occur.

(1) The only comprehensive set of orders issued during this period were those issued in 1661 by Clarendon and Grinston.3

## 6 The Literature of Equity 615

Another far more complete set was projected by Shaftesbury;1 but apparently they never came into force.2 They are a complete code of procedure; and they show that Shaftesbury was quite able to appreciate the principles which should underlie the procedure of the court, and the main evils against which it was necessary to guard. For the rest, we have simply isolated orders upon detached topics.3 As in the preceding period, troubles and jealousies in the office of the Six Clerks bulk very large.4 Their control of their under clerks was very lax--thus, in 1687,9 we learn that divers complaints had been made to the master of the Rolls, " of the outtagious, rude and indecent demeanours of diverse of the younger clerks, servants and writers to and for the sworne clerks in the six clerks office . which hath beene most notorious by their throwing dirt, filth, inck and many other things to the damage and prejudice of the suitors of this court and Masters in the said office, and at other times by a rude and violent clapping their desks, and making many loud outcyes and noises, and by evil! treateing their masters in the said office with opprovious languages." We may conclude that these officers of the court sometimes combined with their accustomed dilatoriness, "a certain liveliness," which must have been very surprising to any unprofessional person who happened to intrude upon one of those scenes: "

Footnote 1: Saunders, Orders ii rogo-t07. * Ibid 344 n. \*

Footnote 2: E.g. the liability of counsel for a scandalous bill, ibid i 292-294; frivolous exceptions to reports, ibid i 335, 367, 387; insufficient answers, ibid i 349, 421-422; rehearenings, ibid i 367, 419-424; interrogatories, ibid i 374-375, 416; process of contempt, ibid i 407-402; fees, ibid i 418.

Footnote 4: Ibid i 378-320, 320-324, 322-323; 328-332, 360-363, 377-38t.

Footnote 5: Ibid i 377; and there are similar complaints in r693, ibid i 398-399.

Footnote 6: Above 598-599.

The books on practice are of the same general character as the common law books which appeared upon this subject.6 Sometimes, as in the case of the "Compleat Solicitor," information is given both about equity and common law practice. But there are a certain number of books which deal only with the former subject. One of the earliest is the account of the practice of the court prefixed to the Choice Cases in Chancery, published in 1652.7 But neither books on practice, nor books upon pleading, attain the bulk of the common law books on these topics; and this is natural if we consider how much more highly developed the common law was as compared with equity. Thus

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books of practice were sometimes combined with books of pleading. Illustrations are the "Clerks Tutor in Chancery"1 published in 1687, the " Praxis Almae Curie Cancellarie"2 published in 1694, and a much more considerable work, the Practical-Register in Chancery published in 1714, which was alphabetically arranged.3 Similarly, information about pleading is sometimes combined with information about conveyancing. Illustrations are "The Compleat Clerk published in 1671,4 and the "Clerk's Guide" published in 1672.5

Footnote 1: Term C4

Footnote 2: Ibid i 50${}\_{4}$, iii 172; App. IV (t) xlili.

Footnote 3: It claims to be "A compact collection of the standing orders and rules of practice in Chancery, together with the ruled points of practice there: Collected from the printed Chancery cases reports and practical books and from observation and experience. As also the alterations made in practice by all the statutes to this time, and by usage and custom. The whole is interspersed with rules and observations touching the drawing of bills answers and other pleadings"; It appears from the preface that the work was drawn up in the first instance for the private use of the compiler.

(2) Duke's Charitable Uses, published in 1676, is a treatise upon Elizabeth's statute upon this topic.6 It sets out the statute, the commission thereunder, the procedings to call the parties, the inquisition, the decree, and cases decided upon the statute. It also gives specimens of pleadings and decrees. The most useful parts of the book are the fifth and sixth chapters which contain the selection of cases upon the statute.7

Footnote 7: Armed to it is Moore's Reading on this topic, vol. v 395.

(3) There are, as I have said, only two sets of reports, devoted exclusively to Chancery cases, published before 1700. The first was published in 1693. Its full title is "Reports of cases taken and adjudged in the Court of Chancery, in the reign of King Charles I., and to the twentieth year of King Charles II.; being special cases and most of them decreed with the assistance of the judges, and all of them referring to the register's Books, wherein are settled several points of Equity, Law, and Practice. To which are added learned Arguments relating to the Antiquity of the said Court, its Dignity, Power, and Jurisdiction."8 It was a successful book. A second part appeared in 1694, which contains cases from 20 Charles II., to I William and Mary, and the "late great case between the Duchess of Albemarle and the earl of Bathe,"9 A second edition of both parts appeared in 1715, to which a version of the Earl of Oxford's Case was prefixed ; and, in 1716, the third part of these reports was published, containing cases from the beginning of Charles II.'s to Anne's reign. All three parts were published together in 1736.10 The second

## 6 The Literature of Equity 617

set of reports bears a title somewhat similar to that of the first, and has had a somewhat similar history. It was published in 1697, and was entitled "Cases Argued and Decreed in the High Court of Chancery."1 It contains cases from 1660-1678-79. A second part appeared at some date between May, 1700, and March, 1701-1702,2 and contains cases from 30 Charles II. to 3 James II., together with cases omitted from the former part from 26-30, 31 Charles II. To these two parts there was added in 1745 a third, under the title of "Select Cases in the High Court of Chancery solemnly argued and decreed by the late Lord Chancellor."3 This part consists of three cases, the _Duke of Norfolk's Case_ first published in 1685, the _Earl of Bathe's Case_ first published in 1693, and the case of _Bertie v. Faulkland_ decided in 1698.

Footnote 1: Wallace, The Reporters 48r n. 4. ${}^{,\\

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them as embraced by the expression, 'the residue of my personal estate'; while the heir contended that, as the guardian of the reputation of his ancestor, the MS. belonged to him, in the same way as would a right of action for the defacing of his ancestor's tomb."1 Eventually it was decided that the cases should be printed under the direction of the court, and in 1726-1728 two volumes appeared, edited by Peere Williams and Melmonth. But it is probable that the author did not intend his MS. to be printed; and the editors performed their work carelessly. It was not till 1806-1807 that a satisfactory edition, in which the reports were elucidated or corrected by reference to the Registrar's books, was published by Raithly. The fourth collection is an anonymous book entitled "Precedents in Chancery." It was published in 1733, and contains cases from 1687-1722. The MS. was in the possession of Chief Baron Gilbert; but it was stolen after his death, and clandestinely printed. There is a tradition that the cases, down to the year 1708, were reported by Mr. Pooley who, it is said, was the author of the first volume of Equity Cases Abordged.3 The last of these collections is a volume of Chancery cases from 1660-1706 made by Richard Freeman, whose reports of cases in the King's Bench and Common Pleas I have already noticed.3 This volume was published in 1742, together with the volume containing his common law reports. It contains also certain miscellaneous cases, which were probably not reported by Freeman, but were taken from the MS. of his father-in-law Keck.4 A second edition of these Chancery reports was published in 1823.

Footnote 1: Wallace, op. cit. 494.

Footnote 2: Ibid 497-498.

Footnote 3: Iid 485-486.

Footnote 4: Thus, the publisher's advertisement to Precedents in Chancery puts the best face on a doubtful transaction by the following advertisement: " The following cases coming to my hands, and being informed that they were of that value as to be handed about in manuscript, and that several genthemen had been at great charge to clerks and transcribers in procuring copies of them; I thought it proper not only on account of my own particular benefit, but as a matter that would be of general advantage to all gentlemen of the profession of the law, to make them thus publicly."

Footnote 5: Ilye of the Northis in 160.

There is no evidence as to the origin of many of these reports. Probably, as in the case of the common law reports of this and the preceding period,6 copies of cases were circulating amongst the profession, and were procured by publishers, who were not very particular as to the authorship or the ownership of the MS.6 A MS. compiled by Anthony Keck; one of the commissioners of the great seal in 1689 and a man of " a polite merry genius,"1 is supposed to have been used for some parts of the Chancery Reports 8 and the Chancery Cases 9; for the reports of his son-in-law

## 6 Roger North and his Works 619

Freeman,1 and possibly for the reports of his other son-in-law Vernon.2 As we have seen, when the author is known, his MS. was in some cases stolen, and published without the assent of the owners, and without proper editing. It is not till the following period that there is a substantial improvement in the production and the editing of the Chancery reports.

Footnote 1: Wallace, The Reporters 485-485.

Footnote 2: Ibid 497 n, r.

Footnote 3: Ibid 476-477;

Footnote 4: See his Autobiography in the third volume of the Lives of the Norths, and the lives of his brothers in the first two volumes, edited by Augustus Jessopp; and Jessopp's article in the Dict. Nat. Biog.

(4) Of the later reports, which contain cases of this period, we should mention Dickens,3 and more especially the authentic version of many of Lord Nottingham's judgments, published by Swanston in the three volumes of his reports (1821-1827). The Abridgment of Equity, contained in Equity Cases Abridged,4 though it belongs to the following period, is an excellent index and guide to the reports of this period.

Footnote 4: Above 531-535:

_Roger North and his Literary Works_

Roger North5 was the youngest brother of Francis North, who, as we have seen,6 became lord keeper Guildford. He was born in 1653, and owed his rapid rise in his profession largely to the patronage of his brother. " I own," he said,7 " that all my portion of knowledge and fortunes are owing to him." In I'678 he was made steward to the See of Canterbury; in I'682 king's counsel and bencher of the Middle Temple; in I'684 solicitor-general to the duke of York; and in I'686 attorney-general to the queen. His brother had taught him habits of industry; and, though somewhat diffident as to his own capabilities,8 he succeeded in getting and keeping a lucrative practice at the Chancery bar.9 He was a member of James II.'s first Parliament; and though, like the rest of the family, a strong royalist, he voted against an unlimited dispensing power.10 His strict orthodoxy prevented his advancement at the court of James II.; and his refusal to take the oath of allegiance to the new dynasty prevented his return to public life after the Revolution. He married, and retired to Rougham, where he busied himself with pursuing the literary,

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musical and scientific topics which had always interested him.1 His knowledge of law was used by his neighbours;2 but his political principles prevented him from taking any part in the government of the county. He lived till 1734; and, as a letter of advice to a student of the law, written a few days before his death, shows, he retained his vigorous intellect to the end.3 Of the books which have made his name famous none was published during his life, and some remained in manuscript till the last century.

Footnote 1: Lives of the Norths iii sor-3ro. * Ibid iii 305-306. * Ibid 279-280. * A Discourse on Fish and Fish Ponds (t683)--the only one of his works published in his life-time. Examen, or an enquiry into the credit and veracity of a pretended complete history; showing the wicked and perverse design of it, and the many fallacies and abuses of truth contained in it. Together with some memoirs occasionally inserted, all tending to vindicate the honour of the late king Charles the Second and his happy reign from the intended aggressions of that foul pen (1740). The Life of Lord Keeper North (1742). The Lives of Sir Dudley North and Dr. John North (1744). A Discourse on the Study of the Laws (1824). Memoirs of Musick (1836). His Autobiography (1850). * Above 494-497. * Of Dudley North Dr. Jessopp says, Dict. Nat. Biog., " Macaulay, though entertaining a frecze bias against the Norths, cannot withhold the tribute of admiration for Sir Dudley's genius, and pronunces him' one of the abtest men of his time." The tract on the 'Currency,' which he printed only a few months before his death, anticipated the views of Locke and Adam Smith, and he was one of the earliest economists who advocated free trade "; as to this see above 339-340.

Roger North and his Works 621 was essentially a biographer, with all the faults and virtues of his class--a biographer of persons and of causes.

In form the Examen is a detailed criticism of vol. iii of Kennet's complete history; and the form is unfortunate, as it makes the book both diffuse and disjointed. But it abounds in the happy descriptions and picturesque touches which the author's vivid memory could always command.1 It is historically interesting, both because it presents us with a remarkable view of the ideas and feelings of the great royalist party at the end of the century; and because it is perhaps the abiest statement of the set of legal and political ideas which were decisively defeated by the Revolution, and finally succumbed at the accession of the Hanoverian dynasty. Obviously its preparation was a labour of love to the honest old non-juror, whose active days had been spent in close contact with the leaders of the vanquished party.

Footnote 1: For some illustrations see below 6z2-623.

It is his biographies of his brothers and himself which have given to Roger North his greatest title to literary fame. It was a form of literature exactly suited to his peculiar gifts; and his strong family affection led him to spare no pains to make his narrative worthy of the heroic virtue which he attributed to his brothers. Like the Examen, the Lives justify the political faith of the family, and contain many of those details which help us to see the inner life of the period. In addition, the life of his brother Francis, his own autobiography, and, to a lesser degree, the life of his brother Dudley, give us a number of unique side lights upon the political, and more especially upon the legal, life of the period. They give us much information which all lawyers in active practice knew, and would hardly have thought it worth while to set down. This information is given by a lawyer who knew the legal world of his day from top to bottom; and, as he had the leisure to reflect upon the changes which he had seen and remembered, it is accompanied by much acute criticism which would never have occurred to a lawyer in active practice. From this point of view these biographies, like the Discourse on the Study of the Laws,2 resemble Fortescue's De Laudibus;3 and in one respect they are even more valuable. Fortescue simply criticizes the defects of the medieval common law, and suggests remedies. North, on the other hand, had lived at a time when the last survivals of the institutions of the medieval common law were giving place to the institutions of our modern law. He can therefore tell us much of the process of transition as he had heard of it or seen it. His political standpoint, and his historical bent,

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made him able to sympathize with the old institutions, and to estimate the strong and the weak points of the new developments.1 Thus his books enable us to pick up a good deal of the detail of the process of change, which it would be difficult to recover from any other source. Let us take one or two illustrations.

Footnote 1: See e.g. his treatment of the old law French, above 494-495; and the old educational organization of the Inns of Court, above 492 and n. 8.

We have already seen what a striking light his books shed upon the changes in the legal profession,2 and in the system of legal education.3 Similarly, we see the last survivals of the old system of oral pleadings,4 in his account of the forms of words "mumbled" unintelligibly by the sergeants at the bar, when they were called upon to conduct a real action.5 The rivalries of the courts of common law and the way they poached upon one author's jurisdiction,6 the abuses in the offices of the courts,7 and more especially in the offices of the Chancery,8 are described with he first-hand knowledge of one who had lived on the most intimate terms with a chief justice of the Common Pleas and a lord keeper. The humours of the circuit-assize sermons, the riding from town to town, the balls, and the county feuds,9 Shaffesbury's whim of riding to Westminster Hall on the first day of term to the great discomfure of some of the judges who were not horsemen,10 the mysteries of the court of Exchequer,11 the bad reputation of underwriters,12 the growing scepticism as to charges of witchcraft,13 the scene in Serjeants' Inn Hall when the judgments in the writ of error in the case of _Barnardiston_ v. _Soame_ were being delivered,14--are all touched on with the light hand of the

## 6 Roger North and His Works 623

eye-witness who can skillfully narrate what he has seen. And similarly he lets us see the inside of the political life of the day--the scant justice given to those accused of complicity with the Popish plot,1 the circumspection needed by anyone in authority who had come in his heart to disbelieve in that plot,2 the seditious and treasonable discourse of the coffee-houses,3 the manner in which the Green Ribbon Club organized the opposition to the court,4 the shifts used by the country party to retard and by the court party to advance money bills,5 the manner in which members of Parliament promoted bills in which they were peculiarily interested.6

Footnote 1: "I cannot altogether excuse some men of law from being guilty of errors of this kind, in places where they ought to have considered better ; for when men stood at the bar to be tried for their lives, upon indictments of special facts, and nothing was or could be therefore material against them, but what moved from or terminated in them ; yet we could hear from some of the long robe offers to prove that there was a plot, in general, of that party which the prisoners at the bar professed," Examen 130 ; cp. Lives i 20x.

Footnote 2: "Lives i 20x-20z; cf. ibid. r57-163.

Footnote 3: Examen 138-139 ; Lives i 197-198.

Footnote 4: "Examen 572-574.

Footnote 5: "And really it appeared strange to me that the most indifferent of English Gentry were perpetually hunting projects to make their estates richer to themselves without regard to others ; some to have wool deal, others (corn and the like. One cannot without the very thing imagine the business that was in all their faces," Lives iii 18r ; Reersby, Memoirs 90, points out that the protection from creditors given by Parliamentary privilege, and presents from the court, helped to make a seat covered ; cp. Maryell, Works (Ed. Groszt) ii 394, 636 ; Pepys, Diary vii 80.

Roger North was a high Tory and a non-juror ; and the Examen and, occasionally, the Lives reflect the prejudices and the heat of the time amidst which his active life had been passed. But, as I have said,7 the political opinions both of his brother and himself were founded upon reasoned convictions derived from a study of law and history. And so these opinions did not blind them to the existence of defects in the law, and abuses in the conduct of the executive government. As we have seen, the opinions of Francis North would not have seemed to future historians to be so far removed from those of Hale, if the political passions of the time had not divided the nation into two hostile camps.8 These political passions died down after the accession of the Hanoverian dynasty ; and Roger North lived long enough to experience the beginnings of the calm of the eighteenth century. From the manner in which, in the Lives, he speaks of the old conflicts, and of the many changes which he had seen in the political and legal world, we can see that his mind was not unaffected by that large minded rationalism which, while he was writing, was gradually and peacefully settling the institutions and the law of England on the lines indicated or necessitated by the Bill of Rights and the Act of Settlement. It

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is not inappropriate that the mind of the man, whose books tell us so much of the final stages of the transition of our law from medieval to modern, should itself exhibit a transition from the political passions of the seventeenth to the critical tolerance and broad common-sense of the eighteenth century.

## IV The Condition of Common Law and Equity

It is during this period that English law, like the English constitution, assumes its modern aspect. The common law sheds many of its mediaeval rules, and much of its mediaeval machinery. These rules and this machinery are either directly abolished, or gradually become obsolete; and, in their place, new rules and machinery are introduced either to do the work of the old more efficiently, or to regulate new political, social and commercial needs and activities. Similarly modern equitable doctrines begin to emerge, and Equity begins to attain fixity and system. It still corrects and supplements the common law; but it does so upon certain definite lines, and according to certain definite rules. As a result, we begin to see the beginnings of the modern settled relations between law and equity. With the detailed history of some of these legal and equitable doctrines I shall deal in the second Part of this and the following Book of this History. Here I shall only attempt to give a short sketch, firstly of the condition of the common law at the close of this period, and secondly of the condition of equity and of its relations to the common law.

### The Common Law

During this period many formerly important branches of the mediaeval common law were either abolished or became obsolete; other branches show mainly a development upon the lines already indicated; in other branches very important new developments took place. If we look at the different branches of the common law from these three points of view, we shall get a good general idea of its condition at the close of the seventeenth century.

(1) _Branches of the common law which have been either abolished or become obsolete._

Hale, in his introduction to Rolle's Abridgment,1 has so satisfactorily described the changes in the law and the machinery of the law, which had been taking place during the preceding century, that I need only summarize his description.

The Common Law 625

The changes in the substantive rules of law principally concern the land law. The following are the most important : (i) Changes connected with the abolition of the military tenures and their incidents. "Tenures by knight service and their appendix, wardship, value and forfeiture of marriage of the ward, escuage relief, _ade pur file marriere et faire fites circular_, _primer seisin_, _livery_, _offices post mortem_, _traverses_, _interpoleader_, and monstrans of right in relation thereunto ; the several writs of right, of ward, ravishment of ward, _valore marriaggi_, _duplici vadore marriaggi_, and some other appendixes of this nature, made several great titles in the law, and took up much of the business of the old and latter law books ; all, or the greater part whereof is now pared off, and become unuseful, by the late Act for Alteration of Tenures."1 (ii) Villeinage was obsolete; and with it the law and writs relating to the seizure and enfranchisement of villeins.2 (iii) Changes in the methods of conveyancing had made much of the old learning useless. Thus, " The title of Attrunement was a difficult, and yet great title, with its appendixes _guid juris camet_, _quem reddit_, _reddit_, _per que servitia_ ; but it is much out of use and new expedients substituted in room thereof, _viz_. by fines to uses, by bargain and sale for a term and release, and by deeds inrolled according to the statute of 27 H. 8 ; and by these also the difficulties in execution of estates by livery and seisin, yea and many ofthe curiosities of some kind of releases, and confirmations are commonly supplied."2 (iv) Many of the old doctrines connected with seisin and estates, such as descents to take away entries and continual claim, discontinuance and remitter, had been deprived of much of their importance by the legislation of this and the preceding century.4 (v) The learning as to dower, though not wholly abrogated, was hardly ever applicable to the greater estates, owing to the extensive use made of jointures, which either created a legal bar under the statute of uses, or an equitable bar by the rules of equity.5 (vi) The Reformation, had rendered obsolete much law relating to " persons professed," and topics connected with marriage and other subjects of ecclesiastical cognizance.

Footnote 1: For these tenures and their incidents see vol. iii 34-73.

Footnote 2: Ibid zo, 496-499.

Footnote 3: Ibid zo 19g sqq.; ; Pt. II. c. r SS **vo**; cp. vol. ii **588** for the important part played by the releases and confirmations in the medieval land law.

Footnote 4: Vol. ii SS55:587 ; vol. iii gr-gz; vol. iv **483**+484. * Vol. iii r96\*\*-t97.

Footnote \*: See Ibid 3-29 for the real actions; for the action of ejectment and its development see Pt. II. c. r SS **r**, vol. VI.-- 40

The changes in the machinery of the law affected both the real and the personal actions. The assizes, and the most important of the real actions, had given place to the action of ejectment;6

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and other real actions, had given place to actions of trespass, and actions on the case. This meant that a very large number of the older rules of law had become obsolete. Hale says: "The remedy by assizes, and several forms and proceedings relating thereunto, were great titles in the Year Books, and although the law is not altered in relation to them, yet use and common practice hath in a great measure antiquated the use of them in recovering possessions, and the remedy by ejectione firme used instead thereof; so that rarely is any assize brought unless for recovering possession of offices. Real actions, as writs of right, writs of entry etc. and their several appendixes, as _grande care_, _petit cage_, _saver default_, _resetit_, _view_, _side prayer_, _vouder_, _counterplea of voucher_, _counterplea of warranty_, _recovery in value_, were several great titles in the Year Books, but now much out of use; for in most cases at this day the entry of him that hath right, being lawful, men choose to recover their possessions by _ejectione firme_, only in common recoveries1 the form of such real actions is preserved. _Quod permittat_ and assizes for commons ways etc., _seeta ad molendinum_, assizes of nuisance, are much turned into trespasses and action upon the case."2 Similarly, in the case of the personal actions, actions on the case, such as assumpsit and trover, had superseded the old actions of debt and detinue, and had rendered obsolete much law which centred round them.3 Thus wager of law 4--a great title, as Hale says, in the Year Books--was practically abolished. The action of account had been superseded by the superior remedy given by the court of Chancery.5 The old action of replevin had been effectually reformed by statute.6

Footnote 1: Cf. Bl. Comm. iii97--''The forms are indeed preserved in the practice of common recoveries; but they are formsand nothing else; for which the very clerks that pass them are seldom capable to assign the reason."

Footnote 2: For the beginnings of this process see vol. iii 47-28.

Footnote 3: Vol. iii 350-351, 428-453. 4 Vol. i 395-308.

Footnote 5: Ibid 458-459; vol. ii 367; vol. iii 426-428; vol. v 28S, 315; below 650-65z.

Footnote 6: Hale says, "The learning of Avowrities (is) in a great measure abridged by the Stat. of zr H. S. and the intricacies of process in replevin _retrain Rabeado_, withernam, etc., much remedied in cases of distresses for rents by the late Act of this present Parliament "; for these statutes see vol. iv 487; for replevin generally see vol. iii 283-287.

All these changes involved great simplifications in the intricate rules of procedure. The practical disappearance of many of the older forms of action, and the substitution for them of some form of trespass or case, got rid of many minute and diverse rules applicable to each of these older forms of action,7 and to some extent generalized rules of procedure. It was less possible for a good case to be lost through a mistake in the form of action chosen, or through a mistake in the procedural rules by which it

## 2 The Common Law

### 2.1 627

was governed. It was therefore more possible for the judges to look at the substantial merits of the case. Unfortunately these advantages were, to some extent, counterbalanced by the growing strictness in the rules of pleading. Of this I have already said something, and I shall refer to it in some more detail later.1

Footnote 1: Above 570-571; Pt. II. c. 7 SS 2.

Footnote 2: Vol. iv 473-477; vol. v 415-416.

Footnote 3: Ch. Cas. i: Pollexf. 223; _sub biom._ Howard v. Norfolk z Ch. Rep. 229;

Footnote 4: For the history of this rule see Pt. II. c. r SS 6.

Footnote 5: Or the history of this rule see Pt. II. c. r SS 6.

Footnote 6: Or the history of this rule see Pt. II. c. r SS 6.

### 2.2 _Branches of the common law which show mainly a development upon lines already indicated._

The branches of the common law which fall under this head are the land law, the criminal law, the law of contract, the law of persons, the law of succession to chattels, and the law of pleading and evidence.

_The Land Law_ developed upon the same lines as it had been developing since the passing of the statute of uses.2 The power to create future estates, and the power to devise, gave opportunities to the conveyancers of which they made full use. Many cases in the courts are taken up with the interpretation of devises and settlements. The result was that the complexity of the land law so increased that many advocated some kind of system of registration of estates, or of conveyances of estates.8 The most noteworthy event in the history of legal doctrine in this branch of the law is the settlement in 1683, by \_The Duke of Norfolk's Case,\_4 of the ground work of the modern rule against perpetuities.6 The rule applies to other proprietary interests besides land; and the decision was a decision of the court of Chancery, confirmed two years later by the House of Lords.6 But at this time its most important application was to the land law; and it settled both the common law and equitable principles applicable to this topic.7 It closed the struggle which the courts both of law and equity had waged, ever since the middle of the sixteenth century, against the attempts of landowners to use their wide powers of disposition to destroy those powers. The only other point which need here be noted, is the final improvement in the action of ejecment, made by Rolle, C. J., during the Commonwealth,8 of cutting through all the preliminary steps in the action, by compelling the tenant to admit lease, entry, and ouster.9 The action thus became more easily adapted to the

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purpose of the trial of title to the freehold, with the result that the decay of the real actions, which Coke had lamented,1 proceeded more rapidly than ever. At the same time its anomalous character made it possible to use it for fraudulent purposes, as an interesting case, reported by Kelyng,2 records.

Footnote 1: Vol. v 479 n. z.

Footnote 2: Rev. Farre and Chadwick (1665) Kelyng 43-44-

Footnote 3: Vol. v 492-532.

Footnote 4: Rev. V, Tymberly (t662) r Kob. 254; Rev. v, Starling (t664) r Kob. 675; cp. Rev. v, Best (1705) r Salk, 174; Pt. II. c. 5 SS 3.

We have seen that the _Criminal Law_ had been extended and altered by statute.3 It was extended also by the fact that the common lawvers took over and adapted a good many of the principles which had originated in the Star Chamber.4 Just as the abolition of that jurisdiction had increased the control which the King's Bench exercised over the justices of the peace and the other subordinate jurisdictions in the country,5 so it gave that court an opportunity, of which it made full use, of enlarging its criminal jurisdiction. Thus, in the substantive part of the criminal law, we see the beginnings of the modern law of conspiracy ;6 and there are several cases of a political kind which illustrate the completeness with which the common law had adopted the principles laid down by the Star Chamber for the treatment of criminal labels.7 But the law on the latter topic hardly assumes its modern form till after the disappearance of the licensing Acts,8 and the growth of ideas as to the limits of freedom of discussion different from those which prevailed during this period.9

Footnote 3: Stepheen, H. C. L., 370-376; and cp. Rev. v, Beare (t699) r Ld. Raym. 444; Pt. II. c. 5 SS 2; it was decided in 1697 that slander is not a criminal offence, Rev. V. Penny, r Ld. Raym. 153.

Footnote 4: Above 377-378.

Footnote 5: Stephen, H. C. L., 194-296; Pt. II. c. 5 SS 2.

Footnote 6: Stephen, H. C. L., 194-296; Pt. II. c. 7 SS 2.

Footnote 7: Stepheen, H. C. L., 204-296; and cp. Rev. v, Beare (t699) r Ld. Raym. 444; Pt. II. c. 5 SS 2; it was decided in 1697 that slander is not a criminal offence, Rev. V. Penny, r Ld. Raym. 153.

Footnote 8: Above 377-378.

Footnote 9: Stephen, H. C. L., 194-296; Pt. II. c. 7 SS 2.

Footnote 10: Stepheen, H. C. L., 204-296; Pt. II. c. 7 SS 2.

Footnote 11: Stepheen, H. C. L., 204-296; Pt. II. c. 7 SS 2.

Footnote 12: Vol. i 344-347; and the courts, at any rate after the Revolution, set their faces against any attempt to put any sort of constraint on a jury ; thus in Dawson v. Howard (f699) r Ld. Raym. rzo, Ward, C.B., while acting as judge of assize in Curberland, with the consent of the parties, adjourned the case to the bench, and ordered the juors to appear there, sub pena PS50, to give their verdict; the court discharged this order, " because the judge could not adjourn the jury after they were sworn and charged with the evidence, nor could inflict a penalty upon the jurors."

## 11 The Common Law

concrete facts of individual cases. Special verdicts given by jurors in doubtful cases made a general discussion and settlement of the principles of the law by all the judges possible;1 and the same result was also secured by the objectionable practice, which prevailed before the Revolution, of settling, in conjunction with the king's counsel, the principles to be applied to a pending case of political interest.2 By such discussions the doctrine of constructive treason was developed;3 the line was drawn more clearly between murder-and manslaughter;4 new illustrations were afforded of the narrowness of the crime of larceny at common law;5 the scope of burglary6 and robbery7 was more clearly explained; and the necessary ingredients of such crimes as riot,8 perjury,9 and bigamy.10 were illustrated. It was a reckless age--politically and morally, so that crimes of violence were common. Also it was an age of commercial expansion, so that various new forms of fraudulent dealing needed suppression.11 For these reasons the criminal law developed with some rapidity.

Footnote 1: For instances see kelyng 59, 64, 66, 72-73; it was only in really doubtful cases that such verdicts were given--thus we find Kelyng saying in r66, at pp. 29-30, " it would be dishonourable for the court in so plain a case as this to suffer the jury to find a special verdict."

Footnote 2: For instances see ibid 7--meeting of judges, law officers, and king's counsel to determine points which might arise on the trial of the regicides; ibid 54--a meeting of judges, "to consider of such things as might in point of law fall out in the trial of the Lord Morly, who was on Monday to be tried by his peers for a murder."

Footnote 3: Kelyng 7-24, 69-79; Pt. II, c, SS 8. I.

Footnote 4: Kelyng, 40, 41, 50, 51, 55-56; 60-62; Rev. v. Keite (1698) I Ld. Raym. r38; Rev. Plummer (1702) Kelyng rog.

Footnote 5: Raven's Case (r662) Kelyng 24, 29, 30 ; cp. ibid 81-83.

Footnote 6: Ibid 42-43, 83-85.

Footnote 7: Ibid 67-70.

Footnote 8: Rex v. Sudbury (r700) I.d. Raym. 484.

Footnote 9: Rex v. Griepe (r698) I Ld. Raym, 256.

Footnote 10: Kelyng 27, 79, 80.

Footnote 11: See e.g. ibid 39-frauds in connection with the manufacture of plate. See generally Pt. I. C. 5. introd.

Footnote 12: Above 589-590.

Footnote 13: Rex v. Tucker (1695) I Ld. Raym. r.

Footnote 14: Rex v. Knollys (1695) I Ld. Raym, ro.

Footnote 15: Rex v. Lamb (1702) r.L. Raym, 609-670--" An indictment for having said maliciously, ' magistratos civitatis Lichfield fore societatem asinorum," was removed from the manufacturer of the author.

### Law-Professional Development

were fatal. And this strictness made the application of the law very arbitrary. If it sometimes operated in favour of the prisoner, it sometimes operated to his disadvantage. Thus, if a person pleaded not guilty, and he was found guilty, the fact that he had a pardon would not help him, because, by his plea, he was taken to have waived the benefit of his pardon.1 Then, too, other elements of uncertainty were caused by the rules of clergy and the mass of statute law relating thereto;2 and survivals from the very earliest period in the history of the law, such as appeals3 and deodands,4 gave rise to difficulty and discussion. It is obvious that the management of so complicated a system of procedure tended to give a good deal of arbitrary power to the judges. According to their views on any particular case, they might elect to stand upon the letter of the law, or to waive this or that technicality in order to do substantial justice.5 And if they could not override a particular rule, they could always, if they liked, appeal to the king to exercise his power to pardon.6 We have seen that, in political cases before the Revolution, the control exercised by the crown over the judges enabled it to use these advantages very effectively in its own interests.7 But in ordinary cases the impression that can be gathered from the reports is that the judges generally used their powers fairly, and sometimes even mercifully; 8 and we haveThe Common Law

seen that, after the Revolution, trials, even in political cases, were conspicuously fair.1

Footnote 1: Above 518-519.

The settlement of the main principles of the doctrine of consideration in the preceding period had fixed the most distinctive feature of the English _Law of Contract.2_ In this period we see the growth of some other principles of the modern law. Thus such subjects as impossibility of performance,3 warranty of title in a contract of sale of goods,4 payment,5 accord and satisfaction,6 are discussed; and some of the existing rules of law on these topics are laid down. Decisions upon wagering contracts, and upon Charles II.'s statute relating thereto,7 and decisions upon SS 4 of the Statute of Frauds,8 illustrate the first appearance of some of the familiar features of the modern law. We shall see that the settlement of the main principles underlying the law of contract led to some appreciation of the differences between contract, tort, and quasi-contract;9 that it continued to help the growth of the commercial jurisdiction of the common law courts; and that it led to the growth of rules governing particular kinds of contract.10 But these topics fall more properly under the head of the new developments made during this period. One particular kind of contract may, however, be mentioned here. It was finally decided in 1699 that an action for breach of promise of marriage lies, not only for the woman, but also for the man, and that it does not fall within SS 4 of the Statute of Frauds.11 Apparently counsel had been darkened upon the former of those topics by a supposed analogy to the old writ of entry _causa matrimoniti prelocuti_;12 and by the idea that, as marriage was of ecclesiastical cognizance, promises to marry must fall under the same jurisdiction.18 Holt clearly pointed out that a contract to marry (as distinct from marriage) is simply an executory contract as much enforceable at common law as any other contract.14

Footnote 1: Above 518-519.

Footnote 2: Hulbert v. Watts (1697) J. Ld. Raym. 172.

Footnote 3: Medina v. Stoughton (1701) x Ld. Raym. 593.

Footnote 4: Canter v. Sherpheard (1699) Ld. Raym. 330.

Footnote 5: An $\\chi$r. Harris (1697) J. Ld. Raym. 172.

Footnote 7: Above 404.

Footnote 8: Above 390-393.

Footnote 9: Below 637-640; Pt. II. c. 3 SS 3.

Footnote 10: Pt. II. c. 4.

Footnote 11: Harrison v. Cage (1699) I. Ld. Raym. 356; above 392 n. 3.

Footnote 12: Vol. iii 22; really there was no analogy; as Holt, C.J., said, "The case upon the writ de causa matrimoniti prelocuti is ancient law, and stands upon its own bottom."

Footnote 13: In Holcroft v. Dickenson (1671) Carter at p. 255 Vaughan, C.J., dissenting from the other judges, took this view.

Footnote 14: "There is the same consideration in the case of the promise of a woman as in that of a man ; for the ground of the action where the woman brings the action, is the promise of the woman ; for the action being founded upon mutual promises, if the woman's promise be void, the man's promise will be nudum pactum," r Ld. Raym, at p. 387.

$\\mathrm{Law}$--professional Development

In the department of the _Law of Persons_ decided cases define more precisely the status of the married woman, the infant, and the lunatic ; but the scope and contents of the rules laid down follow very closely the principles ascertained in the Middle Ages. Thus, in the case of the married woman, the leading case of _Manty_ v. \_Scott_1 on the husband's liability for his wife's contracts, follows medieval principles very closely.5 Other cases define more clearly the position of a married woman divorced or separated from her husband.8 In the case of infants and lunatics we get discussions on the question as to which of their acts are void or voidable.4 Thus, in the case of the infant, it was ruled that contracts for necessaries are valid, and that money lent to buy necessaries, which has been actually so employed, is recoverable.6 On the other hand, it was decided that, as infants' contracts were voidable, they could not give rise to a debt, upon which bankruptcy proceedings could be founded.6 But for important developments in the law of persons we must look, not to common law, but to equity. The law as to the proprietary position of married women, the management of the property of lunatics, and the control of the guardianship of infants was, as we shall see, developed by theancellor.7

Footnote 1: (1663) r Sid. rog. ${}^{2}$Vol. iii 529-530.

${}^{3}$Champelrain v. Hewitson (1696) r Ld. Raym. at p. 74; Derry v. Ducissam Mazazine (1698) r Ld. Raym. 147.

${}^{4}$Thompson v. Leach (1698) r Ld. Raym. 313.

${}^{5}$Ellis v. Ellis (1699) r Ld. Raym. 314.

${}^{6}$Rex v. Cole (1700) r Ld. Raym. 44.

${}^{7}$Below v. 644-650; for the jurisdiction of the court over lunatics, see vol. i 473-476.

${}^{8}$Cage v. Acton (1700) r Ld. Raym. at pp. 515,516.

${}^{9}$Tinney v. Norris (1700) r Ld. Raym. 553.

${}^{10}$Rock v. Layton (1701) r Ld. Raym. 589; Parker v. Atfield (1702) r Ld. Raym. at p. 679.

${}^{11}$Sir Richard Raine's Case (1698) r Ld. Raym. 262.

${}^{12}$Atkinson v. Cornish (1699) r Ld. Raym. 338; Freke v. Thomas (1702) r Ld. Raym. 667.

The common law

of an administration upon acts done under its authority.1 The interpretation of the statutes of Distribution was also considered by these courts, and their decisions during this period are the ground work of our modern law on this topic.2 That interpretation was sometimes somewhat restrictive, e.g. it was decided that personal representatives were not compelled to distribute estates pur autre vie,3 and that the ecclesiastical courts could not compel an executor to distribute undisposed of residue.4 In this period, as in the Middle Ages, this branch of the law suffered from the fact that it came at the meeting-place of the rival jurisdictions of the common law courts and the ecclesiastical courts. But, during this period, this defect was to some extent remedied by the expansion of the third of the jurisdictions which has shaped the law on this topic. We shall see that the court of Chancery took over from the ecclesiastical courts their jurisdiction over the administration of assets, and intervened in order to prevent the harsh results which followed from some of the rules of the common law. We shall see also that it was able to bridge the chasm which separated the exclusively ecclesiastical jurisdiction over the succession to chattels, from the exclusively common law jurisdiction over inheritance to, and devises of, real property ; and that, without materially infringing on the province of the latter jurisdiction, it was beginning to evolve a set of general rules for the administration of estates.5 It is because it succeeded in evolving these general rules that the bulk of the modern law on this topic is the product neither of the common law courts nor of the ecclesiastical courts, but of the court of Chancery.

Footnote 1: Blackborough v. Davies (1702) I Ld. Raym, at p. 685.

Footnote 2: See e.g. Rex v. Raines (1702) I Ld. Raym. 571; Blackborough v. Davies (1702) I Ld. Raym. 684; vol. iii 561-562.

Footnote 3: Olderoon v. Pickering (1697) I Ld. Raym. 66--a decision corrected by I4 George II. c. 20 SS9.

Footnote 4: Petit v. Smith (1696) I Ld. Raym. 86; but this was partially corrected by the court of Chancery, see below 654.

Footnote 5: Below 652-657.

Of the development of the _Law of Pleading_ I have already spoken.6 The rules of pleading tended to become more and more rigid ; and, as we have seen, this rigidity tended to counteract some of the beneficial effects of the simplification of process which came with the disuse of the older forms of action, and the spread of the offshoots of trespass.7 The judges seem sometimes to struggle with this tendency;8 but, as we have seen, without much effect. The _Law of Evidence_ was developing. In the pre-Revolution criminal cases, in which political passions were aroused, not very much attention was paid to rules of evidence which made

### Law-Professional Development

in favour of the accused.1 But in other criminal cases, and in civil cases, we can see the beginnings of some of our modern rules, A person could not be compelled to incriminate himself.2 The question what sorts of interest in a case incapacitated a person from giving evidence;3 how handwriting could be proved;4 when secondary evidence could be given;5 when the evidence of declarations by deceased persons,6 and when declarations against a person's interest7 would be admitted--were some of the questions as to which the courts gave decisions. The accumulation of such decisions upon the admissibility of evidence will gradually give rise to an ascertained body of law; but for this result we must wait till the following period.8

Footnote 1: Above 213-215.

Footnote 2: Rev v. Worsenham (1702) r Ld. Raym, 705; it was ruled by Holt, C.J., in 1694 that a man could not give in evidence that which it would be a breach of confidence to depose, ibid 733; see below 66r.

Footnote 3: Tiley v. Cowling (1707) r Ld. Raym. 744; Smith v. Blackham (1699) r Salk. 283; 4 Rev. Craysby (1696) r Ld. Raym. at 4.00.

Footnote 4: Tiley's Case (1704) r Salk. 286; cp. Anon. (1699) r Ld. Raym. 731r.

Footnote 5: Rex v. Payne (1704) r Ld. Raym. 729; cp. ibid 745, citing a resolution of 1695 that, 4 a shop book is not evidence for a tradesman, but is good evidence against him or for a stranger. The same law of a reviewer's book for money paid by him, or received to the use of a stranger, or the book of a bursar of a college.6 See Pt. II. c. 7 SS 1.

Footnote 6: Above 26z-27z, 11 Above 55-65, 215-216.

Footnote 7: Above 26z-27z, 11 Above 55-65, 215-216.

Footnote 8: See Pt. II. c. 7 SS 1.

Footnote 9: Above 16z. . .

The Common Law

685

had won over the court of Admiralty.1 Questions of prize,2 jurisdiction over seaman's wages,3 hypothecation of the ship for necesssaries in the course of a voyage,4 disputes between part owners as to undertaking a voyage,5 proceedings against a ship on a ransom contract 6--were admitted to fall within the Admiralty jurisdiction. But over all such questions as charter parties,7 salvage,8 affeightment,9 and bills of lading,10 the common law had assumed jurisdiction. That the merchants in many cases preferred to take their cases to arbitration, we can gather from the statute of 1697-1698, which gave facilities for the enforcements of awards so obtained.11 But, if it was desired to get the opinion of the courts, it was to the courts of common law that tiligants most frequently went. It was laid down by Holt, C.J., that the common law possessed jurisdiction in all matters of mercantile and maritime law; and that the jurisdiction of the Admiralty was strictly limited and subordinate. "The common law," he said, "is the overruling jurisdiction in this realm; and you ought to entitle yourselves well, to draw a thing out of the jurisdiction of it."12

### Law-Professional Development

is true that, as yet, this mercantile jurisdiction was shared by the court of Chancery. The machinery of that court was much better fitted to deal with cases which involved the taking of accounts. For this reason it assumed jurisdiction in partnership cases,1 and in the administration of the law of bankruptcy ;2 and the later history of the law upon these topics must be looked for rather in the Chancery than in the common law reports. As we shall see, the court of Chancery heard cases which turned on bills of lading,3 contribution and average,4 bottomry,5 insurance,6 and charter parties.7 It was not till the time of Lord Mansfield that the limits of the common law and equitable jurisdiction in commercial cases was defined with any degree of fixity.8

Footnote 1: Below 65o.

Footnote 2: Wiseman v. Vanderput (1690) 2 Vern. 203--a case in which we can see the origins of the doctrine of stoppage in transit; and see generally Pt. II. c. 4 II. and III.

Footnote 3: Anon. T Eq. Cas. Ab. IT4-II5.

Footnote 4: Goldart v. Garret (1692) 1 Eq. Cas. Abr. 371.

Footnote 5: Edwin v. East India Company (1690) 2 Vern. 20; S.C. r Eq. Cas. Abr. 374-8 Vol. i 572-573; vol. v 147.

Footnote 6: Vol. v 169-IT; Pt. II. c. 3 SS 2.

Footnote 7: U. H. 1, c. 5 SS 6.

Footnote 8: Dibid.

Footnote 9: Vol. v 169-IT; Pt. II. c. 3 SS 2.

Footnote 10: Above 520.

Footnote 11: Pt. II. c. 5 SS 6.

Footnote 12: Ibid.

Footnote 13:The Common Law

upon the maritime and commercial jurisdiction of the Admiralty ;1 and it is quite clear that the expanding commerce and industry of the country made it a necessary protection to the general public. Probably also the second of these developments owed something to the same cause. But it also owed something to the growth of more detailed rules as to particular torts. Some of these torts begin to appear in their modern form. Thus we begin to see the growth of the distinction between the torts of libel and slander, and the growth of the distinction between the tort and the crime of libel;2 malicious prosecution gets free from its early association with conspiracy, and emerges as an independent tort;3 and we get interesting discussions upon many other topics connected with particular torts--e.g. as to the limits of the right of a person assaulted to defend himself,4 as to the right of a person to sue in tort who is specially damaged by a public nuisance,5 as to the right of a bailee to bring trover,6 and as to liability for damage done by animals.7

(iii) The growth of the law of contract and tort, and topics connected therewith, began to make the lawyers conscious of the difference between contract and tort,8 and even to perceive dimly the meaning of the phrase quasi-contract.

Footnote 1: Pt. II. c. SS 6.

Footnote 2: Ibid SS 2; see vol. v205-212 for its earlier development in the Star Chamber.

Footnote 3: Savile v. Roberts (1698) r Ld. Raym. 374; Pt. II. c. SS 3.

Footnote 4: Leward, S. Baskely (1699) r Ld. Raym. 62.

Footnote 5: Iveson v. Moore (1700) r Ld. Raym. 486.

Footnote 6: Arnold v. Jefferson (1698) r Ld. Raym. 275; Pt. II. c. SS 1.

Footnote 7: Jenkins v. Turner (1697) r Ld. Raym. rog; Mason v. Keeling (1701) ibid 606; Pt. II. c. SS 6.

Footnote 8: On this topic see Maitland's historical note on the classification of the forms of personal action, printed in Pollock's Torts App. A.

Footnote 9: At f. gg; vol. ii 277, 27S.

Footnote 10: Maitland, op. cit. 536-537.

Footnote 11: Vol. ii 367-369; vol. iii 420, 425-426.

Bracton had talked of actions ex contractu vel quasi, and actions ex maleficio vel quasi.9 But, as Maitland had shown, this classification could not be imposed upon the medieval forms of action. Neither Bracton, Britton, nor Fleta make any use of it. "Throughout the Middle Ages the theory that personal actions may be arranged under these headings seems to remain a sterile, alien theory. It does not determine the arrangement of the practical books, of the Register, the Old Natura Brevium, Fitzherbert's Natura Brevium, the Novae Naturations. Even Hale, when in his analysis he mapped out the field of English law, did not make it an important outline."10 In fact, as we have seen,11 the English personal actions were often at once contractual, delictual, and proprietary in their nature. The important differences were those which existed between the forms of the different writs, between the mesne process upon them,

### Law--Professional Development

between the proper pleas to them, between the modes of proof, between the forms of the judgments and final process upon them.1

Footnote 1: Maitland, op. cit. 535: 2 Ibid 539.

The growth and spread of the action of trespass and its offshoots, and statutory changes, made for the growth of uniformity. But uniformity was never attained completely ; and it was still necessary, for certain purposes, to draw a line between different classes of personal action. Thus, firstly, the question arose, What forms of action could be joined? The answer turned largely upon the procedural differences between the actions. " Thus it was said that the actions to be joined must be such as have the same mesne process and the same general issue, also that an action in which (apart from statutes) the defendant was liable to fine could not be joined with one in which he could only be amerced." 2 But we also see that, during this period, it was beginning to be said that causes of action in contract could not be joined with causes of action in tort.8 No doubt, as Maitland says, the rules on this topic could not be reduced to this simple principle. But, for all that, it is clear that this new distinction, based upon substantive law, was beginning to appear beside the old distinctions based upon adjective law.4 Secondly, it was laid down that, while all joint contractors must be sued because their liability was joint, a failure to join all joint tort tensors was not fatal, as their liability was joint and several.5 Here again, therefore the attention of the lawyers was turned to the distinction between tort and contract. Thirdly, its importance was beginning to be seen in connection with the maxim _Action personalis mortiner cam persona_.6 The distinction between actions which survived and those which did not, to some extent, though not entirely, corresponded with the distinction between contract and tort. Thus, although the differences between the forms of action continued to have more practical importance so long as the forms of action survived, it is clear that the distinction between contract and tort, based upon the subject matter of the law, is beginning to emerge. When the forms of action were abolished, and when this distinction was adopted as a basis of classification by the legislature,

**THE COMMON LAW**

it became a leading distinction. But, for some time, owing to the development of the law of contract and tort, by means of actions which were neither completely contractual nor completely delictual, it will require some judicial interpretation before it can be quite completely fitted to the existing rules of the common law.1 But it is significant that at this period, when our modern common law is beginning to emerge clearly, this modern classification is beginning to attract some attention.

Similarly, we can see that the conceptions of an implied contract and a quasi-contract are beginning to emerge, by reason of further developments in the scope of the action of assumpist.2 We have seen that, at the beginning of the seventeenth century, _indebitatus assumptioni_ could be brought for a debt, even though there had been no express promise to pay subsequently made; and that this extension of the sphere of assumpist helped to familiarize the law with the idea of an implied promise.3 We have seen that, in consequence, the idea was extended to cases where one person had performed services for another, without having made a definite bargain as to remuneration, or an express promise to pay; that in these cases the former could sue the latter in assumpist on a quantum merit;4 and that this idea of an implied promise was extended to a large number of different cases, in order that the plaintiff might get the convenient remedy of assumpist.6 But so far all the cases were cases in which there was a true contract--there was consent, though only an implied consent. We shall see that the last extension of assumpist was to cases where the action of debt lay for duties not arising from consent, e.g. for the breach of a statutory or customary duty.6 We shall see that Holt was averse to this extension, because he saw that it was, logically, an illegitmate extension.7 But, in spite of his opposition, assumpist was extended to this new sphere; and the notion of promises implied in law, or quasi-contracts, became fixed in the law in its modern form.8 It was gradually developed as a remedy in a large number of cases in which one person had unjustly enriched himself at the expense of another; and, as so developed, it in time rendered unnecessary much of that equitable interference with the common law which, at an earlier period, considerations of natural justice had necessitated.

Footnote 1: Maitland, op. cit. 547-542:

2: Vol. iii 446-457; Pt. II. c. 3 SS 3.

Footnote 2: Vol. iii 447-448.

Footnote 3: Vol. iii 447-448.

Footnote 4: Ibid 447-448.

Footnote 5: Ibid 447-448.

Footnote 6: Ibid 450-457; Pt. II. c. 3 SS 3.

Thus, as with the notion of contract and tort, so with the notion of contract and quasi-contract, English Law was gradually acquiring some definite notions of these fundamental distinctions in substantive law. Braction had tried to impose these notions

### 640 I.aw--Professional Development

upon a body of law which was far too immature to receive them. But, when English Law, by a road of its own, had attained a mature body of rules upon these topics, these fundamental distinctions, which he had borrowed from Roman law, reappeared. They were brought to light and used to elucidate and develop English Law, just as his speculations on various aspects of the law of bailment were recalled by Holt, C. J., in the case of _Coggs_ v. _Bernard_,1 and used to meet the demand for a more elaborate and a more definite body of rules upon this topic.

Footnote 1: Vol. ii a89; above gzr.

This summary shows us that the two most striking features in the development of those parts of the common law which regulate the relations of private persons are, firstly, the decay of the real actions and the decline in importance of the medieval land law ; and, secondly, the growth of mercantile law and of the two branches of law most closely related thereto--the law of contract and the law of tort. These two features show us that the development of the common law faithfully reflected the fact that medieval had finally given place to modern conditions. Nor is it surprising that it should thus faithfully reflect this change. Although the common law has been tenacious of medieval doctrines and medieval forms, its development by means of decided cases has always enabled it to keep in more or less close touch with the dominant needs and opinions of the day ; and, at this period, its newly won supremacy in the state caused it to be peculiarly sensitive to these needs and opinions. And so, in a land law changed in its contents, and changed in its importance in relation to other parts of the legal system, and in the development of those branches of the law most needed by a commercial and industrial nation, we see the technical expression of the changes which were taking place on all sides of the national life.

But all the needs of this new age could not be satisfied by the common law. To satisfy them, these developments of the common law needed, as we shall now see, to be supplemented and seconded by the development of a system of equity.

### _Equity_

It was during this period that some of the principles of equity, and the rules deducible from them, began to assume their modern form. Consequently equity made definite progress in that process of transformation which, when it is complete, will convert it into a system almost as fixed as that of the common law. Here I shall describe briefly the extent of the progress, which had

**EQUITY**

been made in this direction at the close of the seventeenth century, under the following heads :-Trusts ; Family Law ; the Administrative Jurisdiction ; Specific Relief ; Relief against Rigidity of the Law ; Mortgages ; and the Law of Property. In conclusion, I shall say a few words as to the evolution of the relations between law and equity which resulted from those developments.

_Trusts._

We have seen that, towards the end of the preceding period, there was a tendency to reconsider the question of the position of the second cestuique use, where a use had been limited on a use.1 But we have seen that there is no evidence that equity was prepared to do more than give relief in a case where non-recognition would lead to fraud ; and that it was unlikely that any further steps would be taken in this direction, because the universal recognition of the second use as a trust would be detrimental to the revenue which the king still got from the incidents of tenure.2 After the Restoration this consideration ceased to be operative ; and we find that such scanty evidence as there is all points to the conclusion that legal opinion was inclining to the recognition of the second use as a trust in all cases.

Footnote 1: Vol. v 307-309.

In the edition of Shepherd's Touchstone, which was published in 1651, it seems to be assumed that all uses not affected by the Statute of Uses, including a use upon a use, will be treated by the court of Chancery as trusts.3 Other authorities, on the other hand, seem to consider that the validity of the second use as a trust depended on the question whether or not the first cestuique use had given value. If he had, the second use would be void ; if he had not, it would be valid, and enforced as a trust.4 This question of the validity of a second use was discussed inLaw--Professional Development

_Ash_ v. _Gallen_ in 1668, but no decision was reached, as the case was compromised.1 However, in 1670-1671, the lord keeper told a committee of the House of Lords that, " the trust is now the same that uses were before. One is tenant in law, the other the usuftuctuary ";2 and it is clear from the case of _Sympson_ v. _Turner_, decided in 1700,3 that it was then well settled that the second use would be enforced as a trust. It was said in that case that, notwithstanding the Statute of Uses, there were three ways of creating an equitable trust ; " 1st, when a man seised in fee raises a term of years, and limits it in trust for A, etc., for this the statute can not execute, the termor not being seised. _2dy_, _where lands are limited to the use of A in trust to permit B to receive the rents and profits; for the Statute can only execute the first use._ 3rdly, where lands are limited to trustees to receive and pay over the rents and profits to such and such persons; for here the lands must remain in them to answer these purposes."4 It would seem therefore that, though the lawyers, out of regard for the older precedents, hesitated for a short time, they soon came to the conclusion that all uses which were not executed by the statute--uses of uses as well as uses of chattels and active uses--must be enforced as equitable trusts, and be governed by the rules which applied to those trusts.

Footnote 1: r Ch. Cas. 114-115--4 The private discourse of counsel," seems to adhere to the old law as to the invalidity of the second use.

Footnote 2: Hist. MSS. Com. 7th Rep. App. Pt. i 3 no. 16.

Footnote 3: I Eq. Cas. Ab. 383.

I have already said something of the formalities required by the statute of Frauds for the creation of trusts. Apart from this statutory change, during the whole of this period the law of trusts was being developed on the lines already indicated.5 Thus we get 'decisions upon the rights,6 duties,7 and liabilities 8 of trustees, and upon the nature of the interest of the cestutique trust,9 which show us that the law upon these matters is be

**EQUITY**

ginning to assume its modern form. Of this development I shall say something in a subsequent Book of this History. Here we may note, firstly, that the differences, which were already apparent between the charitable trust and the private trust, were maintained and developed ;1 and, secondly, that during this period the modern classification of private trusts had been reached. In 1676, in the case of \_Cook v. Fountain,2 Lord Nottingham said, " All trusts are either, first, express trusts, which are raised and created by act of the parties, or implied trusts, which are raised or created by act or construction of law ; again, express trusts are declared either by word or writing ; and these declarations appear either by direct and manifest proof, or violent and necessary presumption. These last are commonly called presumptive trusts ; and that is when the court, upon consideration of all circumstances, presumes there was a declaration, either by word or writing, though the plain and direct proof thereof be not extant."

Footnote 1: Vol. v 305; cp. r Eq. Cas. Ab. 97-98; as to the meaning of the term " charitable" in this connection see vol. iv 398 and n. 7.

Footnote 2: 3. Swansat. at p. 591.

Judicial decision had already begun to define these various categories of private trusts. Firstly, the existence of what Lord Nottingham calls presumptive trusts naturally gave rise to the question, From what words and circumstances will the court presume a trust? This introduced the vexed question of the precatory trust. In _Cook v. Fountain3_ Lord Nottingham, following the earlier decisions,4 laid down the principle, to which, in the latter part of the last century, the courts have returned.5 " The law," he said, " never implies, the Court never presumes a trust, but in case of absolute necessity. The reason of this rule is sacred ; for if the Chancery do once take liberty to construe a trust by implication of law, or to presume a trust unnecessarily, a way is open to the Lord Chancellor to construe or presume any man in England out of his estate." In spite of this warning, we can see that, just at the close of this period, the court was beginning to presume the existence of trusts from mere words of advice or recommendation, in cases in which it was obviously doubtful whether any trust was intended to be created.6 Secondly, further definition of trusts " raised or created by act or construction of law," was necessitated by the provision of the statute of Frauds exempting them from the section which required

### Law--Professional Development

the creation of trusts to be evidenced by writing.1 We can see also the beginnings of the doctrine that, though there is a presumption that, if a man purchases property in another's name and pays the money, there is a resulting trust for him who pays the money;2 this presumption may be rebutted by proof that the purchase was made by a father, and intended as an advancement for his son.3

Footnote 1: ag Charles II. c. 3 SSS 7 and SS 8; see e.g. Gascoigne v. Thwing (r685) t Vern. 366; Bellasis V. Compton (1693) 2 Vern. 294; as yet the law was not wholly clear as to when such a trust would arise--thus, in Lesily's Case (r680) Freeman Ch. 52, it was held that if a trustee of property, to which a third person had a title, bought in this title, he could hold it for his own benefit; but this was in principle contrary to Rushworth's Case (1676) 1bid Jr3; and to the modern law as laid down in Kecch v Sandford (r726) Sel., Cas. in Ch. 61.

Footnote 2: I Eq. Cas. Ab. 38o ; cp. Gascoigne v. Thwing (r685) t Vern. 366.

Footnote 3: Grey v. Grey (1677) t Ch. Cas. 296; 2 Swank. 594; cp. r Eq. Cas. Ab. 381, 382.

Footnote 4: Vol. iv 473-480.

We have seen that, as the trust concept gradually developed, it exercised an increasing influence upon many branches of English Law public and private.4 But in this period, as in the last, its main influence is as yet exerted in the sphere in which it originated--the sphere of Family Law.

Footnote 4: Ilid 371-322.

_Family Law._

The large additions which equity had made to this branch of the law at the end of this period, may be grouped under the following heads: The proprietary position of the married woman; topics connected with marriage; infancy and guardianship.

That the married woman could have property settled upon her to her separate use was now well recognized.5 But, as in the preceding period, some consideration was paid to the legal rights of the husband.6 Following the older precedents, the court laid it down that, as a general rule, such a settlement to be operative must be made with his consent and approval; and that any non-disclosure, and, a fortiori, any attempt to conceal such a settlement from him, would be fatal to its validity.7 Equity might, it is true, under special circumstances hold such a settlement valid,

## 645 Equitly

e.g. when a widow on a second marriage settled property on her children by her first marriage.1 But it is clear that the court was not as yet prepared to hold that, whenever property is given to a married woman for her separate use, she will always hold it free from her husband's control. Consent by the husband to such an arrangement still seems to be necessary.2 Nevertheless, as in the preceding period,3 the justice of securing a maintenance for the wife continued to be so apparent, that the court, acting on the principle that " he that comes to equity must do equity " continued to compel a husband, who resorted to equity to get his wife's portion, to make some sort of settlement upon her ; and thus the doctrine of the wife's equity to a settlement, which was beginning to appear in the preceding period, made progress.4 We can see a similar progress in the rules which resulted from this new proprietary capacity allowed to the wife. As in the preceding period,6 the cases show that the wife, in respect of her separate property, is treated as having the capacity of a fence sole for the purposes both of disposition 6 and litigation.7

Footnote 1: Hunt v. Matthews (t686) t Vern. 408.

Footnote 2: See Hillier v. Huller (t689) z Freeman Ch. tio. 3 Vol. v 312-314.

Footnote 4: Karl of Salisbury v. Bennet (t691) Skin. at p. 288-- 4 He concluded that the Lord Salisbury being plaintiff and seeking equity, ought to do equity, and therefore desired that my lord would be pleased to consider of a fitting settlement, suitable to what he had and should receive "; cp. Lupton v. Tempest (t708) z Vern. 626. In Scriven v. Tapley (t765) Amb. at'p. 509 the lord chancellor said, " The compelling settlements at first arose upon the husband coming here for assistance."

Footnote 5: Vol. v 314-34.

Footnote 6: E.g, Gold v. Rutland (t729) t Eq. Cas. Ab. at p. 348.

Footnote 7: Dubons v. Hole (t708) z Vern. 613.

Footnote 8: Vol. iii rg6-197; cp. Axtel v. Axtel (t679) z Ch. Cas. 24.

Footnote 9: Lawrence v. Lawrence (t669) 2 Vern. 265.

Footnote 10: z Eq. Cas. Ab. 220 pl. I; ibid zaz pl. 3, 5, 6, 8; ibid zaza pl. 9.

The evolution of these new rules as to the proprietary position of the married woman naturally involved, (i) the assumption of jurisdiction over marriage settlements in which the proprietary rights and powers of the parties were defined ; (ii) The assumption of a like jurisdiction over the proprietary arrangements consequent upon a separation; and (iii) the growth of certain rules as to the marriage contract itself.

(i) Several equitable doctrines first make their appearance in relation to marriage settlements. We have seen that the court had already decided that a jointure settled upon the wife, which was not a legal bar to dower, might yet be an equitable bar.8 It was also settled in this period that dower could be barred by a bequest of chattels, even though the bequest was not specifically stated to be in lieu of dower, if such intention could be clearly inferred from the will;9 and many cases were decided as to the rights of the wife to a jointure coven

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and as to her powers over the property thus settled.1 Similarly we get decisions as to the raising of portions for children of the marriage under powers contained in both settlements2 and wills;3 and upon the effects of the death of husband or wife upon their rights to property settled or agreed to be settled.4 It is in connection, both with these settlements, and with the law as to the administration of assets, that we begin to hear of the doctrines of Satisfaction, Election, and Conversion.5

Footnote 1: I Eq., Cas, Ab. 222 pl. 17, 12, 13.

Footnote 2: Poulet v. Poulet (t683) 1 Vern. 204, 321; Powell v. Morgan (t688) 2 Vern. go.

Footnote 3: Bartholemew v. Meredith (t684) 1 Vern. 276.

Footnote 4: I Eq., Cas. Ab. 68-70.

Footnote 5: "If a husband and wife agree to live separate, and that the wife shall have so much a year, such agreement will be decrered in equity," r Eq. Cas. Ab. 67 pl. 2; cp. Seeling v. Crawley (t700) 2 Vern. 386.

Footnote 69: "See cases cited in Pridgeon v. Pridgeon (t668) 1 Ch. Cas. 117.

Footnote 7: Ferrars v. Ferrars (t682) 1 Vern. 71.

Footnote 8: "Wherewood v. Whorewood (t675) 1 Ch. Cas. 250--The lord keeper said. " The wife shall return to her husband, who shall maintain and use her as a gentleman and a good husband ought to do; wherein if he fails, I will hear the wife's complaint with favour, and lay on the decree again, as cause shall be; but now suspend it saving to her the arreas."

Footnote 9: "Around v. Trevillian (t639) 1 Ch. Rep. 87.

Footnote 10: Hermann v. Charlesworth (t695) 2 K.B, at p. 137 _pr_ Cozens-Hardy, L.J. ; and see Drury v. Hooke (t636) 1 Vern. 412 (there cited), where a marriage brocage bond was ordered to be delivered up, because the marriage was brought about without the consent of the woman's parents--though it was also said that " such a bond was in no case to be countenanced."

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and as to her powers over the property thus settled.1 Similarly we get decisions as to the raising of portions for children of the marriage under powers contained in both settlements2 and wills;3 and upon the effects of the death of husband or wife upon their rights to property settled or agreed to be settled.4 It is in connection, both with these settlements, and with the law as to the administration of assets, that we begin to hear of the doctrines of Satisfaction, Election, and Conversion.5

Footnote 10: Whorewood v. Whorewood (t675) 1 Ch. Cas. 250--The lord keeper said. " The wife shall return to her husband, who shall maintain and use her as a gentleman and a good husband ought to do; wherein if he fails, I will hear the wife's complaint with favour, and lay on the decree again, as cause shall be; but now suspend it saving to her the arreas."

Footnote 11: "Around v. Trevillian (t639) 1 Ch. Rep. 87.

Footnote 12: Hermann v. Charlesworth (t695) 2 K.B, at p. 137 _pr_ Cozens-Hardy, L.J. ; and see Drury v. Hooke (t636) 1 Vern. 412 (there cited), where a marriage brocage bond was ordered to be delivered up, because the marriage was brought about without the consent of the woman's parents--though it was also said that " such a bond was in no case to be countenanced."

(ii) There are a number of decisions upon the effects of a separation, and upon the wife's rights to maintenance. Separation agreements, under which a maintenance was secured to the wife, were enforced by the court;6 and, apart from agreement, the court would decree maintenance, if the wife left the husband through the husband's fault.7 It seems to have been established in this period that the property thus coming to her was her separate property, of which she could dispose as she pleased;8 but in such cases the husband was no longer liable either at law or in equity for her debts.9 Further, if the husband offered to be reconciled, and the wife refused, the court would put pressure on her to consent by suspending the obligation to pay the sums due for maintenance.10

Footnote 12: "Around v. Trevillian (t639) 1 Ch. Rep. 87.

(iii) In the first half of the seventeenth century the court had laid down the general principle that the marriage contract ought to be the result of the free consent of the parties. It therefore held that a bond given by the plaintiff to the defendant, to pay a sum of money promised for effecting a marriage between the plaintiff and his wife, must be cancelled.11 But it was for some time doubtful whether the court would hold these agreements void in the absence of fraud, coercion, or total failure of consideration.13

**EQUITY**

It was not till the decision of the House of Lords in 1695, in the case of _Hal/_ v. \_Potter,\_1 that it was finally established that all such agreements were void, on the ground that they tended to vitiate that freedom of consent which the policy of the law required in the formation of a marriage contract. The House of Lords, in that case, reversed a decision of Lord Somers, and restored the decision of Trevor, M. R.,2 on the ground that "marriages ought to be procured and promoted by the mediation of friends and relations, and not of hirelings"; and that "the not vacating bonds, when questioned in a court of equity, would be of evil example to executors, trustees, guardians, servants, and other people having the care of children."3 After this decision the principle was given a wide application by courts of equity. Any agreement to procure a marriage for a money or other valuable consideration,4 or for payment of services in connection with, or preparatory to, such a marriage,5 was held to be void, on the ground that it was contrary to public policy; and it was held further that, if money had been paid in pursuance of such an agreement, it could be recovered back, even after the marriage had been celebrated.6 The attitude of the common law to bonds given in pursuance of these agreements was for some time more doubtful.7 Probably this was due to the difficulty of pleading the illegality of the consideration as a defence to an action on a bond. But this difficulty was diminished after the decision in _Collins_ v. \_Blantern ,\_8 and they came to be treated at law in the same way as they had long been treated in equity.9 Both at law and in equity contracts imposing a general restraint on marriage were held to be illegal;10 but a condition attached to a gift of

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property, that the donee should not marry without the consent of a certain person, was valid, if it was accompanied by a gift over.1 In several cases, contracts between one of the parties to the marriage and a third person, designed to deceive the other party to the marriage as to the extent of the property settled,2 or to get control of the property settled contrary to the intent of the settlement,3 were declared to be void.

Footnote 1: For a discussion of the results of the paper, see \[1\].

Footnote 2: For a discussion of the results of the paper, see \[1\].

Footnote 3: For a discussion of the results of the paper, see \[1\].

Footnote 4: For a discussion of the results of the paper, see \[1\].

The equitable control over infants, and the guardians of infants, arose in its modern form after the abolition of the military tenures, and the court of Wards and Liveries. The equitable jurisdiction was based, it is said, not on any inherent jurisdiction, but upon a special delegation by the crown of its prerogative right, as _parens patrie_, of looking after their interests. In \[696\], in the case of _Falkland_ v. _Bertie_,4 it was said, " In this court there were several things that belonged to the king as _pater patrie_, and fell under the care and direction of this court, as charities, infants, idiots, lunatics, etc. Afterwards such of them as were of profit and advantage to the king were removed to the court of Wards by the statute; but upon the dissolution of that court, came back again to the Chancery." This view has generally been accepted as the origin of this jurisdiction of the court;5 and it is true that, after the dissolution of the court of Wards, this jurisdiction of the Chancery developed. But it would be difficult to maintain that any such jurisdiction was ever exercised extensively by the Chancery before the court of Wards was created; nor is there any evidence that a specific grant of it to the Chancery was ever made. It might, indeed, have been possible, from the earliest period in the history of the court, to invoke its jurisdiction to control a guardian in socage; and this kind of jurisdiction was developing in the preceding period.6 But, as we have seen,7 in the case of the guardian of a child who held land by knight service, the very primitive notion that guardianship was the profitable right of the lord, lasted till the abolition of the military tenures, and effectually prevented the growth of modern ideas as to the guardian's duties.

**EQUITY**

The court, in dealing with infants, started from the old idea which underlay the "'demurrer of the parol"--the idea that, so far as possible, matters were to be left in statin quo till the infant came of age.1 Thus, to take one example, it was ruled that an infant could not be foreclosed without being given a day to show cause after he came of age.2 On the other hand, the court could by decree bind the infant's interest. Thus, though the infant could not be foreclosed while still an infant, the court could order a sale.3 Similarly, the court adapted substantially the same view as that adopted by the common law courts, as to the incapacity of the infant to do acts which would bind him. He could not levy a fine or suffer a recovery--though, in the seventeenth century, he might suffer a recovery if he got a privy seal allowing him to do so.4 He could not make a valid contract, nor could he be compelled to account;5 but equity laid down the rule that, if the infant continued to take benefits under a contract of a continuous nature after he came of age, he lost the right to revoke it.6 If he accepted property with a condition attached to it, he was bound by the condition.7

Footnote 1: Vol. III 533-514:

Footnote 2: Booth v. Rich (1684) I Vern, 295; cp, Bertie v. Falkland (1696) 2 Vern, at p. 342--''no decree shall be made against an infant without having a day given him to show cause after he comes of age.

Footnote 3: Booth v. Rich (1684) I Vern, 295.

Footnote 4: See vol. iii 578; Mackworth's case (1687) I Vern, 416; I Eq. Cas, Ab. 283 pl. I I.

Footnote 5: Finally v. Smally (1700) I Eq. Cas, Ab. 6 pl. 3.

Footnote 6: Franklin v. Thomebury (1682) I Vern, 132; cp, r Eq. Cas. Ab. 282-283.

Footnote 7: Fry v. Porter (1670) I Mod. 3oo at pp. 310-317; Scott v. Haughton (1706) 2 Vern, 560.

Footnote 8: I Eq. Cas. Ab. 261-262 pl. 2.

Footnote 9: Earl of Winchelsea v. Nordliffe (1686) I Vern, at p. 435.

Footnote 10: But it would appear that the sanction of the court was needed if the property was to be let on long lease; in Cecil v. Earl of Salisbury (1691) 2 Vern, at p. 295 it was said, "This court hath often decrered building leases for sixty years of infants' estates where for their benefit."

Footnote 11: Englefield v. Englefield (169t) 2 Vern, 236; above 632.

The incapacity of the infant was not supplemented to any very large extent by the powers of the guardian. The general principle seems to be that the guardian must preserve the property in statu quo, and strictly account. He could keep down the interest on incumbrances 8 and invest money.9 Presumably he could let farms, and do other acts of estate management.10 But as yet there is very little authority on this matter. If a guardian wished to act on behalf of the infant, he would be well advised to get the authority of the court, which could sanction the payment of money for maintenance 11 or other acts 12 for the infant's benefit. As yet the chief contribution which the court made to the law on this topic, was the strict control which it exercised over the

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guardians' dealings both with the property and the person of the child,1 and the adequate machinery which it employed to overhaul his accounts--the analogy of the trustee was easily applied.2 As we shall now see, it was this machinery which, in this period, as in the last, gave the court an increasing administrative jurisdiction, which embraced not only trusts and guardianships, but also a large variety of other subjects.

Footnote 1: "Guardians at common law may be removed, or compelled to give security, if there appears any danger of their abusing either the infant's person or estate ; and there are several instances of this kind . but there are none where a statute guardian (i.e. a guardian appointed under za Charles II, c. 24) has been totally removed. Some, where such terms have been imposed on the guardian, as effectually to prevent his doing anything to the prejudice of the infant; but _quaare_ whether such causes may not arise, for which he may be totally removed, notwithstanding the statute," I Eq. Cas. Ab. 26I.

3: "A guardianship is not assignable neither shall it go to the executors or administrators, being a personal trust," I Eq. Cas. Ab. 26I; cp. Bedall v. Constable (r66S) Vaugh. at p. 18I.

3: Vol. v. 139-140.

4: Eq. Cas. Ab. 52-56.

5: Ibid 370, 37I.

7: Edwin v. East India Company (1609) a Verma. 210.

8: Eq. Cas. Ab. 369-370; for details see Pt. II. c. 4 I. SSS 5 and 6, and II.

9: I Eq. Cas. Ab. 12 pl. 6 and 7; below 663-665.

_The administrative jurisdiction._

In the reports of this period we find a very large number of cases of very different kinds in which the plaintiff seeks, for one reason or another, to make the defendant account. I shall, in the first place, give one or two illustrations of these cases. It is clear from some of the decisions in them, that a certain number of rules were springing up as to the mode in which accounts should be taken; and therefore, in the second place, I shall mention a few of these rules. In this period, as in the last, the branch of this jurisdiction, which was most highly developed, was that concerned with the administration of the assets of a deceased person. During this period it made great progress; and, in connection with it, there were developed a number of important doctrines of equity. In the third place, therefore, I shall deal with this topic.

(1) We have seen that mercantile law supplied a large number of cases in which resort was had to equity, by reason of its effective machinery for dealing with matters of account.3 Cases of bankruptcy,4 cases between partners,6 and part owners of ships,6 cases between shipowners and chartercers,7 between merchants and their factors,8--all came before the court; and for the same reason we get cases between mortgagors and mortgages,9 and between principals and sureties,10 The court acquired this business in spite of the fact that the merchants were as dissatisfi

**EQUITY**

with the court of Chancery,1 as they were with the courts of common law.2 In addition, there are one or two miscellaneous cases which do not fall under any of these heads. Thus, the arrangement which made a captain responsible for the payment of his company, is illustrated by a case in which the administra-trix of a deceased captain got a decree against the colonel of the regiment, ordering him to account for the pay of the captain, of his servants, and of his company.3 In another curious case 4 (which testifies to a serious family quarrel), an aunt, who had received money for her niece's use, attempted, when sued for an account, to charge against this money the cost of the niece's board and lodging. The cost of this she put down at $\\mathcal{K}5$ per week, " alleging that she was a person of quality and fortune, and being courted by divers noble persons, much was spent on entertainments; but it appearing by letters read in court that the plaintiff came to the defendant's house at her invitation and as a guest only, the defendant being her aunt, it was said by the Lord Chancellor that it was no honourable demand, and decreed she should account without having any allowance for diet deducted."

Footnote 1: In 1696 the commissioners for trade had been asked to report on the state of trade to the House of Commons; in the course of their report they say, " There is another thing which the complaints of the merchants have given us occasion carefully to employ our thoughts about; 'tis a clog to trade, arising within ourselves, from the difficulties which controversies between merchants, concerning accounts meet with in the ordinary way of decision; the easing of merchants in this part, by a shorter way of determination, would, we humbly conceive, be a great furtherance to trade," Commons Journals xi 60%.

Footnote 2: Vol. 159 no. 8 and 9: 3 Bellasis v. Churchhill (17zi) a Vern. 68a.

Footnote 4: Arundel v. Roll (168a) 1 Vern. 16.

Footnote 5: Everard v. Warren (1678) 2 Ch. Cas, 249; but cp. Whicherly v. Whicherly (165g) 1 Vern. 470, where the rule was disapproved; but it was apparently followed in Marshfield v. Weston (1690) a Vern. 770; and became the established practice, r Eq. Cas, Ab, ir pl, 14.

(2) The court had already begun to make certain rules as to the mode in which accounts should be taken. Thus it was laid down that " the defendent on account shall be discharged by his oath of sums under 40s., but a party shall not by way of charge charge another person so." 5 The court refused to allow any such items as " general expenses," or "'sundries."6 Lapse of time, especially as between merchants, would bar an equitable claim to an account. It was even said that, " amongst merchants it is looked upon as an allowance of an account current, if the merchant that receives it does not object against it in a second or a third post."7 The question of the appropriation of a payment, when money was paid to a creditor by a debtor from whom several debts were due, and no appropriation was made

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by the debtor, was discussed in several cases ; but the decisions were conflicting \[1\]. It was decided that a trustee was not entitled to be paid for his trouble in administering the trust ; but that, if he employed agents, when to employ agents was usual, he could charge the cost in his accounts \[2\]. It is clear that some of these rulings upon points which arose in the course of the taking of accounts, contain the germs of equitable doctrines which have been elaborated in later times. This phenomenon, as we shall now see, is during this period most strikingly illustrated by the development of the law as to the administration of assets.

(3) By the end of this period the extent and nature of the jurisdiction of the court of Chancery over the administration of assets was fairly accurately defined. It may be described as extending over all matters which were not appropriated by the common law courts and the ecclesiastical courts. The common law courts had exclusive jurisdiction over the validity and interpretation of devises ; and, shortly after the close of this period, it was settled that equity could not interfere even in a case of fraud or imposition \[3\]. They also had jurisdiction over actions brought by or against the heir or personal representative \[4\]. The ecclesiastical courts had exclusive jurisdiction over grants of debate and administration. It was settled that, so long as probate was in force, the court of Chancery must accept the probate as conclusive \[5\]. On the other hand, the court of Chancery had practically taken over the jurisdiction of the ecclesiastical courts over suits for legacies, and suits for the distribution of residue. In theory, it is true, the jurisdiction of the ecclesiastical courts over these matters lasted till 1857 \[6\]; but it was generally ignored by the court of Chancery \[7\], on the

**EQUITY**

grounds, firstly, that the ecclesiastical courts could not do complete justice in these cases--they could not give any indemnity to an executor paying a legacy under an order of the court, they could not order the legatees to refund if other debts subsequently appeared, and they could not see that money left to infant legatees was properly invested for their benefit;1 and, secondly, that the machinery of these courts for taking the accounts of the estate was inadequate.2 Also the court had absorbed jurisdiction over all questions as to the construction of wills of personality.3 It had a concurrent jurisdiction with the courts of common law over the construction of wills of reality,4 and a concurrent jurisdiction with the courts of common law and the ecclesiastical courts over questions involving the revocation of wills of reality and personality.5

Footnote 1: Horrell v. Waldron (f681) a Vern, 26--a suit for a legacy to an infant, to which the defendant demurred " for that the matter was properly determinable in the consistency court where the matter depended"; the lord chancellor overruled the demurrer, saying, "that if the matter had proceeded to a sentence in the ecclesiastical court, it was proper to come here for the executor's indemnity, and that here legatees were to give security to refund but not there; and this court would see the money put out for the children "; cp. Jewon v. Grant (t677) 3 Swanst. 659; Noel v. Robinson (t682) a Vern, at pp. 93-94.

Footnote 2: Above 652 a m. 7. * See e.g. a Eq. Cas. Ab. 199, 200 p. 1-5.

Footnote 3: Ibid 407-413.

Footnote 4: Vol. v 316-319.

Footnote 5: * Upon a motion made by Mr. Stedman, when three several actions at one time were brought against an executor, and he to each action pleaded _riens entire mails ultra_ &foo, and so upon each action there was a judgment for PSfoo and therefore prayed an injunction, but it was denied by the Lord Keeper. In cases proper for law a man must defend himself by legal pleadings; and every executor ought to be careful in the first place to cover all his assets with a judgment," Anon. (t682) a Vern, 279.

Thus the control exercised by the court of Chancery over all questions of testamentary and intestine succession, and over the administration of assets, was large. We have seen that, in exercising this control, it accepted as a basis the rules laid down by the common law courts and by the ecclesiastical courts respectively in the exercise of their jurisdiction; but that, when it considered it to be necessary in the interests of justice, it modified them.6 Let us take one or two examples from cases decided in this period. Equity accepted the view of the common law as to the executor's position as the testator's representative.7 It refused to relieve him from the legal consequences of his own carelessness;8 but he could get the advice of the court as to the mode of administering the estate, and thus protect himself against any legal consequences that might ensue from the mode of administration adopted.8 It acccepted the legal rules as to the priority of certain debts;10 but it put decre

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the same footing as judgments.1 As in the preceding period, it protected the personal representative against the harsh rules of the common law which made him liable for a purely accidental loss of assets,2 and for all the acts of a co-executor.3 It could, as we have seen, compel a legate, paid in ignorance of the existence of a debt, to refund.4 Similarly, it protected both creditors and legatees against some of the harsh rules of the common law. Thus it made the executor of an executor liable for wasting the assets;5 it in some cases allowed executors to pay statute barred debts;6 it liberally construed any provision in a will which permitted reality to be used for the payment of debts;7 it refused to allow that, if a creditor made his debtor his executor, the debt was for any purpose extinguished;8 it considerably restricted the right of the executor to undisposed-of residue.9 With the rules of the ecclesiastical courts as to grants of probate and administration it did not, as we have seen,10 interfere. But, in absorbing their jurisdiction over legacies, it sometimes imported some of the rules laid down by those courts as to the construction of legacies.11

Footnote 1: Harding v. Edge (I682) r Vern. I43 and n. r.

Footnote 2: Executors of Lady Croft v. Lyndsey (I676) Freeman Ch. r.

Footnote 3: Churchill v. Hops (I713) x Salk. 318; vol. v 317.

Footnote 4: Above 653.

Footnote 5: Price v. Morgan (I676) 2 Ch. Cas, at p. 217--Lord Nottingham said, " Although by the common law, when the executor wastes, his executor shall not be liable, because it is a personal wrong; it is otherwise here, and the common law will come to it at last "; as Lord Hardwick said in Garth v. Cotton (I753) Dick at p. 216, Lord Nottingham was a true prophet, as the law was altered two years after by 30 Charles II. c. 7.

Footnote 6: Anon. (I707) 1 Salk. 154--''' If one by will or deed subject his lands to the payment of his debts, debts barred by the statute of Limitations shall be paid; for they are debts in equity, and the duty remains."

Footnote 7: Cp. Hixon v. Wytham (I675) r Ch. Cas. 248; vol. v 317.

Footnote 8: Vol. v 317; Phillips v. Phillips (I676) r Ch. Cas. 292; cp. Ashburner, Equity 596-597; for the legal rule see vol. iii 595.

Footnote 9: Foster v. Munt (I687) r Vern. 473; cp, vol. v 317.

Footnote 10: Vol. v 320; above 652.

Footnote 11: See Fidelity v. Bound (I683) r Vern. at p. 231 n.; thus certain rules as to when a legacy versus have been adopted from this source, Hanson v. Graham (I807) 6 Ves. 239; but sometimes the court refused to follow these rules, see Yate v. Fettylace (I700) Prec. Ch. at p. 742; the courts of common law also sometimes took account of these rules, see Portman v. Willis (I595) Cro. Eliz. at p. 387 _for_ Popham and Clench.

Footnote 12: Vol. iii 591, 594-595; vol. v 316.

Footnote 13: Vol. iii 591, 594-595; vol. v 316.

Footnote 14: We note that the court was not a legaladjustst the relations between heirs, devisees, and personal representatives, between reality and personality, between beneficiaries of all kinds and creditors of all kinds.1 In the second place, the success of the court of Chancery was due to the application of some of the ideas derived from the law of trusts to the position of the personal representatives.2 These ideas operated to the advantage of the personal representative, in so far as they modified some of the strict rules of liability laid down by the common law. They operated to the advantage of creditors and beneficiaries, in so far as they put some restrictions upon the absolute powers over the assets conferred upon the personal representative by the common law. Thus the court of Chancery, while modifying harsh legal rules, was able to construct new and better rules for the administration of estates, and, in the course of the construction of these rules, to originate several important doctrines of equity.

Footnote 1: See Lives of the North's 1 404-405 for a good tale illustrating the hardships of the common law rules, and the manner in which they might be guarded against, and the estate administered fairly, by filing a bill in Chancery.

This method of developing the law on this subject, by modifying and supplementing old rules, has undoubtedly had the defect of making this branch of the law very complicated. At the same time the court of Chancery has succeeded in correcting the main defects of the old law, which flowed from the absence of adequate administrative machinery in the case of the common law courts, and from the weakness of the ecclesiastical courts; and it has given English law, what it never possessed before, an adequate set of rules for administering all assets real and personal, and an adequate supervision over the conduct of the personal representative. Of the origins and growth of these equitable rules for the administration of assets I shall speak more at length in a subsequent Book of the History. Here I can only give one or two illustrations of the manner in which some of them originated.

We have seen that the common law had already evolved certain rules as to the order in which various kinds of debts were payable out of the assets of a deceased person.3 On the other hand, there were no rules as to the order in which different kinds

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of assets were liable for debts, except the rule that real estate descended to the heir was only liable for specialty debts in which the heir was bound.1 But in equity some such rules were necessary, because, in the first place, new forms of ownership and new forms of property were recognized in equity; because, in the second place, the liability of reality to the payment of debts was often effected by testamentary directions of different kinds which subjected it to the payment of debts;2 and because, in the third place, further complications were sometimes introduced by similar directions making it liable to the payment of legacies. Thus we begin to get a number of rules as to the order in which assets are liable for debts and legacies.3 Further, although equity accepted as its basis the legal rules as to the order in which debts were payable out of the assets, it occasionally interfered to correct these legal rules;4 and, in the case of property which was not assets at law, it made considerable departures from these rules.3 In the existence of this property we can see the beginnings of the conception of equitable as distinct from legal assets; and both the order in which debts were payable out of these equitable assets, and the manner in which creditors could make them available, were beginning to cause them to differ markedly from legal assets. As a result of these developments, we begin to get various equitable rules as to the marshalling of assets. Equity took the view that, so far as possible, all creditors and legatees should be paid; and so we find that it adopted the principle that, if there is a creditor or a legatee who has two funds to resort to, and a creditor or a legatee who has only one fund, and if the former exhausts the only fund available for the latter, the latter can come upon the fund which the former might have taken. In this period this principle was applied both in favour of legatees 6 and of creditors.7 But as yet the order in

**EQUITY**

which the different kinds of assets are available for the payment of debts and legacies is by no means clearly worked out, so that the doctrines of marshalling are as yet rudimentary.

In the administration of an estate, very many of the questions arising out of the construction of testamentary instruments were questions between near relatives. They were therefore closely akin to those problems of family law, with which equity was already familiar through its jurisdiction over trusts. In solving these problems, equity made certain presumptions as to the intentions of the parties, which, in the following period, hardened into definite equitable rules. It is to these presumptions that we owe the doctrines of Satisfaction1 and Election;2 and it is partly to the presumption that that must be regarded as done which ought to be done, partly to the necessity, in administering estates, of adjusting the claims of those entitled to the reality and those entitled to the personality, that we owe the beginnings of the doctrine of Conversion.3 During this period all these doctrines have emerged, but they have not as yet been elaborated.

Footnote 1: See Smith v. Duffield (1690) 2 Vern, r77; Duffield v. Smith (1692), ibid 258; Brown v. Dawson (1705), ibid 498.

Footnote 2: Pilie v. File (1661-1662) r Ch. Rep. r99; Herne v. Herne (1706) 2 Vern. 555,

Footnote 3: Prideux v. Gibben (1653) 2 Ch. Cas. IA4; Annand v. Honeywood (1685) 1 Vern. 345--money given by a freeman of London to be laid out on land and settled on his eldest son is not an advancement ; Randall v. Bookey (1701) 2 Vern. 425--rights of the heir in case of a conversion of land into money, where the purposes for which the conversion was directed did not exhaust the money ; and cp. Lingen v. Souray (1715) r Eq. Cas. Ab. 175 pl. 5.

Thus, the conception of the trust, experience derived from attempts to solve many of the problems of family law, and an adequate machinery for the conduct of administrative work--have all combined to give equity a large control over the law as to the administration of assets ; and the first and the last of these causes gave it a control over many other branches of the law, which needed a court with the power, both of supervising accounts, and of enforcing liability for fraudulent or negligent conduct disclosed by those accounts. We must now turn to some other branches of the equitable jurisdiction which rest upon somewhat different grounds.

_Specific relief._

One of the ideas upon which the doctrine of Conversion rests is similar to the idea which underlies the attempt of equity to give specific relief. This is the idea that, so far as possible, a person should be made to do the exact thing which he has

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contracted to do, or which he ought legally to do.1 In the case of the doctrine of Conversion, equity simply assumes that a legal obligation has been fulfilled and acts accordingly. In the various cases in which it gives specific relief it is obvious that legal duties, contractual or otherwise, have not been fulfilled ; and equity attempts to secure their fulfilment. As in the preceding period,2 we can divide these cases under the three heads of contract, property, and tort.

Footnote 1: See Tailby v. Official Receiver (1888) 13 A.C. at p. 546 _for_ Lord Macnaghten; Fry, Specific Performance (5th ed.) 33-34, points out that that doctrine may later have had some influence on the law on the subject of specific performance; dealing with the rule that both vendor and purchaser in a contract to buy land may enforce specific performance, he says, " The doctrine of Equity with respect to the conversion of the land into money, and of the money into land upon the execution of the contract, and the lion which the vendor has on the estate for the purchase money, and his right to enforce this by the aid of the court, are additional reasons for extending the remedy to both parties."

Footnote 2: Two of the cases cited in support of it are Hollis v. Edwards (t683) 1 Vern. 159; Marquis of Normany v. Duke of Devonshire (t697) Freeman Ch. 246; both are cases in which part performance was alleged to get out of the statute of Frauds; possibly the court thought that it was for the courts of common law to determine the enforceability of the contract by construing the statute; they seem to be quite contrary to Butcher v. Stapelley, below 659 n. 4; probably the practice was conflicting; but the principle was applied in Bettisworth v. Dean of St. Paul's (1726) Cases t. King 66 at p. 69.

The various forms of specific relief given in relation to the law of contract were, as yet, hardly distinct. The court, as in the preceding period, both granted specific relief in the case of executed contracts, and decreed the specific performance of executory contracts.3 There is some evidence that, till the time of Lord Somers, equity did not grant the specific performance of executory contracts, unless the plaintiff had first recovered damages at law.4 There was clearly a tendency to adopt this principle;6 but it was negatived by the House of Lords in 1728.6 Obviously, if it had been adopted, the equitable doctrine of part performance, of which we see signs at the close of this period,7 could never have arisen, because, for the breach of contracts which were unenforceable by reason of non-compliance with the statute of Frauds, no damages could have been recovered. At the same time, the existence of a tendency to adopt this principle emphasizes the discretionary character of the specific relief given by equity, and thus tends to hinder the growth of clear rules as to the kinds of contracts in which the court will give it.8 On the other hand, the fact that the grant

**EQUITY**

of this relief was discretionary made it possible for equity to look closely at the conduct of the parties, and to insist that it should be fair and reasonable.1 It was partly this insistence upon a high standard of honesty which was at the root of the equitable modification of the statute of Frauds, which developed into the doctrine of part performance; and partly the tendency of equity judges to restrict the operation of a statute which, being designed to meet defects in common law procedure, was much less useful when applied in courts of equity.2 From the first, equity insisted that the statute must not be made a cloak for fraud;3 and some of the earlier cases in which the plea of the statute was overruled on the ground of part performance, seem to proceed on the ground that, in the circumstances, it would be something very much like fraud on the part of the defendant not to carry out his contract.4

Footnote 1: For a review of the results of this paper, see \[1\].

Footnote 2: Above 393:

Footnote 3: Above 393:

Footnote 4: Butcher v. Stapley (1685) r Vern. 363--a parol agreement for purchase of land, of which possession had been delivered, was ordered to be executed as against Stapley, a purchaser for value with notice; the lord chancellor said that, "as possession was delivered according to the agreement he took the bargain to be executed, and that Stapley had notice of it, and that it was a contrivance between the defendants to avoid the bargain "; Lester v. Foxcroft (r700) Collis r08; but as yet the basis and limitations of the doctrine are by no means clear, above 658 n. 5; below 660-661.

Footnote 5: Vol. v 333-324.

- (r709) 4 Bro. P.C. 373; such an injunction would not be granted after one trial only, Fitton v. Macclesfield (r684) r Vern, at p. 293; it is referred to as an established practice in a letter to the Marquis of Halifax in r68o, Foxcroft, op, cit, i 220.

Footnote 6: P.T. II. c. r SS 1.

Generally the specific relief given in cases connected with the law of property was very similar to that given in the preceding period.5 The practice of issuing injunctions to quiet possession, after the title to property had been in issue in several actions of eigectment, was finally sanctioned by the House of Lords in the case of \_The Earl of Bath v. Shervain.\_6 In that case there had been five trials at Bar, which had all ended in favour of the appellant. A perpetual injunction against further proceedings was granted; and thus equity helped to remove the chief remaining defect of the action of eigectment--its want of finality.7 Agreements between lords and commoners as to inclosure,8 or stinting 9 the common, were enforced. Underlsesees were sometimes relieved from a forfeiture on terms.10 In one case, in which a house had been taken by the Parliament

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during the Great Rebellion and used as a hospital for the troops, the chancellor said that, if he could, he would relieve against the obligation to pay rent.1 In the two well-known cases of _Pusey_ v. \_Pusey_2 and the _Duke of Somerset_ v. _Cookson,3_ the court interfered to order the return in specie of a chattel of peculiar rarity.

Footnote 1: Harrison v. Lord North (1667) : Ch. Cas. 83:

Footnote 2: (1684) r Vern. 273--decided partly on the ground that the horn was an herifoon : if the land was held by the tenure of a horn : the heir would be well entitled to the horn at law."

Footnote 3: (1735) 3 P. Wms. 390: 4 Vol, v 324:325.

Footnote 4: Underwood v. Staney (1665) r Ch. Cas. 77-78--." It was in the debate of this case said, that if a grantee in a voluntary deded, or an obligee in a voluntary bond, lose the deed or bond, they should have remedy against the grantor or obligee in equity. _Tamena guare_. But if so, no mistake in the principal case, where the bond was for money lent; and though the surety had no advantage, yet the obligee had pareted with his money, and loss is as good a consideration for a promise as benefit or profit," for a refusal to rectify an omission in a voluntary conveyance see Lee v. Henley (1681) 2 Vern. 37-38; below 662 and n. 6.

The cases in which injunctions were applied for to stop the commission of torts do not materially differ from the cases which arose in the preceding period.4 The most common cases are those in which an injunction was applied for to prevent the commission of waste.6

Footnote 7: Sims v. Urry (1676) 2 Ch. Cas. 225:

_Relief against the rigidity of the law._

As in the preceding period, specific relief and relief against the rigidity of the law, shade off into one another. But some of the cases falling under the latter head in the preceding period, have begun, in this period, to develop into independent heads of equitable jurisdiction. Instances are the law as to mortgages, and the law as to choses in action. A good many cases were still left : but they were being systematized and reduced to rule. We can group these cases under the following heads : (i) The conduct of the parties ; (ii) The law of evidence ; (iii) The law of property ; and (iv) The law of contract.

(i) The court relieved purchasers against accident and mistake. Thus an obligee of a bond accidentally lost was relieved in equity, and allowed to recover against the surety;6 and, on similar grounds, it relieved against obvious clerical errors, e.g. where in a bond to pay \_$200, _$40_ was inserted as the penalty instead of \_$400.7 It relieved also against fraud. Under the head of fraud it included both kinds of sharp practice, whether it took the form of _suppressio veri_ or _suggestio falsi,8_ and also undue influence.9 The mere fact that a person had made a bad bargain would not

## 6 Equity

induce the court to interfere1--there must be circumstances of fraud or oppression.2 But, in the cases in which equity interfered to set aside catching bargains made with expectant heirs, we can see the beginnings of the class of cases in which, from the circumstances of the parties, equity will presume against transactions entered into between them.3

Footnote 26: See Philips v. Carew (170

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cannot be said that the equitable rules were either so clear or so satisfactory as those laid down by the courts of common law.1 It would seem that, in some cases, the courts admitted parol evidence of intention, not only to rebut a presumption raised by equity,2 and in a case of equivocation,2 but also to prove that the author of the document meant something different from that which he had expressed.4 It would seem that this course was justified on the ground that it was admitted to inform the conscience of the court;5 and this idea may well have exercised a disturbing influence, which accounts for the unsatisfactory treatment of the problem by the court.

Footnote 1: Pt. II. c. 7 SS 1; cf. Falkland v. Bertie (t596) 2 Vern. at p. 337 _per_ Treby, C.J., and 339 _per_ Holt, C.J.

Footnote 2: Granvill v. Beaufort (t709) 2 Vern. 648.

Footnote 3: Pendleton v. Grant (t705) 2 Vern. 517.

(iii) In the law of property equity, in favour of purchasers or creditors or children, would supply defects of form in conveyances e.g. the want of a surrender in a conveyance of copyright\];6 and similarly, in favour of creditors or portioners or children, it would remedy the defective execution of a power.7 It relieved also against the legal extinguishment of rights by merger or similar means, when such an extinguishment was clearly contrary to the intention of the parties.8 Mergers it was said, were odious in equity;9 and, on similar grounds, it relieved against the extinguishment of a right of common through an enfranchisement.10 Similarly, it would relieve against the consequence of a breach of a condition subsequent on equitable terms. In _Popham v. Bampfield11_ it was said, "Precedent conditions must be literally performed; and this court will never vest an estate where, by reason of a condition precedent, it will not vest in law. . . But of conditions subsequent, which are to divest an estate, there it is otherwise; yet of subsequent conditions, there is this difference to be observed (for against all conditions subsequent, this court

**EQUITY**

cannot, not ought to relieve), when the court can in any case compensate the party in damages for the non-precise performance of the condition, there it is just and equitable to relieve, as if a man's estate be upon condition to pay money at a certain day, and he fails of payment; but where the party cannot be compensated in damages, it would be against conscience to relieve."

(iv) Analogous to this relief against the consequences of the breach of conditions is the relief given to a party to a contract against a penalty, or against a failure to pay by a specific date.1 But already equity had begun to limit the former relief to cases in which the sum promised was clearly out of proportion to the loss incurred ;2 and the latter relief to cases in which the time was clearly not of the essence of the contract.3

Footnote 1: Vol. v 330.

Footnote 2: Tall v., Ryland (1679) r Ch. Cas. 183--The plaintiff and the defendant were fishmongers who had contiguous shops ; differences arose, which were compromised on the terms that the plaintiff should give the defendant a bond with a penalty of $\\not{\\sim}$20 conditioned to behave himself civilly; the plaintiff, having incurred the penalty of the bond, and judgment having been given on it against him, applied to the court for relief. * The defendant demurred for that the bond was not conditional for payment of money or performance of covenants . . nor was there any way to measure the damages but by the penalty ? ; the court allowed the demurred, though without costs, and said that * this was not to be a precedent in the case of a bond of $\\not{\\sim}$20 or the like." .

Footnote 3: Sewall v. Musson (1653) r Vem. zro--a creditor agreed to take less than his debt provided the money was paid at a certain day ; the debtor will not be relieved against failure to pay on the day.

_Mortgages._

We have seen that the relief given by equity to the mortgagor originally depended on principles similar to those which underlay the relief given in cases of the breach of a condition, and in cases of penalties ; but that, the regularity with which this relief was given, had altered its basis, and caused it to depend, not upon the existence of any supposed hardship, but upon a right belonging as of course to a mortgagor.4 The result had been to make the mortgagor's equity to redeem a right of property. He had an equitable estate in the land ; and, subject to the legal rights of the mortgagee, was, in equity, regarded as its owner. It was during this period that the consequences of this new right of the mortgagor began to be worked out.

Footnote 4: Vol. v 330.

We start with the principle that in equity the mortgagee has only a right to his principal and interest, and that he holds his estate in the land merely as a security for that principal and interest.5 From this principle equity had in this period deduced four leading rules. Firstly, the mortgagee, who entered into

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possession of the property, was liable to account for any advantage over and above his interest which he got thereby.1 Secondly, if the mortgage died, the money (for which the property was only a security) was payable to his executor,2 and, conversely, if the mortgagor died, the mortgage debt was payable primarily out of the personal estate.3 Thirdly, the mortgagor's equity of redemption was exercisable, not only against the mortgage and his assigns, but also against all others who took the property thus mortgaged.4 Fourthly, in order that these rights of the mortgagor might not be able to be diminished by terms imposed upon him by the mortgage, this right of redemption could not be clogged or fettered in any way ; and any agreement which had this effect was void.5 Already the long line of cases as to what agreements were void under this rule was beginning to cause differences of judicial opinion.6

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equity. The only other considerable change, affecting not only the land law, but also the law of property generally, was the final establishment in the _Duke of Norfolk's Case_ of the modern rule against perpetuities.1 The establishment of this rule was, as we have seen, rendered necessary by the fact that owners of property made use of their large powers of disposition to fetter freedom of alienation. Similarly, in other parts of the land law, equity made some small modifications, which were rendered necessary by the manner in which the new powers of disposition acquired by landowners were being used by them. Thus we begin to get decisions upon such devices as the creations of long terms of years to secure charges, and the manipulation of these terms when they had been satisfied;2 and upon the position of trustees to preserve contingent remainders.3 Very many questions as to the construction of deeds and wills came before the court;4 and some of these cases, then as now, exercised considerable influence upon the forms invented by the conveyancers to carry out the wishes of their clients. The desire of equity to carry out the intention of the parties led it, in many cases, to lean against construing co-ownership as joint tenancy, and to favour tenancy in common;5 and the all-pervading influence of the trust concept induced the court to lay down some very rigid rules as to the liability of a purchaser to see to the application of the purchase money.6

Footnote 1: Above 545, 627; Pt. II. c, r SS 6.

Footnote 2: See e.g. Nurse v. Yerworth (1674) 3 Swansat, at p. 612; Chapman v. Bond (1683) I Verm. 183.

Footnote 3: Davies v. Weld (1683) I Verm. 181; Pye v. George (1710) 2 Salk, 68o.

Footnote 4: See e.g. r Eq. Cas. Ab. 177 pl. 12, 15; 183 pl. 24--cases of devises ; ibid 294--cases of legacies.

Footnote 5: Ibid 290-293.

During the whole of this period the court of Chancery, in combination with the courts of common law, the legislature, and the conveyancers, had, without abandoning the fundamental principles of the medieval land law, been supplementing it and transforming it into the modern land law. At the end of this period this transformation had been effected; and we can see from these few illustrations the manner in which equity was beginning to shape the details, and to control the working, of this modern land law. It is this process of shaping and control that will mainly occupy the attention of the courts and the conveyancers during the following century.

In the law of personal property equity made great developments. This was partly due to the fact that, as a result of changes in commercial conditions, we get such things as stock and shares, which, being in their nature almost as permanent as land, admitted of being settled in a similar manner. Partly it was due to the fact

**EQUITY**

that the machinery of the trust enabled all kinds of chattels to be settled to go by way of succession as easily as land.1 It is true that such chattels could not be entailed; 2 but they could be settled on a person for life, and then to successive owners, provided that the period allowed by the rule against perpetuities was not exceeded. Thus the law of personal property gradually emancipated itself from that dependence on law of tort, which was its most marked characteristic in the middle ages.4 We have seen,4 too, that the readiness with which equity recognized new forms of property, led it to treat as property, not only such things as the rights of the cestuique trust to the trust property, and rights to stock or shares, but also rights under a contract or covenant5--all of which things the law grouped under the compendious title of choses in action. Equity treated them as property and allowed them to be assigned as property; and it can hardly be doubted that this divergence between law on equity is the reason why it is so difficult to define a chose in action.6 Anything which the common lawyers refused to treat as assignable property was grouped by them under this general description; and thus it included many diverse things for which equity was beginning to lay down different rules.7 In particular, equity was beginning to lay down some definite rules for the assignment of rights under a contract. It would assist an assignee, provided he had given consideration;8 but he took subject to equities;9 and the debtor could safely pay the assignor till he had had notice of the assignment.10 From the first the question whether a man had had notice was of vital importance in many different branches of equity. And it is natural that this should be so. Equity acted in personam, and interfered to make the person do what he conscientiously ought to do.11 Hence it could not interfere with a person who had got a legal title for value and without notice of any equitable claim to the property.12 Naturally the question what could be regarded as notice soon became important; and, by the end of this period, equity was elaborating rules as to constructive notice.13 In the particular case of an assignment of a right under a contract, it was clearly impossible to expect a debtor to

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pay any other than the original creditor, unless he had had notice of the assignment. And thus, in this connection, notice becomes all important, not as a step in the title of the assignee, but as a necessary security that the thing he has got will not be destroyed by a payment made by the debtor to the assignor.

This summary of the progress made in the development of the principles of equity shows us that equity has, at the close of this period, assumed its final form. It has become in substance a body of rules, which either deals with matters wholly outside the common law, or exercises a jurisdiction concurrent with that of the courts of common law or other courts, or acts in aid of proceedings in the courts of common law or other courts. Its jurisdiction over trusts is an instance of its exclusive jurisdiction, its jurisdiction over the administration of assets is an instance of its concurrent jurisdiction, its jurisdiction to grant discovery is an instance of its auxiliary jurisdiction.1 Equity still could and did, where it was necessary to the effective exercise of its jurisdiction, issue injunctions to restrain proceedings at common law or elsewhere ; but, with the gradual settlement of the sphere of its jurisdiction, the occasions on which it would thus interfere with the law tended to become fixed. As we shall now see, the result was that law and equity at the close of this period were tending to become, not rivals, but partners, in the work of administering justice.

Footnote 1: For this classification of the equitable jurisdiction and its later development see Ashburner, Equity t-12.

_The relations between law and equity._

This change in the character of equity, which thus affected the relations between law and equity, is due to three main causes.

In the first place, the procedure of the court had developed into a fixed system. We have seen that in the preceding period its procedure had been the most highly developed part of the system of equity.2 Both the books of practice and the reports show us that in this period it had attained almost its final form.3

Footnote 2: Vol. v 302.

Footnote 3: Roberts v. Wynn Ch, Rep. 236.

Footnote 4: This Lordship with the judges were of opinion that the said will was obtained by great fraud and circumvention of the defendant Wynn, but by reason the precedents did not fully reach to this case . therefore his Lordship and the judges held it not only.

In the second place, equity was fast becoming a system of case law. In 16634 Clarendon, though he was satisfied that a defendant ought in equity to be relieved, yet delayed his decree, and finally refused relief, because no precedent had been cited which covered the case before the court.5 In 1670, when Vaughan,

**EQUITY**

C.J., expressed surprise that precedents should be cited in a court of equity, Bridgman, L.K., replied that they were both necessary and useful--"in them we may find the reasons of the equity to guide us; and besides the authority of those who made them is much to be regarded. . It would be very strange and very ill if we should distrust and set aside what has been the course for a long series of times and ages."1 We have seen that Lord Nottingham laid it down that the conscience which should guide the chancellor was not _naturalis et interna_, but _civilis et politicia_;2 and in 1734 Jekyll, M.R., laid it down 3 that, "though proceedings in equity are said to be _secundum discretionem bonti viri_, yet when it is asked, _viv bonus est quis?_ The answer is, _qui consula patrum, qui leges jurague servat._" A discretion otherwise exercisable " is a power which neither this nor any other court, not even the highest, acting in a judicial capacity, is by the constitution entrusted with."

Footnote 1: Fry v. Porter r Mod. at p, 307.

Footnote 2: Cowper v. Cowper z P. Wms. 685-686. On the whole topic see Ashburner, Equity 48-50.

Similarly, though reporters of equity cases might think it necessary to apologize for the publication of their reports,4 the chancellors found them necessary to guide their decisions, the practitioners found it necessary to collect them and use them, and the publishers soon found that, when printed, they had a ready sale. Equity, as Nelson said in the preface to his reports, had become artificial reason, and had such a mixture of law in it, that it would be much easier now for a lawyer to preach, than for a bishop to be a judge of the court of Chancery.

But, though this practice of relying upon the authority of decided cases was clearly making for fixity of rule, it was slow in its operation; and, at the close of this period, it had not as yet produced many fixed principles, still less many detailed rules. This was due to several causes. Firstly, the fact that the chancellor still decided each case which came before him upon its own facts and circumstances, as elicited by the examination of the parties and witnesses, gave him more opportunities than the

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common law judges had of distinguishing cases, and of deciding the case before him in accordance with his own notions of what was just. Hale, in discussing the question whether appeals from the Chancery should go to the House of Lords, could advance, as one of the reasons against the appellate jurisdiction, that equity cases were governed so much by circumstances that they were unfit to be heard by a large tribunal.1 Secondly, a strong chancellor, like Lord Nottingham, could, as we have seen,2 sometimes recall the original conception of equity in order to lay a fair rule without regard to previous decisions. Even when this was no longer possible, the court, as Ashburner has pointed out, retained, down to the passing of the Judicature Acts, "The power of enlarging its jurisdiction by the application of its established principles to new combinations of facts."3 Thirdly, the undeveloped state of many of the branches of equity gave large opportunities to a strong chancellor of shaping their development as he pleased. For these reasons the recognition of the authority of decided cases did not quickly produce fixity in the principles of equity. But it is clear that, as the ground becomes covered by decisions, their cumulative weight will tend more and more to the attainment of this result.

Footnote 1: https://www.math.ucsd.edu/~

## 64 Equity

special circumstances of the parties, than upon the ascertainment and application of fixed rules to a certain set of facts found by a jury ; to a jurisdiction in which law and fact could not be precisely separated. Decisions which depended essentially upon the peculiar facts of a case, were sometimes supposed to lay down a rule of law to be followed in other cases ; with the result that the court often found itself occupied, rather with the task of reconciling and distinguishing cases, than with the task of considering the merits of the case before it. The accumulation of cases which turned solely upon the construction of documents, and the evolution of unduly harsh rules for the conduct of trustees, are illustrations of some of the disadvantages of that transformation of equity which was just beginning at the close of this period. On the other hand, this transformation had advantages which, on the whole, outweighed the disadvantages. It was an advantage that the principles of equity should become more fixed, and therefore more capable of being known to those affected by them. Above all it was an advantage that there should be such an approximation between law and equity, that the embittered contests between them, which marked the last years of the sixteenth and the early years of the seventeenth centuries, were rendered impossible. We hear, it is true, both in Parliament 1 and in the courts,2 slight echoes of these controversies. But they are only echoes ; and the tracts in which, in 1695 and 1699, Sir Robert Atkyns tried to revive them, fell very flat.3 The old rivalry between law and equity was dead. Each was ready to recognize the sphere of the other ; and thus a parallel and a harmonious development of both was ensured, which rendered possible that settlement of their spheres and principles which was the work of the eighteenth century.

Footnote 1: In 1676:1677, Marvel writes (Works, Ed. Grosart li SI2-513), " There was a sharpe complaint of several judges ... but the debate spent itselfe upon the Chancery, and was formed into this resolution ; that the extraordinary power and jurisdiction exercised by the high court of Chancery, and other courts of Equity, in matters deterninable by common law, is giv givcous to the people. The House agreed, and ordered a Bill or Bills to redress it ; " or. vol. i 463-465.

Footnote 2: Thus in Roscarnick v. Barton (1672) $\\dagger$ Ch. Cas. at pp. 219, 220, Hale, C.J., said, " By the growth of equity on equity the heart of the common law is eaten out, and legal settlements are destroyed. ... It is a great sore that mortgage

## References

- \[1\] A. A. K. K.

## Appendix I The original Drafts of the Statute of Frauds

hist miss. commission ninth Rep. app. pt. ii no. 202, pp. 48-49

April 14, 1675, Frauds and Perjuries Bill.--Ameded draft of an Act for Prevention of Frauds and Perjuries. The original text, including the omitted portions, is the Bill of 1673-1674 (No. 174), re-copied. The additions now made in Committee are shown by italics, the omissions by small capitals.

"For prevention of many fraudulent practices, which are commonly endeavoured to be upheld by perjury and suborination of perjury, Be it Enacted by the King's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal and the Commons in this present Parliament assembled, and by the authority of the same, That from and after the _Twentieth_ day of _February which shall be in the year of our Lord 1675_ all Leases, Estates, Interests of _Treehold_, or terms of years, _or any uncertain interest_ of, in, to, or out of any Messauges, Manors, Lands, Tenements, or Hereditaments made or created _by\_\_Livery and\_\_Sisin only_ or by Parole, and not put into writing by direction of the parties thereunto and signed by the parties so making or creating the same or their Agents Hereunto lawfully authorised by writing, shall have the force and effect of Leases or Estates at will only, and shall not, either in Law or Equity, be deemed or taken to have any other or greater force or effect, any consideration for making such Parole Leases, or Estates, or any former law or usage to the contrary notwithstanding. _Except nevertheless all leases, not exceeding the term of three years from the making thereof, whereupon the rent reserved to the landiod during such term shall amount undo two third parts at the least of the full improved value of the thing denised._ And moreover no Leases, Estates, Interests, _either of\_\_Frehold_, or terms of years, _or any uncertain interests_,1\_,\_ of, in, to, or out of any Messauges, Manors, Lands, Tenements, or Hereditaments shall at any time hereafter be assigned, transferred, _granded_, or surrendered, unless it be by ded or note in writing, _signed by the party or parties so assigning, granting, or surrendering the same, or their agents thereunto lawfully authorised by writing,_ or by Act and operation of Law.

"And be it further enacted by the authority aforesaid that, in ALL actions upon the CASE, actions of DET, or other personal actions, which FROM AND AFTER THE DAY OF SHALL BE COMMENCED UPON ANY ASSUMPSIT, PROMISE, CONTRACT, OR AGREEMENT MADE OR SUP-POSED TO BE MADE BY PAROLE, AND WHREREOF NO MEMORANDUM, NOTE, or

## Appendix

memorial in writing shall be taken by the direction of the parties thereunto, no greater damages shall at any time be recovered than the sum of any law or Usage to the contrary notwithstanding.

"Provided that this act shall not EXTEND TO such actions OR suits which shall or may be grounded upon contracts or Agreements for Warges sold, or money Lem, or to run any quantum Merbit, or any other assumptions or promises which are defeated by the construction or operation of law ; But that all and every such action shall and may be sued and prosecuted in such manner as the same might have been before the making of this act, anything hereinbefore to the contrary notwithstanding _from and after the said twentieth day of February, no action shall be brought whereby to charge an Exactor or Administrator upon any special promise to answer damages out of this orun Isstate, or whereby to charge the defendar upon any special promise to answer for the debt, defaults, or miscarriage of another person, or to charge any person upon an agreement made in consideration of marriage, or upon any contract or sale of lands, tenements, or heraditaments, or any interest concerning them, or upon any agreement that is not to be performed within the space of one year from the making thereof, unless the agreement upon which such action shall be brought, or some memorandum or note thereof, shall be in writing and signed by the party to be charged therewith, or some other person thereunto by him. Naturally authorised._

"And be it further enacted by the authority aforesaid That, from and after the _said twentieth_ day of _February,_ every last will or testament in writing made in time of sickness, whereby any lands, tenements, or hereditary are devised or bequated, shall be utterly void, and of no effect, unless the person so making this last will and testament shall, after the making thereof, live to go abroad again, and be seen in some church in the time of divine service, or in some public and open market place all devises and requests of any lands, tenements, or heraditaments devisable either by force of the Sitante of Wills, orby this Statate, or by force of the Custom of Kent, or the Custom of any Borough, or any other particular Custom, shall be in writing and signed by the party so deviise the same, or any other person 1 in his presence or by his express directions, and shall be attested and subscribed in the presence of the devisor by three or more witnesses,2 or else they shall be utterly void and of no effect.\_

"And moreover no will _Devise_ in writing whereby any _of_ lands, tenements, or heraditaments are devised or REQUATED, nor any clause thereof, shall, at any time after the said _frequently_ day of _February,_ be revocable by parole or otherwise than by some other Will or Codicil or instrument in writing, or other writing declaring the same, or by burning, cancelling, tearing, or obliterating the same by the Testator himself, or in his presence and by his directions and consent.\_ But all devises and bequests of lands and tenements shall remain and continue in force until the same be _burst, cancelled, form, or obliterated by the testator, or by his directions, in manner aforesaid, (or) unless the same be_ altered by some other Will or Codicil or instrument in writing, or other writing of the Devisor, signed in the pre

**APPENDIX**

_sence of three or more witnesses, declaring the same, any former law or usage to the contrary notwithstanding._

_"_ And be it further enacted by the authority aforesaid that, from and after the said twentieth day of February, all declarations or creations of Trusts or Confidences by parole of any lands, tenements, or herdifaments shall be manifested and proved by some "writing signed by the party who is by law and enabled to declare such Trust, or by his fast will in writings, or else they shall be utterly void and of no effect. And where any trust or confilENCE is or shall be made and declared in writing do it further enacted that all grants and assignments of such any Trust or Confidence by parole shall be in writing, signed by the party granting or assigning the same, or by such last WHill, or else shall likewise be utterly void and of no effect.\_

_"_ Provided always that where any Conveyance shall be made of any lands or tenements, by which a trust or confidence shall or may arise or result by the implication or construction of law, or be transferred or extinguished by the act or operation of law, then and in every such case such trust or confidence shall be of the like force and effect as the same would have been if this Statute had not been made, anything hereinbefore contained to the contrary notwithstanding.

_"_ And be it further enacted by the authority aforesaid that, from and after the aforesaid twentieth day of February, it shall and may be lawful for every Sheriff or other officer, to whom any writ or precept is or shall be directed, at the suit of any person or persons, of, for, or upon any Judgment, Statute, or Recogninance hereafter to be made, or had, to do, make, and deliver execution unto the party in that behalf suing, of all such lands, and tenements, _retories, titles, rents, and other herdifaments_ as any other person or persons be in any manner of wise seised or possessed, or hereafter shall be seised or possessed in trust for him only against whom Execution is so sued, like as the Sheriff or other officer might or ought to have done if the said party, against whom Execution hereafter shall be so sued, had been solely seised of such lands and tenements, _retories, titles, rents, and other herdifaments_ of such estate as they be seised of, in trust for him, at the time of the said execution sued.1

_"_ And if any Cestuy que trust hereafter shall die leaving a trust in feasible to descend to his heir, there, and in every such case, such trust shall be deemed and taken, and is hereby declared, to be assets by descent, and the heir shall be liable to, and chargeable with, the obligation of his ancestor for and by reason of such assets, as fully and amply as he might or ought to have been if the land itself and the inheritance thereof_Estate in law\_ had descended to him in possession, in like manner as the Trust descended, any law, custom, or usage to the contrary in any wise notwithstanding.\_"\_2

Footnote 2: The words in the Act, which follow here, were inserted in the final Bill of Feb. 17, 1676-1677 (No. 336).

\_\[The Bill consisting of the Lord Keeper's original Draft of 1673-1674, was committed on the 15th. On the 17th the Committee, of whom E. Aylesbury was chairman, agreed to the preamble, and desired the attendance of the Judges, whom they wished to consult as to whether Leases in writing should not be under hand and seal, and whether copyrighted estates should be included in the second paragraph. On the 20th, C. J. North stated that "if a deed be in writing, it is understood to be under hand and seal. If there be a note in writing, it will prevent perjury. That it should be put in writing in the

## Appendix

### Presence of the parties.

A copyright estate in the eye of the law is but an Estate at Will." After partially amending the first clause, the Committee referred to the Judges for amendment the second clause, with its proviso, for which was substituted, on the 22nd, the clause which forms $ iv. of the Statute of Frauds. The next clause, concerning Wills, was also referred to the Judges, and on the 29th L.C. Justice North proposed in its place, and the Committee adopted, the clause which forms $ v. of the Statute. He offered also some other amendments and clauses, which were agreed to, and the Committee then ordered the Judge of the Frerogative Court (Sir Leoline Jenkins) and the King's Advocate and Proctor to attend on 3 May, concerning the better ascertaining of Nuncupative Wills than they are yet by law. Accordingly, on 3 May, Sir Leoline offered some articles ($\\delta$) which were read, and the next day, after agreeing to some additional clauses ($\\varepsilon$) offered by L.C. Justice North, the Committee ordered Sir Leoline's articles to be drawn into enacting clauses by the Judges, with a preamble as follows : " In regard of the many uncertainties and inconveniences that have been observed and by experience found in an concerning Nuncupative Wills, for remedy thereof be it enacted." After these clauses another clause was to be added, to preserve the jurisdiction of the Frerogative Court and other Ecclesiasticl Courts in these cases, subject to these rules and alterations. On the 6th, L.C.J. North offered the clauses as directed, together with another clause, all of which $\\langle d\\rangle$ were agreed to be added at the end of the Bill. The Bill thus amended was then ordered to be reported. (Com. Book of Dates.) It dropped, however, in the Commons, but was reintroduced next session (_see_ No. 291), and again in 1676-1677, when it became law. (_See_ No 336.)\]

Annexed :--

1. 22 April. Fair copy of preceding, as amended up to this day. Interlined, in the handwriting of C. J. North, are the later amendments on the 29th, which were offered by him. (Com. Book of dates and 2o April.)

1. 3 May. Propositions of Sir Lionel Jenkins respecting Nuncupative Wills :--

1. No Nuncupative Will to be allowed to stand, or the probate thereof put under the seal of any Court, but what is made in the time of the last sickness of him that dies, and in the house or place where deceased formerly lived or made his abode and died ; except such person be surprised or taken sick, being from his own home or in his journey, and dies.

1. Nor except the same be certified by the oaths of three witnesses at the least.

1. That if a Will for land or goods be once made in writing, no subsequent words or Will by word of mouth, not committed to writing and after read over to him, or by him, and by him allowed and so verified as is aforesaid, shall set aside the first Will in writing, or alter or change any clause, devise, or bequest in the former Will contained.

1. That no Nuncupative Will shall be good, nor anything thereby given of any force, except those that are standards by be bid by the deceased to bear witness that those words are his Will, or that he speak words to that effect.

1. That no Nuncupative Will shall be pleaded or proved in any court where months are expired since the pretended testamentary words were spoken.

Provided that any soldier, being in actual military service, or any mariner or seaman, being at sea, may by Will by word of mouth dis

## Appendix A Appendix

### A Appendix

1. \[label=()\]
1. pose of his movables, wages, or personal estate, in presence of two witnesses.
1. That no Nuncupative Will shall pass the seal of any court till fourteen days after the death of the party be fully expired, nor then neither except a process do first issue to call the widow or next of kin to see the same proved, in case the estate or the greatest part thereof be given from them or either of them to a stranger in blood. (See Com. Book 3, 4, and 6 May.)
1. \[label=()\]
1. 4 May. Clauses (marked A) offered by L.C J. North, and agreed to this day. (Com. Book of date.) They contain a few corrections, in the Chief Justice's hand, and form, almost verbatim, SSS 12 to 17 of the Act, the only differences being "'hereditaments _endeavoured_ to be charged thereby shall, in _construction_ of law " (comp. SS xiv.) and "whereon _ke_ received the same " (for "he and they " in SS xv.)
1. 6 May. Clauses (marked B) offered by L.C.J. North and agreed to this day (Com. Book of date, and 4 May). They form, almost verbatim, SSS xviii _ad fm._ of the Act, the differences being few and wholly verbal.
1. \[label=()\]
1. 10 May. Lords Amendments in Committee. (Reported this day. L.J., XII., 686, and Com. Book, 6 May.)

### A Appendix

## Appendix

Kingdom bearing date at Westminster the ninth day of March in the tenth year of his reign constitute and appoint Our trusty and well-beloved Sir Rufus Daniel Isaacs Knight one of Our Counsel learned in the Law to be his Solicitor General during His pleasure now know ve that We by these presents do revoke the said Letters Patent and further know ve that We of Our especial Grace do constitute and appoint Our trusty and well-beloved John allslebrook simon Esquire One of Our Counsel learned in the Law to be Our Solicitor General during Our pleasure together with all salaries fees authorities and advantages due and of right belonging thereo in witness Whereof We have caused these Our Letters to be made patent witness Ourself at Westminster the seventh day of October in the first year of Our Reign.

by the king himself.

muir Mackenzie.

(3) attorney-general's writ of attendance to the House of Lords

george the fifth by the Grace of God of the United Kingdom of Great Britain and Ireland and of the British Dominations beyond the Seas King Defender of the Faith To Our right trusty and well-beloved Counselolor Sir John Allslebrook Simon Knight Commander of Our Royal Victorian Order one of Our Counsel learned in the Law Our Attorney General Greeting.

Whereas Our Parliament for certain arduous and urgent affairs concerning Us the State and Defence of Our said United Kingdom and the Church was lately with the advice and consent of Our Council summoned to be holden at Our City of Westminster the thirty-first day of January in the first year of Our Reign which Parliament hath been from that time by several adjourments and prorogations adjourned prorogated and continued to and until the twenty-second day of December now next ensuing at Our City aforesaid to be then there holden and there with the Prelates Nobles and Peers of Our said United Kingdom to confer and treat We strictly enjoining command you that all other things laid aside you be personally present at Our said Parliament with Us and with others of Our Council to treat of the aforesaid affairs and to give your advice and this you may in no wise omit witness Ourself at Westminster the twenty-first day of October in the fourth year of Our Reign.

muir Mackenzie.

TO

Our right trusty and well-beloved Counselor Sir John Allslebrook Simon Knight Commander of Our Royal Victorian Order one of Our Counsel learned in the Law Attorney General.

A Writ of Attendance at Parliament.

muir Mackenzie.

III

THE KING'S COUNSEL

(1) some early patents of king's counsel and the modern form

_Francis Bacon_.

Rex omnibus ad quos &c. Salutem.

Sciatis quod Nos,

Tam in consideratione boni fidelis & acceptabilis Serviti, per Dilectum Servientem nostrum _Francisnum Bacon_ Militem prazestiti & impensi, quam

## Appendix A Appendix

pro diversis alis Causis & Considerationibus ad hoc Nos specialiter moventibus,

De Gratia nostra speciali, ac ex certa Scientia & mero Motu nostris, constituumus ordinavimus & appunctuavimus, ac, per Friesentes, pro Nobis Hareedibus & Successoribus nostris, constituumus ordinamus & appunctuamus prefractum _Francisum Bacon_ Consiliarium nostrum ad Legem sive unum de Consilio nostro erudito in Lege,

Dedimus etiam & concessimus &, pro Nobis Hareedibus & Successoribus nostris, danus & concedimus, per Presentes, Prefacto _Francisco_ Locum & Prestatem in Curis nostrits vel alibi & Preaudentiam, nencon omnia & singula Profucia Advantagia Emolumenta Iura Przeminentia Confindentias, seu alia queacunque queac ad unum Consiliarium nostrum ad Legem, ut Consiliario huiusmodi, & minime ratione alicuius specialis Officii, spectant aut pertinent, aut spectare aut pertinere consueverunt aut de jure debent,

Volumus etiam & concedimus, pro Nobis Hareedibus & Successoribus nostrits, quod prefractus _Francisco_ Bacon\_ habeat plenn & sufficientem Protestatem & Autocrittatem, ad omnia & singula prestanda exequenda & perimplenda, que quivis aliaus de Consilio nostro erudito in Lege, ut unus de Consilio nostro pracideto & minime ratione specialis alicuius Officii possit exequi & perimplere,

Habenda & tenenda gaudenda percipienda & excerenda Protestatem Authoritarian Profucia, ac omnia & singula praconcesessa sive expressa, prefracta _Francisco_ quandim ipse se bene gessert in executione & exercitio Munerris Authoritatis de Potesatis predicarum, in tam amplis modo de forma quan aliquis alius de Consilio nostro erudito in Lege, vel ipse _Franciscus_, ratione Verbi Regii _Eltrazothe_ nuper Antecessoris nostri, vel ratione Warranti nostri sub signatura nostra Regia, habuit tenuit gavisus est vel executus est, nichilominus nolumus quod hace Concession nostra deroget alicui Officio antehac, per Nos aut Antecessores notors dato vel conceso,

Et ulterius, de ubenori Gratia nostra, pro exercio Serviti predicti, dedimus & concessimus, ac per Presentes, pro Nobis Hareedibus & Successoribus nostrits, damus & concedimus prefract _Francisco Bacon_ Vadium & Feodum _Quadragirta Librarum_ bone & legalis Monetae Angliae per Annum, solvendam annuatim eidem _Francisco Bacon_ ad Festa Sancti Michaelis Archangeli & Pasche per sequales Portiones, de Thesauro nostro Hareedum & Successorum nostrorum, per Manus Thesaurarii & Camerariorum ibidem pro tempore existention, prima Solutione inde incipenda ad Festum Festorum predictorum proximo post Datam Presentation,

Habendum & tenendum gaudendum & percipendum Vadium & Feodum predictum, durante Vita naturali predicti _Francisci Bacon_.

In cuius rei &c.

Teste Rege apud _Harfeld_ vicesimoquinto Die Augustti.

_Per Breve de Private Sigillo._

Pat. 2 Jac. I., p. 12, m. 15, Rymer, Focdera, xvi, 596.

_John Finch._

Rex etc. omnibus ad quos etc. Salutem. Sciatis quod nos pro diversis causis et considactionibus ad hoc nos specialiter moventibus de gratia nostra speciali ac ex certa scientia et mero motu nostris, Constituimus Ordinavimus et Appunctuavimus ac per presentes pro nobis heredibus et successoribus nostris constituumus ordinamus et appunctuamus Johann Finch militem Conciliarum nostrum ad legem sieve unum de Concilio nostro erudito in lege.

Dedimus etiam et concessimus et pro nobis heredibus et successoribus nostris damus et concedimus per presentes prefracto Johanni Fynch eundem locum et

## Appendix

precedentiam in curiis nostris vel alibi et preaudienciam prout Henricus Montague miles modo comes Mancestrie et presses Concili nostri seu Franciscus Bacon miles modo vicecomes sancti Albani seu aliqius aerum seu aliqius nuper ante hac habitu seu gavisus fuit. Nencon omnia et singula proficua advantatiga emolumenta iura preheminencia confidencias seu alia quecunque que ad numu Comeliaorum nostrorum ad legem ut Conciliario huiusmodi et minimize ratione alicius specialis official spectant aut pertinent aut spectare aut pertinere consueverunt aut de iure debent. Volumus etiam et concedimus pro nobis heredibus et successoribus nostris quod preaftus Johannes Fynche habeat plenam et sufficienten potestatem et aucoritatem ad omnia et singula presentada exequenda et perimplenda que quivis alius de Concilio nostro retrodio in lege ut unus de Conclio nostro predictot en minire ratione specialis alicius official possi exequi et perimplere. Habenda et tenenda gaudenda percipienda et exercenda potestatem aucoritatem proficua ac omnia et singula preconcessa sive prenexpressa prefato Johanni Finch quamdiu ipse se bene gesserit in executione et execriutic numeris aucoritatis et potestatis predictarum in tam amplis modo et forma quam predicts Henricus Montagu aut predictus Franiscus Bacon aut aliqius de Concilio nostro crudito in lege habitu tenuit gavisus est vel executus est. Nihilominus nolumus quod hacec concession nostro artoget alicui officio antehac per nos aut antecessores nostros datos vel concesco. Et alterius de uberiore gratia nostra pro exercicio servicii prendici dedimus et concessimus ac per presentes pro nobis heredibus et successoribus nostris damus et concedimus prefaito Johanni Finch vadium et fedum quadrangita librarum bone et legalis montea Anglia per annum solvendam annuatim eidem Johanni Finch ad festa Pasche et sancit Michaelis Archangeli per requales porciones de Thesauro nostro herdum et successorum nostrorum per manus Thesaurarii et Camerariorum ibidem pro tempore existentium prima solutione indie incipenda ad festum festorum predictorum post datum presencium. Habendum et tenendum guadendum et percipendum vadium et fedum predictum durante vita naturali predicti Johannis Finch.

In cuius rei etc.

Teste Rege apud Westmonasterum decimo septimo die Marcii.

_Per breve de private sigtillo._

Patent Roll (Chancery), 1 Charles I., part i, no. 2.

_George Radcliffe._

Rex omnibus ad quos etc. Salutem. Sciatis quod nos tam in consideracione boni et fidelis servici nobis antehac impensi et impostere impendentis per dilectum nostrum Georgium Radcliffe Armigerum attornatum nostrum coram nobis et Concilio nostro in partibus borealibus stabilito quam de fidelitate experiencia et integritate prefati Georgi Radcliffe plurimum confidentes ac pro diversis allis bonis causis et consideracionibus ad hoc nos specaliter moventibus de gratia nostra speciali ac ex certa scientia et mero motu nostris constituums ordinavimus et appuncuivimus ac per presentes pro nobis heredibus et successoribus nostris constituums ordinamus et appuncuamus prefaum Georgium Radcliffe Consiliarium nostrum ad legem sive unum de Consilio nostro erudito in lege. Dedimus etiam et concessionus ac pro nobis heredibus et successoribus nostris per presentes damus et concedimus prefaito Georgi Radcliffe eundem locum et presidential in Curis nostris vel alibi et preudienciam prout Henricus Montaque miles modo comes Mancestriee et custos privati sigilli nostri seu Franciscus Bacon nuper miles et postea vicecomes sancti Albani aut Johannes Finch miles modo Attornatus Generalis preclarissime Consortis nostrae Henriette Marine

**APPENDIX**

Reginae aut Willelmus Denney miles seu aliquis eorum sive aliquis alius nuper antehac habuit seu gavisus fuit. Necnon omnia et singula proficua advantagia emolumenta iura preheminencia confidencias seu alia quacenquque que ad unum Consilariorum nostroum ad legem. \[The rest of the patent is substantially in the same form as Finch's patent.\]

Patent Roll (Chancery), 8 Charles I., part i, no. 3.

_Kichard Shelton._

Rex omnibus ad quos etc. Salutem. Sciatis quod nos pro diversis bonis causis et consideracionibus nos ad hoc specialiter moventibus de gratia nostro speciali ac ex certa scientia et mero motu nostris constituimus ordinavimus et appunctuavimus ac per presentes pro nobis heredibus et successoribus nostris constituimus ordinamus et appunctuamus Ricardum Shelton militem Consilarium nostrum ad legem sieve unum de Consilio nostro erudito in lege. Dedimus etiam et concessimus ac per presentes pro nobis et heredibus et successoribus nostris damus et concedimus prefato Ricardo Shelton omnia et singula proficua advantagia emolumenta iura preheminencia confidencias seu alia quecenquque que ad unum Consilariorum nostroum ad legem ut Consilariario hujusmodi et minime ratione aliciuis specialis officiali spectant aut pertinent aut spectare aut pertinere consueverunt aut de iure debent. Volumus etiam et concedimus nobis heredibus et successoribus nostris quod prefatus Ricardus Shelton habeat plenam et sufficientem potestatem et auctoritatem ad omnia et singula prestanda exequenda et perimplenda que quivis alius de Consilio nostro pracdicto et minime ratione aliciuis specialis offici possit exequi et perimplere habendum et tenendum gaudendum percipiendum et exercendum potestatem authoritatem proficua ac omnia et singula preconcessa sive praexpressa prefato Ricardo Shelton quamdiu nobis placuerit. \[The rest of the patent is substantially in the same form as Finch's patent.\]

_Patent Roll, 10 Charles I, part xxxix, no. 10, Thomas Levingston._

Rex omnibus ad quos etc. Sciatis quod nos pro diversis causis et consideracionibus nos ad hoc specialiter moventibus de gratia nostra speciali ac ex certa scientia et mero motu nostris constituimus ordinavimus et appunctuavimus ac per presentes pro nobis heredibus et successoribus nostris constituinuas ordinamus et appunctuamus Thomam Levingston Armigerum Consilianium nostrum ad legem sieve unum de Consilio nostro erudito in lege. \[The rest of the patent is substantially in the same form as Finch's patent.\]

Patent Roll (Chancery) 17 Charles I., part i, no. 2.

_Francis North._

This patent is on exactly the same lines as the others. It is dated April 22, 20 Charles II., and is on the Patent Roll 20 Charles II., part iv, no. 24.

_The Modern Form._

George the Fifth by the Grace of God of the United Kingdom of Great Britain and Ireland and of the British Dominations beyond the Seas King Defender of the Faith To all to whom these Presents shall come Greeting : Know ye that We of our especial grace have constituted ordained and appointed our trusty and well beloved one of our Counsel learned in the Law And We have also given and granted unto him as one of our Counsel aforesaid place precedence and preaudience next after

## Appendix

in our Courts.And We also will and grant to the said full power and sufficient authority to perform do and fulfil all and every the things which any other of our Counsel learned in the Law as one of our said Counsel may do and fulfil.We will that this our Grant shall not lessen any Office by Us or by our Ancestors heretofore given or granted. In witness whereof We have caused these Our Letters to be made Patent.Witness Ourself at Westminster the day of in the year of Our Reign.

By the King Himself.

(2) THE OATHS OF THE SERJEANS AND THE KING'S serjeants, AND THE modern declaration made by the King's counsel.

_The Serjeant's Oath._

1. That he shall well and truly serve the King's people, as one of the Serjeants of the Law.

1. That he shall truly counsel them, that he shall be retained with, after his cunning.

1. That he shall not defer, tract, or delay their causes willingly, for covetousness of money, or other thing that may tend to his profit.

1. That he shall give due attendance accordingly.

Coke, Second Instit. 214.

_The Oath of the King's Serjeant._

1. That he shall well and truly serve the King and his people, as one of the King's Serjeants at law.

1. That he shall truly counsel the King in his matters when he shall be called.

1. And duely and truly minister the King's matters after the course of the Law, to his cunning.

1. He shall take no wages or fee of any man for any matters, where the King is party, against the King.

1. He shall as duly, as hastily speed such matters, as any man shall have to do against the King in the Law, as he may lawfully do without delay, or tarrying the party of his lawful Proces in that belonged to him.

1. He shall be attendant to the King's matters when he shall be called thereto.

Coke, Second Instit. 214.

_The Modern Declaration made by a King's Counsel._

I

do declare that well and truly I will serve the King as one of His Counsel learned in the Law and truly counsel the King in His matters, when I shall be called, and duly and truly minister the King's matters and sue the King's process after the course of the Law, and after my cunning. For any matter against the King where the King is party I will take no wages or fee of any man. I will duly in convenient time speed such matters as any person shall have to do in the Law against the King as I may lawfully do, without long delay, tracing or tarrying the Party of his lawful process in that that to me belonged. I will be attendant to the King's matters when I be called thereto.

**APPENDIX 688**

IV

SHORT TITLES OF LAW BOOKS PUBLISHED BETWEEN 1668 AND 1700.

(Arber's edition of the Term Catalogues.)

\[The various series of law reports, special reports of trials, abridgments of the reports, editions and abridgments of the statutes, are not included in this list. For some of them see vol. iv. 308-313; vol. v. 355-378 ; vol. vi. 312-313; 551-574.\]

(t) practice and pleading.

(i. A Collection of Entries of Declarations, Barres, Replications, etc. By William Rastell, Esq. 1670; 139 144 384-385, 461 39. The Practical Register, or the Accomplished Attorney : consisting of Rules, Orders, and the most principal Observations concerning the Practice of the Common Law in the Courts at Westminster. By William Style, Esq. The Second Edition, enlarged. 3. A Collection of such of the Orders heretofore used in Chancery, with such alterations and additions thereunto as the Lord Chancellor, by and with the advice of the honourable Sir Harbortile Grimston, Master of the Rolls, has thought fit at present to Ordain and Publish. 4. The Practical Counsellor in the Law; touching Fines, Common Recoveries, Judgments, etc. By Will, Sheppard. 5. The Compact Clerk ; containing the best form of all sorts of Presidents for Conveytances, and Assurances, and other Instruments : with forms of Bills, Pleadings, and Answers in Chancery. The Third Edition, enlarged. 6. A Book of Entries, containing Presidents of Accounts, Declarations, etc. By Sir Edward Coke. 7. Formulae bene placitandi, A Book of Entries; containing a variety of choice precedents of Counts, Declarations, Informations, etc. Collected from the MSS., as well of some late learned Prothonotaries of the Courts of Common Pleas, as of divers other Practices in the Court of King's Bench. By W. B., a Clerk of the Court of Common Pleas. 8. The Second Part of the foregoing work. 9. The Compelat Solicitor. The Fourth Edition. 1673 1673 1675 1676 1677 1678 1679 1700 170

## Appendix

- \[label=.\]

## Appendix

\\begin{tabular}{}

## Appendix

$(z)$ students' books.

\\begin{tabular}{c|c|c|c} Name of Book and Author. & Date of Publication. & Reference in the Term & Reference in this \\ & & & \\ & & & \\ \\end{tabular}

- The Second, Third, and Fourth Parts of the Institutes of the Laws of England. Written by the Lord Coke. All new printed.
- Brief Animadversions on the Fourth part of the Institutes of the Laws of England. By William Pryne, Esq., Keeper of the Records at the Tower.
- The Compleaf Lawyer. By W. Noy, Attorney General to Charles I.
- The First Part of the Institutes of the Laws of England. By Edward Coke. The Seventh Edition.
- The Young Clarke's Tutor enlarged.
- The Compleat Lawyer. By W. Noy, Attorney General to Charles I.
- The First Part of the Institutes of the Laws of England. By Edward Coke. The Seventh Edition.
- The Young Clarke's Tutor enlarged.
- The Compleat Lawyer. By W. Noy, Attorney General to Charles I.
- The First Part of the Institutes of the Laws of England. By Edward Coke. The Seventh Edition.
- The Young Clarke's Tutor enlarged.
- The Compleat Lawyer. By W. Noy, Attorney General to Charles I.
- The First Part of the Institutes of the Laws of England. By Edward Coke. The Seventh Edition.
- The Young Clarke's Tutor enlarged.
- The Compleat Lawyer. By W. Noy, Attorney General to Charles I.
- The First Part of the Institutes of the Laws of England. By Edward Coke. The Seventh Edition.
- The Young Clarke's Tutor enlarged.
- The Compleat Lawyer. By W. Noy, Attorney General to Charles I.
- The First Part of the Institutes of the Laws of England. By Edward Coke. The Seventh Edition.
- The Young Clarke's Tutor enlarged.
- The Compleat Lawyer. By W. Noy, Attorney General to Charles I.
- The First Part of the Institutes of the Laws of England. By Edward Coke. The Seventh Edition.
- The Young Clarke's Tutor enlarged.
- The Compleat Lawyer. By Edward Coke. The Seventh Edition.
- The Compleat Lawyer. By W. Noy, Attorney General to Charles I.
- The Compleat Lawyer. By Edward Coke. The Seventh Edition.
- The Compleat Lawyer. By W. Noy, Attorney General to Charles I.
- The Compleat Lawyer. By Edward Coke. The Seventh Edition.
- The Compleat Lawyer. By W. Noy, Attorney General to Charles I.

## Appendix

- \[1\] (3) convervancing and the land law.

Name of Book and Author.

Date of Publication.

In the Term Catalogue.

In this

History.

- \[2\] (4) (5) (6) (7) (8) (9) (10) (11) (12) (13) (14) (15) (16) (17) (18) (19) (20) (21) (22) (23) (24) (25) (26) (27) (28) (29) (30) (31) (32) (33) (34) (35) (36) (37) (38) (39) (40) (41) (42) (43) (44) (45) (46) (47) (48) (49) (50) (51) (52) (53) (54) (55) (56) (57) (58) (59) (60) (61) (62) (63) (64) (65) (66) (67) (68) (69) (61) (63) (65) (67) (69) (62) (64) (68) (69) (60) (63) (61) (64) (66) (67) (68) (69) (60) (64) (61) (65) (67) (68) (69) (60) (61) (62) (63) (64) (65) (66) (67) (68) (69) (60) (61) (68) (61) (62) (63) (65) (66) (68) (69) (61) (63) (66) (67) (68) (69) (60) (62) (64) (66) (68) (69) (60) (61) (63) (64) (65) (66) (67) (68) (69) (60) (61) (68) (62) (63) (66) (68) (69) (60) (61) (64) (66) (67) (68) (69) (61) (62) (63) (64) (65) (66) (67) (68) (69) (60) (61) (62) (64) (66) (68) (69) (60) (62) (63) (66) (67) (68) (69) (60) (61) (63) (68) (69) (60) (62) (64) (66) (67) (68) (69) (61) (64) (68) (69) (60) (63) (61) (65) (66) (67) (68) (69) (60) (61) (62) (63) (64) (65) (66) (67) (68) (69) (61) (68) (69) (60) (63) (61) (62) (64) (66) (67) (68) (69) (60) (61) (63) (64) (65) (66) (67) (68) (69) (60) (61) (62) (63) (64) (65) (66) (67) (68) (69) (60) (61) (63) (67) (69) (60) (61) (64) (65) (66) (67) (68) (69) (61) (62) (63) (65) (67) (69) (60) (61) (63) (64) (66) (68) (69) (60) (61) (64) (67) (68) (69) (60) (61) (62) (63) (65) (66) (67) (68) (69) (60) (61) (63) (67) (68) (69) (60) (61) (64) (65) (67) (69) (61) (66) (

**APPENDIX**

**(4) THE CRIMINAL LAW.**

**Name of Book and Author.**

**Table of Publication.**

**Reference**

**in the Term**

**(1)**

**(2)**

**(3)**

**(4)**

**(5)**

**(6)**

**(7)**

**(8)**

**(9)**

**(10)**

**(11)**

**(12)**

**(13)**

**(14)**

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**(20)**

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**(24)**

**(25)**

**(26)**

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**(59)**

**(60)**

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\*\*

## Appendix

- (5) commercial law.

Name of Book and Author.

Date of Publication.

Reference in the Term Catalogues.

History.

- (i., March's Actions for Slander, and Arbitraments. Reviewed by W. B.
- (ii., 1674) ; (ii., 1675) ; (ii., 1676) ; (ii., 1677) ; (ii.

## Appendix

- \[label=.\]

## Appendix

- (8) local government.

Name of Book and Author.

Date of Publication.

Reference in the Term

in this

Catalogues.

History.

- A Practical demonstration of County Judica-

Leaster, 1669;

Leastre and

Trin., 1686

method of keeping all Courtesy Counts. By

William Greenwood. The Third Edition.

ii A sure guide to His Majesties Justices of

Peace. The Second Edition.

iii Officium Vicicontum. The Office and

Authority of Sheriffs. Corrected and much

emlarged by Mich. Dalton, late of Lincoln's

Inn, Esq., and one of the Masters of the

Chnacery. To which is added a Supplement of Statutes touching Sheriffs made

since Mr. Dalton's writing.

iv. Reports of Special Cases relating to the

City of London. By Sir H. Calthrop,

sometime Recorder of London, together

with an account of divers antitent Customs

of the said City.

v. A Guide for Constables, Churchwardens,

Overseers of the Poor, etc. The Third

Ealtion. By George Meriton, Gent.

Christ., 1670;

v. The Duty and Office of High Constables of

Hul., 1672;

i too

Vol. iv

Hundreds, Petry Constables, tything men,

and such inferior Ministers of the Peace.

First collected by William Lambard; and

and now enlarged by R. Turner, Gent.

vii. Officium Clerici Pacis. A Book of Indictments, etc. Also the manner of holding

Easter, 1670;

i 242

the Sessions of Peace.

vii. Jurisdiction of Courts Leet, Court Barons,

Court of Marshasys, Court of Pypowder,

and Antient Demesne. By John Kitchin.

i. The Office and Authority of Coronners and

Easter, 1675;

i 206

Sheriffs. By John Wilkinson. The Fourth

Ealtion, with additions.

x. Camera Regis, or a view of London.

xi. The exact Constable. As also the Office

of Churchwardens and other inferior officers.

Hil., 1680;

i 38

By E. W. of Gray's Inn, Esq. The Fourth

Hil., 1682;

i 478

xii. The Court-keeper's Guide for the keeping

of Courts Leet and Courts-Baron. With

precedents of copies of Court-Rolls. By

Will, Brown.

xiii. The County Justice. The Practice of the

Trin., 1677;

i 285

Justices out of Sessions. By Mich. Dalton.

To which is now added, the Duty and Power

Hil., 1690;

i 307

of Justices of Peace in their Sessions.

Trin., 1697;

iii 28

## Appendix

## Appendix A Appendix

### A Appendix

The proof of Theorem 1.1 is given in the Appendix.

## Appendix

### (10) Political Tracts

- \[label=.\]
- \[label=.

## Appendix

- (10) Political Tracts--_continued._

\\begin{tabular}{c|c|c|c|c} Name of Book and Author, & Date of Publication. & Reference in the Term Catalogues. & Reference in this History. \\ \\hline xv. The Englishman's Right. A Dialogue between a Barrier at Law and a Juryman. xvi. Janiglorum facies Nova, or Several Monuments of Antiquity touching the Great Councils of the Kingdom. Wherein the sense of the Common Council of the King concerning Clergymen's Voting in Capital Cases is submitted to the Judgement of the Learned. xvi. The Grand Juryman's Oath and Office explained. A Dialogue between a Barrier and a Grand Juryman, \\ xviii. Leges Anglie, the Lawfulness of Ecclesisatistical Jurisdiction in the Church of England asserted in answer to Mr. Hickeringhill's late Scandadous Pamphlet. By Francis Fullwood, D.D. xix. A full and clear Answer to a Book, written by William Petyt, Esq. Together with some Animadversions upon a Book called Jani Anglorum Facies Nova. xx. Jenkins Redirius, or the Works of Judge Jenkins whilst a Prisoner in the Tower at Newgate by command of the rebellious Long Parliament. xxi. A Vindication against the trivial objections of one Fullywood in a libelling Pamphlet entitled " Leges Angle." By Phil. (or rather Edward) Hickeringhill. xxi. The Bishops' Court Dissolved, or the Law of England touching Ecclesisatistical Jurisdiction stated. xxiii. Proceedings against the Right Honour, able the earl of Shaffesbury. xxi. Billa Vera, or the Arraginment of Ignoramus, xxv. Proceedings at the Sessions of the Peace held at Hicks Hall, Dec. 5th, 168t, concerning putting the Laws in Execution against Pophis Recusants and Conventiles. xxi. The Forfeitures of London's Charter. xxvii. The City of London's Plea to the Quo. Warranto. xxvii. The Replication to " The City of London's Plea to the Quo Warranto," xxi. London's Liberties, or the Opinions of L.C.J. Hale, Wylde J., and Serjeant Maynard about the election of Mayor, Sheriffs, Aldermen, and Common Council-men of London, and concerning their Charter and the forfeiture of it. \\ \\end{tabular}

## Appendix

\\begin{tabular}{}

## Appendix

- \[label=(ii)\]

## Appendix

### (12) general

\\begin{tabular}{c c c c c} \\hline \\hline Name of Book and Author. & \\multicolumn{1}{c}{Date of Publication.} & Reference & Reference \\ & Name of Book and Author. & \\multicolumn{1}{c}{} & & in the Term & in this \\ & & & Catalogues. & History. \\ \\hline i, A Law Dictionary. & By Tho. Blount, Esqre. & Mich., 167o; & i.g8 & Vol. vi \\ ii, & & & Hil., 169i & ii 35i & 61z \\ ii, & & & Easter, 167i & i 77 & Vol. v 40i \\ iii, & & & Vol. vi & 61z \\ iii, & & & Vol. vi & 61z \\ \\hline & & & Mich., 167i & i go & Vol. v \\ & & & & 21-2z, \\ & & & & 40i+40i \\ & & & Vol. vi & 61z \\ \\hline iv, The General Laws and Liberties of the Massachusetts Colony in New England. & Easter, 1675 & i 206 & Vol. vi \\ & & & & 61z \\ \\hline & & & & \\ v, A Treatise concerning Statutes and Acts of Parliament and the Exposition thereof. & Easter, 1677 & i 276 & \\ & & & & \\ Sir Christopher Hatton, late Lord Chamber. & & & & \\ \\hline vi, The most excellent Hugo Grotius his Three Books. Translated into English by William Evats, D.D. & Hil., 168z & i 476 & Vol. v \\ & & & 55-58 & \\ & & & Vol. vi & 61z \\ \\hline vi, A Catalogue of the Common Law and Statutes Books of this Realm. Collected by T. Basset, Bookseller. & Mich., 168z & i.507 ; \\ viii, An Abridgment of English Military Discipline, reprinted by His Majestes special Command. & & & \\ ix. The Grandeur of the Law. A collection of the nobility and gentry of this kingdom whose honours and estates have been acquired or augmented by the practice of the law. & Mich., 168z & i 50o & Vol. vi \\ x. The Laws of Jamaica, passed by the Assembly there, and confirmed by His Majesty, April 17, 1684. By Sir Thomas Lynch. & & & 61z \\ xi. Glossarium Archaeiologicum. Author Hen. Spelmanno. & & & & \\ \\hline xii, _Origo Legum_, or a Treatise of the Origin of Laws and their obliging power. In Seven Books. By George Dawson, M.A. & & & \\ xii. A Compendium of the Laws and Government, Ecclesatistical, Civil, and Military, of England, Scotland, and Ireland; and Dominations, Plantations, and Territories thereunto belonging. By H. C., sometime of the Inner Temple. & & \\ \\hline \\end{tabular}

## References

- \[1\] A. A. K. K.

## Index

_The titles of books contained in this index are printed in italics_

A Agreement of the People, the, 146, 153.

Abbott, archbishop, 131.

Abinger, Lord, 396.

Abridgments, the, 496 ; reports in style of, 555.

Ablsalam and Acthotzel (Dryden), 527, 545.

Asholute Prerogative, the, 20, 21-22, 44, 85.

Acllegiance, temporary, 308.

Acllegiance, J., 510, 511.

Aclboatel Disposition of all the Heads necessary for a perfect Commonplace (Brewster), 601.

Alverstone, Lord, 395.

Achouss, the national, controlled by the House of Commons, 175, 176.

Aclt of Grace, 194-195, 261.

Aclto Personalis, etc., the maxim, 638.

Acltions, differences between the forms of, 637-638 ; growth of uniformity, 638 ; surviving differences help to recognition of difference between tort and contract, 638-639 ; joinder of, 638.

Acltions on the Case, real actions superseded by, 626.

_Attions on the Case for Contracts, Deceights, Nuisances, etc._ (Shepherd), 606.

_Attions on the Case for Slander_ (Shepherd), 606.

Acts and Ordinances of the Inter-Regnum, 423-427.

Addison, 535.

Adjournments, come to be the Act of the House of Commons, 255-256.

Administration, grants of, 632 ; revocation of grants of, 632-633.

Administrative Jurisdiction of the Chancex, 650-657.

Administrative Law, 26-27.

Administators, see Executors.

Admiralty, court of, jurisdiction over piracy, 401 ; effect of Coke's attack on, 519.

Avancement, the doctrine of, 546.

_Advice to Grand Jurors in Cases of Blood_ (Babington), 605.

A Agreement of the People, the, 146, 153.

Agriculture, legislative encouragement of, 342-346.

Ablchemy, repel of statute against, 330.

Aliens, not eligible for Parliament, 245 ; descent allowed to be traced through, 398.

Allegoance, temporary, 308.

Allibone, J., 510, 511.

_Ablahetical Disposition of all the Heads necessary for a perfect Commonplace_ (Brewster), 601.

Alverstone, Lord, 395.

Ahpassadors, 308.

_Amendment or Alteration of Laws,_ Hale's Tract on, 585, 589, 592-593.

_Ashadysti of the Civil Part of the Law_ (Hale), 591.

_American Ternes of Land_ (Blount), 611.

Ausus, carl of, 9.

_Ainmalation on Coke's Fourth Institute_ (Prynne), 487.

Animals, damage done by, 637.

Anson, Sir W., 99, 244.

_Am Initiatives of Warvuckshire_ (Dugdale), 596.

Appeals of Murder, Holt's praise of, 521.

Appreticeship, 331.

Appretization of a payment by a defector, 651-652.

Apsly, Sir Allen, 98.

Arbber, 373, 597.

Arbitration, 635.

_Artegogificia_ (Milton), 360-361, 371, 374-Arygle, 117.

Arlington, 177.

Arminians, the, 127, 129, 131.

Army, the, political and religious views of, 144, 145, 146, 153; growth of unpopularity of, 159-160 ; disbardment of, 168 ; prerogative as to discipline of, 225-230 ; settlement of position of, 241.

Ary Plot, the, 116.

Arrrst, privilege of freedom from, 96-97.

## Index

### Ashburne, 670.

Ashley, Serjeant, 37, 38.

Ashley, Sir William, 321.

Assets, administration of, 652-657 ;

order in which debts and legacies are

payable from, 656; legal and equitable, 656; marshalling, 656.

Ashsewell, John de, 460.

Ashsize, judges of, their supervision of

local government, 57-58.

Ashsupsupil, development of brings out

differences between implied and quasi

contracts, 639.

Astrley, 144.

Astrvns, Edward, 311; Robert, 507,

515-516; his tracts on the Chancery,

610, 671.

Attembrance on the Courts, a necessary part of legal education, 496-497.

Attendant Terms, 543.

Attorney-General, the not a medieval

val official, 457; rise of, 458-462;

changes in position of, 463-466;

reasons for his modern position, 466-469, 470-472; a member of the ministry and cabinet, 466.

Attorneys, the, growth of professional,

432-433; old and new distinctions

between them and plenders, 432-434;

reasons for growth of new distinction

--mode of appointment, 434, discipline of, 434-435, difference in

personnel, 435-436, connection with

clerkrishs, 436, difference in education,

436-437, difference in duties, 437-

439; relations to clients, 439-440;

exclusion from Ins of Court, 441-442;

results of this, 443; forced into Ins

of Chancery, 443; form their own

Society, 443; gradual growth of

modern position of, 444; qualifications of, 445; limitations on their

Bills of Ladino, 520.

authority, 450-453, and on their

spheres of activity, 453; relation to

solictors, 456-457.

_Attorney's Academy, the_, 437, 598.

Attornment, 625.

Auction, sales by, 394.

B

Bacon, his political views, 24-26;

compared with those of Strafford, 73-75;

his speech on impositions, 46-47; his

advice to the king thereon, 47-48; his

views on ecclesatical policy, 126.

his appointment as King's Counsel,

473; originates the separate order

of, 473-474; his influence on

B

Barnsters, growth of distinction

tween them and attorneys, see Attorneys;

news; cease to deal directly with lay

clients, 439-440;

contact one for

610, 671.

_Barlikon Doron,_ 11.

Bath, the earl of, 211.

Baxter, 577, 578, 579, 580, 582.

Beldler, 506.

Beldler, 283.

Bellot, Dr., 443.

Bench, the, cause of deterioration in

quality of, 499.

Benichers, claim of King's Counsel to

be made, 479-480.

Brenfit of Clergy, restriction of, 406;

extended to women, 406.

Bennman, 294, 299, 592.

BERKley, J., 51, 291.

Berritz, J., 507.

Bill or Rights, the, no statements of

general principles in, 241-242; old-

fashioned constitutional ideas in, 260-

261; clause as to customs duties, 48;

fiction of a bidelion in, 279, 194, 230,

231, 232, 240, 241, 536.

Bills in Chancery, drawn or settled

by counsel, 446.

Bills or Exchange, 338, 635.

Bills of Ladino, 520.

Bills of Mortality, 324, 350 n. 8.

Births, registration of, 410, 427.

Births, deprived of seats in the House

of Lords, 114, 136, 140; the Scotch,

9.

_Black Book of the New Law_ (Hale), 581

and a.

Blackexley, 611.

Blackstone, 299, 395, 477, 591; his

views as to the original contract, 293.

_Blackshire's Commemaries_, 498.

Blasinghous Books, 361.

Blount, Thomas, 611, 612.

Bodyn, 273.

Bod

## Index

Boroughs, rotten, 2IO; creation of, 2IO, 246; quo warranto proceedings against, 2IO-211.

Bounty, on export of corn, 343-344.

Bowen, Lord, 389.

Bracton, 451, 495, 637, 639; his influence on Holt, 521.

Bramaston, Francis, 507; John, 227, 491.

Breach of Promise of Marriage, actions for, 631.

Breda, declaration of, 148, 162, 165, 168, 169, 171.

Bridman, L. K., his career, 537-538; objects to seal Declaration of Independence, 525, and to issue commissions for trials by martial law, 525-526; 199, 550, 669.

_Bridman's Reports_, 552, 559.

Briefs, authorizing collections for charity, 309.

Bright, T., 365.

Bristiq, 143.

Briston, 495, 637.

Broters, 338.

Bromley, L.C., 464.

Brydall, 605.

Bubble ACT, the 313.

Buchman, 125, 282, 283.

Buckingham, 15, 17, 75, 77, 211.

Building, London regulations for, 310.

Burke, 4, 67, 280, 285, 299, 535.

Burnet, 212, 253, 538, 544, 545, 548, 549, 562; his account of Hale, 576, 577, 581, 582, 583, 584.

Butler, his edition of Co. Litt., 594.

Cabal Ministry, the, 18o.

Cabinet Government, foreshadowed in Grand Remonstance, 120, 157, 262, 289, 466.

Call to The Bar, 434.

Caivin, 7, 283; effects of his teaching, 7-8, 10-11.

Cambden, Lord, 265.

Campbell, Lord, 272, 497.

Capitalistic Organization of Industry, 339, 341, 342, 345-346; effect on prices, 346-347; on relation between employer and workman, 348-349.

Card, Andrew, 448.

Carsten, 71.

Carter's Reports, 552, 558.

Carter, 175.

Carthew, 563.

Carter's Reports, 553, 563.

Cases in Chancey, 617.

Cases in Holt, 553, 555.

Catching Bargains, 661.

Catherein of Braganza, 177.

Cecil, 15, 23; his ecclesiastical policy, 127,

Cellier, Elizabeth, 506.

Central Government, books on, 608-609, App. IV. (9).

Ghamberlain, 27.

Chambers, Richard, 51.

Chambers, reading in, 498.

Chancellors, the, list of, 523 n. I; types of, 523-524.

Chancey Bar, the 550-551, 670.

Chancey, court of, its attitude to the Statute of Franoks, 393; jurisdiction in mercantile cases, 636; why solicitors were associated with, 453-454; cclerks of act as attorneys, 455, 470; orders issued by, 614-615.

Chancey Cases (R. Freeman), 618.

Chancey of a Trimmer (Halifax), 508.

Charitable Uses (G. Duke), 614, 616.

Charles I., his character and career, 15-19; his political incapacity, 79-80; his charges against the Commons in 1629, 100; intrigues with Parliament and the Army, 144-146; his execution, 146; his ecclesiastical views, 130-131, 132-134, 138.

Charles II., his ecclesiastical policy, 163; his foreign policy, 164; secures passage of Act of Indemity, 170; his commercial policy, 176-177; character and domestic policy, 178-180; modes of influencing the House of Lords, 212; control of elections to House of Commons, 211; his management of the Exclusion controversy, 186-189, 248; the monarchy at the death of, 191.

Charlaton, Sir Job, 510.

Chattels, succession to, 632-633; settlements of, 666

## Index

intolerance of after Restoration, 172-173.

Churchill, Sir J., 550.

Cinque Ports, Warden of, his right to

nominate members of Parliament, 245.

City of London, sides with the Parliament, 143; quo warranto proceedings

against, 566, 567.

Civil List, the, 253.

Civil WAR, the first, 142-144; the second, 145-146.

Clarendon, L.C., his change of political

views, 137; his political ideals, 141,

161, 207; secures passage of Act of

Indemnity, 170; his policy, 175-176; causes of his unpopularity, 177; impeachment of, 177-178; views as to

martial law, 225; his criticism of the

House of Lords, 247; his choice of

judges, 500; as chancellor, 524; 311,

312, 501; 502, 669.

_Clerk's Guide, the_, 616.

_Clerk's Tutor in Chancey, the_, 616.

Clifford, 182.

Clogging, the equity of redemption,

origin of rule as to, 664.

Coat and Conduct Money, 49.

Coffee Houses, the 311-312, 623.

Collage Offenses, 400.

Coke, medieval character of his political

views, 84, 107; comparison of with

Hale, 594-595; 32, 45, 326, 327, 238,

291, 462, 464, 473, 482, 483, 495, 519,

522, 570, 583.

_Coke upon Littleton_, 495, 594, 603.

_Coke's Reports_, 571.

Colbert, influence of his economic

policy, 340.

_Colles's Reports_, 553, 573.

Colman, 184.

Conchial Constitutional Law, books

on, 612.

Colonial Trade, 319-323.

Colonies, 264, 320; crimes of governors

of, 402.

Coloult, 556.

_Comberback's Reports_, 553, 558.

Combinations, to raise prices and wages,

347.

Commerce and Industry, legislation

as to, 313-360; national defence, 314;

319; colonial trade, 319-323; foreign

trade and native industry, 323-341; agriculture, food prices, and wages,

342-349; the poor law, 349-354; a changed attitude of state to, 355-360.

Commercial Law, books on, 606.

App. IV. (5); growth of doctrine of,

337-339.

Commercial Men, growth of influence

of, 333-334, 341, 355-356, 359-360.

Committee System, the, 91-92; of the

whole House, 91; standing, 92; for

privileges, 92; makes criticism of

government effective, 100.

Common Field System, 344-345.

Common Informers, 332.

Common Law, influence on Parliamentary procedure, 88-89; obsolete

branches of, 624-627; land law, 627-628; criminal law, 628-631; contract, 631, 636; law of persons, 632; succession to chattels, 632-633; pleading, 633; evidence, 633-634; mercantile law, 634-630; tort, 636-637; contract, tort, and quasi contract, 637;

640; main features of development

of, 640.

Common Lawvers, alliance with Parliament, 901, 102; why they came over to king's side, 137.

Common-Placing, 496, 601.

Common, House of, see House of Commons.

Commonwealth, period of, 142-163; political events, 142-149; the constitutional

experiments, 149-161; effects on growth of public law, 161-163; proposed law reforms, 412-423; actual

legislation of, 423-428; laws of confirmed at Restoration, 166.

Comnaues, 306, 332; shares in, 338.

\_Compendium of the Laur and Government of Great Britain and the Dominion-

_Inekentan betongering_, 612.

_Compleal Clerk, the_, 616.

_Compleal Slitzot, the_, 437, 452, 456,

## Index

0.1 Conventile Act, the, 198. Convention Parliament of 1660, 165-174 : of 1659, 194. Convention of the Constitution, 4-5, 262. Conversion, doctrine of, 646, 657, 658. Convysaccharides, the, 447-448. Convysaccharides, provisions of Statute of Fraudas as to, 334-385. Convaginal (Bridgman), 537, 604-605. Convoyancing and the Land Law, books on, 603-605, App. IV. (3). Convocation, canons enacted in 1640, 134: revision of prayer book by, 172. Cooper, Anthony Ashley, see Shaffestbury. Copyright, origins of, 364-365, 365-366, 370-371, 378 : protected by Star Chamber, 368, 369 : by Commonwealth legislation, 370-372 : by the Licensing Act, 373-374 : effect on on non-renewal of Licensing Act, 377 : the Act of 1709, 377-378 : question of its existence at common law, 378-379 : proclamations as to, 311. Corn, export and import regulations, 342-344. Corn Laws, repel of, 344-. Corporation Act, the, 197, 201, 210. Corporations, quo waranto proceedings against, 210-211 : remodelling of, 190, 214; oaths required from offices of, 167-168 : their powers to control trade, 337. Corrupt Practices, 246. Corruption and Deficiency of the Laws of England (Warr), 414. Cortes, the, 68. Cortyon, 118. Costs, 409. Council, relation of to local government, 56-57, 59-60, 62, 63, 64 : deprived of jurisdiction in England, 112 : jurisdiction in copyright cases, 373. Counsel, allowed for prisoners accused of treason, 234 : see Barriers, King's Counsel. Country Party, the, 174, 177, 182. Courts, their separate staffs of attorneys, 435. Coventry, Sir W., 177, 312 : Sir J., 403 : Lord Keeper, 464. Cowell, 23. Cranmer, 123. Crign, the, 496. Criminal Law, changes in proposed during Commonwealth, 417 : Commonwealth legislation as to, 426-427 : status relating to, 399-407 : influence on of Star Chamber, 628 : judicial settlement of principles of, 629 : strictness of procedural rules, 629-630 : 901. VI.--45

## 706 Index

D'Ewes, 472, 482; exercises and course of study as a law student, 485-486; his study of records, 486.

_Dialogue of the Common Laws_ (Hobbes), 297, 585; Dicey, 4.

_Dickers' Reports_, 619.

Discontinuance, 625.

_Discourse Concerning the King's Bench and Common Plas_ (Hale), 589.

_Discourse of the Study of the Laws_ (North), 404, 620, 621.

_Discourse Touching Protition for the Poor_ (Hale), 589, 607.

_Discourse upon the Comnition for Bridewell_ (Bacon), 24.

Discovery, 661.

Dispersion Power, the, 192, 204, 217-225, 241-242.

Distraint, 397.

Distribution, statutes of, 633.

Divine Right, in the Tudor period, 276; James L's theory of, 11-12, 18, 276; collapse of theory of after the Revolution, 230-231, 279; the theory after the Restoration, 277; Filmer's version of, 277-279; how far a useful theory, 279-280; later developments of ideas underlying it, 280-281; opposition to the theory, 281-290; 202, 204, 209.

Dockwra, 324.

_Doctor and Student, the_, 613.

_Doctorina Placidandi_, 600.

Dolben, J., 507.

Dolman, 283.

Dorchestrter, Lord, 27.

Dover, Treaty, 180-181, 182, 222.

Dowre, 625, 645.

Dowrino, 176.

Dryden, 527.

Ducllino, 309.

Ducdale, 463, 595-597.

Dukz, G., 614, 616.

Dunbara, battle of, 147.

Dunkirk, 177, 178.

Durham, 246.

Dutchi, commercial rivalry with, 177, 318; economic ideas borrowed from, 340; was with, 173, 177, 178, 180.

E

East India Company, 326-327, 335, 340.

Eccclesiastical Courts, legislation of Long Parliament as to, 112-113; its repeal, 165.

Eccclesiastical Law, statutes relating to nonconformity, 196-203; as to other topics, 409-411; proposed changes in Commonwealth period, 418-419; books on, 607, App. IV. (7).

Eccclesiastical Policy, of last two Stewarts, 163; effect of Revolution on, 202-203.

Eccomic Freedom, growth of, 333-334, 354-355; effect on of economic theory, 350-359; favoured by Whigs, 341; its glangers, 359-360.

Eccombomic Policy, divergent opinions as to, 339-340.

Eccombomic Theory, changes in, 355-356; effects of growth of, 356-359.

Education, legal, of attorneys and barriers, 436-437; see Legal Education.

Ecgerton, 454, 464.

EjECTION, action of, 625-626, 627-628, 659.

Election, doctrine of, 646, 657.

Elections to House of Commons, disputes as to, 95-96; freedom of, 231; rules as to, 45-426.

Elector Palatine, the, 15.

Eldor, the first great Parliament statesman, 105-106, 108; 27, 75, 77, 97, 98, 101, 122.

Ellizabeth, 10, 43, 97, 98; her escclesiastic policy, 122, 125.

Ellizborough, Lord, views as to construction of Statute of Frauds, 394.

Ellis, J., 504, 507.

Emlv, Solom, 590.

Emlvoke and Workman, 347-349.

Employers' Liability, doctrine of, 268, 520, 636-637.

_Endividation Legum_, 601-602.

_Englam's Dalma_ (Shepherd), 415, 421-422.

English, ousts French as legal language, 571-572; legal proceedings in, 424.

Emlv,

## Index

### 708 Index

_Grown_, 590-591 ; his critical works, 992-594 ; his works on the civil part of the law, 594- compared with Coke, 594-595 ; the modern note in his works, 955 172, 199, 216, 222, 227, 228, 229, 243, 405, 496, 509, 501, 502, 637, 670.

Hales, MSS, the 583-584-

Hales, Christopher, 46, and 582-584 ; as a political thicker, 585 ; his _History of the Common Law_, 585-587 ; his works on constitutional law, 587-589 ; his _History of the Common Law_, 589-590 ; his _Analysis and Summary of Plean of the Crab_, 589-592 ; his critical works, 992-594 ; his works on the civil part of the law, 594- compared with Coke, 594-595 ; the modern note in his works, 955 172, 199, 216, 222, 227, 228, 229, 243, 405, 496, 509, 501, 502, 637, 670.

Hales, MSS, the 583-584-

## Index

Journeymen, difficulties with in 'the 'Kirke, 228.

Printing trade, 367, 368, 369.

Judges, the, of Charles II. and James II., 500-511 ; after the Revolution, 514-523 ; control of by crown, 213 ; tenure of office, 234, 501, 514 ; immunity of, 234-240 ; constitutional effects of their independent position, 263 ; appointed servents _fora_, 478 ; their admission and discipline of attorneys, 434-435, 436, 448 ; orders as to exclusion of attorneys from Inns of Court, 441, 443 ; orders as to most and readings, 482, 484-485, 487, 488-489.

Judgments, foreign, 541.

Judgments of Parliament (Selden), 608.

Judgicial System, perversion of royal powers over, 213-216 ; legislation against this, 232.

Judgium Criminari (Brydall), 605.

Jura Corona (Brydall), 608.

Jurisdiction, liability for acts done without, 236, 237, 238-240.

Jurisdiction of the Lords' House (Hale), 587-588.

Jury, crown influence over impanmelling, 24 ; no means of controlling verdes of, 388 ; statutes relating to, 409.

Jura Criminari (Brydall), 605.

Jura Tangarini (Brydall), 608, 609.

Justice's on the Peace, supervision of by Council, 56-57 ; work under judicial forms, 59 ; effects of this, 59-60 ; opposition to royal policy, 61-66 ; assessment of wages by, 348.

K Kobe's Reports, 552, 557-558.

Keble, his edition of the statutes, 212-213.

Keck, 618.

Kelyng, C.J., 501.

Kekyng's Reports, 552, 560-561.

Kennet, North's criticism of, 621, Kenyon, Lord, on the Statute of Frauds, 395 ; 497.

Kuno, dual capacity of, 242-243 ; must be a member of the Church of England, 241 ; relation to Parliament, 248 ; looses control over finance, 251-254 ; see Prerogative.

King's Counsel, rise of the order of, 472-475 ; duties of, 475 ; change in position of, 475-476 ; effect on precedence in the legal profession, 477 ; on the position of the serjeants, 477-478 ; on the constitution of the Inns of Court, 478-480 ; on legal education, 480-481, 490-491, 492.

King's Evil, the, 309.

Kirk, the, 8, 9.

Kirk, 228.

Koxox, 7, 125, 282.

L.

## Index

L'Estraange, 372.

Levant Co., 43-44.

Levellers, the 155, 159.

_Leavitalan, the (Hobbes), 294-298._

Levine, 233, 510, 511; his Book of Entries, 560.

_Leonius's Reports, 552, 560._

_Lex Mercatoria (Malynes), 666._

_Lex Survivum (Brydall), 607._

Liability, joint, and joint and several' 63': principles of, 636-637.

Libel; seditious, 214 ; effect on law of expiry of the Licensing Act, 377 ; 361, 628, 637.

Liherty of the Subject, limits of, 31-40.

Licensing of Books, Star Chamber Ordinances, 367-370 ; under the Commonwealth, 371-372 ; under the Act, 168, 372-373 ; after the Revolution, 374 ; objections to the Act, 375-376 ; its expiry, 266, 376-377 ; effects, 377-378.

Liblurne, 159.

Literature, legal, of the common law--the Reports, 551-574 ; the law books, 574-613 ; of equity, 613-619 ; North's books, 619-624.

Little Parliament, legislative proposals of, 415-421 ; see Nominated Parliament.

Littleton, B., 383, 384.

Littleton, S. G., 464.

_Lives of the Norths, the_, 620-621, 623.

Loans, forced, 36, 37, 40-42, 63.

Local Government, characteristics of, 55-59 ; ideas of officials of, 59-60 ; officials unpaid, 60-61 ; opposition to central government, 61-66 ; books on, 607-608, App. IV. (8).

Locke, his _Treatises on Government_, 284-286 ; justify the Revolution, 286-287 ; theoretical objections to, 287 ; practical influence of, 287-289 ; his reasons against the Licensing Act, 375-376 ; 275, 279, 282, 292, 293, 299, 309.

London, building in, 427 ; books on, 608.

Long Parliament, 68, 99, 134 ; growth of royalist party in, 111, 120-122 ; impeachments in, 111 ; legislation of, 112-114, 135 ; religious differences in, 115, 121-122, 135-137 ; claims to guide policy of the state, 115:120 ; final causes of civil war, 137-138 ; why opposition to crown got a majority, 139 ; purged by Pride, 146 ; assumes the government, 146 ; aims of, 152 ; refuses to dissolve, 146 ; discard by force, 147 ; dissolves itself, 148 ; Acts of confirmed at Restoration, 165-166.

Lord High Steward, trials in court of, 232-233.

Lord's Day Observance Act, 404.

Lotteries, 404.

Louis XIV, 164, 173, 179, 181, 182, 183, 185, 189-190, 193, 208, 300, 399, 429.

Lucas, 556.

Ludlow, 261.

Lunatries, 632.

Lurttrell, 510.

Lurttwce, Th., 557.

Lutwce's Reports, 553, 555, 562.

Lynch, Th., 612.

Lynon, Th., 462.

M Macaulay, 67, 201, 374, 535.

Maitland, 586, 587, 637, 638.

Major-Generals, the, 156, 159.

Mala, in _se_, 218, 219 ; _prohibita_, 218, 219, 224.

Malicious Prosecution, 637.

Mallet, Th., 485.

Mahby, Th., his edition of the statutes, 312.

Manley, Th., 612.

Manfield, Lord, views as to the Statute of Frauds, 394-395 ; compared with Holt, 521-522 ; 264, 265, 636.

Manufactures, encouragement of new, 330.

Mawawaring, 68, 1

## Index

### Index

1.1.1.1.1.2.1.3.1.4.1.5.6.6.7.1.6.7.1.

Notice, doctrine of, 546, 667-668. Nottingham, Lord, L.C., his political and religious views, 539-540; as a lawyer, 540-541; his writings, 542-543; as a chancellor, 543-545; his contribution to the development of equity, 545:548; his work on the Statute of Frauds, 380-381, 382, 384; 502, 586, 581, 582, 643, 669, 670. Nov, 51, 464, 574. Nuisance, 637. Nymegen, treaty of, 183. Oates, Titus, 183, 505, 506, 527. Occasional Conformity Act, the, 203. Oceans, the (Harrington), 149-151. Of Sweenigne Power (Hale), 204-205, 259. Officials of the Courts, 409. Omslow, Richard, 464. Opposition, rules of procedure which protect, 91. Options, speculations in, 338. Orange, the Prince of, see William III. Order of Business, right of the House of Commons to settle the, 98-99. Oorders of the King, said to justify illegality, 215. Ordinary Power of the Crown, 44. Ordonnances, the French, 301, 429. _Origines Juridicales_ (Dugdale), 596. _Origo Legum_ (Dawson), 612. Osborne, Sir Th., see Danby. Outlawkips, reversal of, 406. Oxford Parliament, the, 188. P Palmer, Jeffrey, 498. P Parke, 217-218. Parker, archbishop, 123. Parliament, relation of to prerogative, 5-6, 20-22; position of in early seventh century, 82-122; compared with that of the crown, 82-84; evolves a theory of sovereignty, 84-87; procedure of, 88-92; privileges--nature of 93-95, contents of, 95-100, use made of, 100; evolves theory of ministerial responsibility, 101-103; work of the Long, 111-115; claim to guide policy of the state, 115-120; the Grand Remonstrance, 120; growth of royalist party in the Long, 120-122; effect of Commonwealth period on position of, 162; changed position of after Restoration, 207-208; constitution of in latter part of seventeenth century, 244-247; relation between House of Commons and House of Lords, 247-249; powers of, 249-254; procedure and privileges of, 254-258; relation to prerogative, 258-262; defects in representative, 210-212; defects in composition of, 212-213; judicial powers of vested in the House of Lords, 249. Parliamentary Opposition, national character of, 61, 80, 82; merits and defects of, 103-107. Parsons, 283. Partz Performance, doctrine of, 393, 658-659. Partition, writ of, 398. Partition Treaties, the, 536. Partnership, 636. Passive Obedience, 202, 209, 277. Paston, John, 449. Patent Law, development of, 331, 425. Paternoster Row, 363. Patriarcha, the (Filmer), 277-278, 283. Patterson, J., 567. Pauders, status of, 353-354. Peterage, 244, 245. Peterage Hills, 250. Pemberton, C.J., 269, 503, 507, 511. Peral Laws against Roman Catholes and Protestant Nonconformists (Blackley), 611. Penalties, relief against, 663. Pensilyvania, 308. Pensilyvania, 308. Peps, 305, 357, 537. Perez La Chasse, 184. Perpetuities, rule against, 543, 545, 627, 666; Bridgman's share in ascertaining, 537. Person, offences against, 403-404. Personal Personal, Property, 666-668. Petition of Right, the, as to liberty of the subject, 37-38; its declaratory form, 39-40, 107; as to loans and taxation, 42, 216; as to martial law, 54, 226. Petition of Right, a, 266. PERTtioning, Act against tumultuous, 167; proclamations against tumultuous, 304; Commonwealth legislation as to, 426; clause of Bill of Rights as to, 241. PERTty, 358, 359; works on economics, 358-359. Phillips, Fabian, 610. Phillips, Sir R., 70. Pigot, 236, 237. Pixacy, laws as to, 400-401; Commonwealth legislation as to, 426. PLACEMENT, attempts to Prague, the, 177. Pleaders, the, 444-446. Pleading, statutes as to, 409; development of law of, 570-571, 633. Pleadinos, oral and written, 444-445; common and special, 445-446; elaboration of, 446. Plumpton, Edward, 452; Sir R., 452. Political Event, 305, 315. Political Speculation, in England and on the Continent, 273-275; religious element in, 274-275; change in character of, 275, 290-294. Political Theories, influence of on public law, 273-299. Political Tracts, the, 609-610, App. IV. (10). PollexPen, 465, 511, 514, 561-562. PollexPen's Report, 552, 561. Pollock, Sir F., 543. Pooley, 618. Poor Law, the, breakdown of under Commonwealth, 349-350, 426; Restoration legislation as to, 350-351; law of settlement, 351-353; change in status of the pauper, 353-354. Pophad, 45, 464. Polish Plot, the, 183-184, 503, 505; 506, 533, 623. Portritt, 243, 255. Portions, raising of, 646. Portions, discussed of, 187, 529. Post Office, the, 310, 324, 425. Powell, J., 222, 510, 511. Powers, relief against defective execution of, 662. Powys, J., 267. Practice and Pleading, books on, 598-600, App. IV. (1). _Patrick Part of the Law, the_, 437, 598-599. _Practical Register in Charactery, 616. Prathers, the, relation to Stationers Pratising Attorney, 14, 437. Praxis Atma Curie Cancellaria, 616. Praxis Utriaguue Banci, 599._ Precedence, patents of, 476. Precedence, patents of, 476. Precedence 618. Precedence 618. \_Precedence for Rolley's Additional (Hale), 494, 587, 624-626. Preparatory to Pleading, $A$ (Townsend), 602. Preparatory Notes Touching the Rights of the Crown (Hale), 589. Prerogative, in Tudor period, 20-21; in early seventeenth century, 20-29; treatment of by royalist lawys, 30; as to comparinents to prison, 31-40; as to matters fiscal, 40-49; as to national defence, 49-54; control over local government 55-66; represents progressive views, 67-69; relation of to law, 69-70; to Parliament; 70-72; strength and weakness of, 72-82; national opposition to, 61, 80, 82; _in later seventeenth century_, 203-230; effect of the Revolution on, 230-243; contrast between earlier and later seventeenth century theories as to, 203-204, 207-208; Hale's views as to, 204-205; North's views, 205-206; strength of compared with that of the Parliament, 208-209; expedients used by Crown to win predominance for--theory of divine right, 208, advantage taken of defects of Parliament, 209-213, control of the Bench, 213-216, suspending and dispensing powers, 216-225, control of the army, 225-230; how these expectations were declared with at the Revolution, 230-241; effects on legal conception of, the, 242-243; idea of an inseparable, 221, 224; compared with privilege, 257; to grant monopoly patents for printing, 365-366, 373-374. Presbyterian Church, the, 8-9, 11. Presbyterian Church of Pennsylvania, relation to Church of England, 124-125; alliance with Parliament opposition, 110, 124, 128-129; aims after the civil war, 144-145; 152; political theories of, 283, 506, 533, 623. Press, control of by proclamation, 311; history of regulation of; 367-379. Presses, limitation of number 0i, 367-368, 369, 372. Presser's, battle of, 145. Preferred, the, 399. Presser's, regulation of by proclamation, 306; by statute, 346; cessation of this regulation, 346-347. Preface, Colonel, 146. Prime Minister, A, considered by Clarendon to be unconstitutional, 175-176. Printers, the, relation to Stationers Co., 363. Printers, effect of on legal education, 482-483. Privareters, 316. Privareters of 407-409, Commonwealth legislation as to, 427 ; criminal--statutes as to, 405-407, Commonwealth legislation as to, 427 ; simplification of, 626 ; of equity becomes fixed, 668.

Procedure of the House of Commons, 88-92, 255-256.

Process, statutes as to, 407-409.

Proclamations, extent of prerogative to issue, 31 ; place of in late seventeenth century, 303-304 ; as to national defence, 304-305 ; as to industry and commerce, 305-307 ; as to the colonies, 307-308 ; as to foreign affairs and international law, 308-309 ; as to social life, 309-310 ; as to roads and building, 310 ; as to plays, 310-311 ; as to the Press, 311 ; as to the coffee-houses, 311-312.

_Prolgomena, like_ (Nottingham), 542-543.

Promissory Notes, Holt's views as to, 521-522 ; 635.

Property, offices against, 402-403.

Proteston, policy of, 306, 321, 328-330, 425 ; difference between Whigs and Topics as to, 339-340.

Prothero, 15.

Prothonotarifies, the, 436 ; pleadings entered in their offices, 445.

Provincial Councils, the, relation to local government, 56.

Prynne, 291 ; on legal education, 487-488.

Pulton, his edition of the statutes, 312 ; his abridgment of the statutes, 313.

_Pur Autre Vie_, legislation as to estates, 386-387, 397.

Purchase for Value without Notice, 667.

Purtirans, the, 13, 14.

Purveyance, 167.

Pryn, his character and career, 108-110;

38, 68, 77, 101, 116, 117, 118, 130, 136, 138, 140.

Purchase for Value without Notice, 667.

Purtirans, the, 13, 14.

Purveyance, 167.

Pryn, his character and career, 108-110;

38, 68, 77, 101, 116, 117, 118, 130, 136, 138, 140.

Purchase for Value without Notice, 667.

Quakers, the, 198 ; relief for, 200-201.

Quantum Merult, action on a, 639.

Quasi-contract, 521; growth of conception of, 637-640.

Quo Warranto Proceedings, in Charles I.'s reign, 57 ; in Charles II.'s reign, 210-211 ; against the City of London, 503-504, 507, 510, 516, 566-567.

R

Rainsford, C.J., 504, 507.

Railthy, 618.

Ranke, 191, 193.

Rastell, his abridgment of the statutes, 313.

\_Raymond's (Lord) Reports, 553, 555, 560.

_Raymond's (Ta.) Report, 552, 559-560._

Randers, difficulty of finding, 484.

Readers' Fears, the, 491-492.

Readings, decline of, 482, 484, 488-489.

Real Actions, decline of, 625-626, 628.

Rexclamation of Waste Land, 345, 426.

Reconage, the, 325.

Record, courts of, 235.

Records, sanctity of, effect on position of the judges, 235-236, 237.

Redistribution of Sears in the House of Commons, 157-

Redlich, 89, 90, 91, 252.

Reeves, 586.

Reform Act (1832), 67.

Reformation, the, effect on Scotland, 7-8 ; effect on the dispensing power, 219-220 ; political effects of, 290.

Regicides, the, 169-170, 261.

_Register of Writs, the_, 613.

Registration, of births, 410, 427 ; of books by Stateners Co., 364 ; of conveyances, 594 ; of titles, 532, 627.

Regrating, 343, 346.

_Regula Placattandi_, 600.

Religion, difficulties at close of Tudor period, 6

## Index

### Smith, Sir Th., 87, 209.

Society of Gentlemen Practisers, 443, 444.

Solders, proclamations as to behaviour of, 305; as to relief of disabled, 305; discipline of, 225-230, 241.

Sokem League and Covenant, 143, 144, 152, 167, 197.

Solicator, the King's, why he comes to differ from other solicitors, 469-470.

Solicators, the word, 448-449; acquires a technical meaning, 449-450; reasons for rise of, 450; caused by limitations on sphere of the attorney's authority, 450-453; by limitations on his sphere of activity, 453; needed in new courts, 453-454; reason for this, 454-456; relations to the attorney, 450; approximation to, 456-457.

Solicator-General, not a medieval official, 457; rise of, 462-463; changes in position of, 463-466; reasons for modern position, 469-472; becomes a member of the ministry, 466.

Somers, L.C., compared with North, 530-531; his career, 535-537; 464, 465, 517.

Southern Sea Company, the, 353.

Sovereignity, problem of, 5-6, 23, 26-29, 53, 72-73; attitude of Parliament to, 83-84; evolves a theory of, 84-87; views of Hale and North as to, 204; 206; not really grasped by lawwers of the seventeenth century, 260-207; problem of not solved by the Revolution, 258-259; reason for this, 260-262; but need for solution seen by Long Parliament, 259; this becomes obvious in later part of seventeenth century, 259-261; influence of theory of on political speculation, 291-292; Bodin's theory of, 273; why generally identified with a king; 273; Hobbes' analysis of, 296-298.

Spanish Match, the, 15.

Spearear, the, his relation to Parliament procedure, 89; double position of, 90, 99; change in position of, 255.

Special Branches of the Common Law, books on, 606-607, App. IV. (6).

Speciale Mandatum Reis, imprisonment per, 32-33, 42.

## Index

- Tariff, rearrangements of--made by Crown, 43:48, made by Parliament, 325:326.
- Taxation, power of the Crown over, 48:49 ; legislation of Long Parliament as to, 112 ; clause of Bill of Rights as to, 241.
- Temple's Scheme, 186, 259.
- Ten Propositions, the 118.
- Tenenda Tomellada (Phillips), 610.
- Terman Galtagas, the 597.
- Trams of Years, use of by convey-ancers, 666.
- Territorial State, rise of the, 290.
- Territorial Waters, 308-309.
- Test Act, the first, 182, 199, 200, 201 ; the second, 184, 199, 200 ; James II.
- aims at the repeal of, 192; foreshadowed under the Commonwealth, 426; 232, 242, 255.
- Testimony, suits to perpetuate, 661.
- Theloall's Digest, 598.
- Theory of Legislation, the (Bentham), 299.
- Thurland, B., 507.
- Tithes, 410.
- Tobacco, American monopoly of, 307, 322, 425.
- Totzatani Act, 194, 195, 200-201, 202.
- Tories, what they secured at the Revolution, 195 ; interviews of Louis XIV, with, 189 ; favour free trade, 339-340 ; 163, 171.
- Tort, king not: liable for, 266-267 ; development of law of, 636-637.
- Tort Party, origins of principles of, 280, 281.
- Tortell, R., 365.
- Trands, the (Shepherd), 641.
- Trands, supervision of, 306 ; Crown's power to grant exclusive rights to, 326-327, 334-335 ; medieval restrictions, 520-521.
- Transportation, of animals, 307 ; of vagrants, 350.
- Travellers' Guide and Country's Safety, 666.
- Treason, extension of, 168; statutes relating to, 399-400 ; Commonwealth legislation as to, 426 ; legislation as to, 232-234.
- Treasonable Books, 361, 364.
- _A Treatise in Three Parts--de Jure Maria, de Poribus Maris, and on Customs Duites (Hale), 588-589._
- Treby, 465, 511, 515.
- Trevor, Sir J., 549-550 ; Arthur, 549.
- Trevor Laury of Free Monarchies, the (James I), 11-12.
- Triennial Act of 1641, 113; repeal of, 166 ; of 1664, 113, 166, 191 ; of 1694, 231.
- Triple Alliance, the, 180.
- T crustaceans, power to charge, 652.
- Tustes to Preserve Contingent Remainders, 666.
- Trusts, provisions of Statute of Frauds as to, 355-386 ; recognition of use on a use, 641-642 ; charitable and private, 643 ; presumptive and precatory, 643 ; constructive, 643-644 ; resulting, 644 ; influence of law as to on law of executors, 655 ; 543, 545.
- Tudfors, the, 5-6, 20-21, 41.
- Trumulous Partitioning, see Fetti-tations.
- Tunnage and Poundage, 42, 70.
- Turner, C. B., 38a, 501.
- U
- Unde Influence, 660-661.
- Uniformity, Act of, 172, 197.
- Union, Act of, 536.
- V
- Vachy of the Throne, 230, 248.
- Vachyants, 350.
- Valentine, 39, 97, 98.
- Vachy, 39, 196.
- Vachyan, C.J., 223, 224, 501-502, 669.
- Vaughan's Reports, 552, 558, 561.
- Vernon, Th., 617, 619.
- Vernon, Th., 617, 618.
- Villenius, 265, 625.
- Voltairie, 300.
- W
- Wager of Law, 626.
- Wagering Contracts, 631, 636.
- Wages, regulation of, 347-348 ; cessation of this regulation, 348-349.
- Waxerman, 505, 506, 508.
- Wales, Council of, 112.

with, 189; what they secured at the Revolution, 195; arbitrary acts of, 213; views of as to Licensing Act, 375; favour protection, 339-340; 163, 171.

White Friars, 408.

Whitelocke, Bulstode, 423; Mr. Justice, his theory of Parliamentary sovereignty, 84-87; 36, 107, 438; 514.

Wildb, J., 507.

Wildbord, Sir Th., 81.

Wilkens, 199.

Wildb, J., 239.

William III., his marriage, 183; his tract against the Declaration of Indulgence, 193; his expedition to England, 193-194; 163, 164, 179, 253.

Williams, Peere, 618.

Williams, Serjeant, 567; Sir Edward Vaughan, 567; 568.

Williams, Speaker, 256, 269, 515.

Williams' Saunders, 567, 571.

Wills, provisions of Statute of Frauds

as to, 385, 394-395; 653.

Wilmot, J., 394.

Wildbark, 111.

Wildbark, 138, 382, 383, 500, 594.

Wildbark, 518-519, 533; Hale's attitude to, 578-579.

Wither, George, 366.

Witnesses, number of, to prove treason, 234; rules excluding, 388-389; com-pectancy of, 384-87; 36, 107, 438; 514.

Wool, Manufacture of, 328-329, 425.

Wordser, battle of, 147.

Wordsley, Master, 489.

Wildbark, Nathan, L.K., 538; Robert, 507-508, 511, 530, 534.

Wythens, J., 510.

Y

Williams, Peere, 618.

Williams, Serjeant, 567; Sir Edward Vaughan, 567; 568.

Year Books, Maynard's edition of, 512; Vaughan, 567, 568.

Williams, Speaker, 256, 269, 515.

Year, 449; Henry, 464.

Williams' Saunders, 567, 571.

Wills, provisions of Statute of Frauds

_Young Clerk's Tutor Enlarged_, 602.

as to, 385, 394-395; 653.
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