## Chapter 1 Introduction

In this thesis we will consider the following two chapters:

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thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis of the thesis thesis of the thesis of the thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis thesis of the thesis of the thesis of the thesis thesis of the thesis of the thesis of the thesis of the thesis thesis of the thesis of the thesis of the thesis of the thesis of the thesis thesis_Volumes I-III\_

_First Published . . . . . . . May 1903_

_Second Edition . . . . October 1914_

_Third Edition, Rewritten . . . 1922-1923_

_Volumes IV and V_

_First Published iii 1923_

**Printed IN GREAT BRITAIN** The Right Honourable Frederick Edwin FArl. Of" Birkenhead

sometime lond high chancellor of great Britann

This work

Ry Hin Ludenhuis's permission

RESPECTFULLY DROICATED

## Preface

If fourth and fifth volumes of my history begin the period from 1485 to 1700--the period which saw the development of our modern English law from its medieval basis. This instalment carries the history of the influences which shaped the development of the law down to the first half of the seventeenth century. The next volume will deal with the history of English public law in the seventeenth century, and with the influences which shaped the development of the law in the latter part of that century. These and the following volumes thus break new ground, as, except for Reeve's history which goes no further than the end of Elizabeth's reign, no one has as yet attempted to write the legal history of this period. In these circumstances a few explanatory words as to the plan upon which these two volumes have been composed seem to be necessary.

The first chapter of the fourth volume deals with the public law of the sixteenth century, and the second chapter with the enacted law of the sixteenth and early seventeenth centuries. Both these chapters are necessarily long. In the first chapter it has been necessary to write at length of the public law of the sixteenth century for two reasons. In the first place, there is as yet no constitutional history of the sixteenth century which embodies the results of recent researches--nothing which corresponds to Stubbs's Constitutional History in the preceding period. In the second place, though continental influences affected the development of English law both public and private in this century, the policy of the Tudor sovereigns accentuated the causes, which, in the preceding period, were making for a purely native development, and gave to English lawand institutions a form which differed fundamentally from the law and institutions of continental states. But to understand this policy, and to grasp the manner in which, continental influences helped the Tudors to build up the modern English state on the foundation of medieval institutions, medieval ideas, and medieval law, it is necessary to compare the English with the continental development. The second chapter, which deals with the enacted law of the sixteenth and early seventeenth centuries, covers much ground because, just as the legislation of Edward I, marked out the main lines upon which the medieval common law was developed during the two succeeding centuries, so the legislation of the Tudor period marked out the main lines upon which the modern common law was developed down to the legislative reforms of the nineteenth century. It will be seen, too, that in this chapter I have been obliged to trespass upon the domain of the economic historian. The bulk and importance of the economic statutes of this period, and their intimate relation to many branches of law public and private, has made it necessary to deal with them in some detail. But I think that their treatment from a legal, rather than from an economic point of view, may perhaps help the economic historian as much as the works of economic historians have helped me to understand this legislation. This part of my History was written before 1914 ; and it is curious to see how, in the period of national emergency which followed the outbreak of the Great War, expedients were adopted which were similar to those which had commended themselves to the statesmen who lived through many periods of national emergency in the sixteenth century.

The fifth volume deals with the professional development of English law during the sixteenth and early seventeenth centuries. The outstanding feature of this development is the expansion of English law by the work of the many courts which, during this period, filled up some of the gaps which had been caused by the serious limitations upon the sphere of the medieval common law. The growth of these bodies of law is the subject of the first two chapters of this volume. The third chapter deals

## Preface

with the growth of the common law during this period, and the beginnings of that contest for supremacy with these rival bodies of law, which marks the first half of the seventeenth century. That contest was, as we shall see in the sixth volume, intimately bound up with the constitutional controversies of that century. But the position taken up by the common law, both in relation to these purely professional contests between the common law and its rivals, and in relation to the greater constitutional controversies, was outlined by Edward Coke, who has some claims to be considered the central figure in English legal history. His work as a Parliamentary statesman gave to the common law the position in the English state which it holds to-day. His literary work was the complement of the political work of the Tudor dynasty ; for it summed up, adapted to modern conditions, and harmonized with the modern law, the medieval doctrines which still formed the basis of the English common law.

As in the preceding volumes, I 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.

PLAN OF THE HISTORY

(Vol. I.) BOOK I.--The Judicial System: Introduction, Chap. I. Origins. Chap. 11. The Decline of the Old Local Courts and the Rise of the New County Courts. Chap. III. The System of Common Law jurisdiction. Chap. IV. The House of Lords, Chap. V. The Chancery. Chap. VI. The Council, Ciap. VII. Courts of a Special Jurisdiction, Chap. VIII. The Reconstruction of the Judicial System. (Vol. II) BOOK II. (449-1066)--Anglo-Saxon Antiguities: Introduction, Part I. Sources and General Development. Part II. The Rules of Law: SS I The Ranks of the People; SS 2 Criminal Law; SS 3 The Law of Property; SS 4 Family Law; SS 5 Self-help; SS 6 Procedure.

BOOK III. (1066-1485)--This Medieval Common Law: Introduction, Part I. Sources and General Development: Chap. I, The Intellectual, Political, and Legal Ideas of the Middle Ages. Chap. II. The Norman Conquest to Magna Carta, Chap. III. The Region of Henry III. Chap. IV. The Reign of Edward I. Chap. V. The Fourteenth and Fifteenth Centuries. (Vol. III.) Part II. The Rules of Law: Chap. I, The Land Law: SS 1 The Real Actions; SS 2 Free Tenure, Unfree Tenure, and Chatters Real; SS 3 The Free Tenures and Their Incidents; SS 4 The Power of Alienation; SS 5 Seismic: SS 6 Estates; SS 7 Incorporated Things; SS 8 Inheritance; SS 9 Curtsey and Dover; SS 8 to Unfree Tenure; SS 11 The Term of Years; SS 12 The Modes and Forms of Convevance; SS 13 Special Customs, Chap. II. Crime and Tort; SS 1 Self-help; SS 2 Treason; SS 3 Benefit of Clergy, and Sanctuary and Abjuration; SS 4 Principal and Accessory; SS 5 Offences Against the Person; SS 6 Possession and Ownership of Chatters; SS 7 Wrongs to Property; SS 8 The Principles of Liability; SS 9 Lines of Future Development. Chap. III. Contract and Quasi-Contract. Chap. IV. Status: SS 1 The King; SS 2 The Incorporate Person; SS 3 The Villeins; SS 4 The Infant; SS 5 The Married Woman. Chap, V. Succession to Chatters: SS 1 The Last Will; SS 2 Restrictions on Testation and Intestate Succession; SS 3 The Representation of the Deceased. Chap. VI, Procedure and Pleading: SS 7 The Criminal Law; SS 2 The Civil Law.

(Vol. IV.) BOOK IV. (1485-1700)--The Common Law and Its Rivals: Introduction. Part I. Sources and General Development: Chap. I. The Sixteenth Century at Home and Abroad. Chap. II. English Law in the Sixteenth and Early Seventeenth Centuries: The Enacted Law. (Vol. V.) Chap. III. English Law in the Sixteenth and Early Seventeenth Centuries: Developments Outside the Sphere of the Common Law--International, Maritime, and Commercial Law. Chap. IV. English Law in the Sixteenth and Early Seventeenth Centuries: Developments Outside the Sphere of the Common Law--Law Administered by the Star Chamber and the Chancery. Chap. V. English Law in the Sixteenth and Early Seventeenth Centuries: The Development of the Common Law. (Vol. VI.) Chap. VI. The Public Law of the Seventeenth Century. Chap. VII. The Latter Half of the Seventeenth Century: The Enacted Law. Chap. VIII. The Latter Half of the Seventeenth Century: The Professional Development of the Law. (Vol. VII.) Part II. The Rules of Law. Chap. I. The Land Law ; SS 1 The Action of Ficement; SS 2 Seismic Possession and Ownership; SS 3 Contingent Remainders; SS 4 Executory Interests; SS 5 Powers of Appointment; SS 6 The Rules Against Pertuities; SS 7 Landford and Tenant; SS 8 Copynolds; SS 9 Incorporated Things; SS 10 Convevancing; SS 11 The Interpretation of Convevances. Chap. II. Chatrels Personal: SS 1 The Action of Trover and Conversion; SS 2 The Ownership and Possession of Chatters; SS 3 Choses in Action. Chap. III. Contract and Quasi-Contract: SS 7 The Doctrine of Consideration; SS 2 The Invalidity, the Enforcement, and the Discharge of Contract; SS 3 Quasi-Contract. Chap. IV. The Law Merchant. I.--Commercial Law: SS 1 Vsury and the Usury Laws; SS 2 Negotiable Instruments; SS 3 Banking; SS 4 Commercial Societies; SS 5 Agency; SS 6 Bankruptcy. II.--Maritime Law. III.--Insurance. Chap. V. Crime and Tort. Lines of Development, SS 1 Constructive Treason and Other Cognate Offences; SS 2 Defamation; SS 3 Conspiracy, Malicious Prosecution, and Maintenance; SS 4 Legal Doctrines Resulting from Laws Against Religious Nonconformity; SS 5 Lines of Future Development; SS 6 The Principles of Liability. Chap. VI. Status: SS 1 The King and Remodeling Against the Crown: SS 2 The Incorporate Person; SS 3 British Subjects and Allens. Chap. VII. Evidence, Procedure, and Pleading: SS 1 Evidence; SS 2 Common Law Procedure; SS 3 Equity Procedure.

**CONTENTS**

PAGE

PLEPACE .

**Xiv** CONTENTS

PAGE

Effects of his foreign policy

His reign foreshadows main lines of Tudor policy

The New Learning in England

Henry VIII. and the New Learning

**CONTEENTS**

page

Privy and ordinary councillors .

**Xvi**

CONTENTS

PAGE

Kitchin

Shepherd's Court Keeper's Guide

**CONTENTS**

**XVII**

**Bodin**

**His theory of sovereignty**

**XVIII**

**CONTENTS**

PAGE

The operative sphere of "conscience " . . . . 278-279

This idea takes new life in the Chancery . . . 279-281

Limits of its sphere of action . . . . . 281-282

Growing definition of equity . . . . . 282

Continued dependence of equity on the law . . . 282-283

Existence of the common law not in danger at this period . . . 283

Policy of Henry VIII. . . . . . . . 283

Position of Parliament . . . . . . . 283-284

Its supremacy was in danger . . . . . . . 284

Later conflicts of jurisdiction foresladowed . . . . . 284-285

No Reception needed in England . . . . . 285-286

English lawyers turn to thirteenth century writers . . . . 286

New courts introduce new ideas . . . . . . . 286-287

Permanent effects of this . . . . . . 287-288

Comparison between the English and Continental development . 288

The Consequences of the Reception on the Continent and in England 289-293

Possibility of a science of comparative law . . . . . . 289

Possibility of international law . . . . . . . 289-290

Effect on political discussion . . . . . . . . 290-291

Growth of national laws . . . . . . . . 291-292

Influence of Roman law on those laws . . . . . . 292

Debt of English to Roman law . . . . . . . . 292-293

## Chapter 11 English Law in the Sixteenth and Early Seventeenth Centuries

Thr Enactred Law

The enacted law and the professional development of the law . . . 294-295

The Proclamations . . . . . . . . 296-307

Henry VIII.'s statute . . . . . . . . . 296

The case of Proclamations . . . . . . . . 296-297

The administration of the government . . . . . . . . 297-299

Matters religious . . . . . . . . . . 299-307

Commercial and industrial regulations . . . . . . . . . 301-303

Social life . . . . . . . . . . . . 303-305

The Press . . . . . . . . . . . . 305-306

Miscellaneous . . . . . . . . . . . . . 306-307

The Statutes . . . . . . . . . . . . . . 307-539

The printed editions . . . . . . . . . . . . 307-373

The statutes at large . . . . . . . . . . 307-310

Abridgments of the statutes . . . . . . . . . 310-313

Commerce and Industry . . . . . . . . . 314-407

Importance of this legislation . . . . . . . 314-315

The economic ideas which underlie it . . . . . . 315-326

New geographical and political factors . . . . . 315-316

The Mercantile System . . . . . 316

The medieval and the sixteenth century ideals . . . 316-319

Organization of external trade . . . . . . 319-321

Organization of internal trade . . . . . 321-324

The medieval and the sixteenth century system . . . . 324-326

Trade external and internal . . . . . . 326-362

(i) The maintenance of an adequate system of national defence 327-331

(ii) The maintenance of an adequate stock of the precious

metals . . . . . 331-332

(iii) The promotion of foreign trade . . . . . 332-340

Cessation of foreign control . . . . . 332-333

Regulation of imports and exports . . . . . 333-335

RegCONTENTS 3X1X

PAGE

**(iv) Preservation of old, and encouragement of new industries 34+0-354**

**Competency of the workmen** . . . . . . . . 341-342\*\*

**Quality of the product . . . . . . . 342-343**

**Encouragement of new industries . . . . . 343-354**

**Monopoly patents--origin . . . . . . 43-345**

**Different from medieval gild privileges . . . . 345-346**

**Abu:e of monopolies . . . . . . 346-347**

**Parliamentary agitation against them . . . . . 347-348**

**Elizabeth's settlement . . . . . . 348-349**

**Attitude of the common law . . . . . . 349-350**

**When will a monopoly or other restriction on trade be**

**valid . . . . . . . 350-353**

**James I.'s statute . . . . . . . 353-354**

**Later development of patent law . . . . . 354**

**(v) Enforcement of this commercial policy . . . . 355-361**

**Various expedients . . . . . . 355-356**

**Actions for penalties . . . . . 356-357**

**Commissions to seek out offenders and to compound**

**offences . . . . . . . 357-359**

**Special officials . . . . . . . . 359-360**

**Break down of these expedients under the Sluarts . . 360-361**

**Success of Tudor commercial policy . . . . . 361**

**Effect on growth of commercial law . . . . . 362-379**

**Agriculture, the food supply, and prices . . . . . 363-379**

**The agricultural problem . . . . . . 362-363**

**(i) The Agrarian Revolution . . . . . . 364-373**

**Inclosures for pasture and tillage . . . . 364-365**

**Legislation against inclosure for pasture . . . 365-368**

**Inclosure for tillage . . . . . 368-369**

**Encouragement to agriculture . . . . . . 370-371**

**Labour for agriculture . . . . . . . 371**

**The business of agriculture . . . . . . 371-372**

**The achievements of the new race of landowners . . . 372-373**

**(ii) The food supply and prices . . . . . . 373-379**

**The aims of the government . . . . . . 373-374**

**Its measures . . . . . . . 374-375**

**Rules of law under which it acted . . . . . 375-379**

**Forestalling, regrating, and ingrossing . . . . 375-377**

**Enforcement of the law on these topics . . . . 377-379**

**Effects of the repeal of this legislation . . . . 379**

**Employer and workmen . . . . . 379-387**

**The Statutes of Labourcrs and the Elizabeth legislation . 380**

**Duty to work . . . . . . . . 380-381**

**Rates of wages . . . . . . . 381-383**

**Infringements of the Acts . . . . . . . 383**

**Procuring a departure from service . . . . . . 383**

**Modern developments of the law on this point . . 384-385**

**General view of the Elizabeth law . . . . . 385-386**

**Modern changes and their effects . . . . . . . 387**

**Unemployment and pauperism . . . . . . 387-402**

**Medieval and sixteenth century conditions . . . . 387-388**

**Medieval agencies for relief of pauperism . . . . 389-390**

**The Statutes of Labourcers . . . . . . 390**

\*\*Need for new

**CONTENTS**

PAGE

Why the Poor Law succeeded in England . . . . 400-40I

Its social and political effects . . . . . . 401-402

Classes of Society . . . . . . . 402-407

Modification of medieval ideas . . . . . . 402-403

Rise of a large middle class . . . . . . 403-404

Position of the lower classes . . . . . . 404

The pauper . . . . . . 404+405

Duties of all classes to the state . . . . . . 405

Class distinctions . . . . . . 405-406

No impassable class barriers . . . . . . 407

Uses and Trusts . . . . . 407-480

Property and contract--peculiarity of English developments . 407

Influence of these developments on English law, public and private 408

Historical development of the law as to Uses . . . . 409

The Use in the Middle Ages . . . . . 409-449

Origins and position in English law . . . . 410-417

Earlier theories . . . . . . 410

The Salman--the underlying idea . . . . . 410-412

Instances . . . . . 412

Twelfth and thirteenth century developments . . 412-414

Period of uncertainty as to position of the Use . . 414-416

Uses of land not recognized by the common law . . 416

Effects of this . . . . . . 417

Development in the Chancery . . . . . 417-443

Why the Chancery assumed jurisdiction . . . . 418-419

When it assumed this jurisdiction . . . . 419-420

Why Uses of land are most common . . . . 420-421

The Creation of the Use . . . . . . 427-427

Express creation . . . . . . 421-423

By operation of law . . . . . 423-424

Implied from acts of parties . . . . 424-427

Capacity to be feoffee or cestuique use . . . . 427-430

Position of feoffees to use . . . . . 430-431

The interest of the cestuique use . . . . . 432-437

becomes almost ajus in rem . . . . . 432-433

Peculiar nature of this interest . . . . 433-435

Its practical results . . . . . 435-437

Incidents of the estate of cestuique use . . . . 437-443

How far equity followed the law . . . . 437-438

Increased powers of landowners . . . . 435-439

The property of unincorporate communities . . 439-440

New estates in the land made possible . . . 440-441

Risk of perpetuities not yet felt . . . . 441

Effect on conveyancing . . . . . . 442

Why legislative control was necessary . . . 442-443

Control by the Legislature . . . . . . 443-449

Legal purposes . . . . . . . 443-449

Illegal purposes . . . . . . . 443-445

Evasion of the incidents of tenure . . . . . 446-449

The Statute of Uses . . . . . 449-473

Misunderstanding of its causes and effects . . . . 449-450

Its political causes . . . . . 450-46r

Henry VIII.'s unsuccessful attempts to legislate . . 450-453

He conciliates the lawyers . . . . . 453-455

New legislative proposals . . . . . 455-456

The alternative scheme . . . . . 450-457

The more complete scheme of the Statute of Uses . 457

Proposals as to registration of conveyances . . . 457-459

Their failure and the effects of this failure . . . 459-460

The Statute of Enrolments . . . . 460

The preamble to the Statute of Uses--its real character 460-46rCONTENTS

PAGE

Other clauses

The Statute of Enrolments

To what uses the Statute applied

Advantages gained by the king and the common

lawyers

Its unpopularity--the Pigirimage of Grace

464-465

The Wills Acts

Effects of this legislation

How far the Statute accomplished its objects

Mistaken ideas of modern writers

Its four objects

**XX11**

**CONTENTS**

PAGE

**Offences connected with officials** \*

## List of Cases

\\begin{tabular}{l r r r} & & & \\

**LIST OF CASES**

**F**

**LIST OF CASES**

**T**

**PAGE**

**Talbot v. Cookes**

**Talory v. Jackson**

**Trockmorton's Case**

**Towyne's Case**

**Tyne's Case**

**Tyrrel'a Case**

**Tytec v. Globe**

List of STATUTES

PAGE

- \[52\] Henry III. c. 6 . . . . . . . . 537 18 Henry VI. c. t9 . . . . . . . 330
- \[52\] Edward I. St. t c. r5 . . I4I,526 23 " " c. g . . . . 527
- \[6\] " " c. I . . . . 537 " " " c. I2 . . . . . 383
- \[7\] I Edward IV. c. I . . . 423
- \[7\] " " " c. 443 2 " " c. 3 . . . 335
- \[8\] " " c. 7 . . . 123 3 " " c. 2 . . . . 374
- \[9\] " " c. 2 . . . 527 4 " " c. I . . . . 34
- \[10\] " " c. I0 . . . . 123 7 " " c. I . . . . 334
- \[11\] " " c. I4 . . . . 123 17 " " c. I . . . . 332
- \[12\] I I " " c. 5 . . . 344 " " " c. 4 . . . 134
- \[13\] " " c. I . . . . 123 " " c. 11 . c. I . . . 444
- \[14\] " " " " c. 3 . . 375 " " " c. 5 . . . 46I
- \[15\] " " St. 2 c. II . . . 375 " " " " c. 9 . . . 335
- \[16\] " " c. I3 . . . 52I " " " c. II . . . 330
- \[17\] " " c. I3 . . . 375 " " " " c. I . . . 489
- \[18\] " c. I4 . . . . 123 " " " c. 7 . . . 139
- \[19\] " c. 6 . . . 443 " " " " c. 8 . . 327,505,506
- \[20\] " " " c. 9 . . . 444 11 11 " c. 8 . . 337 5 " " " c. 8 . . 337,505,506
- \[21\] " " St. 2 c. 3 . . 443 3 " " " c. I . . 518,520,523
- \[22\] " " St. 2 c. 3 . . 444 11 11 " c. 9 . . . 335
- \[23\] " St. 2 c. 3 . . 443 3 " " " c. I . . 518,520,523
- \[24\] " St. 2 c. 3 . . 443 3 " " " c. I . . 504
- \[25\] " St. 2 c. 3 . . 443 3 " " " c. I . . 527
- \[26\] " " c. 3 . . 423 " " " c. 4 . . 141
- \[27\] " c. 3 . 123,383,390 " " " " c. 5 . . . 443
- \[28\] " c. 6 . . . . 139 " " " c. 5 . . . 443
- \[29\] " c. 6 . . . . 139 " " " c. 8 . . . 332
- \[30\] " " " c. 7 . . . 390 " " " " c. I0 . . . 323,537
- \[31\] " " c. 10 . . . 150 " " " c. I1 . . . . 334
- \[32\] " St. 2 c. 3 . . 505 " " " " c. I1 . . . . 334
- \[33\] " St. 2 c. 3 . . 505 " " " " c. I6 . . . . 428
-

**LIST OF STATUTES**

PAGE

**rx Henry VII. c. 13** . . . . . . 330\*\* 2I Henry VIII. c. II . . . . . 523\*\*

" " " c. 15\*\* . . 139, 141, 520\*\* " " " c. I2 . . . . 321\*\*

" " " " c. 7 . . . . 323\*\* " " " c. I2 125, 139, 155, 156, 158, 394, 394List of STATUTES xxxix

PAGB

PAGE

- \**Henry VIII. c. 7*

- 491, 494, 496

- 35 Henry VIII. c. r2

- c. 8

- 331 \*

- c. r6

- c. r0

- 494 \*

- c. r7

- 141, 330, 369

- c. I5

- 260, 523

- 36 \*

- cc. 8, 9

- c. I6

- 37 \*

- c. I

- 149, I50

- c. 49

- 203 \*

- c. 4

- c. I

- 483 \*

- c. 6

- 504, 513

- c. 2

- 505 \*

- c. 7

- . 331 \*

- c. 8

- . 531

- \*\* 11\*\* c. 8 102, 103, 207, 492

- c. I0

- . 66 \*

- c. I5

- . 334

- c. I3

- 465, 500 \*

- c. I7

- . 488

- c. I4

- . 506

- Edward VI. c. 7

- . 506

- c. I

- . 465 \*

- c. 3 125, 156, 391,

- c. 2

- . 484

- c. 7

- . 142, 490 \*

- c. 5

- . 330

- c. 8

- . 506 \*

- c. 7

- . 534

- c. 9

- . . 521 \*

- c. I2

- 492-501, 504,

- c. I7

- . 505

- c. I3

- . 123, 129 \*

- c. I4

- . 327 \*

- 2, 3 11\*

- c. I . . 506

- c. I8

- . . 317 \*

- c. 2 . 139, 330

- c. I9

- . 317, 548

- c. I0

- . 129, 141

- c. I1

- . 484

- c. I1

- . 322, 342

- c. 30

- . - 535

- c. I3

- . 482

- c. I5

- . I6

- . 323, 377

- c. 32

- . 483 \*

- c. I9

- . 328

- c. 33

- . - 483 \*

- c. I5

- . 129, 337

- c. 34

- . 487 \*

- c. 37

- . 331

- c. 36

- . - 483 \*

- c. I7

- . 331

- c. 37

- . 487 \*

- c. I8

- . 491 \*

- c. I9

- . 323

- c. 38

- . - 491 \*

- c. 3 . - 364

- c. 46

- . - 466 \*

- c. 5

- . 76, 503, 513

- \*\* 11\*\* c. I . . 534 \*\* 11\*\* 11\*\* c. I1 . . 488

- c. I29

- . 11\*

- c. I5 \*

**XXX**

LIST OF STATUTES

PAGE

I Mary St. 2 c. 3 . . . . . . 142 5 Elizabeth c. rg . . . . . . 330 " " " c. t2 . . . . 76, i38 " " " c. 2x . . . . 504, 506 " " " Sess. 2 c. 6 . . . . 498 8 " " c. 2 . . . . . 538 " " " c. II . . . . 334 " " " " c. 4 . . . 514 " " " " c. 12 . . . 497, 503 " " " " c. 6 . . . . 334 " " " Sess. 3 c. 1 . . . . 200 " " " " c. LT . . . . . 342 " " " c. t2 . . . 370 " " " " c. t2 . . . . 342 " " " " c. I3 . . . . 330 " " " c. I3 . . . . . 330 " " " " c. 3 . . . 517 " " " c. 3 . . 517 " " " c. 4 I39, 493. 5II " " " c. I7 . . . 330 " " " " c. 5 . . . 374 I3 " " c. T . . . . 495 " " " " c. 8 . . 491 " " " c. 5 . . . . 493 " " c. 5 . . . . 374, 480 " " " " c. I0 493. 497-500 " " " c. (j . . . . . 142 " " " c. II . . . . 498 " " " c. I4 . . . . 330 " " " " c. I2 . . . 487 " " " c. I5 . . . . . 338 " " " c. I3 139, 141, 527, " " " c. I9 . . . 122, 129, 335 " " " c. 25 . . . . 140-142 " " " c. I4 . . 341, 343 " " " c. 27 . . . . 141 " " c. I0 493. 497-500 " " " c. I0 493. 497-500 " " " c. I1 . . . . 142 " " " c. I3 . . . . 374 " " c. II . . . 498 " " c. I4 . . . . 330 " " c. I2 . . . 487 " " " c. I5 . . . . 38 " " c. I3 139, 141, 527, " " c. I5 . . . . 38 " " c. I3 139, 141, 527, " " c. I9 . . . 122, 129, 335 " " c. 25 . . . . 140-142 " " " c. I4 . . 341, 343 " " " c. 27 . . . . 141 " 2, 3 3 " c. 2 . . . 305 " " c. I4 . . . . 497 " " c. I50 " " " c. I5 . . . . . 500 " " c. I5 . . . . . 498 " " c. I5 . . . . 498 " " c. I6 . . . . 522 " " c. I5 . . . . 498 " " c. I6 . . . . 504 " " c. I7 . . . 538 " " c. I7 . . . . 504 " " c. I7 . . . 535 " " c. 5 . . . . 357 " " c. I7 . . . . 504 " " c. I7 . . . . 504 " " c. I6LIST OF STATUTTES XXXi

PAGE
3I Elizabeth c. I2 . . . . . 522 3 James I, c. 5 . . . . 142
35 " c. x . . . . I40,507 "" "" " c. 6 . . . . 350
31 " c. 2 . . . . I42,507 "" "" "" C. 7 . . . 538
31 " c. 4 . . . . 55,399 "" "" " c. 8 . . . . 535
32 " c. 6 . . . . 513 " " " c. 9 . . . 323
33 " c. 7 . . 365,374,394 "" " c. I3 . . . . ?506
34 " c. I0 . . . 326,342 "" "" C. I4 . . . 370
35 " c. II . . . . 330 "" "" C. I5 . . . . 539
36 " c. I . . . 366,369 "" "" C. I6 . . . 342
37 " c. 2 . . . 366 "" "" C. I8 . . . . 370
38 " c. 3 . I41,I44,I51,I51,I56 "" "" C. I2 . . . 370
39 " c. 30 . I42,I39,I40,I41,I4 4 "" C. I8 . . . 370
40 " c. 4 . I25,I39,I40,I41,I57 "" C. I3 . . . 342
41 " c. 3 . . . 538
42 " c. 9 . . . 505 "" "" C. I29,I39,I55
43 " c. I0 . . . 328 "" "" C. I6 . . . . 342
44 " c. I2 . . . I44,382 "" "" C. I8 . . . 370
45 " c. I4 . . . 334 "" "" C. I9 . . . 350
46 " c. I6 . . . . 140,I42 "" "" C. I7 . . . 368
47 " c. I7 . . . . 740 "" "" C. I2 . . . . 370
48 " c. I8 . . . . 142 "" "" C. I3 . . . . 370
49 " c. I8 . . . 322,326,342 7 "" C. I3 . . . . 141,398
50 " c. II . . . 158,161 "" "" C. I4 . . . 398
51 " c. I2 . . . 399 "" "" C. I5 . . 5 . . . 507
52 " c. I4 . . . 390 "" "" C. I6 . . . . 507
53 " c. 4 . . . 396,517 "" "" C. I7 . . . 342
54 " c. 5,6 . . . 398 "" "" C. I0 . . . 139,515
55 " c. 17,21 . . . 399 "" "" C. II . . . 139,I47,506
56 " c. 2 . I39,I47,I44,I51,I56,I56,397 "" C. I6 . . . 342
57 " c. I7 . . . 398 "" "" C. I6 . . . 342
58 " c. I7 . . . 399 "" "" C. I6 . . . 342
59 " c. I7 . . . 326,342 "" "" C. I7 . . . 342
60 " c. I8 . . . 328 "" "" C. I7 . . . 370
50 " c. I7 . . . 399 "" "" C. I6 . . . 38 . . 387
51 " c. I7 . . . 399 "" "" C. I8 . . . 399 "" "" C. I9 . . . 398
52 " c. I9 . .

**XXXII**LIST OF STATUTES

PAGE

x George I. St. a c. 5 . .

**BOX IV**

**(1485-1700)**

**THE COMMON LAW AND ITS RIVALS**

**VOL. IV.-I**

## Chapter 1 Introduction

NGLISH law owes as much to the narrowness of the English Channel as to its existence ; for, if the existence of the English Channel has helped our law to a continuous and a native development, its narrowness has enabled it to share, in some measure, the intellectual and political life of the continent. In fact, this continuous native development would hardly have been possible if England at critical periods in her history had not come under some of the same legal, political, and religious influences as were experienced by the rest of Western Christendom. The compact territories and remote situation of countries in the far east of Europe like Hungary or Poland caused them to be less directly affected by these influences. They were not subject to the constant pressure from without that was experienced by the states of Western Europe with their more scattered dominions ; and so they stood self-centred upon the ancient ways, and preserved their medieval forms of law and government. They paid the penalty. In the sixteenth century Hungary was left defenceless against the Turk ; and in later days Poland found itself equally defenceless against the states of Western Europe, which, under these newer influences, had organized themselves under strong governments able to command force sufficient not only to keep the peace at home, but also to extend the boundaries of their states by successful foreign war \[1\]. Such events as the battle of Mohacz and the partitions of Poland are a standing warning against a national complacency which refuses to look abroad and face the task of levelling up institutions and laws to the standard demanded by a changed world.

England has been more fortunate than these countries ; for, though in many ways standing apart from the continent, she has, ever since the Norman Conquest, always played a part both in its

## 4 Introduction

intellectual life and in its wars, alliances, and diplomacy. The combined effects of the achievements of the strong kings of the twelfth and thirteenth centuries, and of the Tudor dynasty in the sixteenth century, enabled her to assimilate enough of the continental ideas of law and government to become a territorial state of the modern type without losing touch with her medieval past. Thus, partly because of her insular position, partly because of the accidents of her earlier history, partly because of the statesmanship of the Tudor sovereigns, she alone among European states has been able to secure for her law and her constitution a development which has been predominantly native and entirely continuous.

Continental influences upon English law and politics have been at some periods great, at others small. But from an early period the great waves of intellectual change which have from time to time swept over Western Europe have never failed to reach our shores and to influence our history. One of these great waves of intellectual change was the legal renaissance of the twelfth and thirteenth centuries, which, as we have seen, had large effects in helping forward the growth of a centralized government and a common law.1 But for that legal renaissance, but for the fact that its influence was felt through the writings of Glanvil and Bracton, through the practical work of many other judges of the King's Court, and through the technical skill with which their successors in the fourteenth and fifteenth centuries built upon these foundations, English law could never have become a common law capable of expanding indefinitely with the new wants of a changing society. Another of these great waves of intellectual change was the Renaissance of learning and letters, the Reformation of religion, and the Reception of Roman law, which came in the sixteenth century. As in the twelfth and thirteenth centuries, so in the sixteenth century, the effects of these movements were modified both by the insular position of England and by the peculiarities of English institutions. And, as was perhaps inevitable, the modifications due to these two causes were more apparent in the later than in the earlier period. In the twelfth and thirteenth centuries the law and institutions of England had not attained a fixed and definite shape. At the beginning of the sixteenth century England was ruled by a king at the head of a constitution, the main outlines of which had been drawn in the thirteenth and fourteenth centuries, and by a common law, the development of which had been native. And though these facts had little direct bearing on the influence of the Renaissance, they had much upon the influence of the Reformation and the Recep

## Introduction

The English state had already set its face against papal encroachments upon its sphere ; and, in the fourteenth century, the position which the state was soon to take in relation to the church had been fore-shadowed \[1\]. The law of the English state was a technical system, very jealous of foreign influences, and, disposed to extend its boundaries at the expense of all rival jurisdictions. When order had been restored by the Tudors, the existing law and the existing framework of government were found to be partially sufficient for the needs of the modern state. There was no need to construct a new order of government and to receive a foreign system of law.

But changes and additions were needed if England was to compete with the centralized territorial states of the continent. In particular new institutions were needed to check not only disorderly feudal elements which still threatened to disturb the state, but also the disorders occasioned by religious, social, and economic changes ; and new legal developments were demanded to meet the needs occasioned by these changes. It is through these new institutions and new legal developments that we can trace the influence of some of the new continental ideas upon law and politics. Here as abroad they made for the strengthening of the monarchy as a safeguard against disorder. But, whereas abroad these new institutions and new legal developments made up the principal part of the law and government of the new territorial state, here they were at most supplementary to and co-ordinate with the older institutions, and with the mediaeval common law, which still remained, as in the Middle Ages, " the highest inheritance of the king by which he and all his subjects are ruled \[2\].

In many different countries in Europe in the sixteenth century there was a conflict between modern and mediaeval institutions and ideas ; and in most of these countries the victory was with the former. But, in England, mediaeval institutions and ideas continued to exist side by side with the modern ; and, in the seventeenth century, they proved to be an insurmountable obstacle to the aims of the Stuart kings, who, like their contemporaries abroad, founded a theory of absolutism upon the achievements of their predecessors. The Stuart kings found it impossible to bring the administration of the law and government of England into line with the administration of the law and government of the absolute monarchies of the continent. On the contrary, the mediaeval institutions and ideas proved to be stronger than the modern, and, by the end of the century, they had mastered and assimilated them.

Introduction

**The modern law and constitution of England which resulted was thus the product of a blend of mediaeval and modern institutions and ideas which was unique. Hence by the end of this period English law and the English constitution had assumed a shape which was very different from the laws and constitutions of the other states of Western Europe.**

## Part I Sources and General Development

Chapter I

The Sixteenth Century at Home and Abroad

UST as in the twelfth and thirteenth centuries it was necessary to take into account the influence of the men who were making a canon law to rule the Western church, and were developing from Justinian's books rules fit to guide the political conditions of medieval Europe; so, in relating the history of English law in the sixteenth century, we must take into account the new influences which all over Europe were making for the decay of medieval legal and political ideas, and for the rise of the modern territorial state. Indeed, it may be said that in the later period even more than in the earlier period, it is essential to bear in mind these continental influences; for the changes which in the later period were taking place all over Western Europe were far more varied and far greater in their extent and effect. The twelfth and thirteenth centuries were centuries mainly of a legal renaissance: the sixteenth century was a century of renaissance and reform and change in many other things--in literature, in art, in religion, in commerce, in the physical boundaries of the world. I am not writing a history of these things; but they all had some share in shaping the new conceptions of law and politics which arose in this century; and it will therefore be necessary, as we shall see, to allude to some of their effects upon the development of English' law. In this chapter therefore I shall deal with some of the more important of the external influences which, in the sixteenth century, operated, both at home and abroad, upon constitutional mechanism and legal ideas. In the four following chapters I shall deal in some greater detail with the changes in and additions to the fabric of English lawXvih Cent. at Home and Abroad

which, during the sixteenth and earlier half of the seventeenth centuries, resulted from these influences.

The contrast between the sixth and seventh Henries' is not more striking than the contrast between the political condition of Europe at the beginning of the fifteenth century and its political condition at the beginning of the sixteenth century.

In the earlier period France was so weakened by feudal turbulence that Henry VI., with the help of the Duke of Burgundy, was proclaimed king of France at Paris. In the later period the king was master in his realm. A considerable part of the dominions of the old duchy of Burgundy had been annexed to France, and, with the marriage of Charles VIII. to the heiess of Brittany, the last of the great independent provinces was annexed to the crown. We can see the beginnings of the process which will concentrate in the king all the powers of the state. In the earlier period Germany was little more than a geographical expression. The Swiss, the Scandinavian powers, the Poles, the Magyars, and the Slavs were encroaching upon the borders of the Empire ; and within its bounds private war was waged unchecked. In the later period there were at least some attempts to reconstitute national unity. The establishment of the Common Penny, the establishment of the Imperial Chamber, and the proclamation of the public peace sanctioned by the ban of the Empire in i495; the establishment of a Council of Regency in i5oo ; the organization of the Empire into six circles for administrative and military purposes in i512 --all bore witness to the tendencies of the age in the direction of unity. But they effected little. The knights, the cities, and, above all, the independent position of the electors and the princes proved insurmountable obstacles to the welding of Germany into a united nation. Both the emperor and the princes were intent on pursuing the dynastic policies of their respective houses. The house of Hapsburg, by a series of lucky marriages, secured in the person of its representative Charles V. not only the Empire, but also the dominions of Spain and the Netherlands ; and it could thus stand forward as the great rival of the newly consolidated kingdom of France. But Germany itself " was not a kingdom, but a collection of petty states, whose rulers were dominated by mutual jealousies. From the time of Charles V. to that of Frederick the Great, Germany ceased to be an international force ; it was rather the arena in which the other nations of Europe, the Spaniard, the Frenchman, the Swede, the Pole, and the Turk fought out their diplomatic and military struggles."1 In the earlier period Spain was

**XVITH CENT. AT HOME AND ABROAD 9**

**tom by internal discord. In the later period the union of Castle and Aragon under Isabella and Ferdinand, and the effective measures which they took to curb the powers of the nobility, laid the foundations of a united nation--a fact which was marked by the final expulsion of the Moors from Spain in 1491.**

**In ecclesiastical history the earlier period is the age of the Councils--an age in which the nations of Europe debated not only the position of the Pope and the whole theory of ecclesiastical government, but also fundamental doctrines of the church which had been called in question by the heresies of Wycliffe and Huss. But the growth of distinct nationalities enabled the Pope to preserve his supremacy for a season by a series of separate concordats ; and the policy of establishing a temporal power, begun by Sixtus IV. (1471-1482) gave him a fleeting independence. But this policy of Sixtus IV. was in the long run fatal to the position of the Papacy both as the umpire among the nations of Europe, and as the religious head of Western Christendom. It became merely one among the many Italian states which were contending for power ; and this left it in the position of a shuttlecock between the greater European powers, who, at the beginning of the sixteenth century, made the lordish of Italy the object of their ambition. At the same time the Popes had accepted the position of Italian prices, and had imitated and even improved upon the example set by their contemporaries and rivals. The nepotism and immorality of some of the Popes, and their total immersion in secular politics, were scandals which were only gradually mitigated when the spread of the Reformation had awakened the church to the need of a counter-reformation in its own discipline and doctrine and practice.**

\*\*In one respect there is a similarity between the two centuries. In both the Turk was a menace to Europe ; and a greater menace in the later than in the earlier period. As early as 1356 he had gained a foothold in Europe. In 1453 Constanti-nople had fallen ; and Serbia, the Balkan States, and Greece were over-run. Even Italy was threatened. For a time the Turkish advance was checked by Hungary. But when the Hungarian power was broken at Mohacz (1526) the divisions of the German Empire seemed to open the way to further conquests. Vienna was besieged ; but its relief (1529) saved Germany. The partition of Hungary which followed marked the final limit of the Turkish advance into Europe, just as later in the century the Spanish victory of Lepanto (1571) marked the limit of the Turkish control of the MediterraneanXVith Cent. At Home and Abroad

By the end of the century the process is begun by which the Turkish peril will gradually subside into the Eastern Question.

England at the end of the fifteenth and the beginning of the sixteenth centuries experienced changes similar to those which weretaking place on the continent. The monarchy, reconstituted by Henry VII. and further strengthened by Henry VIII., proved to be too strong for a nobility weakened by the Wars of the Roses. Under the cautious rule of the father, and the strong rule of the son, the judicial system was improved,\[1\] the executive was immensely strengthened, and England took a new and a definite place among the newly constituted nations of Europe. Moreover, under Henry VIII. the attitude of England to the Reformation was definitely settled. The church was reformed, and made an integral part of the state, with the result that the power of the central government was strengthened,\[3\] and the foundations were laid for extensive and beneficial changes in local government.\[3\] In his reign, indeed, England almost appears to be an absolute monarchy of the continental type. But when we turn our eyes from the activities of the Tudor kings and statesmen at home and abroad, and look at the mechanism of government,\[4\] at the writings of political theorists,\[5\] and at the system of law public and private,\[6\] we can see that in many ways the law and government of England departed from this type. In spite of all differences, however, this period of prerogative rule has left enduring marks upon our constitution and our law. The marks might have been more enduring if the direct line of the House of Tudor had not failed.\[7\]

In describing this great transformation from which the Europe and the England of to-day emerges, I shall deal in the first place with the new ideas which in this century revolutionized all fields of thought and all departments of knowledge. This transformation may be summed up in the two words Renaissance and Reformation; and its legal and political outcome was the modern territorial state. In the second place I shall deal with the new institutions which the organization of this modern territorial state necessitated. In the third place I shall deal with the new rules of law which were called into being to govern these altered political conditions. This will involve both an account of that Reception of Roman law, which has affected more or less deeply the legal systems of the principal states of Western Europe, and an attempt to estimate its influence upon the development of English law.

## 11 Renaissance and Reformation 11 I

The New Ideas--Renaissance and Reformation

"There exists," says Dicey,1 " at any given time a body of beliefs, convictions, sentiments, accepted principles or firmly rooted prejudices, which, taken together make up the public opinion of a particular era, or what we may call the reigning or predominant current of opinion. It may be added that the whole body of beliefs existing in any given age may generally be traced to certain fundamental assumptions, which at the time, whether they be actually true or false, are believed by the mass of the world to be true with such confidence that they hardly appear to bear the character of assumptions." It is the character of these " assumptions" which created the public opinion of the Middle Ages, and gave to mediaval history its leading and distinguishing characteristics. It is the Renaissance and Reformation of the sixteenth century which substituted other " assumptions," created a new public opinion, and thus started the modern history of Europe. Therefore, if we would understand the law of the sixteenth century, and its relation to the law of the Middle Ages, we must understand the nature of the changes signified by these two words.

Footnote 1: **Law and Opinion 19, 20.** **Vol. ii 127-144:**

I have already described the leading characteristics of the assumptions which created the public opinion of the Middle Ages, and coloured all its ideas upon law and politics.2 In the sixteenth century many causes contributed to subvert the intellectual conditions which had resulted from them.

Footnote 2: **Law and Philosophy 19, 20.** **Vol. ii 127-144:**

The Renaissance of classical studies had begun in Italy in the last half of the fourteenth century. In the last years of that century, and in the fifteenth century, the study of the Greek classics was pursued side by side with the study of the Latin classics ; and this revival of classical studies soon produced a complete break with medieval modes of thought. The older monuments of learning and art were no longer looked at through the spectacles of the scholastic philosophy and theology. They were studied in and for themselves. Human reason, unfettered by preconceived theories, theological or otherwise, tried to discover the meaning which they had to the men who made them ; and this necessarily gave a wholly new meaning to the older studies --to grammar, to history, to literature--and led to the growth of new standards of taste, both in literature and art. It was the real world of classical antiquity which was thus revealed--a wholly new world of thought to that age ; and of that world man and

## 12 XVITH CENT. AT HOME AND ABROAD

man's intellect and aspirations and desires were the centre. These things were no longer to be regarded as pomps and vanities of this wicked world except in so far as they were used to further that logical system, which took the doctrines of the church as their premises, and viewed all human knowledge in the light of deductions from them. This world might be wicked and it might be transitory, but it was meant to be lived in. Man's senses and faculties were given him to use, not to mortify ; and he was under no obligation to view all knowledge from one particular standpoint. He was the master of his fate, and it was his duty to act and think and reason freely and fearlessly, not only upon art and literature, but upon history sacred and profane, upon religious doctrine,1 and eventually upon physical science.2 These views were disseminated throughout Europe by lectures, by schools, by academies, and by the printing press. Students flocked to Italy to study the new learning, as in former days they had flocked thither to study Roman law. The results may be seen and illustrated by the writings of men of such opposite characters as Machiavelli and Sir Thomas More. In _The Prince_ the whole scheme and theory on which medieval thought rested is simply disregarded. He '' consistently applied the inductive or experimental method to political science." " An appeal was to be made to history and reason ; the publicist was to investigate not to invent --to record, not to anticipate--the laws which appear to govern man's actions." 3 Similarly in the _Utopia_ of Sir Thomas More the actual facts of society are looked at with a critical eye, and its faults are satirized by the comparison with his ideal republic, which rests on bases very different to any which could have been deduced from the old premises of the scholastic philosophy.

Footnote 1: Cf. Acton, Lectures on Modern History 77-79.

As we can see from the _Utopia_, the discovery of the New World intensified the tendency to abandon the ancient ways. Ralph Hythlodaye, who relates his adventures in Utopia " for the desire that he had to see and knowe the farre Countreys of the worlde," had " joyned himselfe in company with Amerika Vespuce ;" and it was on one of these voyages that he had found this ideal commonwealth. In fact, it was not merely the premises of the old philosophy which were being undermined. The physical world was being enlarged and changing its shape. New countries, new nations, new phenomena of all kinds were emerging. With these things the old learning, the old modes of thought and reasoning were powerless to deal. They must be investigated ;and the results of that investigation necessarily led to the abandonment of old theories, not only as to the physical constitution and position of the universe, but also as to men's relations to it and to one another.1

Footnote 1: We may remember that this century is the century of Copernicus, Tycho Brahe, Kepler, and Galileo, below 50; the works of writers like Bodin show the manner in which the new facts due to the discoveries had enlarged the outlook of political philosophers, and had enabled them to give a new form and meaning to the older authorities, see e.g. Bodin, Le Republique Bk, v c. z--the title of this chapter is " Du reiglement qu'il faut tenir pour accomoder la forme de Republique a la diverite des hommes: et le moyen de cogniste le naturel des peoples; ${}^{\*}$but, as we shall see, the greatest exponent of the fundamental inconsistency of the old aims and methods and theories with the new facts is our own Francis Bacon, below 49-52.

We have seen that theological ideas and dogmas dominated the old learning in all its branches. Any fundamental change therefore in any branch of knowledge necessarily involved some reconsideration of men's religious beliefs. Could these beliefs be reconsidered and restated in such a way as to bring them into harmony with the new order ? Some, notably Erasmus, thought that this was possible. And if there had been merely the intellectual difficulty arising from the necessity of readjusting an old theology to new points of view, the sixteenth century might have managed to effect such a readjustment as skilfully as the nineteenth century. But, in the sixteenth century, the intellectual difficulty was far greater, nor was it by any means the only difficulty. In the first place, theology was not merely a special branch of knowledge : its conceptions dominated all knowledge. In the second place, church and state were in a sense one society ; and therefore any questioning of the dogmas of the church, and of its position in relation to the state, meant far more than the alteration of one particular society within the state. It meant rather the unsettling of the foundations of all society. In the third place, the church had enormous vested interests in the maintenance of the old order. Finally, the abuses rampant in the church had been thrown up into stronger relief by the changed political and intellectual conditions of Europe ; and they had inspired a hatred of the church and of churchmen which made it certain that no peaceable readjustment of the old ideas to the new could be effected. Any attempt at change was sufficient to upset a system which had long been growing more and more unstable, and to begin a religious revolution. The acts which were the immediate and proximate causes of the movement--Luther's ninety-five theses and his bonfire of the papal bull and the books of the canon law, the divorce question in England--were merely sparks which produced their far-reaching effects because they touched a mass of explosive matter.

## 14 Xvith Cent. At Home and Abroad

Thus began the religious Reformation of the sixteenth century. It stopped all thoughts of peaceable change in the religious world. It stopped for a time the gradual spread and peaceable development of the new learning, and in the end it changed the course and modified the results of the new learning upon the intellectual world. It involved changes and readjustments not merely in men's religious and mental outlook, but also in the machinery of the state. These changes and readjustments are at the root of many legal, constitutional, and political developments, and, more than any other single cause, have made the Western Europe of to-day. The Reformation, therefore, though primarily a religious movement, has aspects which stray far from the history of religion, and appeal in their different ways to the legal, the constitutional, and the political historian. In order to understand its effects upon the legal and constitutional and political development of Europe and of England, I must touch very briefly upon some of the conditions which made it inevitable.

In the first place, the movement had a moral aspect. In all spheres of the church's activity there was much that was well calculated to excite the moral indignation of thinking men. There were abuses connected with the doctrines of the church--notably indulgences; abuses connected with the manner in which the offices of the church were bestowed and used--simony, nepotism, plurality, non-residence; abuses connected with the ecclesiastical courts. The immorality of many of the clergy, their exactions, and immunities, and, above all, the venality, immorality, and even actual infidelity rampant at the papal court had long been notorious. They had resulted in an intense popular hatred of and contempt for the clergy--feelings which the printing press could now express, concentrate, and popularize.1

Footnote 1: For a detailed account see Lea, Camb. Mod. Hist. i 653-677; and cf. Ranke, History of the Reformation in Germany (Austin's tr.) i 272-278; for some account of indulgences and their abuses see Acton, Lectures on Modern History gi, g2; in I523 Erasmus wrote to Adrian VI, " Non ausim scribere in quan multis regionibus quam penitus, popularibus animis sit infixus Lutheri favor et odium Pontificia nominis," Epistolae no. dexlix (Opera omnia, ed. I703) vol. iii. Pt. I.; L. and P. ii nos. 3277, 3352 (1515) an account of a plot of certain cardinals to poison the Pope--" omnis fides, omnis honestas, una cum religione a mundo abvolasse videntur," is Pace's comment, ibid no. 3523.

In the second place, the movement had an intellectual aspect. The new modes of thought affected the position of the church in different ways in different countries. In Italy and at Rome itself it led in many cases to sheer paganism. To many, even of those who lived upon the revenues of the church, this world and its pleasures--intellectual, artistic, and sensual--were all in all;2and this temper of mind gave no small help to the Reformation in its earlier stages. Firstly, it produced an indifferent tolerance which allowed the movement to gather force. Secondly, its effects upon the papal court gave force and point to the moral denunciations of the reformers. Among the northern nations the new studies had a more serious, a more practical, and a more religious effect. Fairbairn has clearly pointed out one of the chief reasons for this difference,1 "The Latin race, especially in Italy, was the heir of the Roman Empire, still a vivid memory and a living influence ; its monuments survived, its paganism had not utterly perished ; its gods were still named in popular speech ; customs which it had sanctioned and dreams which it had begotten persisted, having refused as it were to undergo Christian baptism.

Footnote 1: The author was supported by the National Science Foundation of China (Grant No. 100001000).

Footnote 2: The author was supported by the National Science Foundation of China (Grant No. 10000100).

Footnote 3: The author was supported by the National Science Foundation of China (Grant No. 10000100).

Footnote 4: See F. Seeboum, The Oxford Reformers, Chap. XI. for an account of the work of Erasmus on the New Testament and St. Jerome.

Footnote 5: See F. Seeboum, The Oxford Reformers, Chap. XI. for an account of the work of Erasmus on the New Testament and St. Jerome.

Here the Renaissance could not but be classical. The Teutonic mind, on the contrary, had no classical world behind it.

Its conscious life, its social being, its struggles for empire and towards civilization, its chivalry, its crusades, its mental problems, and educational processes, all stood rooted in the Christian religion. Behind this the memory of man did not go." The resources of the new learning, therefore, were directed to the study and criticism of the Bible, to serious educational work, to the exposure of clerical follies and scandals. Incomparably the most eminent of those who devoted themselves to this task was Erasmus. He did more than any other single man to popularize the new modes of thought, to satrize the abuses in the church, and to apply the new learning to the reformation of religion.2 His _Praise of Folly_ (1555) encouraged men to continue to ridicule 3 the follies of the old learning and the clergy its supporters, as Ulrich von Hutten and other scholars ha3, ridiculed them in the _Epistolae Observorum Virorum_. His edition of the New Testament and the commentary annexed to it 4 encouraged men to contrast the Christianity of the Bible with the Christianity of the church, as Luther contrasted them in his address _To the Christian Mobility of the German Nation._ The thoughts that the open conflict was averted at the cost of admitting into the hierarchy something of the profane spirit of the new men, who were innovators but not reformers," Acton, Lectures on Modern History 79, 80.

Footnote 1: Camb. Mod. Hist. ii 692, 693.

Footnote 2: Atton points out, Lectures on Modern History 88, that printing in Italy had been going on for sixty years, and that 24,000 works had issued from the press before anyone thought of printing the Greek Testament ; Erasmus himself said that, "Letters had remained pagan in Italy until he taught them to speak of Christ," ibid.

Footnote 3: For an account of and some extracts from this work see F. Seebohm, The Oxford Reformers 193-205; for earlier works see Ranke, History of the Reformation in Germany (Austin's tr.) i 478-281 ; Camb. Mod. Hist. i 675, 677 ; and for England see vol. ii 305, 413, 414.

Footnote 4: See F. Seeboum, The Oxford Reformers, Chap. XI. for an account of the work of Erasmus on the New Testament and St. Jerome.

## 16 Xvith Cent. At Home and Abroad

Bible unencumbered by tradition should govern men's beliefs, **that** perchance the papal supremacy over the church was not ordained of God, that other modes of ecclesiastical organization more akin to primitive Christianity could be constructed from the Bible, that man was directly responsible to God and needed no priest to mediate--all began to germinate.

In the third place, the movement had a political aspect. In none of the countries of Western Europe had the relations between church and state been quite harmonious; and it is clear that the large claims of the church to the obedience of the clergy were incompatible with the claims of the new territorial state. Moreover, the rulers who were constructing these states were casting envious eyes upon the large revenues of the church. They were quite ready to take advantage of the abuses in the church to compel reforms which would increase their own influence and their own revenue as well as the usefulness of the clergy. But all these claims could be and were effected,without a breach with Rome. Legal and political speculation had found a niche for the territorial state without making any great break with the mediaeval theory of the universal state and a universal church. State and Empire and Church could all be recognized as _universitates_, all de facto possessing large powers within their own spheres.1 The delimitation of these spheres was a matter for diplomacy to settle in the light of actual facts. The Popes in the age of the Councils had already shown that they were skilful diplomats.2 Kings who were consolidating their dominions had no particular wish to promote religious changes which were causing a revolution in the church, and might well unite with other elements of disorder to cause a revolution in the state.3 Here therefore was a fair basis for negotiation. Bargains were struck. The state gained a large control over the persons and wealth of the clergy : on the other hand, the church gained the assistance of the secular arm in the work of suppressing heresy, and retained some part of its wealth and influence.4

Footnote 1: We do not have any other meaning of the _universe_, but it is not clear whether the _universe_ is a _universe_, or the _universe_ is a _universe_.

Footnote 2

## 17 Renaissance and Reformation 17

Such an arrangement, if coupled with a reform of the abuses of the church and with improved modes of education, seemed to many of the finest minds and best statesmen of the age--to Erasmus,1 to More, to Wolsey, and perhaps to Pole,2 the best solution of the problem; for it added to the efficiency of both church and state, it obviated all danger of revolution, and it furthered the peaceful progress of the new learning.3

Footnote 1: In his Spongia versus asergines Hutteni (Ed. r5aj) he defines his position, "Mihi consultius visum est hi conquiescere donce principes et eruditi, studius omissis, exprent ea consilia que sine tumulu pospiciant evangelicae veritati et glorica Christi; " and again, "Hoc interim consilium dederim tritique parti ut nentri addictus tiaque utrique bene cupiens; " as he points out, " Neque corona neque mitra addit sapientiam Evangelicam fateor, sed neque vulgarem pileum aut cingulum addit. Qui se putant donum spiritual me spernant publicam autocutiatem."

Footnote 2: See Acton, Lectures on Modern History 99, roo for an attempt to bring Luther over to this view.

Footnote 3: "Where Protestantism was an idea only, as in Spain and Italy, it was crushed out by the Inquisition; where, in conjunction with the political power and sustained by ecclesiasticl confiscation, it became a physical force, there it was lasting," Stubbs, Lectures on Medieval and Modern History 268.

Footnote 4: Erasmus pointed out to Adrian VI. that though the Wycliffe heresy had been suppressed--' sed oppressa verius quam extincta'--by royal power, this could not VOL. IV.--2

## 18 Xvith Cent. At Home and Abroad

to arrange a concordant with Rome ; but others were willing to protect the reformers both because they felt the national in-dignation against Papal abuses, and also because a Reformation would help them to consolidate their power as against the emperor.1 In fact the Reformation gave a fatal blow to the cause of German unity, the effects of which were intensified when the Protestant sects began to quarrel among themselves. The finishing touch was given to the power of the princely houses when the principle "Cujus regio ejus religio" was adopted in 1555, at the diet of Augsburg. The Protestant prince was the lord both of church and state. " He is the guardian both of the first and the second table of the law."2 He must uproot false doctrines, and actively propagate the true,3 for the civil law contains many penal laws against idolatry.4 He must have regard not only to the lives and property of his subjects in this world, but also to their eternal welfare.5 Property of the church which is being misused he must apply to righteous uses.6 It is easy to see that a Catholic prince could hardly be expected to content himself with an inferior position. The idea, not only that the state is supreme over all its subjects,7 but that it has attained to much of that divinity which in the Middle Ages was be done in Germany ; he says, " Et tamen quod tum in eo regno licuit, quod totum ab unius nutu pendet, nescoa an hie liet in tam vasta regione inque tot Principes dissecta," Opera (Ed. 1558) iii s50.

Footnote 1: This is a _Ranke_ points out, Hist. Ref, in Germany it 8g, the electorate of Saxony was the refuge for all those oppressed by the spiritual authorities ; cf. Camb. Mod. Hist. i 690, 691, " A single prince, like the Elector Frederic of Saxony, could protect it in its infancy. As the revol made progress other princes could join it, whether moved by religious considerations, or by way of maintaining the allegiance of their subjects, or in order to seize the temporalities and pions foundations, or, like Albrecht of Brandenburg, to found a principally and a dynasty,"

Footnote 8: The _Ranke_ points out, Hist. Ref, in Germany it 8g, the electorate of Saxony was the refuge for all those oppressed by the spiritual authorities ; cf.

the peculiar attribute of the church, is rapidly emerging.1 What form the state shall take is another question.2

Footnote 1: Figgis, Diyine Rights of Kings 92-93; cf. Sorel, L'Europe et la Revolution Francaise i 12.

Footnote 2: Below 192-199.

In so far as the Reformation subordinated the church to the state it gave material help to the forces which were making for the construction of the self-contained territorial state. In France the state obtained by treaty with the Pope large rights over the church.3 In Spain not only was the state supreme,4 it was even able to make use of the organization of the church to establish a system of absolute government. The Inquisition was the serviceable tool of the government. "It was the inquisition," says Ranke,6 " and the Inquisition alone that completely shut out all extraneous interference with the state: the sovereign had now at his disposal a tribunal from which no grandee, no archbishop, could withdraw himself.

Footnote 4: Ibid.

Footnote 5: Ibid.

Footnote 6: Turkish and Spanish Monarchies (Kelly's tr.) 62.

Footnote 7: The author is grateful to the anonymous referee for the support of the 1990s.

Footnote 8: The author is grateful to the anonymous referee for the support of the 1990s.

Footnote 9: The author is grateful to the anonymous referee for the support of the 1990s.

Footnote 10: The author is grateful to the anonymous referee for the support of the 1990s.

Footnote 11: Figgis, Diyine Rights of Kings 92-93; cf. Sorel, L'Europe et la Revolution Francaise i 12.

Footnote 12: Below 192-199.

Footnote 13: Above 16 n. 4.

Footnote 14: Ibid.

Footnote 15: Turkish and Spanish Monarchies (Kelly's tr.) 62.

Footnote 16: The author is grateful to the anonymous referee for the support of the 1990s.

Footnote 17: The author is grateful to the anonymous referee for the support of the 1990s.

Footnote 18: The author is grateful to the anonymous referee for the support of the 1990s.

Footnote 19: The author is grateful to the anonymous referee for the support of the 1990s.

Footnote 10: The author is grateful to the anonymous referee for the support of the 1990s.

Footnote 11: Figgis, Diyine Rights of Kings 92-93; cf. Sorel, L'Europe et la Revolution Francaise i 12.

Footnote 12: Below 192-199.

Footnote 13: Above 16 n. 4.

Footnote 14: Ibid.

Footnote 15: Turkish and Spanish Monarchies (Kelly's tr.) 62.

## 20 XVITH CENT. AT HOME AND ABROAD

the Estates General, and the Parlement of Paris.1 It was the Calvinists of Holland who at length succeeded in throwing off the yoke of Spain ; and their success showed that religious dissent allied to a constitutional opposition could accomplish a $\\ell$eat which could never have been accomplished without this alliance. In Scotland the Calvinistic movement united itself to the popular indignation at ecclesiastical abuses, and to the desire of the mobility for the wealth of the Church. It was helped by the feudal independence of the mobility ; and it succeeded in organizing a Church, so true to the principles of Calvin, that its strength made it as serious a rival to the independence of the state as the church of Rome.2 We shall see that in England the same movement united itself with Parliamentary opposition to the government, while the discontent of the Roman Catholics gave rise to disorder of the feudal type.3

Footnote 1: Armstrong, French Wars of Religion 3r, 32; below 168, 170-172.

Footnote 2: "In the writings of Cartwright and Goodman we have clear proof that the political claims of Presbytarianism were as oppressive, as tyrantical, and as preposterous as those of Rome. The two systems, Papal and Presbytarian, are alike in that they both regard the State as the mere handmaid of an ecclesiastical corporation, and would, in the last resort, place the supreme direction of politics in the hands of the rulers of the Church," Figgis, Divine Right of Kings 19r, 19z.

Footnote 3: Below 38-39, 47, 48.

Thus it might well have seemed, in the latter half of the sixteenth century, that the Reformation was hindering the growth of the modern state, just as it seemed to have hindered the progress of the literary Renaissance. But by the end of the century it was becoming fairly clear that in both cases its effects had been, not to hinder, but to complete and to modify.

It completed the structure of the modern state, for it finally disposed of the medieval political and religious theory of a universal state and a universal church. The horrors of the religious wars strengthened the desire and the need for efficient government which such a state alone could satisfy. National feeling began to rise superior to religious animosity--as the rise of the Politiques in France,4 and the assistance given to the Government by the English Catholics at the time of the Armada show. By thus making the medieval political and religious theories impossible it assured the victory to the new learning and to the new modes of thought. The several independent states of modern Europe formed an appropriate environment in which new opinions could be formed, new ideas arise, and new discoveries increase, because their independence and diversity taught men that it was possible to

## 6 Renaissance and Reformation 21

tolerate diverse opinions. The toleration extended by these states to one another inevitably led sooner or later to a toleration of divergent opinions within the state itself.

It modified the effects of the Renaissance and the theory of the state. The dilettantism and the paganism which had marked some aspects of the Renaissance in Italy disappeared ; and we get the rise of national literatures, and solid advances in the exact and physical sciences. Theories of the state were no longer founded exclusively, as Machiavelli had founded his theories, upon a compound of classical instances and present experience. Mediaeval theories upon religious, upon legal, and upon political topics were the weapons used by both sides in this period of conflict.1 The period of the Great Councils in the fifteenth century had been fertile in these theories ; and they were largely used by all the publicists of the sixteenth century.2 The classical revival thus united itself to the political theories of the Middle Ages and to the underlying ideas of right, legal or moral, which were assumed by them. New theories of the state, based partly on the more exact knowledge of classical history which the Renaissance had rendered possible, partly on mediaeval speculation and experience, preserved many medieval ideas which a merely classical Renaissance would have destroyed, and so made further developments possible, both within the state, and in the relations of these states to one another.

Footnote 1: Riggis, From Gerson to Grotius 24, " So far as it (the Reformation) tended to revive the theoretic ideals, theological politics, and appeals to Scripture, in regard to the form of government, it was a reversion to the ideals of the earlier Middle Ages, which were largely disappearing under the combined influences of Aristotle and the Renaissance."

Within the state these medieval ideas did good service to those who opposed the state's absolute authority either from a religious or from a political standpoint. During this period the religious standpoint was the more efficient--it was in those countries in which religious dissent was most completely crushed that political freedom most completely disappeared.3 The medieval books necessarily played a large part in these controversies. In them many reasons both theological and legal could

## 22 XVITH CENT. AT HOME AND ABROAD

be found to justify resistance to a tyrant.1 Arguments derived from them took up the work of those mediaeval representative assemblies and mediaeval courts which had gone down before the centralized force of the modern state.2

Footnote 1: Below r97-r99; the authorities relied on and the instances adduced by political theorists such as Bodin and Hotman are the best instances of this: as Figgis says (R.H.S. N.S.) six x148, 149, "A perusal of the ordinary treatises (more especially the continental, but our own Hooker affords an example) on the topics that line the borderland between politics, law, and theology will make it clear that there is a certain common element in which all discussion takes place. This atmosphere is compact of a peculiar amalgam of law strictly so called, certain general ideas which are expressed in the civil and canon law, and some common principles of ethical and theological reasoning. All this is responsible partly for the internal structure of the modern state everywhere but in England, and to some extent here."

Footnote 2: Below r66-r73; cf. Brissaud, Histoire du Droit Francais 403, 404.

Footnote 3: Vol. ii x31-132.

Footnote 4: Below 28-290; vol. v z5 seqq,

The _same_ of the

## 7 Renaissance and Reformation 28

This century, and the influence of the Reception of Roman Law. In the meantime I must give some account of the way in which the Renaissance and the Reformation affected the development of the English state.

The course which the Renaissance and the Reformation took in England was in some respects peculiar. But, whether we look at their causes, or whether we look at their effects upon the structure of the state and upon the development of public and private law, we shall see that, even when they are not directly affected by the course of events on the continent, they can often be better understood in the light of the analogies and contrasts which these events present to us.

No more difficult task ever confronted an English king than that which confronted the first Tudor. Abroad the foreign relations of England needed adjustment in the light of the new grouping of the European powers. At home it was necessary to maintain an insecure throne against foreign intrigue and domestic faction; to restore order in a nation accustomed for more than half a century to lawless ways, and for more than thirty years to civil war; to regulate the new conditions of domestic and foreign trade; and to provide for the solution of the new social problems, which had arisen from the break up of the medieval economic and social organization. In the background there were the problems intellectual and religious set by the New Learning; and their discussion was certain sooner or later to raise the question of the condition of the church and of its relations to the state. We have seen that some of these difficulties and problems had begun to emerge at the end of the fourteenth century.1 But they had been shelved during the reigns of Lancastrian and Yorkist kings, and had in the meantime grown in complexity. An attempt to solve them could no longer be delayed if the nation was to be saved from the anarchy to which a premature experiment in parliamentary government had reduced it.

Footnote 1: Vol. ii 417, 413-414.

The disorders from which all classes of society were suffering were many and various. "The hed agreth not to the fete, nor fete to the handys, no one parte agreth to other; the temporalty prugyth agayn the spiritulaty, the commyns agayn the nobellys, and subjects agayn ther rularys."2 The times were out of joint, partly owing to want of governance, partly owing to the fact that the period was one of transition from medieval to modern. In books like More's _Utopia_ and Starkey's _England_

## 24 XVith Cent. At Home and Abroad

we see echoes of the old disorders from which society had been suffering all through the fifteenth century. Abuses in the procedure of the courts which lengthened lawsuits and fostered litigation; 1 abuses arising from the partial ministering of justice; 2 the hardness of the criminal law; 3 the benefit of clergy and the privilege of sanctuary; 4 the crowds of idle retainers and ignorant monks who led lives useless and even harmful to the state 5--all these things were crying evils of long standing. But many of the other disorders which these writers denounce were the inevitable consequences of the passing of the medieval order of society. In the first place, the old economic ideas were disappearing, and as yet no new theory had arisen to take their place. 6 The complaints which we hear as to the depopulation of the country owing to the conversion of arable into pasture; 7 as to the extravagance of the richer classes and their oppression of their tenants; 8 as to the combination of traders to raise prices 9 --all testify to the fact that competition was wasting custom as the basis of the economic system. In the second place, the ideas and methods of the scholastic philosophy were beginning to look foolish in the light of the New Learning which such men as Colet, Erasmus, More, Grocyn, and Linacre were bringing from Italy. 10 In England, as among other northern nations, 11 the New Learning was being turned to religious uses; 12 and it threw into stronger relief the worldlines and the cynical immorality which were rampant in the church. Many, notably Wycliffe, had attackedthese abuses before.1 But they were now felt the more keenly, because men were beginning to contrast in a more critical spirit the Christianity of the Bible with the theology of the schoolmen ; and the attack was more deadly because it was directed not only against the abuses themselves, but also against the whole intellectual system under the shadow of which these abuses had sprung up.2 Wycliffe had used the methods of scholastic disputation. The scholastic system itself was now attacked by the new weapons and from the new points of view of the Renaissance scholars.

Footnote 1: Vol. ii 413.

Footnote 2: See extracts from Erasmus, Praise of Folly, cited Seebohm, op. cit. 195-198 cf. Utopia 93.

Footnote 3: Above zo ; Utopia ro, " From the prince, as from a perpetual wel sprynge, commethe among the people the floode of al that is good or ewell; " Starkey, op. cit. 164, a good prince is " the fundayton of al gud pollycy."

Those who lamented the disorders from which society was suffering were not ready to suggest any very complete remedies. But there was one remedy upon which all were agreed--the state must be strengthened to suppress lawlessness. In England, as elsewhere, it was felt, and felt rightly, that it was only a strong king at the head of a strong executive who could curb the lawless practices of over-mighty subjects, who could see that justice was duly and indifferently ministered, who could maintain order amid apparently incomprehensible changes in old ideas and institutions.8 It was therefore the first object of all statesmen in Western Europe at the end of the fifteenth century ; and none accomplished that work more successfully than the kings of the House of Tudor.

Footnote 4: Gaidner, Letters etc. of Richard III, and Henry VII. (R.S.) ii _xxviii_, _xxix_; see Bishop Fisher's appreciation in the sermon he preached at Henry's funeral, cited Tanner, Constitutional Documents 3.

Footnote 8: Bacon, History of Henry VII. Works vi 244.

Footnote 9: Ibid 240.

Footnote 10: Did 242, " He was served by the abliest men that there were to be found;' And, as he chose well, so he held them up well,"

Henry VII. was fitted by his early training and by his intellectual gifts to begin this task. He had been disciplined by adversity. His temperament was cold and cautious. He could seize quickly the vital points of a problem whether of foreign or of domestic policy ; and he pursued the methods which he had devised for its solution with a businesslike determination.4 " What he minded he compassed." 6 Above all, he seems to have possessed the two qualities which distinguished in a pre-eminent degree both Henry VIII. and Elizabeth--though " he was governed by none," 6 he could choose and trust able ministers ;7 and he understood the temperament of his people.

Footnote 4: Badon, History of Henry VII. Works vi 244.

Footnote 7: Ibid 242, " He was served by the abliest men that there were to be found;' And, as he chose well, so he held them up well,"

As to the existence of the first of these qualities we have, it

## 26 XVITH CENT. AT HOME AND ABROAD

is true, little detailed information. We know but little of the doings of his ministers, and of their relations to himself. But when the records of the Council begin in his son's reign, we see the king surrounded by just such a council of professional advisers as Fotgescue had advocated \[1\]; and the actual evidence which we have points to the fact that this change was accomplished by Henry VII. Ministers such as Morton, Fox, and Bray, and officials such as Empson and Dudley, were men of a different stamp to that of the advisers of Henry VI. and Edward IV \[2\]. And he began the creation not only of an efficient executive, but also of an efficient secret service, which was extensively used and improved by his successors \[3\]. As to the existence of the second of these qualities the evidence is clearer. The whole course of his reign shows that he understood two well-marked and permanent characteristics of his people. The first was their devotion to their own institutions and the common law--a characteristic which was remarked by the Venetian ambassador \[4\]. The second was their dislike to taxation, which was shown by the only rebellions of the reign which were not dynastic \[6\].

Henry never attempted to break the law, except perhaps in the matter of benevolences ; and then the breach was condoned by Parliament \[6\]. But he used the law and abused it to supply his necessities. It is the abuse of the law, through the agency of Empson and Dudley, which is the greatest blot upon his reign ; and the explanation of this phenomenon is not far to seek. In this reign, as in the reign of Edward I., an efficient executive was re-establishing orderly government after a period of disorder ; and in both periods the new officials seem to have found it difficult to distinguish between the use and abuse of their new authority. The accusations made against Empson and Dudley are not unlike the accusations made against Stratton and his fellow-ministers \[7\]. Many of their practices, which seem to have become more and more oppressive as the reign proceeded, are quite indefensible \[8\]; and they seem to have aroused some feelings of compunction even

**RENAISSANCE AND REFORMATION 27**

in Henry himself.1 There is no doubt that Henry VIII. did a politic act when he destroyed them; and as little doubt that their condemnation on a charge of high treason was unjust.2 Like many of their successors, they bore the blame and paid the penalty not only for their own misdeeds but also for a service which was too faithful. For it is clear that Henry VII. was obliged to put the government upon a sound financial footing; and it is difficult to see how he could have accomplished this object if he had not sternly insisted upon enforcing the rights of the crown.3 As Fortescue had pointed out, the poverty of the king had been one of the chief causes of the weakness of the Lancastrian dynasty.4 Henry made the wealth of the crown the foundation of his power; 5 and he gathered his wealth by a rigid enforcement, and sometimes even by a perversion of the law. But as Dr. Gairdner says,6 " The very fact that it was so perverted is a proof of Henry's greatness. That a king whose title was one of the most ambiguous ever seen in England, who was frequently troubled with rebellion, ... should have succeeded in making the authority of the law so strong as not only to enable him to put down his enemies, but to become in his hands an engine of extortion, is evidence of Henry's ability as a statesman quite as great as the respect entertained for him by foreign sovereigns." Thus Henry, without any very startling changes in the law, infused a wholly new spirit into its administration. Old institutions --the Council, Parliament, the common law courts, the justices of the peace--were strengthened, and made to do again their appointed work. And as it was with institutions, so it was with the law. Both alike were gradually permeated by a new spirit without losing their mediaval form and substance; and thus the way was prepared for the evolution of our modern English state and our modern English law.

Footnote 1: In 1504 the king, who was ill, issued letters, ordering that all who complained of injury should be heard, but not much good followed, Letters etc. of Richard III. and Henry VII. (R.S.) ii 379; Stubbs, Lectures on Mediaval and Modern History 414; however at the beginning of the next reign some restitution was made in compliance with the terms of Henry VII.'s will; see e.g. L. and P. i no. r084 for an instance of the cancelling of a recognisance got unduly.

**i S.T.**, 283; below 492 seqi.

**j Busch, England under the Tudors i 88, " The reproach of avarice against the king rests, for the most part, on a confusion between careful orderliness and avaricious niggardless. There is no doubt that Henry often showed signs of parsimony even on occasions when it was out of place ... but the failing was not one which belonged to his real nature. It was simply the result of that carefulness he was obliged to exercise in order to establish a sound system of finance after the extravapant prodigality of former times."**

**4 Governance of England, Chap. IX.**

**5 Letters etc. of Richard III. and Henry VII. (R.S.) ii _xxx_; cf. Busch, England under the Tudors i 2oo.**

\*\*6 Letters etc. of Richard III, and Henry VII. (R.S.) i _xxvii_,

## 28 XVith Cent. At Home and Abroad

That this gradual development was possible, and continued to be possible, is due in a measure to the foreign policy initiated by Henry, and followed in the main by his successors. For the policy of blind hostility to France he substituted the policy of securigg an honourable peace by holding the balance among the European powers ; and though foreign policy may seem a topic remote from legal history it is not so in this case. If Henry's successors had not pursued this peace policy, the danger of foreign invasion would have been increased ; and if such an invasion had occurred, whatever its ultimate result, it would almost certainly have interfered with the peaceful and continuous development of our institutions and our law. Moreover, another effect of that same policy very directly concerns all departments of English history. For the policy of hostility to Scotland he substituted an alliance, secured by a marriage, which exactly a century later led to the union of the crowns of the two countries.1 At the same time the celebrated Poyning's law (I495) settled the constitutional relations between England and Ireland for nearly three hundred years.2

Footnote 1: The king's daughter Margaret married James IV. in r503.

Footnote 2: That English laws then in force were binding in Ireland had been decided in r485, Y.B. r Hy. VII. Mich. pl. 2, overruling a decision to the contrary, Y.B. z Rich. III. Mich. pl. 26; Poyning's law enacted this for the law then in force; but it was not so with later statutes unless adopted by the Irish Parliament; the substantial identity of the law in the two kingdoms was however maintained by preventing the Irish Parliament from sitting, or from passing any laws, without the approval of the king and council; see Hallam, C.H. iii 36z.

In Henry VII.'s reign therefore we see foreshadowed the main lines of the Tudor policy, domestic and foreign. It is not an exciting reign ; for it is the record of the achievements of an able, cool, business-like man ; and the scantiness of contemporary authority keeps us at a distance from him.3 But it is an important reign in the history of English law, not so much because of the statutes which were enacted,4 as because it showed that the old institutions and the common law could be made to serve as a basis for the fabric of the modern state. Continuity of development was thus assured ; for in England, as abroad, the institutions and the laws adopted in the sixteenth century have been very permanent. Strengthened, modified, and supplemented by Henry VIII. and Elizabeth, they proved sufficient to guidethe country through the economic, the social, the intellectual, and the religious changes of this age of Renaissance and Reformation. Economic and social questions had already begun to raise serious problems \[1\]; but when Henry VII. died (1507). the intellectual and religious questions had not yet become acute. Few could have foreseen that within the next forty years these intellectual and religious questions would have overshadowed all others, and that the first attempts to solve them would have revolutionized the face of English society, and modified the form of the English state.

During Henry VII.'s reign the New Learning had been making its way in England. Some few Englishmen, the most famous of whom were Colet, Linacre, and Grocyn,\[3\] had studied in Italy ; and what they had learnt in Italy they had begun to teach in England. Many came under their influence, of whom the most notable was Sir Thomas More--scholar, Lord Chancellor, and martyr. Many more students had studied at Paris.\[8\] One of them was William Blount, Lord Mountjoy. He was a pupil of Erasmus ; and it was at his invitation that Erasmus paid his first visit to England in 1499.\[4\] Of the progress of the New Learning in England Erasmus spoke enthusiastically.\[6\] In fact, it was favoured both by the king and his mother ; and, as we might expect, the royal children were educated under its influence. Linacre was tutor to Prince Arthur. Mountjoy was chosen as companion to the future Henry VIII. \[6\]; and the young prince, if Erasmus is to be believed, early showed signs of precocious genius.\[7\] Already in England, as in Germany,\[8\] the New Learning was being turned to theological uses. Colet, who had been made dean of St. Paul's in 1505, had begun to study and expound the Bible and the earlier Latin fathers after a new fashion.\[9\] He abandoned the scholastic methods, stereotyped by Aquinas, according to which both dogmas and doctrines, and scientific and metaphysical speculations were deduced from the words of isolated texts,\[10\] and made a real attempt to discover the actual historical meaning

## 80 XVITH CENT. AT HOME AND ABROAD

of the biblical narratives, and to apply the ethical message which they contained. His influence had far-reaching effects. It is probable that it was Colet's influence which led Erasmus to devote himself to the preparation of that Novum Instrumentum--the translation of and commentary upon the New Testament--which did so much to further the cause of Reformation \[1\]. As yet the New Learning and the old theology were outwardly on friendly terms. The old-fashioned and the ignorant might suspect; but the opinions of "obscure men" could be disregarded. The New Learning was opening a new world of ideas to the literary and learned, in the light of which it was hoped the abuses rampant in church and state could be speedily reformed \[2\].

All admiers of the New Learning hailed the accession of Henry VIII. as the dawn of a new era. Everything might be expected from a king who professed not to be able to live without literature and learning \[8\]. Mountjoy's praises were somewhat hyperbolical; but according to the testimony of Erasmus there was some cause for this rejoicing. We may perhaps suspect him of flatter when he is writing to Henry himself or to his ministers \[4\]; but he is not so open to suspicion when he is writing to a foreign prince. In 1522, writing to George Duke of Saxony, he described the king as "a prince of wonderfully happy and versatile genius, who accomplishes in a manner scarce to be believed whatever he sets his mind to do; moreover he has a literary style which is not displeasing to me." \[5\] The ambassadors accredited to Henry's court wrote equally enthusiastic reports to their masters \[6\]; and yet the real character of this man, whom, at his accession to the throne, all the world conspired to praise, is still one of the enigmas of English history.

He began his reign with enormous advantages--an undisputed title, a full treasury, the machinery of government in working order. Both physically and intellectually he was head and shoulders above his contemporaries \[7\]; and he enjoyed a popu

## 8.11 Remaissance and Reformation \[1\]

larity which was partly due to these natural gifts, and partly to the fact that the nation justly regarded him as their best security against the anarchy from which his father had rescued the country. It was soon seen that the nation was right in trusting a king who, as his character developed, showed himself to be a statesman of the first rank. He could, like his father and his daughter Elizabeth, choose and trust able men,1 and inspire them with enthusiastic loyalty to himself. He was capable when he wished of supervising, directing, and criticizing the doings of his ministers ; and, after the first few years of his reign, he was the real director of their policy.2 He had a large measure of self-control, and under a bluff manner infinite powers of keeping counsel.3 He seemed to be able to divine as if by instinct the currents of national feeling, and to shape his course accordingly. He soon learned all the arts of the tortuous diplomacy of the day, and knew well how to use it in such a way that foreign interference should not hamper his policy.4 His weak points were an enormous belief in his own infallibility, and an obstinacy of temper, which increased as the years rolled on and experience showed him the extent of his strength. Everything must yield to his wishes. What he believed to be right must be right ; and opposition to his will, even passive and tacit opposition, he came to regard as a crime.6 Moreover, he had all the ruthlessness o the Renaissance politician 6--a ruthlessness which was increased by the keenness of his insight into the realities of his position.

Footnote 1: Thus in t523 he wrote to Wolsey that he is not displeased that Wolsey has changed his opinion, as " nothing in counsel is more perilous than one to persevere in the maintenance of his advice because he hath once given it," L. and P. iii no. 3345.

Footnote 2: See L. and P. x no. 699, pp. 29I, 292, 293. The minute supervision which he exercised right down to the end of his reign can be illustrated by the manner in which he corrected the wording of important despatches, see e.g. L. and P. xix _is_ no. 509, (r544); and by the alterations he made in the interrogatories to be administered to the Earl of Surrey, S.P. i 89I (r546).

3 "Three may, quoth he (Henry VIII.), keep counsel, if two be away ; and if I thought that my cap knew my counsel, I would cast it into the fire and burn it," Cavendish, Life of Wolsey z58; see L., and P. iii $i$ no. x for a letter to Wolsey which illustrates this aspect of his character.

4 Dr. Gaidner says (Camb, Mod. Hist. ii 464), " Henry was considered an enemy of Christianity much as was the Turk, but the prospect of a crusade against him, though at times it looked fairly probable, always vanished in the end. Foreign princes were too suspicious of each other to act together in this, and Henry himself, by his own wavy policy, contrived to ward off the danger."

5 More had accurately gauged this defect in the king's character, as his warning to Cromwell when he entered the king's service shows : He said " in counsel giving unto his Grace, ever tell him what he ought to do, but never tell him what he is able to do. For if the lion knew his strength, hard were it for any man to rule him."

6 More had seen this also--Roper having congratulated More on the friendliness the king had shown when visiting him at Chelsea, More replied, " I may tell the I have no cause to be proud thereof. For if my head would win him a castle in France (for then there was wars between us) it should not fail to go."

## 82 XVith Cent. At Home and Abroad

All through his reign he never spared any one whom he once suspected might be dangerous to his throne ; 1 and in that age of unprincipled intrigue his ruthlessness was generally recognized by the nation to be necessary in the interests of the state. In the latter part of the reign the real dangers to his position which were involved in carrying through his Reformation policy tended to make his temper capricious in the extreme. The strain of devising and carrying through the great change told disastrously on his character. The disappointments which he experienced in his matrimonial ventures tended in the same direction. These disappointments were partly his fault--he was an egoist on a royal scale ; and partly his misfortune. Many of his children died young ; and he was unfortunate in his choice of wives. Thus it was that the darker traits of his character tended to become accentuated in his later years. In fact, the difficulty of forming any clear idea of his character is largely caused by the fact that all through his reign it was constantly developing. He was always learning. He learned from Wolsey, he learned from Cromwell, but he learned most from his own observation and experience. It was only a consummate statesman with a true understanding of the needs of his age, of his own position as king, and of the character of his people, their laws, and their institutions, who could have planned, and induced the nation to accept,2 the policy of making a Reformation in religion by way of evolution and not by way of revolution ; who could have created a modern state upon the basis of medieval institutions and the common law, and not upon the basis of new institutions and Roman law. Let us by all means condemn his cruelty, his caprice, his selfishness, his ingratitude, his self-righeous egoism ; but let us who are telling the tale of the continuous development of English law remember that it was the policy devised by his brain which, in this critical period of Renaissance and Reformation, was the main cause of the preservation of the continuity of that development.3

## 8 RENAISSANCE AND REFORMATION 83

I must now indicate briefly the manner in which Henry VIII: guided England through the earliest and, from some points of view, the most critical stage of the transition from mediaeval to modern.

During the earlier years of Henry's reign the policy of the state was directed by Wolsey.1 He was above all a foreign minister, with a perfect understanding of those new conditions of foreign politics which More satirized in his _Utopia_. From him Henry soon learned to abandon his early wish to make showy expeditions against France, and to assume the position of the custodian of the balance of power in Europe. During the period of Wolsey's rule the government was efficiently carried on on the lines marked out in Henry VII.'s reign.3 The chief organs of government were the Council and its various branches, the Star Chamber, the Chancery, and the Court of Requests ; and Henry VIII., like his father, governed by agents whom he promoted for their ability. Wolsey distrusted Parliaments.4 In fact the in-frequency of Parliaments during the period of his ascendancy, and the large part played by the Council and its branches and the newer courts closely connected with the Council, caused the government of England at this period to approximate more closely than at any other time to a government of the continental type.

Footnote 1: L. and P. iii no. 402, Giustinian reported in zg18 that he, " rules both the king and the entire kingdom ; " cf. L. and P. ii ii no. 4438.

Footnote 2: In zg7 Wolsey writes to Henry VIII. (L. and P. ii Pt. a App. no. 38), " and for your realm . it was never in such peace and tranquility ; for all this summer I have had nother of riot, felony, ne foricble entry, but that your laws be in every place indifferently miniered. . Albeit there hath lately . been a fray betwist Poygot your segregant and Sir Andrew Windsor's servants, for the seisin of a ward . in the which frag one man was slain. I trust at the next term to learn them the law of the Star Chamber, that they shall ware how from thenceforth they shall redress their matters with their hands. They be both learned in the temporal law, and I doubt not good example shall ensue to see them learn the new law of the Star Chamber;" even in the North all was quiet, ibid no. 3345 ; all through the period the Council was strict in repressing disorderly conduct in the nobility ; thus in zg43 the Earl of Surrey was before it for breaking windows in the City, L. and P. xviii ; nos. 347, 356.

3 In zg55 who find Wolsey advising a more speedy dissolution, L. and P. ii no. zg3; see Hallam, C.H. i i7, r8 for his attempt to overawe the House of Commons in zg3; Henry's management of the House was very different, below 36, go-99; and cf. 453-455. ${}^{\*}$ L. and P. iii no. zg1 (zg1g) Erasmus says that " The cardinal of York has done much to restore all good studies, and by his bounty invites all men to the pursuit of them."

VOL. IV.--3

## 84 XVITH CENT. AT HOME AND ABROAD

But his time was too fully occupied with foreign affairs, and with his administrative and judicial duties at home, to allow him to deal adequately with the position of the church in England. So long as his ascendancy lasted the position of the church was secure against violent changes ;1 but for many various causes he was becoming increasingly unpopular. The need for money came to be felt as soon as Henry's extravagance had dissipated the savings of his father. Money was collected by means of forced loans and benevolences at different periods in the reign ; but these expedients caused a rising in i525.2 In the Parliament of i523 the taxes which Wolsey obtained were much less than he had demanded ; and these exactions, parliamentary and unparliamentary, caused him to be hated by the nation at large.3 The nobility hated him as an upstart and disliked the good order which he kept in the kingdom, by the help of " the new law of the Star Chamber."4 The orthodox looked with suspicion upon his attempts to reform some of the abuses in the church. Those whose views were, for doctrinal or other reasons, anti-ecclesiastical, pointed to his arrogance, his display, and his lax morals. The common lawyers viewed with jealousy the efficient rival courts which were absorbing the legal business of the state.5

Wolsey's power rested on the king alone ; and when, on the failure of the divorce negotiations, the king withdrew his favour, his fall was inevitable.6 For some years past the king had been gradually assuming a greater control over the government, and forming definite views as to its conduct.7 In foreign politics thegreat lesson which he had learned from these years of diplomatic intrigue was the lesson that, if he maintained an adequate navy,1 he had little to fear from foreign interference. At home he saw clearly enough the growing feeling against papal and, indeed, against all forms of ecclesiastical jurisdiction.2 He saw, too,\_g_that by a strict enforcement of the old statutes--notably the statute of Praemunire--he could, with the general applause of the nation, make himself supreme in his realm; 3 and the case of Dr. Standish proves that long before the divorce question arose 4 he was inclined to assert a larger power over the clergy.5 The Defender of the Faith did not desire to encourage heresy. But he did desire to encourage the New Learning and the reform of ecclesiastical abuses.6 Without the divorce there would have been a modification in the relations of church and state. The divorce determined the shape which that modification actually assumed. As the divorce could not be got at Rome it must be got in England. Therefore the power of the Pope--even his purely spiritual power --must go.

Footnote 1: For Henry's interest in the navy see Pollard, Henry VIII, r26-r28 and references there cited : vol. i 546-547.

Footnote 2: In r55 FitzJames, bishop of London, told Wolsey that a jury in London would condemn any clerk though he were as innocent as Abel, L. and P. ii no. 2; a good illustration of this state of feeling is to be found in the Beggar's Petition, Somers Tracts (Ed. r809-r815) i 47-48; cf. L. and P. i no. 5725 (r514); ii $i$ no. 1315 (r575); iv no. 6783.

Footnote 3: Standish's case, Keilway (r515) at pp. r84, 185 ; L. and P. ii no. 1314 (r515), the answer of convocation to the king; Maitland, Canon Law in the Church of England 87-89.

Footnote 4: As to the date when Henry began to entertain scruples as to his marriage see L. and P. iv Pref. _ccxxi-ccxxv_.

Footnote 5: In r518 Pace writes to Wolsey (L. and P. ii no. 4074) with reference to the king's promotion of Standish, ": Erit tamen difficile huic rei obstare . quia majestas regia illum mihi jampridem laudavit ex doctrina, et omnes isti domini aulici eidem favent de singulari quan navavit opera ad ecclesiam Anglicam subvertandam."

Footnote 6: For Henry's support of Colet, in r519, as told by Erasmus, see L. and P. iii no. 303; in r546 the University of Cambridge wrote to the Queen to beg her intercession with the king on behalf of the colleges which seemed to be threatened by the Acts for abolishing Chantries etc.; in her reply she says, ": His Highness, being such a patton to good learning both tender you so much that he wolf rather advance learning and erect new occasions thereof, than to confound those your ancient and godily institutions, so that learning may hereafter justly ascribe her very original, whole conversation and sure stay to our Sovereign Lord."

Footnote 7: In r532 two members of the House of Commons moved that the king should be petitioned to take back his wife; "these words," says Chapuys, " were well taken by all present except two or three," L. and P, v no. 98; c

**36 XVITH CENT. AT HOME AND ABROAD**

authority, the removal of some of the many abuses of the ecclesiastical courts, and the prospect of getting hold of ecclesiastical property, were projects extremely attractive to a large part of the nation.1 In the Reformation Parliament (1529-1536) Henry gradually worked out the constitution of a national church with himself as supreme head,2 and by deft Parliamentary management3 he partly persuaded4 partly forced 5 the houses to give it legislative sanction. This national church was not to be a heretic church. It was to be the historic Catholic church of England restored and reformed. There was only to be so much change as was needed to adapt the mediaeval universal church to the wants of the new territorial state. The power of the Pope was exchanged for the supremacy of the king--the new papacy Chapuys aptly called it;6 and the papal canon law, so far as it was inconsistent with the new order, ceased to be applicable. Subject to these necessary modifications there was to be little change in doctrine, discipline, or organization.

Footnote 1: L. and P. iv no. 6071 (1529), Du Bellay reports to Montmorey that after Wolsey is dead or ruined the great lords will impeach the state of the church and take its goods--" which it is hardly needful for me to write in cipher, for they proclaim it openly;" in the same year Wolsey plainly told the Pope that none of the king's subjects would tolerate papal interference with the prerogative, and that " desire to please the Emperor at all hazards will alienate this realm from the Holy See," ibid no. 5797.

Footnote 2: Vol. i 589-593.

Footnote 3: Thus in 1531 Chapuys reports that all are weary of the Parliament; and that those who take the Queen's part find it easy to get leave of absence, L. and P. v no. 720.

Footnote 4: In 1532 the king sent for the house and made a speech justifying the divorce in consequence of the motion that he should take back his wife, L. and P. v no. 986; in 1534 all the Parliament was with the king at York House for three hours, and afterwards all the lords went to the council house at Westminster and sat there till ten at night, L. and P. vi no. 304.

Footnote 5: Chapuys tells us of the rejection of the annates bill by the Commons in 1532; the king then demanded a division--" some passed to his side for fear of his in-digation, so that the article was agreed to, but rather more moderately than was proposed," L. and P. v no. 898; in some cases fear of the rupture of commercial relations and interference with the wool trade induced some members to vote against a complete break with the Pope, L. and P. vi no. 296.

Footnote 6: Ibid v no. 174 (1531); cf. ibid no. 17532); see Maitland, English Law and the Renaissance 60-62, for the use made of Marsiglio's _Defensor Pacis_ to support the new settlement; for the Injunctions by which Henry used his new supremacy see Tanner, Constitutional Documents 93-94; for later Injunctions of 1547 and 1559 see ibid too-102, 140-14I.

Footnote 7: For a good short account of this controversial question see Tanner, Constitutional Documents 50-57; see also below 42.

**RENAISSANCE AND REFORMATION 37**

century showed that in their opinion, " the future lay with collegiate life and the New Learning." 1 Their destruction was not a logically necessary consequence of Henry's new settlement; but it was practically a necessary condition of its stability. If they had been allowed to stand they would have been centres of intrigue against his new settlement.2 By destroying them Henry not only deprived his enemies of a weapon : he was able to arm himself with that weapon. Their wealth could be used to give the governing classes, many of whom viewed these vast changes with apprehension, a large pecuniary interest in the maintenance of the new settlement.3 Many suggestions were made then, and have been made since, as to the manner in which the wealth of the monasteries should have been used.4 Henry's practical sagacity in distributing large parts of it among the nobility and gentry was proved when the project of reconciliation with Rome was brought before Parliament in Mary's reign. It was then clear that the pecuniary interests of the governing classes were the greatest obstacle to any attempt to restore the older order.

Footnote 1: Tanner, op. cit. 57.

Footnote 2: Suppression of the Monasteries (C.S.) 61, 62, Legh writes to Cromwell that the Abbot of Rivaux denies the royal jurisdiction, and would seem, " to rwele the king by ther rules; " and that this " rebelliouse mynde. . is soo radicate, not only in hym, but also in money of that religion."

Footnote 3: In 1534 Chapuys reported to Charles V. that the king intends " to usurp part of the Church goods and distribute the remainder to noblemen," L. and P. vii no. xi4; later in the same year he reports that the greater part of the ecclesiastical revenues are to be distributed among the gentry " to gain their good will," ibid no. xi4; see Grey Friars Chronicle (C.S.) 71 for a curious tale of how Sir Miles Partridge " played wyth kynge Henry the VIII, at dysse for the gret belfrey that stode in Powelles Church-yerde; " cf. H. A. L. Fisher, Political History of England 497-499.

The development of a national Catholic Church from that branch of the medieval Roman Catholic Church which was situated in England was an enormous step in the consolidation of the state. The king who had thus settled the relations of church and state on the basis of continuity desired also to create a united nation on a similar basis. His policy with regard to Wales and Durham shows that he wished to make these outlying parts of the British Isles integral parts of one united state. In Durham the independent judicial system of the Palatinate was preserved; but justice was, under the Act of 1536, administered in the king's name.6 Into Wales and the Marches all the apparatus of English local government was introduced--county courts, tourns, hundred courts, sheriffs, justices of theXVITH CENT. AT HOME AND ABROAD peace, coroners, and escheators \[1\]; and Wales was given Parliamentary representation \[2\]. And, it would seem that Henry's policy with regard to Wales had had by the end of the century a very considerable success \[3\]. Both Durham and Wales were, it is true, governed by branches of the Council ; and by a clause of an Act of 1543 \[4\] the crown acquired, till 1624 \[5\] a large power to alter the laws of Wales by the prerogative. But, as in England, it was through the ordinary machinery of government that the Council ruled \[6\]. All through Henry's constitutional policy we find this note of continuity. It is in harmony with that strict observance of the letter of the law which was so strikingly exemplified in the divorce proceedings, and in many of his most arbitrary doings. As I have said before, this feature of Henry's character and policy has been a main factor in preserving the continuity of the English constitution ; and we shall do well to bear it in mind when we come to deal with the legal developments of the reign \[7\].

We have seen that throughout Europe the Reformation helped forward the growth of the modern territorial state \[8\]. Nowhere was this result so conspicuous as in England. But in England, as abroad, it seemed at first as if the upheaval of things established would be fatal to its growth. The various demands put forward by the rebels in the Pilgrimage of Grace \[9\] showed that religious dissent was allying itself to many various elements of opposition to the government of the stat -- to fcudal opposition, to the claims of the older courts and the older law, to the demand Renaissance and Reformation \[19\] for Parliamentary control over the government, to agrarian discontent. The rebellion took place in the north of England where feudal relations and feudal ideas still survived, and in its sudden gathering and equally sudden dispersal it followed the usual course of such a rising. The rebels complained of the "'vile blood " in the Council, and of the new courts which were making on a whole a successful attempt to keep the peace and to administer an even-handed justice.1 They wished to see not only the old religion restored, but also the mediaval common law unfettered by Chancery injunctions,2 which, as we have seen, a turbulent nobility could so easily make the cloak of oppression and misrule.3 Moreover, they demanded a free Parliament ; and, as no minister of the king was to have a seat in it,4 they doubtless hoped that they would be able to manipulate it as they pleased.

Footnote 1: L, and P, xi no. 826.

Footnote 2: Ibid no. 1246 SS 22, "that the common laws may have place as was in the beginning of the reign, and that no injunctions be granted unless the matter has been determined in Chancery; " cf, ibid no. 1782 SS 7 for a similar demand made at the Conference at Pomfret; ibid xii $i$ no. 6 p, q.

Footnote 3: Vol. ii 415-418.

Footnote 4: Vol. i 593z SS 32 Henry VIII. c. 14.

The suppression of this rebellion by the help of a characteristic combination of diplomacy and force ensured the success of Henry's religious settlement ; and went far to destroy the political influence of the northern mobility.5 But its maintenance during the rest of his reign required delicate diplomacy both in foreign and domestic affairs. Henry did not desire an alliance with foreign Protestants--the Act of the Six Articles reaffirmed most of the leading doctrines of the Roman church.6 But at one time fear of a coalition of foreign Catholic powers drove him to seek this closer alliance, and to marry Anne of Cleves. But so soon as the political horizon cleared he made laste to repudiate her, and to destroy Cromwell, who had brought about the marriage which was to have cemented this alliance. On the other hand, there were no thoughts of making peace with Rome. The translated Bible which was set up in the parish churches, the laxity with which the Act of the Six Articles was enforced in the latter years of his reign,7 and the composition of the council which he nominated for his infant son,8 showed that reforming tendencies still held their ground. But perhaps the best proof of this is the continued influence of Cranmer. In him the king had found an archbishop whose intellectual and literary gifts enabled him to give perfect effect to the royal ideal of a gradual Reformation 40 XVITH CENT. AT HOME AND ABROAD

with the minimum of violent change; for he was a man whose " feet stood upon the past, but his outlook was towards the future."1

Footnote 1: Camb, Hist. Lit. iii 33; for his liturgical learning and the manner in which he used it to construct the prayer book see Tanner, Constitutional Documents roy-ro8.

The events of Edward VI.'s and Mary's reigns, are the best proof of the wisdom and capacity of Henry VIII. The nation was not ready for sweeping religious changes on a large scale, especially when these changes were made by a corrupt government which failed to keep the peace at home, and diminished the reputation of the country abroad. Somerset had a belief in human nature and a disinclination to face the stern realities of life which are characteristic of the socialistically minded statesman. He was too benevolent to use the coercive measures needed to maintain order in that turbulent time. He allowed rebellion to become dangerous, and was deservedly deposed. But his successor, the Duke of Northumberland, was hardly an improvement. Somerset was at least honest: Northumberland was an utterly unprincipled time server. His main object was to obtain the crown for his family, and, by playing upon the young king's religious prejudices, he secured his consent to the scheme. Fortunately Edward died before Northumberland's plans were mature; and the nation rallied to the rightful heir.2

Footnote 2: Grey Friars Chronicle (C.S.) 79, when Jane was proclaimed Queen in London, " fewe or none seyd Good save hare;" on the other hand, when the Duke of Northumberland was led through the streets of London as a prisoner, " all the streets were full of people which cursed him and calling him traytor without measure," Wriothesley's Chronicle (C.S.) ii go, gr.

Something had however been effected. The church had got its articles and its liturgy; and they formed, with but slight modifications, the basis of the final settlement in Elizabeth's reign.3

Unfortunately the work was pressed forward with injudicious haste; and it suffered from its connexion with an incompetent government. But the Roman Catholicism of Mary was as displeasing to a large part of the nation as the extreme Protestant policy of her brother.4

Footnote 4: When at the beginning of the reign Dr. Borne, preaching at 6t. Paul's cross, prayed for the souls of the departed, and declared that Bonner was wrongfully imprisoned, there was a serious riot.

The distribution of the monastic lands had, as we have seen, given the governing class a pecuniary interest in the maintenance of Henry VIII.'s settlement. The translated Bible, which Henry had permitted, assisted by the Protestant teaching of the last reign, had led to the rise, in some parts of the country, of a genuine enthusiasm for some kind of reformed religion; and this was fostered by the heroism of the Protestant martyrs. The Queen's foreign policy, which made England a satellite of Spain, was even more unpopular than the foreign policy of the preceding reign;

## 4 REnaissance and Reformation 41

and it was quite as disastrous. All classes welcomed Elizabeth --the offspring of the marriage which was the immediate occasion for that settlement of the national church to which the large majority of moderate men desired to return. But before I can deal with the results of her reign I must first say something of the progress of the Renaissance during the reigns of her three predecessors.

Henry VIII. aimed, as we have seen, at reconstructing the English state and the English church upon mediaeval foundations, and with such mediaeval materials as were capable of being adapted to the new edifice. Our modern English constitution and our established church are living witnesses to the successful realization of his aim. But what appears to us, and what appeared to the men who lived at the end of the sixteenth century, to be a Reformation, was, for the men of Henry's own day, a Revolution. Henry no doubt carried through his programme of reform with the minimum of disturbance to things established. But necessarily the shock to the existing order was great ; and it seemed temporarily to stop the progress of the Renaissance.

The earlier years of Henry's reign had not wholly belied the expectations of the supporters of the New Learning. Erasmus said that there were more men of learning to be found in Henry's court than in any university 1--that it was rather a museum than a court.2 As we might expect, therefore, the New Learning was encouraged at both the universities. Bishop Fisher, the patron of Erasmus, was chancellor at Cambridge ; Sir Thomas More at Oxford. Colet founded St. Paul's School that boys might be educated in Latin and Greek after the new fashion. Wolsey designed, as we have seen, both a school at Ipswich and a college on a grand scale at Oxford. More direct and more detailed evidence of the actual permeation of the new ideas is to be found in the accounts of John Dorne, an Oxford bookseller.8 In the year 1520 he sold 2383 books. Their titles show that there was a demand for books of scholastic philosophy and theology, for the classics, and for the works of three Italian and one French humanistic writer ; but that the greatest demand of all was for the works of Erasmus--"one-ninth of the whole sales were of books written or edited by him." Here as abroad this silent permeation of the new ideas was checked

## 42 XVith Cent. At Home and Abroad

by the Reformation, which filled men's minds with theological controversy to the exclusion of all else. Then came the dissolution of the monasteries and the wholesale destruction of the monastic libraries. This was the most direct and the greatest shock to learning. It was not merely a destruction of books, it was a dislocation of the whole existing system of learning and education. Some of the monasteries were at once the homes of advanced learning, international exchanges for Eurojean scholars, and centres of elementary education for the surrounding country.1 Many of the Oxford and Cambridge colleges were monastic foundations for the education of monks and frars. "Of these scholars the numbers were so large that in the century previous to the Reformation one in nine of all graduates seems to have been a religious."2 After the dissolution of the monasteries the numbers at the two universities gradually declined, and did not rise to their old level till the nation began to settle down under Elizabeth.3

Footnote 1: Camb. Hist, Lit. iii Chap. iii ; cf. Hallam, Hist. Lit. i 351, 352 for another view, which minimizes perhaps unduly the shock given to learning.

Footnote 2: Camb. Hist, Lit. iii 51.

Footnote 3: Ibid 51, 419.

But here as abroad there is substantial gain to set against loss. The quantity of learning and the number of students might decline, but what learning there was, and what students there were, belonged to the new order. The old learning was displaced--violently, it is true ; but it is doubtful if it could have been so thoroughly displaced with less violence. Henry VIII. was, as we have seen, a great constructive statesman in the realm of constitutional law ; and though he was bound to destroy much that was out of harmony with his new ideas as to the supremacy of the state, though this involved a destruction of much of the material of the old learning and of much of the machinery by which it was disseminated, his work was not merely destructive in the sphere either of religion or of learning. We have seen that the forms and much of the substance of the old religion were maintained ; and the beginnings of a new order were beginning to appear in the translated Bible and the litany. The foundation of regius professorships at Oxford and Cambridge was intended to bring the universities and their teaching into line with the new order in church and state, so that they might " be nurseries to bringe up youthe in the knowledge and fear of God and in all manner of good learninge and vertuous educacion whereby after they may serve their Prince and contr

## 7 Renaissance and Reformation \[1\]

This work of reconstruction, though hindered by the capacity which characterized the court of Edward VI., rapidly advanced during his reign. New statutes were made for the universities ; and intercourse with the Protestants of the continent more than made up for the cessation of intercourse with Catholic countries. Cambridge especially, in the time of Cheke and Smith and Ascham, was the home of the best kind of humanism;1 and from Cambridge came many of Elizabeth's most eminent statesmen. The accession of Mary meant the death or exile of the teachers who had flourished under her brother. But Mary herself was not indifferent to learning. It was in her reign that St. John's and Trinity Colleges were founded at Oxford. But though it might be possible to restore the old religion, it was both politically and intellectually impossible to bring back the old learning in its entirety ; and it was very difficult to proceed in the work of introducing the New Learning so modified as to be consistent with Roman orthodoxy. It was not till Elizabeth ascended the throne that the work of reconstructing learning and religion began again to advance slowly on the path which had been marked out for it in the reigns of Henry VIII. and Edward VI.2

Footnote 1: Hallam, Hist, Lit, i 346-350.

Footnote 2: In a tract called "The Device for the alteration of religion," put forward at the beginning of Elizabeth's reign, Somers Tracts i 63, it is said that, " the Universities must not be neglected, and the hurte that the late visitation in Queen Marie's time did, must be amended."

When Elizabeth succeeded to the English throne the two greatest powers on the continent--France and the Spanish Monarchy--were beginning to think of concluding peace in order to withstand the progress which the Reformation was making. A few months after her accession peace was actually made by the treaty of Cateau Cambresis. This desire for peace was caused, not so much by the fact that the Protestants were heretics, as by the fact that the Calvinistic form of Protestantism which was arising at Geneva demanded civil as well as religious liberty ; and, as we have seen, somewhat easily allied itself with any existing elements of discord in the state. In Scotland, in France, and in the Netherlands this leaven was working ; and its repression seemed to the rulers of these countries to be the first essential for the continuance of orderly government. A counter-reformation was necessary in the interests both of church and state.3 But dynastic rivalries which had lasted for upwards of half a century could not be forgotten in a day ; and though political and religious necessities might dictate a peace, the influence of these rivalries prevented any whole-hearted co-operation in the work of

## 44 Xvith Cent. At Home and Abroad

suppressing heresy.The kings of France and Spain were willing enough to destroy their own Protestant subjects; but if the Protestant subjects of either of these powers made it easier for the other to pursue schemes of territorial agrandisement, the temptation to remain passive, and even to assist them to embarrass their rival, was often too strong to be resisted. In spite of treaties, in spite of the counter-reformation movement, the same jealousies which had enabled Henry VIII, and Edward VI. to act in defiance of the opinion of Catholic Europe could be relied upon to protect England against any combined attack from the two great Catholic powers on the continent. It was a thorough knowledge of the very mixed motives governing the actions of continental statesmen, and the skilful use made of that knowledge, which enabled Elizabeth and her advisers to solve successfully the multi-farious problems of the first years of her reign.1

Footnote 1: In "The Device for the alteration of Religion," Somers Tracts i 6z, it is proposed to make peace with France, and divide Scotland by supporting the Reformation there; cf. Sorel, op. cit. 5f-57.

In the first days of her reign Elizabeth had determined to stand by that Reformation settlement to which by her birth she was naturally related. By choosing as her ministers such men as Burghley, Bacon, Cooke, and Smith, who, like herself, had been educated under the influence of the Renaissance and in the principles of the reformed religion, she showed that she meant to build upon the foundations which had been laid by her father and her brother.2 But as a result of this decision the foreign policy to be pursued became a problem of the greatest difficulty. During the preceding reign England had been a dependent of the Spanish monarchy. Scotland, on the other hand, had become a dependent of France. Mary Queen of Scots, who by hereditary right was the next heir to the throne of England, and in the opinion of many Catholics the rightful queen, was the wife of the Dauphin ; and in 1559 her husband succeeded to the throne of France as Francis II. If England was to remain independent of France must she not continue to be dependent upon Spain ? And, with dependence upon Spain, must not the determination to stand by the Reformation settlement be abandoned ? But, as Elizabeth and her advisers saw, there was another side to the picture. England was still important to Philip ; and, Reformation or no Reformation, he could not allow her to be absorbed by France, for it would imperil his dominion in the Netherlands.3 Further, a tumultuous popular Reformation of the Calvinistic variety had begun in Scotland. The Scotch might hate the English ; but a powerful party had come to hate Catholicism, and1 Renaissance and Reformation 45 the French power by which Catholicism was supported, still more fiercely. Much could be done to cripple France if the Scotch ,Reformation was assisted ; and, most important of all, it was clear that, if that Reformation was carried through, the old alliance between France and Scotland would be broken up. Thus it was that Elizabeth and her ministers found in the European conflict of religious and dynastic interests the solution of the difficulty caused by the decision to adhere to the Reformation settlement. But under the circumstances there was no need to parade its anti-papal or its Protestant character. Both the Henrician and the Edwardian settlement were toned down and adapted to the new situation. Henry's extreme claims to the headship of the church were disguised by an _et cetera_ in the royal style ; and the Calvinism of some of Edward's formularies was modified.1 At the same time the authority of the Supreme Governor of the English Church was quite sufficient to check the zeal of the more advanced Protestants, whose views were as distasteful to Elizabeth as they were to Philip II. ;2 and the notes of Catholicity still retained by the English church served on occasion as a valuable diplomatic weapon. In fact, that church could present many faces ; and no party need despair of converting the Queen to its views. She was capable of making the most artistic use of the opportunities which were open to her ;3 and so, amid a maze of tortuous diplomacy which helped to screen the real facts from those who did not wish to see them, England was placed definitely on the side of the Reformation, but without an open break with the Catholic powers of the continent. The Reformation in Scotland was saved ; and its salvation not only guaranteed the independence of England, but laid the foundation of a union between the two countries.

Footnote 1: Maitland, E.H.R. xv 120 seqq.; Camb. Mod. Hist. ii 56z, 563, 569, 570.

Footnote 2: Elizabeth never forgave Knox his '' Blast of the trumpet against the Monstrous Regiment of Women ;'' and '' Not only had the ' regiment of women ' been attacked, but Knox . had advocated a divine right of rebellion against idolatrous prices," Maitland, Camb. Mod. Hist. ii 596.

Footnote 3: Cf. Maitland, E.H.R. xv 330.

The problem of the relations between England and Scotland was intimately related both to the ecclesiastical and to the foreign policy of Elizabeth. The manner in which she dealt with it strikes the keynote of her foreign policy during the first thirty years of her reign. The difficulties and rivalries of foreign states must be used to secure peace for England, and a breathing space in which an attempt could be made to solve the many pressing religious, commercial, and social problems which had been shelved during the last two reigns. Peace was the first essential ; and all Elizabeth's foreign policy was directed, and for thirty years successfully directed, to this object.

## 46 XVITH CENT. AT HOME AND ABROAD

"Time and myself are a match for any two," was a favourite proverb of Philip II. It might be taken as the motto of Elizabeth and Burghley. Time gave them many opportunities, and they took them all. The tragedy of Mary Queen of Scots, and the wary policy of Elizabeth, secured Scotland for the Deformation, and $\\delta$pened the way for that union of the crowns which had been the dream of her father and grandfather. The revolt of the Netherlands, the struggle with the Turks, the winning of the Portuguese inheritance, fully occupied Philip, and made him as ready as Elizabeth to avoid an open rupture. The power of France was to a large extent neutralized by the religious wars. When Elizabeth was not assisting or conniving at assistance given to the Huguenots, she was dangling the prospect of an alliance cemented by a marriage with herself before the French court. She had soon seen the diplomatic value of her celibacy ; and, with greater wisdom than her Parliament, she steadily refused either to marry or to declare her successor. But in spite of the skilful use which she made of the troubles and rivalries of the continental powers, the undercurrent of hostility between the country which was rapidly becoming the first of the Protestant powers, and the country which stood for Catholic orthodoxy, was growing more intense. Philip did not consider that the time had come to declare war on England, but he had no objection to encourage the plans of revolution and assassination that centred round Mary Queen of Scots. Elizabeth wished for peace, but she had no desire to see the Netherlands crushed. They were fighting the battle of Protestantism ; and she had no objection if her subjects assisted them. Nor had she any objection to the semi-private expeditions of a piratical character which taught Drake and his fellows to despise the Spanish monarchy and its claim to exclude all other nations from the New World. That Elizabeth had co-operated with Time more intelligently and more successfully than Philip became clear when the execution of Mary Queen of Scots and the possibility of securing England and Scotland as her heir, at length persuaded him that his rebellious provinces could not be subdued until England was first conquered. The safety of the Reformation was assured when the destruction of the Armada advertised to the world the beginning of the decadence of that power which had so long threatened to become the master of Europe and the New World. Throughout the remaining years of the reign, indeed, the war continued; and when it closed there still remained to be fought out in Germany the last, the longest, and the most savage of all the wars of religion. But when Elizabeth died there had emerged from the heroic struggle of the United Provinces, from the settlement of

## 4.2 Renaissance and Reformation 47

the religious wars of France, and from the revival of the power of England, the main features of the modern European system of international politics and laws.

Similarly there were emerging from Elizabeth's ecclesiastical policy some very permanent factors in the political and religious life of modern England.

Her religious settlement satisfied many both at home and abroad.1 In so far as all allegiance to the Pope was disclaimed the English church was Protestant. But it retained, according to the orthodox legal and theological doctrine, both its continuity and its Catholicity.2 The violence of the change was skillfully disguised by the fiction of the restoration of an old independence. What in another and a larger sphere the fiction of a state of nature had done for the Roman _jus civile_ in our smaller and insular sphere this fiction of an old independence ultimately did for the Reformation settlement in England. It enabled large and necessary changes to be effected with the minimum of external change. It made for peace and orderly development. Its Protestant character satisfied the moderate majority; and the continuity of its Catholicity, propounded in Henry VIII.'s statute, and accepted first by the lawyers and afterwards by the theologians, has, like the Catholicity of the Roman church, enabled it to include within itself numerous divergent sects. But though Elizabeth's settlement satisfied many, it has never satisfied all. In her reign its maintenance involved a struggle with two sets of opponents. In the earlier part of the reign the struggle was with the old religion allied with feudal lawlessness and foreign intrigue in favour of the captive Mary. The suppression of the rebellion of the Northern earls finally ended the long war with baronial turbulence.3 The papal excommunication of the Queen, the mission of the Jesuits, and the assassination plots which ensued, were met by the admirable precautions of Burghley and Walsingham, and punished by stringent penal statutes ;4 and these dangers had so strongly impressed the popular imagination that they gave rise to a national fear and hatred of all Roman Catholics, and more especially of the Jesuits, which continued for several centuries to be a striking national characteristic. In the latter part of the reign the struggle was with Calvinistic Puritans, who desired to see a church, purged of the superstitious observances which the English church still retained, but possessed of an

## 48 XVith Cent. At Home and Abroad

independence of the state which was more Roman than any of therites and ceremonies which they condemned as popish\[1\]. Their agitation was generally conducted in Parliament; and they formed the first real Parliamentary opposition which a Tudor sovereign had ever been called to face. In that opposition we can see the germs of a division in the nation which will eventually give rise to two great political parties in the English state. Moreover, there is at least one instance in which a group of these sectaries, who had been banished from the realm, departed to Canada \[2\]; and in their action we can see the beginning of a movement which in later days gave birth to some of the most famous of the English Colonies.

The same modern note characterizes the economic and social policy of the reign. The coinage was reformed\[3\]; and this was the beginning of a new economic policy which, by gradually improving the trade of the country, solved in a manner which was destined to be very permanent many of the social difficulties of the earlier years of the century. Burghley deliberately set himself to foster national power through state action\[4\]. New inventions and manufactures were encouraged\[5\]. Companies to exploit foreign trade were promoted\[6\]. Expeditions started out to plant colonies; and, in the early years of the seventeenth century, the success of these expeditions is seen in the royal charters which encouraged new settlements and provided them with the machinery of government\[7\]. The relations between employer and employed were carefully regulated\[8\]. The growing of corn was encouraged, and so successfully that men began to find that its cultivation paid them as well as those extensive sheep farms against which the legislature had been struggling for the greater part of this century\[9\]. The supply and price of corn and other provisions were minutely supervised\[10\]. Above all, the greatest attention was paid to the navy, and to all problems connected with shipping, whether relating to the supply of men or the supply of material\[11\]. The religious wars in the Netherlands helped forward this economic policy. Protestant refugees were encouraged to bring their artsand crafts to England;1 and, after the fall of Antwerp, there were signs that London might some day become the commercial capital of Europe.2 The problem of pauperism and unemployment, which had been a pressing problem all through the Tudor Period, was in a large measure solved, partly by the growing prosperjty of the country, partly by a comprehensive statute which is the basis of our modern Poor Law.3 In all these various spheres we find the beginnings of an economic and a social policy which has lasted for many centuries.

Footnote 1: Early in the seventeenth century the privileges they had got sometimes gave rise to disputes with English traders; in 16r3-16r4 difficulties had arisen between Dutch settlements in Canterbury and Norwich, Acts of the Privy Council (16r3-16r4) 8, 10-1r, 355-362.

On all sides of the national life the thirty years of the Elizabethan peace are the dividing line between mediaeval and modern. Their result was a united English nation brilliantly started on its modern career. At home peace and prosperity, abroad victory over the dreaded power of Spain, and visions of new English nations beyond the Atlantic, fostered a patriotic pride and an abounding self-confidence. As a consequence we get that wonderful outburst of literary activity which makes the age of Elizabeth the true period of the English Renaissance and the golden age of English literature. Whether we look at the works of translators like North, who gave to their countrymen the works of classical antiquity translated into the words and atmosphere of Elizabeth's days; or at the works of Hakluyt, who has preserved the acts and words and thoughts of the men who made England the mistress of the seas; or at the works of chroniclers like Camden, or poets like Spenser or Sidney, or dramatists like Marlowe or Shakespeare--we see a youthful nation, just realizing its powers, rejecting in its strength, proud of its past, and full of hope for its future. In literary history, as in the history of other departments of national life, what was begun under Henry VIII., and continued under Edward VI., came to maturity under Elizabeth. But with the history of literature we are here only concerned in so far as it illustrates the triumph of the new ideas introduced by the Renaissance and the Reformation; and for this purpose we must look chiefly at the works of Francis Bacon. In them we can see the most decisive break with the mediaeval ideas, and the most complete acceptance of modern modes of thought. In them we can see how far England had travelled during the Tudor period. With the man himself we shall make closer acquaintance in his capacity of lawyer and statesman; but, following his own precept " not to intermingle matter of action with matter of 50 XVTH CENT. AT HOME AND ABROAD general learning,"1 I shall glance here at that nobler side of his intellect which impelled him to serve mankind by endeavouring to extend the kingdom of man over the universe.

The root idea of Bacon's philosophy was the belief that this extension of the kingdom of man could only be effected by ascertaining and obeying the laws of nature. In putting this idea before the world he developed an aspect of the New Learning which, amid the admiration for the literature of classical antiquity and the war of creeds, had hitherto been comparatively neglected. Some, it is true, had seen that a real knowledge of nature could only be ascertained by a study of the phenomena of nature. Leonardo da Vinci is a conspicuous example;2 and when Bacon wrote great results had already been achieved by men who had pursued this method of enquiry. Copernicus (1472-1543), Tycho Brahe (1560-1601), Napier (1550-1615), Galileo (1564-1642), Gilbert (1540-1603) are conspicuous examples.3 But their researches were necessarily partial and fragmentary. The men themselves were little regarded in the learned world of scholarship, and their works seemed of small practical importance compared with theological treatises on the burning questions of the day.4 Bacon aroused the attention of the world to the importance of a systematic knowledge of all the phenomena of nature, and he also clearly showed that, "the intelligent, patient, persevering cross-examination of things, and the thoughts about them, was the only and was the successful road to know."5 He called upon men to abandon unverified hypotheses and ingenious speculation, and to turn to the examination of the volume of God's works--the great and common world, "to linger and meditate therein, and with minds washed clean from opinions to study it in purity and integrity."6 It may be true that the actual methods by which he

**RENAISSANCE AND REFORMATION 51**

proposed to investigate nature were not, and never, have been, the methods of those who have made great scientific discoveries ; it may be true that, as Harvey said, he wrote about philosophy like a Lord Chancellor ; but it meant everything to the cause of natural science that a Lord Chancellor, and a literary genius of the first rank, should throw a glamour round its study by proclaiming to the world the infinite possibilities which it contained of future extensions of human knowledge.1 It meant everything to the cause of advance in all branches of knowledge that men should be trained to understand "the real subtlety of things." " and made to believe that Truth was the child, not of authority, but of Time.8

Footnote 1: **E. A. Abbott, op. cit. 472-474.**

Footnote 2: **Redargutio Philosophiarum, Works iii 583.**

Footnote 3: \*\*Nov. Org. Bk. I. LXXXXIV. " Veritas temporis filia dicitur non autoritatis ;" cf. Advancement of Learning, Works iii 291, " _Anliquitas sacculi juveniles mundi_. These times are the ancient times, when the world is ancient, and not those which we account ancient _ordine retrogrado_, by a computation backward from ourselves."

Footnote 4: **Above ix, i5, 29-30; vol. ii x28-i3.**

Footnote 5: **Advancement of Learning, Works iii a85.**

Footnote 7: **Redargutio Philosophiarum, Works iii 583.**

Footnote 8: **Joint 283.**

Footnote 40

## 52 XVith Cent. At Home and Abroad

of that other Novum Instrumentum--the opportunity to study the New Testament at first hand--which, earlier in the century, Erasmus had given to the nations of Europe.1 Erasmus had asserted man's right to enquire into the real meaning of the Bible; and that enquiry had led to the repudiation by half Europe of the particular set of theological premises which was at once the basis and the prison of all mediaval speculation. But when once the right to enquire has been conceded, can any bounds be set to it? Bacon could find no subject, "under the mysteries of the Deity," into which enquiry was prohibited.2 Rather it was man's duty to enquire into the mysteries of nature, "and to spare no pains to search and unravel the interpretation thereof, but pursue it strenuously and persevere even unto death."3

Footnote 1: Above 30.

Footnote 2: Filium Labyrinthi, Works iii 50o, " Neither could he find in any Scripture, that the enquiry and science of man in anything, under the mysteries of the Deity, is determined and restrained, but contrariwise allowed and provoked."

Many battles remained to be fought with many creeds before the student of nature conquered the right to state freely the conclusions to which he was led by the study of nature. But the main position had been won when the allied movements of Renaissance and Reformation broke the authority of one infallible church. Man's intellect had freed itself from the fetters which confined it all through the Middle Ages; and though it might for a space be necessary, in the interests of peaceable and orderly government, to subject it to the dogmas of new creeds, its ultimate sovereignty was assured. Already when Bacon wrote theology was no longer the despotic mistress of the other sciences. It had become rather a constitutional monarch; and the day was coming when it would be merely an equal, with perhaps a merely honorary precedence, conferred out of respect for its ancient position.

Henry VI11. had laid the foundations of the modern English state. The structure was completed in the reign of Elizabeth upon the foundations which her father had laid. The achievements of her reign are due in great part to the hard detailed work of the devoted band of able ministers which she gathered round her. But the national instinct was not at fault when it assigned the largest share of the credit to the queen herself. Like her father she could see straight to the heart of a problem, shc could choose and trust able men, she could both impress the popular imagination and secure and hold the devotion of her ministers. From her mother she inherited that taste for flattery, flirtation, and favourites which was sometimes the

## 6 Renaissance and Reformation 58

despair of her ministers. But her keen sense of the greatness of her position, her desire to retain the affection of her people, her 'cool judgment and power of self-control, prevented her from making an irretrievable mistake.1 The one man for whom she felt a real affection was the showy and worthless Leicester--a member of that family of Dudley which had exercised an evil influence upon the policy of her grandfather and her brother. And even where he was concerned she never allowed her heart to rule her head. "There will never Queen sit in my seat," she told her last Parliament, "with more zeal to my country, care to my subjects, and that will sooner with willingness yield and venture her life for your good and safety than myself. And though you have had and may have many Princes more mighty and wise sitting in this seat, yet you never had or shall have any that will be more careful and loving."2 "Far above all earthly treasure I esteem my people's love."3 She spoke the simple truth, as all her people knew; and this was the secret of her power.

Footnote 1: It was the absence of these qualities that was fatal to her rival, Mary Queen of Scots; as Mr. Law says, Camb. Mod. Hist. iii 293, "Her interests and ideals were those of the Guises. Her heart was not in her own country, but elsewhere ; and the main object of her ambition, the Crown of her neighbour."2 D'Ewes Journal 66o. 3 Ibid 559. 4 Below 88-go. 5 Prothero, Constitutional Documents xviii-xx.

Like all the Tudor sovereigns, Elizabeth had lofty notions as to the sphere of her prerogative ;4 and her government was often arbitrary. But all thinking men knew that the prerogative as wielded by her had saved the independence of the state, and had asserted the supremacy of the law ;5 and we, looking at her reign from the point of view of later history, can see that it had fitted her people to exercise a larger control over the government. Already at the end of her reign they were beginning to demand to exercise this control. But she was as skilful as her father in the management of Parliament ; and her tact and personality enabled her to evade the discussion of those large ecclesiastical and constitutional questions which were beginning to be raised. The seventeenth century was soon to show that it was only a monarch with the Tudor understanding of the English people and genius for diplomacy, who was capable of working a machine so delicately adjusted as the complex system of government which the Tudors had bequeathed to their successors.

Footnote 2: I'des Journal 66o. 3 Ibid 559. 4 Below 88-go. 5 Prothero, Constitutional Documents xviii-xx.

It was, as we shall see, a complex system--more complex than the systems of government which were growing up in many continental states ; for though there are many analogies between

## 54 XVITH CENT. AT HOME AND ABROAD

England and the continent in the manner in which the Renais-sance and the Reformation had affected the development of the state, there are also many contrasts. In England as abroad the classical Renaissance had loosened the chains in which the scholastic philosophy had bound all knowledge, and had thus enabled new intellectual developments to be made in many directions. In England as abroad the Reformation had, in spite of the disorders with which it was generally accompanied, helped forward the growth of the modern state ; and the growth of the modern state had completed the intellectual revolution by sub-ordinating church to state, and thus weakening the uncontrolled authority which theological dogma had formerly exercised. But England, unlike most of the other European states, had seen this great transformation accomplished with the minimum of violent change. Mediaeval and modern institutions, mediaeval and modern legal and political ideas had been allowed to remain side by side in ill-assorted companionship. Continuity of development was secured ; but at the price of complexity of organization and obscurity in the law.

But with these differences between the institutions and the law of England and the institutions and law of other continental countries I must deal in some more detail in the two succeeding sections. And in the first place I must say something of those new institutions upon which the structure of the modern state was based.

## II The New Institutions--the Rise of the Modern State

Throughout Western Europe the character of the constitutional changes of the sixteenth century was in one respect the same. A strong centralized government under a more or less absolute ruler was substituted for the loosely knit monarchies of the Middle Ages.1 In England, as we have seen, the Tudors established such a government by means of a reorganization of the

**RISE OF THE MODERN STATE 55**

Council and a large extension of its power. **Abroad somewhat similar results were achieved by the adoption of somewhat similar measures. But though there is necessarily some resemblance between the constitutional changes which were creating the modern state both in England and on the continent, it is the differences between English and the continental development which are the most striking. Consequently we shall see that the English state, when it emerged from the sixteenth century, had acquired characteristics which caused it to differ from contemporary continental states far more essentially than it differed from them in the Middle Ages. No doubt in the Middle Ages the differences between the law and government of England and the law and government of continental states were marked. But it is during this century that these differences were both widened and deepened. The modern territorial state was being created; and its rise, by accentuating old and introducing new differences, tended to foster the growth of those many divergencies of law and government, and of intellectual and religious outlook, which intensified or created the distinct national characteristics of the states of modern Europe. It is clear therefore that if we would understand the changes of a period which, though they resembled the changes which were taking place on the continent, yet resulted in the creation of a state differing essentially from the continental states, we must look abroad as well as at home. We must look not only at the changes which were taking place in England, but also at the analogous continental changes, if, in this century, we would understand the strength and weakness of the Tudor constitution, and if, in the following century, we would understand the whole significance of the controversy between the supporters of Prerogative and the supporters of Parliamentary government.**

\*\*Though many different countries felt the influence of these changes in this and the following century, France is the country from which their character can be illustrated most clearly. The development of the machinery and theory of government in France was in many respects typical; and just as the English constitution has been a model to many countries in the nineteenth century,1 the French institutions of the sixteenth and seventeenth centuries were in those centuries a model to many European States.2 It is for this reason that the contemporary continentalXVITH CENT. AT HOME AND ABROAD

changes can be illustrated most clearly from the legal and constitutional history of France.

In dealing with this subject the following arrangement will be adopted : I shall describe, firstly, the new machinery of central government ; secondly, the relation of the new to the old machinery of government ; and thirdly, the new position of the king and the new theory of the state. Under each of these heads I shall first of all say something of the continental changes and developments, and shall then describe the analogous or contrasted changes and developments in this country.

The New Machinery of Central Government

The chief feature of this new machinery was a large increase in the powers of the king's Council. Its powers--legislative, administrative, and judicial--were extended at the expense of the powers of older assemblies, courts, and officials ; and consequently new departments of government were developed from the Council, and new ministers of state were created.

De Tocqueville has described in a few words the salient features of the government by king and Council which prevailed in France from the last half of the seventeenth century to the Revolution.1 Though we cannot apply his description without important modifications to the sixteenth century, it is useful to quote it, because it shows us the direction in which the changes made in that century were tending. "At the centre of the kingdom," he says, " and around the throne is an administrative body of remarkable strength, which, in a new manner, combines within itself all the powers of government. This body is the king's Council. Its origin is ancient, but the greater part of its function is modern. It is everything at once : a supreme court of justice, for it can quash the decisions of all the ordinary courts ; and a superior administrative court--it is to it that all special jurisdictions have recourse in the last resort. Moreover, as a governmental council it possesses, subject to the royal pleasure, the legislative power. It discusses and proposes the greater part of the laws, it fixes and apportions the taxes. As a superior administrative council it is its duty to lay down general rules to direct the agents of the government. It decides all matters of first-rate importance, and supervises matters of second-rate importance. Everything is concentrated upon it, and from it emanate the activities which affect everything. Nevertheless it

## 5 New machinery of government

has no inherent jurisdiction. The king alone decides, though the Council appears to pronounce judgment. Though apparently administering justice, it is composed simply of advisers, as the Parlement pointed out in one of its remonstrances. The Council is not composed of great lords, but of persons of middle or lqwer class, of former intendants and others thoroughly conversant with business--all subject to dismissal at will."

Already in the sixteenth century the Council was the most important organ of the state.1 Its members were not only the great officers of the state and paid professional councillors, but also the great nobility and the princes of the blood, and a certain number of titular councillors (_conseilers a brevet_) whose advice was occasionally asked.2 The Masters of Requests--originally clerks who helped the king to answer petitions--assisted the Parlement 3 and the Council in its judicial work.4 It was not till the latter part of the seventeenth century that the Council came to consist wholly of professional members.6 But in the sixteenth century the older feudal officials were fast giving place to newer officials who held office during the king's pleasure.6 One of the most important of the older officials was the Chancellor. Because he was irremovable many of his functions were, in 1551, transferred with his seal to a guardian of the seals.7 Of the other officials the most important were the superintendent of the finances, and the secretaries of state.8 The latter were "'les veritables ancetres des ministres modernes;"9 and we shall see that in this respect the English development was very similar.10 In the sixteenth century the Council had begun to divide itself into several committees for its several functions. By the end of the century we can see a Council of State, a Council of the Finances, and a Council for judicial business.11

Footnote 1: The Council is a member of the National National Science Foundation, which is a member of the National Science Foundation.

Footnote 1: The Council is a member of the National Science Foundation.
XVITH CENT. AT HOME AND ABROAD

The conduct both of domestic and foreign affairs was in the hands of the Council. It was gradually increasing its control over the local government.1 It could tax,2 and in it were prepared the most of the laws enacted by the king.3 It had an extensive jurisdiction ; for the king, by delegating the right to exercise judicial functions, had not deprived himself of the power to resume them.4 Not only had it exclusive jurisdiction over all administrative questions,6 it had also the power to interfere in various ways with the ordinary course of justice--by withdrawing a case from the ordinary courts, by directing the mode in which and the court before which it should be heard, by quashing a decision, by appointing a special commission of named persons to try a case.6 It is to these extensive judicial powers of the Council that we must look for the origin of the continental system of administrative law.7

Footnote 1: Below rog-rro.

Footnote 2: Brissaud, op. cit. 376, 795, 796, 8a3 ; below rog7.

Footnote 3: Esmein, op. cit. 485, " On disait que le roi, en deleguant l'exercice de la justice, n'en avatt point aliene la propriete?; il l'avait retenue, au contraire, et pouvait l'exercr lui meme, quand bon lui sembiait."

Footnote 4: Ibid 527.

Footnote 5: Ibid 485-494--the chief methods were evocation, jugements par commissaires, committimus (a privilege given to certain persons only to be sued before a specified court), cassation, regements de judges .(conflicts between different jurisdictions), lettres de justice (instructions as to the hearing of a case).

Footnote 6: Though it is generally true to say that the principal states of the continent are distinguished from the British Empire and the United States by the presence of a system of administrative law, we should remember that there are variations in the relations of this administrative law to the ordinary law, and the ordinary courts. From this point of view Laferriere, Traite de la jurisdiction Administrative i 26, 27, points out that these states fall into two classes: in the first class are those states which recognize the chief features of the French system--separation of powers, administrative tribunals, conflits. In the second class are those states which keep administrative functions separate from judicial functions, but which have no separate administrative courts ; the ordinary courts decide all cases, but they cannot actively interfere with the administration, or annuli their acts--" L'independance de la fonction administrative a l'egard des tribuneaux peut, au besoin, etre revendiquete au moyen du conflict."

Footnote 7: Ibid 151, 152. Between 1592 and r66ro it gave r6,653 decisions--" On y trouve toutes les decisions qui correspondaient a l'exercice de l'autorit

## 6 New machinery of government 59

devoted to the interests of the government that goes far to account for its encroachments upon the sphere of the ordinary courts. The ordinary courts were the old established courts; and over them the control of the government was limited, because they were staffed by judges who, having bought or inherited their offices, were irremovable. For this reason their jurisdiction was gradually superseded in all cases in which the government was interested by the jurisdiction of a tribunal which was staffed by royal officials who held their offices at the pleasure of the king; \[1\] and this process was rendered the easier by the disputes of these courts with one another.\[2\]

The growing power of the Conseil du Roi did not pass wholly unchallenged. At the end of the sixteenth and the beginning of the seventeenth centuries keen conflicts of jurisdiction arose, not unlike the contemporary English conflicts between the common law courts on the one side, and the Chancery, the court of Requests, and the Council of Wales on the other. In the seventeenth century both in France and in England these conflicts took upon themselves a political aspect.\[3\] In the wars of the Fronde the ability and the Parlements stood together against the growing power of the Conseil du Roi, and its agents (the intendants) in the provinces. But the issue of the struggle in the two countries was very different. In England the victory remained with the Parliament and the courts of common law, and the jurisdiction of the Council in England was abolished. In France the king triumpled finally in 1661.\[4\]. The jurisdiction of the Conseil du Roi and that of its agents were consolidated in a system of administrative courts and administrative law which grew and increased at the expense of the ordinary courts and the ordinary law.\[5\]

de rcglements de tutelle administrative, de finances, de juridiction contentieux ou gracieux, et m me d juridiction penale appliquee le plus souvent a des faits de malversation ou de rebellion. On y remarque aussi un grand nombre d'arrets d'evocation retirant aux parlements ou aux Cours des Aides la connaissance d'affaires interessant des agents de l'authorite royale ou du fisc, des fermiers de gabelle, des collecteurs de taille, etc."

1 Laferriere, op. cit. t44, t46, t50; Esmein, op. cit. 471-494; De Tocqueville, Ancien Regime et la Revolution 87, says, "11 n'y avait pas de pays en Europe ou les tribunaux ordinaires dependissent moins du gouvernement qu'en France; mais

'il n'y en avait guere non plus ou les tribunaux exceptionnels fussent plus en usage."

2 E.g. hetween the Parlement of Paris and the Grand Conseil, Laferriere, op. cit. t50; and cf. the next note.

3 Laferriere, op. cit. t54, 155, "Avant le rgene de Louis XIII, les parlements avaient eu souvent des demlefs, soit avec la Chambre des Comtes, le Grand Conseil, les cours des aides, soit avec les commissaires dpartis, et le Conseil du roi lui meme. Mais ces confilts n'avaient et le plus souvent que des querelles de legistes et des confilts de juridiction; ils deviement sous Richelieu de veritables confilts poliques."

4 Ibid x56-161.

5 Ibid x164-168. In the seventeenth century there were really three sections of the Council which did judicial work of different kinds: (x) Le Conseil des

## 60 XVith Cent. At Home and Abroad

These results were not attained in the sixteenth century ; but it was then that their beginnings appear in the growing control of the council over all departments of the central and local government of the state.

England in the sixteenth century exhibits clearly enough two of the principal features of the continental scheme of government--the growth of the powers of the king and his Council, and the beginnings of a system of administrative law.

At the close of the Middle Ages the functions of government were already to some extent specialized. Parliament had made good its claims to control taxation and legislation.\[1\] Large parts of the judicial powers of the state were tested in the common law courts ; and they, as we have seen, were quite independent of the Council, and sometimes even hostile to it.\[2\] Other parts of the judicial power were vested in the Admiralty, the Chancery, and the court of Requests ; and these courts, though more closely associated with the Council than the courts of common law, became early in the sixteenth century quite distinct bodies.\[3\]

The Council was thus tending to become primarily an executive and administrative body. But it did not cease to exercise on occasion other powers. Thus it possessed very wide powers of acting judicially whenever it saw fit. It is true that there was a tendency to delegate these judicial powers to the court of Star Chamber.\[4\] But we have seen that the Council and the court of Star Chamber were practically the same body ; and that it was on this identity that the legality of the wide and indefinite powers of the Star Chamber was rightly based.\[5\] It is true that at the latter part of this period there are signs of increasing separation between these two bodies. We can trace differences in their membership, and in their procedure ; and cases were heard publicly before the Star parties--this heard cases between private persons ; (a) Le Conseil des despeches--this heard all matters relating to the central administration of the kingdom brought before it by a Secretary of State, and it was in direct communication with all the officials of local government ; (b) Le Conseil des finances--this did for the fiscal administration what (a) did for general administration ; the Conseil d'Etat had come to deal chiefly with foreign affairs, Esmein, op. cit. 52g. As De Tocqueville points out, Ancien Regime et la Revolution 78, it became in the last century of the monarchy common form in royal edicts and declarations to exclude the jurisdiction of the ordinary courts.

1 Vol. 429, 435-440, 441; below 99-105, 817-182,

2 Vol. i 509-510.

3 Ibid 546-547, 409-410, 412-414.

4 Ibid 497-502. See Professor Pollard's able paper in E.H.R. xxxvii 516 ; but I find no warrant in the Act for his conjecture that the Act of $t$487 (3 Henry VII, c. 1) was designed to deal primarily with offences by the king's household officials, ibid 526-527; it may be said that officials, such as sheriffs, were the most usual offenders, but these can hardly be called household officials; note that the committee was given a jurisdiction over certain officers created by the abortive bill for the registration of conveyances, below 458 n. 6.

5 Vol. i 512-513.

**NEW MACHINERY OF GOVERNMENT 61**

Chamber and privately before the Council.${}^{1}$ But, for all that, the Star Chamber never ceased to be substantially the Council sitting in a judicial capacity. Similarly we shall see that the Council exercised certain legislative${}^{2}$ and fiscal powers${}^{3}$--it issued proclamations and it demanded loans. In fact, at all times, the line between executive and administrative powers on the one side, and judicial legislative and fiscal powers on the other, is hard to draw accurately. Even at the present day a strong executive will often try to usurp some of these other functions of government. Much more was it likely to do so in an age in which the line between these various functions of government was as yet newly and therefore faintly drawn--in an age in which a strong executive was the first essential of good government.

In England, as abroad, the old indefinite powers of the medieval Council helped the Council in the sixteenth century to exercise the authority needed to reform or replace the old machinery of government, and to create the new machinery needed by the modern state. Thus the Tudor Council and court of Star Chamber have, like the councils and courts of other contemporary kings, a double aspect. If in the wide range and the indefinite character of their powers we see their mediaval origin, in their composition, their organization, and the range of their activities, we see the germs of the governmental machinery of the modern state.

Upon the composition, organization, and activities of the Council the recorded series of its Acts is the chief and the most important first-hand authority. I shall therefore in the first place say something of the history of the form in which the proceedings of the Council have come down to us.

The Council, like the House of Commons, was not technically a court of record;${}^{4}$ and therefore there is, in the Middle Ages, no official record of its proceedings. " It was under no obligation to record its actions, and did so only so far as the utility of the moment required,"${}^{5}$ Hence the earliest memorials of the Council consist of scattered documents--endorsements upon the petitions presented to it, separate replies to proposals put before it, copies of documents made for administrative purposes, recommendations, ordinances, communications between king and Council.${}^{6}$ It was only occasionally that the Acts of the Council were formally enrolled either on the Chancery, Close, Patent, or Parliament rolls.${}^{7}$ The idea of compiling a regular journal of the

**62 XVITH CENT. AT HOME AND ABROAD**

Acts of the Council was due to the initiative of the first clerk of the Council--John Prophet.1 We have in MS. his journal for the years 1392-1393.2 His intention, says Professor Baldwin, " was not to copy all of the separate notes that were then readily at hand, but to abridge them and summarize the proceedings as they occurred from day to day."3 His successors did not continue his work ; and no similar journal appears till 1421, when the "Book of the Council" begins. In its original form it consisted of several rolls ; but these rolls were cut up and pasted into books soon after they had come into the possession of Robert Cotton.4 "Like the earlier journal it consisted of transcripts and abridgements of as many of the original minutes as were deemed of sufficient importance."5 It extends to the year 1435. Professor Baldwin thinks that it ceased to be kept in that year; and certainly F'ortescue thought that no such book was kept in his day, as he recommends that such a book should be kept.6 Its cessation is easily explained by the decadence of the Council at the latter part of Henry VI.'s and in Edward IV.'s reigns.7 The revival of the authority of the Council in Henry VII.'s reign is marked by the beginning of a new register called the " Book of Entries," the original of which has been lost.8 It was not till 1540 that the record of the Acts of the Council, in a series which is almost continuous,9 begins. On August 1oth of that year a resolution is recorded in these Acts " that there should be a clerk attendant upon the said Council to write, enter, and register all such decrees, determinations, letters, and other such things as he should be appointed to enter in a book, to remain always as a ledger, as well for the discharge of the said counsellors touching such things as they should pass from time to time, as also for a memorial unto them of their own proceedings." 10

Footnote 1: That Nicolas was right in thinking that John Prophet was the first clerk of the Council, Acts of the Privy Council i 17 and n, z has been proved by Professor Baldwin, op. cit. 362-365; for the later history of the office see ibid 365-368; Professor Pollard's article in E.H.R. xxxvii 343-351; see vol. i 482, 490.

Footnote 2: Baldwin, op. cit. 389. 3 Ibid 389-390. 4 Nicolas v iii.

Footnote 6: Ibid 393-392. 7 Vol. i 485, 490.

Footnote 8: Baldwin, op. cit. 437, "fortunately parts of it were copied so that there exists a number of transcripts in incomplete and fragmentary form."

Footnote 9: The gaps in the Tudor period are from July 22, 1543-May 10, 1545, Dasent i _viii_; from May zz, 1559-May 25, 1562, ibid vii _vi_; from May, r562-May, r567, we have only a " rough assemblage of scraps of records," and from May, r567-May, 1570, no record at all, ibid vii _viii_; from June, r582-February, r585, and from August, r593-October, r595, there is no record, ibid xiv _vii_, xxv _vii_; there are some gaps in Charles I. s reign ; but the total number of years omitted does not exceed twenty-two, 'ibid i _ix_, and these gaps are partially filled by rough notes and transcripts, cf. e.g. ibid ii _ix_, $x$, and xxv _vii_ seqq.; for the gaps between r60a and r613, see be'ow 63.

Footnote 10: Nicolas'vii $i$; for the separation between r533 and r540 of the offices of clerk of the Cour.iil and clerk of the Star Chamber, see L.Q.R. xxxvii 240-244.

**NEW MACHINERY OF GOVERNMENT 68**

Some of these records of the Council are in print. Nicolas has collected and printed various scattered records from the year I386, from the Book of the Council (I42I-I435), and from the collection of minutes which extend, with some intermissions, from I435-I446.1 He has also printed the first 340 pages of the series of Acts which begin in I540. The remainder of these Acts, down to I604, have been printed under the editorship of Dasent2 A fire at Whitehall on January I2th, I618, has caused gaps in the Council Registers from January Ist, I602, to April 30th, I613. The printing of the Acts of the Privy Council from I613 is now in progress.

Footnote 1: Nicolas, Proceedings of the Privy Council vols. i-vi; cf. Baldwin, op. cit. 373; for the collection of minutes between I435 and I446 see Nicolas v _vii_ ; they extend from November I2, I436-March 22, I444, with some fragments from July, I446; perhaps it was intended to copy them into a register, ibid v _ix_.

Footnote 2: Acts of the Privy Council vols. i-xxxi.

Footnote 3: Dasent xxiii _viii_ says that, " the State papers of Henry VIII,'s reign now being calendared by the Record Office show that the most important decisions were taken on days when the attendances only of Privy Councillors are given in the Register without any record of the business transacted."

The Acts of the Privy Council do not contain a complete record of all things done by the Privy Council. They contain only such things as the clerk " was appointed to enter." * There is no allusion to decisions upon the many grave questions of foreign policy which were constantly arising all through this period. There is no record of debates in the Council, or of the reasons which induced it to come to a decision. The decisions or decrees alone are registered.4 But, even with these limitations, the Acts of the Council gave us a photographic picture of the activities of the Tudor government in all its various spheres.

Footnote 4: Nicolas vi _xiii_, _xivi_ ; the register thus differs from the original minutes, which contain divergent opinions.

**I have already said something of the gradual separation between the Council as an administrative body and the Council as a judicial body. We have seen that the Council sitting in the Star Chamber absorbed the greater part of the judicial work of the Council; 6 and I shall have something to say later of the additions made by that court to the fabric of English law.6 Here I must deal mainly with the executive and administrative work of the Council. As a result of that work the Council, assisted by the court of Star Chamber, gradually erected, upon a medieval foundation, the first stages of the modern English State. I shall consider in the first place its composition and organization, and in the second place its activities and constitutional position.**

Footnote 6: Vol. i 495-502.

Footnote 7: Vol. v 167-214.

## 64 XVITH CENT. AT HOME AND ABROAD

_Composition and organization_.

A change in the composition of the Council was one of the means suggested by Fortescue for freeing the country from the rule of the over-mighty subject \[1\]; and his suggestion was carried into effect by the Tudors. All through this period the most influential members of the Council were, as a general rule, not the great nobles \[3\], but commoners promoted for their ability--conspicuous examples are Morton, Wolsey, More, Cromwell, the Cecils, Sir Thomas Smith, Walsingham. It was to the work of these councillors that the efficiency of the Council was largely due ; and, at the beginning of the century, their appointment was naturally denounced by those whose sympathies were with the older order \[8\].

The appointment of members was in the absolute discretion of the crown, and their number varied from time to time \[4\]. Generally it consisted of some thirty persons \[5\]. They took an oath of office \[6\]; and, since the early sixteenth century, they had been clearly distinguished from a group of " ordinary " councilors \[7\] which tends to grow more shadowy as the Privy Council became a more definite body, and as its powers increased \[8\]. It is possible that these ordinary councillors were in the latter part of the period represented by the Masters of Requests \[9\] -by judges and others specially summoned, and by other persons who, together with Privy Councillors, were often placed onNew machinery of government 65 various commissions, temporary or permanent, which the Privy Council appointed to deal with the business which came before it \[1\].

Meetings of the Council were held once or twice a week or oftener \[2\]. Generally only a part of the members were present. Four was a quorum in Edward VI.'s reign ; but no determination could be come to unless six were present \[3\]. The sovereign, though in theory always present \[4\], was often absent ; and the division between the Council in London and the Council with the king \[5\] was well recognized.

The majority of members of the Council were either the heads of the great departments of government, or high officials in the royal court and household. It is not till almost modern times that the line between these two sets of officials has been drawn with any degree of accuracy, for the king's council was part of the king's household \[6\]; and in the sixteenth century the distinction was only just beginning to appear \[7\]. Thus the law was represented by the Lord Chancellor or Lord Keeper, by one or both of the chief justices, and sometimes by one of the puisne judges ; religion, by one or both of the archbishops, and a varying number of bishops ; finance, by the Lord Treasurer and sometimes by the Chancellor of the Exchequer ; the navy, by the Lord High Admiral ; the rudimentary military organization by the Master of the Horse and the Master of the Ordnance ; the royal court and household by such officials as the Treasurer of

## 66 XVITH CENT. AT HOME AND ABROAD

the Household, the Comptroller of the Household, the Chamberlain, and the Steward.1 The new organization of government was sometimes represented by the Presidents of the Councils of the North and of Wales. But its most characteristic representatives were the Secretaries of State, who were always members.3 In fact, as Dr. Prothero has pointed out,8 and as continental analogies show,4 it is the growth of the importance of the office of Secretary of State during the latter part of this century 5 which is the clearest indication of the changed condition of home and foreign politics, and of the new position which, in view of this changed condition, the state was gradually taking up. The older departments of government--the Law, the Church, the Revenue, the Court, the Navy--might be left to the old officials.6 But their authority was limited by fixed legal rules and by the terms of their appointment. They were therefore unequal to the task of regulating such new activities of the State as diplomacy, foreign trade, the supervision of the local government, the enforcement of religious conformity, colonial enterprise. The necessary regulation of these new functions of the State was effected by the Crown through the Secretary of State. He was in constant and close communication with the Crown,7 and absolutely dependent on its will.8 Unlike the old officials, his authority was circumscribed by no formal commission.9 It was able therefore to expand, with the growth of the activities of the

**NEW MACHINERY OF GOVERNMENT 67**

state, into " the great secretarial departments of the present day." Thus both at home and abroad, the rise of his office to importance may be said to mark "'the beginning of government in the modern sense."1

Footnote 1: Prothero, op. cit. c, ci; cf. also the account of the duties of a Secretary of State, dated April 26, 1600, and probably by Dr. John Herbert, printed ibid r66-r68.

Just as the officials who were members of the Council indicate the beginnings of some of the great executive departments of the modern state; so the manner in which the Council was organized for the conduct of its business indicates the possibility of future changes within the Council itself, which will tend in the first place to a further elaboration of the machinery of government, and in the second place to new developments in the law.

(1) The size of the Council prevented its meetings from being in any way like those of a modern Cabinet. Rather it was a "standing Board before which came all such matters as now concern the Home Office, the War Office, the Board of Admiralty, the Board of Trade, the Local Government Board, and all the separate Departments by which the Government of the country is administered at the present time."2 A division into committees thus became necessary for the proper conduct of its business. The number and the functions of these committees necessarily varied from time to time according to the exigencies of its business. In I526 there was a strong committee to deal with legal business.3 In I553-4,4 separate committees were appointed for the following purposes:--to call in debts and provide for money; to supply the wants of the garrisons at Calais, Berwick, Ireland, Portsmouth, the Isle of Wight, and the Channel Isles; for the navy; for the victualling of Calais, Berwick, etc.; " to consider what laws shall be established in this Parliament, and to name men that shall make the bookes thereof;" to appoint men to examine prisoners; to consider what lands shall be sold, and who shall be the commissioners; to moderate excessive charges; to consider the methods of paying annuities; to appoint a Council to attend and remain at London; to give orders for the furniture and victualling of the Tower. We should naturally expect to find among these committees a committee of the more important councillors whose duty it was to settle the main lines of the policy to be pursued. But of such a committee there is no trace in the Acts of the Privy Council. Except during the reign of Edward VI, this was essentially a

## 68 Xvith Cent. At Home and Abroad

matter for the Crown to decide, with or without the advice of the Council, as it saw fit.1 It is only in his reign that we find a committee for the state.3 We can hardly identify this single instance of the appointment of such a committee with those seventeenth century committees, called sometimes committees for the state, sometimes juntos, or cabals, or cabinets, which are one of the roots of the modern Cabinet.3 On the other hand, we can recognize in some of these other committees of the Council the germs of some of those Boards 4 through which, from the seventeenth century onwards, much of the executive business of the state will be conducted.

Footnote 1: Clearly this was so in Henry VIII:'s reign see L. and P., 1 _Ixxxi_, and Elizabeth always took care to have the final word ; as Sir Walter Middmay said in Davison's case (1587) i S.T. iz46, "As for the Council, it is known that no Prince's counsellors are farther made privy to anything than that it pleaseth the prince, and oftentimes that is imparted to one that is concealed from another with great cause ; " cf. Smith, Commonwealth of England Bk. II. c 3.

Footnote 2: Edward VI:'s Remains, Burnet, op, cit. v zt9; only Privy Councillors were on this committee.

3 For these see Anson, The Crown (1st Ed.) gz, 93, 96.

4 Ibid g5.

5 Dasent x 232 (1578).

6 Ibid x 338-339; cf. xv 99; xviii rog.

7 Ibid ix 231, 289 (1576); x 215 (1578).

8 Ibid iii 382 (1557); vol. i 592, 594.

9 Dasent vi 153.

11 Select Cases in the Star Chamber (S.S). xviii-xxiv; L. and P. iv _ii_ nos. 38r9, 382.

12 Dasent viii 147-148. For other instances of special commissions see ibid i iz6; xxii 497; Nicolas vii 116.

## 6 New machinery of government 69

aggrieved individuals or classes of individuals were constantly bringing before it.1

Footnote 1: Thus in x6or, Dasent xxxi 252-253 there is a reference to the Chief Justice of the Queen's Bench and the judge of the Admiralty to hear the complaints of the merchants and make some rules as to the trial of cases of assurance; a few instances out of many are ibid vii 172, viii 95, xi 120-121 (directed to judges); xiii 26, xxii 97 (directed to merchants); xiii 252, xiv 97 (directed to justices of the peace); ix 265 (directed to the Merchant Tayloros Company); xvii 26 (directed to Lord Morley in a case which concerned his brother); xxii 63 (directed to private persons).

These commissions and references show us one of the ways in which the state is setting itself to solve the many problems of this new age. Through them it enquires and informs itself--they do the work done to-day by royal commissions. Through them also it provides new machinery for dealing with old problems, or for bringing under the control of the law some new commercial activity or some new abuse which changed social or commercial conditions have rendered possible. Thus in the commissions which regulate the supply of provisions,2 and in the cases in which justices of the peace and others are directed to put in force the old statutes against forestalling and regrating,3 we see the Council maintaining and invigorating the medieval ideas and the medieval laws affecting internal trade.4 In the commission for the examination of felons we see that the need for some better preliminary examination of criminals than was afforded by the presentment of a jury was becoming very obvious in an age when criminals often came from abroad, and when juries were fast ceasing to possess any personal knowledge of the men whom they presented as suspected.6 In the commissions for assurances, and for the compounding of debts of prisoners, and in the frequent references to merchants and others for the purpose of settling the hard cases of those who found themselves in financial straits through no fault of their own,6 we can see that the existing law was inadequate to deal with the new commercial conditions. We are reminded of those _Questions_ or commissions of the Comitia,7 by means of which the criminal law of Rome was developed. But the activity of these commissions of the Council was not confined to a single branch of the law, nor was it legal development alone which they promoted. They were the outward sign of the beginning of many new developments both of legal doctrine and governmental machinery. Just as in the organization of the Curia Regis of the twelfth century 8 we can see the germs of the political and legal institutions of the Middle

**70 XVITH CENT. AT HOME AND ABROAD**

Ages, so in the organization of the Council of the sixteenth century we can see the germs of the political and legal institutions of the modern state.

In the last half of this century the legality of some of these commissions was called in question by lawyers who saw that the extensive powers given to them were endangering the supremacy of the law and the liberty of the subject.1 In the following period the common lawyers limited their sphere of action still more rigidly, and, with the victory of the Parliament and the common law, these limitations have become part of our modern constitutional law.9

Footnote 1: Bacon, Discourse on the Commission of Bridgewell, Works vi 50g-516; at p. 514 he says, " There was a Commission granted forth in the beginning of the reign of her Majesty that now is ... for the examination of felons ... it so fell out that many men of good calling were impached by the accusations of felons. Some great men, and judges also, entered into the validity of the Commission. It was thought that the Commission was against the law and therefore did the Commissioners give over the Commission as all men know ;" cf. Skrogges v. Coleshil (7559) Dyer 175a; below 528-530.

Footnote 2: Vol. v 432-433; on the whole subject see a paper by W. Harrison Moore, Columbia Law Rev. xiii 500-523.

_Activities and Constitutional position._

" The prince," says Sir Thomas Smith,3 " is the life, the head, and the authoritic of all things that be done in the realme of England ;" and the Council was the chief agency for carrying out his will. Its business was, it is true, to administer rather than to initiate, and, on all debatable matters, to advise rather than to decide.4 But all the routine work of government, whether relating to domestic or to foreign affairs, to industry and commerce, or to naval and military organization and equipment, passed through its hands. With many of these activities we are only indirectly concerned ; but with its domestic activities we are directly concerned, because they have had a large effect upon the development of English law public and private. The outstanding feature of this part of its work is the minute and careful manner in which it supervised the working of all the organs of government central and local. This involved the most intimate relations with the provincial Councils and the officials responsible for the local government, with the national church, with all parts of the judicial system, and with Parliament. A short survey of

## 1 New machinery of government 71

the nature of its relations with these different bodies will illustrate the extraordinary range of its activities in the field of domestic government, and will enable us to appreciate the commanding position which it occupied in the English Constitution of the sixteenth century.

(i) _The Council and Local Government._

The establishment of a central executive body, which possessed sufficient authority over the local governing bodies and officials to make its will prevail throughout the body politic, was the characteristic which most fundamentally differentiated the medieval from the modern state. This meant a change, not only in the form and character of the government, but also in its intensity. In the Middle Ages local government had, as we have seen, been generally carried on by self-governing communities, and by officials whom they appointed.1 The control exercised by the central government over such communities and officials was intermittent and irregular. Each unit had a large discretion as to the manner in which it should manage its own affairs. If statutes were passed or orders given by the legislature or the executive, they were often very general in their scope ; they often provided no machinery for carrying these general principles into effect ; and they were never accompanied by any continuous supervision of the bodies or officials who were entrusted with their enforcement.2 The central government might lay down general principles, but, as an executive, it was inefficient. There was much more executive force in the local governing bodies than in the central governing body. In this century these relations between the local and central government were to a large extent reversed. We have seen that, as the results of the movements of the Renaissance and the Reformation, the territorial state had become in theory supreme.3 If that supremacy was to be realized the state must adopt a different attitude to the system of local government; and the system of local government must be altered so as to fit in with the new position taken by the state. The central government must not only lay down general principles ; it must see that these principles were carried out in detail. It must not only make law ; it must see that it was obeyed. We shall see that in continental states the old system of local government was gradually superseded by an entirely different system. The self-governing communities were either replaced by new officials who were simply the delegates of the central government, or they were brought under the strict control and supervision of the central government.4 But we shall see that in

## 72 XVith Cent. At Home and Abroad

England there was never any sweeping change of this kind.1 We have seen that as early as the thirteenth century the self-governing communities were being disciplined and controlled by the central authorities, and by the rules of the common law;2 and that in the fourteenth and fifteenth centuries they were being further controlled, and, with respect to many of their powers, superseded by a new race of royal officials--the justices of the peace.3 These justices also were controlled by the crown, whose servants and appointees they were, and by the central courts of common law.4 Three centuries of control by the crown, the courts of common law, and the itinerant justices, had produced a system of local government which was quite capable of being adapted to the needs of the modern state. Though its units still retained much of the medieval independence and initiative, though it was still a system of self-government, it could be controlled, and, with some changes and additions, used by the modern state.5 What was most urgently needed was a change in the character of the control exercised by the central government. It must be a constant, a minute, and a regular control which should gradually enforce upon the units of the local government conformity to those newer and higher standards of government demanded by the modern state. This requisite was supplied by the labours of the Tudor Council. Hallam has remarked that Burghley's letters give us the impression that "England was managed as if it had been the household and estate of a nobleman under a strict and prying steward;" and that, " it was a main part of his system to keep alive in the English gentry a persuasion that his eye was upon then."6 But Burghley did not invent this system. It had been practised with equal thoroughness by Thomas Cromwell;7 and the records of the Council show that it was a characteristic of the Tudor government during the whole of this century. In fact the tedious and detailed work which it involved was the most important contribution of the Council to the formation of the modern English state.

Footnote 1: Below 163-165.

Footnote 2: Vol. i 72-75, 80, 87-89; vol. ii 396-400.

Footnote 3: Vol. i 286-288; below 134-137.

Footnote 4: Vol. i 297-298; Miss B. H. Putman, Enforcement of the Statutes of Labourers g2-97 has shown that the control exercised by the central courts over the Justices of Labourers has very close, vol. ii 462-463; below 77-80, 85-87.

Footnote 5: Below 165.

Footnote 7: See in L. and P. vii no. 1669 (1534) an elaborate report on the state of the government of Yorkshire prepared for Cromwell.

Footnote 8: Select Cases in the Star Chamber (S.S.) xxiiiii, xxiv--directions in 1527 as to forestalling, regrating, vagabonds, and unlawful games; ibid xlvi (1533) orders as to the meat trade: L. and P. (1538) xiii pt. 2 no. 177--directions to the justices as to

**NEW MACHINERY OF GOVERNMENT! 78**

sometimes of advice, exhortation, and rebuke, but generally of direct enquiry by itself or its agents into the facts of particular cases.of wrong-doing to which its attention had been called by the aggrieved party. The maintenance of this control involved direct relations and constant communication with all the officials and bodies entrusted with the work of local government. A glance at the character of these relations and communications with these various officials and bodies will show us the way in which the Council introduced a wholly new spirit into the local government of the country.

We have seen that in Wales and the Marches, in the north, and for a short period in the west \[1\] of England, subordinate Councils had been established.\[2\] They were responsible for the proper working of all the machinery of government, judicial and administrative; \[3\] and they were expected to carry out the orders maintaining the royal supremacy, obeying the king's ecclesiastical injunctions, the suppression of seditious rumours, and the correction of vagabonds; cf. ibid xvi no. 945 for a somewhat similar set of directions sent out in r54T; Dasent ii 47T (1547)--as to coast defence; iii 260 (1557)--a circular letter to the justices to put in force the laws as to vagabonds, watches, unlawful games, seditious rumours, and the like; xxiii 2zo, 2z1 (1592)--an order addressed to the Mayor of London as to the precautions to be taken to stop the plague; xxx 733-735 (1600)--as to enforcing orders against engrograss and regrotors of corn; Hamilton, Quarter Sessions from Elizabeth to Anne 78-80--a set o1 orders sent out in 1609 as to the enforcement both of statutes and of directions given by the king and Council; in r595 the Justices who lived near London were ordered to appear at court, and Puckering L,K. addressed them in an oration devised by the Queen, Hawarde, Les Reportes des Cases etc. 1g, 2o; sometimes these orders were supplemented by the legislature see e.g. r James I, c. 3T as to the regulations in time of plague.

${}^{1}$ For the establishment of this short-lived Council in r539 see L, and P. xiv i no. 743; for its history see Skeel, The Council of the West, R.H.S. Tr. 4th Series iv 62-80; its institution was due partly to the desire to give a local judicature to the West, but chiefly to the fear that the West might, like the North, rebel in consequence of the dissolution of the monasteries; and its instructions were modelled exactly on those of the Council of the North, Skeel, op. cit. 63-67; it acted during 1539 and r540, ibid 7o-72; but its authority seems soon to have been disregarded, L. and P, xv no. 180 (1540); and it may have come to an end about that date, Skeel, op. cit. 73-75; as Miss Skeel says, while the Councils of the North and of Wales were natural growths which had their roots in the past, and their background in the history of the Scottish and Welsh borders, the Council of the West was "an artificial imitative thing, and therefore soon succumbed to local opposition."

${}^{2}$ Vol. i 50a-503. It was difficult to enforce the king's rights strictly in these outlying portions of the kingdom, see L, and P. ii _ii_ no. 4547; ibid vii no. r669; ibid viii no. 513. A very good account of the condition of the government of the North in the Middle Ages, and of the gradual evolution of a Council of the North will be found in Reid, The King's Council in the North Pt. I.

${}^{3}$ The Vice-Admiral of North Wales wrote to the Earl of Bridgewater, the Lord President of the Council of the Marches, " Nothing within this your jurisdiction of Wales can be strange to your Lordship, for that your Lordship is the true centre where all our lines meet, and what is within the knowledge of any man of quality and understanding will be sure to find a way unto you," cited Skeel, op. cit. 274; in a case of r595, in which the justices of the peace were charged by the Council of the North with neglecting to regard a writ of supersedeas issued by the Council, much was made of its "experiment and regal jurisdiction," and its "absolute lingly authority,"' which gave it power, among other things, to guide inferior magistrates within the bounds of their duties, to call justices of the peace before

## 74 XVITH CENT. AT HOME AND ABROAD

of the Privy Council.${}^{1}$ Thus they could be ordered to hear cases,${}^{9}$ to rehear them,${}^{8}$ to stay proceedings,${}^{4}$ or to examine suspected persons.${}^{5}$ They helped the Privy Council to collect (forced loans,${}^{6}$ to supervise the due execution by the local authorities of their administrative duties,${}^{7}$ and to deal with complaints against officials civil ${}^{8}$ or military.${}^{9}$ They were, as Miss Skeel puts it, "convenient courts of first enquiry, especially in matters where his Majesty's service was specially concerned, or where the ordinary course of the law could not be safely followed."${}^{10}$ They were liable to admonition or rebuke if they misused their authority, or disobeyed the orders of the Privy Council. Thus in 1565 serious complaints were made against the Council of the North.${}^{11}$ In 1589 ${}^{12}$ and 1598 ${}^{13}$ the Privy Council was considering abuses in the procedure of the Council of Wales and Marches. In 1600 the President of the same Council was rebuked for disobedience to orders.${}^{14}$

them to render account of the state of their counties and their own doings, and to deal with their offences, J. Lister, West Riding Sessions Rolls, iii-vi, r-3; for charges given by the Council of the North to the Justices see S.P. Dom. Add. (1564) 550; ibid (1569) 84-S5; ibid (1572) 435-436; in 1599 the same Council issued an elaborate series of orders as to the administration of the new Poor Law, Lister op. cit. xxxi-xxxivi

${}^{1}$ Dasent xxx 429, 430 (1596)--an order to the Council of Wales to see to the erection of a bridge over the Severn.

${}^{a}$ Nicolas vii 43 (1540); 298 (1542); Dasent iii 464 (1551-1552); vii r56 (1564); xvii r24, r25 (1588); xviii 527, 528 (1592); xxv 21r, 24z (1595-1596); xxvii 360 (1597-1598).

${}^{3}$ Ibid xxviii 460 (1598)--an order to the Council of Wales to re-examine a case was withdrawn.

${}^{4}$ Ibid xi 55 (1578-1579); xxviii r6, r7 (1597)--a stay of process was withdrawn; ibid 345-346--informations before the Council of Wales which had been used to delay proceedings before the Star Chamber.

${}^{8}$ Ibid xi 425 (1580).

${}^{e}$ Ibid xi 13 (1542)--thanks to the President of the Council of the North for his dexterity in managing the loan; xxviii r76-177 (1597); cf, Skeel, op. cit. r45, r48, r56 for similar services in the seventeenth century in connection with loans and shipmoney.

${}^{7}$ This is a prominent feature in the instructions to both councils; for Wales see Skeel, op. cit. gr; for the North see Prothero, Documents 374 (8 37)--according to this clause (which occurs in earlier instructions, ibid 377 n. I) the Council was directed to call before them the justices in the shires within their commission, to enquire into the state of the shires, and " to take order for the reformation and amendment of things amiss ... and if any notable offance shall appear in any of the said justices of peace then the Lord President etc. shall take order by fine or otherwise for reformation thereof or else certify same to our Council in the Star Chamber and take bonds of the offenders for their appearance."

${}^{8}$ Dasent xxx zir, zz (1595-1596)--complaint against the mayor of Carmar-then; xxviii 360 (1597-1598)--the bailiffs of Shrewsbury and their right to toll; cf. Skeel, op. cit. 229-232 for more details as to the last-named case.

${}^{9}$ Dasent vii 358-359 (1570)--a complaint against certain officers for misusing soldiers is ordered to be heard by the Council of the North.

${}^{10}$ Skeel, op. cit. 148.

${}^{11}$ Dasent vii 231 (1565); but the complainant was sent to be tried by them; and, further complaints being made of their ill-usage, they were ordered to look carefully into the case, ibid 233, 30r.

${}^{12}$ Ibid xviii 339.

${}^{13}

**NEW MACHINERY OF GOVERNMENT 75**

The jurisdiction of these Councils was limited to certain parts of England and Wales. But all over the country the judges of assize and the Lord-Lieutenants acted as the agents and the informants of the Privy Council.

Though the principal duties of the judges of assize were judicial, they did not, either in this or in the following century, entirely lose touch with administrative work.\[1\] The Privy Council pointed out in 1589 that it belonged to the judges of assize to reform level practices which disturbed the common peace and quiet of the country.\[2\] They were described in 1607 as the Visitors of the kingdom ;\[3\] and they were expected both to receive directions from the Chancellor and report to him on their return.\[4\] It was their duty, not only to hear cases referred to them by the Privy Council,\[6\] but also to keep the justices of the peace up to their administrative duties.\[6\] In 1581 they were required to warn the justices of the peace for the counties of Northampton and Huntingdon to make an adequate rate to pay for the repairs to a bridge;\[7\] in 1592 they were instructed to examine into a charge of oppression made by the inhabitants of the parish of Evisham in Oxfordshire against the local justices;\[8\] in 1598 to admonish the justices to put in force the statutes made in the last Parliament, "concerning the reliefe of poorer people, maymed souliers, the punishment of vagabonds and roges, and mayntennance of tylladge;" in 1600 to warn the sheriffs not to keep a public table at Assizes and Sessions on account of the waste of money, and hindrance to the administration of justice which had thereby\*\*

1 Vol. i 272-273, 284.

2 Dasent xviii 242 ; ibid ix 20 (1575)--they were summoned to court to advise as to the execution of penal statutes; below 76 n. 3 ; cf. the powers given by the commission of over and terminer, vol. 1 App. XX11L c.

3 Hawarde, Les Reportes etc. 327; cf. ibid x87, the Lord Chancellor told the Judges in r604, " You must examine these things, and make reporte to His Majestie, and especially of the Justices of peace, yf any contemptuously be absente or neglycerate, to be removed with disgrace; and your Circuites you goe not onelye to sett upon Nisi Prius, but you must have espcicalle care of the peace of the lande, and of the peace of the Churches."

4 James I. said in r67, " It was an ancient custom that all the judges both immediately before going to the circuits, and immediately upon their return, repaired to the Lord Chancellor of England, both to receive what directions it should please the king by his mouth to give unto them, and also to give him an account of their labours, who was to acquaint the king therewith," Works 563.

5 See e.g. Dasent xi 7a (1578-1579) ; xii x96 (1580); Acts of the Privy Council (1613-1674) 349--a case referred to them to get it ended by arbitration.

$ S.P. Dom. Eliza. Add. (1598-1607) 519, cclxxvi, 72--r8 articles drawn up by Coke as to matters which the constables of hundreds were to present at the assizes; in r608 the judges were described as, " the Visitors for tooe times in the year, not for justice alone, but for the peaceable gouernemente of the country put in great trust by his Majestie, and to make an accounte to him which he will expecte from them," Hawarde, Les Reportes etc. 368.

7 Dasent xiii 77, 78.

$ Ibid xviii 513, 516.

$ Ibid xxviii 388 ; Leonard, Early History of Poor Relief r79.

XVITH CENT. AT HOME AND ABROADarisen ; \[1\] and in 1629 to consult with the local officials as to the regulation of the corn trade.\[2\] Naturally the judges, so encouraged, frequently made orders on their own responsibility, as to the manner in which the local government should be conducted.\[3\]

The Lord-Lieutenants made their first appearance in Henry VIII.'s reign. They were appointed by the crown to control the military forces of the country.\[4\] Their existence and military authority were first recognized by a statute of Edward VI.'s reign.\[5\] Till 1585 they were temporary officers, appointed in times of stress ; \[6\] but by 1585 they were fast becoming permanent officials.\[7\] Being appointed from among the greater nobility, they were in close touch with the court ; and, like other members of the nobility and the large landowners,\[8\] they were expected to assist the Privy Council by giving it information as to the state of their counties and as to the doings of the justices.\[9\] The President of the Council of Wales

1 Dasent xxx 783-785--the Council are informed that, " In theis later yeares sondry Sherives some for ostentacion and some others to make themselves strong amongst the freeholders to sway causes at their will in the country to the overthrow of justice, have put themselves in the tymes of the Assizes or Sessions ... into excessive and extraordinary expences ; " the result is that, " mem of good ability and service do shunne that place, and that ... there is such type spent by the Justices of the Peace and the Grand Jury, by means of their bancquettings and excesses, as the service is thereby much hindered."

### 2.2 C. J. Cox, Three Centuries of Derbyshire Annals ii 189.

3 Hamilton, Quarter Sessions from Elizabeth to Anne 81--orders of 1612 and 1613 as to execution of statutes imposing penalties for not going to church; 82--orders as to the execution of the law as to ale houses, the poor, and rogues ; 175--orders of 1627 to apprehend idle and lewd people, and to suppress unnecessary ale houses; cf. Oflley Wakeman, Shropshire County Records xii, xiii; Lambard, Office of Constables etc. 49 seqq. for instructions by the judges as to certain points connected with the administration of the Poor Law.

1 In Cromwell's remembrances for r539, L., and P. xiv $i$ no. 400, we see the idea of having " in every share a person whom the king can best trust, to whom as much of the shire as the king shall appoint may resort," also lieutenants and leaders for the army--but as yet the two are separate; see Prothero, Documents cxx; Webb, Local Government, The Parish and the County z86, 287; Beard, The Office of Justice of the Peace ii2, II3.

4 Edward VI. c. 5 SS 13, "If the king shall by his letters patent make any Lieutenant in any county or counties of this realm for the suppressing of any commotion reblition or unlawful assembly, that then as well all the Justices of the Peace of any such county and the sherriffs ... as all mayors bailiffs and other head officers and all inhabitants ... shall upon declaration of the said letters patent and request made, be bound to give attendance upon the same Lieutenant to suppress any commotion rebellion or unlawful assembly ; " cf. r Mary st. a c. za ; r Blizabeth c. r6.

5 Scott Thomson, Lords-Lieutenants in the 16th Century, chaps. ii and iii; C. J. Cox, Three Centuries of Derbyshire Annals i 21, 22, citing Camden, Elizabeth.

6 The form of their commission was then fixed, Scott Thomson, op. cit. 59 ; their assistants had by 1570 acquired the name of Deputy-Lieutenants, ibid 60-72; cf. Cox, op. cit. i 68.

7 See e.g. L. and P. iv _ii_ nos. 4276, 4300, 4301; ibid viii nos. iOI4, 1030; ibid xii $i$ no. 815.

8 S.P. Dom. Add. (1547-1565) 495--the Earl of Arundel, when appointed Lord-Lieutenant of Sussex and Surrey, probably in 1559, was instructed to enforce the

## 7 New machinery of government 77

and the Marches was usually Lord-Lieutenant of all the counties of Wales \[1\]; and in England the Lord-Lieutenants were often Privy Councillors, and acted as the agents of the Privy Council in all military matters, in the collection of loans, in the super-intendence and appointment of local officials, in the gathering and forwarding information as to state of public opinion in their districts, and as to the manner in which the justices and other officials were fulfilling their duties \[2\].

These subordinate Councils, the judges of assize, and the Lord-Lieutenants were as much a part of the machinery of central as of local government. They were therefore more directly the agents of the Privy Council than such purely local authorities of the counties and the boroughs as justices of the peace, sheriffs, and mayors. But over all the local officials the Privy Council kept an equally strict supervision, either directly \[3\] or through its more immediate agents. It was always ready to investigate complaints of negligence or oppression made by private persons \[4\]. It encouraged the officials themselves to watch and report the doings of their fellows \[6\]. It expected to be kept informed as to the state of their counties \[6\]. It was always ready

**78 XVITH CENT. AT HOME AND ABROAD**

to rebuke them individually \[1\] or collectively \[2\] for the neglect, or to praise them for the performance of their judicial or administrative duties.\[3\] And, no doubt, the effectiveness of their supervision was materially helped by the fact that in the commission for each county some Privy Councillors were always included.\[4\] But the nature of this control will be best appreciated from a glance at one or two illustrations taken from the innumerable cases which appear upon the records of the Council.

Over the choice of justices the Council exercised some supervision \[5\]-it directed, for instance, the removal of names from the commission for recusancy \[6\] and other causes.\[7\] It took some trouble to direct them as to the manner in which they should organize themselves for judicial work \[8\] and for county business.\[9\] It gave them directions as to the enforcement of statutes and as to other duties \[10\]; and once it arranged for a conference with the Norfolk Justices in London upon the question of the failure of the county to perform its duties.\[11\] On several occasions the county justices were ordered to leave London and attend to their duties in their own counties.\[12\] A very similar control was exercised over the mayors and justices of the boroughs. Directions as to the choice of the mayor and of other officials were frequently given.\[13\] Disputed elections were brought before the

## New machinery of government 79

Council.1 On one occasion it was asked to devise a new procedure for the election of mayor.2 Abuses of authority were promptly dealt with. The town of Poole found that it could not levy new import duties as it pleased,3 and Shrewsbury that it could not levy unreasonable market tolls.4 London found that it could not go on electing non-residents to municipal office with a view to enforcing the fine for not serving.5 The circulation of a seditious libel on the mayor of Norwich called forth pertinent enquiries as to the manner in which the town had provided for the relief of the poor.6 The acts and omissions of sheriffs and their deputies,7 of a clerk of the peace,8 of coroners,9 and even of constables 10 were enquired into and rebuked.

On the other hand, the Council was not slow to vindicate the authority of these local authorities. "Let all men hereby take heede," it was said in 1603 in the Star Chamber, "how they complayne in wordes against any magistrate, for they are gods; and he must have verge good matter that will goe aboute to Conuynce (sc.) them, for feare he overthrowe not himselfe "11 Those who impeded the justices or the sheriffs in the execution of their duties were dealt with summarily by the Council, or by one of its branches in the North or in Wales.12

It is not surprising to find that the Council regularly assumed jurisdiction to hear disputes either (1) between these different bodies, or (2) between the different members of these bodies. (1) In 1600 the Council sat at the lord mayor's house in London mayor of Rye; ix i z9, i z576--Hereford and Lynn; ibid z57--election of constables at Maidstone; x r68 (r577-r578)--a request to the corporation of London to grant an office to a certain person.

1 Dasent x 27-28 (r577)--election of mayor at Dover; xiii 273-275 (r581)--of a recorder at Theftford.

3 Ibid x 314 (r576)--Dover. $ Ibid viii 375 (r575). $ Ibid xvii 360 (r597-r598). $ Ibid xvii 4 (r588-r589). $ Ibid xxy 88-89 (r595). $ Ibid v r18 (r555)--an unauthorized stay of execution; x 48 (r577)--a charge of partiality; xi 55 (r578-r579)--shcirffined for unlawful stay of execution; xviii 239, 243 (r589)--non-execution of writs; xix i z09 (r590)--sharp practice; ibid 470 --wrongful imprisonment by an under-sheriff.

8 L. and P. xi no. r58.

9 Dasent ix 4 (r575)--a direction to return a jury--xxii 238-240 (r591-r592) --rebuke for partial conduct at an inquest.

10 Ibid xiii 29 (r581)--negligence in not apprehending certain persons; xxxii 352 (r601)--complaint of fraud against a constable; Star Chamber Cases (C.S.) r36 (r633).

11 Hawarde, Les Reportes etc. r77; see ibid 71--a person who had successfully used a constable for acts done under the instruction of a justice of the peace was punished. Perhaps the most striking illustration of this point of view is to be found in the case of Falkland v. Montmorris and others (r631) Select Cases in the Star Chamber (C.S.) r.

12 Nicolas vii 33, 40, 43, 45 (r540)--an affray against a justice for disclosing matters to the Council; Dasent vii 775 (r564)--a letter to the Council of the North as to a riot raised against a sheriff to prevent the execution of a writ of redisseism; xix 297--a case of resistance to the execution of process by a sheriff; Hawarde, Les Reportes etc. r04, r82-r86.

## 80 Xvith Cent. At Home and Abroad

to hear a dispute between the mayor and merchants of London, and the mayor and merchants of Newcastle, which turned upon the right of the town of Newcastle to charge certain dues on lead and coal.1 The same year the Council of the North was directed to hear a complaint of the infringement of market rights of Scarborough by the establishment of an illegal market at Seamer.2 In 1573-1574 we have an account of the beginning of the long dispute with the common lawyers as to the geographical limits of the jurisdiction of the Council of Wales and the Marches.3 The question whether the city and county of Worcester were included was raised by one Wilde, and "certain lawyers ;" and it was decided by the Council that they were included.4 In 1600 the question whether Berwick was outside the jurisdiction of the Council of the North was before the Privy Council.5 (2) In 1591 the Council was arbitrating between the justices of Norfolk and Suffolk and a deputy-lieutenant of Norfolk, who was thought to have acted unfairly in the execution of the commission for the repair of highways.6 In 1592 it was considering a case of two justices of the county of Northampton, who, having attacked one another in open sessions, had been bound over to keep the peace by their fellows.7 In 1597-1598 it was listening to charges of malversation against the town of Newcastle.8

Footnote 1: Desent xxx 425-429, 453: $Vol. i510-512.

Footnote 2: Desent viii 200, 204, 217, 234, 236-238.

Footnote 3: Desent xxi 426, 333, 367; see Acts of the Privy Council (1613-161

## New machinery of government 81

### The Council and the National Church

Equal in importance to the task of supervising and controlling the local government, and intimately bound up with it, was the task of supervising and controlling ecclesiastical affairs. Ever since the Reformation had been begun, the domestic and foreign policy of the state had been in a large measure determined by its attitude to religious controversies. These controversies were the burning questions of the day ; and any grave mistake in the ecclesiastical policy pursued would have imperilled the peace, and perhaps even the existence of the state.1 The religious settlement of Henry VIII. and Elizabeth had connected church with state in an intimate union.2 This intimate union had added a whole series of new powers and duties to the state, which devolved partly upon the existing machinery of ecclesiastical courts and officials, and partly upon the existing machinery of secular government.3 But, as in other departments of government, it was the Council upon whom devolved the duty of seeing that all these various courts and officials, ecclesiastical and secular, did their appointed work.4 Thus it gave directions to the bishops as to the exercise of their powers as to dealings with heretics, and as to many other duties.5 It consulted with them as to the state of their dioceses,6 and as to the best manner of enforcing the law.7 It issued orders and directions to the court of High

## 82 Xvith, Cent. At Home and Abroad

Commission as to the hearing of cases \[1\]; it even listened to complaints against it \[2\]; and it treated the other ecclesiastical courts in a similar manner \[8\]. It was in constant communication with the sheriffs, justices of the peace, and judges of the . Asize as to the discovery and detention of recusants, and other offenders against the statutes relating to religion, whether Protestant or Catholic \[4\]. It issued directions as to the examination of such persons \[5\]; it took steps to verify the confessions exotorted from them \[6\]; and it gave directions for their trial \[7\]. Any serious disputes between ecclesiastical dignitaries generally came before it \[8\]; and it would even interfere to protect an ordinary person if it thought that he was unduly troubled by his neighbours \[9\]. It did not hesitate to suspend ecclesiastical dignitaries if it thought that they had been guilty of illegality or irregularity \[10\]; or to entertain applications from clergy who had been suspended by their ecclesiastical superiors \[11\]. It took upon itself to imprison for ecclesiastical offences, or to release on bail or otherwise those who had been imprisoned by other courts or officials \[12\].

## 8 New machinery of government 88

The due regulation of ecclesiastical affairs was thus a large item in the multifarious business of the Council. But, on the other hand, the fact that the church was incorporated with the state enabled the Council to make use of the ecclesiastical organization to help the government of the state. Thus it could, as we have seen, ask the bishops for their advice on ecclesiastical matters \[1\]. It could get information from them as to the religious state of their dioceses ; and such information was necessary to enable it to appoint justices of the peace who were favourably disposed to the new order \[2\]. The higher clergy could, as justices, take some part in the enforcement of statutes which protected the established church, and in the other work of local government. But the greatest contribution which the ecclesiastical organization made to the government of the state is to be found in the parochial system of the Church. We shall see that the parish was adopted by the state as the rating and administrative unit of the new system of poor relief, and that it gradually became, and still remains the rating unit upon which much of the system of local government is based \[3\].

In these various ways the work of the Council in thus supervising and directing the justices of the peace, the bishops, and the ecclesiastical courts, gradually effected the actual incorporation of church and state upon the terms and conditions laid down by the statutes of Henry VIII. and Elizabeth.

(iii) _The Council and the judicial System._

Supervision of the machinery of local and ecclesiastical government naturally connects itself with supervision of the judicial machinery of the state. The local government was still, to a large extent, conducted by courts acting through judicial forms, and controlled by the judges of assize and the central courts of common law \[4\]. The sessions of the justices of the peace were the most important part of the machinery by which that government was conducted ; and, as we have seen, by direct orders and constant supervision the Council made that machinery do its appointed work \[5\]. But obviously the judges of assize and

## 84 XVITH CENT. AT HOME AND ABROAD

the courts of common law must be likewise supervised by the Council, if their control of the justices of the peace, and if their extensive civil and criminal jurisdiction in the spheres of public and private law were to be so exercised as to aid the Council in imposing on the country the new standards of efficient government which were needed to secure its safety and prosperity. Moreover this supervision was essential for a different but allied reason.

We have seen that many new courts and councils had either come into existence or had enlarged their jurisdiction during this period. Though the system of common law jurisdiction still stood its ground, the Council itself and the Star Chamber, the Councils of the North and of Wales, the Chancery, the court of Requests, and the Admiralty were encroaching upon its sphere.1 An umpire was needed between these rival courts and clashing jurisdictions. The Council and the Star Chamber claimed to hold this position ; and in the sixteenth century this claim was conceded. "By the wisdom of its supereminent authority," says Lambard, "all other courts of law and justice that we have are both the more surely supported, and the more easily kept and managed." 2 Thus the Council was in the habit of issuing orders to the judges of the different courts as to the conduct of cases.3 It stopped,4 delayed,6 and expedited 6 actions, gave directions as to their hearing,7 issued injunctions, and gave directions as to the issue of prerogative and other writs.8 In one instance it dictated the conditions under which judgment was to be given by the court of Admiralty ; 9 and in another it deliberately overrode itsdecision.1 It rebuked courts which in its opinion had permitted irregularities in their procedure.2 It maintained a strict control over the findings of juries;3 and, in a proper case, it claimed to be able to convict and punish, even though punishment had been inflicted by the justices of the peace.4 Its ruling determined conflicts of jurisdiction between rival courts and Councils.5

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.

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

Footnote 5: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 6: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 7: The author is grateful to the anonymous referee for his comments on the manuscript.

Footnote 8: The author is grateful to the anonymous referee for his comments on the manuscript.

This large control exercised by the Council over the judicial system of the country, coupled with the equally large control which it exercised over all bodies and officials entrusted with governmental functions, was tending to introduce a conception of the legal relations of the crown and its servants to the law and to the subject very different from that which had been held in the Middle Ages. In the Middle Ages the common law was, as we have seen, regarded as the law by which all--rulers and subjects alike--were governed.6 But these activities of the Council tended to foster the continental idea that the crown and its servants were outside the ordinary law, that the servants of the crown were governed by special courts and a special law, and that in their dealings with the subject they need not necessarily be bound by the common law. Complaints against servants of the central or local government from the highest to the lowest, whether made by the crown or a subject, were entertained by the Council.7 In a case in which it had been proved that purveyors had wrongfully taken timber, the culprits were punished, and it was said that the king was dis-honoured if his subjects were thus oppressed.8 The servants of

### 86 Xvith Cent. At Home and Abroad

the state had little difficulty in persuading the Council to interfere on their behalf if they were unjustly accused,1 if they were wronged, or if they found themselves in legal difficulties.\*\*

Footnote 1: The author is grateful to the anonymous referee for the support of the 1990s and the 1991s of the

## 6 New machinery of government 87

though the Council professed to desire to uphold the law in ordinary cases,1 it would, if necessary, make the ordinary law yield to what it considered to be state necessity.2 Thus, we find it laid down in the Star Chamber that, "'exorbitante offences are not subject to an ordinayre course of law ; "3 and that in case of necessity no precedent is needed as, "' they can make an order according to the necessity and nature of the thinge itself."4 A striking instance of the application of these principles is a case in which the Council directed a gaoler to disobey a writ of habeas corpus, and to make a return that the commitment was by the queen's special command.8 It is clear that the ideas which underlie these activities lead directly to the growth of a system of administrative law, and that in all questions of doubtful jurisdiction the Council was claiming to exercise the powers of a _tribunal des conffits_. It is equally clear that the powers thus assumed were gradually undermining the legal securities for the liberty of the subject. Those who were bold enough to complain or criticize soon found themselves committed to prison for an indefinite period ; 6 and they were lucky if they escaped with an abject apology and a recantation of their political errors.7

Footnote 1: The author is grateful to the anonymous referee for the support of the Council for the

## 88 Xvith Cent. At Home and Abroad

quite as efficient a security for its maintenance as they afterwards became. But to understand the reasons for this we must consider the views held by the lawyers and statesmen of this century as to the constitutional position of Parliament in relation to the Council.

1. _The Council and Parliament._ With the sphere of Parliament's activity under the Tudors, and with the effects of that activity upon the development of the English state and of English law, I shall deal later.1 At this point I shall consider only its relations to the crown and the Council. All through this period the crown and Council exercised a large control over it. As with the local government, so with Parliament, this control increased its efficiency, and thus played no small part in fitting it to fill the great position in the state to which it attained in the following period.

Footnote 1: Below 174-196. ${}^{\\circ}$Governance of England c. xv.

Just as Fortescue had suggested the plan of governing England through a reformed Council, so he foreshadowed the relations which should exist between this Council and the Parliament. The Council was to deliberate and propose, and Parliament was to discuss their proposals--"Wherethrough the Parliaments shall do more good in a month to the mending of the law, than they shall now do in a year, if the amending thereof be not debated, and by such council riped to their hands."2 In this sentence we have a substantially correct description of the relations between the crown and Council on the one side, and Parliament on the other, during the greater part of this period.

Footnote 2: _The Council and Parliament are the same as the Council and the Council._ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council.\_ The Council is the same as the Council and the Council.\_ The Council is the same as the Council.\_ The Council is the same as the Council.

**NEW MACHINERY OF GOVERNMENT 89**

constitutional law of the English state, and transformed its ecclesiastical law, which created the poor law and made important changes in the criminal law--came from above.1\*\*

Parliament was not expected to busy itself with any large questions of policy, whether relating to domestic or foreign affairs, which were not submitted to it. If such questions were submitted to it, if its advice were asked upon any matter of foreign policy with a view to a money grant, or upon any matter of domestic policy with a view to some new scheme of legislation, or upon commercial matters, then it might discuss and criticize, amend, reject, or approve.2 It was not expected to initiate these discussions on its own account.3 When the rebels in the Pilgrimage of Grace demanded a " free Parliament" in which no minister of the crown had a place,4 they had in view a Parliament which would be free to criticize on its own initiative the whole policy of the recent religious changes, the whole conduct of the government by the Council, and the character and the shortcomings of the king's ministers. To such freedom as this Parliament never attained during the Tudor period. The Tudor sovereigns always maintained that, though Parliament might amend or reject their proposals, the initiative rested with themselves.6

Footnote 1: Redlich, Procedure of the House of Commons i 5o, " The great legislative changes of the era of Henry VIII. and Elizabeth were entirely the fruit of plans elaborated in the Council; 1" see below 96-97 for some illustrations of the manner in which the Council went to work.

Footnote 2: Below go n. 3. Its advice on commercial matters was sometimes asked, see e.g. L. and P. ii ii nos. 3204, 4076.

Footnote 3: Thus in 158o the Lord Chancellor specially admonished the Speaker, "that the House of Commons should not deal or intermeddle with any matters touching her Majestic Person, or Estate, or Church Government," D'Ewes 269; the Speaker was sent for in 1592-1593 and the same views were expressed by the Queen herself, ibid 478, 479:

4 L. and P. xi no. 1782 (r6); cf. no. 1246 (12) and (15).

8 1bid xx _ii_ no. 1030 (1545)--several Acts were lost in the Commons, and it is noted that the king did not much mind.

This comes out very clearly in Elizabeth's reign, because in that reign there was a growing opposition in the House of Commons, which claimed that Parliament could discuss freely any of the "griefs of the commonwealth," whether submitted to it by the crown or not.6 The queen's marriage, the succession to the throne, and the government of the church, were three of the chief topics which the House of Commons made constant attempts to discuss;7 and as the discussion of these topics was expressly prohibited, the queen naturally regarded such attempts as

**90 XVITH CENT. AT HOME AND ABROAD**

deliberate encroachments by the Parliament on the sphere of her prerogative and of the executive government.1${}^{\\

## 6 New machinery of government 91

be free. In 1536 Henry VIII. "came in among the burgesses in the Parliament and delivered them a bill which he desired them to weigh in conscience, and not to pass it because he gave it in, but to see if it be for the common weal of his subjects ;" 1 and in that reign, when Parliament did not as a rule attempt to discuss matters not submitted to it, there is no instance of any one being avowedly 2 punished for words spoken in Parliament. Indeed there is positive evidence that the privilege of freedom of discussion was well recognized.3 In fact the existence of free discussion in Parliament was an essential part of the Tudor scheme of government. Henry VIII., as we have seen,4 recognized that a free Parliamentary discussion of his legislative proposals was the best guide as to the extent to which it was safe to pursue a given line of policy ; and this fact was equally clearly recognized both by Mary and Elizabeth. Moreover the powers or the prejudices of Parliament might occasionally be used as a diplomatic weapon, or as an excuse for the refusal of inconvenient requests.5 But if Parliament was to be used in this way its privileges and its dignity must be upheld. They were upheld all through this period.6 "We be informed by our judges," said Henry VIII. in _Ferrers's Case_, "that we at no time stand so highly in our Estate royal as in the time of Parliament, wherein we as Head and you as Members are conjoined and knit together into one body political, so as whatsoever offense or injury (during that time) is offered to the meunest member of the House, is to be judged as done

1 L. and P. x no. 46z.

2 Ibid xiv i no. 1752 (1539) there is a hint that members of Parliament who had made motions against the legislation as to the Sacrament might be questioned as to who had inspired these motions ; ibid no. 1708 it is reported that a too freely spoken member had been severely dealt with by the king's party ; in 1540 the French Ambassador reports that certain merchants' goods had been confiscated because they had popish chaplains, but that the real cause was their speeches in Parliament the year before, L. and P. xvi no. 697.

3 Ibid ii no. 17314, the bishops in Standish's case say that words spoken in convocation should be as privileged as words spoken in Parliament--this clearly shows that the privilege was fully recognized ; when a member moved that Henry should take back his wife (Catherine), Henry argued with the House, but did not attempt to silence the particular member, L. and P. v no. 989 (1532); Cromwell (Merriman i 313) gives a graphic account of the miscellaneous topics discussed during the "xvii hole weekes " during which he "intured a paralyament " in 1533; and cf. L. and P. v no. 177 (1531) for an account of complaints as to the imposts and exactions ; ibid vii no. 856, p. 326 (1535) for opposition to the new treason Act, and the insertion by the commons of the word " maliciously."

4 Above 35-36.

5 L. and P. iv _cxxii-cxxiii_, _diiv_ ; ibid nos. 3705, p. 1404, 6733; ibid v nos. 45, 832, 886; vii no. 232, p. 94; xi no. 780 (2); xvi no. 182; cf. Select Cases in the Star Chamber (S.S.) i _xx_.

6 Strode's Case (1532), and the Act 4 Henry VIII., c. 8 passed in consequence of it ; Ferrers's Case (1543) Hallam, C.H. i 268, 269; the dignity of the House was most amply recognized in Arthur Hall's submission in 1581, which was enrolled among the records of the Privy Council, Dasent xiii 8-17.

## 92 Xvith Cent. At Home and Abroad

against our person, and the whole Court of Parliament." 1 It was only when men like Strickland,2 Cope,3 or the Wentworths, attempted to overstep the proper sphere of Parliamentary activity that we get interferences with the freedom of debate, which seem to us to be cases of the breach of Parliamentary privilege, because we have long been accustomed to a constitution in which Parliament holds a place very different to that which it held in the sixteenth century.

Footnote 1: Parl, Hist, i 555, cited McIlwain, The High Court of Parliament 232.

Footnote 2: The Treasurer explained that Strickland was "in no sort stayed for any word or speech by him in that place offered; but for the exhibiting of a bill into the House against the prerogative of the Queen; " the modern view as to the extent of freedom of speech is contained in Yelverton's speech, D'Ewes 175, 176; in Paul Wentworth's protest in r566, ibid r28; and in Peter Wentworth's protests in r575 (ibid 242) and in r587 (bove 179).

Footnote 3: Ibid 447; for a further illustration of the Court view as to the extent of the privilege of freedom of speech see ibid z84.

Footnote 4: Pike, History of the House of Lords 349-351--in the reign of Edward III, the normal number of the temporal peers was 50, and at the beginning of Henry VII.'s reign it was 29; at the end of Elizabeth's reign it was 59, Firth, History of the House of Lords during the Civil War r; at the dissolution of the monasteries 29 spiritual lords disappeared from the House, and ever since the temporal peers have enjoyed a constantly increasing majority over the spiritual lords; for a full tabular list of the changes in the peagre during this period, see the Forty-seventh Report of the Deputy Keeper of the Public Records 79-96; but, as Stubbs says, Lectures on Medieval and Modern History 407, though the effects of the Wars of the Roses on the personality of the peagre were great, their effects on its political status and influence were greater--"it was attenuated in power and prestige rather than in numbers."

Footnote 5: L. and P. v no. 879 for their opposition to the Annates Bill; ibid no. 737 we are told that the bishop of Durham was not summoned because he was "one of the Queen's champions; " ibid vii no. 121.

Footnote 6: Hallam, C.H. i 313-315--in r507, when the commons requested a conference with the lords on a petition of the merchants praying remedy for grievances against Spain, the Earl of Northampton said that the Commons had a private and local wisdom merely, and that therefore it is not fitting that they should examine into secrets of state; " and the commons seem to have acquiesced in this rather contemptuous treatment; " in r566 the Commons asked the Lords' advice as to the proper course to pursue on the death of the Speaker, D'Ewes g5, r20, r27; in r58-r589 the Queen stopped in the upper house two bills:relatingdirectly influence its members by his presence in the House and otherwise.1 It was far more ready to act with the king and Council than was the House of Commons,2 and far less sensitive to supposed breaches of its privileges.3 It was not till the following century that an opposition to the crown arose in that House.4 The House of Commons was more difficult to manage; but both over its composition and over its business the crown and the Council succeeded in obtaining a large influence without impairing its representative character. Of the means which they employed to secure this influence I must now say something.

I shall deal in the first place with the control exercised over the composition of the House; and in the second place with the control exercised over its business.

(_a_) _The Composition of the House of Commons._ In the Middle Ages service in Parliament, like other kinds of public service, was regarded rather as a burdensome duty than as a coveted privilege;5 and in the sixteenth century this idea still survived.6 Indeed in this, as in many other respects, this century is the century of transition between the mediaeval and the modern idea. During the greater part of this century the mediaeval idea as to service in Parliament was predominant. Members of Parliament still expected to be paid their wages;7 and if they could manage to to purveyors and pleading in the Exchequer, ibid 440; in 1592-1593 the House of Lords attempted to dictate the amount of a subsidy, but this was resented, ibid 483, 485-487.

Footnote 5: The House of Lords and the Council agreed to drastic reforms in the land law which would have improved the king's revenue from feudal incidents in 1529, but it was not till 1535 that the Commons could be induced to consent to the modified proposals of the Statute of Uses, below 450-457; Cromwell was trying for four years to get the Commons to consent to the Statute of Proclanations, Mermian, Life of Cromwell i z3, z4.

Footnote 6: The House of Lords and the Council agreed to drastic reforms in the United law which would have improved the king's revenue from feudal incidents in 1529, but it was not till 1535 that the Commons could be induced to consent to the modified proposals of the Statute of Uses, below 450-457; Cromwell was trying for four years to get the Commons to consent to the Statute of Proclanations, Mermian, Life of Cromwell i z3, z4.

Footnote 7: 1bid iv isi no. 5962; Porritt, op. cit. r53; in r586 Arthur Hall brought actions against his constituents for his wages; their defence was that he had been negligent in his attendance; and in the end a committee of the House persuaded Hall to remit his claims, D'Ewes 417, 418. Apparently in the county of Cambridge the money for knights of the shire had come to be charged on a certain manor, L, and P. xviii i no. 66 ; 34, 35 Henry VIII. c 24.

**94 XVITH CENT. AT HOME AND ABROAD**

**cut short their attendance, and so save their constituents a few weeks' pay, their action was appreciated.1 It was necessary in 1513 to pass an Act against this practice ;2 but in spite of it, the Council found it necessary in 1559 to write to the sheriffs to admonish members who had departed with leave to return to their duties.3 At the end of the century there are signs that the mediaeval is giving place to the modern idea.4 But it is clear that the prevalence of the mediaeval idea during the greater part of the century very materially helped to give the crown and Council a large influence over the composition of Parliament--the burgesses could be told that, if they elected the persons whom they were instructed to elect, their representatives would cost them nothing.5 Something could also be done, as Henry VIII1. found, by granting leave of absence to members of the opposition;6 but most could be done by direct nomination of court candidates and royal servants, by instructions and recommendations to the sheriffs and others responsible for the conduct of the elections, and by interference in the elections themselves. Of all these kinds of influence there is much evidence all through this period; and when, in the latter half of the century, the growing value attached to a seat in Parliament rendered them somewhat less efficacious, the crown and Council could fall back on their influence over the mobility, and the creation of rotten boroughs.**

Footnote 67

\*\*NEW MACHINERY OF GOVERNMENT 95 and that he actively canvassed for votes and influence.\[1\] But, though there are some later instances, the system of direct nomination gave way in the latter half of the century to more indirect methods. While professing in theory to maintain the principle that the election of members should be free,\[2\] the Council frequently sent instructions to the sheriffs as to the conduct of elections,\[3\] and both as to the particular candidates\[4\] and as to the kind of persons whom they wished to see elected.\[5\] The minute acquaintance which, as we have seen, it possessed of local conditions in all parts of the country enabled it to send the proper instructions to different parts of the country. A person who, among other offences, was bold enough to seek election as one of the knights of the shire for Derbyshire without consulting the Lord-Lieutenant, was summoned before the Star Chamber and reduced to make a humble apology.\[6\] The Council interfered not only to secure peace and order at elections, but also in many various kinds of controversy to which elections sometimes gave rise. Thus in i547 it adjudicated in the case of a disputed election at Sandwich.\[7\] In i586 it suggested that a new election should be held in Norfolk owing to the "undorderly " proceedings of the sheriff.\[8\] But it is clear from this case that the House was already beginning to assert its claim to adjudicate on such cases.\[9\] Nevertheless in i60i the Council rebuked the sheriffs of Warwick and Hampshire for suspicious delays in the conduct of the elections;\[10\] and in i55i and i558 it had directed the issue of fresh writs to fill up the places of members deceased.\[11\] In some places the territorial influence of the mobility and large landowners could be used by the Council.\[13\] In Henry VIII.'s reign many of the mobility were deeply in debt to the crown,\[1\]

${}^{1}$ L. and P. vi no. 31 (7533).

${}^{2}$ Dasent II 518, 519 (1547); xoxii 27I (160r); cf. xiv 242 (1586), "'Thoughe her Majestic hath no meaning to impeache any waye they free election, yet she thincheth some regard should have been had to suche letters as were sent from hence by her dyretions."

${}^{3}$ Ibid iv 344 (1553); vii 39, 4I (1558-1559); xoxii 248, 27I (160i).

${}^{4}$ Ibid xiv 227 (1586)--a recommendation to elect their old members; xxxii 257 (160r).

${}^{5}$ Ibid xxvii 36I:(1597)--a warning to choose fit persons; in I553 circular letters were addressed to the sheriffs informing them that when the Council or any of them recommend men of learning and wisdom, their recommendations are to be followed,\[1\] Hallam i 46; Porritt, The Unreferred House of Commons, i 373.

${}^{6}$ Ibid xiv 256-257 (1593).

${}^{7}$ Ibid ii 536-537.

${}^{8}$ Ibid xiv 24I.

${}^{9}$ D'Ewes 397-399; Tanner, Constitutional Documents 595-597; cf. Hallam,\[1\] C.H. i 274-276.

${}^{10}$ Dasent xxii 24-248, 27I.

${}^{11}$ Ibid iii 400; iv 434.

${}^{12}$ The Duke of Norfolk had boroughs in r529, L. and P. iv iii App. no. 238; ibid x no. 8I6; he could also influence the elections in the counties of Nottingham and Derby, ibid no. 5993.

## 96 Xvith Cent. At Home and Abroad

so that they could hardly refuse to comply with his requests.1 When, in the latter part of the century, less reliance could be placed on this means of influence," the rotten boroughs began to appear. Edward VI. and Elizabeth created many. The largest number of them were in Cornwall, no doubt because the influence of the crown over the Duchy was paramount.3 But the creation of rotten boroughs to secure the influence of the crown was a hazardous expedient. Some of them seem to have fallen under the influence of the neighbouring landowners almost immediately; 4 and it is clear that if ever a widespread opposition to the crown should arise they could be used against it. But during this period this difficulty did not arise. The government was on the whole popular; and though the growth of an opposition in the House of Commons at the close of the period made it more difficult for the Council to control the composition of the House, these various expedients were, as a general rule, successful in securing a majority sufficiently large to enable it to control the course of business. To the manner in which this control of the course of business was exercised we must now turn.

### The Control exercised over the business of the House of Commons.

We have seen that all through this period the initiative was with the Crown. It is probable that the legislative proposals introduced into Parliament were first discussed by the Council, and drafted under its supervision and that of the king.5 Among Cromwell's papers there are frequent "rememberances" of Acts which he intends to introduce into Parliament6--three

**NEW MACHINERY OF GOVERNMENT 97**

famous examples are the statute of Proclamations,' the treason bills of I530-I531, I531-I532, and the Treason Act of 1534,2 and the statute as to Annates;3 and it is by no means impossible that he had a large share in drafting the famous statute of Uses.4 In I533 we have a long account of " things to be moved on the king's behalf onto his attorney, to be put afterwards in order and determination by the learned counsel against the next assembly of his Parliament."6 Later in the century we find the Council appointing, before the meeting of Parliament, a committee or committees to consider the legislative proposals which were to be introduced. In I558 the committee consisted of the serjeants at law, the Attorney and Solicitor-General, Sir Thomas Smith, and Mr. Goodrick.6 In I575-I576 the Chief Justices " and other Justices appointed to conferre for Parliament causes" were directed to consider " a certain bill and articles exhibited by one Peter Blackborowe against the clothiers of the counties of Wiltshire and Somersett, appron pretence of a statute _go Phitiippi et Mariae_, to consider what is possible and convenient to be donne for the benifitte of the realme, and what imperfection to be amended in the Statute, that the same may be considered of at the next Parliament, and to advertise their Lordships."7 In I588 there was an extensive project of reforming the statute law; and the Council appointed committees from each of the four Inns of Court to make suggestions and report weekly to the Chief Justices, and the Attorney and the Solicitor-General.8

Footnote 1: The author is grateful to the referees for the support of the University of Chicago, where the author

## 98 Xvith Cent. At Home and Abroad

office under the crown.1His duty was quite as much to represent the views of the government to the House,2 as to represent the views of the House to the crown.3He explained bills to the House; he withdrew bills which had been introduced contrary to the royal commands; and during the greater part of this period he determined the order in which they were brought before the House.4At the end of this period, however, the House began to assert a right to override the decision of the Speaker 6--the movement is already beginning which will gradually make the Speaker less and less the servant of the crown, and more and more the servant of the House.

In the second place, a certain number of Privy Councilors were always members of the House.6They could thus explain and justify the measures of the government,7make concessions to an opposition that seemed likely to prevail,8 or avert defeat by withdrawing measures to which the sense of the House was generally \_f_too, L. and P. iii _ii no._ 3267--in this letter Wolsey tells the king that it is usual to give \_f_too additional to the Speaker, and he recommends that it be given to More for his " faithful diligence " in the Parliament of 1523; Coke in his personal notes in Harl. MS, 6687 printed Coll. Top, and Gen, vi 108-122 relates (p. r15) that he was _chosen_ Speaker 28 Jan. 1592-1593, that he was elected Knight of the shire for Norfolk on 15 Feb, following, and was _elected_ Speaker on 19 Feb.

Footnote 1: This Coke was Solicitor-General and Speaker in r593, and Sir Edward Phelips, who was King's Serjeant, was Speaker from r604-r6r, Redlich, op. cit. ii 158.

Footnote 2: In r58-in r566 the Speaker told the House that the queen had commanded that there should be no further debate on the succession to the throne; see Strype, Annals of the Redramion iv 124 for some instructions for the Speaker's speech drawn up by Burleigh in Feb. 1592.

Footnote 3: It is clear that he was also " the mouth " of the House of Commons, D'Ewes ir4--speech of Onslow 1566.

Footnote 4: D'Ewes 677 (160r).

Footnote 5: Their presence is mentioned in r533, L. and P. iii _ii_ no. 3024; the presence of the Secretary of State is mentioned in r536, L. and P. xi no. 34; and that of the controller of the Household in r539, L. and P. xiv $i$ no. r53; in r540 Henry VIII, provided that the two secretaries he appointed should sit on alternate weeks in the House of Commons and the House of Lords, Tanner, Constitutional Documents z07; Elsynge, Manner of Holding Parliaments 171 (cited Redlich, op. cit. i 39 n. r), is thus probably right in ascribing the introduction of privy councillors and king's servants into the House to Wolsey. Elizabeth in r593 claimed that a position of superiority should be accorded to privy councillors who were members--" She misliketh " said the Lord Keper, " that such irreverence was showed towards Privy Councillors, who were not to be accounted as common knights and burgesses of the House that are councillors but during Parliament; whereas the others are standing councillors, and for their wisdom and great service are called to the Council of the state," D'Ewes 466; but this claim was not conceded, Redlich, op. cit. i 49, 50.

$i$ Ibid ii 91, 92; thus in r566 they tried to stop a debate on a motion to ask the queen to settle the succession, D'Ewes 124; and in r592-1593 they resisted a proposal to release members imprisoned by the queen, ibid 497.

8 in r548 the members for Coventry and Lynn made such determined opposition to an Act for testing the lands of the guilds in the crown that, " siche of his Highnes Counsaile as were of the same House," feared that the whole Act would be rejected; they therefore bought off the opposition by a promise that the king would reconnvey the lands to them, Dasent ii 163-195; cf. Porter's Case (1593) i Co. Rep. at p. 124b where it is said that provisoes in the Acts z3 Henry VIII, c. 4 and r Edward VI, c. 14 were inserted " rather to satisfy some burgeses in the Parliament, who were ignorant in the laws, than for any necessity."

## 6 New machinery of government 99

Clearly opposed.1 Thus in 1571 the committal of Strickland gave rise to a debate upon this infringement of privilege. During a speech from Fleetwood in defence of the government, "the Council whispered together, and thereupon the Speaker moved that the House should make stay of any further consultation thereon."2 And, when the Commons were beginning to assert claims to be the sole judges of their privileges and to resent outside interference, the fact that some privy councillors were also members of Parliament was found to be useful. They could do without offence in their capacity of members what they could not have done as councillors. Peter Wentworth in 1575-1576 was ready to give an explanation to the persons appointed to receive it, only when they demanded it in their capacity of " committees" of the House, and not in their capacity of councillors.4

Footnote 1: The term "preclamation " seems to have superseded the term "ordinance " in the fifteenth century; there does not seem to be any material difference between them.

In these circumstances it is not surprising to find that, though Parliament was recognized as the legislative and taxing authority in the state, king and Council upon occasions took upon themselves to exercise both these functions.

_Legislation._ We have seen that by the latter part of the fifteenth century legislative acts which possessed the authority of Parliament were clearly distinct from legislative acts which did not possess this authority.5 Statutes were quite distinct from ordinances or proclamations.6 But though the king could not make a statute he had not lost all his legislative power. He still possessed the power to make ordinances or proclamations.7

## 100 XVITH CENT. AT HOME AND ABROAD

In fact this subordinate legislative power was not peculiar to the king. It belonged to many of those older communities--manors, hundreds, boroughs, and even parishes--all of which in the Middle Ages performed various governmental functions \[1\]. The fact that Brook could class together cases relating to the by-laws of these communities and cases relating to royal proclamations \[2\], is very significant of the effect which the rise of Parliament had upon the king's once extensive power to legislate. It is clear proof that in this period the royal proclamation was regarded as being like a by-law in this essential respect that it was subordinate to the statute or the common law \[3\]. In fact it may be that royal proclamations were inferior to by-laws in respect of their permanence, for there is some authority which seems to show that royal proclamations were only in force during the life of the sovereign who issued them \[4\]. But though royal proclamations may have been comparable to by-laws in respect of their subordination to the statute or the common law, they were of vastly greater importance. The power to issue them was a prerogative jealously guarded. It was a grave offence for any subject to assume to exercise it, as Serjeant Knightly found when, being appointed executor, he attempted to anticipate a nineteenth century statute by issuing a proclamation that the creditors of his testator should send in their claims against the estate \[5\]. But the extent of the prerogative was by no means clearly ascertained.

Henry VIII. could generally induce his Parliaments to pass any legislative proposals which he deemed to be necessary ; but his successors did not find their Parliaments quite so docile. It is not surprising therefore to find that at the latter part of this period a larger authority was claimed for royal proclamations \[6\].

Footnote 1: The _"_"_" is the _"_"_ of the _"_"

### 102 XVITH CENT. AT HOME AND ABROAD

individual and of the various parts of the body politic; and this clearly necessitated an extensive use of royal proclamations. "When the common state or wealth of the people require it," it was said in the Star Chamber, "the king's proclamation bindes as a lawe and neede not staye a Parliamente."1

Footnote 1: **I.T. 588**:

Thus the question of the authority possessed by proclamations was a matter which needed some definite settlement. On the one hand no one desired to give the king power to overturn by proclamation the existing machinery of law and government, and to alter radically the rights and duties of the subject. Bishop Gardiner, in a letter to the Protector Somerset,2 relates that Cromwell once asked him in the presence of Henry VIII, whether the maxim _quod principi plaauit_ did not apply to the king of England, and that he lad replied to this effect--"I had read indeed of kings that had their wills always received for a law, but I told him the form of his reign, to make the laws his will was more sure and quiet, and by this form cf government ye be established, and it is agreeable with the nature of your people. If ye begin a new manner of policy, how it will frame no man can tell, and how this frameth ye can tell, and I would never advise your grace to leave a certain for an uncertain." It is probable that this fairly represented the average public opinion of the day; for we shall see that all the political writers of the period recognize the constitutional character of the English monarchy.3 On the other hand, it was clearly necessary that the king's proclamations upon many matters should be obeyed. The existing law was obscure; and the inconvenience of this obscurity was not likely to be overlooked by a king who was remarkable for his political prescience. Henry VIII.'s statute of Proclamations 4 was an extremely able attempt by king and Parliament 5 to deal finally with the problem in a manner which should commend itself to the public opinion of the day.

Footnote 1: **I was debated by Parliament for fifteen days, L, and P, xiv $i$ no. II58; the first bill sent down from the Lords was rejected by the Commons, who sent up another bill which, with some amendments, became law, E. R. Adair, E.H.R, xxvii 35.**

The statute begins by stating clearly the nature of the problem to be solved. The king has issued many proclamations, " concerning divers and sundry articles of Christ's religion," and also " concerning the advancement of his commonwealth and the good quiet of his people;" but these proclamations have been disobeyed by those " who do not consider what a king by his royal power may do." Considering " that sudden causes and occasions

# New Machinery of Government 108

fortune many times which do require speedy remedies, and that by abiding for a Parliament in the meantime might happen great prejudices to ensue to the realm ; and weighing also that his Majesty (which by the kingly and regal power given him by God may do many things in such cases) should not be driven to extend the liberty and supremacy of his legal power and dignity by wilfulness of Howard subjects ;" it is enacted that the king with the advice of his Council, or the greater part of them, may issue proclamations which shall have the force of an Act of Parliament.1 These proclamations are to be publicly proclaimed throughout the realm in manner provided by the Act.2 Those who are accused of breaking them can be punished by certain members of the Council, sitting as a board, who are named in the Act.3 Power is given to the king to direct the justices of the peace to see to the observance of such proclamations as he shall see fit.4 It was not, however, intended to give the king and Council power to do anything they pleased by proclamation. The second section of the Act contains a clause amply safeguarding both the common law, existing Acts of Parliament, and rights of property, and prohibiting the penalty of death for the breach of a proclamation.5 The safeguards with which the Act was accompanied, and the use which Henry made of it,6 prevent us from seeing in it anything like a "lex regia." Rather it was an attempt to deal with a constitutional problem in a manner satisfactory to the king and the subject.7 The king no doubt got his large power to legislate by proclamation recognized and put upon a firm basis : but his proclamations must have the consent of his Council ; and the range of subjects with which they could deal was considerably limited.8

Footnote 1: 31 Henry VIII, c. 8 SS 1. 8 SS 4; 34, 35 Henry VIII. c. 23; see Select Cases in the Star Chamber (S.S.) ii 225, 277 for two cases heard under this Act.

Footnote 2: 31 Henry VIII, c. 8 SS 9. 8 SS 10. 8 SS 11. 8 SS 12. 8 SS 13. 8 SS 14. 8 SS 14. 8 SS 15. 8 SS 16. 8 SS 17. Provided always that the words .

## 104 Xvith Cent. At Home and Abroad

The Act was repealed in the first year of the following reign ; \[1\] and this meant that the king's power to legislate by proclamation again relapsed into its old obscurity. Proclamations were still very necessary. But though they were somewhat more extensively used by Henry's successors than by Henry himself, no large changes in the law were made by their means. The extent to which they could be legally used was never finally settled in this century, because the Tudors made so tactful a use of their powers that no demand for the settlement of this question was raised.\[2\] Here as in other branches of our public law the diplomatic obscurity which they courted was a serious stumbling block to their successors.

_Taxation._ Over matters fiscal the control of the crown and Council was far less extensive. Even Henry VIII, knew that he could not disregard the authority of Parliament in this department of government.\[3\] But though the crown and Council did not dare to impose any general tax upon the nation, they managed, indirectly, to assume considerable powers over the raising of money. We have seen that the Council gave directions as to the raising of contributions by the local authorities.\[4\] It sometimes seems to have been almost admitted by some that the crown could compel its more wealthy \[6\] subjects to contribute to benevolences or loans.\[6\] The amounts demanded from the persons selected to contribute were assessed just as if a regular tax had been imposed ; \[7\] and the Council regularly summoned

${}^{1}$ **r** Edward VI. c. \*\*r2 $\\lx@sectionsign$ 4.

${}^{2}$ **For some account of the contents of the Tudor Proclamations see below 297-307.**

${}^{3}$ **See L. and P. iii _ii_ no. 3024 for the debate in the Parliament of r523 ; in T545, alluding to the financial straits of the government, Wirothesley writes to Paget, " In the case of a** \*\*Prorogation I see not how we shall live without some present help," L. and P. xx _ii_ no. 272.

${}^{4}$ **Above 75, 78 n. ro.**

${}^{8}$ **That only the more wealthy were to be asked to lend was specially provided in T542, L. and P. xvii no. 194.**

${}^{6}$ \*\*Strope, Annals of the Reformation iii App. no. 58 cities a speech in Parliament in r589, in which a member is reported as saying, " If it were a charge imposed upon us by Her Majesty's commandment, or a demand proceeding from Her Majesty by way of request . there is not one among us all either so disobedient a subject in regard of our duty, or so unthankful a man in respect of the benefits which by her we have received who would not . willingly submit himself thereunto . for it is continuously in the mouths of us all that our lands goods and houses are at the prince's disposing. And it agreeth very well with that position of the civil law which saiith _quod omnia Regis sunt_ ;"--but this speech was made almost in a time of national emergency, just after the defeat of the Armada ; a speech of Serjeant Heyle's in r607 somewhat to this effect met with small favour in the House, D'Ewes 653. Such loans were sometimes justified on the ground that they saved the expense of a Parliament, L. and P. xx $i$ no. 17; or that they did not give the commons, L. and P. xix no. 659--a view in which Parliament apparently acquiesed when it released the king from his debts, 2x Henry VIII. c. \*\*r2 , 35 Henry VIII. c. **r2 , 12;** nor did the lenders really expect to see their money back, L. and P. xvii no 280.

${}^{7}$ **See e.g. L. and P. iii _ii_ nos. 2483-2486.**

## 10 New machinery of government 105

before it those who refused to contribute,1 and occasionally those who offered an inadequate sum,2 It levied ship money in a national emergency, even from inland towns.3 Nor was any objection made when, in pursuance of its powers to regulate foreign affairs and therefore foreign trade, it made readjustments of the customs revenue, which resulted in an increase of the duties payable.4 When, in the following period, the absolute and exclusive control of Parliament over all taxation, direct and indirect, was maintained and enforced by medieval precedents, these precedents of the Tudor period were used by the royalist lawyers with considerable effect.

106 XVITH CENT. AT HOME AND ABROAD

subject. Thus, in the sphere of local government, the control and criticism of the Council meant the substitution of the discretion of the central government for the discretion of the older officials and the older self-governing communities.1 In the sphere of church government the large and vague powers of the ecclesiastical officials and courts were regulated by the royal supremacy, and thus brought under the control of the Council.2 In the judicial sphere the Council claimed to hold the position of umpire between rival courts and clashing jurisdictions, and either to call before itself any case which appeared to affect the state, or, if it was heard by the ordinary courts, to give directions as to its hearing; 3 and this was in effect coming to mean that the Council, when it deemed it to be necessary for the safety of the state, could override the ordinary law.4 Finally, it both controlled the business of Parliament and exercised a subordinate but concurrent legislative and taxing authority.5

Footnote 1: Above 72-73: Above 81-83. Above 84-87. Above 86. Above 86. Above 87. Above 86. Thus in 1589 the Council laid it down that martial law could not be exercised, "where the quiet course of her Majestie's laws maie be exercised," Dasent xviii 175; cf. on the same subject Camden, Annales s.a. 1573; similarly the wholesale fining or imprisonment of jurors for finding verdicts contrary to the evidence, though habitually practised, was condemned by many, including Sir Th. Smith, vol. i 343-344-344-344-344-344-344-344-344-344-344-344-344-344-344-344-344-344-344-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-3444-34444-34444-34444-34444-34444-34444-34444-34444-34444-34444-344444-344444-3

## 1 Old and New Machinery 107

**century.1** And, when we are reading the history of the seventeenth century, we shall do well to remember that it would be a conclusion especially easy to be drawn by a foreign king who had had little opportunity of looking at the English state from any other point of view. That such a conclusion would nevertheless be fundamentally erroneous we shall see when we have compared the relations existing between the old institutions and the new in continental states with the relations existing between them in England.

_The Relation of the Old to the New_

_Machinery of Government_

In spite of foreign wars and internal disorders the fourteenth and fifteenth centuries were a period of legal and constitutional growth. In many countries in Western Europe the legal renaissance of the thirteenth century had helped forward the cause of legal development and orderly government by placing central courts, administering a more general and a better system of law, by the side of the old courts and the old customary rules. In France the Parlement of Paris became the general court of law for the royal domain; and, as happened in the case of the king's court in England, the increase in its business necessitated a division into distinct tribunals. Just as England got its Parliament in the last years of the thirteenth century, so France got its Estates General, and Spain got its Cortes. We shall see that the development of the common law in these centuries is paralleled on the continent by a development of Roman law, which took the form of an adaptation of its rules to meet the needs of the growing state.2

Footnote 1: La Republique Bk, i c, 8 p. 103.

Footnote 2: Brissaud, op. cit, 879, 886.

Footnote 3: Eamein, op. cit, 469-471; for technical details as to the methods of the royal courts--_cas royaux_, _prevention_, and _appl_--see ibid 471-484; for the analogous process in England see vol. i 87-89.

In all these countries this generalized law, these centralized courts, and these representative assemblies, were obliged to come to terms with the feudal baronage. The larger feudal principalities of France organized themselves after the fashion of the kingdom. They had their supreme courts, formed on the model of the Parlement of Paris, which in many cases became provincial Parlements when they were annexed to the royal domain. They had also their provincial estates.4 The private jurisdictions of the smaller nobility still existed; and in spite of the constant encroachments of the central courts, and the growth of royal control over the manner in which justice was administered, they exercised, even in the sixteenth century, a considerable influence over local government.5 Thus the new institutions of this century wereXVITH CENT. AT HOME AND ABROAD everywhere obliged to contend with many competitors which represented older principles of government, and older legal ideas of many different dates. We can trace the resistance of the older order in two main directions--firstly in the local government, and secondly in the representative assemblies and the established central courts of law. Under these two heads 1 shall trace the history of the relation of the old to the new machinery of government on the continent and in England.

I. Local Government I shall deal in the first place with local government, because the manner in which it was organized in the sixteenth century has affected the whole of the public law of the state from that day to this. We shall see that the continental organization was fundamentally different from the English; and that this difference goes far to account, not only for the unique position which the English Parliament and courts of common law obtained in this century, but also for the unique position of the English king and the unique character of the English state.

Throughout western Europe the local government was the stronghold of feudal ideas and tendencies; and the mastery of these ideas and tendencies was a condition precedent to the growth of a strong centralized government. The condition of England in the fifteenth century shows us that the mere establishment of centralized institutions was not enough.1 So long as the noble houses retained any part of their old authority, they were a danger to the state. In France the revolt of the Duke of Bourbon in 1523,2 and in Castile the revolt of the communeros in 1520-15213 are striking illustrations; while in Germany the clashing interests and the practical independence of the knights and the prices rendered futile all attempts at national union.4

Both in France and Spain the powers of the great nobles were gradually curtailed by the growing strength of the central government. They ceased to take any active share in the conduct of the state except as the servants of the crown; and only dignified titles, honourable and honorary offices, and social privileges, remained as memorials of their former state. The lesser nobles attached themselves to the court and made their careers in the king's service.6 Even in Germany the days of true feudal independence were numbered. The princely houses consolidated their dominions, and developed into smaller or larger states.6 As

## 10 Old and New Machinery 109

we have seen, in some countries, and more especially in France, this process was delayed by the Reformation and the ensuing religious wars.\[1\] But it was not completely stopped : and, by the end of the century, it was clear that feudal principles had ceased to influence even the local government of the state.

A new system of local government had been gradually growing up in France in the course of the sixteenth century ; and, like the French system of central government, it was imitated by many European states in this and the following century.\[2\] The main features of this new system were--(i) the conduct of the government by an official bureaucracy composed of the agents and servants of the Conseil du roi ; (ii) the presence of a standing army upon which this official bureaucracy could in the last resort rely ; and (iii) a consequent extension of the system of administrative law to all the activities of the local government.

(i) The growth of an official bureaucracy was gradual. Before the beginning of the sixteenth century the powers of the medieval baillis and sensechals were, like the powers of the English sheriffs,\[8\] being sub-divided and entrusted to new officials. Their financial powers were handed over to receivers, their judicial powers to their lieutenants, and the growth of a standing army deprived them of their military powers.\[4\] But further control was needed ; and this was found at first in the growth of the powers of the royal governors. They were originally military officers chosen from the nobility, generally for life. As representatives of the king their functions expanded at the expense of the older authorities, especially during the religious wars at the close of the century.\[5\] But they proved to be too independent for the centralized government of the seventeenth century ;\[6\] and the intendants (appointed generally from the Masters of Requests\[7\]) first inspected, then acted as special commissioners, and finally supplanted all the other agents of the central government in the provinces.\[8\] The victory of 1661, which gave the Conseil du roi absolute control of the central government, gave the intendants supreme control over the local government.\[9\] The older offices survived ; but they were merely honourable sinecures.\[10\] " All

## 110 XVITH CENT. AT HOME AND ABROAD

### France," said Law, the financier to the Marquis d'Argenson, " is governed by thirty intendants."1

Footnote 1: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

2
Footnote 2: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

3
Footnote 3: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

4
Footnote 4: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

5
Footnote 5: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

6
Footnote 6: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

7
Footnote 7: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

8
Footnote 9: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

9
Footnote 10: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

11
Footnote 11: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

12
Footnote 12: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

13
Footnote 14: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

15
Footnote 16: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

17
Footnote 18: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

19
Footnote 19: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

10
Footnote 10: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

11
Footnote 11: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

12
Footnote 13: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

14
Footnote 15: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

17
Footnote 17: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

18
Footnote 19: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

10
Footnote 10: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

11
Footnote 11: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

12
Footnote 13: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

14
Footnote 15: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

17
Footnote 17: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

18
Footnote 19: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

19
Footnote 19: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

12
Footnote 19: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

13
Footnote 19: The author is a member of the National Science Foundation, which is operated by the Association of Universities for Research in Astronomy, Inc., under cooperative agreement with the National Science Foundation.

**OLD AND NEW MACHINERY 111**

**and handed over to the administrative courts of the intendants, from whom appeal lay only to the Conseil du roi.1 This large jurisdiction was not acquired till after i661. But it was in the sixteenth century that its foundations were laid in the constantly increasing control exercised by the Conseil du roi over the officials responsible for the conduct of the local government.**

**Thus on the continent the medieval system of local government gave place to a highly centralized bureaucratic regime. With the disappearance of the medieval system there disappeared also all those ideas of the supremacy of the law, and of local self-government which were inherent in it. The people at large had nothing to do with the government except to obey its orders. Criticism was not tolerated; and they gradually ceased to take an intelligent interest in its conduct. When the burden came to be too heavy the only resource was revolution.**

\*\*The development of English local government in this century presents some analogies to that of the continent. There is the same growth of central control, and there are the germs of a system of administrative law. But it presents far greater contrasts. On the continent the progressive increase of this central control is the dominating note; and, by the end of the century, it is clear that the older officials are fast being superseded by the permanent agents of the central government. In England, on the other hand, there is no such progressive increase in the central control. The relative importance of some of the older officials is changed--some increase, and others decrease. But none are wholly superseded by the new officials and the new institutions of this century. On the contrary, the new is blended with the old in a manner which is quite unique. The result was a set of extraordinarily complex and unsystematic institutions. In them could be seen the political ideas and the legal rules of many different periods. The sheriff, the coroner, and the county and hundred courts, represented the communities, the communal officials, and the royal centralizing influences of the twelith and thirteenth centuries. The manorial jurisdiction, the court leet, and other franchises, represented feudal ideas as modified by the royal and centralizing influences of the same period. The justices of the peace and the justices of Assize represented the further strengthening of royal control which was established over the local authorities in the fourteenth and fifteenth centuries. The new sphere allotted to the parish represented the new partnership between church and state which had been established by theXVITH CENT. AT HOME AND ABROAD

**Reformation.** The Lord-Lieutenants, and the active interference by the Council and its subordinate branches, represented the centralizing tendencies of this century.

An attempt to deal fully with this mass of institutions and officials would be out of place in a history of English law. But something must be said about the leading characteristics of the system of local government which resulted therefrom, because the shape which English public law took in the sixteenth and seventeenth centuries is largely due to them. In the sixteenth century they directly affected the position of the common law courts, and indirectly the position of Parliament. In the seventeenth century they helped to determine in some degree the form, and in a large degree the result, of the constitutional controversies with the Stuart kings. These characteristics can be best explained by looking at the various elements contained in the local government of this century in chronological order. But before discussing these various elements I shall say a few words as to the sources of our information. In this, as in other branches of the law, the literature of the subject gives us valuable sidelights upon the nature of the legal developments which were taking place.

At the end of the fifteenth century there were numerous short tracts circulating in manuscript which contained information as to various aspects of local government.1 During the first half of the sixteenth century they were printed by many of the law publishers of the period.2 Sometimes they were printed separately ; but generally two or more were bound together in a single volume. The contents of these volumes will show us the kind of information which a book on the local government law of the earlier half of the sixteenth century might be expected to contain. Let us

## 11 Old and New Machinery

### take as an instance a book published by Berthelet in 1544.

Its contents, the title page tells us, are, " First the boke for a Justice of Peace. The boke that teacheth to keep a court baron or a lete. The boke teaching to keep a court hundred. The boke called returna brevium. The boke called Carta fedi, containing the form of dedes, releases, indentures, obligations, acquytannces, letters of atturney, letters of permutation, testamentes, and other thynges. And the boke of the ordinance to be observed by the officers of the kynges Exheker, for fees takying." Sometimes these books contain only two or three of these tracts ; \[1\] but this is the typical collection.

On the whole it was a useful handbook. The first part is always the largest, and under it is grouped such information as to older officials, such as sheriffs, coroners, and constables, as related to local government law. The part dealing with the court baron and the court leet was useful to lawyers who then,\[2\] as in the days of Roger North, found court keeping instructive \[8\] and profitable ; \[4\] and for their benefit much miscellaneous information bearing upon matters which might come before the court was given. We should note that the somewhat minute instructions which are given as to process and pleading show that the detailed rules of the common law upon these matters were, in theory, followed.\[5\] The part dealing with the hundred court was useful to those who advised lords who had this franchise ; but it was meant more especially to serve the purposes of those whose business was in a borough which possessed it. All the books suppose that the hundred court in question is held at Colchester.\[6\]

### See above 112 n. 2.

James Whitelock, the future judge (vol. v 343) was for a short time Steward of St. John's College, Oxford, and kept their courts, Liber Fanelicus (C.S.) 15; in the preface to R. W. Rastell's book published in 1534 (above 112 n. 2) it is said that the rules contained in the tracts on the courts baron, leet, or hundred, " are daily looked on or at least daily followed in all such courts which be as who sath innumerable."

Lives of the Norths (Jessopp's Ed.) iii ro6-ro8--North points out that the holding of the court leet is a good introduction to the understanding of crown law, and " gives any student a handle to inform himself of the ancient constitution and nature of the English government and jurisdictions. The Copyhold court instructs him in titles .\[The holding of\] the Court Baron . wherein the process is after the model of the ancient common law . . fits a man to be a practiser even at the Common Pleas bar."

T Ibid ro8, " My brother recommended me to my Lord Grey of Werke for keeping of his courts at Epping by the Forest in Essex. This court was very considerable to me, for it was held on Thursday in Whitsun week every year. I went in the morning early, and returned at night with seven, eight, or nine pounds clear profit."

Modus tenendi curiam baronis (Berthelet 1544), notes at the end on process and pleading ; this was a characteristic of this court in the thirteenth century, vol. ii 398-399.

Some of these cases are of a mercantile character--in the first case it is a merchant who is suing ; there is a precedent of a certificate that one J.R. is a burgess and so free of toll throughout England, and of letters to Middleburg in Holland as to a debt due to burgeses.

VOL. IV.--8

### Xvith Cent. At Home and Abroad

The Returna Brevium was essential, because the whole of the local government was carried on under judicial forms, and by means of writs original or judicial ; and the ordinance of the Exchequer was equally essential, because most of the officers of the local government were obliged to render an account at the Exchequer of fines, fees, and amerements.1 The Carta fedi has no direct connection with local government, but some of the forms contained in it, and some of the notes which occasionally accompany some of these forms, are connected with the side of the business of the court baron which was concerned with estate management ; and it is for this reason that it was included in these collections. It was for a similar reason that books on surveying3 were sometimes also included by the publishers as companion and supplemental tracts.3

Footnote 1: Vol. ii 399.

Footnote 2: Fitzherbert's Tract, first published by Pynson in 1526 and re-published by Berthelet in 1539 is an example ; it contains both legal and agricultural information, and is really a connecting-link between the law books which deal with the memorial courts, and the books upon rural economy ; we have seen (vol. ii 322, 370) that Fleta's book contained information of this kind, borrowed from Walter of Henley ; Fitzherbert also wrote a "Boke of Husbandrie," and his reading at Gray's Inn was on the "Extenta Manerti"--one of the statutes of uncertain date, vol. ii 222-223 and App. III.

Footnote 3: Thus Berthelet says at the beginning of Fitzherbert's tract, "When I had printed the boke longyng to a Justice of the Peace, together with other small bokes very necessary, I betbethout upon this boke of Surveyenge, compyled sometyme by Master Fitzherbade . how well it agreeth with the argument of other small bokes, as Court Baron, Court Hundred, and Chartulary, I went in hande and printed it in the same volume that the other be, to bynde them al together, and have amended it in many places."

4 Hearnshaw, Lect Jurisdiction in England 34-36--as he says at p. 34 "the volumes, although some of them contain emphatic expressions of originality, are almost identical in form and substance with one another, and would all seem to be mere transcripts of one common source ; " their early medieval character is illustrated by the fact that we get, e.g. in the Modus Tenendi curaim baronis published by J. Rastell in 1530 (?), an enquiry into "a tenant giving lands in m

## 11 Old and New Machinery

1.1ment law could not be dealt with in these small books. Changes in the law demanded a new literary treatment. Thus we find that in the later books some of these tracts drop out. We do not hear much more of the manner of holding a hundred court. The hundred court with which these tracts had dealt was, as we have seen, in a borough ; \[1\] and the borough franchises were so divergent that a single book could hardly be written about them. Moreover the officials of any given borough had all the information they wanted in the borough records.\[2\] The Carta fedi disappears from the literature of local government--it never had much connection with it.\[3\] But some of the other tracts expanded into independent books ; and, by the end of the century, these books group themselves mainly into two divisions. In the first place, there are the books dealing with the justices of the peace and the older officials of the county. In the second place there are the books dealing with the court baron and the court leet. In this second division the Returna Brevium was incorporated or retained as a useful appendix. We shall now see that the history of these two groups of books tells us something of the history of the law.

(1) _The books dealing with the justices of the peace and the older officials of the county._

Anthony Fitzherbert, the author of the Grand Abridgment \[4\] and of the tracts on husbandry and surveying which I have just mentioned,\[5\] was perhaps also the author of the earliest tract on this subject. He was born in 1470, and became a member of Gray's Inn ; but we do not know the date of his admission. He became serjeant-at-law in 1510, king's serjeant in 1516, a judge of the court of Common Pleas in 1521-1522. In 1524 he served on a commission sent to Ireland to attempt the pacification of that country, and in 1529 was one of the commissioners to hear causes in Chancery in place of Wolsey. He took an active part in Wolsey's impeachment, against whom he had a personal cause of quarrel--Wolsey had rebuked him because certain bills, complaining of extortion by the ordinaries, had been found before him. He sat on the commission which condemned the Carthusian monks for treason, and on that which condemned Fisher and More. He died in 1538.\[6\]

His tract on the justices of the peace was published anonymously in 1510; and from it many other similar tracts were

## 116 XVITH CENT. AT HOME AND ABROAD

copied.1 In 1538, the year of his death, he published under his own name another work on the same subject.3 It is larger than the older tracts, but, as we might expect, it follows their form closely. It begins with an exposition of the justices' commission,3 and goes on to set out the articles of the justices' charge to the jury. Having reached the point at which the jury are to enquire into the misdeeds of sheriffs and other officers of the county,4 a long digression is made to explain the duties of these officials.5 A return then is made to the articles of the charge "--those which depend on specific statutes are grouped separately, and those which are mentioned in the commission 7 are distinguished from those which are not mentioned,8 A very much enlarged edition of Fitzherbert was issued by Crompton9 in 1583.10 He added to it a number of learned notes upon matters connected with the jurisdiction of the justices, as to the kinds of sessions at which the justices exercised this jurisdiction, and as to the powers of one, two, three, or more justices. He separated his account of the older officials of the county from his account of the justices.

Footnote 10: It was reprinted r584, 1593, 1594, 1606, and 1677.

Footnote 11: In E.H.R. ix 395-37o Miss McArthur gives good reasons for her conjecture that this earliest anonymous tract is Fitzherbert's.

Footnote 12: In E.H.R. ix 395-37o Miss McArthur gives good reasons for her conjecture that this earliest anonymous tract is Fitzherbert's.

Footnote 13: Published by Redman under the title "L'office et atuctoryte des Justyces de pees complye et extrayte hors des aun cient liures sibien del comen ley come dez estatuz que moultes autres choses necessaires a scauoir nouelment imprime," E.H.R. ix 395; an English edition was published by Petyt in 1547; my references are to the 1538 Edition.

SSff. i:-xixb. 4 f. xxiv.

Footnote 14: If. xxiv.

Footnote 15: If. ixv:-xxiii; in the 1547 Ed. this digression is relegated to the end of the book.

- ff. liiib-loxviii. 7 ff. lxxviiib-lxxxix.

- ff. lx:-xixb-clxx.

- Crompton was of Brasenose College, Oxford, and a reader and bencher of the Middle Temple; it is said that he refused to be made a serjeant that he might devote himself to literary pursuits; he died in 1599, Dict. Nat. Biog.; his chief work was a treatise on the jurisdiction of Courts, as to this see below 212.

16: It was reprinted r584, 1593, 1594, 1606, and 1677.

## 11 Old and New Machinery 117

(i) _Books on the Justices of the Peace._

The want of an up-to-date and systematic treatise on this subject was supplied by that learned antiquary, lawyer, and justice, William Lambard.

Lambard was born in 1536,1 His father was John Lambard, draper, alderman, and sheriff of the City of London. His mother was the daughter and heires of William Horn of London ; and if her family included among its ancestors that Andrew Horn, who was chamberlain of the City of London, historian, and possibly the author wholly or partially of the Mirror of Justices,2 we may fairly suppose that Lambard got his taste for antiquarian and legal research from his mother's family. He was called to the bar by Lincoln's Inn in 1567,3 and became a bencher of that Society in 1578-1579.4 In the same year he was made justice of the peace for Kent. In 1592 he became a master in Chancery, in 1597 keeper of the Rolls and the House of the Rolls in Chancery Lane, and in 1601 keeper of the records in the Tower.5 He died in 1601. He was an historian as well as a lawyer and an antiquary ; and his history of the county of Kent is the first of our county histories. But it is his legal writings with which we are here concerned. These writings, which he christened with anglicized Greek names, were the Archaeionmia, an edition of the Anglo-Saxon laws ; the Archeion, an historical commentary on the central courts of justice in England ; and the Eirenarcha, or treatise on the justices of the peace, to which he added a small tract on constables and other humbler officials of the county. All these books were important contributions to the legal literature of the day, and all are historically interesting. The Archaeionmia, published in 1568, restored the forgotten Anglo-Saxon laws to the students of the common law. Because they had a direct bearing upon constitutional and legal antiquities, they could be pressed into the service of those who fought the battle of the constitution in the following century ; and, as Lambard's Archeion shows,6 they enabled pedigrees of our institutions and our laws to be traced back to an antiquity sufficiently remote and obscure to justify many ingenious deductions as to their rightful relations and proper sphere in the modern state.7 The Archeion, completed in 1591 but not published till 1635, is an able historical summary of the position of the courts of common law, and of

### XVITH CENT. AT HOME AND ABROAD

those courts and councils which had so rapidly developed in this century. Its historical interest consists in the fact that it shows how hazy the relations of these new courts and councils were to each other and to the common law at the close of this period.1 The Eirenarcha, published in 1581, and its companion tract upon the duties of constables and other officials dependent upon the justices, published in 1583, are the books with which we are at this point most directly concerned. They were the most practically useful of all Lambard's books, and by far the most popular;2 for they exactly supplied a want which had long been felt by that numerous and important class who were called on either to act as justices of the peace, or to advise them as to their powers and duties.

Footnote 1: Below 273-275; vol. 214,

Footnote 2: Between 1583 and 1610 there were seven editions of the Eirenarcha, Dict. Nat. Biog.; Blackstone, Comm. (rst Ed.) i 343 could still recommend it to students; the companion tract was reprinted six times between 1584 and 1610. I have used the 1619 edition.

In his preface Lambard tells us that he had set himself to compare the older treatises on the justice of the peace " with the book cases and statutes that have arisen of later times, and out of them to collect some one body of discourse, that may serve for the present age wherein we now live, and somewhat further the good endeavour of such gentlemen as be not trained up in continued study of the law."3 He was entirely successful in his object. His book was both clearly arranged and comprehensive in its scope. The older books had contained somewhat formless catalogues of powers and duties. Lambard adopted a new principle of arrangement adapted to the dimensions which the subject had now assumed. He divided the whole treatise into four books. Book I. gives a general view of the office of justice--"shewing what it is, when it began, how it is endowed, by what means it is maintained, and after what sort it may be determined."4 Book II. details the cases with which a single justice can deal out of sessions; and it is followed by a table in which his powers are summarized. Book III, details the cases with which more than one justice can deal out of sessions. Book IV. deals with the sessions of the peace. The first eighteen chapters deal with matters common to all sessions; Chapter XIX. deals with general or quarter sessions;5 and Chapter XX. with the special sessions. A reference to the Appendix in which the contents of these four Books are given will show the fulness with which each of these subjects is treated.6 At the end of the work there are Appendices

## 11 Old and New Machinery 119

giving a table of statutes affecting justices of the peace, and sundry precedents of presentments, of indictments both in lay and ecclesiastical courts, and of processes upon these indictments.

Lambard's Eirenarcha, with its supplementary tract upon the duties of constables, thus gives an account, which is both complete and systematic, of the organization of the local government under the justices of the peace, as it stood at the end of the sixteenth century. It is for this reason that it must be placed at the head of that long list of books upon the justices of the peace which stretch in a continuous series from the seventeenth to the twentieth century.1 It was in these books dealing alphabetically2 (for no other arrangement was possible) with the practice of the Sessions, that the greater part of local government law was for many centuries to be found. They deal only with the theoretical side of the subject--simply stating the law upon the matters coming before the justices, and directing the justices how they ought to deal with them. If we wish to know the manner in which this scheme of local government actually worked at different periods, we must go below their surface, and look at the actual records of the Sessions. Some few of these records are beginning to get into print; and we shall see that some study of them is essential if we would understand the social and political conditions for which the legislators and judges and writers of the sixteenth and seventeenth centuries made and applied and systematized the law.

Footnote 1: For a list of some of the more important of these books see Webb, Local Government, the Parish and the County 295 n. I; Burn's work is one of the most important; there were thirty editions between 1755 and 1869.

(ii) _Books dealing with other Officials of the County_.

These books are of far less importance than the books upon the justices of the peace, Fitzherbert's tract8 was reprinted by Crompton; but we get no other book in the sixteenth century. At the beginning of the following century, Dalton 4 published his book on the sheriff; and, in spite of a growing number of rivals, it continued to be a standard authority till the beginning of the eighteenth century. Lambard had written a tract about constables and other minor officials dependent on the justices; 5

### XVITH CENT. AT HOME AND ABROAD

**but he had said nothing as to church-ministers, church-wardens, overseers of the poor, and surveyors of highways. It was not till the following century that the growing organization of the parish for poor relief and for other civil purposes gave rise to a literature upon its activities, which came in time to share the field of local government law with the literature upon the activities of the justices of the peace.1**

Footnote 1: For the Parish see below 151-163.

**(2)**: _Books dealing with the Court Baron and the Court Leet._

**There was still a considerable amount of work to be done by these courts. The common field system of agriculture needed regulation; the rights and duties of copy-holders were matters for the manorial court to determine, subject to the control of the courts of common law; and statutes of this period had assigned new duties to the leet. Thus a want was felt for something more than the single stereotyped tract which various publishers went on issuing from the press during the first half of this century.**

\*\*This want was supplied by John Kitchin, a double reader and Treasurer of Gray's Inn.2 His book 3 was, as he says in his dedicatory preface to the students of the Inns of Chancery, designed in the first place to instruct those who held these courts; and in the second place, to induce lords of manors to appoint as their sensechals and bailiffs men learned in the law, and not merely serving men, who administered, not the law, but what they considered to be their lord's pleasure. It begins with a preamble in which he discusses the cause for which the king and the law were ordained of God, the antiquity of these courts, and the origin of the manor.4 It then deals firstly with the mode of holding the court leet,5 and secondly with the holding of the court baron.6 In both cases the charge to the jury is the text, and numerous and detailed notes form a commentary on it; and in both cases the articles of the charge are far more numerous than in the earlier tracts.7 In the charge to the leet jurors a classification is made into offences enquirable and presentable, and offences which are enquirable, presentable, and punishable;

## 10 Old and New Machinery

while new matters which had been added by the statutes of this period are placed in a third division in which they are arranged alphabetically according to subject.1

Footnote 1: If. 17b-21.

There is no classification of this kind in the charge at the court baron. The notes on this charge are elaborate and fortified with abundant citations of authorities, chiefly from the Year Books, but also from other sources. At the end of the part of the book dealing with the leet there are a collection of forms of presentments in the leet; and at the end of the part of the book dealing with the court baron there are notes for pleaders, a specimen of a court roll, and precedents of pleading.2 As in the older tracts, so in this work, a treatise on the proper modes of returning writs comes at the end.3 This also has been enlarged, and to it have been added illustrative cases.

Footnote 1: If. 17b-21.

Towards the end of the century English books on this subject began to appear; and in 1605 Kitchin's book was translated.4 Many similar books were published in the course of the seventeenth and eighteenth centuries, the longest lived of which was the Court Keeper's Guide of William Shepherd, first published in 1641, and re-issued as late as 1791.5 But towards the end of the eighteenth and at the beginning of the nineteenth centuries the leet was decadent, and the common field system was decaying. The chief business of the manorial court was copyhold conveyancing business; and thus these books naturally developed into the treatises on copyholds with which the modern lawyer is familiar.6

Footnote 4: Hearnshaw, op. cit. 38.

Footnote 5: For the details in the evolution of this literature see ibid 39-42.

The two representative books of the end of this century are the books of Lambard and Kitchin. They illustrate what I have said above as to the variegated character of English local government. They show us that its institutions have come from all periods of English history, and that they have introduced legal ideas taken from all these periods. We cannot therefore hope to understand the legal ideas underlying the local government of the sixteenth century, unless we analyse chronologically the contributions which these different periods have made to it.

Chronologically the history of local government falls into the following three periods: the earlier medieval period, the later medieval period, and the sixteenth century. I must briefly describe the earlier periods in order that we may understand the form which the local government assumed in the sixteenth century.

## 122 Xvith Cent. At Home and Abroad

_The Earlier Medieval Period._

From the earlier medieval period come certain communal, certain feudal, and certain franchise courts and officials, which still formed a considerable part of the local government of the sixteenth century. I shall deal with them under these three heads.

(i) The communal courts and officials.

The communal courts of county and hundred, and the sheriff's tourn, had come to be of very small importance.1 The books of the period dealing with local courts and local government do not deal specifically with them ; and in the books dealing specifically with the jurisdiction of courts they occupy a very small space.2 The infrequency with which they are mentioned in the statutes of this period shows that they had ceased to form an active part of the judicial and administrative organization of the state.3

Both the standard treatises on local government which were printed in this century, and the statutes, show that it was otherwise with some of the officials of these courts. The office of sheriff4 had declined from its former magnificence. But it had secured a permanent place in the local government. The sheriff was the official entrusted with the execution of all the royal writs. He had therefore become the agent to set in motion the complicated process of all the royal courts, criminal and civil, central and local. Seeing that the activities of the local government were still mainly carried on under judicial forms,6 his duties in connection with it were still of considerable importance. The office of coroner 6 was still useful. His chief duty had, as we have seen, already become that of holding inquests in case of unexplained death. The procedure at such inquests was improved by a statute of 1555, and was a useful aid to the detection and punishment of crime.7

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

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

Footnote 3: The references to the tourn in the statute book of the period are scanty ; they are, 24 Henry VIII. c. to (killing crows), 24 Henry VIII. c. t3 (apparel), 7 Edward VI. c. 5 (price of wine), 13 Elizabeth c. t9 (woollen caps), 2x James I. c. 21 (horse bread); the leet was a far more flourishing institution, and we shall see that the statutes of the period assigned many new duties to it, below r29.

Footnote 4: Vol. 1 65-69; Smith, Commonwealth Bk. ii c. t4; Fitzherbert, Justice of the Peace (Ed.: 547) excxi-clviii; Crompton, Justice of the Peace.

Footnote 5: Below 143-144.

Footnote 6: Vol. 1 82-86; Smith, op. cit. Bk. ii, c. 21; Fitzherbert, op. cit, clxxix-clxxxxviii; Crompton, Justice of the Peace.

Footnote 7: Vol. 1 84-85; i, 2 Philip and Mary c. t3 SS 5.

Footnote 8: Fitzherbert, Justice of The Peace clxx-clxxviii; F. Bacon, The Office of Constables, Works (Ed. Spedding) vii 745-754; Lambard, The Duties of Constables;

**OLD AND NEW MACHINERY 128**

--the high constables, who represented and acted as the executive agents of the hundred, and the petty constables, who represented and acted as the executive agents of the township. In their developed form they may have absorbed older officials of the hundred or the township--certainly petty constables had in the sixteenth century absorbed the offices of head-borows, borsholders, or titthing men who represented the township or tithing.1 The first mention which we have of them _eo nomine_ is in a writ of 1z52.2 By that writ they were entrusted with the duty of seeing to the due observance of the Assize of Arms, and of all other matters pertaining to the conservation of the peace; and these duties were enforced and expanded by statutes of the fourteenth and fifteenth centuries.8\*\*

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

These constables may originally have been the nominees of the hundred court or of the tourn or leet or township, and they certainly represented and acted as the executive agents of the hundred and the township. But, by the end of the sixteenth century, both the manner of their appointment and their legal position had changed. First with regard to the manner of their appointment: The high constable was usually appointed 4 and removed 5 by quarter sessions. The petty constable was appointed by the tourn or leet; 6 and when first the tourn and then the leet decayed,7 they came to be appointed by the quarter or pettyXVITH CENT. AT HOME AND ABROAD sessions,1 often, at any rate in later days, on the nomination of the parish vestry, which had filled the place left vacant by the decay of the old communities.3 Secondly, with regard to their legal position : Under the old law they were the executive agents of the hundred or township ; and just as the hundred or township were separate communities with separate spheres of action, so the high and petty constables were separate classes of officials each having their own sphere of action.3 With the decay of the older communities of hundred and township, and the growth of the civil functions of the parish, they come to be regarded, not as the executive agents of these communities, but as the executive agents of the justices of the peace,4 and as the representatives, and in some sort the masters, of the hundred, township, or parish; 6 while the petty constable of the parish became definitely subordinate to the high constable of the hundred.6 Thus the justices, even in Elizabeth's reign, were beginning to act rather on the presentment or information of the constables than upon a presentment of a jury of the hundred;7 the constables were expected to act on their own initiative when a speedy remedy was required;8 and the statutes of this century,

## 10 Old and New Machinery

which imposed many miscellaneous duties upon them in connection with the poor law and other matters, tended to increase their personal importance.1

Footnote 1: The _Laboratory of the United States_ is a member of the United

### XVITH CENT. AT HOME AND ABROAD

completely mastered the great nobility. The House of Lords, whether acting as a branch of the legislature 1 or as a criminal court,2 rarely dared to oppose the wishes of the king; and the individual members of the nobility were eager to make a show at the royal court, and to serve the king in any capacity which might be assigned to them.8 Though in England, as elsewhere, religious dissension led to a recrudescence of feudal disorder,4 the suppression of this disorder by Henry VIII. and Elizabeth 6 destroyed for ever the power of the feudal lords to imperil the safety of the state, and reduced to very small dimensions the political influence of feudalism.6 As we have seen, the purely feudal jurisdiction was confined within the narrow limits of the manor.7 The managerial jurisdiction was occupied chiefly with questions of estate management, and questions arising out of the communal system of agriculture still prevailing in many parts of England,8 and sometimes with small personal actions.9 It had little to do with local government, unless, as was sometimes the case, the lord of the manor possessed in addition a franchise jurisdiction. To these franchise jurisdictions we must now turn.

Footnote 1: Above 92-93:

Footnote 2: The only State Trial of this period in which the House of Lords acquitted was that of Lord Dacre of the South in 1534, L. and P. vii _xlii-xliv_; Chapuys, ibid no, 1073 said that the acquittal was " one of the most novel things that have been heard of for too years; " but the accused in spite of his acquittal did not get off scot free; Chapuys, loc. cit, p. 389 says that " he was shut up as much as ever," and a bond which he had given for the fulfilment of certain promises made by him when he confessed to the concealment of certain letters, was made the means of further persecution, ibid no. 1270; it is not surprising that convictions should be the rule if it was the custom to consult on the fate of a prisoner before he was tried, see an account of such a discussion in r540, L. and P. xv no. 932.

${}^{5}$ In a critical account of Wolsey's doings of the year 1529, L., and P. iv _iii_ no. 5750, it is said, at p. 2562, that he " had employed the nolchem of the realm " in the examination of mis-governed persons; it is also pointed out ibid at pp. 2560-2567 that the nobility had been impoverished by Henry's wars and the extravagance of his court.

${}^{4}$ Above 39, 47:

${}^{6}$ This is very well put in a tract by Sir W. Raleigh called " the prerogative of Parliament, proved in a dialogue between a Council of State and a Justice of the Peace " (IEd. 1640) p. 27--" To say the truth, my lord, the Justices of the Peace in England, have opposed the injustices of ware in England, the king's writ runs over all, and the great Seale of England with that of the next constables will serve the tume to affront the greatest Lords in England that shall move against the king. The force therefore by which our Kings in former times were troubled is vanished away; " but that feudal ideas were a real danger in the North right down to the suppression of the rebellion of the northern earls may be seen from the history of that rising, and from a recommendation in S.P. Dom. Add. (1571) 348 that the tenants be given a secure tenant right so that they may not be so entirely under the control of their lords.

${}^{7}$ Vol. i 179-187.

${}^{8}$ Vol. ii 56-61.

${}^{9}$ Vol. i 184; by the end of this century the jurisdiction was shrinking, but probably a good many pretty cases were still heard ; information as to the conduct of these cases is given in the tracts of this period dealing with manorial and leet jurisdiction, above r13, r20-r21; in a few places they were still active at the beginning of the nineteenth century, Webb, Local Government, The Manor and Borough ring n. 4.

## 10 Old and New Machinery 127

### (iii) The franchises.

We have seen that, throughout the Middle Ages, the Counties Palatine and certain large liberties had been allowed to exist. Though some of these Counties Palatine and liberties retained an independent existence right down to modern times, it was during this period that their internal organization, judicial and administrative, was assimilated to that of the rest of the country, and that the justice administered in their courts was declared to be administered in the king's name.1 It is significant that the only franchise, except the smaller franchises with which I shall deal immediately, which was sufficiently important to be made the subject of a separate treatise, was the Forest jurisdiction. John Manwood, of Lincoln's Inn, Keeper of Waltham forest and justice of the New Forest, wrote a book on the Forest Laws which at once became classical.2

Some of the smaller franchise jurisdictions, however, still maintained an independent existence, and occupied a certain sphere in the local government of this period.3 Of the space which they occupied and of the influence which they exercised I must say a few words. I shall deal in the first place with the country at large, and in the second place with the boroughs.

Footnote 3: "A treatise and discourse of the Lawes of the Forrest ; wherein is declared not only those laws as they are now in force, but also the original and the begining of Forrestes: and what a Forrest is in his own proper nature, and wherein the same doll differ from a Chase, a Park, or a Warren, with all such things as are incident or belonging theretoun with their several proper terms of art. . Also a treatise of the Purallee; " the book was privately printed in 1592; the first edition enlarged was published in 1598; other editions 1599, 1615, 1665, 1717, 1741; it was abridged in 1696; for the Forest jurisdiction see vol. i 94-107.

The franchise which was the commonest, and of the most importance from the point of view of local government, was that which conferred a leet jurisdiction.4 Courts leet survived when the communal courts decayed because, being franchises, they were regarded as private property. If the king chose to govern the country through the justices of the peace rather than through the county court and the sheriff's tourn, there was nothing to prevent him from doing so. But in the case of the franchise

### Xvith Cent. At Home and Abroad

jurisdiction there was the pecuniary interest of the lord to be considered; and just as the civil jurisdiction of the manorial courts and hundred courts in private hands remained active for a much longer period than the civil jurisdiction of the communal courts, so the leet jurisdiction got a further lease of life during this period.1 From the thirteenth century onwards its proceedings had, like the proceedings of other courts and officials, been regularized and standardized by the courts of common law.2 During this period its doings were supervized by the Star Chamber;3 and it was recognized by the legislature as a useful and integral part of the government of the country.4

Footnote 1: Vol. i 74-75, i84-187; above I13, 122 n. 2.

Footnote 2: See Abbot of Peterborough v. Power and others (r5r8) Select Cases in the Star Chamber (S.S.) if rz3-z42; in this case at p. r39 it was stated in the deposition of the Steward of the abbot that there was a " Great Inquest of the Hundred of Nease of burgh. whych hath correcion of all other leates holden within the sayd hundred for lack of dew mynystracion of justyce within the same;" cf. Talbot v. Cookes (1630), Rushworth vol. ii Pt. ii. 23-z4 for a case in which the Star Chamber dealt with irregularities in a trial before a court Baron; vol. i x37.

Footnote 3: Did; below I29 n. 7.

We have seen that many of the manuals which, from the thirteenth century onwards, had been written as guides for the Stewards of manors, found their way into print in the first half of this century.5 Their form and substance is, as we might expect, essentially medieval. The court is the old undifferentiated court--in none of them is there any clear distinction between court leet and court baron, far less between court baron and court customary;6 and its procedure is the procedure of the thirteenth century. This will clearly appear if we look for a moment at a day in court as outlined in these books.

Footnote 5: Vol. i x82.

The proceedings begin by the issue of a precept by the senechal to the bailiffs to summon the court. When the court meets it is opened with a single " Oyez" if it is a court baron only; with a triple " Oyez" if it is a leet day. Essoins are then taken, and if it is a leet day the twelve jurors are called; and, " if there be any plaints, precepts, attachments, or distress hanging in the court rolls," they are " re-hearsed openly in the court," and enquiry is made " how the bailiff has served them." The inquest is then called and sworn. If it is the inquest of the court baron they are charged to present matters affecting the lord's rights, or matters affecting the community--e.g. who are the suitors of the court, withdrawals of rent or service, the doings of bondmen, waste, removal of boundary marks. If it is the inquest of the leet they are charged to present divers criminal offences of all degrees of gravity from petit treason downwards, breaches of the assi

## 10 Old and New Machinery

bread and beer, nuisances, forestallers and regrators, tavern haunters, the misdeeds of constables, bailiffs, and other officers of the liberty, and whether offences presented at the last leet have been amended or no.

The books then proceed to give various model entries of presentations at the court baron and the leet, instructions as to holding the assize of bread and beer, the oaths of various officers, and copyhold conveyancing precedents.

It is clear from these books that even in the sixteenth century considerable parts of England were governed by an undifferentiated court baron with a leet jurisdiction. It was a court with powers of self-government as wide as those which it possessed in the thirteenth century. It could make by-laws,1 appoint officials,2 and, by virtue of its comprehensive power to present nuisances, it could stop practices which did not commend themselves to the public opinion of the community.3 Though weak on its executive side, it was competent to deal with offenders of the humbler class;4 and the possibility of appeal to the common law courts was some security for the regularity of its procedure.5 It could not deal with new statutory offences unless specially allowed by the statute to do so.6 But this power was conferred by no less than seventeen statutes of this period.7 A statute of James I. testifies to the fact that its business was actually increasing8 and the truth of this is borne out by the frequency with which the medieval literature upon it was reprinted. We may conclude

1 Vol. ii 378; Kitchin, Court Baron and Court Lect 45, "'Ou Bilaw est pur commonwealth est bon a lier touts comment touts ne assentirent, come a faire causez, chemin, ou pont. Mes Bilaw a repavier eglise est charge pur ceo ne liera forsque eux que assent," and cf. Y.BB. 44 Ed. III. Trin. pl. 13; ir Hy. VII, Hil pl. 8; Webb, Local Government, the Manor and the Borough r9, 20--as to the court baron; ibid 27, 28--as to the court leet, citing Burn, Justice of the Peace (Ed. 18a0) iii 24o.

- Webb, op. cit. 28; for these officers see Hearnshaw, op. cit. 90-93.

- Webb, op. cit. 27, 28; Hearnshaw, op. cit. r18, r19; Mr. Webb says, "'It is difficult to find any kind of personal conduct, whether intrinsically innocent or plainly criminal, and whether or not expressly included among statutory offences, which might not, at one period or another, have found its way as a common nuisance into the presentations of a court Lect Jury;" and that, "this was the root out of which sprang such services as the Maintenance of Roads, the Drainage of Towns, the Paving and Cleansing and Lighting of Streets, and the whole of what we now call Public Health."

4 Its executive weakness is clearly explained by Hearnshaw, op. cit. 139, 140; probably it was less apparent when communal feeling was stronger, vol. ii 377-378.

5 Hearnshaw, op. cit. 137-139.

7 14, 15 Henry VIII, c. 10; 24 Henry VIII, cc, ro and r3; 32 Henry VIII. c, r3; 33 Henry VIII, cc. 6, 9, and r7; 2, 3 Edward VI, cc. 10 and r5; 7 Edward VI, cc. 5; 2; 3 Philip and Mary c. 8; 4, 5 Philip and Mary c. 3; r Elizabeth c. 17; 5 Elizabeth c. r; 3 Elizabeth c. r; 32 Elizabeth c.

### 130 XVITH CENT. AT HOME AND ABROAD

therefore that it was still a living court, and that it had an important, if a humble, part to play in the Tudor scheme of local government.1

Footnote 1: Coke, Fourth Insitit. 265, " By these and divers other acts of Parliament the jurisdiction of this court of the Lect hath been much increased, to the end that the subject might have remedy and justice at his own doors; " cf. C. J. Cox, Three Centuries of Derbyshire Annals ii 275-280 for some seventeenth century activities of the courts leet of Elveston and Thurston, and Ambaston--it is clear that the common field system of agriculture (vol. ii 56-67) supplied these courts with a good deal of their work.

It is not surprising to find that at the end of this period legal theory has been busy with the leet. The beginnings of the modern legal theories may be found in the books of Kitchin,8 and Coke.8 In the first place they differentiated the old undivididid court. A court in which justice was administered in the king's name was in their eyes clearly different from a court in which justice was administered in the lord's name; and similarly a court in which the free suitors were judges of their fellows was clearly separate from a court in which the steward judged the copyholders. Thus Kitchin separated the court leet from the court baron,4 and Coke, the court baron from the court customary.6 In the second place, they classified the business of the court. In Kitchin's elaborate book we get the distinction between offences presentable and not punishable in the leet, and offences both presentable and punishable.6 But, whatever legal theorists might say, the old undifferentiated court continued to exist in many parts of England in the old way long after the close of this century.7 The Steward might perhaps alter the forms of enrolment, and the list of things to be presented, to make them square with orthodox legal doctrine; 8 but little else was altered. In fact Kitchin was doing on a small scale what Coke was doing on a grand scale. Both were representatives of that school of literate Elizabeth lawyers, to which such men as Plowden and Lambard and Bacon belonged, whose great and enduring work was the adaptation of mediaeval law and institutions to modern needs. Imagination necessarily played some part in this process of adaptation; and thus they are responsible not only for the enunciation of the rules of modern law, but also for legal and historical theories, the soundness of which was considered by many generations of lawyers and historians to be as incontestable as their statements of law. It is only in these latter days that we have begun to distinguish the validity of their statements of the

## 10 Old and New Machinery

I saw from the correctness of the historical premises upon which their legal and historical theories were founded.

_The Boroughs._

We have seen that in the Middle Ages the borough was simply a more organized species of that large genus community by means of which the work of local government was carried on.\[1\] It was a community which had a franchise or franchises ; and when we have said that, we have said almost all that it is possible to say about the boroughs in general. It is as impossible to give a precise definition of the whole class in the sixteenth century as it was in the thirteenth century, and as it will be in the eighteenth century.\[2\] At all these periods communities of many kinds claimed this title, from the small country town which was hardly distinguishable from the rural village, to the city which was a county in itself.\[3\] We have seen that in the country at large the existence of a franchise tended to preserve institutions which come from the early mediaval period long after they had become obsolete elsewhere.\[4\] In the boroughs we often see more than a mere survival. The fact that the borough was a chartered franchise, the activities of which were sometimes very different from those of the franchise jurisdictions existing in the country at large,\[5\] helped not only to preserve but also to develop. The charter both modified the effect of the influences which made for a uniform development in the country at large, and at the same time left the boroughs very free to develop a constitution of their own. In very few boroughs did the constitution depend upon the provisions of the charter.\[6\] For this reason old institutions and the old modes of government were in the more

### XVITH CENT. AT HOME AND ABROAD

progressive boroughs developed upon their own lines ; and thus, though we get certain broad resemblances between the officials and the institutions of many of the boroughs, the position of these officials and the form of these institutions were hardly ever identical.1 It is for this reason that we find in the borough institutions an interesting assortment of the most various pieces of constitutional mechanism. Let us glance briefly at some of the results of this interesting process of mixed survival and development.

Footnote 1: For a general account of these officials see Webb, op. cit. 306-336, and for the institutions see ibid 337-367.

A leet jurisdiction similar to that existing in the country at large was one of the commonest of the franchises possessed by boroughs.2 Though its machinery was cumbersome, the boroughs made it perform a large amount of judicial and administrative work ; and, if we look at instances like the court leet of the Savoy 8 or the court leet of Manchester,4 we can see that it was possible to adapt it to the needs of flourishing urban communities. The court which exercised this jurisdiction was often, even in the municipal corporations which had a separate commission of the peace, an undifferentiated court similar to that which we find in the country at large.5 In many places in the sixteenth and seventeenth centuries, and in some places right down to the close of the eighteenth century, "the whole constitution still revolved round the leet."6 But in the larger and more progressive boroughs this undifferentiated court soon began to split up ; and new privileges involved the creation of new courts. A separate court for civil business was often granted by charter ; and this in its turn was sometimes sub-divided.7 The possession of such franchises as a market or an Admiralty jurisdiction gave rise to other courts of a special jurisdiction.8 The same causes which split up the old differentiated court led to the growth of a separate class of officials.9 They led also to a separation between judicial and administrative organs of government, to which the county institutions attained slowly and imperfectly.10 The existence of property to be administered helped forward this development. It is not surprising therefore to find that these new administrative organs of government often show signs of springing from a fusion of the gild officials, the

## 10 Old and New Machinery

gild organization, and the gild property, with the officials, the organization, and the property of the corporation \[1\].

The most advanced of the boroughs got, in the fifteenth, sixteenth, and seventeenth centuries, a separate commission of the peace, and sometimes a separate court of quarter session \[2\]. Similarly the parochial organization of the country at large appeared in the boroughs \[8\]. In course of time the justices of the peace and the parochial organization prevailed over the older institutions in these boroughs as they prevailed in the country at large. But the process was much more gradual ; and in the sixteenth century it was only just beginning. The old courts and the old officials continued to exist side by side with the new courts and the new officials \[4\]. Whether we look at the customary rules of private law prevailing in the boroughs \[5\], or at the machinery by which these customary rules were enforced and by which the municipal government was conducted, we see many survivals of old customs and old institutions, and some developments of these old customs and institutions which were quite unique.

In the sixteenth century, therefore, both the communal officials and the franchises which survived either in the country at large or in the boroughs kept alive many traces of the legal ideas and institutions of the earlier medieval period. Their continued existence in a modern state was due, as I have said, to the manner in which they had been controlled, adapted, and developed by the common law of the thirteenth and the following centuries \[6\]; and the effect of their continued existence was to keep alive the idea of a community which governed itself under judicial forms, subject only to the law \[7\]. It is hardly possible to exaggerate the historical importance of this phenomenon. It has directly affected the whole history of local government in England, and

**184 XVITH CENT. AT HOME AND ABROAD**

indirectly the development of the whole of the public law of the English state. With its direct effects on the later history of local government I must now briefly deal ; its indirect effects upon the public law of the English state will appear when I come to consider the position of Parliament and the ordinary courts of law.

_The Later Medieval Period._

It is during this period that the justices of the peace began to supersede the communal courts and to control the communal officials.${}^{1}$ We have seen that they were instituted originally to see to the observance of the statutes passed to maintain the peace ; and that they were soon given many other duties. By the end of the fifteenth century, the stream of statutes, which in time made them the rulers of the county, had begun to flow.${}^{2}$ They were given large powers of dealing with the misdeeds of all classes of local officials, from sheriffs and mayors to constables and gaolers.${}^{3}$ They were given exclusive jurisdiction to try offences presented at the tourn.${}^{4}$ They were given powers to supervise ordinances made by "gilds, fraternities, and companies corporate ".${}^{5}$ They must see that the numerous statutes dealing with trade, labour, and weights and measures ${}^{6}$ were obeyed ; and they were entrusted with the execution of the statutes relating to purveyance, to apparel, to livery, and to Lollards.${}^{7}$ By the end of the century many of the larger boroughs had acquired by charter separate commissions of the peace ;${}^{8}$ and the justices began, though more slowly than in the country, to supersede the older municipal authorities.${}^{9}$

These statutes imposed upon the justices the duty of punishing their breach. Though occasionally this duty was imposed upon one, two, or three justices,${}^{10}$ the statute rarely stated whether each justice could act separately or whether all must act together. But whether it was imposed upon all collectively at quarter

## 10 Old and New Machinery 185

sessions, or upon some one or more individually, no directions were given as to the procedure to be followed. The legislature, as was usual in the Middle Ages, seems to have proceeded upon the presumption that the law would be obeyed, and considered it sufficient if officials and courts were provided to punish its breach. Thus its justices were put into the position of the older courts and officials who were there, not to take active measures to enforce the law, but to punish breaches of it. The justices, therefore, when they met in quarter sessions, found themselves obliged to adopt what means they could to discover and punish breaches of the law. They naturally had recourse to the old machinery, familiar both to the central and to the local authorities in the eye and tourn, the machinery of the jury of presentment. Thus the organization of the local government under the justices still followed the old judicial models. It centred upon the quarter sessions; and the business of the quarter sessions centred round the charge to the jury and the presentments which it made.

The scheme of the earlier books which deal with the justices of the peace make this quite clear.1 They begin with a short description of the office of justice, the time and manner of holding the sessions, a few of their more important duties in connection with the maintenance of the peace,2 and two writs relative to the trial of prisoners before the itinerant justices.3 But the main bulk of the treatise centres round the justice's charge to the jury at quarter sessions.4 The charge consists of a heterogeneous catalogue of the various offences, statutory or otherwise, as to the breach of which enquiry must be made, with occasionally a short note of explanation attached.5 Scattered amongst the various articles of the charge are short paragraphs as to the justice's duties in relation thereto, as to the maintenance of gaols, bridges, and highways, and as to their duties in relation to the poor and impotent. At the end comes a long Appendix of writs and other formal documents.6 It includes such things as writs for the purpose of securing the presence of offenders or of the jury, writs of supersedeas, recognisances, mainprise, forms of security for keeping the peace, orders of commitment, forms of indictment for various treasons and felonies, forms of appeals of felony, and forms connected with trial by battle on such appeals, forms of

### 186 Xvith Cent. At Home and Abroad

indictment for various statutory misdemeanours, for trespasses,1 and nuisances.

These books show that, right down to the beginning of the sixteenth century, the local government, though controlled by royal nominees, was conducted by means of the judicial procedure and the judicial machinery which were familiar to the common law courts, and to the old communal and franchise courts. The county and the various communities of which it consisted had, from the earliest times, been left to govern themselves after their own fashion, subject always to a liability to punishment if they did not fulfil their legal duties, statutory or otherwise. The justices, like the older courts and officials, whom they were fast superseding, found themselves in a position precisely similar to that occupied by the older authorities. In the first place they were left with a very wide discretion in the exercise of their governmental functions; and, in the second place, the duties which the legislature and their commission imposed upon them, made it necessary that the machinery by which they acted, should take the form of presentment and indictment for the non-performance or the mis-performance of legal obligations.2 The effect was to give the rules and the judicial processes of the common law a position of decisive importance in the local government of the country; and thus the old idea of local self-government subject to the law was retained in the system of local government, as newly organized under the justices of the peace.3 The fact that, in the sixteenth century, this idea was preserved, and these self-governing judicial officers of the later medieval period were adopted as the basis of the scheme of English local government,

## 10 Old and New Machinery

is a unique phenomenon in Western Europe, of the utmost significance for the future of our constitution and our law.

_The Sixteenth Century_.

The justices of the peace were the men of all work in the Tudor scheme of local government. The " stacks of statutes " which added to their duties necessitated a more elaborate organization of the justices within each county ; the growth of their administrative duties gave rise to the beginnings of a separation between their judicial and administrative functions ; and the use which the Tudor kings made of the parish as a unit of the local government of the state, under the control of the justices, further added to their administrative functions. At the end of this period it is apparent that the main work of local government was being done by the justices and by the parochial officials assisted by the parish vestry. At the same time the older medieval officials--sheriffs, coroners, and constables--had been given an ascertained place in this scheme of local government, while the franchises in town and county still performed many various duties, and existed as exceptions to the general scheme. The result was a system of local government of an extraordinarily heterogeneous character. Though we can see that the most important elements in it were the justices and the parish, there were other elements which have come from all periods of legal history, and have gradually been so adapted that they have been made useful parts in the machinery of the government of a modern state. Such a system is necessarily difficult to describe. I shall endeavour to sketch briefly its salient features under the following heads :--(i) The new powers of the justices of the peace ; (ii) the new organization of the justices of the peace ; (iii) the rise of the parish as a unit of local government and its relation to the justices of the peace ; (iv) characteristics and tendencies of the new system of English local government.

1. _The New Powers of the fustices of the Peace._

To enumerate all the powers conferred upon each individual justice of the peace, upon groups of justices, or upon quarter sessions would involve a summary of the greater part of the legislation of the Tudor period. Such a summary would be both tedious and useless. All that I here attempt is a slight sketch of some of the most important of the powers which the justices exercised in this century. In drawing this sketch I shall follow Lambard's method, and summarize in the first place the powers exercised by a single justice, in the second place the powers exercised by two or more justices, and in the third place the

### 188 XVITH CENT. AT HOME AND ABROAD

powers exercised by the quarter sessions. Such a summary will necessarily possess some of the characteristics of a catalogue; but it is necessary to have such a catalogue before us if we are to understand the position of decisive importance which the justices attained in English local government in this century, and kept right down to the latter part of the nineteenth century.

_The Single Justice._

Of the 634 pages of Lambard's four Books on the justices of the peace, the second Book, which deals with the powers of a single justice, occupies 235. No doubt some part of it is occupied with relevant dissertations on aspects of the criminal law ; \[1\] but, when all allowances have been made, it will be clear that the powers of the single justice were wide. There is no classification of his powers ; but for convenience sake we may group some of the more important under the heads of criminal jurisdiction, civil jurisdiction, administration, trade, and religion.

His criminal jurisdiction in relation to the preservation of the peace is the earliest in point of time, and stands at the head of the list. \[4\] He can take security for keeping the peace, and for "good abearing," and he can at his discretion release such security. \[3\] There was much law on this matter, and many forms to be observed. In case of breach of the peace by " menacing, affrays, assaults, injurious and violent handlings and mis-treatings of the person, batteries, malicious strikingly, etc.," \[4\] the justice, like the constable, could commit to the common gaol, if he could not otherwise stop the affray. \[5\] Under the statutes of forcible entry he could arrest the delinquent, and reinstate the party ousted. \[6\] He could order the rioters to disperse, and arrest those who disobeyed. \[7\] He could order fresh suit, hue and cry, and search to be made by sheriffs and bailiffs for thieves and robbers, \[8\] and could give orders for the arrest of suspected persons. \[9\] The

## 6 Old and New Machinery 199

1.1 Status relating to unlawful hunting,1 unlawful games,2 to tippling in ale-houses,3 to the sale by soldiers of their harness,4 to gypise, or Egyptians as the statutes called them,5 to the preservation of game,6 to sanctuaries,7 to thefts of horses,8 to rogues and vagabonds,9 to robbers of gardens and orchards,10 and to the examination of felons 11--all added to his criminal jurisdiction. In such cases as these, says Lambard, " the justice of the peace, having (as it seemeth) the whole matter committed to himself alone, ought to be wary and circumspect, lest either he rashly condemne the guiltlesse, or negligently suffer the guiltie to escape; and upon the offence sufficiently proved, it is necessarie that in his _nitimus_ (a precept to the gaoler) there be contained the names of the parties, with the manner of the offence, and how long time he is to be kept in prison for it. Furthermore, he is to make a record of the matter, and to send the extract of it unto the Exchequer, whereby the Barons may cause the King's dutie to be levied to his use."12

Footnote 12: The name of the name

### 140 XVITH CENT. AT HOME AND ABROAD

seamen, or to soldiers and sailors returning from abroad, which authorized them to travel to their homes and to ask and take relief on the way.\[1\]

Over matters pertaining to trade he had a number of miscellaneous powers. He must see to the observance of the assize of fuel,\[2\] and his certificate (with that of the customer) as to the unloading and selling of corn carried by water was sufficient to rebut a charge of forestalling.\[3\] He must supervise the manufacture of malt,\[4\] and see that the statutes relating to several other trades were observed.\[5\]

The religious settlement of Elizabeth's reign imposed upon him a number of new duties. If any person informed him of the delivery of any cross, picture, or other superstitious thing from Rome, and of the name and address of the deliverer, he must make a report to some member of the Council;\[6\] he could fine for non-attendance at Church,\[7\] and could certify non-attendance during twelve months to the King's Bench;\[8\] and, in default of submission, he could get from quarter sessions an order that seditious sectaries who obstnately refused to attend church should abjure the realm.\[9\]

_Two or More Justices._

"It is universally true," says Lambard, "that whatsoever thing one Justice of the Peace alone is permitted to do, either for the conservation of the Peace, or in the execution of the commission (or Statutes), the same may be no less lawfully performed by two (or more) Justices ; except it be in a very few cases, when some Statutes do seem especially to appropriate the execution thereof to some one certain Justice, either in respect that he is next to the place, eldest of the Quorum, or such like."\[10\] In fact the powers of two or more justices were similar in kind, but greater in degree. In the exercise of their criminal jurisdiction they could punish riots, and, if they were hindered by the perversity of the jury, or by maintenance or embracery, they must certify the facts to the Council.\[11\] There was much law and many forms to be observed in executing this part of their duty.\[12\] There

## 10 Old and New Machinery

was also much law on that part of their duties which related to the bailing of prisoners.\[1\] They must carefully observe the general statute relating to bail,\[2\] and also the particular statutes for the breach of which the prisoner was accused,\[3\] " both for fear of wrong by denying it to him that is replevisable, and for fear of danger to the service itself by giving it where it is not grantable."\[4\] They could deal with offences under the statutes of labourers.\[5\] They could levy the forfeitures incurred by reason of convictions under the statutes dealing with rogues and vagabonds.\[6\] They could convict for offences under the game laws,\[7\] make orders in respect to bastard children,\[8\] and deal with those who evaded their liability to contribute to the subsidy.\[9\]

Their civil jurisdiction was inconsiderable. The only instance appears to have been a jurisdiction to supervise certain partitions between lords and commoners if appointed for this purpose by the sessions.\[10\] On the other hand, their administrative duties were large. In the first place, they had many duties in connection with the poor law--the appointment of overseers,\[11\] taking the accounts of the expenditure of the overseers and churchwardens upon the binding of apprentices,\[12\] assessing rates to relieve poor parishes,\[13\] binding poor apprentices.\[14\] In the second place, they were given control of sheriffs, and other of the older officials of local government. They could take the oaths of office of under-sheriffs and their subordinates,\[15\] and examine the sheriffs' books and americations inflicted by them.\[16\] In the third place, they could license ale-houses;\[17\] and a law for these licensed houses was already growing up, for " in some shires the Justices of the Peace do condescend upon certain articles, framed by their discretions, and generally to be propounded to all common ale sellers, taking bond for the performance of the same articles, a copy whereof they do usually deliver to every one of them."\[18\] Fourthly, they had a number of miscellaneous duties, such as giving testimonials to servants dismissed,\[10\] the licensing of diseased persons to go to Bath or Buxton,\[20\] making regulations in time of plague,\[21\] the

**142 XVITH CENT. AT HOME AND ABROAD**: supervision of the accounts of hospitals,\[1\] the assessment of the liability of the hundred for robberies therein committed.\[2\]

Three or more justices had still wider powers. They could examine the accounts of charitable foundations,\[3\] and they had powers in relation to decayed bridges,\[4\] and in relation to gaols\[5\] and sewers.\[6\] In relation to trade they could deal with many miscellaneous matters--the manufacture of malt,\[7\] the supervision of the cloth trade,\[8\] weights and measures.\[9\] In relation to religion they had large powers, of which the following are examples : they could deal with those who disturbed preachers.\[10\] They must assist the ecclesiastical judges in their jurisdiction over titles.\[11\] They could search for popish books,\[12\] and require popish recusants to abjure the realm.\[13\]

_The Quarter Sessions._

Though the powers and the duties of the justices out of the sessions had been so largely increased, the principal work of the justices still centred round the sessions. It was only in a session of the peace that they could execute "their general authority" to enquire by a jury, and to hear and determine all the cases within their commission, and all the other matters referred to their charge by particular statutes.\[14\] Both the work of the sessions, and the procedure by which that work was conducted, were quite different from the work of hearing those miscellaneous cases which various statutes had referred, sometimes to a single justice, and sometimes to two or more justices.

The procedure of the sessions was still in substance the mediaeval procedure.\[18\] It still centred round the charge which the justices gave to the jurors, and round the presentations and indictments which the jurors made in obedience to that charge ; and the competence of the court was still large and vague.\[16\] As

## 10 Old and New Machinery 148

in the thirteenth century, when the whole county met to inform the king's justices in eyer of the crimes, negligences, and ignorances of which private persons, officials, and communities were guilty,1 so in the sixteenth and seventeenth centuries the whole county met the justices of the peace in their sessions 3 to give them very similar information.8 As in the earlier, so in the later period, there were present the older officials of the county--the sheriffs, the bailiffs, and the constables ; there were present also the jurors--particular jurors from each hundred and a general jury from the body of the county ;4 and with the justices came their own officials, the custos rotulorum and the clerk of the peace.5 This assembly also was gathered together by precepts from the sheriff in much the same way as the older assembly which met the justices in eyer,6 and, when it met, the justices of the peace, like the justices in eyer, gave in charge to the jury the articles of which they were to enquire. When Lambard wrote the number of these articles was evidently causing embarrassment to the justices. He recommends that only those laws which were of practical importance should be fully explained, and the others "only touched or run over by way of short articles." 7 As to the arrangement of these articles he suggests several schemes ; and we have extant an actual charge given by Lambard himself in which the Ten Commandments are made the basis of classification.8

### XVITH CENT. AT HOME AND ABROAD legislation

It will be seen that most of the business of the county, both judicial and administrative, was in this way brought before the justices assembled in quarter sessions ; and that both their old and their new functions were fitted into the mediaval frame-work of presentment, indictment, and trial. It followed that all the technical rules as to procedure and pleading which characterized the criminal law must be strictly observed \[2\]. It followed also that the duty of seeing that these rules were observed naturally fell to the judges of the ordinary courts of common law, by whom these rules had been created, and by whom they were applied either at Westminster or on circuit. Thus the mediaval forms, under which much of the local government was conducted in this century, ensured the continuance of the control of the ordinary courts and the ordinary law.

But though Lambard's book tells us that the main business of the justices still centred round the sessions with their mediaval procedure, there are signs that that procedure was beginning to be inapplicable to the conduct of the local government of a modern state. In the first place, as we have seen, the work of the justices out of sessions was rapidly increasing \[3\]. In the second place, at the sessions themselves the justices were empowered to take independent action \[4\] upon many matters--such as rating \[5\], giving licences for various purposes \[6\], the poor law \[7\], supervision of houses of correction \[8\], the fixing of the rates of wages \[9\]; and we can see the beginnings of their appellate jurisdiction in the provisions of the statutes of i572 and i60i as to appeals to quarter sessions against rates made by churchardens and other persons \[10\]. In the third place the business of presentment was ceasing to be performed by the inhabitants at large. It was falling into the hands of the high constables, who gathered information from the petty constables, and made the presentments as the representatives of the hundreds \[11\].

## 11 App. I (2)

See Lambard's chapters on Indictments and Presentments (Bk. iv c. 5); Informations (c. 6); Certiorari (c. 7); Process and Supersedeas (c. 8); and Trial cc. ax-r4; vol. iii c. 6 s r.

Above r38-142.

Thus in the North Riding Sessions Records vol. i the account of the presentments is followed by an account of the different orders made at the sessions,

- 14 Elizabeth c. 5 s 38; 39 Elizabeth c. 3 s 12; 43 Elizabeth cc. 2 and 3; r James I. c. 25.

- 7 Edward VI. c. 5 (taverns for sale of wine); 5 Elizabeth c. ra (badgers and drovers); ; r James I. c. 27 (certain shooting licenses).

- 39 Elizabeth c. 3; 43 Elizabeth c. 2.

- 8 Elizabeth c. 4; 39 Elizabeth c. 12; r James I. c 25.

- 14 Elizabeth c. 5 s 35; 43 Elizabeth c. 2 s 5.

- 1 J. Willis Bund, Worcester County Records Pt. ii _xcis_, $c$; cf Lambard 398, who explains that the common manner in Kent is to return particular juries for the

**OLD AND NEW MACHINERY** **145**

The result was that, though an elaborate charge was given, very little came of it--" in these days of ours," says Lambard, " wherein the affairs of the Sessions be exceedingly increased . many do scantly afford them three whole hours, besides the time which is spent in calling of the county and giving of the charge."1 No doubt for many years to come presentments made by many different kinds of juries--by grand juries drawn from the body of the county, by the hundred juries, by juries of constables, and by justices themselves--will rouse the justices to do some particular piece of county business.2 But they will gradually become formal, and then disappear. Already in the sixteenth century we can see the beginnings of the process which will substitute for the media-val machinery of presentment, and the judicial proceedings taken thereon, other modes of doing the administrative business of the county.

Footnote 1: At p. 606.

It is clear that the large additions which the Tudors had made to the powers of the justices were necessitating a further organization of the assemblies in which the justices performed their functions, and a new grouping of the justices for the various parts of their work. From the latter part of the sixteenth century onwards these changes slowly and gradually took place all over the country, as the exigencies of the growing powers of the justices made them necessary. We must now describe the beginnings of these changes, the ultimate effect of which was to adapt the mediaeval organization of local government under the justices to meet the new demands made upon that local government by the modern state.

(ii) _The New Organisation of the Justices of the Peace._

In the sixteenth century the movement towards a more elaborate organization of the justices took two forms. In the first place we can distinguish from the quarter sessions several different kinds of sessions at which the justices did various duties ; and from these sessions we can distinguish the cases when the justices acted singly or in groups of two or more. In the second place, we can see the rudimentary beginnings of a clerical staff.

**hundreds and one general jury for the whole shire--" this last is made up with us (for the most part) of the Constables only ;" the hundred juries are seldom present in full force, and therefore, "' the whole enquiry standeeth only upon their labour that are empennelled for the body of the shire, that is to say, upon one man of each hundred or two at the most."**

${}^{1}$At p. 606.

${}^{2}$Webb, Local Government, the Parish and the County 446-479, traces their gradual decay from the end of the seventeenth to the nineteenth century ; but in some places they still played an important part, even in the middle of the eighteenth century ; thus in Derbyshire in 1748 orders made by the justices for the repair of the houses of correction were held to be void because not made on the presentment of a jury, C. J. Cox, Three Centuries of Derbyshire Annals i 177.

VOL. IV.--IO

### XVITH CENT. AT HOME AND ABROAD

- The differentiation of the sessions.

The statutes which piled so many duties upon the justices, recognized the individual justice or justices whom they required to perform this or that function. They recognized also the quarter sessions. But it became apparent, as the sixteenth century progressed, that other sessions besides the quarter sessions were necessary for the due performance of their judicial and administrative work. A statute of 154I-I5421 attempted to provide a scheme to meet this need by constituting local sessions for the performance of certain parts of their duties. It directed that at the sessions of the peace hidden next after Easter they should assemble themselves together diligently to examine the contents of certain statutes named in the Act,2 and devise how the same " may be best put in due and just execution." They were directed to divide themselves so that two at least were assigned to each hundred; and in each hundred they were directed to hold a session every quarter, besides the general quarter sessions of the peace, at least six weeks before the quarter sessions.3 At these sessions enquiry was to be made by a jury, or by any other means of information, into all offences committed, and process was to be issued against offenders. But this statute was found to lay down too rigid a rule, and was repeated in 1545,4 as unnecessarily burdensome. The justices were left to organize themselves in the manner best fitted to the business with which they were entrusted; and, considering the multiplicity of functions which Parliament continued to heap upon them, it is difficult to see what other course could have been pursued. Hard and fast statutory rules would have failed to produce an organization sufficiently elastic to meet the needs of their ever-growing powers.5

Footnote 1: 33 Henry VIII. c. to.

Footnote 2: $ I, Laws touching vagabonds, retainers, liveries, maintenance, embracery, bowstaves and archery, unlawful games, forestallers, regrators, victuallers and innumergers; SS 6, offences against the statutes of apparel.

Footnote 3: $ I.

Footnote 4: 37 Henry VIII. c. 7; Lambard, Bk. iv c. 2o following the words of the repealing statute, speaks of the "t" inconvenience of troubling the countrie that hapned by the six weekes sessions.".

Footnote 5: $ I.

We have seen that, when Lambard wrote, the main division was between the work done out of sessions and the work done in sessions.6 For the work done out of sessions no specific organization was provided. It could only be classified according as the legislature had conferred powers upon one, or upon two or more justices. It is in the powers conferred upon two or

## 14 Old and New Machinery

more justices that we may see the cause for the rise in the eighteenth century of the petty sessions.1

Footnote 1: Webb, The Parish and the County 298-299: " In some counties ..., the magistrates of each Division seem voluntarily to have agreed to meet--or to arrange for at least two among their number to meet--regularly, between the days appointed for 'Special Sessions' ... in order to transact in a formal Petty Session such business as required the concurrence of two Justices, or more legal knowledge than they had individually at their command," ibid at pp. 400-407; this change took place in Middlesex as early as 1705. The term " Petty Sessions" is a modern term, vol. i 293; but we get the expression " Petit Sessions" as early as Elizabeth's reign to denote the sessions held in each hundred by the High Constable for the hiring of servants under 5 Elizabeth c. 4, C. J. Cox, Three Centuries of Derbyshire Annals 7.

4 Vol. i 292; Lambard 596-665.

4 Ibid 378, 379; at p. 623 he says that they could be held at any time, and that they had this power both by their commission and by 2 Henry V. c. 4 : generally they were held " for some special business, and not directed to the general service of the commission; " sometimes the Council directed a special sessions to be held for a particular purpose, see e.g. Dasent xii 242 (1580).

5 r James I. c. 6 SS 2--which legalized the practice for this purpose, and with this object modified 5 Elizabeth c. 4 SS 17.

6 For the full text see A. H. A. Hamilton, Quarter Sessions from Elizabeth to Anne 67-7r.

### 148 XVITH CENT. AT HOME AND ABROAD

each such sessions;" and at these meetings they were to see to the enforcement of certain specified statutes.1 They were to appoint a clerk to record the proceedings, and the constables of every hundred and the petty constables were to be present to give information as to the offences committed. In 1609 the Council admonished them as to their neglect in obeying their orders, and as to their remissness in carrying out their other duties, as a result of which the Devonshire Justices appointed six of themselves "for the execution and dispatch of such directions as shall be received concerning His Majesty's service."2 At the Devon Assizes in 1612 the judges ordered that the justices in each division should meet once at least between every session, and once before every asize.3 It is in these meetings for special purposes that we can see the roots of the various special sessions at which in later times such special functions as control over highways and licensed houses were performed.4

Footnote 1: "The Statutes of Labourers, the Statutes concerning ale houses and tipplers, the Statutes of the Assize of Bread and Drink, the Statutes concerning Rogues and Vagabonds, the Statutes for setting the Poor on Work and to bind their children Prentices ... and to be informed of all manner of Recusants, as well Popish as Secaries, Murderers, Felonies, and Outrages within that limit. And to execute the statutes concerning Artificers, matters of the Peace, and all other things within their several divisions as aforesaid. But especially such as keep ale houses without licence may there be examined and presently punished according to the law. And that such as having licence do abuse the same, or not observe these articles, be put down and proceeded with upon their recognisances and such like," ibid 69.

- A. H. A. Hamilton, op. cit. 78-80; in Worcestershire there were monthly meetings, Worcester County Records Pt, i, ix; cf. North Riding Sessions Records i 204 (1670) for similar orders in Yorkshire; as Mr. Atkinson says, ibid 690 n, we get various sessions called by different names such as e.g. six weeks sessions, three weeks sessions, brewster sessions, 3 A. H. A. Hamilton, op. cit. 81.

- For the later history of these special sessions see Webb, Local Government, the Parish and the County 396-400. We may note that in Derbyshire we get, after the Restoration, frequent references to "private sessions or monthly meetings," C. J. Cox, Three Countries of Derbyshire Annals i 7.

- Above 144.

- See Webb, op. cit. 480-483 for the development of this distinction and its causes In the eighteenth century.

**OLD AND NEW MACHINERY** **149**

them by the Council and the judges, were beginning to produce the beginnings of an organization among the justices for the performance of various parts of their duties. It has not as yet gone far; but it has gone far enough to enable us to see the main lines upon which it will proceed in the future.

(_b_) The beginnings of a clerical staff.

From an early period one of the justices had been selected by the king to keep the rolls of the peace,\[1\] and this _custos routlorum_ had probably always enjoyed an honorary precedence among his fellows.\[2\] In the sixteenth century he had become sufficiently important to attract the attention of the legislature, which had enacted in 1545,\[3\] that he should be directly appointed by the crown--though in the next reign a return was made to the old plan of appointment through the Lord Chancellor.\[4\] It was from the custos routlorum that the small clerical staff possessed by the justices emanated;\[6\] and this was quite in accordance with the medieval ideas, expounded by Coke in _Mitton's Case.\[6\]_ The official responsible for the records of the court ought, because he was responsible, to appoint its clerical staff. Otherwise the law would be imposing responsibility for the acts of persons whom the person responsible did not appoint, and could not therefore control,\[7\] This was a principle which was applied to the officials

### Xvith Cent. At Home and Abroad

both of the sheriffs and of the central courts of law ; and we have seen that it was jealously guarded from all attempts at royal encroachment.1 Thus from an early date the _Clerk of the Peace_--the official responsible for drawing up the records of the peace and the other clerical work of the sessions--had probably in most cases \[2\] been the appointee of the Custos Rottolorum ; and it was enacted in I 545 that this should be the law for the future.\[8\] By the statute of Richard II.'s reign, which allotted 4s. a day to the justices during the sessions,\[4\] the clerk of the peace was given half that sum during the same period.\[5\] But, like other mediaeval officials, his chief remuneration was derived from fees charged for work done.\[6\] He was allowed to appoint a deputy,\[7\] and for certain purposes he was regarded as the representative of the shifting body of justices.\[8\]

Individual justices had, probably from an early period, their private clerks who were similarly remunerated ;\[9\] and, as the various sessions, special and petty, sprang up, we get other clerks performing duties similar to those performed by the clerk of the peace at quarter sessions ;\[10\] and gradually gaining official recognition.\[11\]

Besides this scanty clerical staff the justices had at this period no other paid officials attached to them. It is not for a century

## 11 Old and New Machinery

or more that we shall meet a county treasure;1 and we must wait still longer before we meet a county surveyor.2

Footnote 1: Webb, op. cit. 507-512; the Elizabeth plan was that the justices should appoint special treasvers for special rates such as the poor rate, or the rate to relieve distressed soldiers, see 39 Elizabeth c. 3 SS r3; 43 Elizabeth c. 2 SS r2, and c. 3 SS 3. In Derbyshire, from Elizabeth to Anne, the clerk of the peace acted as county treasurer, C. J. Cox, Three Centuries of Derbyshire Annals i rjo; the first definite appointment of a county treasurer in that county was not till r708, ibid r20.

Footnote 2: Webb, op. cit. 512-521.

That the justices were able to do their work with this scanty official staff is due in part to the fact that they were able to use the old officials of the communal and franchise courts,3 and in part to the manner in which they were assisted by the new parochial organization, which was taking shape in this century, and gradually occupying the place left vacant by the decay of the old communal organization of hundred, tourn, and leet. Of this new unit in local government, therefore, and of its relation to the justices we must say a few words.

Footnote 4: Hobouse, Churchwardens' Accounts (Somestet Rec. Soc.) iv _xi_.

(iii) _The Rise of the Parish as a Unit of Local Government and its relation to the Justices of the Peace._

From an early period the Parish had been a community occupying a definite tract of land, the affairs of which were, in the absence of a custom to the contrary, managed by its adult members.4 Writers of the middle of the last century thought that it was originally a secular community. They thought, therefore, that it had always possessed those secular functions which they saw it performing,5 and that its ecclesiastical functions were of later origin and of minor importance.6 In their opinion its historical importance lay in the fact that it had a prescriptive claim to be the unit of all local administration;7 and in this supposed fact that English local government was thus founded upon a self-governing and self-sufficing unit of this kind, and not upon the powers of officials acting merely as the agents of the central government, they discerned the efficient secret of the English constitution.8

Footnote 4: Toulmin-Smith, The Parish i rj, 1r8, 1z3, 1z4, 1r4 n.

Footnote 5: Vol. ii 405.

That the English system of local government differs fundamentally from the continental system because it is a system of self-government, is, as I have already pointed out, perfectly true.9

**152 XVITH CENT. AT HOME AND ABROAD**

But the historical explanation of this fact is not quite so simple as the enthusiastic advocates of the claims of the parish imagined. We know more about the many varieties of community which flourished in the Middle Ages than was known when Toulmin-Smith wrote, and we have learned to distinguish between them. We can no longer confuse, as he confused, such separate units as township, tithing, leet, and parish. At the present day the better opinion is that the parish was originally a unit which was wholly ecclesiastical ; and that it only gradually became a unit of the secular government in the last half of the sixteenth century.1 In fact the secular parish is a post-Reformation phenomenon--a result of the new relations between church and state effected by the legislation of Henry VIII. and Elizabeth.

In order to understand the use which the state made of this old ecclesiastical unit in the sixteenth century, I must, in the first place, say a few words as to its character in the days when it was a purely ecclesiastical unit. In the second place, I shall deal with the manner and stages of the process by which it acquired secular functions, and with the character of the functions assigned to it. In the third place, I shall endeavour to explain why the Tudors adopted this ecclesiastical unit and turned it to secular uses, and to indicate the place which they assigned to it in their scheme of local government.

(_a_) The parish as a unit of ecclesiastical government.

Bishop Hobhouse defines the parish as a "community dwelling in an area defined by the church, organized for church purposes, and subject to church authority."2 All the residents were parishioners, and all adult members, male or female, had a voice in its management.3 The meetings of the parishioners took place in the church.4 Here they chose their wardens, appointed committees,5 audited their accounts, made orders as to the parish property, provided for the needs of the church furniture

**OLD AND NEW MACHINERY 158**

\*\*or fabric by the imposition of rates or by voluntary contributions. The duties of the parish with respect to the maintenance of the church furniture were enforced by the ecclesiastical courts; \[1\] when necessary, the duty of the individual parishoners to pay a rate was enforced by the same tribunals; \[8\] and their jurisdiction in these cases was recognized by the secular courts.\[8\] The secular courts also recognized the rights of the parishoners to choose and dismiss their officers,\[4\] the right of the churchwardens to hold the property necessary for the fulfilment of their ecclesiastical duties,\[6\] and their right to take measures for its protection.\[6\]

Thus in the Middle Ages the parish was a self-sufficing, self-governing ecclesiastical unit of a pattern not unlike those secular communities of manor, hundred, feet, and county, through which the local government of the county was conducted. Like them it was the centre of a vigorous independent life. In them the secular life of the community, in the parish its religious life, centred.\[7\] As with the secular communities, so with the religious community, we see it engaged in many activities which would have seemed strange to the lawyers of a later age.\[8\] Much property both real and personal was given to it by its members.\[9\] It farmed its own land, it managed its own live stock, its brewhouse, its bake-house, and its church-house.\[10\] The church-house indeed was a source of considerable profit. It could be let;\[11\] and the church ale, at which food and drink made from the 1 Hobhouse, op. cit., xi, xii.

\[FOOTNOXVITH CENT. AT HOME AND ABROAD

parish stock was sold to the parishioners, was the medieval counterpart of the modern charity bazaar or sale of work.1 Through its officers or its committees it saw to the manufacture of the things needed for the upkeep or the ornamentation of the church,2 and it supervised the fulfilment of the various purposes for which property had been given to it by pions donors.3

Footnote 1: Hobhouse, op. cit. xxi, xxii; in the seventeenth century these church ales sometimes led to disorder, and the judges of aszic, the Lord-Lieutenant, and the justices agreed that they should be suppressed; on the other hand some of the bishops supported them, see ibid App. B 245, 246; Toulmin-Smith, The Parish 496-506.

Footnote 2: "When books were wanted parchment was bought, a scribe was hired, a bookbinder fetched and furnished with material, clock weights and sheets of lead were cast on the spot; " and similar arrangements were made when it was necessary to make carved work or vestments for the church, Hobhouse, op. cit. xx.

As with the secular communities of the land, so with the parish, in early days neither its boundaries, nor its membership, nor the machinery by which it performed its functions were very definitely ascertained; 4 and, as we shall see, the law upon these points has, in the case of the parish, remained uncertain down to quite modern times.5 The reason for this continued uncertainty is, I think, to be found in the fact that the parish was in the Middle Ages a unit of the ecclesiastical government only; 6 and that for this reason its connection with the central government was less close, and its control by the central courts of law was weaker, than was the case with the units of secular government. The spheres of activity of the units of secular government and their powers and their duties, had been defined and regulated from the thirteenth century onwards.7 The parish had not been subjected to this discipline; and when, with the growth of its secular functions, it began to appear more frequently before the courts of common law, those courts had few precedents to guide them. Thus, as each case arose for decision, they were free to interpret customary rules as they pleased, and to give effect to the local customs of particular localities.

Footnote 3: At Morebath (ibid 208-209) there were committees of from three to nine who controlled the church stock; they were elected by the Parish and accounted to them. There were also no less than eight separate " stores "--i.e. funds devoted to particular saints or religious or charitable purposes, each of which was separately audited; cf. Select Cases in the Star Chamber (S.S.) ii 270-276 for other specimens of these accounts.

Footnote 4: Webb, Local Government, Parish and County, i-i5, 32; 33, 37-40; Hobhouse, op. cit. xi.

Footnote 5: Below i58-160.

Footnote 7: Vol. ii 396-400.

But though the rules of law regulating the sphere of action and the machinery of the parish were, at the close of the Middle Ages, less definite than the rules regulating the sphere of action and the machinery of the secular communities, the parish had for that very reason continued to possess a more active and a more

## 10 Old and New Machinery

definite communal life and feeling.1 As we have seen, the effect of the control of the common law was to weaken communal life and feeling, because the authority of the common law was substituted for the authority of the community.2 Moreover, the fact that the parish was the owner of property further strengthened this communal life and feeling. In this respect parishes were more like the boroughs than the communities of the country at large;3 and it is noteworthy that both the Year Books and the later cases sometimes say that, in respect of its ownership of property, the parish is a sort of corporation.4 It is for these reasons that the parish remained an active community right down to the Reformation period; and it is in this fact that we can see one of the main reasons why the Tudor statesmen gradually adopted it as a unit of secular government. To the process by which this adoption was effected, and its extent, we must now turn.

Footnote 1:

### 156 XVITH CENT. AT HOME AND ABROAD

impotent. The clergy were to exhort persons to give alms for this purpose, and the churchwardens and others were to collect these alms. For this purpose the churchwardens and four or six of the parishioners were ordered to appoint collectors, who must account to them once a quarter. The alms were to be kept in the common box of the church, and the person was to keep the accounts. Contributions to these alms were entirely voluntary. Statutes of Edward VI.'s reign strengthened the connection of the parish with poor relief. Children were to be apprenticed; 1 and the enforcement of the principle that cities, towns, and villages were liable to relieve the paupers born there,2 introduced the law of settlement. A later Act provided that registers of those needing relief should be kept by the person and churchwardens ; and that contributions should no longer be entirely voluntary--those who refused to contribute being made amenable to the jurisdiction of the ecclesiastical courts.3 These duties were further enforced by a statute of Philip and Mary's reign;4 and in addition the parish was made responsible for the highways.6 Constables and churchwardens were to choose surveyors. On four days to be appointed by the constables and churchwardens the parish was to turn out with tools and carts and mend the roads. The leet and the justices of the peace were to enquire into defaults; and the surveyors were to account to the churchwardens.

The Elizabeth statutes relating to the poor law finally fixed the status of the parish as a unit of the secular government, and determined its relations to the other organs of that government. This legislation gave to the parish an organized machinery for the relief of the poor, and for raising rates to defray the cost of that relief; and it put that machinery under the control of the justices of the peace. This machinery was soon adapted to the enforcement of the other duties which were imposed on the parish in relation to the highways, the destruction of vermin, the notification of recusants, and the relief of disabled soldiers and sailors.

In the first of the Elizabeth statutes dealing with the poor law passed in 1563, the principle of compulsory contribution was retained; but the compulsion was no longer left to the ecclesiastical courts. The bishop was to present to the sessions those who refused to contribute; and the sessions were to assess their contributions.6 A statute of 1572 gave the justices a larger control.7 They were to make lists of impotent persons resident for the last three years in their districts, determine their place of settlement,

## 15 Old and New Machinery

estimate the cost of maintaining them, assess the inhabitants, and appoint collectors. They were also to appoint annually to the office of overseer, a new office created by the statute for the supervision of the work of rogues and vagabonds \[1\]. In 1574 \[2\] two justices were given power to make bastardy orders in order to relieve parishes burdened by pauper bastards ; and provision was made for the maintenance by the parish of a stock of wool, etc., on which the collectors, and officers to be called the governors of the poor, were to set the poor to work. Those who refused to work were to be sent to the houses of correction established by the same Act. In 1597, \[3\] and 1601 \[4\] came the two Acts upon which the Poor Law rested for many centuries, and on which to a large extent it still rests. The church wardens and four substantial households were to be nominated overseers of the poor under the hand and seal of two or more justices resident near to the parish \[5\]. These overseers must apprentice children, employ paupers, build houses for them, and raise rates ; and every month they must account to two justices. Persons aggrierved by the manner in which they were assessed could appeal against the assessment to quarter sessions. Parents were made liable to maintain their pauper children and children their parents. Another Act of 1597 \[6\] enforced the obligation of the parish to maintain its own poor. Wandering rogues were to be sent to their parish of birth or last settlement.

The parish thus became the unit for the assessment of rates, and acquired an executive staff which, under the control of the justices, made the assessment and administered the machinery for the relief of the poor. But obviously a unit of rate assessment, and an executive staff which collects rates, will soon be used for the collection of many other rates ; and a machinery which can administer the poor law can also administer other things. Thus in Elizabeth's reign the parish collects rates for the repair of the highways \[7\], for the destruction of vermin \[8\], for the relief of prisoners \[9\],

### Xvith Cent. At Home and Abroad

and for the relief of disabled soldiers and sailors.1 The Elizabeth legislation which gave the parish the position of the rateable unit of the county, and a machinery for rate assessment and other governmental functions, assured to it a permanent position as a unit in the local government of the country.

But when the parish had attained this position it was inevitable that it should attract to itself some of the functions of the older communities into the place of which it had stepped. As early as Henry VIII.'s reign the constable was beginning to be associated with the parish rather than with the township or tithing;2 and by the end of the century he had come to be its most important executive official.3 In the eighteenth century we sometimes find it issuing orders as to rights of common, or as to sheep or cattle, which in earlier days would have been issued by a managerial court.4 The possession of such officials as a Hayward, a Common Driver, a Neatherd, or a Hogwarden would seem to show that it was assuming some share in the regulation of the common field system of agriculture;5 while such officials as an Aleconner, a Scavenger, or a Bellman would seem to show that it was assuming some of the duties and adopting some of the officials of the leet.6 That the parish was thus able to step gradually into the place of some of these older communities is evidence that it was a community which had inherited a good deal of their spirit. In its somewhat indefinite powers to make by-laws and to impose rates,7 in its powers to compel the unpaid services of its members as its officials,8 it carried on, right down to modern times, some of the characteristics and some of the traditions of the older communities, through which the local government of the country had been carried on from before the time of legal memory.

Footnote 1: 35 Elizabeth c. 4; 39 Elizabeth c. 2r; 43 Elizabeth c. 3.

Footnote 2: 22 Henry VIII. c. 1z SS 3--Parishes were to be fined for the negligence of their constables.

Footnote 3: 3 Webb, Local Government, the Parish and County 25, 26; above 1z4.

Footnote 4: 4 Toulmin-Smith, The Parish SS26, SS28.

Footnote 5: 5 Webb, op, cit. 34.

Footnote 7: B. 44 Ed. III. Trin. pl. 13; Chamberlain of London's Case (159r) SS Co. Rep. 6a; jeffrey's Case (1590) 5 Co. Rep. 6a; Newson v. Dawldry (1702) 7 Mod. 65, 70; Webb, Local Government, the Parish and County 39.

Footnote 8: 8 Webb, op, cit. 15 and n. 2, 16; 40, 41.

Thus in addition to its ecclesiastical functions the parish acquired a large number of statutory civil functions and a few new officials. Its ecclesiastical functions and officials, and its statutory civil functions and officials, were much the same all over the country. But in some places more, in some places less, the assumption by it of the duties and officials of some of the older communities introduced some variations. Still greater variations

## 10 Old and New Machinery

were caused by the differences in the size of different parishes, and the differences of environment in which its duties were performed. Thus we are not surprised to find that many different forms of government were developed by different varieties of parish.1 This was possible because the Tudor legislation left the parish very free to manage its affairs in its own way, subject to the supervision of the justices of the peace; and, in the absence of fixed rules, local customs adapted to the needs of any given locality could easily grow up. We have seen the courts were not fettered by many precedents on questions of parish government. They were therefore free to sanction these local customs, and, if they were reasonable, they generally did sanction them.2 This process was further helped by the somewhat nebulous position of the Vestry or meeting of the parishioners under the Tudor legislation.

Footnote 1: Webb, op. cit. Bk, i chaps. ii, iii, and v.

Footnote 2: Ibid 175-rgo--as Web says at pp. r75, 176, " a large part was played by local custom in the organization of the ordinary parish; the ' ancient usage ' of the locality was suffered by the law courts to modify, and even to contradict, the plain directions of the common law, and, occasionally, of express statutes; it could vary the number, method of selection, and area of jurisdiction of all the parish officers, not merely of such old-world funcnaturies as Constables and Churchwardens, but also of such modern statutory creations as Overseers of the Poor and Surveyors of Highways."

Footnote 3: Ibid 175-rgo--as Web says at pp. r75, 176, " a large part was played by local custom in the organization of the ordinary parish; the ' ancient usage ' of the locality was suffered by the law courts to modify, and even to contradict, the plain directions of the common law, and, occasionally, of express statutes; it could vary the number, method of selection, and area of jurisdiction of all the parish officers, not merely of such old-world funcnaturies as Constables and Churchwardens, but also of such modern statutory creations as Overseers of the Poor and Surveyors of Highways."

Footnote 4: Webb, op. cit. xi ', Toulmin-Smith, The Parish 237-240; cf. Phillibrown v. Ryland (1725) 8 Mod. 52, 35I.

Footnote 5: Webb, op. cit. 38-40; "what we may call the membership of the parish was as indeterminate as its boundaries. Both law and custom assumed that the inhabitants of a parish were those who were reputed to 'belong' to it. Whether by this was meant all who actually resided in the parish, or those who owned or rented lands or houses within the parish . . or merely the heads of households, or the adult men only, or those only who possessed what was called a legal settlement in the parish, was never generally determined by law, and differed according as different rights or obligations were in question. . As for the right to be present at the vevretings, and thus to take part in the government of the parish, it had apparently never been thought of sufficient importance to obtain either statutory or 'udicial decision," ibid 14, 15.

In the Middle Ages, when the parish was an ecclesiastical unit, the general rule was that all parishioners could take part in the parish meeting held in the vestry; and that this open vestry was the normal type of vestry continued to be the presumption of the common law, after the parish had acquired its civil function.3 But, under the Tudors, the powers of the vestry were of a somewhat shadowy kind--so shadowy that the question who was entitled to take part in it was never precisely defined.4 All the real power was tested in the officials and the leading men of the parish, who performed the various functions of the parish under the supervision of the justices of the peace.5 It is clear that this state of things will somewhat easily lead to the rise of the Close Vestry. Customs which restricted the vestry to the officials and the leading members of the parish were allowed to be proved

### XVITH CENT. AT HOME AND ABROAD

somewhat easily by the courts.1 In fact, as we shall now see, the place assigned to the parish in the Tudor scheme of local government tended to make such customs seem eminently reasonable.

($\\epsilon$) The reasons why the Tudors adopted the parish as a unit of secular government, and the place which they assigned to it in their scheme of local government.

I have already indicated one reason why the state adopted this ecclesiastical community as the primary unit of the machinery of local government. We have seen that, unlike the older communities of township and manor, of hundred and county, the parish still retained a vigorous and an active life.2 Moreover, in the sphere of civil government, it was a new community. The common law had not as yet acquired many detailed rules concerning it; and for that reason it could be the more easily moulded to suit the new needs of the modern state.8

Footnote 1: Webb, op. cit. 176-18r. 2 Above 154-155. 2 Above 159-4 Above 156-157. 3 Footnote 3: W.

## 1 Old and New Machinery 161

was made compulsory, and a machinery for levying the necessary rates and for administering the poor law was created and grafted on to the organization of the parish. But, as we have seen, a machinery which can levy poor rates, relieve the poor, apprentice children, and maintain houses of correction can levy rates for other purposes, and can perform other administrative duties. It can be asked to look after the highways, to destroy vermin, to relieve distressed soldiers and sailors ; 1 and, when once this administrative machinery had been tried and found to work successfully, there was another very cogent reason for still further adding to its functions.

The machinery of the parish thus adapted by the state to its own needs supplied exactly the element which was wanting to the organization of local government under the justices of the peace. The organization of the justices of the peace was well suited to the conduct of their judicial duties. It was suited also to the conduct of such administrative work as could be done under the judicial forms, either of presentment, or of applications made to them as a judicial or a semi-judicial board. They could, for instance, punish criminals, deal with negligent officials, and order things to be done to which their attention had been called, because all such matters could be brought before them by the presentment of a jury or by the application of an aggrieved person.9 But for the purely administrative business of levying rates, looking after the poor, or repairing highways, a body of officials was needed which could act continuously on its own initiative. A body was wanted which could administer, and not merely punish failures to administer. But the officials who were competent to do this must be persons who were in touch with small districts, and with the individuals who inhabited those districts. The parochial officials had these qualifications. And it is not too much to say that it was the fact that the justices of the peace could rely upon an organization of this character, which made the development of their administrative powers possible, and enabled them to deal with the county business as efficiently as they dealt with their judicial work. Already in Elizabeth's reign we can see that the organization of the parish is being used in this way. Its rating machinery was used to levy the rates for the relief of prisoners, and of distressed soldiers and sailors, which were paid over to specially appointed treasurers and distributed by the justices.8

Now it is clear that the character of the functions thus

### XVTH CENT. AT HOME AND ABROAD

assigned to the parish made it impossible that they should be discharged by a large parish meeting. They necessarily fell to be performed rather by the officials of the parish and its leading members, than by the parish as a whole ; and doubtless it was partly for this reason that we find that close vestries tended to grow up, and that the courts were somewhat ready to presume the existence of the immemorial usage needed to give them legal validity.1 But these officials, in whom so many powers were vested, were the officials of the parish ; and the members of the vestry, open or close, represented the parish. In fact these officials stood to the parish in somewhat the same relations as the justices of the peace stood to the county. The organism of the parish was at the back of the parish officials--the constable, the churchwardens, the overseers, and the surveyors of highways --just as the organisms of the counties and the hundreds were at the back of the county justices, and the organism of the boroughs at the back of the boroughs justices. Thus organic and semi-corporate units, reminiscent of the mediaeval scheme of local government, formed a background to the new system of local government. Moreover, the men who were responsible for the conduct of this new system possessed that local knowledge and local patriotism, and the system itself possesscd that capacity for educating the citizen in the art of administration, which were the strong features of the mediaeval regime. The weak point in that regime in the later mediaeval period had been the absence of adequate central control and supervision.2 But we have seen that this defect had, to a large extent, been remedied by the extension of the control over the justices of the peace exercised by the Council and its branches, by the lord-lieutenants, and by the judges of assize.3 Similarly, an adequate control over the parochial officials was provided by giving the justices of the peace somewhat the same position in relation to them as the central government had assumed in relation to the justices of the peace.4 In both cases an effective control was exercised; but

## 10 Old and New Machinery 168

in neither case was the control of the higher authority extended so far as to deprive the lower authorities of all initiative and all discretion. The power of the controlling authority was strengthened ; and, considering the large number of new powers entrusted to the authorities responsible for the conduct of the local government, it was necessary that it should be strengthened. But it was not strengthened to such a degree that the units of the local government ceased to be self-governing. But of this distinguishing characteristic of the English system of local government I must say something more in the following section.

(iv) _Characteristics and Tendencies of the New System of English Local Government._

In some respects the development of the institutions of English local government is parallel to the development of similar institutions in the principal states of Western Europe. In England, as elsewhere, the mediaval communities and the mediaval officials, through whose agency the work of local government had been carried on in the fourteenth and fifteenth centuries, were not sufficient for the needs of the sixteenth century. Legal control was weak, because there were no rules of law sufficient for the guidance of the units of local government in a modern state. Political control was weak because the recruited of feudal disorder had almost eliminated the authority of the central government. The machinery itself was unable to perform the many new tasks which the many fundamental changes of this century had laid upon it. In England as elsewhere these three defects were supplied by the growth of a strong executive government. The Council restored the authority of the law, controlled the working of the local government, and devised more efficient machinery for the performance of its duties old and new.1 In these respects the English development was similiar to the continental development.2 But in spite of this amount of similarity, it is the dissimilarities which are the most striking and the most fundamental ; and it is in these dissimilarities that we can see the most important of the characteristics of the English system of local government.

Footnote 1: Above 71 80, 137 seq. . Above 109-III. . Above 109,

### 164 Xvith Cent. At Home and Abroad

the older self-governing authorities a set of delegates, who acted under the orders of the central government, who were amenable only to its control, and who were largely exempt from ordinary rules of law.1 In England, on the other hand, the position was very different. From the latter part of the twelfth century a strict control had been exercised by the Curia Regis and its offshoots over the self-governing communities of the early medieval period. This control had made it possible for the state to use these communities in the fourteenth and fifteenth centuries as an integral part of a new system of local government founded upon the justices of the peace. In the sixteenth century the Tudors made these justices the chief officials of their system of local government; and it was due to the manner in which they were controlled and supervised by their Council that they were able to assume the control over the local government of a modern state, to act on their own initiative as administrators, and to supervise the humbler officials. In England, as abroad, power tended to be vested in officials rather than in communities ; and the increased complexity of the problems of government made this change inevitable. But in England these officials were not wholly new officials who were simply the delegates of a central board. They were mediaval officials who were closely connected with the older communities ; and they had behind them the traditions of the time when these communities were self-governing units. Their powers were flexible like the powers of these communities. They acted through the agency of the older officials of the county, and, in respect of a large part of their work, through the medieval judicial forms.3 They were bound by the ordinary rules of law ; and though the central government issued orders in special cases, and gave general advice or directions either immediately or through the judges of assize, they were free, subject to that control and to the control of the law, to act as they pleased in the execution of their authority. The officials of the parish, old and new, were, in their humbler sphere, in somewhat the same position ; 3 and we have seen that the justices stood to the machinery of the parish and its officials in a relation somewhat similar to that in which the Council stood to them.4 It is true that in London, and in those parts of England which were subject to the jurisdiction of provincial Councils, the control of the central government was closer ; but it never became so close as to render the justices merely its subordinates and agents--a fact which was recognized by the Council itself.5 The continental system was comparatively simple

**OLD AND NEW MACHINERY**

**and symmetrical ; and in time it produced a trained civil service. The English system was complex ; but it was understood by the people at large, because it had developed gradually from century to century ; and it taught the people at large to govern themselves, from the humbler classes who were obliged to serve as constables, surveyors, overseers, or churchwardens, to the higher classes who were obliged to serve as lord-lieutenants, sheriffs, or justices.**

**(_c_) It will thus appear that, while abroad the officials through whom the local government was conducted were subject simply to the control of the central executive authority, in England they were subject both to the central executive authority of the Council and its branches and to the ordinary law administered in the ordinary law courts. As the century advanced the control of the Council tended to become more detailed and more regular--it is always the tendency of a strong centralized institution of this sort to assume gradually greater powers, and to become arbitrary in their exercise. On the other hand, the internal peace which the Council had secured enabled the courts of common law to adapt themselves to the new conditions. They were able to evolve new principles, and to give a new point to old principles ; and the direct consequence of these principles was a claim to a larger share in the control of the activities of all the officials through whom the local government was conducted.1 It is clear that these two forms of control, so fundamentally dissimilar, will be bound sooner or later to conflict.**

Footnote 1: Above 75-76 ; below 188, 274.

The issue of that conflict, it was clear, would be doubtful. To those who looked only at the strength of the Tudor Council, at the extent of the powers exercised by it, and at the continental analogies, it might appear that the Council would have an easy victory. But, as we have seen, to look only at these things was to take a false view of the real position. The coercive authority of the English Council was comparatively weak ; and the English system of local government, by educating Englishmen of all classes to exercise political authority, caused them to be impatient of too much control by a centralized board. These were important factors in the situation. But the most important factor of all was

### 166 XVITH CENT. AT HOME AND ABROAD

the growth, at the end of the century, of the independence of Parliament. All through the century the legislative power of Parliament had put some limits to the power of the Council to issue any orders that it pleased; 1 and, at the end of Elizabeth's reign, this legislative power was not so much under the control of the executive as it had been in the reign of Henry VIII.2 It is clear that the limitation upon the authority of the Council, involved in the existence of this power, will be a valuable weapon in the hands of judicial courts, desirous of establishing their claims to exercise a rival control over the conduct of the local government on strictly legal principles.3 Thus, by the side of the system of centralized administrative control exercised through the Council and its branches, there was growing up simultaneously an opposition to that control. Parliament must be consulted before any departure was made from ascertained rules of law, and its consent was by no means a matter of course. The ordinary courts of law claimed to pronounce upon the validity or invalidity, not only of the acts of the officials of the local government, but sometimes even of the acts and orders of the Council itself.4

Footnote 1: Above 99-704.

Footnote 2: Below 188, 274.

Footnote 3: Vol. ii 430-434.

Footnote 4: Hallan, Middle Ages ii 24-33, 55, 56.

Footnote 5: Esmein, Histoire du droit Francais 568 seqq.: Brissaud, Histoire du droit Francais 805, 806. Sometimes they exercised extraordinary powers, e.g. in 1355? 357 they controlled the administration, and in 1420 they ratified the treaty of Troyes; they also claimed certain rights of election to the throne in case of a vacancy, certain rights during the minority of the King, and certain rights of sanctioning alienation of the royal domain, Esmein, op. cit. 565-568 ; but these claims were shadowy--on such matters they did little more than deliberate; their ordinary rights were those stated in the text.

Parliament and the ordinary courts of law were old allies;6 and I must now endeavour to describe the unique position in the English state which the continuance of this alliance enabled them, during this century, to claim.

Footnote 7: As a consequence, the

## 10 Old and New Machinery 167

of the English Parliament, these representative assemblies failed to stem the tide of absolutism in the sixteenth century, and survived, if they survived at all, merely as the shadows of their former selves. The Castilian Cortes, after the revolt of the _communeros_ (1520-1521) became completely subservient to the king, who bribed or nominated its members \[1\]. After 1591 the Cortes of Aragon were similarly muzzled \[2\]. The Estates General lost their powers earlier. The stress of the hundred years' war induced them to vote permanent taxes to keep on foot a paid army (1435 and 1439); and they tried in vain to regain their lost control over taxation \[8\]. By the second half of the sixteenth century their consent or their refusal to consent to a new tax was a matter of no importance. They never acquired a power to legislate. They could advise, complain, or petition ; but that was all \[4\]. The right to petition did not, as in England, develop into a right to consent to, to refuse to consent to, or to propose new laws \[5\]. The king was free to act or not as he pleased upon their petitions \[6\]. These petitions, it is true, often supplied valuable material for the making of laws ; but, as in England in the fourteenth century, it was the king who made the laws \[7\]. Even though their powers were thus diminished, they were distrusted. Their existence gave countenance to democratic claims, which assorted ill with the position which the monarchy had assumed \[8\]. After 1614 none were assembled till the eve of the Revolution.

The reasons why these representative assemblies failed to become a permanent check upon the king, and a permanent part of the constitution were mainly two. In the first place, their constitution and procedure were defective. In the second place, they excited the hostility of the lawyers, because the position which the lawyers claimed for the law courts seemed to be threatened by the claims of these assemblies.

Ranke, Turkish and Spanish Monarchies (Kelly's Tr.) 56-58; in 1534 it was said that a place in the Cortes was worth 14,000 ducats ; after 1538 the nobles were never summond.

### 2 Ibid 64, 65.

? Fsmein, op. cit. 569-573-4 4 Ibid 573-575.

? Vol. ii 435-440.

? Le roi etait libre absolument de repousser les demandes ou d'y accdder ; c'etait une supplique qui lui etait addresse \[5\]. Esmein, op. cit. 575 ; under Philip II. the position of the Cortes in relation to the King was very similar, Ranke, op. cit. 59, 60.

? Hence, as in the English Parliament, we get complaints that, " Le pouvoir royal denaturat les articles des chaiers ;" cp. vol. ii 439.

? Hotman, Franco-Gallia (Ed. 1573) cc. xv-xviii argues from the history of the Estates General, as English statesmen argued from the history of the English Parliament, that the French monarchy was not absolute--" Uctumque sit, perspicuum est, nondum centisimum annum abiisse ex quo Francogallia liberas, solemnique conciliit autoritas vigebat, et vigebat versus regem \[Louis XI\]. tanta imperrii magitudine practitioner, quantam nunquam in ullo rege nostro fuisse constat ;" cp. H. Lureau, Les doctrines democatiques de la seconde moitie du XV1e siecle 5-10, for instances of claims to the exercise of various powers made by or for the Estates General in the fifteenth and sixteenth centuries.

**168 XVITH CENT. AT HOME AND ABROAD**

(1) The constitution of these assemblies was defective. The

nobility and the _tiers flat_ sat separately. Either the nobility were not summoned; or, if they were summoned, they failed to attend, as in Castle; **1** or, if they attended, they failed to act with the _tiers t'at_, because their interests were too divergent. Thus in

France the exemption of the nobility from the _taille_ caused them

to take little interest in the struggle to gain control over taxation.2

Footnote 2: The reader is referred to the book \[1\].

The procedure of these assemblies was even more defective. Their activities were seriously limited by old rules which were survivals

of a very primitive stage in the history of law. Thus in Aragon,

till 1591, the principle that a decision could be arrived at by a

majority vote was unknown--a single dissentient could prevent

the levy of a tax or the passing of a law.3

Footnote 3: The reader is referred to the book \[1\].

The modern sovereign

state has many points of similarity to very primitive man. This

rule was obviously based upon much the same reasons as have

made it necessary to provide that, generally, the decisions of both

the Assembly and the Council of the League of

Nations shall be unanimous.4 Both in France and in Castile it would seem that,

without express powers from their constituents, the deputies could

do nothing except present grievances.5 These rules represented

archaic legal ideas which were being rapidly driven from the

legal systems of the principal states of Europe by the victorious

advance of Roman Law, and the consequent increase in the

coercive power of the state.

(2) The preservation of these archaisms partially explains

the hostility of the lawyers. The order of legal ideas with which

the lawyers of this age of the Reception were familiar was very

different from the order of legal ideas which these assemblies

represented. But the cause for this hostility really went deeper

than this. In many countries, and notably in France, the claim

1 Ranke, op. cit. 56, 57:

2 Esmein, op. cit. 6zo; in Spain there was a long-standing feud between the

towns and the nobles, Ranke, op. cit. 56.

3 Ibid 65; it was enacted in 1591 that for the future, " the majority of every

estate constitutes the estate; even if a whole estate be wanting this shall have no

influence upon the constitution of the Cortes, provided that the same shall have

been duly summoned according to law; **1** and see generally as to the Cortes of the

Spanish Kingdom in the later Middle Ages, R. B. Merriman, r6 Am. Hist. Rev.

476-495; for some account of the history of the majority principle see Redlich, The

Procedure of the House of Commons it 261-264; vol. ii 431 and n. 4.

4 " At the present stage of national feeling, sovereign states will not consent to

be bound by legislation voted by a majority, even an overwhelming majority, of their

fellows," cited Pollock, League of Nations 103-104.

5 Esmein, op. cit. 559, " Les deputes aux Etats generaux etaient, quant a leurs

pouvoirs, soumis au regime qu'on appelle le mandat imbratif. **1** Plus d'une fois les

depuites reponfient aux demandes royales que celles-ci excedient leurs pouvoirs,

et il fallut les renvoyger devant leurs electeurs pour en rec recuvor de nouveaux; **1** for a

similar rule in Castile see Ranke, op. cit. 58--Charles V. got over it by dictating a

comprehensive form of credentials which must be given to all deputies; for similar

and greater defects in the German diet see Camb. Mod. Hist, i 290, 291.

## 10 Old and New Machinery

### of the central courts to exercise political functions made them the rivals of these assemblies.1

Footnote 1: Esmein, op. cit. 570-571, tells us that in 1484 the Parlement of Paris turned a deaf ear to the request of the duke of Orleans that it would assent to the principle that the taxes should not be increased without the consent of the Estates--" C'est qu'il s'agissait des Etats generaux, c'est a dire d'un pouvoir politique en partie rivale, dont les parlements contrarierent incontestablement le developpement et auquel ils chercherent a se substituer; " cp. Armstrong, French Wars of Religion 15, 24, 25 for the events of r566.

Footnote 1: Op. cit. 15.

Footnote 1: Vol. ii r33-132, r95-r96, 252-256, 441-443; above zr.22; Esmein, speaking of the Parlement of Paris (op. cit. 426), says, " Quoique le parlement rendit ses sentences au nom du roi, source de toute justice, dans les arrets qu'il prononcait, c'etait la cour qu'on faisait parler (la cour ordonne, condamne) tandis que, dans les arrets du conseil du roi, le roi parlait toujours en personne (_par le roi en son conseil_)," -this very neatly expresses the contrast between the ideas which underlay the jurisdiction of the older courts, and the ideas which underlay the jurisdiction of the newer courts of the sixteenth century; cp. vol, i 40 for the same idea in England that it is the court which gives the law.

As Mr. Armstrong has said, " The jealousy between judicature and legislature has been a prominent rock of offence in the pathway of French constitutional liberty."3 But in order to understand this cause for the jealousy of the lawyers I must explain the constitutional position which they claimed for some of these central courts.

Footnote 3: The name of the _Lav_, \_Lav

### 170 XVITH CENT. AT HOME AND ABROAD

The Justiza held his office for life, and was responsible only to the Cortes. He could prohibit any inferior court from proceeding with a case. He was the final judge on points of law arising in all other courts. By the process of _Juris-firma_ he could bring any case pending in the lower courts before himself: by the process of _Manifestation_ he could bring before himself any person imprisoned, that he might adjudicate upon the justice of the charge made against him. He administered the coronation oath to the king ; and often represented him in the Cortes. These powers were evidently designed to protect the subject against any infringements of the law.1 They existed till the revol of Saragossa in 1591. After that date the Justiza and his deputies became practically nominees of the king.2 The new idea that the king's will was law triumphed over the mediaval idea and the medieval institution invented to safeguard it.

Footnote 1: Hallam, Middle Ages ii 48-55.

Footnote 2: Ranke, Turkish and Spanish Monarchics 64, 65; Camb. Mod. Hist. iii 516, 517.

The Parlement of Paris is a more famous illustration of the same idea. By the end of the thirteenth century it had become a regular court of justice split up into several divisions--the Grande-chambre, the Chambre des Enquetes, the Chambre des Requetes, and the Chambre de la Tournelle.3 But besides this it regarded itself as the guardian of the fundamental laws of the state;4 and because it possessed these functions it was praised by Machiavelli as one of the wisest of French institutions.5 In the sixteenth and seventeenth centuries the reason for their existence was the subject of many conflicting theories.6 In truth it cannot be understood unless we remember the mediaval ideas as to nature of law, and as to the relation of the law to the court which administered it.

Footnote 3: See Esmein, op. cit. 409-426 for its origins; ibid 427-434 for its organization, and the description of the functions of these different divisions.

Footnote 4: "Ils se disaient en particulier les gardiens de _lois_ fondamentales ou _principles fondamentaux_ de la monarchie. On entendati par la certaines regles de droit public, considerees comme si essentielles que le roi lui-meme pleinement investi du pouvoir egislatif, ne pouvait y deroger," ibid 58a ; certain of these laws, such as the descent of the crown and the inalienability of the royal domain, were enumerated; but, beyond that, they asserted that the principle that the monarchy was not absolute but limited was a fundamental law,--" seulement ici on tombait dans le vague et les parlements avaient beau jeu;" for the very different history of this idea in England see vol. ii 441-446.

Footnote 5: In Principe, cap. xix.

Footnote 6: "Ils e disaient en particulier les gardiens de _lois_ fondamentales ou _principles fondamentaux_ de la monarchie. On entendati par la certaines regles de droit public, considerees comme si essentielles que le roi lui-meme pleinement investi du pouvoir egislatif, ne pouvait y deroger," ibid 58a ; certain of these laws, such as the descent of the crown and the inalienability of the royal domain, were enumerated; but, beyond that, they asserted that the principle that the monarchy was not absolute but limited was a fundamental law,--" seulement ici on tombait dans le vague et les parlements avaient beau jeu;" for the very different history of this idea in England see vol. ii 441-446.

Footnote 7: Esmein, op. cit. 583-585.

## 10 Old and New Machinery

1 supplementary rules and regulations as to matters which fell within its jurisdiction.\[1\] But the most important of all these methods was that of remonstrance, and of refusing to register laws submitted to it by the king.\[2\] It was this last power which for a long time moderated the absolute character of the French monarchy ; and it remained at intervals an obstacle to the crown right up to the end of the _ancien regime.\[3\]_

The manner in which the Parlement was composed would seem at first sight to render it an efficient guardian of the law. In France, as in England,\[4\] property and office were confused. Its members were a body which were practically irremovable, because they had bought their seats, and because they could hand them on to their nominees.\[6\] But in reality this was a source of weakness. They were a close oligarchical body.\[6\] They were often corrupt.\[7\] It was only occasionally and by accident that they commanded the confidence or sympathy of the public. Another source of weakness was the fact that the king had never ceased to exercise extensive powers over the court. He could not only control the conduct of or the decision in a case,\[8\] he could also personally intervene. If the king came down in person and held a "_lit de justice,_" he could force the Parlement to act as he pleased,\[9\] while it was always possible to intimidate or punish its members, and sometimes to disregard it entirely.\[10\] If he did not exercise these powers, and allowed a modification made by the Parlement, he could take credit for his moderation ; and this tended to make the rights of the Parlement look as if they were dependent merely upon his pleasure.\[11\] Again in later times, when provincial Parlements were multiplied, all of them claimed the same rights of refusing to register a law. Thus a law might be in force in some parts of the country and not in others.\[12\] Thus it happened that,

### 172 XVITH CENT. AT HOME AND ABROAD

except in times of political excitement, the Parlement was no permanent check on the royal will, for its remanentances could be disregarded, and its refusal to register a law overridden.

Thus neither the representative assemblies of the Middle Ages nor the powers possessed by the central courts of law were able to stand against the new institutions which made for royal absolutism. The constitution and procedure of the representative assemblies were so defective that they were powerless to act efficiently as organs of government in a modern state. They could hamper the activities of the executive government, and they could hinder the development of the state. But they were powerless to criticize intelligently or to control permanently. The lawyers were naturally on the side of the executive government in its efforts to rule efficiently. They were naturally opposed to ineffective assemblies which often voiced the aspirations of a turbulent feudalism, and attacked the abuses of the law. On the other hand, these assemblies had an advantage, the absence of which was fatal to the aspirations of the lawyers to stem the advancing tide of absolutism. They did in a manner represent the nation. The lawyers, as we have seen, in no sense represented the nation. Though the powers which they claimed might have made their courts efficient barriers against arbitrary government, they were the powers of a caste which was often deservedly1 unpopular. The destruction of their powers roused no national indignation. The enthusiasm for fundamental constitutional laws, administered by the lawyers in their courts, was naturally confined to the lawyers themselves. Nor can we say that the popular instinct was wholly at fault. Fundamental laws generally represent an old order of legal ideas ; and thus administered they are apt, in a changing age, to impede the due development of the state.

Footnote 1: H. Lureau, Les doctrines democatiques de la seconde moitie du XVIe siecle 19, " Peu a peu les parlements perdent leur etitude caractere, se mettent en lutte contre la royaute sans s'attirer les faveurs de l'opinion publique, et deviennent insupportables et impopuliaires."

"_Divide et Impera._" The new centralized machinery of government, having divided the forces opposed to it, was able to rule supreme. Having suppressed or muzzled the representative assemblies, and having deprived the courts of their political powers, it could exercise supreme authority ; and it was able to make that authority felt in every corner of the state, because it was able to supersede the older local officials by delegates responsible only to itself, and subject, not to the ordinary law, but to an administrative law which it itself dispensed.2 The facts were prepared, and the time was ripe. The first political philosOLD AND NEW MACHINERY 178

**sopher who could generalize from them could hardly fail to enunciate a theory of sovereignty.**

**The English Parliaments of the thirteenth and fourteenth centuries were, like the Spanish Cortes and the French Estates General, assemblies in which the king met the various Estates of his Realm.1 Like their foreign contemporaries, they aspired to control taxation and legislation. The English courts of common law and the English law, like their brethren on the continent, believed that king and subject alike were bound to obey the law; and they claimed and exercised the power to punish all persons or bodies of persons, save the king, who disobeyed it.2 But the constitutional history of the English Parliament, and the constitutional history of the English courts of common law differ entirely from the analogous continental histories. By the end of the sixteenth century Parliament was recognized as being the "highest and most authentical court of England;"3 and, under the leadership of Coke, the common lawyers were claiming that the common law administered in their courts was the supreme law, to which even the prerogative of the crown was subject.4 An examination of the causes for this divergence between the English and the continental development will show us the reasons why, at the close of the sixteenth century, the English state had assumed a form which was unique in Western Europe,5 and will enable us the better to appreciate the skill with which the Tudor sovereigns maintained an equilibrium amidst the complicated and unstable balance of forces existing in that state.**

Footnote 1: Redlich, Procedure of the House of Commons i 5, 6-9.

Footnote 2: Vol. ii 252-256, 435-436, 561-562.

Footnote 3: Smith, Republic Bk, ii c, 2.

Footnote 4: See e.g. Co, Third Instit. 84, "The common law hath so admeasured the prerogatives of the king, that they should neither take away nor prejudice the inheritance of any;" cp. Bacon's Argument in Calvin's Case, Works (ed. Spedding) vii 64,6 " Towards the king the law both a double office. The first is to entitle the king or design him. . The second is . to make the ordinary power of the king more definite or regular. And although the king in his person be _solitus legibus_, yet his acts and grants are limited by law, and we argue them every day."

Footnote 5: Below 200-277.

Footnote 6: Maitland, Parliament Roll of r305 (R.S.) xlvii; vol. i 354-355.

In the thirteenth century the king's Council was, as we have seen,6 the " core and essence" of the Parliament; and the term " Parliament" meant rather a colloquy than a defined body of persons. At this Parliament--this colloquy--important cases were decided, and petitions were received.7 In the course of the fourteenth century this " colloquy" developed into a body possessed of a unique set of powers and privileges. From the king's Council in Parliament there was developed the House of Lords, and from the representative knights and burgesses, who were summoned to meet the king's Council in Parliament, there was

### 174 XVITH CENT. AT HOME AND ABROAD

developed the House of Commons. Thus from the meeting of the Estates at "'a " Parliament or colloquy with the king's Council, there has emerged "'the " Parliament ; and this Parliament has become an essential organ of the English government. " The High Court of Parliament" has taken a separate and important place among those courts which conduct the government of the medieval English state.1

Footnote 1: Redlich, op. cit, i 2 ; vol. ii 430-434.

We have seen that this development had been facilitated by the fact that the Parliament and the lawyers worked together, and that the results of this alliance had been beneficial both to the Parliament and to the law. Parliament had been helped by the technical skill of the lawyers to evolve a workable system of procedure ; and the lawyers had not been inclined to dispute the binding force of the statutes which they had helped to make, or to put a narrow construction upon privileges of the House which they, as members, enjoyed. On the other hand, the lawyers had been backed up by Parliament in asserting the supremacy of the law of the state. Thus Parliament and the lawyers had been able, through their alliance, to accomplish much that was impossible in continental states, where the representative assemblies and the lawyers acted on different lines, and sometimes in opposition to one another.2 The results of this were beginning to be apparent in the fifteenth century. Fortescue's books show that the powers and privileges gained by Parliament had impressed upon the government of the English state a constitutional character which enabled it to be sharply contrasted with the government of France;3 and that the most striking feature of that constitutional character was the supremacy of the common law.4

Footnote 1: I did not mention the possibility that the government of the English state is not a good choice, but it is not a good choice.

Footnote 2: I did not mention the possibility that the government of the English state is not a good choice, but it is not a good choice.

The use which the Tudor kings made of Parliament during the sixteenth century consolidated the powers and privileges which it had won in the Middle Ages.5 At the end of this century it stands out as the supreme legislative and taxing authority in the state, possessed of an adequate procedure, and protected by well-recognized privileges. Of the share which Parliament took in legislation and taxation I have already spoken.6 Here I must say something, firstly, of the development of the rules of procedure, and, secondly, of the importance which questions of privilege were beginning to assume at the end of Elizabeth's reign.

Footnote 27: I did not mention the possibility that the government of the English state is not a

## 10 Old and New Machinery 175

Anglorum, and in D'Ewes' journals of the Elizabeth Parliaments, can probably be traced back to the medieval Parliaments of the fourteenth and fifteenth centuries.1 But it is in this century that we get the first clear and authoritative statements of these rules ; and it is clear from these statements that in many cases they had then attained almost their final form. Let us look at the forms used at the opening and close of Parliament, at the rules of debate, at the duties of the Speaker, at the forms of legislation, and at the development of the committee system. Upon all these matters Smith speaks ; and the accuracy of his account is borne out both by D'Ewes, and by Sir John Eliot's account of the procedure of the earlier Stuart Parliaments which he inserted into his Negotium Posterorum.

Smith's account of the opening of the session, the choice of a Speaker, the Speaker's request for the allowance of the privileges of the Commons, the Lord Chancellor's reply,2 the speeches at the close of the session, and the ceremonial of the royal assent to or rejection of bills,3 shows that the procedure upon these matters had practically reached its final form. So near is it to the modern procedure that it is not necessary to describe it in detail.

Footnote 1: Vol. ii 43T-433; for an account of the original Commons' Journals and their evolution see J. E. Neale's paper in Royal Hist. Soc. Tr. (1920) r36; it tells us a good deal of the evolution of the House in the sixteenth century.

Footnote 2: Bk, ii. c. 2 pp. 5T-52 (Alston's Ed.).

Footnote 4: Ibid 57-58.

Footnote 5: Ibid 57-58.

Footnote 4: Ibid 54-55; cp. Eliot's account, Negotium Posterorum (Ed. Grosart) ii 52-53, " "for to avoid confusion and disturbance on noe occasion, at noe time is it lawfull for a man in one daie to speake to one business above once, though his opinion altered, though his reason should be chang'd, more than in suffrage with the general vote at the last, when the question is resolved by a single yea or noe. Noe personal touches are admitted in arie argument or dispute, noe cavills or exceptions, nor arie member to be nam'd; or when there is contrarie and dissent may there be mention of the persons but by periphrasis and description. All bitternes is excluded from their dialect, all words of scandall and aspersion ; noe man may be interrupted in his speech, but for transgression of that rule, or breach of some other order of the house (as for the intermixing of their business, when one matter is on foote, to stirr another before the decision of the former, wch in noe case is allowable) in all other things, the privilege holds throughout ; the business, as the person, has that freedome to pass quicklie to the end ; noe disparitie or odds makes a difference in that course ; he that does first stand up, has the first liberite to be heard, the meanest burges, has as much favor as the best knight or counsulfor, all sitting in one capacitie of Commoners, and in the like relation to their Countries."

**176.1**: **XVITH CENT. AT HOME AND ABROAD**

as he that speaketh with the bill, or he that spoke against the bill, and gave this and this reason. And so with perpetually.

Oration not with altercation he goeth through till he do make an end. He that once hath spoken in a bill though he be confuted straight, that day may not replies, no, though he would chaunge his opinion. So that to one bill in one day one may not in that house speake twice, for else one or two with altercation woulde spende all the time. The next day he may, but then also but once. No reviling or nipping wordes must be used. For then all the house will crie, it is against the order ; and if any speaker' unreverently or seditiouslie against the Prince or the privie counsell, I have scene them not only interrupted, but it hath beene moved after to the house, and they have sent them to the tower. So that in such a multitude, and in such diversitie of mindes, and opinions, there is the greatest modestie and temperance of speech that can be used."

The Speaker performed very various functions. We have seen that at this period he was the nominee of the Crown, and that he was used by the Crown to control the House.1 He was the chairman of the House, responsible for the observance by members of the rules of debate, and the person to whom all speeches were addressed.2 He was the representative and spokesman of the House in its collective capacity.3 He regulated the order of business, determined what bills should come before the House, explained to the House the bills or other matters which came before them,4 determined which of two or more members should address the House,5 and, when the debate was finished, put the question and announced the decision.6 He was the interpreter of the _lex et consuetudo Partiamenti;_ and because he held this judicial position he was not entitled to speak upon bills, nor, except in a case of equality, to vote.7 During

## 10 Old and New Machinery 177

the sixteenth century his duties to the Crown and his duties to the House were compatible. But it is obvious that, if and when the relations of the House and the Crown become less harmonious, his position will not be enviable.1 It is obvious, too, that if the House succeeds in encroaching upon the powers of the Crown, he will become more and more the representative of the House, and less and less a servant of the Crown.2

Footnote 1: Vol. v 423-424; some signs of this were beginning to appear at the end of Elizabeth's reign, above 89-90; below 178-180, r90.

Smith's account of the forms of legislation and of the functions of these com- "Crown," he will become more and more the representative of the House, and less and less a servant of the Crown.2

Footnote 2: Vol. v 453-424; some signs of this were beginning to appear at the end of Elizabeth's reign, above 89-90; below 178-180, r90.

Smith's account of the forms of legislation and of the functions of these com- "Crown,"

### Xvith Cent. At Home and Abroad

It would almost seem from Smith's account that, if the House agreed to a bill as drawn, the committee stage might be dispensed with. But such agreement was hardly likely; and it would seem from D'Ewes and Eliot that all bills did as a matter of fact go through this stage. As Eliot explains, the debate in committee was freer, and it was possible to consider the bill and proposed amendments more closely. The select committee to which bills were thus referred was the most usual form of committee. But even in the Middle Ages committees were appointed for other purposes;1 and in Elizabeth's reign we get many instances of their appointment for many various purposes--e.g. to draw up reasons for declining a conference with the Lords, to discuss with them amendments to bills, to decide election disputes.3 Towards the end of the century we get a further development. Committees were appointed, not for one specified object, but to deal with constantly recurring topics as and when they arose. For instance we get committees to deal with religion, with election' disputes, and with questions of privilege.3 We shall see that these committees will develop in the following period into certain fixed standing committees.4

Footnote 1: Vol. ii 432.

Footnote 2: Redlich, op. cit. ii 205, and references to D'Ewes there cited; as Eliot said, Negotium Posterorum i 64, "In general all Comees are for preparation and despatch: the judgment and conclusion is the house's; to facilitate that Court in the multiplicities of his labors, these are the Argus and Briarius; these Comees are the sentinells upon all affaires and interests, and these dissolve the difficulties we their greatenes or numbers doe import."

Footnote 3: Redlich, op. cit. ii 206-207.

Footnote 4: Vol. vi c. 6.

Footnote 5: Above g1-g2.

Footnote 7: Commons Journals i 76, 77 ; D'Ewes, 175, 176; above go.

## 1 Old and New Machinery

### dislikled.1

In 1587 she had prevented the bill of one Cope from being discussed by the House, and had made the Speaker deliver the bill to her.2

Thereupon Peter Wentworth drew up the following series of questions which the Speaker put to the House :- "Whether this council be not a place for any member of the same here assembled, freely and without enrollment of any person, or danger of laws, by bill or speak, to utter any of the griefs of this commonwealth whatsoever, touching the service of God, the safety of the prince, and this noble realm ?

Whether that great honour may be done unto God and benefit and service unto the prince and state without free speech in this council, which may be done with it ?

Whether there be any council which can make, add to or diminish from the laws of the realm, but only this council of parliament ?

Whether it be not against the orders of this council to make any secret or matter of weight, which is here in hand, known to the prince or any other, concerning the high service of God, prince, or state, without the consent of the house ?

Whether the Speaker or any other may interrupt any member of this council in his speech used in this House, tending to any of the forenamed high services ?

Whether the Speaker may rise when he will, any matter being propounded, without consent of the House, or not ?

Whether the Speaker may overrule the House in any matter or cause then in question ; or whether he is to be ruled or overruled in any matter, or not ?

Whether the prince and state can continue, stand, and be maintained without this council of parliament, not altering the government of the state ?" 3

The result of this boldness was that Wentworth and others were committed to the Tower.

Nor was this action of the crown on this and other occasions resented by the House.4

Footnote 4: In each of the parliaments of 1584, x58, x586, x587, and x588 a committee touching matters of privilege was appointed for the session," Redlich, oq. cit. ii 207.

In fact, as we have seen, during the whole of the Tudor period the crown and the House of Commons worked together. The crown treated the House with respect ; and the House approved of the policy of the crown.5 It was therefore inclined to acquiesce in the crown's claim to the initiative, and not to resent measures taken by the crown against those who wished to disturb this working arrangement. On the other hand, the House was jealous of its privileges. The institution of a committee to safeguard them, by bringing to the notice of the House cases of the breach of their privileges, is a significant sign of the times.6

Footnote 4: In each of the parliaments of 1584, x585, x586, x587, and x588 a committee touching matters of privilege was appointed for the session," Redlich, oq. cit. ii 207.

The importance of safeguarding the privilege of freedom

### 180 XVITH CENT. AT HOME AND ABROAD

of speech was never lost sight of;1 and it was clear that if anything happened to disturb the arrangement under which crown and Parliament worked together, its extent would become a matter of the very first importance. The questions raised by Wentworth would then be raised, not by a minority, but by a majority in the House, because their answer in the manner suggested by Wentworth would be essential to an opposition which wished to criticize and control the conduct of the government.2

Footnote 1: "If many of its members were but creatures of power, if the majority was often too readily intimidated, if the bold and honest, but not very judicious, Wentworths were but feebly supported, when their impatience hurried them beyond their colleagues, there was still a considerable party, sometimes carrying the house along with them, who with patient resolution and inflexible aim recurred in every session to the assertion of that one great privilege which their sovereign contested, the right of parliament to enquire into and suggest a remedy for every public mischief or danger," Hallam, C.H. i 264.

If we look at the powers of parliament over legislation and taxation, which no one disputed ; if we look at the development of its procedure, and the extent of its privileges, we can see that it alone of the mediaeval representative assemblies had developed into a useful and essential organ in the government of a modern state. No doubt it was strictly controlled by the crown. No doubt the initiative on all important matters was retained by the crown--though retained at the close of Elizabeth's reign with increasing difficulty.3 But the picture which D'Ewes draws for us of the Elizabeth Parliaments makes it quite clear that it was this control that was largely responsible for making Parliament, and more especially the House of Commons, an efficient organ of government in a modern state. That control did for Parliamentary power and privilege and procedure what it did for the development of local government under the justices of the peace.4 In both cases the Tudor kings adapted institutions which had begun to develop at the latter part of the mediaeval period to the needs of the modern state, by enforcing and increasing their powers, and by diligently supervising the exercise of those powers. Just as the justices of the peace were educated by the various forms of control which the crown and the Council applied to them, so Parliament was educated by the use which the crown made of it, by its constant supervision, by the presence of Privy Councillors in the House of Commons,5 and by their constant service on its committees.6 In fact, the increase in the powers and the efficiency of the justices of the peace, and the increase in the efficiency of the House of Commons

## 10 Old and New Machinery 181

helped forward the development of both these instruments of government. (1) The growth of the powers and the efficiency of the justices of the peace directly increased the efficiency of the House of Commons, because many of its members were justices. They were able as members of Parliament to make suggestions for the amendment of the law which their experience as justices had suggested. This acquaintance with practical affairs possessed by many of its members gave a business-like and a practical tone to deliberations in Parliament to which the deliberations of the continental assemblies never attained.1 These deliberations were therefore a real assistance to the Council in gauging the feelings of the nation,2 and in the task of devising the measures which were needed both to guard the state against its numerous enemies, domestic and foreign, and to adapt its institutions and its laws to the needs of this new age. (2) Conversely, the growth of the power of the House of Commons increased both the efficiency and the independence of the justices of the peace. As members of Parliament they had helped to make some of the laws which they administered, and they were therefore in a position to understand them and apply them intelligently.3 As Bacon said,4 "Those that have voices in Parliament to make laws, they for the most part are those which in the country are appointed and administer the same laws; and for these two institutions, if a man would make a commonwealth by a level, he could not find better than these." The justices of the peace could thus the more easily realize that they were no mere officials of the central government, but independent administrators whose powers had been conferred upon them by the law. For both these reasons they were able to bring to the execution of their various duties those qualities of common sense and individual initiative which are apt to winter under a bureaucratic _regime_.

Footnote 1: See e.g. D'Ewes, op. cit. 660, 661, 662, 663, 664,--a debate on a bill which involved the increase of the penal jurisdiction of the justices of the peace; ibid 505-507--a debate on bill against aliens; ibid 168-171--a debate on a bill against non-resident burgesses; ibid 86--long arguments on a bill for the increase of the navy; Leonard, English Poor Relief, x30-x31, shows that the experience of members of Parliament as justices of the peace was of great assistance in framing the legislation in this subject at the end of Elizabeth's reign; for this legislation see below 396-399.

Footnote 2: Thus the Council were well aware from the communications they had received from the justices that the agitation against monopolies expressed the real feelings of the country, see Hamilton, Quarter Sessions from Elizabeth to Anne 23-27.

Footnote 3: Thus the Queen addressing the House on its prorogation in x503 said, "'You that be judges and justices of the peace, I command and statially charge you, that you see the law to be duly executed and that you make them \[i.e. the statutes just passed\] living laws when we have put life into them, "D'Ewes, Journal 467.

The result upon Parliament is best described in the well-known words of Sir Thomas Smith:5 "The most high and

### XVITH CENT. AT HOME AND ABROAD

absolute power of the realme of England, consisteth in the Parliament. For as in Warre where the king himselfe in person, the mobilitie, the rest of the gentilitie, and the yeomanrie are, is the force and power of Englande : so in peace and consultation where the Prince is to give life, and the last and highest commaudement, the Baronie for the mobilitie and higher, the knightes, esquiers, gentlemen and commons for the lower part of the commonwealth, the bishoppes for the clergie bee present to advertise, consult and shew what is good and necessarie for the commonwealth, and to consult together, and upon mature deliberation everic bill or lawe being thrise reader and disputed upon in either house, the other two parties first each a part, and after the Prince himselfe in presence of both the parties' doeth consent unto and alloweth. That is the Princes and whole realmes' dede : whereupon justlie no man can complaine, but must accommodate himself to finde it good and obey it . That which is doone by this consent is called firme, stable, and sanctum, and is taken for lawe. The Parliament abrogateth ode lawes, maketh newe, giveth orders for things past, and for things hereafter to be followed, changeth rightes, and possessions of private men, legitimateth basards, establishe formes of religion, altereth weightes and measures, giveth forms of succession to the crowne, defineth of doubtfull rightes, whereof is no lawe alreadie made, appointeth subsidies, tails, taxes and impositions, giveth most free pardons and absolutions, restoreth in bloud and name as the highest court, condemneth or absolveth them whom the Prince will put to that trial : And to be short, all that ever the people of Rome might do either in _Centeriatrics comitijs_ or _tributs_, the same may be doone by the parliament of Englande, which representeth and hath the power of the whole realme both the head and the bodie. For everie Englishman is entended to bee there present, either in person or by procuration' and attornies, of what preheminence, state dignitie, or qualitie soever he be, from the Prince (be he King or Queue) to the lowest person of Englande. And the consent of the Parliament is taken to be everie mans consent."

Smith and all other writers 1 of this century speak of Parliament as a court--" the highest and most authentical court of England"--but still a court. This is a significant, but a very intelligible fact. A large part of the government of the country, central and local, was carried on by courts acting under judicial forms. That all governing bodies partook of the nature of courts was therefore an idea which came naturally to those who treated of public law. Moreover, most of the books which

## 10 Old and New Machinery

treated of the Parliament were written by men who had been trained in the common law;1 and all of them were familiar with the ideas of the common law. Thus it is not surprising that all writers (whether common lawyers or not) should talk of Parliament as a court. The lawyers found it so treated of in the Year Books : and all could see that its judicial functions and attributes were, and indeed still are, well marked.2 In fact, for some time after the term "'court " had come to signify simply a judicial tribunal, lawyers occasionally spoke of an Act of Parliament as a "judgment of the Parliament;"3 and for a yet longer time lawyers and statesmen and ecclesiastics will speak of "'the High Court of Parliament." They will thus continue to speak of Parliament as a court, partly because ideas derived from the period when it was one among many medieval courts have had a permanent influence upon its powers, its privileges, and its procedure ; partly because, in the sixteenth century, the lawyers were a very important class among its members;4 and partly because in the seventeenth century--the century in which the powers and privileges and procedure of Parliament gained their permanent shape--the lawyers, to whom the conception of a court came naturally, were the leaders and champions of the Parliamenty cause.

But I think that too much stress should not be laid upon the fact that Parliament thus continued to be spoken of as a court. We have seen 6 that even in Henry VI.'s reign the lawyers were beginning to discover that conceptions borrowed from the law as

Footnote 1: The chief exception is Smith, who was a Roman lawyer, and a statesman rather than a common lawyer; but his book on the Republic of England was meant to be a popular sketch, and he naturally adopts the received terminology, below r84; for a criticism of some of the deductions Mr. Alston draws from this terminology see below zII n. 5.

Footnote 3: For the various kinds of jurisdiction exercised by the House of Lords sec vol. i 365-394. It should be noted that till quite the end of Elizabeth's reign the judges served on some committees of the House of Lords, not as attendants upon the committee, but as members of it, D'Ewes Journal 22, 67, 99, ro1, 108, t42; in r585 they were named as attendants only ibid 31g, and on another occasion as members ibid 322; in r589 they were also named as members ibid 422, but after 1599 as attendants only ibid 527; when dealing with private bills (the procedure upon which is still quasi-judicial) the House of Commons was often styled a Court, e.g. ibid 587; and also when dealing with certain cases of privilege, ibid 514, 515.

${}^{3}$Thus in Chudleigh's Case (r589-r595) r Co. Rep. at p. 732b, Walmesley, J. and Periam, C. B. said that the Statute of Uses was a, "judgment given by the whole Parliament;" cp. Brooke, Ab. _Parlement_ p. 73 (39 Hy, VIII.); Bacon's argument in Calvin's Case, Works (ed. Spedding) vii 67r, speaks of two statutes as " judgments in Parliament by way of declaration of law," Hale, P.C. i 270, speaks of the Act attaining Strafford as " a particular judgment."

${}^{4}$In r545 Writhesley, writing to Paget and Petre as to a proposal to hold the Parliament at Reading, said that, if it were held there, it would be best to adjourn the law term, as, without the judges, sergenants, and other persons engaged at the Courts, "'you shall have a very simple assembly," Letters and Papers xx Pt, ii No. 302; cp. L. and P. vi no. r38t, above 97 n. 5: below 188-189.

${}^{5}$Vol. ii 434 and n. 4.

### 184 XVITH CENT. AT HOME AND ABROAD

to the jurisdiction of courts could not easily be applied to those powers of taxation and legislation which were fast coming to be the most important functions of a Parliament. As in the case of local government in this century, so in the case of Parliament, non-judicial functions were being rapidly developed. At the end of the century the growth of these functions had made it obvious that Parliament was comparable quite as much to the Council as to a court.1 "This court," said Coke, when addressing the House of Commons as Speaker in 1592-1593, " is not a court alone."2 It had indeed become very different from any other court, for in it were represented the king and the three estates of the realm--" The great corporation or body politic of the kingdom."3 It was this fact which gave to it its "high, absolute, and authenticated powers;" and it was these powers which were destined so to expand in the following century that the sovereignty of Parliament has become the central and characteristic feature of English constitutional law. As with the justices of the peace in the sphere of local government, so with Parliament in the sphere of central government, a medieval institution had been so adapted that it was able to satisfy the requirements of the modern state, and develop with its development.

Footnote 1: It was so spoken of by Peter Wentworth, D'Ewes, Journal 471, above 179; and by Bacon, who said in his letter of advice to Villiers in 1616 that the Houses of Parliament " are more properly a Council to the king, the great Council of the kingdom, to advise his Majesty of those things of weight and difficulty which concern both the king and the kingdom, than a court," Spedding, Letters and Lite vi 38.

Footnote 2: D'Ewes, Journal 515, " Though any court of record hath this jurisdiction to make out processes, yet this court cannot. Why? This may seem strange that every court in Westminster, every court that hath causes of Plea, every lord's leet, and every court baron hath his powers that they may make out process; yet this court being the highest of all courts cannot; how can this be ? The nature of this House must be considered; for this court is not a court alone; and yet there are some things wherein this court is a court by itself, and other things wherein it is no court of itself; " cp, ibid 434, where the Speaker describes it as 4 The highest court of all other courts and the great council also of this realm."

3 Coke, Fourth Instit. 2; this statement of Coke's is founded on earlier authorities --it is said in Y.B, 44 Hy. VIII, Mich., pl. z p. 3, "Aury est Corporacion per le Common Ley come le Parliament du Roy et Seigneurs et les Commons sont un Corporacion; " cp, Willion v. Berkeley (r56r) Plowden 324 "And he and all his subjects together form the Corporation, as Southcote said, and he is the head and they are the members, and he has the sole government of them."

4 Above 90-92, 174.

## 10 Old and New Machinery

did not differ materially from petitions which resulted in a judicial decree;1 and a petition to Parliament for a private Act still retains the judicial characteristics which marked the early stages in the history of every variety of Parliamentary legislation. But there could be no talk of petition in connection with the many important bills which during this period originated with the crown ; and, as they required the consent of both Houses, their passage emphasized the fact that Parliament was a partner in the work of legislation. Bills whether originating from the crown or not, to which the king and the two Houses had asserted, resulted in an Act of the Parliament ; and it gradually became clear that even the bills of private persons, which asked for something in the nature of a judicial decree, fell, if enacted by the same authority, into the same category.2 But since their judicial character was more strongly marked, it was with more difficulty that their position as legislative acts was realized. The methods adopted to sift the sufficiency of the reasons alleged by these petitioners for private Acts were judicial in their nature.3 "The passage of the ordinary private bill partook somewhat of the character of a civil action ; and the passage of an Act of attainder patrol took somewhat of the character of the criminal trial. Until Henry VIII.'s reign it was not clear that the law would admit the validity of an Act of attainder passed without hearing the accused in his defence. But in Henry VIII.'s reign it was realized that Acts of the Parliament, whether public or private, were legislative in character ; and the judges were obliged to admit that these Acts, however morally unjust, must be obeyed.4 The legislation which

### XVTH CENT. AT HOME AND ABROAD

had proposed the Pope and made the church an integral part of the state had made it clear that the morality of the provisions of a law, or the reasons which induced the legislature to pass it, could not be regarded by the courts. "_Nil ineptius lege cum prologo,"_ said Bacon in his argument in Chudleigh's Case, "_jubeat non disputet_ . . for the law carries authority in itself." 1

But when an Act of Parliament had acquired this authority, the last remnants of the idea that there might be fundamental laws, which could not be changed by any person or body of persons in the state, necessarily disappeared. It was obviously difficult to assign any limits to the power of the Acts of a body which had effected changes so sweeping as those effected by the Reformation Parliament.2 I do not forget that Coke sometimes writes as if he believed in the supremacy of a law which even Parliament could not change.3 But it would, I think, be a mistake to lay too much stress on isolated statements of this kind.4 In the first place, Coke was often inconsistent because he had the mind of an advocate, and therefore often allowed himself to be carried away by the argument which he was urging at the moment.5 In the second place, he was so thoroughly steeped in medieval

## 10 Old and New Machinery 187

law that he sometimes reproduces ideas which he himself would have admitted to be archaic.1 In the third place, he is often writing and thinking of the supremacy of the existing law, and not of the question whether Parliament was competent to change it. When Parliament is not sitting it is the existing law, as interpreted by the judges, which is supreme ; and when, as in the seventeenth century, the different component parts of the Parliament cannot act together, the same result ensues. In the Fourth Institute, when he is dealing specifically with the powers of Parliament, and in other passages, he admits its supremacy freely and fully.2

Footnote 1: E.g. he says, Fourth Instit, 14, that the commons may say that they cannot answer without conference with their constituents ; see above 168 n. 5 for the archaic character of this idea.

In the sixteenth century, therefore (whatever may be true of earlier periods), it is clear that the supremacy of the law, taught by Bracton and the Year Books, has come to mean, not the supremacy of an unchangeable law, but the supremacy of a law which Parliament can change.3 The supremacy of the law is coming to mean the supremacy of Parliament. That the lawyers never placed any difficulty in the way of this evolution was a fact which had large effects upon the future development both of the constitution and of the common law.

Because they did not insist upon the existence of fundamental laws which could not be changed by the ordinary legislative machinery of the state, they were not thrust into a position of political conflict with the crown. The supremacy of the existing law, so long as Parliament saw fit to leave it unaltered, was guaranteed by the powers of Parliament;4 and to Parliament

### XVITH CENT. AT HOME AND ABROAD

they could safely leave the political task of maintaining this position. There was no need therefore for the courts of common law to be anything but useful servants of the crown ; and, for this reason, there was not the same temptation that there was abroad to supersede them by the newer courts which depended more directly upon the king's will. Though many new courts arose in this country, the king was content, as we shall see,1 to allow the ordinary courts to continue to exercise their old jurisdiction. They thus continued to be the guardians and the interpreters of the common law ; and since the rules of the common law contained the greater part of the public law of the state, the courts retained many of those political functions of which in foreign countries they were deprived by the growth of a system of administrative law.2

Footnote 1: Below 274-275.

These political functions exercised by the courts harmonized with the character which the local government of the country had assumed.3 The officials and communities to which the local government was entrusted originated, as we have seen, at a period when the mediaeval view that the law was supreme was unquestioned. Their powers and duties were determined for the most part by statutes, and by old rules of the common law. They could be punished by the common law courts for misfeasances and for non-feasances ; and by means of the prerogative writs they could be ordered to act or to refrain from acting, or their decisions could be questioned. It is clear that authorities of this kind, thus controlled, will not easily become the mere officials of the central authority, nor easily subjected to a system of administrative law.

Footnote 1: See Bacon's discourse on the Commission of Bridewell, Works (ed. Spedding) vii 509-516--many of the old Y.BB, cases are cited to show that the law is supreme, and that the Judges can hold to be void grants contrary to law ; and at p. 514, he cites a case of Elizabeth's reign in which this view was acted upon--"There was a commission granted forth in the beginning of the reign of her Majesty that now is for the examination of Felons and other lewd prisoners. It so fell out that many men of good calling were impenached by the accusations of Felons. Some great men and judges also entered into the validity of the Commission. It was thought that the Commission was against the law, and therefore did the Commissioners give over the Commission, as all men know ;" cp. L. and P. v no. 1430 (1532), Audley reports that, as no lieutenant had been appointed for the king's abscence, the judges were much exercised as to " how the king's laws and justice should proceed ;" they discussed the matter in the Exchequer Chamber, and it was determined to keep quiet about it, " as any doubt of error can soon be remedied by Parliament;" ibid vii no. 1042--a consultation with the judges as to the authority of proclamations.

Footnote 1: Above 164-165.

Thus in England and in England alone the mediaeval conception of the supremacy of the law was adapted to the needs of a modern state. That it could be thus adapted was due in part to the retention by the Tudors of the mediaeval machinery of local government, but chiefly to the maintenance of the old alliance

## 10 Old and New Machinery 189

between Parliament and the common law. Foreign writers, like Hotman or Duplessis-Mornay, who protested against the growth of royal absolutism, argued from the powers which the representative assemblies and courts of law had possessed in the Middle Ages ; or they adapted to modern needs the mediaeval theories designed to uphold the supremacy of law.1 But on the continent the powers of those assemblies and the theories of the lawyers had never coalesced. It was only in England that the powers of Parliament had come to be regarded as the main security for the supremacy of the law ; for it was only in England that the lawyers, by freely admitting the legislative supremacy of Parliament, had gained the support of Parliament and the nation for the mediaeval doctrine of the supremacy of the law. It was the continuance of this alliance between Parliament and the lawyers, which in the following century 2 finally secured the triumph of a conception which was destined, in yet later centuries, to have a vast influence upon the political ideas and machinery of the old and new world.

But the question at once arises, How could this conception of the supremacy of the law, which Parliament and the common law courts were working out between them, square with the position which the crown and Council were assuming in the state? We have seen that the Council by no means confined itself to the work of administration. On the contrary, it exercised a diligent supervision and control over the local government,3 over the courts,4 and over Parliament ; 5 and it sometimes itself assumed to exercise the functions of these bodies. It and its offshoots exercised a constantly increasing jurisdiction which encroached upon the spheres both of the justices of the peace and of the common law courts ; it exercised certain powers over finance, and it legislated by proclamation. In fact Parliament and the common law courts on the one side, and the Council and its offshoots on the other, had begun to develop rival theories of the state. The theory of the Parliament and the common law, which was based upon the supremacy of Parliament and the common law, was at many points directly contradictory to the theory of the Council, which, being based upon the powers of the prerogative, was somewhat similar to the theories which were growing up on the continent.6 Nor was the influence of these two rival theories of the state confined to the organs of the central government. We have seen that it extended also to the local government. While on the one hand the Council sometimes regarded the justices of the peace and the other officials of the local government as its agents and deputies,190 XVITH CENT. AT HOME AND ABROAD subject to its jurisdiction and protected by its authority, on the other hand, the common law courts regarded them as deriving their authority from the common law and the statutes, and entitled to act freely and independently so long as they properly performed their legal duties.1

During the earlier part of this century these two theories of the state had hardly emerged; and, during the greater part of the century, war against domestic disorder and foreign enemies, the adaptation of medieval institutions and medieval law to modern needs, and the settlement of the English Church, absorbed all the energies of the State.2 But, when this work had been accomplished, the fundamental differences between the two theories inevitably appeared.3 At the end of Elizabeth's reign the constitutional problem was beginning to emerge. Elizabeth employed all her popularity and all her consummatet to prevent its discussion; and out of respect for her the nation was content to shelve an inquiry into the many fundamental questions of public law which such a discussion would have raised. It is for this reason that English lawyers can state no such certain law as to the position of the king as their foreign contemporaries; and that English political philosophers have as yet been unable to grasp Bodin's theory of sovereignty. But this we shall see more clearly when we have examined the position assigned to the king, and the prevailing theories of the state abroad and at home.

Footnote 2: Thus in Henry VIII.'s reign we see the justices of assize and the Star Chamber working together, Bakers, Brewers and others of Andover v. Knyght (r534), Select Cases in the Star Chamber (S.S.) ii z08, z09.

Footnote 3: This was clearly seen by Sir Walter Raleigh; in his tract called "The Prerogative of Parliaments in England proved in a Dialogue between a Council of State and a Justice of the Peace " (Ed. r64o) 6o, 6r, the justice is represented as saying, "If the House press the King to grant unto them all that is theirs by the law, they cannot in justice refuse the King all that is his by the law. And where will be the issue of such a contention? I dare not divine, but sure I am that it will tend to the prejudice of both King and subject."

_The New Position of the King and the New Theory of the State_

The books of medieval lawyers like Beaumanoir and Bracton show us that the legal renaissance of the thirteenth century had already tended to give the king a position higher than that of a mere feudal lord;4 and this tendency had been continued and emphasized by the lawyers of the fourteenth century. In France the lawyers laid it down that the kingdom was not inheritable

## 1 The New Position of the King 191

like an ordinary figelf,1 and that it was impartible;2 that the royal domain was inalienable, because it belonged rather to the crown or state or nation than to the human king;3 that no distinction could be drawn between the king's private property and the domain of the crown;4 that the king, as king, had over all his subjects rights to impose taxation, to require military service in times of national peril, and to exercise jurisdictions which differed from, and were superior to, the rights of an ordinary feudal lord;5 that the powers of the feudal lord were but concessions from the king which must be strictly construed.6 Moreover, there was a tendency, as the theory of the Holy Roman Empire became more and more obviously unreal,7 to put the king, _qua_ his own dominions, into the place formerly occupied by the emperor, $I$ Bartolus, Baldus, and other lawyers taught that a state which recognized no superior was an imperium.8 "Civitas sibi printers ceps," "Rex in regno suo est Imperator regni sui," " Dominus princeps terrae sua," were various phrases in which this truth was expressed.9 Similarly in the fourteenth century, the kings both of England10 and of France11 claimed expressly to be emperors in their realms; and in France the deduction that the king was not bound by the ordinary laws was admitted in the thirteenth century.12 In the sixteenth century other kings made the same claims;13 and the lawyers were careful to explain that Roman law was received, not because the kingdom was subject to the empire, but because of its own inherent reasonableness.14 These theories tended to remain merely theories amidst the

### XVITH CENT. AT HOME AND ABROAD

turbulence of the fourteenth and fifteenth centuries.1 But, with the revival of royal power in the sixteenth century, with the creation of new machinery by means of which that power could make itself felt in all parts of the kingdom, and with the new meaning which the revival of classical studies gave to the texts both of classical writers on the state and of Justinian's books--they began to assume a very practical importance.2 Their consequences were developed, and they were given a sharper edge; for, under the influence of classical ideas, they were put forth unencumbered by the medieval view that kingship involved duties as well as rights. And, under the influence of the changed ideas as to the relationship of church and state, which came with the Reformation, the king as the representative of the state began to hedge himself with that divinity which in medieval times had been more especially the attribute of the church.3

Footnote 1: As Gierke says, op. cit. g6, " We may see in theory the new edifice of the Modern State being roofed and tiled when, in the world of fact, just the first courses of this new edifice are beginning to rise amidst the ruins of the old."

Footnote 2: Ibid 4-7; Brissaud, op. cit. 773:

Footnote 3: Above 18-19; J. N. Figgis, Camb. Mod. Hist. iii 751, 752; Bodin, Republique Bk. i. c. 8 speaks of the " Monarque soverain qui ne doit serment qu'a Dieu seul, diquel il tient le cceptre et le puissance; " and, c. x, he says that kings are established by God as his lieutenants, and that there are no persons greater on earth after/Him.

These new theories did not prevail without a struggle with the older theories. We have seen that, throughout the greater part of the sixteenth century, both in France and in the Spanish Empire, the older courts 4 and the older assemblies 5 struggled against the growth of royal absolutism.6 But, by the end of the century, the king had made good his position in both these countries. The medieval institutions, which were based upon the theory that a ruler was under duties to his subjects to maintain justice and to further the commonwealth; which implied, therefore, the legality of resistance to a tyrant who neglected these duties, were fast disappearing.7 When the old restraints had vanished Titius was left without rights against an omnipotent State,8 represented by an absolute king, accountable only to God, and subject to no duties enforceable by merely human law. The king was himself the state.9The new position of the king 198

This new omnipotent state needed a new political theory to explain it. That theory was found in Bodin's doctrine of sovereignty, and its application to the position of the king. This doctrine and its application were received, because they gave an explanation of existing political facts, which was both true in substance and scientific in form. At the same time the mediaeval view of the position of the king was never completely lost sight of. Mediaeval theories were adapted to the new environment of the territorial state ; and, in their new dress, they have influenced modern political thought as profoundly as Bodin's doctrine of sovereignty. But, in this century, political facts were making for the predominance of the new theory of the sovereignty of the king over adaptations of the older theories. If we look at this new theory, and at one or two of the rival theories which emerged in this century, we shall be able to appreciate the character which, in spite of opposition, the continental state was assuming during this period.

Bodin's six books on the Republic contain a great deal more than a new theory of the state. They deal among other things, with the form and purpose of the state, with its internal organization and its external relations, with the officials, corps, colleges, estates, and communities comprised in it, with the causes of its birth, increase, and decay, and with finance. Moreover, throughout the six books many practical hints are given as to the conduct of government.1 These books contain not only the author's own views upon the many problems of public law, but also an account of the manner in which these problems had been dealt with in the ancient world, in the Middle Ages, and in Europe of the sixteenth century.2 Thus it connects the voluminous discussions of the mediaeval jurists upon many political problems, with the treatment of those problems by the sixteenth century jurists, who wrote under the influence of those new methods of applying the information derived from the classical authors of the ancient world, which had come with the Renaissance.3 Seeing that the author was a

## 194 Xvith Cent. At Home and Abroad

Frenchman, instances drawn from French history are most frequent and are cited with more accuracy than instances drawn from the history of other countries \[1\]. Seeing that he was a monarchist, he believes that monarchy is the best form of government \[2\]. Seeing that he was a politique, he was no bigot ; and he was in advance of his age in his advocacy of tolerance towards divergent seeds \[3\]. But the book was not merely a treatise written with a view to a particular controversy in a particular state. It takes a broad and comprehensive view of the problems which it discusses. Really it is a work quite as much upon comparative constitutional law and public administration as upon political science ; and for that reason alone its success shows that it was of immense value to all statesmen and publicists of the period, irrespective of creed or nationality \[4\].

Though these qualities secured it popularity in the age in which it was written, they would not have made it a classical book, or entitled its author to be called the " The greatest political theorist of the sixteenth century, after Machiavelli." \[5\] Its fame as a classical book rests upon the fact that it contains this new theory of the sovereignty of the state. According to this new theory the sovereignty of its ruler is the essence of the state \[6\]. The existence or non-existence of a sovereign ruler supplies the test which distinguishes the state from other associations \[7\]; and according to whether the sovereign ruler is one or few or many states can be classified \[8\]. But though sovereignty could be vested in one or few or many, the attributes of sovereignty could be most clearly grasped when it was vested in a single person \[9\]; and Bodin, as we have seen, regards this as the most perfect form of government \[10\]. In fact he, in common with many other statesmen of the sixteenth century, could hardly fail to prefer such a form of government, because it seemed the one form of government which was able to keep the peace and guide the state through the perils of this age of change \[11\].

### 1.1 Thus he regards the English king as an absolute ruler, Bk, i c. viii pp. 102-103.

Bk. vi c. iv p. 737.

Bk, iv c. vi p 478.

Bk was first published in r577 ; there were three editions between r577 and r58o ; and in r586 the author published an enlarged Latin translation \[4\]. It was translated into English (in r606) and made a textbook at Cambridge," Figgis, Divine Right of Kings, r28 ; Alston's Ed. of Smith's Republic xii.

Janet, op. cit. ii ii4.

Bodin in his first sentence defines the Republic as, " Un droit gouvernment de plusieurs messages, et dec ce que l'eur est commun, avec puissance souveraine."

Bk. i. ci. pi, p. g. " La Republique sans puissance souveraine qui unist tous les membres et parties d'icelles, et tous les messages, et colleges en un corps, n'est plus Republique; " cp. Bk. iii c. vi p. 347.

Bk. vi c. iv p. 713.

Only under the form of monarchy does the notion of sovereignty readily lend itself to popular exposition \[5\]. Figgis, Divine Right of Kings gr.

Above n. 2.

Cp. Figgis, Camb. Mod. Hist. iii 748, " He (Bodin) typified and helped to create that alliance between the Kings and the theorists of sovereignty which formed part of the strength of monarchy \[

**THE NEW POSITION OF THE KING 195**

Bodin's account of sovereignty is sometimes a little confused owing to the mass of detail in which it is involved. But the gist of the matter is there; and little was left to be added even by such a successor as Hobbes. It is clearly pointed out that sovereignty must be absolute,1 and that it could be fettered by no merely human laws,2 by no coronation oaths, and by no conditions.3 The sovereign alone can make and repeal laws,4 impose and remit taxes.6 On principle it would seem that his subjects could have no legal rights against him, nor could he be under any legal duties to them; but Bodin is here a little inconsistent with his own principles in admitting, contrary to the opinion of some lawyers, that such rights might exist.6 It is fully admitted that the sovereign is bound by the rules of morality and religion;7 but of course he is accountable for their breach to God alone.8 Bodin by the light of this new theory could group his classical and mediaeval instances, and his citations of classical and mediaeval speculations, and use them to illuminate the new political conditions, and the new political problems of the sixteenth century.\*\*

Those who had clearly grasped this theory could not only solve all questions as to the extent of the powers of the state, they could also answer all questions as to the nature and binding force of law. Law was no longer a rule of conduct which taught

**1Bk. i c. viii p. 90, " La souverainet n'est limitee, ny en puissance, ny en charge, ny a certain tempes;" p. 93, " La souverainet donnee a un Prince soubs charges et conditions, n'est pas proprement souverainete, ny puissance absolue."**

**1Bid q6, 97, " Si donc le Prince souverain, est exempt des loix de ses predecesseurs, beaucoup moins seroit il tenu aux loix et ordonnances qu'il fait: car on peut bien receovi loy d'autruy, mais il est impossible par nature de se donner loy, non plus que commander a soy mesme chose qui depende de sa volonte."**

**1Bid q7-too, see, however, below n. 6, for a confusion between legal and moral duty in the view Bodin takes of contracts made between sovereign and subject.**

**1Bid c. x p. r63, " Soubs ceste meme puissance de donner et casser la loy, sont compris tous les autres droits et marques de souverainete."**

**1See a summary of the various marks of sovereignty, Bk. i c. x pp. r63, r64; among them is the right " imposer ou exempter les sujets de chargea." It is true that in another passage (Bk. i c. viii p. roz) he says, somewhat inconsistently, that " Les autres Roys n'ont pas plus de puissance que le Roy d'Angleletere; par ce qu'il n'est en la puissance de Prince du monde, de lever impostos a son plaisir sur le peuple, non plus que prendre le bien d'autruy;" as to this cp. Pollock, History of the Science of Politics 54.**

**1Bk. i c. viii p. riz, " Qui est pour respondre aux docteurs canonistes, qui ont escrit que le Prince ne peut estre oblige que naturellement: parce que disent-ils, les obligations sont de droit civil: qui est un abus;" Bodin holds that the view that the sovereign is bound by his contract is not contrary to the principle of sovereignty for God himself is bound by his promise--a clear confusion between moral and legal obligation, and a curious reminiscence of the mediaeval view that absolute power does not include a freedom to do what is morally wrong, cp. vol. ii 253 and n. riz, 435.**

**1See e.g. Bk. i c. viii p. 97, " Quant aux loix divines et naturelles, tous les Princes de la terre y sont sujets, et n'est pas en leur puissance d'y contre venir, s'ils ne veulent estre coupable de leze majeste divine, faisant guerre a Dieu."**

**1Tbl g7, " Prince souverain, qu n'est tenu rendre conte qu'a Dieu."**

### 196 Xvith Cent. At Home and Abroad

men " honeste vivere, alterum non liedere, suum cuique tribuere."1 Rather it was _quod principi plaauit_--the command of the sovereign." Customary law was only law so long as he suffered it to exist.3 Both the existence of law and its contents depended upon him alone ; and in this fact the whole essence of sovereign was summed up.4

Footnote 1: \[1\]

Thus for the old conception of the state, which rested upon the idea that it was made up of head and members, and existed to execute justice and maintain truth, there was substituted a new conception of the state which rested upon the idea that its being was embodied in its sovereign, and that it existed to carry out that sovereign's will. For the moral purpose which was at the back of the medieval conception, there was substituted the force which the sovereign could command. The rules of Divine or moral or natural law which, according to medieval notions, bound the whole state, rulers and subjects alike, withered under a conception which identified state with sovereign, and law with the sovereign's command. The sanction of Divine law gave an added glory to the sovereign as God's immediate agent ; and his duty to govern according to the rules of morality and Divine law, being a duty owed to God alone, was a counsel of perfection which took nothing from the reality of his power.5 The divinity which had formerly belonged to the church had been added to the state ;6 but the basis of force upon which this new state really rested made it certain that the moral consequences of this divinity would be in practice disregarded.7

Footnote 1: \[1\]

Bodin admits that this conception of sovereigny was a new conception.8 It was, as I have said, a generalization from the facts of his own day. It stood to the political facts of the sixteenth century in a very similar position to that in which Austin's theory of positive law stood to the legal facts existing in England in theThe new position of the king 197 first half of the nineteenth century. Both Bodin and Austin found themselves under the necessity of explaining the institutions and conceptions which, having come from an age which entertained very different ideas, necessarily conflicted with their theory. Just as Austin was obliged to explain the existence of customary law and case law, so Bodin was obliged to explain the existence of such institutions as the Estates General, the French Parlements, and other representative assemblies still existing in different parts of Europe. Both writers had sufficient dialectical skill to produce an explanation. Neither writer could, by the nature of the case, satisfy those who looked at phenomena from the historical rather than from the analytical standpoint. Moreover, as Bodin's theories were not, like Austin's theories, confined to the domain of purely legal speculation, they necessarily aroused the opposition of those who saw that the gift of unfettered and unlimited powers to the ruler of the state would be fatal to all liberty both political and religious.

On the historical side the best-known opponent of the new theory of the state was Hotman.1 He was an opponent of the Romanizing tendencies of the lawyers which made for absolutism;2 and he had no difficulty in showing from the mediaeval history of France that the absolute character which the French monarchy was assuming was of recent date.3 His arguments against absolutism, founded on the history of the Estates General and the Parlements, are not unlike the seventeenth century arguments for the rights and privileges of the English Parliament. As Figgis has pointed out, he was the earliest of the Germanists, and his book is the first of constitutional histories.4 But in France the Estates General was not a living institution, and the power of the Parlements had been mastered.5 In England, on the other hand, both Parliament and the law courts were living institutions with a continuous history.6 Therefore the arguments which in England made constitutional law in France remained merely academic.7

**198 XVITH CNT. AT HOME AND ABROAD**

As 1 have already pointed out it was the existence of religious dissent which enabled the struggle against the absolutism of the state to be maintained.1 In different states both Calvinists and Catholics found themselves in opposition to the governing body in the state. The divinity claimed for the state was at different periods denied by both religious parties; and the higher claims of their respective churches were put forward in opposition to the claims of the state.4 Thus a limitation was imposed upon the absolute powers of the state. In seeking to find a theoretical and a legal basis for this limitation recourse was had to the idea that the powers of the ruler of the state depended upon a contract or contracts between God and the ruler, and between the ruler and his subjects; and that a breach of the terms of these supposed contracts would justify resistance. Perhaps the most famous sixteenth century book in which this thesis was maintained was the _Vindicia contra Tyramnos.3_ If Hotman's book has some claims to be called the earliest of our constitutional histories, this book has some claims to be called " The first work in modern history that constructs a political philosophy on the basis of certain inalienable rights of man."4

Footnote 1: Above 27-22.

Footnote 2: See this clearly and fully explained in a paper by Mr. Figgis on Some Political Theories of the Early Jesuits, in Royal Hist. Soc. Tr. (N.S.) (1897) xi 89-112. Mr. Figgis says at p. 93 " Knox, Goodman, Buchanan, and Cartwright held a theory of the subjection of the civil to the ecclesiastal power hardly distinguishable from the Jesuit doctrine;" see below 216.

Footnote 3: This book was written either by Languet or by Duplessi-Mornay, or perhaps by both, see Gooch, English Democratic Ideas in the Seventeenth Century 13, 14.

Footnote 4: Gooch, op. cit. 16--as he says, " Its relevance was not confined to France. It was utilized by, even if not specially composed for, the United Provinces, was quoted to justify the trial and execution of Charles 1, and reprinted to justify the Revolution of foss ;" Lureau, Les Doctrines Democatiques de la seconde moitie du 2 xvie siecle 53 says, " I'l pose d'abord le droit de non-obeissance, puis le droit de reseisance, d'abord dans les limites de la loi relegieuse, ensuite au point de vao purement politique;" the argument is summarized by Figgis, Camb. Mod. Hist. iii 760-764; the idea of a compact is of course adopted by many other writers, one of the most famous of whom is Althusius, Politica Methodice digest--see especially c. xv.

The argument of this and similar books is analytical, and not, like Hotman's _Franco-Gallia_, historical. But, though analytical in form, it owes a good deal more to mediaeval political speculation than Bodin's new theory of the state. For the idea that a ruler might be deposed, if his conduct was such as to constitute a breach of the law of God and of nature, there was abundant mediaeval authority;6 and for the idea of a contract between ruler and subject similar authority could be found, not only in theory, but also in the feudal bargain between lord and man, which was in fact the source of much political power in the Middle Ages.6 TheseThe New Position of the King 1991 rival theories of the state rested therefore upon a combination, and an adaptation of these two sets of mediaeval ideas.

Both Hotman and the analytical writers aimed at attaining a similar result by different methods. The aim of Hotman's teaching was the restoration of the institutions which could check the power of the king. The aim of the authors of the _Vindicia contra Tyrannos_, and other similar writings, was the restoration of the idea that subjects had certain moral or natural rights of which they could not be deprived by the ruling power of the state; and, consequently, that a disregard of those rights would justify resistance.1 It followed that the command of a sovereign king was not necessarily a binding law. According to one view the king could not legislate without the consent of his Estates : according to the other view his command must not infringe those natural or moral rights of his subjects which the state's law could not override.2

Footnote 1: Mr. Figgis points out, Royal Hist. Soc. Tr. (N.S.) (z897) xi ro3, that according to the Jesuit doctrine, " Whether on the general ground of the supremacy of the Church, or on the theory of a tacit contract, the conclusion is equally clear that the Pope, acting as God's Vicar, may depose kings and release subjects from their allegiance, if that be necessary for their salvation ;" cp. Eamein, Essays on Legal History 210, 211 for an attempt by Charondas le Caron to demonstrate, " comme Bracton . que le Prince doit respecter la loi parce qu'il ne regne que par elle ;" and like Hookers, below zx3-z4, to prove that law, being the normal rule of all reasonable beings, the king should govern in accordance with it.

Footnote 2: "Law is regarded not so much as dependent on the will of the law-giver as an attempt to realise under political conditions the teachings of natural law, the ideal to which all States should conform, and to ensure the reign of general utility and justice," Royal Hist. Soc. Tr. (N.S.) xi ro7; "the law is for them endowed with Divine Right, eternal and immutable, the breath of God rather than man, controlling sovereign and subject alike," Figgis, Divine Right of Kings r13.

But the idea of these overriding natural or moral rights long remained unfruitful for the same reason as that which rendered Hotman's historical arguments academic. The institutions which might have given them support, and rendered them fruitful of practical consequences, had gone down before the encroachments of royal power. It was only in the sphere of international law, which was rendered possible by their existence, that this idea was able in the sixteenth and seventeenth centuries to exercise any large influence upon the politics of continental Europe.3 In the sphere of municipal politics it preserved indeed the tradition of political liberty ;4 but it was not till the period of the French Revolution that it began again to exert a practical influence upon the theory of the state and its activities. For the present, and for many years to come, the state is embodied in and represented by its sovereign, and the law is dependent upon his command.

Footnote 4: **Above zz ; below z89-z90; vol. v z6-z7.**

As we might expect from the differences in their constitutional development, the position of the king in England, and the theory

## 200 XVITH CENT. AT HOME AND ABROAD

of the English state, are very different from the position of the continental king and the prevalent continental theory of the state.

In England, as in France, the idea that the king was superior to any ordinary feudal lord had been, from the thirteenth century onwards, present to the minds of English lawyers.1 In both countries the progress of this idea had been checked by the re-crudescence of feudal turbulence in the fourteenth and fifteenth centuries. But in the sixteenth century, both in England and abroad, it had begun to develop with the development of the independent territorial state, and with the definite subordination of the church to the state.2 The king of England, like his continental brethren, became the leader, the representative, the embodiment of the state--" the light and life of the commonwealth,"3 in whom " the entire personality of the nation was wrapped up ;"4 and from the reign of Henry VIII. he had been the supreme head under God of the church. The state, to which the church was now subordinate, had necessarily taken upon itself the character of a divine institution; and the king as its head could therefore lay claim to a divine appointment.5 These developments of the kingly office are found both in England and abroad. But at this point the parallel between the English and the continental development ceases. The English king was the representative of the state, his prerogative was the source of the executive authority in the state, and he and this Council had large judicial powers; but he was not the sole source of all authority. The state was conceived, not as centering in him alone, but as consisting of a body politic composed of himself as head, and the three estates of his realm as members.6

Footnote 1: Vol. ii 253; vol, iii 453-469.

Footnote 2: Third Instit. r8; note that r Mary Sessa. 3 c. r declared that the attributes of the office of king were the same whether the office was vested in a male or a female; this Act was no doubt due to the unpopularity of the Spanish match, and, as Mr. Tanner says, " it finally disposed of the doctrine that a woman could not succeed to the throne of England in her own right," Constitutional Documents z3.

Footnote 3: I. and P. if Introd. lvv.

Footnote 4: I. and P. if Introd. lvv.

Footnote 5: Fourth Instit. 2, " the king and these three estates are the great corporation or body politicist of the kingdom;" see above r84 n. 3 for earlier and similar statements.

That English statesmen and publicists and lawyers of the sixteenth century stopped short of conferring upon the king the whole authority of the state was due in the first place to the peculiar development of English institutions, and in the second place to the peculiar position of the English common law. We have seen that the growth of the powers and privileges of Parliament in the fourteenth and fifteenth centuries had safeguarded and given a very practical meaning to the mediaeval idea of the supremacy of the law.7 Consequently the prerogative was limited in the first placeThe new position of the king 201 by the powers and privileges of Parliament when Parliament was sitting, and in the second place, it was limited at all times by the fact that its extent was defined by the law.

(i) We have seen that the powers and privileges of Parliament were respected even by Henry VIII. In _Ferrers's Case_ he recognized that his powers when acting with Parliament were far larger than his powers when acting without Parliament.1 It was quite clear that it was only with its consent that taxes could be imposed and new laws made.2 These powers of Parliament were recognized by Sir Thomas Smith and by all other writers on the English constitution of this period.3 It followed, therefore, that though the king had large powers, he was not all-powerful.

(ii) The Tudor kings might on occasion pervert the law ; but they respected it. For their most arbitrary acts they always endeavoured to get a legal sanction. Both the king and his Council frequently took the opinion of the judges and their law officers;4 and thus by implication they admitted that their acts should be governed according to law. That this was generally understood even by Henry VIII. comes out very clearly in the very characteristic tale which, as we have seen, was related by Gardiner to the Protector Somerset.5 Its truth is borne out both by the character of Henry VIII.'s ecclesiastical settlement,6 and by the general opinion of his subjects.7 Bacon, in his argument in _Calvin's Case,_ explained that "Law is the great organ by which the sovereign power doth move;" and that towards the king it had a double office to perform. In the first place it defined his title. In the second place it made "the ordinary power of the king more definite and regular;" for, "although the king, in his person, be _solutus legibus,_ yet his acts and grants are limited by law, and we argue them every day."8 The supremacy of the

**202 XVITH CENT. AT HOME AND ABROAD**

law was a theme on which Coke was never tired of dilating.1 In fact, it would not be going too far to say that it was the view of all the leading lawyers,2 statesmen, and publicists3 of the Tudor period.

Footnote 1: See e.g. The Case of Proclamations (I61r) t2 Co, Rep. at p. 76, " the king hath no prerogative, but that which the law of the land allows him; " cf. Second Instit. 36, r86; Third Instit. 84.

Footnote 2: Plowden Rep. 236, " Although by the common law the king has many prerogatives touching his person, his goods, his debts, and duties, and other personal things, yet the common law has so admeasured his prerogatives, that they shall not take away nor prejudice the inheritance of any; " Cavendish's Case, Anderson's Rep. 152-158.

Footnote 3: Above zor n. 3; below z16. Onslow, the speaker in r56, said " by our common law, although there be for the Prince provided many Princely Prerogatives and Royalties; yet it is not such, as the Prince can take money, or other things or do as he will at his own pleasure without order; but quietly to suffer his subjects to enjoy their own, without wrongful oppression, wherein other Princes by their liberty do take as pleaseth them," D'Ewes r85.

To give legal expression to the constitutional position of a king, who was the head and representative of the state, and yet not possessed of uncontrolled power within it, was by no means an easy task; and the difficulty was increased by the fact that the Tudor lawyers were also obliged to reconcile older legal doctrines as to the position of the king, which came from a time when the state was still to some extent dominated by feudal ideas,4 with the new position which the king was assuming in the modern state.

Footnote 4: Vol. iii 460-469.

As the basis of their exposition (i) they elaborated the few hints which they found in their mediaeval books as to the existence of a distinction between the natural and the politic capacity of the king. (ii) They supplemented this distinction (_a_) by laying some stress upon the difference between prerogatives which were inseparable from the person of the king, and prerogatives which were not,5 and (_b_) by applying to these prerogatives the distinction, familiar from its application to the jurisdictions of the Chancellor, between absolute and ordinary power.6

Footnote 6: Below z04-206.

(i) The distinction between the natural and politic capacity of the king was elaborately stated in the case of the Duchy of Lancaster which was decided in r562.7 " The king," it was there said,8 " has in him two bodies, viz. a body natural, and a body politic. His body natural (if it be considered in itself) is a body mortal, subject to all infirmities that come by nature or accident, to the imbecility of infancy or old age, and to the like defects that happen to the natural bodies of other people. But his body politic is a body that cannot be seen or handled, consisting of policy and government, and constituted for the direction of the people, and the management of the public we

**THE NEW POSITION OF THE KING 208**

utterly void of infancy and old age, and other natural defects and imbecilities, which the body natural is subject to, and for this cause, what the king does in his body politic cannot be invalidated or frustrated by any disability in his natural body." The king, therefore, " has a body natural, adorned and invested with the estate and dignity royal. So that the body natural, by the conjunction of the body politic to it (which body politic contains the office, government, and majesty royal) is magnified."1

Footnote 1: Plowden, at p. 213; cf. William v. Berkeley, Plowden 223 at p. 234; a good summary of the law as here stated is given by Bacon in his argument in Calvin's Case, Works (ed. Spedding) vii 667, 668.

This speculation as to the separation of the natural and politic capacity of the king helped to express his new position as head and representative of the state. It naturally suggested to the lawyers the distinction, with which they were becoming familiar, between corporate and natural personality;2 and led them to talk of the king as a corporation sole, and to compare him to a bishop, an abbot, a prior, or a parson.3 As Bacon pointed out, the analogy was not exact, for the king was both natural man and the head of the body politic.4 In spite of this objection it is possible that, if the English king had ever become identified with the state, something might have been made of the idea that the king was a corporation sole.5 But in England in the sixteenth century no statesman or lawyer ever thought of suggesting this identification --he and his subjects together were the " great corporation or body politick of the kingdom."6 Since, however, the king, as the head and representative of the state, was given a new and peculiar position within the state, it was clear that the old list of semi-fudcal privileges, contained in such documents as the Praerogativa Regis,7 would no longer serve as a complete statement of the law. No doubt this old list of privileges, as interpreted by the Year Books, served well enough for the ordinary cases in which the king's prerogatives came before the courts; and a summary of the law grouped round this so-called statute was written by Staumford.8

## 204 XVITH CENT. AT HOME AND ABROAD

But, as Staunford recognized,\[1\] it did not tell lawyers or politicians anything of the new position in the state which the king and his prerogative were taking. A re-statement of the law on this topic was wanted in order to bring it into conformity with the facts and the needs of the day. But to make this new statement some more definite doctrines must be evolved than this somewhat abstract reasoning as to the consequences of the king's double capacity. Some practical deductions must be drawn from it.

(ii) 'The two chief ideas which the lawyers used for the purpose of drawing these deductions were ($a$) the idea of an inseparable prerogative, and ($b$) the idea of the distinction between absolute and ordinary power.

($a$) To the king in his politic capacity certain powers were said by the lawyers to be inseparably annexed. We can distinguish two different shades of meaning which were attached to this term "'inseparable." Firstly, it was used to mean a right or power which was peculiar to the king, and could not therefore be granted to another person. Thus the right to appoint justices of the peace, to pardon crimes, to create denizens,\[2\] or to dispense with breaches of statutes which might be committed in the future, could belong to the king and to the king only.\[3\] This idea had appeared at an early date. Bracton had used it to demonstrate the illegality of the possession of jurisdiction by private persons ;\[4\] and the judges of the sixteenth century used it to demonstrate the illegality of various grants of royal rights, and of licences to enjoy the forfeiture arising from the breach of penal statutes, or to compound for their breach.\[5\] The learning upon this meaning of the term "'inseparable " was summed up by Coke in the _Case of Penal Statutes_,\[6\] and the \_Case_The new position of the King 205 of the King's _Prerogative in Saltpetre_.1 Secondly, it was used in connection with the dispensing power to express a logical difficulty which the lawyers felt as to the possibility of taking away the prerogative to dispense with a statute, even by Act of Parliament. If, it was said, the king has, by virtue of his office as king, a power to dispense with Acts of Parliament, how can this power be restrained? If the Act restrains dispensation with itself, the power to dispense with that restraint still exists, _non obstante_ the restraint.2 This prerogative is therefore inseparable. The learning upon this meaning of the term was summed up by Coke in the _Case of Non Obstante_.3

Footnote 1: (1607) 12 Co. Rep. at p. 13--''The taking of saltpetre is a purveyance of it !or the making of gunpowder for the neccessary defence and safety of the realm, And for this cause, as in other purveyances, it is an incident inseparable to the Crown, and cannot be granted, demised, or transferred to any other."

Footnote 2: Y.B. 2 Hy. VII. Mich. pl. 20; from this case Bacon, Maxims of the Law, Works (ed. Spedding) vii 37o, deduces the following proposition: " If there be a statute made that no sheriff shall continue in his office above a year, and if any patent be made to the contrary it shall be void; and if there be any _clausia non obstante_ contained in such patent to dispense with the present act, that such clause also shall be void; yet nevertheless a patent of a sheriff's office made by the king for term of life, with a _non obstante_, will be good in law, contrary to such statute which pretendeth to exclude _non obstantes_: and the reason is, because it is an inseparable prerogative of the crown to dispense with politic statutes, and of that kind; " cf. 1?owden 5o2; the last trace of this idea appears in the phrasing of 8 xii of the Bill of Rights; cf. D'Ewres 168--the speech of Humphrey Gilbert; the difficulty is somewhat analogous to the difficulty of conceiving an Act by which a sovereign body can effectually limit its own powers.

Footnote 3: (1607) 12 Co. Rep. 18.

Footnote 4: Thus in Bates's Case (1606) a S.T. at p. 383, Clark B. said, " As it is not a kingdom without subjects and government, so he is not a king without revenues. And the revenue of the crown is the very essential part of the crown, and he who rendeth that from the king pulledh also his crown from his head, for it cannot be separated from the crown."

Footnote 5: Thus in the case of Non Obstante 12 Co. Rep. 18, he said, " 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 solely and inseparably is annexed to his person; and this Royal power cannot be restrained by any Act of Parliament, neither in _thisis_ nor in _hypothesis_, but that the king by his royal prerogative may dispense with it."

**206 XVITH CENT. AT HOME AND ABROAD**

one another, this idea of an inseparable prerogative acquired a political importance, because it could be used to support the proposition that the prerogative as a whole was superior even to an Act of Parliament, and that an Act of Parliament which purported to take it away was a void Act.1 The idea had not acquired this importance in the sixteenth century. It was used either to express the fact that certain parts of the prerogative were such essential parts of the conception of the prerogative that they could not be vested in any other than the king, or to denote the logical impossibility of taking away his power to dispense with statutes.2

Footnote 1: The Case of Ship-money (1637) SS S.T. at p. r135, " No act of Parliament can bar a king of his reality," _per_ Finch C.J. ; cf. ibid at p. r085 _per_ Crawley J.

Footnote 2: This in the Case of Mines (1568) a Plowden at p. 335, some, arguing for the crown, " affirmed that this mine, being a mine royal, could not be granted or severed from the crown even by express words, for it is an incident inseparable to the crown as escheats for treason are; " but this was denied, and nothing was said of this point in the judgment; it would seem that " inseparability " cannot be predicated of the prerogative as a whole, but only of certain parts of it.

Footnote 3: Vol. i596-597.

Footnote 4: See the instances given by Mr. Alston in the Introd. to his edition of Smith's Republic xxxi, xxxii. Smith talks of the Prince's absolute power in time of war, his absolute power over the coinage, or over foreign affairs, and of the absolute character of the judgments of Parliament; in all these cases Mr. Alston says the term means " without appeal; " I should rather prefer to say that it means an authority the exercise of which cannot be called in question by any legal process, i.e. there exists what we should call an absolute discretion. Thus Lambard, Archeion r36, talks of hearing a case, " by absolute authority without prescribed rule of ordinary proceedings; " Coke, Caudrey's Case (1591) SS Co. Rep. at p. 40b, says that the " kingdom of England is an absolute monarchy," by which he means that it is not aThe New Position of the King 207

separable," gave countenance to the idea that the king had a large and indefinite reserve of power which he could on occasion use for the benefit of the state; 1 and the constitutional controversies of the seventeenth century gave a very definite meaning to this idea.3 The older authorities knew of the particular parts of the royal prerogative which were absolute, and particular parts of the prerogative which were inseparable; but their words were not always very precise; 5 and this want of precision enabled the prerogative lawyers of the seventeenth century to deduce from their statements concerning these particular absolute or inseparable prerogatives the theory that the king had, inseparably attached to his person, a general absolute prerogative to act as he pleased, which he could use whenever he saw fit.4

Footnote 3: Thus the statement in Willion v. Berkley (r561) Flowden 334, above r84 n, 3, that the king "is the head," and "that he has the sole government " could be easily made the starting point of another theory which regarded the king as corporation sole, and, in accordance with the continental idea, identified king and state.

Footnote 4: Vol. vi c, 6.

No such deductions were drawn by the lawyers and statesmen of the sixteenth century. They recognized that the king had a politic capacity, and that in that capacity he was the head and representative of the state. To that capacity certain powers were inseparably annexed--they were, that is, implicit in the idea of kingship, and therefore inseparable from the person of the king. As to the mode of user of some of these powers the king's discretion was free--he had an absolute prerogative. The mode of the user of others was prescribed by law. They could therefore be called ordinary because they were subject to the ordinary conditions of compliance with the law. The king himself was not amenable to the law,5 and the exercise of any of his absolute prerogatives could not be called in question in a law court. But, subject to these subject to the jurisdiction of the pope or other foreign prince; 'Wray, the speaker in x57I, said that over ecclesiastical causes, "'her Majesty's power is absolute," D'Ewes x4I; sometimes the word is used in its modern sense, e.g. Sir H. Gilbert made the statement that, " other kings had absolute power as Denmark and Portugal," D'Ewes x68 ; but this was not said by a lawyer ; the legal use is that indicated above; and that this is so can be further illustrated by a passage from Lambard, Justices of the Peace Bk. I c. xi (cited Alston, op. cit. xxvii); Lambard there says that he is using " absolute power " in the sense of "' discretion," and draws the distinction between a discretion to be exercised "' simply," and a discretion to be exercised " after a manner; " this really answers to the modern distinction between a discretion and an absolute discretion. 1 The adjective " royal " is sometimes used in a similar way, see the statement in the preamble of 3I Henry VIII. **c, 8, "** not considering what a kinge by his royal power may doe; " Select Cases in the Star Chamber (S.S.) i 37, 46, " Riall " is used to signify "absolute " power. 2 Bates's Case (r606) a S.T. at p. 389, Fleming C.B. said, " the absolute power of the king . . . . is that which is applied to the general benefit of the people and is _salus populi_; " cf. the Case of Ship-money (r637) 3 S.T. at p. r083, " In the king are two kinds of prerogative _regale_ et _legale_," per Crawley J. 3 Thus the statement in Willion v. Berkley (r561) Flowden 334, above r84 n, 3, that the king "is the head," and " that he has the sole government " could be easily made the starting point of another theory which regarded the king as corporation sole, and, in accordance with the continental idea, identified king and state. 4 Vol. vi c, 6.

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qualifications, both the extent of the prerogative and the mode of its user was subject to certain legal limitations which the law courts must interpret.1

Footnote 1: Perhaps the best short summary of the actual state of the law in the sixteenth century will be found in Hooker, Ecclesaatical Polity Bk, viii SS 2, 17.

The English king therefore was far from being the sovereign power in the state. Nor do I think that any lawyer or statesman of the Tudor period could have given an answer to the question as to the whereabouts of the sovereign power in the English state. The doctrine of sovereign was a new doctrine in the sixteenth century ; nor is it readily grasped until the existence of a conflict between several competitors for political power makes it necessary to decide which of these various competitors can in the last resort enforce its will.2 There is a negative element about the doctrine of sovereign as well as a positive. We must be able to assert, not only that the sovereign is the person or body to whom the bulk of his subjects are in a state of habitual obedience, but also that he or they are not in a state of habitual obedience to any ; and it is not until this conflict has arisen, and has been decided, that men see the necessity for the denial as well as the assertion. For it is not until then that men are driven to consider either the precise extent of the power of the ruler of the state, or the question whether or no it is shared by any other person or body within the state. Till then general assertions,as to the supremacy of some particular person or body of persons will serve. It is such a general assertion of the supremacy of the king in Parliament that we get in Sir Thomas Smith's work. No controversy had as yet arisen as to the extent of the powers of the king or the powers of Parliament.3

Footnote 2: As Mr. Gooch says, Democratic Ideas in the Seventeenth Century 38, "the conduct of the Parliaments of the reign (of Elizabeth) exhibits the interesting spectacle of a stout determination to have their way on questions of importance, combined with a tacit understanding that first principles shall be lost alone."

Footnote 3: This is the reason why the author is trying to use the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the term "the " term "the term "the term "the term "the " term "the term "the term "the " term "the term "the " term "the term "the " term "the term "the " term "the term "the " term "the " term "the term "the " term "the term "the " term "the term " "

## The New Position of the King 209

He does not contemplate the existence of a controversy between them. All that he means to do is to assert that the king together with his Parliament can exercise supreme authority in the state.

The unique continuity and the peaceful character of the development of English institutions and English law throughout this century had led to the retention of medieval ideas as to the relation of the king to the law and government of the state, which were quite opposed to the new theory of sovereignty. It was to Bracton's book, rather than to any more modern authority that lawyers and statesmen of all opinions appealed. Thomas Cromwell,1 and the upholders of the prerogative in the Elizabethan Parliaments, appealed to Bracton's book to prove that the king was the vicar of God and supreme in his realm ;2 while throughout the century lawyers and the upholders of the rights and privileges of Parliament appealed to the same authority to prove that the king's acts were governed by a supreme law.3 Though English institutions had been adapted to the needs of an independent territorial state of the modern type, the theory of the English state was as yet very mediaval in its character. Even in the ecclesiastical sphere the Reformation had made, officially, no break with the past.4

Footnote 1: L, and P. xii $i$ no. 1038, Denys, writing to Cromwell, says that Cromwell had caused him and Kingston to read Bracton, in which the king is called Vicarius Christ.

Footnote 2: In the Parliament of regor Cecil said, * If you stand upon law and dispute of the prerogative, heark ye what Bracton saith, Praerogativam noxtram nemo audeat disputare," D'Ewes 649.

Footnote 3: See e.g. D'Ewes 238, Wentworth cited Bracton to prove that the king, * ought not to be under man, but under God and under the law, because the law maketh him a king . . he is not a king in whom will and not the law doth rule, and therefore he ought to be under the law; * cf. Bacon's argument in Calvin's Case, Works (ed. Spedding) vii 646, where a very similar use is made of Bracton's authority.

Footnote 4: Vol. i SS89-597 ; above 36, 37.

The manner in which medieval institutions had been adapted, with the minimum of change, to suit a modern state is clearly brought out in Sir Thomas Smith's famous book on the Republic of England ; and the manner in which mediaeval ideas had been similarly adapted is equally clearly brought out in Hooker's great work on Ecclesiastical Polity. It is from these books that the theory of the English state at the close of the sixteenth century can most clearly be seen.

Sir Thomas Smith 6 (1513-1577) was by no means the least distinguished of the many-sided men who helped to govern England in the reign of Elizabeth. In Henry VIII.'s reign he had made his name as a classical scholar at Cambridge. In 1540 he was created the first regius professor of civil law in that University. He went abroad to study his subject, and became a

### 210 Xvith Cent. At Home and Abroad

doctor in law of the University of Padua. A staunch supporter of the Reformation, he entered the service of the state in the reign of Edward VI. "He became clerk of the privy council, steward of the stannary courts, a master of the court of requests, provost of Eton, Dean of Carlisle, and in i548 one of the two secrctaries of state,"1 He was attached to the protector Somerset, and lost his professorship and secretaryship at his fall. In Mary's reign he lost the provostship of Eton and the Deanery of Carlisle; but he received a pension in lieu of these offices, and the friendship of Gardiner protected him from further molestation during her reign. He became prominent once more in Elizabeth's reign. He was on the commission which sat to consider the business to be brought before the Parliament of i559, and he represented Liverpool in that Parliament. From i562-i566 he was ambassador in France. He became a privy councilor in i571, and secretary of state in i572. In the latter year he again sat in Parliament, and became chancellor of the order of the Garter. He died in i577.

Smith was not only an eminent public servant, he was also a classical scholar, a physician, a mathematician, an astronomer, an architect, an historian, and an orator. But it is none of these accomplishments that gives him a place in English legal and constitutional history--it is his little book on the Republic of England, written, like Fortescue's De Laudibus,2 when he was in France. The book was first published in i583, and it ran through eleven editions in a little over a century. It was translated into Latin, and in its Latin dress four editions were published.3 To the editions of i583 and i584 the editor and publisher appended notes. In the former edition the notes are mainly legal: in the latter they are mainly etymological.4

Footnote 2: "Val. ii 569-570.

Footnote 3: "Alston's Ed, App. A 144-147.

Footnote 4: "Alston, Introd. xlv-liii; Maitland App. A 147-i67 gives a very full and clear account of additional notes made to the i589 Edition.

Smith set himself to " declare summarily as it were in a chart or mappe . the forme and manner of the government of Englande and the policie thereof, and settle before your eies the principall pointes wherein it both differ from the policie or government at this time used in Fraunce, Italie, Spaine, Germanie and all other countries, which doe follow the civil lawe of the Romanes." He has given us, as he says, a true account of an actually existing commonwealth; and he points out that a comparison between this commonwealth of England and the commonwealths of neighbouring states would "be no illiberal occupation for him that is a philosopher," nor, "unprofitable for him who hath to doe, and hath good will to serve the Prince and thecommonwealth."1 The book is, therefore, as Mr. Alston says, "a pioneer treatise in comparative politics."2 And it is probable that Smith has emphasized in his sketch the points of contrast with foreign governments. The Privy Council--the real governing body of the country--is hardly mentioned.3 But foreign states were well acquainted with similar bodies. One great contrast between the English state and the continental was the fact that England was still governed by many courts of medieval origin, and by a common law which was wholly peculiar to itself. This is the reason why " to Smith the constitution of a commonwealth consists primarily of its courts and its various forms of law--martial, ecclesiastical and general;" and why the " regularly recurring contrast" is between England and countries governed by the civil law.4 But another equally great contrast between the English and the continental state was to be found in the unique sphere occupied by the English Parliament. Its existence and activities presented quite as great a contrast to the institutions of foreign countries as the English courts and the English common law. I think that it was mainly for this reason that Smith so fully describes it. It was no doubt a court; and it possessed some of the attributes of a court. But it was because it was unique, and not because Smith thought of it primarily as a court, that he gives it so important a place in his book.5

Footnote 1: Bk, iii c, 9 Epilogue. * Alston, Introd. xxvi. * Ibid xxvi, xxvi--Similarly "the relations of church and state were too prominent a question in Smith's time, and convocation was still a body of too great constitutional importance, for them to be ignored. in an Elizabethan treatise on the constitution. Yet they are passed over without a mention,"

- Ibid xxvi.
- Here I differ from Mr. Alston, who thinks that he devotes a large space to the Parliament only because " No account of the judicial system would be complete without it;" but we have seen that Parliament in Elizabeth's reign had come to be much more than a judicial court, above x83-x84; Smith meant, as his letter to Haddon shows (cited Alston xiv) to raise the question, "whether what is held in England as law be the better, or what is held here (in France) and in those regions which are administered in accordance with Roman law;" by "law " Smith means rather public than private law, as the contents of his book show. Obviously the position of the English Parliament and its relation to the Prince afforded one of the greatest of contrasts to the public law of foreign states, above x67-x68.
- Above x17-x18; see also vol, v 166.

Though the comparative point of view which Smith adopts led him to emphasize certain of the institutions of the English state, and to neglect others, we cannot accuse him of over-emphasis. The fact that the greater part of the institutions of the English government could be best described under the rubric " Justice and Police " is obvious from the literature of the subject. Both Lambard and Crompton described the central government in a treatise upon the jurisdiction of courts. With Lambard's tract I have already dealt.6 It is political rather than legal in its tone.

**212 XVITH CENT. AT HOME AND ABROAD**

Crompton's treatise,1 on the other hand, is legal rather than political--it owes much, as the author says, to the abridgments of Fitzherbert and Brooke.2 It is to a large extent a digest of the Year Books and other cases applicable to the subject. I cannot but think that this characteristic of the literature of the subject is the most striking testimony to that continuity of development, which is the dominant and peculiar note of the history of English public law throughout this century of change.

Footnote 1: "L'authoritie et jurisdiction des courts de la Majestie de la roygne," published 1594; for his work on local government see above II0.

Hooker's great work is the complement of Smith's. Smith describes institutions. Hooker attempts to extricate the political theory which underlay them. The "Ecclesiastical Polity," as its title implies, professes to be only a defence of Elizabeth's ecclesiastical settlement. But it is far more than this. It is in fact an explanation and a vindication of the Tudor polity in state and church. Because it is the only book which not only describes that polity but also explains its underlying principles, it is of immense historical interest; and because the results of the constitutional controversies of the seventeenth century were to give practical effect to the theory of the state outlined in it, it is of equal constitutional importance.3

Hooker's book is dominated by the mediaval idea of the supremacy of the law. Heaven and earth alike are governed by laws of different kinds--" the law which God with Himself hath eternally set down to follow in His own works; the law which He hath made for His creatures to keep, the law of natural and necessary agents; the law which angels in heaven obey; the law whereunto, by the light of reason, men find themselves bound in that they are men; the law which they make, by composition, for multitudes and politic societies of men to be guided by; the law which belongedt unto each nation; the law that concerneth the fellowship of all; and lastly the law which God Himself hath supernaturally revealed." 4 "Wherefore," he concludes, " of law there can be no less acknowledged, than that her seat is the bosom of God, her voice the harmony of the world, all things in heaven and earth do her homage, the very least as feeling her care, and the greatest as not exempted from her power." 5 All creation therefore, animate and inanimate,The New Position of the King 218

is governed by law. All men are governed by the overriding law of God and of reason ; and, besides, they are governed by other laws of human origin.

In the first place men must obey the law of the particular society to which they belong--if this were not so, "we take away all possibility of sociable life in the world."1 The contents of this law must differ according to the needs of particular societies, and must therefore vary with time and place.2 Such laws will necessarily include rules both as to temporal and ecclesiastical matters ; and all these rules must be obeyed, provided that they do not contravene the law of God or of nature.8 Subject therefore to this condition, each particular state is free to adopt the mode of government both in church and state which it pleases.4 Nor is this unreasonable, because the law really rests upon consent expressed or implied.5 It is the act of the whole body politic ; and this body politic includes both church and state.6 Thus in England laws are made by the whole Parliament.7 The king indeed has dominion over the whole state ; " but with dependence upon that whole entire body, over the several parts whereof he hath dominion ; so that it standeth for an axiom in this case that the king is _major singulis, universis minor._"8 Though personally above the law of the state, he is personally subject to Divine law,9 and his acts are subject to the law of the state.10 So that, " though no manner of persons or

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causes can be unsubject to the king's power, yet so is the power of the king over all and in all limited, that unto all his proceedings the law itself is a rule."1 "What power the king hath, he hath it by law, the bounds and limits of it are known. . The whole body politic maketh laws, which laws give power unto the king."2

Footnote 1: Bk. viii SS 2, 13. "Ibid SS 8, 9.

In the second place, these independent societies are bound together by the rules of international law. "The strength and virtue of that law is such, that no particular nation can lawfully prejudice the same by any their several laws and ordinances, more than a man, by his private resolutions, the law of the whole common wealth or state wherein he liveth."3

Europe, therefore, is no longer one body--one Holy Roman Empire. It is composed of a number of independent states, each of which is governed internally by its own municipal laws, and externally by international law; and over all is the law of God and nature.4 It is law, therefore, which governs the universe; and those states in which the law is supreme are the best ruled, and most in accord with the Divine government of the universe.5

Hooker's book is the best proof that the Tudor sovereigns had succeeded in their efforts to adapt medieval institutions and ideas to the needs of the modern state. It is because this adaptation had been gradually and peacefully effected that England in the sixteenth century produced no book of European importance upon the theory of the modern state. Grievances political or religious, acutely felt, are the force which inspire men to raise fundamental questions, and to write books which become landmarks in the science of politics. If it is true that a country is happy which has no history, it is equally true that it is happy in its form of government if its subjects are not moved to probe deeply into the theories which underlie that form of government. Mr. Gooch has said of Fortescue's books that "there is not much political philosophy to be found in them; " and that "the constant tendency of his work is to slide from general discussions into criticism of the constitution, or devising means for its amendment."6 This is equally true of the political philosophy of Elizabeth's reign. The

## 2 The New Position of the King 215

existing constitution is taken for granted. There is no need therefore to discuss the fundamental principles underlying the modern state except in the most perfunctory way. Practical reforms of actual institutions are much more important.1 It is mainly for this reason that continental speculation on the theory of the state had little practical influence upon England in the sixteenth century. But the minds of those who interested themselves in public affairs could not be wholly uninfluenced by it. It formed, so to speak, the intellectual background to the stage on which they played their parts, whether their political leanings led them to favour an increase in royal power or to advocate its limitation ; and it will become important if a serious constitutional controversy arises within the state. We must therefore take some account of its existence and its as yet indirect influence upon English political theory. In the first place I shall glance at the influence of the royalist theories of the state, and in the second place at the influence of the theories of those who sought to place some limitation upon royal power.

Footnote 1: Above 208 n 3.

(1) Seeing that the Reformation settlement was founded upon the royal supremacy, we necessarily find a strong leaning in favour of the divine right of the king.2 We have seen that the Reformation, by emancipating the country from papal control, transferred to its ruler that divine right which was formerly the peculiar property of the pope;3 and this necessarily led to assertions of the duty of blind obedience to the king, and of non-resistance to his will.4 The Tudors were not indeed in a position to assert the divinity of hereditary right. This useful addition to the theory of the divine right of the king was not possible till the accession of James I.5 But even in the Tudor period the theory of divine right strengthened the position of the king by giving a rheological colour to the somewhat mystical legal doctrines concerning him and his prerogative; and both the legal and the rheological doctrines were in harmony with the actual position of the king in the state. It is clear that they will be of infinite value to those who desire to magnify the royal power at the expense of all other

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powers in the state ; and that, when Bodin's doctrine of sovereignty has been assimilated,1 they will be able to be used to support a theory of royal absolutism.

Footnote 1: It may be noted that Crawley J. in the Case of Ship-money (r637) 3 S.T. at pp. r083, 1084 cites Bodin to prove that, in cases of imminent danger, " the king ought not to expect a Parliament, but is to raise monies suddenly, and such impositions laid upon the subjects are just and necessary."

Footnote 2: Poynet's treatise on Politic Power, written by Poynet, bishop of Winchester, 1556; the work of Goodman, once Lady Margaret professor of Divinity, and the companion of Knox at Frankfort and Geneva; as Mr. Gooch says, Democratic Ideas in the Seventeenth Century 37, " Both works were inspired by the fact that Mary's religion was not theirs;" but that, " the principles introduced to defend the national religion are utilized to ensure the preservation of every department of national well-being."

Footnote 3: See Gooch, op. cit. 44-48 for the works of Knox and Buchanan.

Footnote 4: Ibid 52-54. * Above 197-199.

Footnote 5: Gooch op. cit. 28, 29, " The political ideas to which the religious wars in France had given rise continued to circulate in England long after they were forgotten on the continent. The writings of the Huguenots were studied and quoted by the forerunners of the great democratic thinkers of the middle of the seventeenth century. The pages of the Ultramontanes, again, were continually searched by Protestant controversialists, and by those eager to discredit the position of their Puritan opponents, by exhibiting their similarity to those that had been maintained by the hated Jesuits."

(2) The Marian persecution had produced books which advocated resistance to the unlawful commands of rulers, similar in kind to the books produced in France during the wars of religion.2 Similar ideas were preached by the Scotch reformers; * the United Provinces, definitely our allies during the latter part of Elizabeth's reign, were an object lesson of the advantages which might accrue from a successful resistance to tyranny; * and there was the large French literature, both Huguenot and Jesuit, which taught similar doctrines.5 But these ideas had little influence upon Elizabeth England. The nation as a whole was content, and small grievances could be ventilated in Parliament. It was in the seventeenth century, when the supporters of the king had begun to formulate their absolutist claims, that we begin to hear of these ideas. The French literature of the wars of religion then began to influence English politics.6 Having served its purpose in France it was destined to have a larger practical influence in England than it had had in its own country; and eventually, through the English political literature which it inspired, a yet greater influence upon the politics of Europe.

Footnote 2: Poynet's treatise on Politic Power, written by Poynet, bishop of Winchester, 1556; the work of Goodman, once Lady Margaret professor of Divinity, and the companion of Knox at Frankfort and Geneva; as Mr. Gooch says, Democratic Ideas in the Seventeenth Century 37, " Both works were inspired by the fact that Mary's religion was not theirs;" but that, " the principles introduced to defend the national religion are utilized to ensure the preservation of every department of national well-being."

For the present the majority of the nation was satisfied with the balanced Tudor polity, which left large and undefined powers to the King and Council, to Parliament, and to the law. With the shape which the powers of King and Council and Parliament had assumed, and with the machinery of local government through which they worked, I have already dealt. We have seen that all these institutions had retained many mediaval characteristics, but that their form and their authority had been

**THE NEW RULES OF LAW 217**

adapted to the needs of the modern state. We shall now see that this is generally true also of English law. At the end of the century the mediaeval common law is still the basis of the English legal system. But it has been partially adapted to the new political conditions ; and, in addition, other supplementary bodies of law have grown up by its side, and are in some cases threatening to overshadow it. In this way new ideas, some of which are derived from Roman law, civil or canon, have been received into the English system. There has been a Reception of new legal ideas during this century in England as well as in continental states. But, as we shall now see, this Reception of new ideas differed from the continental Reception of Roman law as fundamentally as the institutions of English state and the theories underlying it differed from contemporary continental institutions and theories. These peculiarities of the English Reception are the legal counterpart of the peculiar character which the changes wrought by the Reformation and the Renaissance had assumed in this country ; and they are partly the effect and partly the cause of the differences between the English and continental institutions and political theories which I have just described.

## III The New Rules of Law--The Reception of Roman Law

The results of the Renaissance and the Reformation upon the political condition of Europe had been as extensive as their results upon its intellectual outlook and its religious state. Europe was no longer, even in theory, composed of a group of states or principalities which considered themselves to be members of one universal church and one universal state. It consisted of a number of independent territorial states. This change at once gives rise to the question, By what law are these states to be governed ?

It is clear that old rules of customary law would not suffice, for they were both archaic in substance and cumbersome to administer. More civilized codes were needed both by the kings and statesmen who were creating a centralized administrative system, and by the private person whose demands upon the resources of the law grew more exacting with each advance in political, social, and economic development. In all the principal states of Western Europe, except England, this need was met by a Reception of Roman law. In some states, as we shall see, this Reception was no new thing in the sixteenth century. Ever since the legal Renaissance of the twelfth and thirteenth centuries, there had been states in which a gradual Reception had been

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taking place;1 and England and English law had for a short period come under these influences.2 But whereas these influences had ceased to affect England at the end of the thirteenth century,3 they had continued in a greater or a less degree to affect many of the continental states; and the intellectual, the religious, 'and the consequent political changes of the sixteenth century both added to their strength and extended the sphere over which they operated. It is for this reason that on the continent this century can fairly be said to be pre-eminently the century of the Reception of Roman law.

Footnote 1: Vol. ii 14, 270; below 249-250.

But in England there was no similar Reception. So far was England from receiving the Roman law that, at the end of the century, there were signs that the Reception which it might expect was a Reception of the common law. The common law was beginning to encroach upon and to question the jurisdiction of the new courts which had been established in this century :4 it was beginning to impose upon them its own technical rules and conceptions. At the end of this century English law stood, as it stands to-day, in sharp contrast with the law observed in other countries in Europe, because it was and is the one system in which the technical language and the principles of Roman law are not recognized. This being the case, it may be asked, What bearing has this continental Reception upon English legal history? The answer is that it has an important bearing for two reasons.

Footnote 1: Vol. ii 14, 270; below 249-250.

Footnote 2: Vol. ii 145-149, 176-178, 227-229, 267-286.

Footnote 3: Vol. i 144-415, 459-463; 508-513, 553-554.

In the first place, a study of the legal developments which were taking place on the continent helps us to understand the somewhat analogous developments which were taking place in England in the sixteenth century. England had its native common law. But in this century many new institutions and courts had been created or newly organized; and these institutions and courts acted upon principles which did not altogether harmonize with those of the common law. If these new institutions, new courts, and new principles had got the upper hand, there might well have been a sort of Reception in England. For, then as now, if a court administered a body of law which was not the common law, that body of law was pretty sure to be tinged more or less strongly with the principles of the civil law. Though these new institutions and new legal principles did not get the upper hand, the common law was in some respects modified by its contact with them; and it was obliged to contend for supremacy with the rival bodies of law which these new institutions were calling intoThe new rules of law

being. If we are to understand the new elements in our law, public and private, which were added to it in this century, if we are to understand the new political ideas which begin to emerge in this century and become all-important in the great constitutional controversies of the next, we must keep before our minds the contemporary legal history of the continent.

In the second place, the fact that one non-Roman system of law stood its ground in this age of the Reception is one of those events which have affected the legal history of a large part of the civilized world of to-day. It has directly affected the law observed in the British Dominations beyond the seas, and in the United States ; and it has, in course of time, modified the effects of the Reception in Scotland. It has indirectly affected the constitutional history not only of those countries, but also of many countries in Europe ; for we may well doubt whether the English constitution would have so developed as to be a pattern to many countries in the old and new world, if England had been the scene of a Reception such as took place in many continental countries.1 Therefore the question why the English legal history of the sixteenth century presents this marked contrast to the legal history of other European nations raises a problem of first-rate importance, which is essentially a problem in the history of English law. Its importance is as great as the problem why in the Middle Ages England alone among the nations of Europe developed a native common law. We shall see that, to a large extent, the solution of the medieval problem is related to the solution of the sixteenth century problem as cause to effect. But to see how this relation of cause and effect was produced in this century of new ideas, new beliefs, and new institutions, a knowledge of what the continental Reception was, and what were its consequences, is clearly necessary. Without this knowledge we can appreciate neither the peculiarities of English law, which made it strong to resist foreign influences, nor the consequences of the native development of the law which was thus insured.

Footnote 1: Maitland, English Law and Renaissance, 30.

In dealing with the Reception I shall divide the subject as follows : Firstly, the development of Roman law on the continent and the contemporaneous development of English law ; secondly, the development of Roman law in England ; thirdly, the causes of the continental Reception, its extent, and the manner in which it was effected ; fourthly, the extent to which the development of English law was influenced by the Reception ; fifthly, the consequences of the Reception on the continent and in England.

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_The Development of Roman Law on the Continent and the Contemporaneous Development of English Law_

While the English lawyers of the fourteenth and fifteenth centuries were developing the principles of the common law by means of arguments used in actual cases reported in the Year Books, their brethren on the continent were developing the principles of the civil law by means of glosses and commentaries and treatises upon the text of Justinian's books. And thus, while the English lawyers of these two centuries made the common law a system of case law, the continental lawyers of the same period made their law depend upon the common opinion of the legal profession,1 to be gathered principally from legal treatises, and sometimes from the _Arretts de reglement_, that is, the general rulings of the superior courts.2 At the present day these two modes by which the legal profession can develop the law are the distinguishing marks of the countries of the common law and the countries of the civil law.

But it was only gradually that this and other differences between the English and the continental modes of legal development became distinct and stereotyped. The finished result is the product of many gradual changes. In England the age of Bracton and the age of Edward I, differ from the age of the Year Books ; and the age of the Year Books differs from the age of the modern reports.3 Abroad the age of the glossators differs from the age of the post-glossators or commentators ; and the age of the commentators differs from the age of the jurists of the Renaissance. Both in England and abroad we can see the influence of these different ages upon the law of the present day. I must therefore say a few words about them if we would understand the form of the Roman law which the sixteenth century received.

Footnote 1: Brissaud, Histoire du droit francais 214, "Pour le praticien, ce qui importe, c'est moins une theorie elegante que la _communis opinio_ ; les citations et les autorites remplacent volontiers les raisons.1"

Footnote 2: "Les _Arretts de raglement_ des Cours sourveraines etaient des decisions prises par ces Cours pour etre observees comme lois dans l'erendue de leur ressort," Brissaud, op, cit. 375: Pasquier, Lettres Bk. xiv no. r5, after explaining that arretes given in individual cases do not form precedents (see below 224, n, 6), says, " Bien scay-je, que sur tous les autres il faut porte un respect singulier aux _Arrets_ qui sont _es_ sur les veilles des festes solemnelles prononcez en robbe rouge, comme estans de propos delibre tirez pour servir de lecon a l'avenir aux Advocats en pareils subjects; non toutesfois par tous les Parlemens, mais en ceux auxquels ils ont este jugez." Though we group together the reports from the sixteenth century onwards, and call them the modern reports, we must not forget (r) that there have been changes in their form, see vol. v 369-374; and (a) that in the last century, owing to the activity of the legislature, the power of the court to develop law on a grand scale by their means has been diminishing, see Dicey, Law and Opinion 487, 488.

# Roman and English Law 221

doctors, and Accursius, whose great gloss summed up most of the work of his predecessors.1 The work of this school took many different forms.2 The most characteristic of these forms, and that which has given the school its name, was the gloss. These glosses were commentaries upon the text of Justinian's books--at first interlinear and then marginal ; and they were of several distinct kinds--grammatical, critical, analytical, or in the form of a running commentary. Their length increased to such an extent that the text was almost buried beneath them. In the sixteenth century their authority was almost equal to that of the text "--" quidquid non agnoscit glossa, id non agnoscit curia." 4

Footnote 1: Vol. ii 136-137, 247-248, 267 n. 6.

Footnote 2: Vinogradoff, Roman Law in Medieval Europe, 47, 48; Tardif, Histoire des sources du droit francais, Origines romains, 343-350; Brissaud, op. cit. 208, for the Summa, Casus, Brocarda, Questiones, Distinctions, and other forms.

Footnote 3: Tardif, op. cit. 343.

Footnote 4: This maxim, as we shall see below 243 n. 3, was not formulated in this form till the sixteenth century, but it substantially represented the facts.

Footnote 5: Brissaud, op. cit. 2x0.

Footnote 6: Thus they asserted that Justinian's consultations were not dated by reference to the beginning of the "Christian era because he was reigning at the birth of Christ," Tardif, op. cit. 347.

Footnote 7: They derive the Lex Falcidia from "Falx " because it cuts legacies as a sickle cuts corn.

Footnote 8: "Gracum est, non legitur," Brissaud, op. cit. 2x1.

Footnote 9: Flach, Cujas, Les Glossateurs, et Les Bartolistes, 19.

Footnote 10: Iid zo, " La Glosse offrait aux professures et aux legistes des expressions appropriees aux besoins nouveaux, des formules toutes faites, d'un emploi commode;" Esmein, Histoire du droit francais, 838-847.

The defects of this school were due to the uncritical character of the period. The text of Justinian was both the Aristotle and the Bible of the lawyers.5 They were ignorant of history,6 philology, and literature; 7 and they treated Justinian's laws as a code which bound them as fully and as literally as the nations over whom Justinian had ruled. They knew no Greek.8 But in spite of these defects their services were great. They restored to Europe the texts of the law from the actual sources. They explained these texts, and partially adapted them to the needs of their age; 9 and thus they laid the foundations of the system of modern Roman law--the system which is at the base of most of the legal systems of modern Europe. Their work, too, was eminently practical; for it not only brought the law into conformity with the needs of the day, it provided also apt formulae for giving effect to the new needs of a changing society.10 As we have seen, their work was analogous to that done in England by Bracton and his contemporaries.11 But whereas they constructed their law by their work on the text of the Corpus Juris, the English lawyers constructed their law from the cases decided in the King's court. Thus, even in this early period, we have arrived at the fundamental difference between the

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English and the continental methods of developing a legal system \[1\]. But both in England and on the continent it was not till the following period that these modes of development attained their permanent form.

The second period--the age of the commentators or post-glossators--covers the fourteenth and fifteenth centuries. The precursors of this school came from France. Jacques de Revigny, who died in 1296, is said to have been its earliest representative \[2\]. Its most famous exponent, from whom the school took its name, was the Italian Bartolus de Sasso-ferrato (1314-1357) \[3\]. He and his famous pupil Baldus de Ubaldis (1327-1406) \[4\] are to this school somewhat what Accursius was to the school of the glossators. Their work consisted in the construction of a positive body of legal doctrine from the text and the gloss. Departing from the methods of their predecessors, they used for their work of construction the prevailing method of reasoning--the scholastic dialectic ; and their works have all the consequent defects \[5\]. "Verbosi in re facili, in difficili muti, in angusta diffusi." \[6\] They were in the habit of citing enormous lists of authorities for and against a proposition which they seemed to count rather than to weigh \[7\]. Their style was barabarous. Like the glossators they had neither history nor literature \[8\]; and, like their contemporaries the scholastic philosophers, they often discussed with much gravity and in solemn form the most academic questions--a well-known instance is the discussion whether the will of Lazarus was valid after he was raised from the dead \[9\]. And this tendency has always been a note of the civil law mainly, as we shall see, because they did not attach

## 1 Roman and English Law 228

the weight which the common lawyers were more and more coming to attach to the actual cases decided in the courts.1 But, in spite of all their defects, their influence has been far greater than that of the earlier school. In the first place, they were far more than merely commentators upon the texts of the civil and canon law which they took as their starting-point. 'I heir work was more synthetic and more original than that of the earlier school; for they systematically used their texts in order to create new rules of law suited to the needs of their age.' In the second place, they were far more than mereyers. In the Middle Ages law did not occupy a sphere so separate from the spheres of politics and morals as it occupies in modern times.3 Both political and moral questions were looked at from a legal point of view, with the result that the sphere of law was widened, and the law itself humanized.4 Thus we can find in their writings not only rules of law, but also many political theories. Both the rules and the theories often stray very far from anything that can be fairly deduced from the texts--they are, as M. Brissaud has said, to the texts what our modern languages are to classical Latin.5 This characteristic goes far to account for the extent of the Reception of the sixteenth century ; and, as we shall see, it has given to their works a large influence not only upon the law, but also upon the politics of the future.

Footnote 1: J. C. Gray, The Nature and Sources of the Law, p. 267, " There is unquestionably one evil caused by the habit of considering imaginary cases rather than real ones--a tendency to develop distinctions purely theoretical, and to complicate the law with principles and deductions which have no place in the conduct of life, and this tendency certainly shows itself in the Civil as compared with the Common Law, Think, for instance, of the discussions and doctrines on necessary and impossible conditions--on legacies if Titius goes to the moon, if Titius does not go to the moon, if Titius never dies, &c."

Footnote 2: Gravina, De Ortu et Progressu Iuris Civilis (Works, Ed. 1717, i 135), " Bar. tolini iurisconsuli, a veterum definitionum explicatione, ad nova ipsi se definitiona vertebrant, condendoque magis quan interpretationo iur civili vacabant. Ut non tam interpretes, quan ... compares quodammodo veterum iuris aucorum evaserin; " cp. Woolf, op. cit. 4:5; at p. 9 he says, "at every page we are transplanted into the active, many-sided life of the Italian cities of the fourteenth century."

Footnote 3: See Woolf, op. cit. 12-15 for the exalted claims which Bartolus made for the "civilis sapientia," which he considered law to be.

Footnote 4: As Mr. Figgis says, R.H.S. Tr. (N.S.) six 167, " When everything is seen under legal forms, the notion of law itself is wider and more universal than that of modern legalism. If you narrow theology and refrigerate ethics, you humanize law by the process."

Footnote 5: Op. cit. 2x3.

This period has something in common with the contemporary period in the history of English law--the period of the Year Books. In both cases the main external characteristics then acquired by the law have been very permanent, because in both cases they have hardened into rules of practice and modes of legal reasoning ; and these things, when they have become the traditional property of a legal profession, are the least susceptible of change. In both

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cases the law has a double aspect. In its rules are contained not only the civil and criminal law of the state, but also such constitutional and political theories as the state possesses. In both cases these theories become very important in the law of the future. The great contrast appears in the modes in which the law is developed--in the contrast between the continental mode of development through the writings and the common opinion of the lawyers, and the English mode of development through decided cases. We may, indeed, see a certain superficial similarity between the Year Book reports and the writings of the continental jurists. Our modern theory as to the binding force of decided cases was being evolved ; but, owing to the forms of procedure and pleading then in use, it had not yet attained its final form.1 The law was made rather by arguments and dicta used in cases real or hypothetical than by considered judgments.2 This is not so very unlike the mode in which the continental lawyers at this period evolved their law--"we see in their books long columns of arguments for and against drawn up like two armies upon the point which is being considered."3 This led to a prolixity of statement not unlike that which characterized the Year Book debates ; and their method of scholastic dialectic with its divisions and distinctions, its rules and exceptions, its amplifications and additions, its declarations and repetitions,4 was used by our English lawyers in arguing upon the many analogous cases which were suggested by the ingenuity of the bar or bench as the debate in court proceeded.5 But really the resemblances are superficial and the difference is fundamental. The continental lawyers constructed their systems from a text and from the raw material of cases real and imaginary. Books upon the text, upon the cases, and upon other books upon the text and cases, contained the authoritative statements of legal doctrine--they were the _Responsea_, which had the force of law. The actual case before the court was merely a concrete application of this legal doctrine, which had no bearing upon the meaning or extent or existence of the doctrine.6 The English lawyers, on the other hand,

**ROMAN AND ENGLISH LAW 225**

started _ab ovo_ or nearly so. They constructed their system from the raw material supplied by the cases which came up for trial in the King's court. As there was no other means of developing legal doctrine than by attending to the rulings in these cases, these rulings necessarily came to be regarded as authoritative. That they were authoritative was quite clear at the end of the sixteenth century; and Coke explains that it is due to this fact that the common law is superior to the civil law in the certainty of its rules.1

Footnote 1: The authoritative was not aware of the fact that the authoritative was not aware of the fact that the authoritative was not aware of the fact that the authoritative was not aware of the fact that the authoritative was not aware of the fact that the authoritative was not aware of the fact that the authoritative was not aware of the fact that the authoritative was aware of the fact that the authoritative

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home, as Arthur Duck 1 testified ; and the University of Bourges 2 was its chief centre. Its most famous representative was Cujas 8 (1522-1590). Almost equally eminent were such men as Hotman, Doneau, Douaren, Baudouin, and Jacques Godefroy.4 All these jurists in various ways applied the new learning to the study of the civil law. With the aid of classical history and classical literature, they attempted to restore to Europe the real meaning of the texts ; and they expressed their results, not in the crabbed style of the Bartolist, but in the polished language of the humanist scholar. Their work was partly exegetical like that of the old glossators,6 partly synthetical. They are the real ancestors of the modern school of Roman lawyers,6 who, by reason of the supersession of Justinian's law by national codes, have been set free to analyse and to decompose into their elements the rules and theories contained in the texts in which the law has come down to us.7

Footnote 1: By the author of the _L.S._, the author of the \_L.

## 6 ROMAN AND ENGLISH LAW 227

by Papinian or Paul, but very much for the law which courts were actually administering. As Gravina said, the leaders of this school were but the ministers of the ancient jurisprudence, and shed little light upon actual cases which were argued in the courts \[1\]. Moreover, like our modern civilians, they did not spare the work of Justinian and Tribonian \[2\]; and, as Heineccius complained in the eighteenth century, their carping criticism was calculated to destroy the whole system of Roman law without putting any workable alternative in its place \[3\]. Some of these criticisms are perhaps exaggerated. The work of the new school was not wholly confined to criticisms of the text and to reconstitutions of ancient history. Some of the jurists, notably Doneau, abandoned the exegetical method for the synthetic \[4\]. The new learning was made to correct the errors, historical, grammatical, and.critical, of the older schools, and to bring legal learning up to the new standards which were being established in other branches of knowledge \[5\]. "Sine historia caecam esse jurisprudentiam," said Baudouin \[\]; and even a limited application of this maxim, which, as M. Brissaud says \[6\], may be taken as the motto of the new school, was sufficient to expose the grosser errors of the older lawyers. The younger generation of lawyers had at least an opportunity of avoiding them. Gravina recommends the student to begin his study by learning the original and unadulterated principles of Roman law from the authors of the new school. He should then, he says, turn to the works of Accursius \[\]; and finally take up the works of Bartolus, from which he will learn the actual practice of the law \[7\]. It is clear, therefore, that the

**228 XVITH CENT. AT HOME AND ABROAD**

**Bartolist tradition still survived in the courts because it had determined the rules of practice and the modes of legal thought and reasoning.1 It is not till these last days that the cessation of the practical use of Roman law has allowed Roman law to be studied wholly on lines which these Renaissance jurists would have approved. And, with the necessary survival of the Bartolist tradition, there doubtless still survived some traces of the old ignorance and barbarism.2 But the law was gradually given a form and expression more suited to the new age; and this in the long run could not help influencing the rules of law actually applied in the courts. Moreover, what the new school did for the rules of law it did also for legal and political speculation. If the legal and political speculations of the sixteenth century owe many of their ideas to the school of Bartolus, they owe their literary form and their apt use of classical instances to the literary and critical spirit of the Renaissance.**

Footnote 1: Eamein, op. cit. 845, points out that, though the scientific influence of the new school on the world, and especially on Germany, was immense, its influence on the interpretation of Roman law as applied in the courts was less considerable; the practitioners' restrerent en grande partie fiddeles aux doctrines qu'ila tenaient de l'Ecole battoliste; " in Spain and Portugal the works of Bartolus had almost the same authority as the text, Duck, Bk.

## Development of Roman Law 229

Cambridge\[1\] The two universities, therefore, had acquired the monopoly of teaching and conferring degrees in these two bodies of law, as the Inns of Court had acquired the monopoly of teaching and conferring degrees in the common law\[3\]. Although there were large differences between the degrees conferred and the modes of instruction adopted by these different teaching bodies, there were also broad similarities.

I have already said something of the process by which the inner barriers or students became utter barriers. We have seen that the utter barriers still continued to teach, and that from them were chosen the readers and benchers, who 'were mainly responsible for the maintenance of the educational system of the Inns\[3\]. In fact all the members of the Inns were either learners or teachers till they took the degree of Serjeant at law, and left their Inns of Court to become members of the Serjeants' Inns, and often in due course judges\[4\]. The course pursued by the civilian and the canonist was necessarily different. At Oxford\[6\] the candidate for the first degree in the canon law--the degree of Bachelor of Decrees--must have studied the civil law for five years, and have heard lectures on the Decretals twice, and on the Decretum for two years. The candidate for the higher degree of Doctor in this faculty must have read _extra-ordinarie_ two or three " causes" on some one of certain selected parts of the Decretum; and he must have opposed and responded to the questions of every Regent, and have given one lecture for each Regent. After obtaining the degree he must have acted as Regent--i.e. he must have taken part in teaching--for two years. The candidate for the first degree in the civil law--the degree of Bachelor of Civil Law--must, if a Master of Arts, have studied for four years, and if not, for six years. The candidate for the degree of Doctor of Civil Law must have lectured on the Institutes, the _Digestum Novum_, and the _Infortiatum_\[6\], he must have given an ordinary lecture for each regent doctor, and he must have opposed and responded in the school of each Decretist. It would appear that the course of study pursued at Cambridge was substantially similar\[7\].

## References

- \[1\]Rashdall, Universities ii Pt. II. 338 n, z; ibid 543-553-
- \[2\]Vol. ii 496-498.
- \[3\]Ibid 504, 506-507.
- \[4\]Rashdall, Universities ii Pt. II. 453, 454-
- \[5\]See vol. ii x36 n. 10, x39-147 for the medieval divisions of the Corpus Juris Civilis, and Canonici.
- \[6\]Mullinger, History of the University of Cambridge i 364--the candidate for the Doctor's degree in civil law must, if a regent in arts, have heard lectures on the civil law for eight years, and, if not, for ten years; he must have heard the Digestum Vetus once, the Digestum Novum and Infortiatum twice; he must have lectured on the Infortiatum and the Institutes; he must be the possessor of two Digests, and have in his possession all the text-books of the course; for the doctor's degree in

### 230 Xvith Cent. At Home and Abroad

I have already described the moots, and the readings by means of which the legal education of the common lawyer was carried on ; \[1\] and for the insular common law, which depended primarily upon the ever-developing custom of the king's courts, the unique modes of instruction devised by the Inns of Court were best suited. At Oxford and Cambridge, on the other hand, the civil and canon law were taught on much the same system as they were taught all over Europe. The student had at his disposal the texts of the civil and canon law, and the glosses and commentaries of the ablest lawyers in Europe ; \[2\] and if he wished to get the latest glosses and commentaries at first hand he could go to Italy and learn from the lectures of the most famous lawyers in Europe--from men like Accursius, Bartolus, Baldus, Gerson, and many others, who were to the civilian and canonist what Glanvil, Bracton, Britton, and Littleton were to the common lawyer. \[3\]

But in spite of these fundamental differences, there are certain broad analogies between the degrees obtained by the student of one or other of the Roman systems, and those obtained by students of the common law ; and between the modes in which they were educated. The call to the bar and the degree of Serjeant corresponded roughly to the degrees of bachelor and doctor ; and just as the candidate for the doctor's degree must have taught as well as learned, so the Serjeants were created from the senior members of the Inns, who, as benchers and readers, took part in their educational work. Similarly the disputations in the Schools were not wholly unlike the moots which formed so important a part of the discipline of the Inns.

It is clear that the existence of the legal university of the Inns of Court, and the existence of the common law, materially affected the position of the student of the canon and civil law. His learning had, from the end of thirteenth century, been banished from the courts of common law. \[4\] It was useful in the Chancery, the Council, \[5\] and the court of the Admiralty ; \[6\] and, though much of the larger litigation in ecclesiastical cases went to Rome, there was a wide field for the activity of the canonist in the

## Development of Roman Law 281

numerous ecclesiastical courts with their extensive jurisdiction.1 The civilians and canonists abroad could boast with truth that the practical quality of their knowledge enabled them to take a larger and a more direct share in the government of the state than mere philosophical theorizers.2 They could make the same boast in England; but in England they were forced to admit that their dominion over practical affairs was shared by the students of the common law.

Footnote 1: Vol. i 598-632. Mr. Senior points out, Doctors' Commons and the old Court of Admiralty 33, that as early as Edward III,'s reign we see the king relying on the judges of the ecclesiastical courts for advice on the law of the sea; as he says, this is prophetic of the future partnership of Probate, Divorce, and Admiralty jurisdiction in one Division of the High Court.

On the other hand, the theologians, philosophers, and the men of letters, then as now, regarded the study of the law as a pursuit which was followed mainly because it led to place and preferment;3 and, as the study of the civil law was closely united with that of the canon law, it was made a cause of complaint that the study of both these laws unworthily confused things human and divine, and the calling of the layman with that of the cleric.4 Probably this particular complaint was especially well justified in England. To practise in the ecclesiastical courts one must be a canonist; and if a man was in the king's service it was clearly advantageous to be in orders, because the resources of the church were freely used to reward those who had done good work in the Chancery or elsewhere.5 We have seen that a knowledge of the civil law was

**282 XVITH CENT. AT HOME AND ABROAD**

required for the degrees in the canon law;1 and a comparison of the numbers who took the degree of Bachelor in that faculty with the numbers who took the corresponding degree in the civil law, in the latter part of the fifteenth century,2 show that the students of that age were well aware of the superior practical advantages of a degree in the canon law. As the civilians equally with the canonists were excluded from the courts of common law, there was no scope for the growth of an independent body of civilians; and thus the civil law was studied, not so much for itself, as because it was a useful supplement to the knowledge of men who hoped to win honour and wealth by gaining posts, most of which could only be held by clerics and canonists.

Footnote 1: Above 229.

Footnote 2: Mullinger, op, cit, i 320 n.--for the years 1459-1499 there were 143 bachelors of canon law as against 38 bachelors of civil law; probably the chief scope of the civilian's practice would be in the Admiralty--in I444 we meet a B.C.L. acting as commissary to the Lord High Admiral, Black Book of the Admiralty (R.S.) i 258.

The Reformation in England, as in other Protestant states, led to the active discouragement of the study of the canon law; and, in consequence of that discouragement, it ceased to be taught and degrees ceased to be taken in it.3 But, seeing that in England the existence of the non-Roman common law had, in the largest number of cases, caused the civil law to be studied in combination with, and with a view to a degree in, the canon law, the sudden change in the position of the canon law naturally reacted on the study of the civil law. Henry VIII, foresaw this result of his measures; and he attempted to obviate it by establishing lectures on the civil law at both universities.4 At Cambridge the versatile Sir Thomas Smith 5 did his best to prepare himself to teach his new subject by a course of study at Padua and at the French universities;6 and, on his return, he set forth in two famous inaugural lectures the mode in which he proposed to teach his subject, and the advantages to be derived from its study.7 At Oxford the first lecturer was John Story, the future chancellor of Bishop Bonner --less famous for his juristic studies than for his two imprisonments by the House of Commons, his seizure in Belgium by the emissaries of Elizabeth, his death as a traitor, and his beatification by the Roman Church.8 But neither the professor who rose to be

## Development of Roman Law 283

Secretary of State and gained lasting fame as the writer of a classic treatise on the commonwealth of England, nor the professor who illustrated in his own person a leading principle in the law of allegiance,1 succeeded in attracting many students to their lectures. Both at Oxford and Cambridge contemporary testimony is clear that the study was almost extinct.2 But this was a matter of serious concern to the government. The state might get on well enough without a body of canon law. The condition of the ecclesiastical courts, and of the law which they administered in Edward VI.'s reign, show that the state did not concern itself to prevent their decline.8 But, in this age of competing states and growing foreign trade, it was 'not possible to dispense with the services of men who could deal with the diplomatic questions, and with those points of maritime and commercial law which were constantly creating international difficulties. To argue these questions effectively a knowledge of the civil law was essential; and therefore the government found itself obliged to take action to save a branch of learning, the knowledge of which was essential to the proper equipment of a modern state. "We are sure," wrote the Protector Somerset to Ridley,4 "'you are not ignorant how necessary a study that study of civil law is to all 'treaties with foreign princes and strangers, and how few there be at present to do the King's Majesty service therein. . . Marry, necessity compelleth us also to maintain the science." At the beginning of the following century both James I. 6 and Bacon 6 insisted on its necessity for substantially the same reason.

Footnote 1: He attempted to plead that he had ceased to be an English subject and that he was not therefore amenable to the English law of treason; for the law on this point see Pt. II, c. 6 8 3.

Footnote 2: Aspliffe, Ancient and Present State of the University of Oxford i r88 (r547), says, "'the Books of civil and canon law were set aside to be devoured by worms as savoung too much of popery; " Wood-Gutch, History and Antiquities of the University of Oxford 79, says, "'the civil and canon laws were almost extinct, and few or none there were that took degrees in them, occasioned merely by the decay of the church and the power of bishops; "'for Cambridge see the statement in the commission of r547, cited Cooper, Annals ii 6 n. r; Mullinger, op, cit. ii 132--at Cambridge between r544 and r557 only one person graduated as doctor, and only eight as bachelors of law.

3 Vol. i 593; cf, vol. iii 557.

4 Cited Cooper, Annals of Cambridge ii 35.

5 He pointed out in his speech to Parliament in r609, Works of James, I (Ed. r616) 532, that the civil law was, "'most necessary for matters of treaty with all forreine.nations."

6 In his letter of advice to Villiers in r616 (Spedding, Letters and Life vi 39) he said, "'Although I am a professor of the common law, yet am I so much a lover of truth and of learning and of my native country, that I do heartily persuade that the professors of that law called the Civilians (because the Civil law is their rules) be not discontinuanced nor discouraged; else whensoever we should have ought to do with any foreign prince or state, we shall be at a miserable loss for want of learned men in that profession."

### Xvith Cent. At Home and Abroad

state of the two universities,1Both were specially directed to make adequate provision for the study of the civil law by the foundation of colleges which should be devoted entirely to this subject. At Cambridge the commissioners were directed to dissolve two or more colleges in the University, and on their site or in other fit places, by the king's authority and in his name, to found and erect a college of civil law.2 As a result of the measures which they took Trinity Hall became a College specially but not exclusively devoted to the study of the law.3 At Oxford All Souls was to become the civil law College of the University;4 and here again the result of their efforts was partially but only partially successful. All Souls became, and is still at the present day, the centre of the legal studies of the University; but it, too, is not exclusively devoted to the study of the law.

Footnote 1: The Cambridge commission will be found in Cooper, Annals ii 25; the Oxford commission in A. Wood, History and Antiquities of the University of Oxford, published by J. Gutch ii 96-98.

Footnote 2: Cooper, Annals ii 16.

Footnote 3: It was originally intended to amalgamate Clare Hall with Trinity Hall, but the resistance of the former body was fatal to the scheme, Mullinger, op. cit. ii x34-137.

Footnote 4: The following is an extract from the commission addressed to the commissioners for Oxford University--4 Et quoniam studium juris civilis non solum jam aliquot annoos deserbusise in Academia nostra Oxoniensis, verum etiam prope modum extinction esse nobis indicatum est, pracipium yobis omnibus curam et sollicitudinem imponimus, ut quibus potettivis vis et modis illud excitetts et amplificentis, cui studio ut possitis amplu medier, et fructu laboris et diligentia jivententem ad illud accendere plenissimam ac summanda avotritatem per absolutam et regiam nostram potestatem vobis concessimus, universum numerum in lege civili studientem in collegio Beatee Marie, vocate The New College of Oxford, in collegium Omnium Animarum, et universum numerum in artibus studentium in collegio Omnium Animarum, in Collegium practicum Beate Marie, commutandum, transferendum, et constituendum prout wobis commodissinium forve videbitur. Sic ut in collegio Omnium Animarum tantum sint qui legis civilis studio vacabunt, et in collegio Beate Marie predicit illi tantum sint qui artium et verbum Dei studio post hac semper incumbent," A. Wood, op. cit. ii 98.

5 Above 40.

6 Mullinger, op. cit. ii x37, x38; Holland, Studies in International Law, 17, x8.

7 Stubbs, Lectures on Medieval and Modern History 371, " Bills were introduced to dodge eceles:satistical jurisdiction in the hands of students of the universities who were admitted by the archbishop. By these, however, all special privileges of the advocates were endangered and the bills dropped after passing most stages: four bills on this point were before the Parliament of 1550."

## 1 Development of Roman Law 285

influences had been brought to bear. On the one hand, foreign civilians were welcomed in England, Such men as Vives, Pithou the pupil of Cujas, Thomas Hannibal, Jean Hotman,1 incorporated as Doctors in the Civil Law at Oxford ; and at the same university Gentili, one of the founders of modern international law, became regius professor of civil law.2 Jean Hotman with Gentili advised Elizabeth's government in the case of Mendoza, the Spanish ambassador ;3 and it is said on good authority that his more famous father Francis was offered a post in England.4 On the other hand, Englishmen went abroad to study and take degrees in civil law. Tunstall, Sir Thomas Smith, and Valentine Dale are a few out of many names.5 They qualified themselves better than they could have done at home to teach or practise law, or to serve the government in administrative or diplomatic posts.

Footnote 1: **Nys, Le droit Romain, le droit des gens, et le college des docteurs en droit civil 55, 56.**

Footnote 2: **Vol. v 52-55.**

Footnote 3: **Nys, op. cit. 57, 58.**

Footnote 4: **Maitland, English Law and the Renaissance 56-57 n. 47.**

Footnote 5: **See ibid 62-63 n. 33.**

Footnote 6: **The history of this body has been written by Nys in a work entitled, " Le droit Romain, le droit des gens, et le college des docteurs en droit civil ; " cp. L.Q.R. xxxvi 735-737; Senior, Doctors' Commons and the Old Court of Admiralty, chap. iv.**

Footnote 7: **Nys, op. cit. 52, 174 seqq.**

Footnote 8: **Ibid App. 139-155, in which an account is given of Coote's work on the lives of eminent English civilians, which was published in 180.**

Footnote 9: **Ibid; cf. Parlt. Papers (1859) Sess, r xxii 22-24.**

But another, and perhaps a more important, cause for the revival of the study of the civil law is to be found in the rise of an unofficial body, analogous in many respects to the Inns of Court and the Serjeants' Inns, which did for the professors and the profession of the civil lawyers something of the work which these Inns did for the professors and the profession of the common lawyers.

The founder of this unofficial body, which became the Doctors' Commons of later days,6 was Richard Bodewell, dean of the Arches.7 In 1511 he formed the " Association of doctors of law and of the advocates of the church of Christ at Canterbury ; " and from the following year till its dissolution in 1858 we possess the list of its members.8 1t occupied premises in Paternoster Row close to St. Paul's Cathedral. In 1565 the initiative of Dr. Henry Hervey, Master of Trinity Hall and Dean of the Arches, gave it a permanent habitation. The Masters and Fellows of Trinity Hall took from the Dean and Chapter of St. Paul's a lease for ninety-nine years of the premises, afterwards known as Doctors' Commons, on trust for the Association of Doctors of Law.9 The lease was from time to time renewed till 1782, when Doctors' Commons, having in 1767 obtained a charter of incorporation,

### XVITH CENT. AT HOME AND ABROAD

obtained Parliamentary powers to purchase the premises of which they had been lessees for upwards of two centuries.1

Footnote 1: In Parit. Papers (z85g) Sess. x xxii 22-24 a full account is given of the devolution of the property, and of the ligation connected therewith.

We do not know what were in early days the conditions of admission to Doctors' Commons. They possibly varied from time to time according to the regulations for the admission of advocates made by the archbishop of Canterbury. But it is probable that the conditions laid down in the charter of 1768 represented an old-established practice. They certainly represented in substance-the conditions prescribed by the bills of 1550, which failed to obtain legislative sanction.2 These conditions were as follows:- To become a fellow a candidate must have been admitted to be an advocate of the court of the Arches, and he must have been elected by a majority of the fellows. To become an advocate a candidate must have obtained the degree of Doctor of civil law at Oxford or Cambridge, after performing the exercises prescribed by those universities; he must have obtained a rescript or fiat from the archbishop of Canterbury; and he must then have been admitted during term time by the Dean of the Arches, and have attended court for a year.3

Footnote 2: Above 234 and n. 7.

Footnote 3: Nys, op. cit. 17, 178; for the charter of 1767 see Parit. Papers (x85g) Sess, r xxii 2r1; cf. Report of the JEcclesiastical Courts Commission (183a) r3, r4. The archbishop also regulated the admission of proctors; for some account of the rules on this subject see Parit. Papers (r826-1827) xx 571-573.

Thus the archbishop of Canterbury regulated the admission to the body in the members of which were vested the monopoly of practice in the courts which administered the ecclesiastical and the civil law.4 His control over the admission to practise in the courts, other than the ecclesiastical courts, was an extension of the sphere of the archbishop's influence which was an unexpected result of the Reformation settlement. In the Middle Ages the ecclesiastical authorities had naturally regulated the conditions under which persons were admitted to practise in the ecclesiastical courts. In the sixteenth century, though the study of the canon law was discouraged, though the posts formerly open only to the canonists were now thrown open to civilians, the ecclesiastical control over the practitioners in the ecclesiastical courts survived; and the ecclesiastical jurisdiction, though somewhat curtailed, was still one of the most profitable branches of the civilians' practice. The civilians naturally wished to become advocates in these courts. But, as these advocates were civilians who practised also in the other courts in which the civil law was administered, the archbishop got control over those who practised in these courts, as well as over those who practised in the ecclesiastical courts.

## 1 Development of Roman Law 297

Doctors' Commons presents points of similarity both with the Inns of Court and with the Serjeants' Inns. Just as the Inns of Court comprised all those licensed to practise as barristers before the courts of common law and equity, so Doctors' Commons comprised all those licensed to practise as advocates before the courts, the principles and practice of which were allied to the civil law. Like the Inns of Court, it considered it to be its duty to see to the interests of the profession--in the seventeenth century it successfully resisted an attempt to appoint as episcopal chancellors persons who were not learned in the law.1

On the other hand, it resembled the Serjeants' Inns in that it was not a teaching body.2

Footnote 2: In 1673 it demanded to be treated for purposes of assessment to taxes like the Serjeants' Inns, S.P. Dom. x673-x675, 8, 17.

Instruction in the civil law was left either to the two Universities, or, from the end of the sixteenth century, to the new foundation of Gresham College;3 and a degree at one of the two universities was a condition precedent to admission. Unlike either the Inns of Court or Serjeants' Inns, it ultimately obtained a charter of incorporation. It was therefore a unique body ; but it was an effective body. I cannot doubt but that the organization which the profession of the civil lawyers thus aquired materially helped forward the revival of the study of the civil law which took place at the end of this and the beginning of the following century. The fact that this organized body of civil lawyers existed encouraged the study of the civil law at the universities. The universities taught the principles of the law ; and the condition of attending the courts, imposed by the Association before a Doctor could practise as advocate, ensured some training in the practical work of the courts. In this way the objects aimed at by the government in the middle of this century were, by the end of the century, accomplished. An organized body of civilians had arisen who, from that time forward, filled an important position in the state.4

Footnote 3: Founded under the provisions of Sir Thomas Gresham's will; Gresham died in 1579, and the will took effect in 1598, after his widow's death, Stow; Survey (Ed. Kingsford) i 76.

Of the place which the civil law ultimately filled in the English legal system I cannot at this point speak fully. But by the end of the century the place which it came to fill was foreshadowed in

### XVITH CENT. AT HOME AND ABROAD

the various spheres of the civilians' practice. The spheres of their practice were as follows : (1) The ecclesiastical courts, where they had had a monopoly ever since the canon law had ceased to be studied.1$(2)$ The region of diplomacy, where the principles of the new international law were being rapidly evolved.2$(3)$ The court of Admiralty, which was, at this period, the court where the Law Merchant was being principally administered and adapted to the new commercial and maritime needs of the English state.3$(4)$ The numerous arbitrations ordered by the Council in which points of foreign maritime or commercial law were involved,4$(5)$ Cases occasionally brought before the Star Chamber, the Chancery, or the court of Requests, which involved the discussion of principles outside the rules of the common law.5$(6)$ Many miscellaneous questions which arose in the conduct of the business of the state.6$(7)$ The courts of the Constable and Marshal, and the two Universities.7

Footnote 1: Above $\\tt z28$, $\\tt z32$; the control which the archbishop of Canterbury had over the admission of advocates, above $\\tt z36$, shows that their ecclesiastical practice was regarded as the most important; in this connection they sometimes acted with the common lawyers, Dasert x $\\tt z4$-$\\tt z4$ ($\\tt z577$-$\\tt z578$)--a conference of civil and common lawyers as to the use of and right to a chapel.

Footnote 2: \[bid 38o (1578)--there was a complaint of the brcach of a treaty, and a D.C.L. and the judge of the Admiralty were to examine the treaty and report to the Council, " what they shall thinke may by the Civil lawe be answered;" 'ibid rog ($\\tt z577$)--reprisals; ibid xi $\\tt 303$,$\\tt 405$ ($\\tt z579$-$\\tt z580$)--a complaint against Frenchmen who have captured English goods contrary to treaties; ibid xiii $\\tt 359$ ($\\tt z58$-$\\tt z582$)--a complaint of the French king as to the award in an insurance case; ibid xiv $\\tt 62$-$\\tt z63$ ($\\tt z586$-$\\tt z587$)--an arrest of English merchants' goods at Rouen.

Footnote 3: Ibid iii $\\tt z64$ ($\\tt z550$)--the Admiralty was referred to as the highest court in which the civil law was practised; all the judges of court in this century were civilians and D.C.L.'s, Select Pleas of the Admiralty (S.S.) i $\\tt{\\it{\\it{\\it{\\it{\\it{\\it{\\it{\\it{\\it{\\it{\\it{\\it{\\it{\\it{\\it{\\it{\\it{ \\it{ \\it{ \\it{ \\it{ \\it{ \\

## 2 Development of Roman Law 239

It would be true therefore to say that there was something analogous to a Reception of Roman law in England. Upon certain subjects the authority of the civil law was recognized. A definite body of civilians had arisen ; and the division of these civilians into two schools, according as they favoured the schools of Bartolus or of the Renaissance lawyers, is found in England as elsewhere. Sir Thomas Smith, the first Regius Professor of civil law at Cambridge, was a humanist, and favoured the school of Alciat and Cujas.1 Albericus Gentili, Regius Professor of civil law at Oxford and one of the founders of international law, was their bitter opponent.2 But owing to the accidents of the earlier history of the study of the canon and civil law in this country, and to the course which the Reformation here pursued, the organization of the profession of the civil lawyers, and the spheres of their influence were not firmly settled till the last quarter of the sixteenth century. On the other hand, the common lawyers were a powerful body which possessed an educational and a professional organization which enabled them to obtain the largest share of the legal business of the state.3 Thus, though England experienced a Reception in certain departments of law, the principles so received were not developed wholly by a body of lawyers learned in the civil law; 4 and we shall see that, when the civilians had completed their educational and professional organization, a large Reception of the principles of the civil law had become impossible.5 This series of historical accidents played no small part in determining the extent of the permanent influence which the Reception of this century exercised upon the development of English law.

Footnote 1: Maitland, English Law and the Renaissance 48,

Footnote 2: Holland, Studies in International Law 16, x7, "Cujas had reproached the older school with being a set of sordid barbarians. Gentili retorts by refusing to Alciatus and Cujas the title of jurists, which they were too ambitious of universal culture to qualify themselves for deserving. While he does not deny that their books are worth dipping into, his advice to the student is to 'visit these moderns, but to dwell with the anciatens.''

Footnote 3: Vol. ii 484-512; below 262-272.

The extent of that influence, and the manner in which it affected the common law must now be considered. But before I can deal adequately with these problems it is necessary to say something of the causes of the Reception, its extent, and the manner in which it was effected in the different countries in Western Europe.

**240 XVITH CENT. AT HOME AND ABROAD**

_The Causes of the Continental Reception, its Extent, and the Manner in which it was effected Causes._

The universality of the theological and philosophical theories of the Middle Ages produced a universality in legal and political theory which accustomed Europe to the idea of universal and uniform codes of law. The civil law had, in consequence of the legal Renaissance of the twelfth and thirteenth centuries, influenced the law of many countries in Europe. The canon law was a still more universal system, for it regulated much of the life of the clergy, and some parts of the life of the lairy throughout Western Christendom;1 and its close connection with the civil law had been instrumental in still further extending the influence of its ideas.2 In fact the glossators and Bartolists had made many of its rules--notably those relating to procedure 3--a part of the system of the civil law. Then again the various commercial and maritime codes, which made up the Law Merchant, partook of the same character of universality.4 For this reason the adoption by the various nations of Europe of rules of law drawn from these codes would not seem to be the borrowing of a foreign system of law. Rather it would seem to be a further definition, a further application of a code of rules which had already an undefined claim to obedience, and a vague application. It was not regarded as we at the present day should regard a borrowing from French or German law. It was regarded rather as a case in which it was expedient that a principle, which had long been in the air, should be taken up by the legislature or the lawyers, and defined and enforced as law.5 It is easy to see that these medieval ideas assisted the Reception of the sixteenth century--this century of transition from the medieval to the modern.

Footnote 1: Cp. Woolf, op. cit. 8o, 8i; as Schulte says (Histoire du droit d'Allemagne, 147, 148), "Quant aux clercs, li svivient depuis la fin du xie saucle sous un regime presque totalement romain au point de vue du droit penal, du droit civil, et du droit beneficiaire; " for the wide jurisdiction of the ecclesiastical courts in England see vol. i 614-632.

2 There was a medieval proverb (cited Eamein, op. cit. 864, n 3), " Legista sine canonibus parum valet, canonista sine legibus nihil."

3 Brissaud, op. cit. 147-149; Esmein, op. cit. 863. Duck, Bk. i c. 7 g r9, notes # that without a knowledge of the canon law, " Non habemus itastam in causis forensibos procedendi forman que in libro secundo Decretalium conntentur." Moreover there are, he says, several decisions on nice points as to the " lius natura et gentium," which are not to be found in the civil law.

4 Vol. i 526-530; vol. ii 307, 309-310; below z42; vol. v 72-85.

5 See Figgis, from Gerson to Grouts, z14; it may be noted that Althuisius, Politic Methodice Digesta, chap. xiv, recommends the magistrate to adopt rules of foreign law which might meet the needs of his own state, " Quascunque ab alis etiam Ethnici s doliticam administrationem inventa et constituua sunt, magistrata etiam ad usum Reipublica sue transferre et accommodate potest."

## 11 The Continuation. Reception 241

But these theories and these codes did not contain the whole of medieval thought and medieval law. Side by side with them we see archaic thoughts and rules of law, recalling sometimes old cultivating communities, old tribal communities, or old political arrangements ; and sometimes the feudal organization which had superimposed itself upon this older order,1--just as we see the old courts and old rules of procedure existing side by side with the newer courts and newer procedure.2 In the cities and boroughs,3 in the larger states which were springing up in Europe, even in Italy itself,4 the centre of the new legal learning, we see existing side by side these two very different orders of legal ideas. In these places the more modern tended to supersede the more ancient. But in the country at large the laws which regulated the relations between lord and vassal, or between lord and peasant, generally represented the older order. The history of the common law, and the history of the French law in the _pays des coutumes_, show that in these archaic rules of law there were many possibilities of development ; but they show also that these possibilities could only be realized when the older rules had been remodelled and restated by men who were learned in the more civilized codes derived mediately or immediately from Rome. Our own Anglo-Saxon history and the history of Germany in the Middle Ages would seem to prove that the old customary law, tribal or feudal, could not develop its own principles unassisted by those legal and political ideas of Imperial Rome, which Italy was publishing to Western Europe, and adapting to its needs. It is, therefore, to these universal legal and political theories, and to the universal systems of law dependent on them--all inspired more or less directly by the legal Renaissance of the twelfth and thirteenth centuries--that we must look for the elements of progress in the legal and political thought of mediaval Europe, . The idea that Roman law was of universal application, having gained admission through the theory of the Holy Roman Empire, restored to Europe the legal and political ideas of a past civilization ; and the necessity of continuously reconciling these ideas with the gradually changing facts of mediaval life produced an intellectual

### Xvith Cent. At Home and Abroad

ferment from which emerged the legal and political factors of our modern world. And from this point of view it may be that this legal Renaissance of the twelfth and thirteenth centuries was of even greater importance in European history than the Renaissance and Reformation of the sixteenth century. It was to Europe and European law what on a smaller stage the Norman Conquest was to England and English law 1--a necessary condition for the beginnings of any advance in legal or political science.

In the sixteenth century the new conditions, intellectual, religious, political, and commercial, demanded a readjustment of legal and political theory and a restatement of the law. But this was exactly the work upon which the school of the glossators, and, more especially, the school of the Bartolists, had been long engaged. Bartolus tells us that in his day the lawyers were employed in many different spheres, both legal and political.2 The result of their work was the creation, on the basis of the civil and canon law, of a set of legal and political principles adapted to the Italy of the fourteenth and fifteenth centuries ; and the political and commercial conditions prevailing in Italy during these centuries were sufficiently like the political and commercial conditions prevailing in Europe in the sixteenth century to make these principles applicable to the new order.3 These principles, therefore, were diffused throughout Europe, and became an integral part of the intellectual equipment of the age. The disappearance of the theory of a universal Christian society comprising both church and state could not affect their existence--at most it affected the form in which they were expressed. They might be deprived of their medieval dress, they might be amended or developed by the historical and critical learning of the Renaissance, but they were received in substance, because in and through them the political and commercial changes of the sixteenth century could find their legal expression.

Their Reception was further assisted by three sets of circumstances. (1) It was assisted by the fact that the law of the Bartolist school was not the classical Roman law, but a compound of civil and canon law adapted to the needs of the day. The Roman

## 1 The Continental Reception 248

law which was received had gone half-way to meet the facts to which its rules were to be applied \[1\]. "It was a foreign law," says Gierke, "but it was a living law. ... It was the living Italian law which had passed beyond the Alps. It contained Germanic and mediaval ideas which had filtered through the Lombard law, the statutes of the towns, and the canon law. The texts were badly interpreted, not simply because the interpreters made mistakes, but because these mistakes were necessitated by practical needs \[2\]." This, as Nys points out, is the meaning and the justification of the rule " Quicquid non agnoscit glossa, non agnoscit curia," "--the passages of the Corpus Juris which were not glossed were not living law. That this composite character of the law thus received was an element of the greatest importance in facilitating the Reception we can see from the fact that in so far as the efforts of the Renaissance lawyers were directed merely to criticism of the text, and to a restoration of the classical law, their practical influence upon legal development was inconsiderable ; and that a greater practical influence was enjoyed by those who used the new learning to correct and to restate the Roman law in the form in which it had been adapted to the needs of the modern state \[4\]. (2) We have seen that Bartolus and other lawyers of his school had been elaborating the idea that a king or a civitas which de facto bears rule is, to that extent an empire in itself \[5\]. It is no mere self-sufficing $\\pi\\delta\\lambda\\kappa$, because in the eyes of the lawyers it is also " Imperial." \[6\] This idea tended, as Mr. Woolf has pointed out, to make men think of Roman law as being, not the law of a German emperor, but a _jus commune_ for Western Europe, and "therefore to make them more ready to receive its principles. (3) The Reception of a civil law which had been thus restated by the lawyers of the sixteenth century, was assisted by the decline \[7\].

Mr. Figgis says (R.H.S. Tr. (N.S.) xix 167, 168), " Bartolus helped to make it possible to 'receive' the civil law, and, while acknowledging allegiance to the ancient world, to adopt more or less unconsciously much that was of Christian or of medieval origin ; he influenced the political Renaissance of Europe, and he helped to make it a true development, even when it was disguised under the form of a revolution ; " cp. Maitland, Political Theories of the Middle Age xv.

2 Gierke, Deutsches Privatrecht (x895) i i3, cited Nys, Le droit romain, le droit civil et le college des docteurs en droit civil so.

3 The rule in this shape was not formulated till the sixteenth century, Brissaud, op. cit. z10 n. i; but, as he says, " On peut se demander cependant, si, en fait, on ne procedati pas, des le quatorizene siecle, comme si elle eit existe ;" for, as Sir Paul Vinogradoff points out (Roman Law in Medieval Europe 128), the rule was necessary, " in order to avoid details too intimately connected with ancient life, and entirely unsuited for importation ;" cp. Flach, Cujas, Les Glossateurs et les Bartolistes z9 n. 3.

4 Above z26-228.

5 Above r9 i; cp. Woolf, op. cit. r12 seqq.

6 " The modern state is not only the self-sufficing $\\pi\\delta\\lambda\\kappa$, it is also ' Imperial,' and it was the lawyers, not the political philosophers, who transformed the universal empire into a system of ' Imperial states,' " Woolf, op-cit. 383.

### Xvith Cent. At Home and Abroad

in the importance of the canon law.Partly owing to the Reformation, partly owing to the rise of the self-contained independent state, the importance of the civil law tended to increase at the expense of the rival system.1 It would not indeed be true to say that the canon law at once lost all its authority even in Protestant states.2 It was far from being wholly consumed in the fire to which Luther had consigned its books. Many of its doctrines had been worked by the Bartolists into the fabric of the civil law which the sixteenth century received, It was, therefore, still appealed to even in Protestant states;3 and, in the seventeenth century, Arthur Duck tells us that no one who aspired to be a really learned civilian could afford to neglect the canon law.4 But when all allowances are made, it is clear that the new political and religious conditions will gradually degrade the canon law from the position of a rival of the civil law to the position of a supplement.

Footnote 1: Hotman, Anti-Tribonian 89, notes the decay of the canon law, " Dont est venu le proverbe Magnus Canonista magnus asinsista. Et aujourd'huy il n'y a Canoniste, sinon quil soit du tout stupide et abey ... qui n'ait honte de sa profession ; " of course we must make some allowance for Hugennot prejudices ; Heineccius, Historia juris civilis Romani ac Germani (Ed. 1740), ro7, notes that the Reformation helped the Reception of the civil law because it depressed the study of the canon law ; for a similar phenomenon in England see vol. i 592; above z28, z32.

Footnote 2: Duck, Bk. i c. 7 SS 16,

Footnote 3: Duck, Bk. i c. 7 SS 16,

Footnote 4: Ibid SS 19, " Iurisconsulti sine coninuncta utriusque juris scientita imperiti habebuntur."

Footnote 5: " Magno consensu," said Melanchthon, "'ius Romanum tanquam oraculum nationes omnes de equitate consult, sentiuntque leges et placita omnia ad hanc regulam exigi debre," Censura de Legibus, Speigelii Lexicon, col. 297; cp. Vinogradoff, Roman Law in Medieval Europe x30, x31, for a good summary of the political, economic, and legal reasons for the Rcception.

Footnote 6: Cunningham, Camb. Mod. Hist. i 493-497; this need was felt especially strongly in Holland, J. W. Wessels, History of the Roman Dutch Law 127, 212; Schulte, op. cit. 290, 297.

The continental Reception 245 emphasized the need to organize all industry, agricultural or commercial, with a view to national power,1--found there principles which aided them to assert the supremacy of the state, to organize its machinery, and to regulate the working of that machinery. Lawyers seeking to give legal expression to these political, constitutional, and economic changes, found that they were obliged to talk and reason in terms derived from the only system of law which seemed to be as capable of meeting the needs of the modern state as of the mediaval empire.

No doubt the Reception was disliked by many different classes for many different reasons ; by the feudal, the disorderly, the retrogressive elements in society, because they desired the restoration of the older law which made lawless practices easy--just as the rebels in the Pilgrimage of Grace demanded the common law unfettered by Chancery injunctions ; and by other classes, and especially the peasant class, for the more valid reason that this wholesale reception of foreign principles worked some injustice to their various interests.2 No doubt in some countries, notably Germany, it was fatal to a native and a continuous legal development ;3 and, in these later days, this has damaged its reputation in the eyes of patriotic historians who wish to construct an uninterrupted pedigree for their institutions and their law.4 But, in the sixteenth century, it was favoured by the rising middle class, who desired protection against a turbulent mobility, a uniform law, and a more effective administration of justice.5 When these benefits Footnote 1: See Schroder, op. cit. 874; for the modern controversies between the Roman and the German Schools in Germany see Maitland, Political Theories of the Middle Age xvi-xviii; Brissaud, op, cit, 167, 162.

Footnote 2: See the discussion of the _Pays du droit ceri_'--where the cited), assigns as a leading cause of the Reception the faults in the organization and procedure of the older courts; cp. Schroder, op. cit. 87z; we may observe that : was just these defects which were fatal to the old local courts in England in the thirteenth and fourteenth centuries, vol. i 74-75, 133, 178-179.

Footnote 3: See the discussion of the _Pays du droit ceri_'--where the cited), assigns as a leading cause of the Reception the faults in the organization and procedure of the older courts; cp. Schroder, op. cit. 87z; we may observe that : was just these defects which were fatal to the old local courts in England in the thirteenth and fourteenth centuries, vol. i 74-75, 133, 178-179.

#### 246 Xvith Cent. at Home and Abroad

had been secured many thought it possible to kick down the ladder by which they had climbed up; and, by a careful reconstruction of past history, to restore in the name of nationalism some of those Teutonic and Germanic rules of customary law which, unassisted by the quickening influence of Roman jurisprudence, had proved themselves unequal to guiding the legal development of the modern state.1 We must note, however, that the modern history of Germany shows that this kicking down of ladders may be a perilous process; for in Germany the elimination of the influence of Roman law meant the elimination of those moral ideas upon which Western civilization is based, and the restoration of Teutonic and Germanic law meant the restoration of much of the primitive savagery of the tribes who were governed by that law.

Footnote 1: See Schroder, op. cit. 874; for the modern controversies between the Roman and the German Schools in Germany see Maitland, Political Theories of the Middle Age xvi-xviii; Brissaud, op, cit, 167, 162.

But however much we may minimize, however much we may deplore the Reception, it is clear that the political theories and institutions, the organization of industry and commerce, and the rules of law, public and private, prevailing in Western Europe would not have been what they are to-day, if the leading European states had not at different times, and to a varying extent, received the Roman law. To this question of the extent of the Reception we must now turn.

_Extent._

The extent to which the various countries of Western Europe received the Roman law was various, and it was determined in a great degree by their past history. From this point of view they may be divided into three main classes.

t. "The Latin races," says M. Brissaud," "have received everything from Rome--religion, language, law. In Italy the Greek conquest introduced Justinian's books. In Portugal the codes of Alphonso V. (1438-1481), of Emmanuel (1495-1521), of Philip II. (1591-1621), are half Roman. It is the same with Spain of the Fuero Juzgo(1229), and the Siete Partidas (1348).3 The numerous local fueros--like the statutes of the Italian towns-- do not prevent the basis of the law from being Roman." With these countries we must class the south of France--the _pays du droit ceri_'--where the

## 2 The Continental Reception 247

Roman law was the basis of the legal system, in so far as it was not varied by the special customs of particular districts, or by local statutes.1 In these provinces, Duck tells us, wills were executed, contracts were made, and cases were decided according to the civil law.2

Footnote 1: Thus Brissaud says (ibid r53) that the Roman law "" tire son auctorite non pas de la promulgation oubliee de l'epoque romaine, ou de l'epoque barbare, mais de son caractere d'usage local . il varie de province a province et de siecle a siecle. La jurisprudence des quatre grands Parlements du Midi, Toulouse, Aix, Grenoble, Bordeaux, est loin d'etre uniforme."

3Bk. ii c, 5 s 18.

- " Its barons still belonged to the twelfth (century) despite a thin veneer of French manners. Its institutions were rudimentary; its Parliaments were feudal assemblies," Maitland, Camb. Mod. Hist. ii 55x.

4Roman Law in Medieval Europe ro8, rog.

5Schulte, op. cit. 165-170. In some places bodies of native customary law sprang up, the most famous of which is the Sachsenspiegel; it hardly shows a trace of Roman law, and its compilation so strengthened the customary law of Saxony that it was able to offer a strong resistance to the Reception. This fact, as Sir Paul Vinogradoff points out (Roman Law in Medieval Europe r3), " proves that the wholesale reception of Roman rules is not accounted for by any inherent incompetence in German law; and cp. Schroder, op. cit. 812, 813. We should note, however, that such a compilation did not stop the Reception so effectually as bodies of law, the development of which had, like French law, been assisted by ideas drawn from Roman law. Another similar body of customary law is the Schwabenspiegel, Schulte, op. cit. 170; it is slightly more tinged by Roman ideas. In both these codes the notes and glosses of the fifteenth century show traces of the influence of the civil and canon law, Schulte, op. cit. 173, 452--the period of the Reception is approaching.

### Xvith Cent. At Home and Abroad

new and better system of law was necessitated by the new political conditions, these countries were obliged to accept the Roman law wholesale in the condition in which they found it. The more backward the legal system, the more wholesale the Reception, the greater the break with the past.1

One or two instances from the legal history of these countries will illustrate the character of the Reception which they experienced. Sir John Skene, writing of Scotch law towards the end of the sixteenth century, said: "'Those who are in daily practice, in the courts consume their days and nights in learning the civil law of the Romans, and give their whole labours to the practising of it; and, neglecting the laws of their fathers, hold in no esteem the law of Scotland, which ought to be their first care."2 In Germany the emperor regarded himself as the successor of the Roman emperors; but this had very little influence on the later Reception.3 It was, as we shall see, due rather to the needs of the modern state; and it was accomplished by lawyers professionally trained in the civil law.4 These lawyers gradually substituted the Roman law, as developed by the Bartolists of the Italian law schools, for the old Germanic law.5 If it was desired to rely upon the old law, a custom allowing this must be proved; for it was always presumed that the Roman law was applicable until the contrary was proved.6 Moreover, all statutes were interpreted in accordance with Roman principles; and a strict construction was put upon those which seemed to run counter to them.7 Thus the principles of the older Germanic law were almost rooted out of Germany; and their restoration by the modern Germanist school has been a work of elaborate historical reconstruction.8 The course of events in Holland and the Netherlands in the fifteenth century was very similar. Here, too, civilians got the control of the judi

**THE CONTINENTAL RECEPTION 249**

cial system, and made their civil law the common law of the country. So great was the authority of the civil law in Philip II.'s reign that it was thought necessary to repeal solemnly those parts of it which were obviously obsolete.1 As Duck points out,2 the Reception in Holland had effects beyond the borders of Europe. The Dutch carried their law with them to their colonies in Asia, Africa, and America, even as the English in later days have carried their common law round the world.

Footnote 1: **The author is grateful to the referees for the support of the _H.S._**

Footnote 2: **The author is grateful to the referees for the support of the _H.S._**

Footnote 3: **The author is grateful to the referees for the support of the _H.S._**

We can find an analogy in our own legal history to the sweeping effects of the Reception in these countries. What took place there in the latter part of the fifteenth and the sixteen centuries is not unlike what took place in England in the thirteenth and fourteenth centuries. During those centuries the courts of common law gradually reduced to insignificance the local courts and the local customs in town and country. But the reception of the sixteenth century was more catastrophic, and the law introduced was more alien, than a common law which was principally based upon the older customary law.

\*\*3. Between the two groups of countries with which I have just dealt there is an intermediate group. France, in the _days des continues_, and England, retained their old customary law. But it was not pure customary law. In both cases the customs had been reshaped and restated by men who had come under the influence of the school of Bologna.3 This reshaping and restatement saved them from destruction. They were made at once more precise and more complete, and therefore more capable of continuing to guide the life of a changing state. In the thirteenth century the influence of Roman law upon English law and upon the analogous French customary law was not dissimilar.4 Bracton and Beaumanoir could have read and appreciated one another's books.5 But after the thirteenth century the two countries went their several ways. While the French customary law continued to be administered by lawyers of the type of Bracton, the English common law was shaped by men whose legal training was of a very different kind.6 Thus

### XVITH CENT. AT HOME AND ABROAD

all through the fourteenth and fifteenth centuries the French customary law experienced a gradual infiltration of Roman principles and Roman ideas--" an intelligent Reception." \[1\] This infiltration tended to become more marked with the advent of the brilliant Renaissance school of French lawyers,\[2\] Roman law, as Pasquier lamented,\[3\] tended to be regarded as a _jus commune_ even in the _pays des continues_; and the codification of the customs, which took place in the sixteenth and seventeenth centuries,\[4\] did not entirely stop this tendency, because the codified law was still administered by lawyers who were trained civilians.\[6\] Thus, although these countries of the customary law retained many more traits of Germanic custom than the states of Germany which had received the Roman law wholesale,\[6\] they were nevertheless strongly tinged by Roman ideas and principles. They therefore seem Roman to an English lawyer ; and it is for this reason that English lawyers from the thirteenth century onwards have been inclined to exaggerate the prevalence of Roman law on the continent.\[7\] Our law is so un-Roman, our minds are so unaccustomed to the concepts of Roman law, that we can with difficulty distinguish varying shades and gradations in the extent of the Reception which the different countries of Western Europe experienced. But we shall see that it is important to remember that there were these shades and gradations when we come to consider the question why there was no Reception in England in this period.

### The manner in which the Reception was effected.

The manner in which the Reception was effected at different times in the different countries of Europe was very uniform. It was effected by a body of lawyers who had been trained in the civil law at the Universities. We have seen that Universities which taught law were established in France ;\[8\] and, during the fourteenth and fifteenth centuries, such Universities were founded at Vienna, Prague, Heidelberg, Wittenberg, and other places.\[9\] A university

## How the Reception Was Effected 251

degree came to be considered a necessary qualification for the practice of the law ;1 and students who .had learned their law, either from the famous Italian law schools, or at their native Universities, gradually invaded the courts. In Germany the decisive event was the establishment of the Imperial Chamber (Reichs-kammergericht) in 1495. The men by whom it was staffed, and the law which it administered, were Roman ; and with every change in its constitution Roman influences were strengthened.2 It helped to forward the Reception not by precept only, but also by example. Its forms and procedure were copied by the prices, by the cities, and at length even in the inferior courts.3 What the emperor did for the imperial government, the princes and the cities did for their dominions. In Scotland a new court--the court of Session--was established in 1532. It was provided that half the judges should be trained civilians; and from the sixteenth to the eighteenth centuries it was customary for students to go abroad to study at foreign universities.4 What happened in Germany and in Scotland happened also in Spain,5 in France,6 and in Holland,7 Trained civilians invaded the courts, and gradually fused with, or substituted for, the old customary rules, the principles of the system in which they had been trained. " Thus it happens," said Pasquier,8 " that the advocates, having received their training in the law schools, when they enter upon the practice of their profession, conduct their cases according to the laws of the Emperors and juris-consults. . it

Footnote 1: Duck, Bk, ii c. 2 SS r9, "In ipsa camera imperiali nemo in assessorem aut advocatum recipient, nisi qui in aliqua Academia ius civile professus fuerit, aut in eiusdem studio quinone annos posuerit."

Footnote 2: Heinecius, op. cit. 96, 97, speaking of the law of 1507, says, "Nullus est titulus, nullus paragraphus, in quo non ius civile et canonicum, eorumque glossae, itemque Cynus, Panormitanus, Bartolus, Baltus, Speculator, Rodifedus, simlesque heroes utranque paginam faciani; " cp. Schroder, op. cit. 87r ; Vinogradoff, Roman Law in Medieval Europe 128; Evolve, op. cit. 80r

### Xvith Cent. At Home and Abroad

follows that familiarity of this kind with the ancient law of Rome makes it easy to effect a fusion between it and our own law.

Our judges, in course of time, have transformed it into French law, not, as I have said, because we are subjects of the empire, but because these rules of the imperial law are good, just, and reasonable." These words of Pasquier are true of many countries in Europe besides France.

These trained civilians invaded not only the courts, but also the councils of kings and princes.1 They influenced the legislature and the executive as well as the judicature. They could do this the more easily because the legislative powers of the older medieval assemblies had for the most part been superseded by the activity of a council of professional advisers. In Germany, for instance, both the emperor and many of the princely houses brought the law of their states into line with the new jurisprudence by direct legislative action.2 "Within some of these states or 'territories' there was in the sixteenth century a good deal of comprehensive legislation, amounting in some cases to the publication of what we might call codes. A _Landrecht_ (to be contrasted with _Reichsrecht_) was issued by the prince. His legislative action was not always hampered by any assembly of Estates ; he desired uniformity within his territory ; and the jurists who fashioned his law book were free to romanize as much as they pleased."3 Thus in all departments of the state the influence of the trained civilian prevailed. This in practice made for absolutism ; for it meant that instead of the old medieval customary codes a system was received which took as its axiom the "quod principi placuit legis habet vigorem " of the Institutes, and discarded the limitation with which that axiom is there accompanied. When this result had been achieved there was nothing to stop the victorious advance of Roman law.

Footnote 1: Schroder, op, cit. 807, 808.

Footnote 2: See Heineccius, op. cit. 99, for the Constitutio criminalis Carolina of r532; and ibid roj-roj, for the same process of legislation in some of the other German states ; Schulte, op. cit. 287; Maitland, English Law and the Renaissance 75, 76, and authorities there cited.

Footnote 3: Ibid 76; cp. Schulte, op. cit. 375, 376,

Footnote 4: Vol. ii 597-597 ; vol, iii 623-626,

_The Extent to which the Development of English Law was influenced by the Reception_

I have said something in preceding volumes of the serious limitations upon the sphere of the mediaeval common law, of its rigid technical rules, and of its cumbersome procedure.4 These defects were very obvious in this age of Renaissance and Reformation. They were partially remedied by the rise of new courts andcouncils which created new bodies of law, supplementing or rivalling the common law ; and it was inevitable that these new bodies of law should be more or less influenced by the continental Reception. Was there any fear that either the existence or the supremacy of the common law would be thereby imperilled? Was there any fear that by their means England would experience a Reception? Maitland, in his famous Rede lecture,1 has clearly indicated the gravity of this danger ; and one of the points of his argument has been reinforced by Sir Paul Vinogradoff,2 We must here endeavour to come to some conclusions as to the nature of the crisis through which English law passed in this age of the Reception, as to the manner in which it was met, and as to its results upon the development of English law.

Footnote 1: English Law and the Renaissance.

Footnote 2: Reason and Conscience in Sixteenth Century Jurisprudence, L.Q.R. xxiv 373.

Footnote 3: English Law and the Renaissance 82, 83; the petition of the students of the common law to the Council is printed ibid 78-80, from Dasent ii 48-50.

There are four good reasons for thinking that the first half of the sixteenth century was a critical time for the common law. In the first place, there is some evidence that the business of the common law courts was declining. In the second place, we hear complaints of the defects in the law, substantive and adjective, administered by them. In the third place, the Year Books cease to appear. In the fourth place, the activity of the new courts and councils is increasing. Let us see how far these four sets of facts can be said to prove that the existence or the supremacy of the common law was in danger.

(1) There is some evidence that the business of the common lawyers and the common law courts was declining. "In i536 John Rastell the lawyer and printer of law books complains to Cromwell that in both capacities he is in a bad way." In i547 the students of the common law, in a petition to the Council, complained of the encroachments of the Chancery, the judges of which, it was alleged, are " Civilians and not lerned in the Comen laws." In the Michaelmas term of i557 Stowe relates that, " men might have seen in Westminster Hall at the Kinges bench barre not two men of law before the justices ;" and, " in the common place no moe sergeants but one." And, in this connection, we may recall the tale related by Coke, that one of the counts of Wolsey's indictment was a charge that he had plotted to subvert the common law and substitute for it the civil and canon law.4

### Xvith Cent. At Home and Abroad

All this is, as Maitland admitted, hearsay evidence. The only first-hand evidence as to the state of business in the common law courts are the rolls of those courts. From an examination of the rolls of Edward IV.'s and Henry VIII.'s reigns the question whether or no the business of these courts was declining could be answered decisively. But this would be an immense task. It would involve not merely the simple enumeration of the thousands of entries contained in each roll, but a consideration of each entry in order to see whether it related to litigious business, or whether it was the entry of some matter that had no reference to litigation, such as a fine or a recognizance. And when this had been done a still more difficult task would remain. Procedure at this period was slow and cumbersome. One case will stretch over many years and terms. In all its stages there will be many entries of essoins, appearances, adjourments, and so forth. If it was desired to count the actual number of cases before the court, it would be necessary to dissect each roll, and rearrange all these numerous entries under the head of each case. It is hardly necessary to say that no such labour as this has been attempted. What has been attempted is to compile two tables, the first to show the number of plea rolls extant for the three common law courts from the reign of Henry IV. to the reign of Elizabeth ; and the second to show the number of entries relating to litigious business 1 on the rolls of certain selected terms and years in the reigns of Edward IV., Henry VIII., and Mary. No doubt many of these entries refer to the same case, so that the number of entries does not represent the number of cases before the court ; but, as the same remark applies to all the rolls, the numbers may be fairly used as a basis of comparison. The principle upon which these years and terms have been selected is as follows : The reign of Edward IV. has been selected because it is clear from the Year Books that the common law courts were then full of work. The middle of the reign of Henry VIII. has been selected because it is fairly clear that then, if ever, the common law was in serious danger.3 The Michaelmas term of 1557 has been selected in order to see whether there is any foundation for the tale related by Stowe.

## English Law and the Reception 255

Table I.

To show the Number of Plea Rolls in the Courts of Common Law, Henry IV. Elizabeth, Compiled from the List of Plea Rolls, R.O. Lists and Indexes No. IV.

\\begin{tabular}{c c

## 256 Xvith Cent. At Home and Abroad

Notes to Table 11.1Common recoveries are included in these numbers as, till 25 Eliz., they were entered on the plea rolls; but Fines and such things as enrolments of bargains and sales, deeds creating tenants to the practice, and deeds to lead the uses declared on Fines are not included; as to the miscellaneous matters of this sort to be found on the rolls see Deputy Keeper's Report, No. 3, App. II. p. rog.

In the Deputy Keeper's Report, No. 3, App. II. pp. rog-r16, and No. 4, App. II. pp. 73-77, there are elaborate analyses of the number of membranes of which each of the rolls of the court of Common Pleas consists, from the beginning of Henry VIII,'s reign to the end of Mary's reign. These analyses show that there are sometimes striking variations in the size of the roll--e.g. the roll of Easter to Henry VIII. consists only of 88 membranes, while the rolls of Hilary and Trinity terms of the same year consist of 608 and 670 membranes respectively; the roll of Trinity 20 Henry VIII, consists of ro3 membranes, while the rolls of Easter and Michaelmas terms in the same year consist of 728 and 952 membranes respectively. On the whole, however, the size of the rolls maintains a fair average uniformity. They begin to increase in size at the end of Edward VI.'s reign, and the increase is well maintained in Mary's reign. Table I. shows that in Elizabeth's reign the mass of business was so great that it was generally necessary to make up several rolls for one term. It should always be remembered that the number of membranes in the roll is not an infallible test of the number of cases, because (I) much non-litigious business is found on them, and (2) the space occupied by the entries varies very much even in part of the same roll.

Mr. Baildon, in the Black Books of Lincoln's Inn, iv 297, 298, has made a computation of the number of cases on the rolls of the court of Common Pleas for the Michaelmas and Trinity terms in the years 1300, 1320, 1340, 1360, 1380, 1400, 1420. His method of computation is as follows: He has taken the average number of entries on each membrane of the roll of Hilary 1340. This roll has been selected as it is of average size. The average is r6:6. He has then counted the number of membranes in each of the selected rolls, and, to be on the safe side, has multiplied, not by r6:6, but by r5. The results work out as follows:--

T300 1320 1340 1360 1380 1400 1420

Mich. 5,775 5,490 9,150 6,690 9,555 9,120 8,340

Trin. 3,000 3,270 4,620 5,470 8,415 6,510 6,600

Apparently all the entries on the roll are included.

The first Table seems to show that all through the Tudor period the business of the courts went on regularly; and that in Elizabeth's reign it increased enormously. The increase in the business of the court of Common Pleas and the court of Exchequer is particularly striking. The state of business clearly made it necessary to adopt the plan of strengthening the judicial staff of the latter court.1The second Table shows, in the first place, that Stowe's tale is a fable--he or his informant must have visited the court on a day on which there was some attraction which took counsel and litigants out of town. In the second place, it seems to show that, if the interpretation put upon Rastell's words by Maitland is correct, he was exaggerating the badness of the times --a fairly common characteristic of professional men. But, as I read his words, he seems to be blaming not the badness of the times so much as his extraordinary efforts in the King's cause;

**ENGLISH LAW AND THE RECEPITION 257**

and he wishes to be rewarded by being allowed to print a book. which he has written on the subject.1 If this interpretation be accepted, his letter to Cromwell has very little bearing upon the matter. We may suspect the petition of the students of the common law of an aggravated form of exaggeration, for the petition probably had a political purpose. At any rate it was used by the political opponents of Wriothesley, the Chancellor, as an excuse for getting rid of him. As for Coke's tale,2 it is a good illustration of his historical method. The facts are as follows: the words which he cites do not occur in either of the indictments of Wolsey which are on the controlment roll of Mich. 21 Henry VI11., membs. 36 and 37. These indictments refer only to offences against the statute of Provisors. They do occur, as he says, in the Third Institute 208, on the _coram rege_ roll Trin. 23 Henry VIII., mem. 14. But this is an indictment, not of Wolsey, but of Dr. Peter Lygham, clerk, the Archbishop's official of the Court of Arches, for sending a case concerning titles to be tried before Wolsey's legatine court, and thus depriving the Archbishop of his jurisdiction. It appears that Dr. Lygham was indicted by the King's orders, the real cause of his offending being opposition to the King's designs in Convocation.3 The indictment is a very long one, and, after reciting the provisions of the Statute of the Preamunire, goes on to assert that the late Cardinal Archbishop Thomas, now deceased, had assumed a jurisdiction in breach of it.4 Coke never ceased to be an advocate; and he was

### XVITH CENT. AT HOME AND ABROAD

all through his career an enthusiastic and somewhat unscrupulous advocate of the excellence of the common law, and of its claims to be the supreme law of the State.1 He had no doubt read the indictment of Dr. Peter Lygham of the twenty-third year of the reign, in which this accusation was made against Wolsey ; and the words stuck in his mind. He had probably also read the indictments of Wolsey in the twenty-first year of the reign. When he was writing his Institutes he confused these indictments of the twenty-first year of the reign, which were really indictments of Wolsey, with the indictment of the twenty-third year of the reign, which was not and could not be an indictment of Wolsey, seeing that he was dead. He then proceeded to give to the words of the indictment of the twenty-third year of the reign a significance which their context shows they were never meant to have, using them to show that Wolsey " hated both Parliaments and the common law."2 Clearly the words cannot be used to prove any such extensive proposition. All they show is the fact that Wolsey had, by virtue of his legatine powers, assumed a jurisdiction which properly belonged to the ordinary courts, lay or ecclesiastical.3

Footnote 1: Vol. v 474-477.

Footnote 2: That this was all that the case proved was recognized in the argument for Laud (supposed to have been composed by Hale) before the House of Lqrds (r644) 4 S.T. at p. 583, and in the argument of the King v. Berchet (169r) r Shower, K.B. at p. 175.

Footnote 3: 4 Opera (Ed. r703) iii no. cececdvii, " Quae professio, nt est a veris litteris alienisma, ita apud Britannos cum primis habentur magni clarique, qui in hoc genere sibi paramut actoritatem, nec temere apud illos alia via ad rem ac glorium parandam magis idonea. Si quidem pleramque noblilitatem illius insulae pepetit hoc studorum genus. In eo negant quemquam absolvi posse, nisi plurimos annos insudarit. Ab hoc igitur cum non iniuria abhorreet adolescentis ingenium, melioribus rebus natnam, tamen post degustatas schoolasica disciplinas, sic in hoc verastus est, ut neque consulement quenquam libentis litigatores, neque questum beriorem facetet quisquam eorum, qui nihil al alied agebant."

On the whole I am inclined to conclude that, though there was a decline in the business of the common law courts in Henry VIII,'s reign, owing doubtless to the activities of rival courts and councils, they still had a good deal of business left. That a good man could still earn his living at the bar is pretty clear from what Erasmus--the guest of that rising barrister Thomas More--tells us in one of his letters. Writing in 1519 to Hutten, he says that in England the pursuit of the law is so much the readiest path to distinction and gain, that many well-born youths devote themselves to the years of study necessary to become proficient in it.4 No doubt, as we shall see, the practice of a barrister of Henry VIII,'s reign was not limited to the common law courts.5 But the yearsof study in the Inns of Court were devoted to the common law ; and the evidence of Erasmus, who had peculiar means of knowing what he was talking about, taken in connection with the state of the rolls of the courts, seems to make it clear that the decline in their business is not sufficient to justify the conclusion that the life of the common law was seriously threatened.

This decline in the business of the common law courts was justified by the many defects of the common law. Its language, its literature, and its rules, substantive and adjective, were an offence to many in this humanistic age. Starkey on his return from Italy--"The place most famed both with grete lerning and gud and just pollyci "--set himself to "consider and wey the custumys and maners of myn ovine cutremen with the polycy used here in our natyon."1 The law he found "over confused," without ordur or end." It should be codified, as Justinian codified the Roman law, and written in English. All lawyers should be instructed in the Latin tongue and in Roman law. But the most effectual remedy would be, " to recyve the cyvyle law of the Ramaynys, the wych ys now the commyn law almost of al Chrystyan natyonys," Starkey was not alone in his condemnation of the common law. Both Hotman and Bucer expressed similar views.2 And though practical English lawyers were hardly prepared to accept the drastic remedy suggested by Starkey, they were prepared to admit that the general education given to the common lawyers might be improved. This is clear from the suggestions made in the paper on the Inns of Court which Denton, Bacon, and Cary drew up for Henry VIII., and from the very similar suggestions made by the author of the Doctor and Student,3

Footnote 1: England in the reign of Henry VIII. (Early English Text Soc.) r92-r95; the relvent passaga are printed in English Law and the Renaissance 42-45.

Footnote 2: For their views see English Law and the Renaissance 59, 73.

Footnote 3: As to this report see vol. ii 503-507; for its proposals for reform and for the views of the Doctor and Student see below 268-269.

Footnote 4: Vol. iii 623-626.

As a matter of fact these criticisms of Starkey were quite justified by the facts. The cumbersome technicality of the common law procedure was a scandal in the fifteenth century ;4 and it was still a scandal in the sixteenth century,5 But it is a serious question whether suitors would have been much better off if the civil law of the Romans had been received. Those who lived under that civil law made very similar complaints ; and their complaints would

**260 XVITH CENT. AT HOME AND ABROAD**

seem to show that Rabelais' satire was justified by the facts. In fact we may gather that both in France and in Germany legal procedure was suffering from defects very similar in character to the defects which were apparent in England.1 Corrupt lawyers, lengthy suits, meaningless forms, were as well known in countries ruled by the civil law as in the country which was ruled by the common law. A Reception might help forward the development of a legal system which was hampered by the archaism of its rules. But it was not the survival of archaic rules which was the chief weakness of the common law--such archaic rules as still survived were of very small importance. It was the rigidity of its substantive rules and the technicality of its procedural rules which were at fault ; 2 and in the technicality of its procedural rules the Roman law as administered by the Bartolist lawyers was the equal of the common law. There would be little gain in substituting one set of technicalities for another. Englishmen could appreciate this, for in England certain courts, notably the court of Admiralty, administered the civil law. Its procedure was cumbersome, and complaints of its delays were by no means uncommon.3 In fact so unsatisfactory was its procedure in criminal cases that in 1536 Parliament substituted for it the criminal procedure of the common law; 4 and in 1535 Cromwell was being advised that it would be well to hand over to the common law all the criminal jurisdiction which the ecclesiastical courts still retained.5 In 1557 or 1558 Thomas Williams, who was Speaker of the House of Commons in 1562-1563, gave a Reading which he entitled "the Excellency and Preheminence of the Law of England over all other humane lawes

## English law and the reception 261

in the world asserted in a learned Reading upon the Statute 35 H. 8 c. 6 concerning tryals by jury."1 Hc admits that " of late days" English law had been said to be inferior to the civil law in that it was unwritten, insular, and dilatory in its processes. The first two qualities he refuses to regard as defects ; and as to the superiority of the English to the Civil law in speed of process he is quite content to abide the judgment of those who have had experience of both.2 Probably Starkey's knowledge of Roman Law was derived from a study, not of the actual law applied in the Courts, but of the works of the new humanistic French school ;3 and, as we have seen, the leaders of this school were somewhat academic lawyers,4 In fact, his views about the superiority of the Roman law to the common law, and the desirability of a sweeping Reception, were as unpractical as many of the views which he expressed as to the government of the English state.6 Bodin was a good deal nearer the mark when he pointed out that an appeal to the Prince's extraordinary justice was the best remedy for the wearisome delays and useless technicalities of the ordinary law.6

Footnote 1: For this statute see below 538-539.

Footnote 2: English law, he says, " had been by some persons of late days vilified and contemned in regard that it is not a certain law digested into great volumes like the Civil Law, nor usid in any other country ;" but, he remarks, " if no law were to be admitted but that which is written we should condemn the Law of Nature ;" and, " whether it \[the common law\] be so dilatory and tedious as the Civil Law in Process of Appeal I shall submit to the judgment of them that have had experience of both."

Footnote 3: See English Law and the Renaissance 46.

Footnote 4: Above 246-227.

Footnote 5: See his suggestion, op. cit. p. 168, that the king should be chosen by Parliament, and should not succeed by hereditary right; p. 169, that there should be a permanent council to control the king when Parliament was not sitting; p. 182, that there should be an officer called the chief constable to compel the king to obey the law.

Footnote 6: Republique, Bk, iv chap. 6, " " Si le Prince jugeoti, lui qui est la loy vive . il seroit bonne a briefe justice. . Aussi par ce moyen les oppositions, appellations, requestes civiles, vocations, infinite d'arrests les uns sur les autres, qui rendent les proces immortels, cesseroint."

The defects in the substantive and adjective rules of the common law, great though they were, did not render a Reception of Roman Law, as actually administered on the continent, probable, even if it had been possible. But it is quite true that it was these defects which made the extraordinary jurisdiction of the new courts and councils of this period absolutely necessary in the interests both of good government and of legal development. We shall see, however, that the new law which these courts and councils administered was very far from being that civil law of which Starkey spoke so highly, and that it was equally far from being that civil law which was actually being administered in many of the continental states of Western Europe.7 But before I can deal adequately with this point I must consider the question whether the diminution in the business of the common law courts, and the defects in the common

### 262 Xvith Cent. At Home and Abroad

'law, were accompanied by a lowering of the standard of learning and knowledge among the common lawyers.

(3) It was in the reign of Henry VIII. that the **Year** Books finally ceased.1 Their cessation in 1535, "at the moment when the Henrician Terror is at its height," is, says Maitland, " dramatically appropriate."2 No adequate substitute was found for them till the second half of the century. The number of reporters in the first half of the century is small, and the quality of their work is inferior to much that is contained in the later **Year** Books.3

Footnote 1: Vol. ii SS25, 542. English Law and the Renaissance 77.

Footnote 2: Ibid 78, "The total mass of matter from the first half of the century that we obtain under the names of **Broke**, **Benloe**, **Dalison**, **Keilway**, **Moore**, and **Anderson** is by no means large, and in many cases its quality will not bear comparison with that of the **Year** Books of Edward IV.; " for these reporters see vol. v 355 scqq.

If it were true that the **Year** Books were official publications their cessation would be very significant. But there are good reasons for distrusting this view of their origin;4 and if, as is now generally admitted, they owed their origin merely to the private enterprise of the legal profession, their cessation loses much of its significance. Moreover, as I have said, it can be explained on other grounds. **Statham and Fitzherbert's printed** \*\*Abridgements of the **Year** Books were being eagerly bought.5 The printed editions of the **Year** Books were beginning to appear.6 The lawyers still made reports for themselves,7 but these reports were not as yet generally printed, probably because there was as yet no great demand for them. **At any rate it is quite clear that the great bulk of the legal literature which was being printed in the first half of the sixteenth century was the legal literature of the common law.8**

Footnote 4: Vol. ii SS25, 542. English Law and the Renaissance 77.

Footnote 5: See e.g. Y.BB. z r Henry VIII. Trin. pl. 3; Mich. pl. 2; r3 Henry VIII. Pasch. pl. 4; r4 Henry VIII. Mich. pl. 5 and 6; Hil. pl. 6 and 7; Pasch. pl. 7; r9 Henry VIII. Trin. pl. 4; 27 Henry VIII. Pasch. pl. 22; Trin. pl. 6.

There is plenty of evidence that there were many accomplished lawyers trained in the first half of the sixteenth century. The **Year** Books of **Henry VIII.'s reign, though scanty, contain some well-argued cases.9**

Footnote 1: Vol. ii SS25, 542. English Law and the Renaissance 77.

Footnote 3: Ibid 78, "The total mass of matter from the first half of the century that we obtain under the names of **Broke**, **Benloe**, **Dalison**, **Keilway**, **Moore**, and **Anderson** is by no means large, and in many cases its quality will not bear comparison with that of the **Year** Books of \*\*Edward IV.; " for these reporters see vol. v 355 scq.

Footnote 4: Vol. ii SS32-536. 5 Ibid 543-545. 6 Ibid SS28-529.

Footnote 7: As to **Dyer** and \*\*Plowden's reports see vol. v 364, 372.

Footnote 8: Maitland, English Law and the Renaissance 91, 92; vol. v 378-4tz.

Footnote 9: See e.g. Y.BB. z r Henry VIII. Trin. pl. 3; Mich. pl. 2; r3 Henry VIII. Pasch. pl. 2; r4 Henry VIII. Mich. pl. 5 and 6; Hil. pl. 6 and 7; Pasch. pl. 7; r9 Henry VIII. Trin. pl. 4; 27 Henry VIII. Pasch. pl. 22; Trin. pl. 6.

Footnote 10: Vol. ii SS503-512.

training which they gave to their members in the theory and' practice of the common law was by itself sufficient to guarantee for the common law a flourishing existence.1 Here I must describe a little more in detail the qualities of the training which undoubtedly had a large direct effect upon the future course of our legal history, and some indirect effect upon the development of our constitutional law in the earlier half of the seventeenth century. I have already said something of the educational curriculum imposed by the Inns of Court upon their members.2 We shall see that there are some signs of decay in the last years of the sixteenth century and at the beginning of the seventeenth century.3 But, during this period, this decay hardly affected the learning of the practising lawyers, who had been educated when the system of education was at the height of its vigour ; and the other qualities given by that training continued to be very evident.4 It is of these other qualities that I must here speak briefly, as it is to them, quite as much as to the legal education given by the Inns, that the victory of the common law was duc.

Footnote 1: English Law and the Renaissance 24-23.

Footnote 2: Vol. ii go6-508.

Footnote 3: See e.g. Pension Book of Gray's Inn 4-an order as to bolts and moots ; 243 --an order as to readings and moots ; 303-304--orders as to " exercises "; Black Books of Lincoln's Inn i _xxiy-xxvii_ and references there cited ; ii 65-167--orders as

### 264 XVITH CENT. AT HOME AND ABROAD

to the duties of the Reader,1 as to the persons whose attendance at readings, moots or bolts was obligatory,2 as to penalties for non-attendance,3 as to the conditions which must be satisfied before a student could be called to the bar.4 The maintenance of this educational system depended, as the educational system of Oxford and Cambridge depends to-day, upon the residence of the members of the Inns in term time and in the learning vacations. It would appear that the increase in the number of students at the end of the sixteenth century was creating a class of students who lived outside the Inn. Obviously this made the requirement of residence difficult to enforce. At any rate in 1596 the judges and the four Inns found it necessary to make a rule that " none shall be admitted into Inns of Court until he may have a chamber within the House, and in the meantime to be of an Inn of Chancey."5

Footnote 1: See e.g. Pension Book r8, 183, 184, 243-244; Inner Temple Records i 153, 2212; some of the most important orders as to Re:ders were made by the Judges, see Pension Book g2, 93, 120-121, 296-207.

Footnote 2: See e.g. ibid 17, 55, 303-304; Black Books i 16r, 38I; ii r65-167.

Footnote 3: Ibid.

In the second place, the necessity of regulating the social life of the members of the inns, and of keeping order amongst them, accounts for another and perhaps even a larger mass of entries on the records. We have rules as to payment of commons," and as to the duties and remuneration of the servants.7 We have regulations as to dress.8 Thus in 1588 the following orders were made by the benchers of Lincoln's Inn: " If any Felowe of this House do weare any Hatte in the Hall or Chapel, or go abrode to London or Westminster or in this House wthoute a gowne, he shall be put out of Commons, and pay such a fyne before he be remitted as the Maisters of the Bench there in commons shall assesse." A similar penalty is threatened, " if any Felowe of this House do weare long heare or greate ruffes;"9 and both the judges and the benchers tried to stop their members from wearing beards.10 It was found necessary to prohibit card-playing, dicing, to the exercises to be done in the various terms and vacations; n these orders we get the curious sentence "i neque post, neque pre, neque bo, neque mo, neque le," which seems to mean that no exercise is to be done either the day before or the day after the term--" neque post terminum, neque pre termino, neque bolta, neque meta, neque meta, neque lectura."1 See e.g. Pension Book r8, 183, 184, 243-244; Inner Temple Records i 153, 2212; some of the most important orders as to Re:ders were made by the Judges, see Pension Book g2, 93, 120-121, 296-207.

Footnote 3: See e.g. ibid 17, 55, 303-304; Black Books i 16r, 38I; ii r65-167.

Footnote 4: See e.g. Pension Book g, 49, 57, 80; Black Books i 160, 369, and Introd, x, xi.

Footnote 5: Inner Temple Records i 473.

Footnote 6: Pension Book r97-198. 7 Ibid 199-200, 240, 301-307.

Footnote 8: Ibid 16--'' Item it is also ordered that none of the societies of this house shall waxter any gowne, doublet, house, or other outward garment of any lyght color upon payne of expulsion owt of this house."

Footnote 9: Black Books i 8; cf. Pension Book 67, 147-148; Inner Temple Records i r92.

Footnote 10: Black Books i 259, 310, 312; Inner Temple Records i 142; but it appears that at Lincoln's Inn these orders were revoked in spite of the wishes of the judges, Black Books i _xxxvi_.

Footnote 11: See e.g. Pension Book r8, 183, 184, 243-244; Inner Temple Records i 153, 2212; some of the most important orders as to Re:ders were made by the Judges, see Pension Book g2, 93, 120-121, 296-207.

Footnote 12: See e.g. ibid 17, 55, 303-304; Black Books i 16r, 38I; ii r65-167.

Footnote 13: Ibid.

Footnote 14: See e.g. Pension Book g, 49, 57, 80; Black Books i 160, 369, and Introd, x, xi.

Footnote 15: Denign Book r97-198. 7 Ibid 199-200, 240, 301-307.

Footnote 16: Denign Book r97-198. 7 Ibid 199-200, 240, 301-307.

Footnote 17: Ibid 16--'' Item it is also ordered that none of the societies of this house shall waxter any gowne, doublet, house, or other outward garment of any

**ENGLISH LAW AND THE RECEPITION 265**

and other similar games.\[1\] In 1629 the chief butler of Lincoln's Inn induced the bench to give him $\\not{\\sim}$30 a year compensation for the loss which the enforcement of this prohibition had caused him.\[3\] So far as possible disputes between members of the Inn were settled without the help of the courts. If one member brought an action against another without leave he might be fined.\[8\] Moreover, a member of an Inn must not appear professionally against a bencher.\[4\]

The Inns tried, as far as possible, to deal with the riotous conduct of their members. But this was not always possible. Serious affrays in the streets sometimes brought the delinquents before the court of the Star Chamber. In 1458 there was an affray in Fleet Street between the members of some of the Inns of Court and the citizens, in which the Queen's attorney was killed; \[5\] and in 1517 the Star Chamber advised the benchers of the Inns " that they should not suffer the gentlemen students to be out of their houses after six o'clock at night without very great and necessary causes, nor to wear any manner of weapon." \[6\] At the latter part of this period we hear less of disorder of this kind --the disorders which we hear of are rather cases of domestic in-subordination,\[7\] sometimes of a serious kind.\[8\] But occasionally disputes of the members of the Inns with one another or with the outside public came before the courts. In 1602 a dispute between Merrick and Pie, two students of the Inner Temple, was before the Star Chamber.\[9\] I'ie had had indicted Merrick who had been acquitted; and, the matter coming before the Star Chamber, the court took occasion to warn the benchers to be careful whom they admitted as students. Pie, it appeared, was a butcher's son ; and the court drew the further moral that fewer should be called to

### XVith Cent. At Home and Abroad

the bar--"they should not have calls by the dozens and scores as is now the use."1 The Inns no doubt did their best to keep order ; but it was becoming apparent that, as the Inns grew in size, and the temptations of town life became more alluring, a more personal guidance was needed to keep the students in the strait way. In I596, in the course of a case from which it appeared that one of these young gentlemen had been defrauded, the Lord Treasurer " gave good Counsell to there Fathers yf when they sende there sonnes to th' innes of Courte to have one or two superintendents over them that maybe looke over them and certify there Freindes of there manner of lyuinge, as by experience he hathe knowne commonly used."2

Footnote 1: The _I_-10English Law and the Reception 267 was through the press,1 and Lincoln's Inn sanctioned a subscription to help pay for the printing 2--a precedent which was followed by Gray's Inn, Lincoln's Inn, and the Middle Temple, when they contributed to the cost of printing volumes two and three of this history. In 1616 Lincoln's Inn gave \_$20 "_Towardes the buyldinge of the Schooles in Oxford."3 A less creditable method of spending the Inn's money upon external objects is seen in a subscription by Lincoln's Inn to the public lottery of 1568.4_

Footnote 1: Pension Book 203-204, 207-208.

Footnote 2: Black Books ii 148-149.

Footnote 3: Ibid rS2.

Footnote 4: "In the roth of Elizabeth a great lottery was held in the City of London, every lot being ros. The gentlemen of Lincoln's Inn, journalist's Inn, and Davy's Inn 'pooled' their subscriptions, which at ros. a lot, ought to have amounted to the round sum of _$30_, but in fact fell short by 28/4, which was contributed by the Governors out of the Funds of the Inn. The speculation was not successful, as the winnings only realised on division 4/3 a lot," Black Books i _xxriv_.

Footnote 5: Vol. ii 509-510.

Footnote 6: In 1634 the bishop of London wrote a letter to the Benchers of Lincoln's Inn communicating the king's orders as to the conduct of divine service, and, in it, he says that obedience to these rules is specially important because, " verie many of the gentrie spend some part of their time in one or other of the Inns of Court, and afterwards returning to live and governe as Justices of Peace or otherwise in their severall countries, there guide themselves according to such principles as in those places are infused into them," Black Books ii 313-314.

Footnote 7: Inner Temple Records ii _xli_, _xli_.

(ii) _The Numerous Activities of the Inns._

In this, as in the preceding period,5 the Inns of Court attracted many students who did not intend to live by the law. Many country gentlemen and members of the mobility who were, by their position, destined to take some share in the local government of the country, found that they got there a good practical preparation for these duties.6 Thus we are not surprised to find that the Inns of Court were centres of other activities besides the study of the law. In 1616, on the occasion of Charles being created Prince of Wales, forty gentlemen of the Inns of Court tilted in the banqueting hall at Whitehall,7 In 1617 there is mention of a body of 6oo militia raised by voluntary enlistment from their members,8 From an early date Christmas was the occasion for revels at the Inns ; and at this period masques and interlules and plays, produced with much elaboration, played a great part in these revels, which were held both at Christmas and upon other occasions. " Revelling and festivity, which during the Wars of the Roses, and under the first of the Tudors had been confined to eating, drinking, and dancing, with an occasional show of jugglery or an interlude, and a strain of minstrelsy, had gradually developed into performances characterized by literary and artistic excellence,"9 In 1594-1595

**268 XVITH CENT. AT HOME AND ABROAD**

Bacon helped to compose some part of the book for the Christmas and New Year revels held by the Prince of Purpoole at Gray's Inn.**1** In 1602 Twelfth Night was played in the newly erected Hall of the Middle Temple.2 And the fame of these entertainments soon spread beyond the borders of the Inns, On the occasion of the marriage of James I.'s daughter to the Elector Palatine in 1612-1613 two masques, one given by the Middle Temple and Lincoln's Inn, and the other by the Inner Temple and Gray's Inn, were played at Whitehall; 3 in 1614 Bacon defrayed the whole expense of the Masque of Flowers, which was acted by the members of Gray's Inn at Whitehall, to celebrate the marriage of the earl of Somerset; 4 and in 1634 a grand Masque of the four Inns played before the court at Whitehall, fills a large space in the memoirs of the period.5 These activities show that the collegiate life of the Inns flourished during the whole of the sixteenth and early seventeenth centuries. Its vigour was a material help toward the working of a system of education based on the co-operation of all the members of these societies.\*\*

Footnote 1: For a full account of these revels and of Bacon's part therein see Spedding, Letters and Life i 325-343; it is possible, but not certain that a Comedy of Errors played on this occasion was Shakespeare's play, Inner Temple Records i _lxxii-l.rxiii._

Footnote 2: Ibid _lxxiii_; and see Manningham's Diary (C.S.) r8.

Footnote 3: Inner Temple Records ii _xxxix-xii_; cf. Spedding, op. cit. iv 343-345.

Footnote 4: Ibid 393-395.

Footnote 5: The most detailed account is to be found in Whitelocke, Memorials (Ed. x853) i 53-62; cf. Inner Temple Records ii _xti-xixi_; Pension Book 317 n.--as Mr. Fletcher there says, "i the enterprise was not unconnected with a desire to prove that Prynne's Historimasti' did not represent the views prevalent in the profession."

Footnote 6: For the decline of the educational system of the Inns of Court see vol. vi c. 8, 7 Vol. ii 503.

(iii) _The Control exercised over the Inns._

The free and independent life of these societies, by helping to make their members many-sided men, increased their efficiency as lawyers. Too exclusive a study of abstract technicalities is apt to banish that sound commonsense which is the most essential basis of a successful system of law. But this freedom and independence have their weak side. The history both of the Inns of Court and of the Universities, during the latter part of the seventeenth and eighteenth centuries, was to show that an entire absence of external control leads to a self-centred life, which is blind to the growth of the most obvious abuses.7 But there was little danger of this defect during this period. In the reign of Henry VIII, the king interested himself in the educational system of the Inns ; and we have seen that the report which was drawn up on that occasion is the best account we have of its leading characteristics.8 It would seem, too, from another part of this report, that the Inns were not

## 1 ENGLISH LAW AND THE RECEPITION 269

unwilling to listen to projects of reform if the king wished for reforms. But as no reforms were then taken in hand, we may presume that the king was satisfied (as he might well be) with the legal education then given.1 It is true, as we shall see, that the system of education pursued by the Inns showed some signs of decay in the earlier part of the seventeenth century. But it is possible that, if the great Rebellion had not broken out, the older system might have been successfully reformed. The paternal government of the Tudors and the earlier Stuarts did not hesitate to interfere with the Inns of Court if they thought interference necessary ; and it was backed up by the judges, who, all through this period, played the part of an efficient visitatorial board.

It would be impossible to give even a short summary of the contents of the various orders issued from time to time by the Council and the Judges. They deal with legal education, the conditions of call, the dress, and the orthodoxy of the members of the Inns;2 and occasionally they even interfere with the freedom of election to the bench by the recommendation of favoured candidates.3 Naturally it is the judges' orders which are the most detailed. They had all been members of the Inns; they had all as students and teachers taken their part in the system of legal education; and they were therefore the best qualified to make orders upon the various problems--educational or otherwise--which awaited the benchers who had succeeded them. Of the mass of orders to which this control of the Council and the judges gave rise 4 I shall only cite one example, in which the two forms of control were combined. In i 5845 the Council and the judges

### XVITH CENT. AT HOME AND ABROAD

**issued a series of orders as to admissions to chambers, as to the building of chambers, as to the necessity of making orthodox opinions and attendance at exercises a condition of the continued tenancy of chambers, as to conditions of call, as to the persons allowed to plead before the courts at Westminster and the Star Chamber, as to the expulsion of attorneys and solicitors.1 No doubt, according to later ideas, some of these orders were an encroachment upon the autonomy of the Inns. But it was an age in which such encroachments, if made in the public interest, were not jealously criticized. In their management of the Inns, as on the larger stage of the government of the state, the Council controlled without suppressing bodies which had inherited the medieval tradition of self-government subject to the law.2 The usefulness of the Inns to the state, and the education of the lawyers, suffered when this control was gradually diminished.3 Its existence was by no means the least powerful of the causes which make the sixteenth century the golden age of the Inns of Court.**

Footnote 1: As to this matter see vol. vi c, 8.

The excellence of the training which they gave their members in the theory and practice of the law was by itself sufficient to guarantee the continued existence of the common law. And they possessed also another very important advantage. They were the only bodies which gave a training in the law which was at once theoretical and practical. We have seen that the study of the canon law at the Universities had been discouraged ; and that the chairs of the civil law which the king had founded were as yet too new to make their influence felt.4 There was none of that vigorous life about the legal studies of the Universities which Sir Thomas Smith so much admired in the legal studies of the Inns of Court.5 Similarly the professional organization of the civilians was equally new.6 Thus as organized educational bodies, as organized professional bodies, the Inns of Courts were in possession of the field. The lawyers whom they turned out were, on account of the practical nature of their training, the best fitted to undertake the actual conduct of legal business. It was therefore inevitable that they should be employed by the government as councillors, and by litigants as counsel, in the new courts and councils which were arising in this period.7 In fact a proclamation of 1546 made their

## English Law and the Reception 271

employment by litigants necessary by providing that no person who had not read in Court was to be a pleader in the Chancery, the Common Law Courts, the Star Chamber, or the Courts of Duchy Chamber, Augmentations, Surveyors, Tenths and First Fruits, Wards and Liveries, unless appointed thereto by the Chancellor and the two Chief Justices, with the advice of the Benchers of the Inns of Court.1 This meant that the rules and ideas of the common law were constantly in evidence in those courts and councils, and that they helped to shape the law which was there administered. As in a later age, the precise ideas of the English common lawyers as to what was just and equitable helped to permeate the Hindoo customary law with the technical conceptions of the common law,2 so in the sixteenth century these same ideas helped to permeate the new and necessarily vaguer principles of justice which these new courts and councils were administering. It is clear that the powerful and constant influence of these trained common lawyers will tend to counteract any inclination on the part of the judges of these new courts to receive wholesale .the principles of the civil law. Even in the sixteenth Chamber ; cp. Inner Temple Records i 304, 306 ; members of Gray's Inn filled the posts of Master of Requests, Pension Book x n. z; councillor of the Marches of Wales, ibid z n. z; councillor of the North, ibid zo n. z; in 1537, Serjeant Fairfax was added to the Council of the North, L, and P. xii Pt. z nos. 1076, 1077 ; the chief justices were members of the court of Star Chamber, and their opinion and that of the law officers of the crown was often asked for, see e.g. Dasent iii 160, 194, 214 ; iv 164 ; vii 393, 397 ; xi 358-360 ; viii 96, 97 ; the opinion of the judges was taken as to the interpretation of Henry VIII,'s will, and as to the illegal commissions issued by Wrioths-ley, ibid ii 41-43, 54, 55 ; in Select Pleas in the Star Chamber (S.S.), i 187, 158 (1508) there is a judgment given by the advice of the judges--indeed Hudson says (Collect. Jurid. ii zo) that " in some cases the king's counsel and judges are properly and solely to judge," e.g. as to the validity of demurrers, ibid r65 ; as to title to property ibid 56, 55, 53 ; on questions of procedure ibid i 188, 210 ; precedents were often followed in the Star Chamber, and this shows that the law of the court was becoming a system of case law, see Coke Fourth Instit. 64 ; Hudson r25, 126 ; and towards the end of the century star Chamber cases got into the regular reports, see e.g. Moore (K.B.) s56, 581 ; it appears from the Egerton Papers (C.S.) z12, that the presence of persons learned in the law of the realm was regarded as essential to the proper conduct of the business of the Council of the North ; and in 1603 it would appear that certain places were reserved for lawyers on that Council, ".P. Dom. Add. (r560-1625) 428, xxv no. 40. The list of the Councillors of the North contained in Reid, The King's Council in the North App. ii gives a good idea of the proportions of laymen, civilians, and common lawyers ; see also ibid 84, 104, 155 ; the counsel practising before the Council of Wales must, according to the instructions of r574, be utter baristers of the Inns of Court (Skeel, The Council in the Marches of Wales 94) ; and at an earlier period Sir Thomas Englefield, Chief Justice of Chester, Sir William Sulyard, and Justice Porte were some of Lee's most valued assistants, ibid 60, 68, 69 ; indeed, Lee, writing to inform Cromwell of the death of Sulyard and Porte in r540, said that he must have " learned men in their rooms," as " none other is of any help," L. and P. xv no. 398 ; see L. and P. xviii (ii), no. 34, for a similar statement as to the Council of the North; in r553 John Pollard, serjeant-at-law, was made vice-president of the Council of Wales, Plowden, Rep. 89.

1 L. and P. xvi (i) no. 1145.

2 Maine, Village Communities 298, 299 ; Ilbert, Government of India (2nd ed ) 330.

**272 XVTH CENT. AT HOME AND ABROAD**

century there were signs that "'the double jurisprudence of Rome would be overwhelmed by the enormous profession of the common lawyers."1 Dr. Thomas Wilson who published a "Discourse upon Usury" in 1572 makes a civilian say, "these temporal lawyers do wholly drown our profession, and make us to have the less will to study, because our causes are so few that come before us;"2 and in 1616 James I. made a similar statement.g In fact, the same cause which abroad led to the extension of the influence of the civil law 4 led in England to the extension of the common law. But to understand the nature and extent of this influence we must first consider the nature of the law which these new courts and councils were administering.

(4) From the earliest times it had been recognized that the common law was not the only body of law in force in England,g There were many courts which administered bodies of law which fell outside the sphere of the common law; and some of them administered the civil law. In the Middle Ages the canon law was administered in the ecclesiastical courts; and after the Reformation, so much of it as was consistent with the Reformation settlement was administered in the same courts by the civil lawyers who had taken the place of the canonists,g The civil law was also administered in the court of Admiralty, the court of the Constable and Marshal, and in the courts of the two Universities,g But seeing that the law which these courts administered was outside the sphere of the common law, they were not really rivals of the common law courts. It was not till the last half of the sixteenth century that the common lawyers, incited by Coke, began to covet the jurisdiction of the Admiralty over mercantile cases.g The fact, therefore, that the civil law was administered in some of these

## English Law and the Reception 273

courts is no evidence that a Reception was taking:place in England No doubt the activity of the court of Admiralty increased during this period; but this may be accounted for by the expansion of foreign trade and the new conditions under which it was carried on. This new activity took place in a sphere which had never come under the influence of the common law.

But it was not only in tribunals which had always stood outside the sphere of the common law that the influence of the civil law was felt. In the Star Chamber, and in the councils dependent upon it, in the court of Chancery and the court of Requests, it had begun to make its influence felt. "In the England of Henry VIII.'s day there seems no little danger that _die fremdrechtich geschulten Juristen_, of whom there are a good many in the king's service, will gain the upper hand in the new courts that have emerged from the council, and will proceed from _Verwalung_ to _Rechtsprechung_. There came a time when Dr. Tunstall (who got his law at Padua) was presiding over the Council of the North, and Dr. Roland Lee over the Council of the Marches."1 These courts and councils claimed the right, notonly to modify and supplement many branches of the ordinary private law of the state, but also, in the name of justice and equity, to supervise the mode in which the common law courts applied the law to individual cases. And the limitations on the sphere of the common law, and the defects of its procedure, made such interference necessary.2

Footnote 1: English Law and the Renaissance 70; for another projected court see above 254 n. 2; as we have seen, only three out of its six judges were to be barriers, and it was to have power to discuss all matters relating to the common veal, and to call before it all persons accused of breaking any of Henry VIII.'s statutes.

Footnote 2: Vol. ii 597:

Footnote 3: This was a phrase of Wolsey's, Letters and Papers i App. No. 38; for the jurisdiction exercised by the Star Chamber see vol. i 593-508; vol. v 167 seqq.

The Council, the Star Chamber, and the branches of the Council dependent upon them acted principally (but not exclusively) (i) in those criminal cases in which, owing either to the defects of the law or the disturbed state of the country, or the power of the accused, no adequate remedy could be got at common law; or (ii) in cases in which the crown or its servants were concerned, "'The new law of the Star Chamber,"3 therefore, as administered by these tribunals, affected chiefly criminal law and constitutional law. (i) We shall see that in the sphere of criminal law it made many additions to criminal law and procedure. The law as to libel regarded as a criminal offence, perjury, forgery, conspiracy, and attempts to commit crimes, was there developed. The practice of making a preliminary examination of accused persons became usual; and torture was used to discover facts whenever the Council deemed it necessary. Moreover, it possessed an elastic jurisdiction to deal with

### 274 XVITH CENT. AT HOME AND ABROAD

" unusual and perhaps desperate inventions, which, in short time, may be very like to endanger the very fabric of the government."1 (ii) We have seen 2 that in the sphere of constitutional law it tended to introduce the continental idea that the crown and its servants were outside the ordinary law, that the servants of the crown were governed by special courts and a special law, and that in their dealings with the subject they were not necessarily bound by the common law. This idea is directly connected with the legal doctrines as to the position of the _primecps_ which were the commonplaces of civilians.3 It is obvious that it leads directly to the growth of a system of administrative law ; and it is equally obvious that if it had prevailed the common law would have ceased to be the law of the constitution.

Footnote 1: Hudson, Collect. Jurid. ii 127; cp. ibid 49; so Bacon, History of Henry VII, talks of " its high and pre-eminent power in causes which might in example or consequence concern the state of the commonwealth."

Footnote 2: Above 85-87.

Footnote 3: Above 192.

Footnote 4: Hudson, pp. cit. r15-119.

Footnote 5: Ibid op. cit. at p. 112, notes as somewhat unusual a ruling contrary to the opinion of the judges.

At the same time we should remember that, though the Council claimed to deal with cases decided by the common law courts or by other tribunals,4 there was no attempt to supersede entirely the common law.5 Neither the Chancery nor the common law courts wished to see the provincial Councils of Wales or the North wholly independent of the central courts of law and equity. In 1598 the Council itself adopted Egerton's view that the Council of the North could not stay proceedings in any superior court at Westminster.6 Nor was it necessary to supersede the common law even if it had been possible. De Tocqueville has pointed out that in France one of the chief reasons for superseding the jurisdiction of the ordinary courts by special tribunals dependent on the king was the extraordinary independence enjoyed by these courts ;7 and that in countries where the ordinary courts were more dependent on the king they retained far more power.8 But in England the control exercised by the king over the ordinary courts was very large, so that there was no reason to deprive them of all their jurisdiction in the sphere of public law. Thus the Council and the Star Chamber never attempted to exercise jurisdiction in cases of treason or felony ; and in other cases they left the parties to their remedy at common law, if they thought that the common law could do adequate justice.

**ENGLISH LAW AND THE RECEPTION** **275**

A private person who wished to take proceedings before either of these bodies must, as a rule, show some sort of reason why he did not bring his action elsewhere.1 Wide as their jurisdiction was, it was in a manner supplementary to that of the common law courts;2 and, as we have seen, the counsel and some of the judges of these councils kept the conceptions and the methods of the common law constantly before them. Moreover, whatever was the extent of the jurisdiction which the central government exercised or claimed to exercise over its paid officials, the machinery of local government was not directed by these paid officials. It was directed by unpaid sheriffs and justices of the peace, carrying on their work under judicial forms and under common law or statutory rules, and permeated with the mediaeval idea that, subject to the law, they could act freely in their several spheres.3 Thus, although these new courts and councils were adding to the criminal law and were introducing new conceptions into constitutional law, they had neither the wish nor the power wholly to supersede the fundamental principles of the common law. While these modifications were taking place in criminal and constitutional law, the Chancery was making equally notable additions to many branches of the civil law. Whether we look at the substantive or the adjective law there administered, the influence of the rules and conceptions of the canon law, and therefore to some extent of the Roman civil law, can be traced.4 The procedure of the court of Chancery was derived from the canon law; and the Dialogue of

### Xvith Cent. At Home and Abroad

the Doctor and Student 1 shows that the minds of those who were framing a system of equity in the late fifteenth and sixteenth centuries were influenced by the current scholastic philosophy, as expounded in the works of the great jurist, John Gerson.2 Their views both upon the nature of equity 3 and upon the contents of certain of its rules 4 can be connected with doctrines and speculations familiar to the Canonists. Nor is this surprising. The Chancellors of the fifteenth century were prepared to give relief on principles of abstract justice ; they were prepared, that is, in a suitable case, to satisfy the demands of conscience even though their action involved a dispensation with the rigid rules of law. Once having departed from the rigid rules of law, where else could they find a criterion of right than in the current legal philosophy of the day ? We at the present day might refer to expediency or public policy : the clerical chancellors of this period referred to the principles of the scholastic philosophy, and to the rules of the civil and canon law which had given to those principles a technical shape and a practical application to the solution of legal problems.6

Footnote 1: Vinogradoff, L.Q.R. xxiv 373-384 ; for this book see vol. v 265-269.

Footnote 2: Sir Paul Vinogradoff points out, ibid 374, that just as " Azo was the interpreter of the Civil Law for the thirteenth-century lawyer, John Gerson was the leading exponent of School doctrines for the sixteenth-century jurist."

Footnote 3: Ibid 377-379. 4 L.Q.R. xxiv 38o-384.

Footnote 5: In the Doctor and Student ii cc. 26-45, various cases from the Summa Angelica and the Summa Rossella are discussed, which contain rules for " the ordering of conscience upon the law Cannon and Civil ;" but it is admitted that those cases, not being founded on the law of the realm, " do rather blind conscience than give a light unto it ;" but they are cited nevertheless for the purpose of comparison ; in the Practice of the Court of Chancery Unfolded (printed with Choice Cases in Chancery) 60, 70, it is said that many of the Masters are professors of the civil law, " for that a great sort of titles of that law are titles of Equity, so that they may seem best able for their skill in those titles, for the which no other law has the like, to assist the Lord Chancellor in matters of Conscience ;" on the other hand, in the Treatise on the Masters, Harg. Law Tracts 291-39, a knowledge of the civil law is said, at pp. 309, 310, to be desirable, not so much to assist the Chancellor in his equitable jurisdiction, as in his jurisdiction over maritime, marital, and ecclesiastical causes, in publishing an authentic text of treatties, and in drawing up state documents,

## English Law and the Reception 277 ideas.

The Chancery, on the other hand, was in the sixteenth century becoming a purely judicial court.1 It followed that the law administered by it was far more likely to be influenced by the professional character and training of those who practised before it. But we find that from the earliest times its relations with the judges and the common law practitioners had been of the most intimate character. The Year Books show us that the serjeants and the judges assisted the Chancellor to arrive at his decisions;2 and to the end of the history of the court the Chancellor consulted the judges on points of law.3 The men who practised before the Chancellor were men who had been trained in the common law. Indeed, in the sixteenth century, a man could hardly have done his duty to his client unless he was familiar both with the common law and the law of the Chancery.4 In Henry VIII.'s reign Sir Thomas More, a common lawyer, became Chancellor. He was followed by Audley, and later by Rich, both of whom had been educated as common lawyers;5 and the court of Requests was generally assisted by the advice both of common lawyers and civilians.6 Egerton7 had been governor and Lent Reader at Lincoln's Inn, and, in his judgment in _Calvin's Case_,8 he expressly disclaimed any deep knowledge of the Roman civil law. No doubt the new principles adopted by the Chancellors enlarged the horizon of the common law judges, and paved the way for important developments in the law of property, in the law of contract, and perhaps in the law of procedure. But it was men trained in the technical system of the common law who helped to give technical shape and detailed application to these principles. Thus it happened that the principles of the common law had as great an influence upon the new law of the Chancery as the new law of the Chancery had upon the development of the common law. We can see their

### 278 XVITH CENT. AT HOME AND ABROAD

"influence, for instance, in the law of procedure and pleading "-the parties come to issue as at common law ; 3 and we can see it in the fact that by the end of the century the law of the Chancery is showing signs of becoming a system of case law. It is not surprising, therefore, to find that in the early Chancery cases there is very little reference to the technical rules of the civil and canon law, and very frequent reference to the rules of the common law. 3 The principles and speculations of foreign canonists and civilians may have helped to inform the consciences of the Chancellor and his officials as to the kind of rule which would be considered fair and just--just as the books of canonists and the civilians of the twelfth and thirteenth centuries helped to inform the fathers of the common law as to the necessary characteristics of a civilized body of law. But the law actually administered in the Chancery was based far more upon general principles of fairness and justice applied both to the facts of the case before the court, and to the common law rule applicable to those facts, than upon any technical rules of the civil or canon law. 4

In the second place the position assigned by the legal theory of the fifteenth and sixteenth centuries to conscience or equity prevented the principles laid down in the Chancery from being in any sense subversive of the principles of the common law.

We have seen that in the Middle Ages all courts of law would have professed rightly and duly to administer both law and equity.

"Select Cases in Chancery (S.S.) 56, 57, a declaration in detinue which closely follows the common law forms ; 137-140, pleadings and judgment very similar to those at common law ; Calendar of Chancery Proceedings (R.C.) ii _lx_, a departure in pleading alleged ; _lxiii_, a plea with a protestation; the common law system of pleading seems similarly to have influenced the system of pleading in the Star Chamber, Hudson, op. cit. 161, rgi; Select Cases in the Star Chamber (S.S.) i 44, 59, 60, 71-80, J03, 332.

" Langdell, Equity Pleading, Essays in Anglo-American Legal History ii 775, 776; in a book called the Attorney's Academy (r623) we can see that the rules as to Bill, Answer, Reply, and Rejoinder are well settled ; cp. Select Cases in Chancery (S.S.) Cases i41 (1455-1456), and 147 (1467-1473) ; it is noteworthy that the practice of examining witnesses to inform the conscience of the court--a practice evidently derived from civil law methods of procedure, Stephen, Pleading (5th ed.) 137, 138--lasted only till the time of Lord Bacon, Spence, Equity i 38o, 38r; and cp. Hudson, op. cit. 24, for a similar development in the Star Chamber; this would seem to show that the peculiar characteristics of the common law system of pleading--the development of the issue only by the allegations of the parties--had prevailed in the Chancery. We may perhaps see a sort of parallel in the manner in which in Roman law some of the features of the _Legis actio_ procedure influenced the formulary procedure.

"This is apparent if we look at the Select Cases in Chancery (S.S.), and the cases in the introduction of the two volumes of the Calendar of Early Chancery Proceedings (R.C.).

"As Kerly says, Equity irol, "It is not clear that any of the doctrines of early equity can be traced to the Civil Law. . The Civil Law was referred to as a repertory ot moral principles, and, as such, it was accepted, not only in our Court of Chancery, but throughout the Western World."

## English Law and the Reception 279

**In the time of Bracton and later, there is no doubt that the king's courts were fully competent to do equity.1 But the growing fixity of the common law, and the growing technicality of its procedure, had caused the claims of equity to retire into the background.2 In the sixteenth century, both in England and elsewhere, the growth of the conception of sovereignty tended to alter that position of equity and to diminish its importance. Men's conception of the relations of law and equity was naturally affected by the substitution of the background of material force, on which the sovereign state was based, for the religious and moral background which underlay the political theories of the Middle Ages. The more completely law came to depend on the command of the sovereign, the less scope there was for its modification by the admission of equitable principles. Equity, as Plowden pointed out, might be appealed to in the interpretation of the commands of the sovereign legislator to give them now a larger, now a more restricted scope, in the interests either of justice or of conformity to established principle ;3 but he makes it quite clear that the lawyers of his day had ceased to regard it as a set of moral principles which should habitually influence the conduct of the judges in the decision of concrete cases.**

Footnote 1: Vol. ii 245-252, 334-344.

Footnote 2: Plowden 45-468.

Perhaps the growing respect paid to the authority of decided cases was one of the causes which helped to eliminate ideas of equity from the common law, more completely than they were eliminated from bodies of law which were based upon a jurisprudence derived from the Roman civil law. but the very completeness with which they were eliminated from the common law made it necessary that some provision should be made for their recognition.4 That provision was made by entrusting their administration to a special court--the Chancery. Its power and jurisdiction increased in extent as the rules of the common law grew more fixed ; and the result was that the strictly mediaeval conception of equity had a longer life in England than in any other country in Europe, and a history which was quite unique.

That the equitable principles administered by the Chancery in the sixteenth century were based upon the strictly mediaeval conception is clear from the dialogue of the Doctor and Student. The writer adopts the mediaeval point of view which regarded the world as ruled primarily by the law of God and by the law of nature or reason, and only secondarily by the human law of the

### 280 XVITH CENT. AT HOME AND ABROAD

particular state.1 It followed that no human law which was contrary to these universal laws was valid ; for their existence and validity was presupposed by all human laws.2 Now a human law might be perfectly consonant to these laws, and therefore perfectly valid. It might be a perfectly fair general rule ; and yet, when it came to be applied to some particular case, it might work manifest wrong. It was particular cases of this kind which called for the intervention of conscience or equity.5 Thus the rules of equity were really special applications of the overriding law of God or of reason or nature to the treatment by merely human law of particular cases.4 The human law of the state, therefore, was the foundation of rules of equity ; for these rules were called into existence by the presence of some hardship resulting from the manner in which this human law dealt with a particular case. The Doctor and Student over and over again emphasizes the fact that the law of the state--whether it be the common law or the Roman civil law--is the starting-point of equity.5 The rules of equity, therefore, do not form a distinct and rival system of law : they are a part of all systems of law, needed by all systems of law in order to ensure that the application of legal rules shall conform to the law of God and the law of reason or nature, as completely as the rules themselves.6 Thus neither the Doctor and Student nor Coke

## English Law and the Reception 281

regard the rules of equity as a separate part of the law of England.1 They are rather a necessary modification, and therefore a necessary part, of the common law, to be known and administered by the lawyers in order to do complete justice,2 and in order to fulfil the object of all law, which is, according to Aristotle, to make men good,3 Civil and canon law treatises might be useful as illustrating the working of the rules of conscience or equity as applied to those systems of law : in England they were of small importance compared with a knowledge of the common law upon which the rules of conscience or equity must in England be necessarily founded.4

Footnote 1: Above 272 n. 5.

Footnote 2: Doctor and Student i c. 4, " And the Philosopher said in the third booke of his Ethics that the intent of a maker of a law is to make the people good, and to bring them to vertue."

Footnote 3: Doctor and Student i c. 4, " And the Philosopher said in the third booke of his Ethics that the intent of a maker of a law is to make the people good, and to bring them to vertue."

Footnote 4: Above 28o.

Footnote 5: Ibid c. 27 i; i c. 3.

This conception of equity as an essential part of the law, needed in order that the law in its application to concrete facts might not contravene the law of God or of reason, was applied, in the earlier part of the sixteenth century, to determine the limit of its interference with the law--a difficult question " to be understood in divers manners and after divers rules."5 The most general theory seems to have been somewhat as follows : Some human laws are grounded directly upon the law of God or of reason, e.g. laws forbidding murder or fraudulent dealing. Others are grounded merely upon the circumstances of particular states at a particular time, e.g. the law as to the solemities needed to make a contract, or the law as to the modes in which property may be acquired.6 As a general rule equity should interfere if any law as applied in a particular case contravenes a principle of the law of God or of reason, if, e.g., it leads to harsh or unfair dealing.7 But if the law is merely a human law founded on the circumstances of some particular state, the intervention of equity may, by the terms of the law, be expressly or by implication forbidden.8 In such a case the hardship resulting to the individual

**282 XVITH CENT. AT HOME AND ABROAD** must be suffered in the interests of the state. The only remedy is an appeal to the conscience of the wrong-doer.1

Footnote 1: The Doctor and Student i c. r8, speaking of the statute of 4 Henry IV. c. z3 (as to the effect of judgments in the King's Courts, vol. i 462) says, "It is much more provided for in the law of England that hurt nor damage should not come to many than only to one ... and in many cases where a man doth wrong yet he shall not be compelled by way of compulsion to reform it, for many times it must be left to the conscience of the party whether he will redress it or not;" cp. ibid ii, cc. 3 and 50.

Footnote 2: Select Cases in Chancery (S.S.) z46.

- Vol. i 459-46?; vol. ii 594-595; vol. v zaz.

4 i c. r7, "It had not been inconvenient to have assigned such remedie in the Chancerie upon such equities for the seventh ground of the law of England: but forasmuch as no record remainiuth in the King's court of no such bill ne of the writ of _sub pana_ or injunction ... it is not set as a special ground of the law, but as a thing that is suffered by the law." This explains the importance in the legal theory of the sixteenth century of holding or not holding a court to be a court of record; see vol. v 157-16r.

- Above 280-28r; Little Treatise concerning writs of _sub pana_, Harg. Law Tracts 353 ; Norburie, Abuses of the Chancery, ibid at p. 444, "Law and Conscience are so linked together that they are hardly to be severed, and conscience must always be founded on some law."
- Reading on the Statute of Uses, Works (Ed. Spedding) vi 475.
- Maitland, Equity 18, r9,

**ENGLISH LAW AND THE RECEPTION 288**

existence of the common law was not threatened by the development of equity in the sixteenth century.

I do not think, therefore, that any of the four reasons alleged for supposing that the existence of the common law was in danger in this age of the Reception are really conclusive ; and in support of this opinion two further reasons can be adduced. (1) If ever the existence of the common law was in serious danger it was in the reign of Henry VIII. But to suppose that Henry VIII. cherished a design of subverting the common law is to suppose that his policy in regard to the law was wholly contrary to his policy in regard to the constitution and the church. The frame of the constitution depended upon the common law ; 1 and in all constitutional questions Henry scrupulously observed the letter of the law.2 The common law gave him most of the powers which he required ; and he could get additional powers from Parliament. It is quite inconceivable that Parliament would have asserted to a project to subvert the common law ; 3 and Henry was not the man to attempt a design at once unpopular and useless. We have seen that he introduced into Wales and the Marches all the apparatus of English local government ; and that he gave Wales the right to send representatives to Parliament.4 His ecclesiastical policy was founded upon a supposed restoration of the old constitutional order. The king who penned the preamble to the Statute of Appeals was the last man to desire a violent breach in the continuity of the law of the state.5 (2) Throughout the sixteenth century the monarchy of England was a constitutional monarchy. Even Henry VIII. recognized that the law could be changed by Parliament alone.6 The continuous existence of Parliament and the continuous exercise of its powers were clearly a great security for the existence of the common law. It prevented the acceptance of the doctrines of the civil law which ascribed a legislative authority to the will

### 284 Xvith Cent. At Home and Abroad

of the _primes_. It prevented, therefore, sweeping changes in the legal code by a mere ordinance of the king and his council. The existence of the Parliament depended upon the common law, and the common law preserved the mediaval idea that in the state the law was supreme.

But though I am inclined to think that the existence of the common law was not endangered in the first half of the sixteenth century, I am of opinion that its supremacy was in very serious danger. We have seen that throughout the sixteenth century the moving force of the constitution was the Council, and that it exercised an active control over all the machinery of government, and over the whole administration of the law.1 If the Council had continued to exercise these large powers of control over the judicial system, it is quite clear that the Star Chamber, the Admiralty, and the court of Requests would have continued to yield a very large jurisdiction. The jurisdiction which they would have possessed would have deprived the common law courts of a large part of their jurisdiction over constitutional law, of some part of their jurisdiction over criminal law, and of nearly all their jurisdiction over commercial law.2 The result of the victory of the Chancery over the common law courts in James I.'s reign was to take away from the common law its exclusive control over large parts of the private law of the state.3 If all these other courts had been equally successful, the common law would have become of very small importance indeed.

Footnote 1: Above 70-107, ${}^{\\circ}$ Vol. i 504-507, 552-558, ${}^{\\circ}$Ibid 463-465.

At the end of the Tudor period it was becoming clear that a struggle for supremacy was imminent between the common law courts and these new and rival jurisdictions. In fact, we can see that the Tudors had left the legal institutions of the English state in much the same position of unstable equilibrium as they had left its political and ecclesiastical institutions. The new had been placed side by side with the old, and no attempt had been made to define their respective spheres. A continuance of the harmonious working of these diverse institutions depended on the personality of the Tudor sovereigns, and on a continuance of the causes which made their strong rule a necessity to the safety of the state. Thus it was that when their direct line failed, and when the circumstances which had made their strong rule necessary ceased to exist, a general conflict ensued. The struggle between the common law courts and their rivals was merged in the larger political and ecclesiastical questions which at once came to the front. The majority of the common lawyers naturally gravitated to the side of the Parliament, because, as I have said, the powers of Parliament were the great security for the supremacy of the common law, and it was by

## English Law and the Reception 285

the common law that the position of Parliament was most fully recognized. It was the victory of the Parliament which ultimately gave back to the common law that supremacy which had nearly disappeared in the sixteenth century.

How far, then, is it true to say that England experienced anything analogous to the continental Reception? I think that it would be true to say that England, though it did not experience anything that we can call a Reception of Roman law, was affected by analogous influences, because, in England as elsewhere, it was necessary to adapt medieval ideas, legal and political, to the needs of the modern state. But necessarily the manner in which this adaptation was effected in different states depended upon the legal past of each particular state ; and since England's legal past differed from that of any other European state, the manner in which the transition from mediaval to modern was effected was fundamentally different. Taking a broad view of the various states of Western Europe, we have seen that,1 apart from the Latin races, they fell into two main categories. Into one category fell those states whose legal systems had already been partially Romanized. Since their law and institutions could be readily adapted to modern needs by a further application of rules and ideas already received, the Reception took the form of a development. Into the other category fell those states whose legal systems consisted of a collection of archaic customary rules, quite unaffected by any foreign influence. Since their law and institutions were quite incapable of adaptation to modern needs by any process of development, the Reception took the form of a revolution. But England and English law cannot be brought under either of these categories. England had experienced a Reception in the twelfth and thirteenth centuries ;2 but the direct influence of Roman on English law had ceased at the end of the thirteenth century.3 There could, therefore, be no Reception by way of development ; and a Reception by way of revolution was both unnecessary and practically impossible.

Footnote 1: Above 247-250.

It was unnecessary because the rules of the common law were no mere collection of archaic customs. They were a logical system of fundamentally reasonable rules professionally taught. They suffered no doubt from the effects of an excessive technicality and formalism; but they had already shown themselves to be capable of expansion to meet new needs. And if we admit, as we may well do, that the mediaval common law was a system as learned and as reasonable as the system of the Bartolists we might maintain the seeming paradox that if a wholesale and revolutionary Reception had taken

**286 XVITH CENT. AT HOME AND ABROAD**

place in England in the sixteenth century, it would have been a unique phenomenon. It would have been the one case in which a system of law professionally developed and professionally taught in the Middle Ages had been wholly set aside.

A revolutionary Reception was practically impossible because the principles of the common law were part and parcel of the English constitution. To supersede the common law by Roman rules it would have been necessary to sweep away, or at least to modify profoundly, the existing machinery of government; and this, as we have seen, was wholly contrary to the methods, and, indeed, beyond the powers of the Tudor kings. On the other hand, it is clear that some additions to the existing legal system were needed to enable English law to satisfy the exigencies of this new age. This need was met in two ways:--

(1) Writers and judges turned to Glanvil, Bracton, Britton, and Fleta--to the law books which the legal Renaissance of the thirteenth century had inspired. They turned to these books rather than to the books of the Glossators, the Bartolists, or the Renaissance jurists, because the former were familiar to them, and because they could find there rules and principles, already half naturalized, which were fitted to their needs. But for these books Coke's Institutes could not have been written. The general principles which they had taken from Roman law, and adapted more or less to English uses, were brought to light; and in the course of this and the following century they were gradually made integral parts of the fabric of English law. Nor is this reversion to the thirteenth century wholly peculiar to England and to English lawyers. It is well to remember that the great Cujas deliberately stated that the work of Accursius was more helpful to the student than the works of the Bartolists.1 The common law was thus liberalized by a Reception--but it was a Reception which was marked by the same intensely national character as marked the Reformation, the Renaissance, and the constitutional changes of this century. In the following century the fact that the Reception had taken this form proved to be the strongest security for the maintenance of constitutional government.

(2) New courts and councils administering rival or supplementary bodies of law were either newly created or developed from existing institutions. We have seen that some of these courts administered the civil law; and that others, though they owed something to the civil or canon law, accepted and took as their starting-point many of the general principles of the common law.2 In this way new blood was introduced into the English

**ENGLISH LAW AND THE RECEPTION 287**

legal system ; but it was introduced in such a way that the machinery and principles of the common law remained intact. In the sphere of legal development, as in the sphere of political and religious development, the new was placed side by side with the old ; but no attempt was made to supersede the old by the new. And just as the peculiar character of the political and religious settlement effected by the Tudors is the main cause of the peculiar characteristics of the English constitution and the English church, so the peculiar character of their legal settlement is the main cause of one of the most remarkable peculiarities of English law--the fact that it is composed of very diverse systems, based to some extent on wholly different principles. This is a peculiarity which it still to some extent retains ; for though the diverse systems of which it consists are now for the most part administered by one Supreme Court of Judicature, their fundamental diversity makes it necessary "' for the convenience of business" that there should be divisions in that court.

In the mediaeval period the absence of an authoritative text gave rise to one of the most distinctive features of English law--the system of case law.1 In this period the combined toughness and elasticity of the system so created thus gave rise to another of its most distinctive features. The result is that English law differs from the law of those countries in which Roman law was received, whether by way of development or by way of revolution, in that it consists, not of one uniform system arranged more or less according to the subject-matter of its various parts, but of several disparate systems ; and among those systems a defined, if modest, place was, as we have seen, assigned to the civil law itself.2 The toughness of the common law has in fact effected for the English system what the toughness of the old Roman _jus civile_ effected for the classical Roman system--a development by means of a multiplication of parallel legal rules. But in the English system the division has been more permanent because the multiplication has been not of legal rules only, but also of tribunals administering those legal rules by means of distinct codes of procedure.3 Our Judicature Acts did not attempt to do for the English system what Justinian's codification did for the Roman. For this result we must wait patiently till the case law of the Supreme Court, codifying Acts, and a uniform code of

### Xvith Cent. At Home and Abroad

procedure have had time to do the necessary preliminary work, accomplished at Rome by the classical jurists of the Empire--the work of consolidating into one whole the various systems of which English law consists.

In the Middle Ages English legal development had fallen apart from the legal development of the continent. Largely as a result of its peculiar mediaval development it falls still further apart in this age of the Reception. But notwithstanding this we can see in two respects a historical parallelism. (1) Just as the political speculations of the Bartolist lawyers influenced the continental political theories of this period,1 so the political ideas contained in the common law became the constitutional law of the English state and formed the political theory of Englishmen,2--a theory received by foreign nations during the last century even more widely than the rules of Roman law were received in the sixteenth century. (2) On the continent, in spite of the classical school of Renaissance jurists, the practical law which the sixteenth century received was dominated by the Bartolist tradition, by the system, that is, which had grown up in the Middle Ages.3 So in England the supplementary and rival bodies of law which grew up during this period were to a large extent dominated by the rules and conceptions of a common law, the main outstanding features of which had been fixed during the same mediaval period. And this continuous attachment both of English and continental lawyers to mediaval modes of thought is quite intelligible. The exigencies of their art compelled the lawyers to gravitate to the older intellectual order. For, though it may be that the English system of, case law has greater affinities to the newer intellectual order because it is more inductive than the continental system, which depends upon authoritative treatises,4 legal rules in both systems must depend upon authority of some kind ; and they must be developed by deductive processes. To the Renaissance scholars, and to the student of the natural sciences, whose claims and hopes were voiced by Bacon, " Veritas . a lumine naturae et experientiae quod aeternum est petenda est :"6 to Coke and the common lawyers the " duo lumina mundi " were "auctoritas et ratio," 6

**CONSEQUENCES OF THE RECEPITION 289**

We are now in a position to sum up briefly the consequences of the Reception both on the Continent and in England.

_The Consequences of the Reception on the Continent and in England_

"Three times," says Ihering," "has Rome dictated law to the world, three times has she been a bond of union between peoples ; first through the unity of the state when the Roman people were at the height of their power ; then through the unity of the Church after the fall of the Roman Empire ; and for the third time through the unity of law in consequence of the Reception of the Roman law of the Middle Age. . : The Roman law has become, like Christianity, an element in the civilization of the modern world." It was, as we have seen, during the centuries of the Middle Age that this third -- conquest was being prepared by the civilians and canonists who were adapting Roman law to the legal and political needs of the modern state." As a consequence of their work the various European states have acquired a number of fundamental legal principles which are common to all, and a science of law has been thereby rendered possible." England, it is true, retained her common law ; but that common law was, like the Roman law which the sixteenth century received, formed amidst medieval ideas, and it was supplemented by rules and principles, the addition of which was due to the same causes as those which had brought about the continental Reception. Though, therefore, English law was fundamentally unlike that of the continent, it was sufficiently akin to render possible a science of comparative law. From the point of view of legal theory this is the most important and the most general consequence of the Reception. At some of its other consequences I have already glamed ; and they can therefore be summarized very briefly.

In the first place it is the note of universality which can be discovered in the civil and canon law that has made it possible to express in legal form the many various relations which exist between the states of modern Europe. Theories of a natural law, a _jus divinum_, or a _jus gentium_, which the medieval civilians and canonists had elaborated from the Roman jurisconsults, from classical philosophy, and from Christian doctrine," replaced the theory

### 290 XVITH CENT. AT HOME AND ABROAD

of the Holy Roman Empire as the basis of international intercourse --even as in later days these theories of natural law have given place to a modern International law resting upon positive acts and long-continued usage. England played a distinguished part in the origination of this new body of law, Grotius's great predecessor, Albericus Gentili--an Oxford professor and a man learned "' in all the traditional legal lore of Italy "1--has some claims to be its founder ; and Richard Zouche, another Oxford professor, helped to originate its name.2

Footnote 1: Holland, Studies in International Law 58; vol. v 52-55.

Footnote 2: Holland, op. cit. r ; vol. v 17-20, 58-50, 59 Above 21-22, 223.

Footnote 3: Armstrong, The Political Theory of the Huguenots, E.H.R. iv 34.

Footnote 4: Brissaud, op. cit. g68, " Les theories politiques du moyen Age, tres hardies parfois, restaurant enfermees dans les ecoles ; il fallati la revolution relegieuse du seie

**CONSEQUENCES OF THE RECEPTION 291**

on the mediaeval idea of the theoretical supremacy of right,1 England has felt influences historically analogous in kind, but in substance very different. The political and legal theories of Englishmen were founded on mediaeval ideas; but they were the mediaeval ideas of the common law, and not of the Bartolists. It is not till the seventeenth century that continental theories influenced English political thought; and their influence was never strong enough to leave any very permanent traces in the theory or phrasing of legal rules.

Footnote 1: Stubbs, Lectures on Medieval and Modern History 239 seqq; vol. ii x31-r32.

Finally, it is the application of these principles of the civil and canon law to the legal needs of the modern state which has, sooner or later, given to the nations of Europe the desire for a national law, and the technical skill and knowledge needed for its production. How soon this desire for a national law was awakened depended upon the political history of the nation. Where national feeling was strong, the desire awakened early. In France in the sixteenth century, for instance, Pasquier2 and Hotman 3 lamented the dependence of French law on the civil law; Pasquier thought that if a doubtful point arose, the lawyers should have recourse, not to Roman law, but to the various native codes of customary law;4 and Hotman advocated the codification of French law.6 In Holland, at the beginning of the seventeenth century, the genius of Grotius laid the foundations of the national system of Roman Dutch law. His Introduction to Roman Dutch law systematized so skillly the mass of local customs and Roman rules that, " If we had lost all the subsequent works on Roman Dutch law, and had retained only the Introduction of Hugo de Groot, we could administer to-day the Roman Dutch law very much in the same way as it is actually interpreted by our courts,"6 In Germany, on the other hand, the growth of national feeling was far slower,

### 2092 XVITH CENT. AT HOME AND ABROAD

The works on the _usus modernus Pandectarium_, in which the German lawyers of the last half of the seventeenth century stated the law of Germany, assumed the authority of all those parts of the _corpus juris civilism_ which were not clearly obsolete,1 But Germany also in these last years has attained its Burgerliches Gesetzbuch--"the most carefully considered statement of a nation's law that the world has ever seen."2 These national codes, whether they came early or late, were in all cases necessarily based in a greater or smaller degree on the principles of Roman law, which had been received in this century; and it is in this respect that the legal development of England differs most conspicuously from that of the continent. Just as the mediaval common law has coloured the political ideas of later centuries, so it has coloured even more markedly the whole fabric of English law. It is true that we may trace continental influences in the maritime and commercial law administered in the Court of Admiralty; it is true that continental ideas strengthened the hands of the government in its work of restoring the supremacy of the law, by encouraging the growth of a supplementary or a rival system of civil and criminal equity administered in the Chancery and the Star Chamber; it is true that these same ideas both inspired the common lawyers with the desire to improve their own system, and gave them valuable hints as to the form which those improvements should take. But, in spite of rival courts and foreign influences, the mediaval common law stood its ground. England did not need the discipline of a Roman code to learn the desire for a national law; and her lawyers, as Wycliffe had long ago remarked,3 had as much technical skill and knowledge as their Roman rivals.

Footnote 1: Grueber, Introd, to Sohm, Institutes of Roman Law xxii-xxiv.

Footnote 2: Maitland, Political Theories of the Middle Age xvii,

Footnote 3: De Officio Regis 193, 194, " Sed non credo quod plus viget in Romana civilitate subtilitas racionis sive justicia quam in civilitate Anglicana. . patet quod non pocius est homo clericus sive philosophus in quantum est doctor civilitatis Romane quam in quantum est justiciarius juris Anglie;" cp. L.Q.R. xii ?6,

It would not be true to say that English law, either in this or any other period of our legal history, owes nothing to Roman law; but it would be true to say that English law has been fortunate in its contact with Roman law. At different periods in English history the development of our law has been materially helped by this contact. In the age of Bracton, Roman law taught the fathers of the common law the way to construct an intelligible legal system. In the sixteenth century it helped to make English law sufficient for the needs of a modern state. In the eighteenth century it helped Lord Mansfield to found our modern system of mercantile law. It was the sixteenth century that was the critical

**CONSEQUENCES OF THE RECEPITION 299**

\*\*In the first and only time in its history the supremacy of the common law was threatened ; and its supremacy was not fully secured till the legislation of the Long Parliament.\*\*1 **That it was able to assert its supremacy is due partly to the earlier Reception of the thirteenth century, partly to its capacity to assimilate principles borrowed from its rivals--principles which, in many cases, can be connected directly or indirectly with the Reception of this century.**

**We have received Roman law ; but we have received it in small homoeopathic doses, at different periods, and as and when required. It has acted as a tonic to our native legal system, and not as a drug or a poison. When received it has never been continuously developed on Roman lines. It has been naturalized and assimilated ; and with its assistance, our wholly independent system has, like the Roman law itself, been gradually and continuously built up, by the development of old and the creation of new rules to meet the needs of a changing civilization and an expanding empire.**

**But we must now return to the English law of the sixteenth and early seventeenth centuries, and examine the gradual evolution of its modern machinery, principles, and rules from their medieval bases.**

\*\*1 **Sir Henry Martin, the judge of the Admiralty, recognized that the Long Parliament was likely to prove "the funeral of his profession," S.P. Dom. (r641) r641) r97 cccckx no. 67.**

## Chapter 11 English Law in the Sixteenth and Early Seventeenth Centuries

The Enacted Law

The series of changes in and developments of English law, which necessarily accompanied the rise of the modern English State, were carried out partly by direct legislative action, and partly by the action of the lawyers and the courts. The direct action of the legislature is most marked in the sphere of public or semi-public law. The large changes involved in the new religious settlement, some of the changes in the judicial machinery of the state, many of the changes in and developments of the criminal law, and most of the changes in the system of local government were made by statute. Both by statute and by proclamation new remedies were devised, or old remedies were adapted to meet the difficulties resulting from the new political, social, and economic conditions of the age; and in many of these statutes and proclamations we can see the origins of some very important branches of modern law, such as the usury laws, the patent laws, the law as to copyright, and the law of employer and workmen. The only statutes of first-rate importance which made radical changes in existing departments of purely private law were the statutes of Uses and of Wills. We shall see that it was the effect upon public law of the popularity of the Use that was the principal cause of the enactment of the former statute; and that the enactment of the latter was caused directly by the effects of the former, and indirectly by the political and economic changes which strengthened and accelerated the existing tendency to eliminate feudal ideas, and to make land ownership merely a branch of property law.

The detailed working out of these direct legislative changes was left partly to the action of the Council, but chiefly to the action of the lawyers and the courts. It was by the action of the lawyers and the courts that the principles of many parts of the modern land law and the criminal law were finally settled; and the beginnings of the system of equity and of mercantile law, andThe Enacted Law

the development of the modern law of contract and tort were due wholly to it. All the courts new and old had a share in this work. The new courts and councils of this period introduced many new ideas and principles both into substantive and adjective law; and the common law was both modified and developed by its contact with these rival institutions.

In this century, therefore, as in the two preceding centuries, the story of the development of English law falls into two well-marked divisions. There is, in the first place, the development resulting from the direct action of the legislature, and, in the second place, there is the development resulting from the action of the lawyers and the courts. But in this period the latter development is more complex than it was in the preceding period. We must consider not only the developments which were taking place within the sphere of common law jurisdiction, but also those which were taking place outside that sphere. We must therefore adopt a threefold division. In the first place we must deal with developments due to direct legislative action; in the second place with developments due to the action of courts outside the sphere of the common law; and in the third place with developments due to the action of the common law courts. The first of these topics is the subject of this chapter, and the second and third arc the subjects of the three following chapters.

During this period direct legislative action might take the form either of a statute or a proclamation. But of these two forms the statutes are by far the more important. All the great permanent changes in and additions to the law were made by statute--in fact we have seen1 that it was doubtful whether a proclamation did not lose its force at the death of the sovereign who had issued it. It might therefore seem that the legal historian could safely neglect the proclamations of this period. But for two reasons this is not the case. In the first place, during the greater part of this period, the sphere within which proclamations had the force of law was, like many other points of public law, doubtful. A good deal more was done by proclamation than could be attempted after the Great Rebellion. In the second place, the proclamations, though of far less importance than the statutes, often afford indications of the general trend of legislation, and illustrations of the manner in which the law--statutory or otherwise--was applied in practice. Therefore by way of introduction to my treatment of the statutes I shall say a few words about the contents of some of the proclamations of this period.

296 Law in XVITH AND XVITH CENTS.

The Proclamations

We have seen that Henry VIII.'s short-lived Statute of Proclamations was intended to define the sphere within which, proclamations should have the force of law, and the forms under which they should be issued.1 The extant list of proclamations would seem to show that neither the enactment of this statute nor its repeal at the beginning of Edward VI.'s reign had any great effect upon either of these matters. The passing of this statute may have been a very remarkable constitutional phenomenon; but a reading of the Tudor proclamations gives us no hint of its appearance. Though, as I have said, some of these proclamations overstep the sphere assigned to them by our later constitutional law, their number is relatively small; and they are found rather at the end of the Tudor period (long after Henry VIII.'s statute had been repealed) than during the few years when it was in force. As a matter of fact the Tudors made so tactful a use of their powers in this respect that no urgent demand for a stricter definition arose.

Footnote 1: Above Ioza-Iro3.

The clear-cut theories of the first Stuart king as to the extent of his powers,2 and the attempts which he made to carry his theories into execution,3 brought this, as well as other questions of public law, to the front. In 1610 the Commons complained that "proclamations have been of late years much more frequent than heretofore, and that they are extended not only to the liberty, but also to the goods inheritances and livelihood of men by reason whereof there is a general fear conceived that proclamations will by degrees grow up and increase to the strength and nature of laws."4 Coke was consulted as to the answer to be given in this connentrance; and his answer, contained in the _Case of Proclamations_, permanently settled the sphere within which they were operative.5 He laid it down that "the King cannot change any part of the common law nor create any offence by his proclamation which was not an offence before, without Parliament;"

**THE PROCLAMATIONS** **297**

nor would the prohibition of an act by proclamation make an offence punishable in the Star Chamber, if it was not already punishable there. " But a thing which is punishable by the law, by fine and imprisonment, if the King prohibit it by his proclamation ... and so warn his subjects of the peril of it ... this as a circumstance aggravates the offence."

It was not till after the Great Rebellion that these principles were recognized by all parties as finally settling the law upon this point.1 Throughout this period we meet with proclamations which not only carry into effect existing law but also make new law. Therefore, as I have said, during this period the proclamations have an importance for the legal historian which they have at no subsequent period. I shall describe some of them under the following heads : (i) The administration of the government ; (ii) matters religious ; (iii) commercial and industrial regulations ; (iv) social life ; (v) the press ; (vi) miscellaneous.

Footnote 1: Vol. vi c. 6,

The proclamations which deal with administration form the largest group. I shall take one or two examples from some of the leading topics falling under this head.

In the first place all matters connected with the coinage were dealt with by proclamation. Numerous proclamations determined from time to time what coins should be legal tender ; " and announcements were made of new issues,3 and the rates at which they were to be received. Sometimes certain foreign coins were allowed to pass current, and the rates at which English could be changed for foreign coins were fixed.4 Thus James I. fixed the rates at which Scotch coins were to be current in England ;5 and Charles I. allowed the French coin, in which the Queen's dowry was remitted, to pass current, as, owing to the plague, it could not be reminted.6 Sometimes warning was given that foreign coin was only to be reckoned as bullion.7 The import of base coin, and the export of English currency was forbidden.8 Light coins were called in.9 The coinage was depreciated or enhanced in

### 298 Law in Xvith and Xvith , Cents.

value.1 Punishment was threatened for the circulation of malicious rumours as to the government's intentions with regard to the coinage.2 One of the last of Elizabeth's proclamations tells us of an ingenious means of meeting the need for a smaller coin than pence or three-farthing pieces. Tradesmen issued tokens of tin and lead available only at their own shops. The proclamation suppressed this practice.3 But in James I.'s reign the utility of such tokens was recognized. A patent was issued to Lord Harington to make them; and other issues were prohibited.4 But the prohibition was not effectual; and the issue brought no profit to those who tried to work the patent. We shall see that it almost ruined Malynes, an official of the mint, and the writer of the earliest English treatise upon the Law Merchant.6

Footnote 1: Tudor and Stuart Proclamations i nos. 396-397, 400 (155I); 406 (155I-1552); 547 (1560-1561); 544 (1561); 559 (1561-1562); 1254 (1619).

In the second place the proclamations dealt with all matters relating to foreign affairs. We get a proclamation announcing a declaration of war,6 and another permitting the fitting out of privateers.7 The countries with which English merchants were allowed to trade were published by this means,8 aliens were banished,9 and orders were given to prevent suspected persons leaving the country.10 We can see the beginnings of a law of neutrality in an order to English sailors not to accompany Scotch expeditions against the Portuguese, and not to commit piracy under cover of old letters of reprisal,11 in a prohibition against enlisting with foreign princes;12 and in a list of articles which were to be accounted contraband,13 The curtailment by proclamation of the right of aliens to fish in English waters14 was the occasion for the beginning of a long controversy which is immortalized in the opposing works of Grotius and Selden.15 At this period the regulation of the customs was an important branch of foreign affairs; and readjustments of the tariff in the interests of trade were made in this way.16The project.AMATIONS 299

In the third place we have a number of proclamations concerning the army and the navy. They dealt with offences committed by soldiers and sailors,\[1\] such as desertion\[2\] or mutiny,\[3\] with the embezzlement of stores,\[4\] with the enrolment and mustering of men for national defence.\[6\] One shows us that in 1588, soldiers were pressed for foreign service.\[6\] Proclamations relating to the efficiency of the army dealt with the supply of horses,\[7\] gunpowder\[8\] (for the manufacture of which the crown possessed large privileges),\[9\] and the manufacture of arms.\[10\]

In the fourth place many proclamations publish and enforce the existing statutes,\[11\] and warn officials and others to do their duty and obey the law.\[12\]

(ii) _Matters religions._

In the earlier part of this period there are a very large number of proclamations upon this topic. We can trace in them the various stages in the history of the Reformation, the settlement of the English Church, and its struggle against sectaries of all kinds.

One of the earliest of Henry VIII,'s proclamations was, " for resysting and withstanding of most dampnable Heresyes soever within this realme of the disciples of Luther and other Heretykes peruerters of Christe's relyigion".\[13\] This was published in 1528-1529; and it was followed up by another in the following year prohibiting certain heretical books, and also the translated bible.\[14\] 800 LAW IN XVITH AND XVITH CENTS. Henry's views as to what constituted heresy varied as his reign proceeded; and the progress of his views can be seen in the proclamations as to the ceremonies and the books which he allowed or prohibited. In 1535 the nation was warned that Parliament had abolished the usurped power of the Pope, and made the king supreme head of the church. The bishops and the clergy were therefore ordered to preach concerning the doctrine of the royal supremacy, and schoolmasters were ordered to instruct the children under their charge as to its meaning.1 In 1535-1536 it was recited that a sermon of the late bishop of Rochester and other objectionable books were dispersed throughout the realm, their owners were warned that they must deliver them up, and mayors and other officials were ordered to search for them.2 In 1537,3 and 1538-1539,4 proclamations were issued containing, among other things, a list of ceremonies allowed, and directing the clergy to instruct their congregations in their meaning. In 15395 certain ceremonies were denounced, preaching was restricted, and a warning was given against misinterpretation of the Scriptures. In 1541 the Feast days still allowed were enumerated;6 and in the same year, curates and parishioners were ordered to obey the royal injunction, and set up a bible in every church.7 The rapidity with which the Reformation was pushed forward in Edward VI's reign resulted in a growing disregard, not only for the laws as to religion, but also for the rules of morality. It appears that the sacrament was irreverently discussed,8 that curates, preachers and laymen introduced new rites and ceremonies into their churches,9 that wandering preachers travelled up and down the country circulating false rumours and false doctrines,10 and that it was being said that bigamy and divorce were lawful. We get also a number of proclamations as to the observance of the " political Lent," established for the benefit of the fish trade.11 Mary's reign opens with a very politic proclamation to the effect that, though the queen will maintain her own religion, she will not enforce others to conform to it till order is taken by common consent.12 But later there is an announcement that Henry IV.'s statute against heresy is revived, and a long list of prohibited books is set out, among which figures the

**THE PROCLAMATIONS 901**

\*\*prayer book of Edward VI.${}^{1}$ Elizabeth's reign opens with an order as to the prayers which may be used and the preaching which is permitted.${}^{2}$ A few months later there is an announcement that Edward VI.'s statute as to the reception of the sacrament is revived, so that communion in both kinds is now lawful.${}^{3}$ The queen's ecclesiastical policy is illustrated by a proclamation to church wardens and other church officers as to the use of the services provided in the prayer book,${}^{4}$ by proclamations directed against various protestant sectaries, including the nanobaptists and the family of love,${}^{6}$ and others directed against Jesuits and seminary priests.${}^{6}$ We get similar proclamations, but in considerably less numbers, in the reigns of James I. and Charles I.${}^{7}$

(iii) _Commercial and industrial regulations._

This group of proclamations is very large, because, as we shall see,${}^{8}$ during the whole of this period, all matters relating to external and to internal trade were minutely regulated on somewhat the same principles as those which had governed the regulation of foreign trade in the two preceding centuries.${}^{9}$

We get numerous and sometimes elaborate regulations as to the price of corn and other food stuffs;${}^{10}$ and connected with them are prohibitions of or permissions to export or import or transport grain from one place to another within the realm according to the state of the markets.${}^{11}$ One of James I.'s proclamations directed the formation of magazines of corn, that prices might be kept up in times of plenty and kept down in times of scarcity.${}^{13}$ Equally numerous were the denunciations of the forestaller and ingrosser, who were generally assumed to be answerable for either the scarcity or the high prices which might happen to prevail in

### 302 Law in XVITH AND XVITH CENTS.

particular districts.1 Similarly we get regulations as to the prices of wine,3 sugar,3 and other commodities,4 and as to the licensing of ale houses.5

Footnote 1: The _in vitro_ of the \_in vitroThe Proclamations

commercial matters out of the hands of the older communities and the boroughs, and entrust them to the Council and the justices of the peace, continued to make way with increasing rapidity.1 The Elizabeth statutes providing for the regulation of wages were enforced by proclamations of the rates prescribed by the justices;2 and, in the proclamations relating to the agricultural industry, the abuses of enclosures and the withdrawal of land from tillage figure as prominently as in the statute book.3

Footnote 1: Vol. ii 466-467; above I40, I42; below 321-324.

Footnote 2: Tudor and Stuart Proclamations i nos. 574-576 (1563); 654 (1570); 703 (1576); 862 (1593); 875 (1585); below 380-387.

Footnote 3: Vol. iii 209-211; below 365-372; Tudor and Stuart Proclamations i nos. 103 (1526); 111 (1528); 333 (1548); 353 (1549); 637 (1568-1569)--these are but a few out of the very numerous proclamations on this subject.

Footnote 4: Ibid nos. 121 (1530); I25 (1531); I32 (1533); 273 (1545); 455 (1554); 714 (1576); 977 (1603)--regulations for their transportation; I623 (1630); see below 394-396 for the statutes on this subject.

Footnote 5: Above IOT; Tudor and Stuart Proclamations i nos. 878 (1598); 840 (1591); 874 (1595); 899 (1598); 916, 917 (1600-1601); 1718 (1616).

Footnote 6: Ibid nos. 969 (1603); IOTI (1604-1605); IOTI (1607); I063 (1608); 1715 (1617) irf57 (1615); 1248 (1618); 1248 (1618); 1285 (1620); 1340 (1622); 1420 (1625); 1616 (1630); Acts of the Privy Council (1613-1614) 193-194; in 1614, enquiries were ordered as to buildings erected in London since 1603, ibid 589-591, 62-623; on the whole subject see Gardiner, op. cit. viii 287-289.

Footnote 7: Vol. ii 397.

Various aspects of the social life of the period are illustrated by these proclamations. Many of them enforce the severe statutes as to vagabonds;4 and, as we have seen, in the latter part of Elizabeth's reign it was ordered that they should be punished by martial law.6 The increase in the size of London presented grave problems to those responsible for the maintenance of the peace, and for the health and food supply of the inhabitants. Accordingly we get in this period a series of proclamations directed against new buildings in and about London.6 It is clear from their frequent repetition that they did not succeed in attaining their object. But some of them were directed to the attainment of a more feasible object--the securing of well-built and sanitary houses. They aimed, in fact, at effecting the same objects as those aimed at in London by Fitz-Alwyne's Assize of 1189,7 to which, in one of them, reference is made.8 But these regulations now come from the central government, and not from the local community; and, from this point of view, they can be regarded as the connecting link between the mediaval borough ordinance and the modern building Act.

Footnote 7: Vol. ii 397.

The increase in the size of London to which these proclamations bear witness was no doubt partly caused by the fact that the centralized government of this period was making it the 304 Law in XVITH AND XVITH CENTS.

political, the intellectual, and the fashionable centre of England. All who had ambitions of any kind flocked to London and the court. But the government found this concourse undesirable both for political and for sanitary reasons.1 Partly to secure the efficiency of the local government,2 partly to stop the constantly recurring epidemics of the plague,3 frequent proclamations were issued directing the nobility and gentry to leave London and to return to their country seats, and sometimes threatening them with punishment and loss of office in the event of disobedience.4

**THE PROCLAMATIONS 805**

Post--begins to emerge in the proclamations of this period. Governmental needs led to the establishment of regular posts between London and Dover, and between London and the North, and other parts of the country ; \[1\] and, when established, they soon became available for all purposes. At the end of the sixteenth century the riders were carrying private letters, and private persons could hire the post horses at a fixed price. In 1584-1585 strangers entering or leaving the country by way of Kent were compelled to hire the post horses.\[1\] In 1603 it was ordered that every post should enter the date of the despatch and arrival of the government packets, and the names of those by or to whom they were directed.\[3\] A little later the Crown followed in relation to this new industry the policy which it followed in many other cases.\[4\] James I. granted to a Postmaster-General a monopoly of carrying letters and packets, and all attempts to infringe this monopoly were suppressed.\[5\] The result of this new organization was a rapid development of the Post. In 1635 posts were established between London and Edinburgh, London and West Chester and Holyhead, London and Exeter and Plymouth ; and it was announced that posts were also to be established beween London and Oxford, Bristol, Colchester and Norwich. No private persons were to compete, but private messages could be sent by known carriers or by a friend.\[6\] In 1637 an agreement was made, and rates were fixed, for a post between England and France.\[7\]

(v) _The Press_.

The invention of printing created new problems for the state; and, as we might expect, the control of this new industry was immediately assumed by the crown. A proclamation of 1538 \[8\] prohibited the importation of English books printed abroad, and the printing of any English book, unless the contents had been previously examined by the Privy Council or by some person appointed by it. The publishing of any book of Scripture in English was also prohibited till it had been examined either by the king, by a privy councilor, or a bishop. Many later proclamations ordered the

### Law in Xvith and Xvitin Cents.

destruction of heretical or treasonable books, and threatened the printers, publishers, importers, or owners of such books with various penalties.1 We shall see that the Star Chamber, besides exercising a general jurisdiction in cases of libel and slander,2 made and enforced the most stringent regulations as to all matters connected with the press; and that it is to these regulations that we must look both for some of the origins of our modern law of copyright, and for the beginnings of the licensing laws. But with the history of these regulations and the origins of these branches of the law I can more conveniently deal in a later chapter.3

Footnote 98: http://www.

The STATUTES

of Merchaundizes, having been valued and priced by the commander of the Quecenes most excellent Majestie, by men expert and skillfull : and the same Lotterie is erected by her Majesties order, to the intent that such commoditie as may chaunce to arrive thereof after the charges borne, may be converted towards the reparation of the Havens, and strength of the Realme, and towards such other publique good works." The growth of the trade and prosperity of the country was marked by a growth in the size and weight of the carts used, and the rise of numbers of hackney carriages. Their appearance created for this period somewhat the same problems as the rise of the modern motor car has created for our own times, But the government, instead of improving the highways, roundly denounced those carts and carriages as nuisances.1 Their number was restricted,2 prosecution was threatened if carts were used having more than two wheels, and above a certain weight; and the use of hackney carriages was restricted.3 The fact that the eleven years of Charles I.'s prerogative rule (1629-1640) was driving Englishmen to the New World is attested by a proclamation of 1637.4 It recites that many " whose only end is to live as much as they can without the reach of authority " were going to America, and forbids all subsidy men to leave without licence from the Commissioners of Plantations, and all lesser men without a certificate from two justices of having taken the oath of allegiance, and from the minister of conformity to the established church.

Footnote 1: Tudor and Stuart Proclamations i nos. z16 (1678); 1336 (162a); 1598 (1629-r630); the reciats of a bill introduced into the House of Lords on this subject in r601 are curious; it is summarized as follows Hist. MSS. Com. 4th Rep. r16: "In consequence of the great increase in the use of coaches, the saddlers trade is like to be ruined, and not only so, but evil disposed persons, who dare not show themselves openly for fear of correction, shadow and securely convey themselves in coaches, and cannot be discerned from persons of honour, besides which, the roads are cloyed and pestered, the horses landed. In future no one under the degree of a knight or a privy councilor, Queen's counsel, etc., or paying $\\mathcal{L}$50 to the subsidy assessment, shall ride or travel in coaches, under penalty of $\\mathcal{L}$5 for every offence, and no person shall let coach, or coach horses, to any but those hereby authorized to use them, upon pain of forfeiting the same."

Footnote 2: Acts of Privy Council (1613-1614) 238-239.

Footnote 3: Tudor and Stuart Proclamations i no. r73 (1635-r636)--no hackney coach to be used except for a three-mile trip or more; cf. Gardiner, op. cit. viii 291.

Footnote 4: Tudor and Stuart Proclamations i no. r745 (1637).

Footnote 5: See the Rec. Comm. Ed. of the Statutes vol. i Introd, xxi-xxiii and App. A.

808 LAW IN XVITH AND XVITH CENTS, began to appear ; and very soon the statutes, as they were passed, were printed and published by the King's printer--a method of promulgation which, by the end of the fifteenth century,1 had superseded the mediaval machinery of writs to the sheriffs directing their proclamation and publication.2 Before dealing with the subject matter of the statutes I shall say a few words about these printed editions of the statutes. In the first place I must say something of the editions of the statutes at large ; and in the second place of the abridgments of the statutes.

Footnote 1: See the Rec. Comm. Ed. of the Statutes vol. i Introd. xxi-xxiii and App. A. Vol. i 8; vol. ii 436.

Footnote 2: Vol. i 8; vol. ii 436.

Footnote 3: Statutes (Rec. Comm.) i App. A. no. 2; there is a copy in All Souls Library ; a few leaves, discovered among the fly leaves of a volume which had been sent to the binders, are in the Bodleian (Inc. c. E 7, x (5)).

Footnote 4: Ibid no. 7.

Footnote 5: Ibid no. 11; reprinted 1514, 1519 and later; there was another edition by Berthelet in 1531, and a second part containing additional statutes by the same publisher in 1532; for the division between the Veterans and Nova Statuta see vol. ii 222-223.

Footnote 6: Statutes (Rec. Comm.) i App. A. no. 25; later editions 1540 and 1542.

Footnote 7: Ibid xxi; the commissioners say, " "It has not been satisfactorily ascertained that any complete chronological series of the statutes from Magna Carta to r Ed. III., either in their original language or in English, or that any translation of the statutes from r Edw. III. to r Hen, VII. had been published previous to this edition by Berthelet. ... This edition contains some translations, particularly of the _Dictum de Keshileworth_, not included in either of the editions of Ferrers' translations : with respect to others previous to r Edw. III. it agrees in general with the second edition of Ferrers' translation; " there is a copy in All Souls Library ; the statutes are preceded by a full alphabetical Table of Contents.

${}^{\\rm s}$ 1bid App. A. no. 3a. * Ibid no. 33

**THE STATUTES**

and it seems not unlikely that the earliest part may have been published previous to the English edition printed by Berthelet in 1543."1 In both these editions the printed statutes, as issued by the king's printers, were bound together with the collection of the earlier statutes," (iii) "The whole volume of Statutes at large " published by C. Barker in 1587." Of this edition the commissioners say that it affords the earliest instance of the term " Statutes at Large," and that its version of the statutes previous to I Henry VII. agrees in general with Berthelet's edition of 1543."

These editions, for the most part, simply reproduced the texts which had already got into print. There was no attempt to produce a corrected text by comparison with the original MSS. But at the beginning of the seventeenth century, the necessity for such a text began to be felt. This was due partly to the interest awakened in the existing condition of the statute law by the projects for its revision, which were then taking shape; 6 partly to the rise among the lawyers of a critical and scholarly school which was interesting itself in telling the history of England, and in elucidating the history of the law from authentic MS. sources.6 The outcome of this movement, so far as the statutes are concerned, was the edition of Pulton, begun in 161, when he was almost eighty years of age, published in 1618, and continued in six successive editions down to 1670.7

Footnote 1: \*\*Statutes (Rec. Comm.) i _xxii_,

Footnote 2: Ibid App. A. no. 33 n.; for the list of statutes as issued by the king's printers see ibid App. B.

Footnote 3: Ibid App. A. no. 43.

Footnote 4: Ibid i _xxiii_.

Footnote 5: Vol. i 427-428.

Footnote 6: Statutes (Rec. Comm.) i App. A. no. 47.

Footnote 7: Dict. Nat. Biog.

Footnote 8: Below 312-313.

Footnote 9: Statutes (Rec. Comm.) i _xxvii_.

Footnote 10: Statutes (Rec. Comm.) i _xxvii_.

Footnote 11: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 12: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 13: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 14: Ibid _xxvii_.

Footnote 24: Ibid _xxvii_.

Footnote 25: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 26: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 27: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 28: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 29: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 20: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 21: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 23: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 24: Ibid _xxvii_.

Footnote 25: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 26: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 27: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 28: \*\*Statutes (Rec. Comm.) i _xxvii_.

Footnote 29: \*\*Stat

### Law in Xvith and Xvith Cents.

print likewise in English. When the statute has no title he will devise a title out of the body, and print it with the statute. He will set down which statutes are warranted by the record and which not. He will correct the printed book by the record. For which purpose he -- requireth free access at all times to the records in the Tower." Bowyer and Elsyng, the keepers of the Tower Records, three some difficulties in his way ; but their opposition was overruled by the intervention of Cotton, and in 1611 the requisite access was granted by the Council.1 Pulton tells us that he had compared as many as possible of the old statutes ''as be chiefly in use '' with the original records ; and that the rest he had corrected by the help of such books as the Register of Writs, the old and the new Natura Brevium, the books of Entries, the Books of **Y**ears, and the Terms of the law.2 As the record commissioners have pointed out, the work is defective chiefly in the following points : the text in the original language is not printed, as the author had promised ; it was merely private work, and not an official edition ; it was a selection only of the statutes--the question whether any given statute excluded was repealed depending solely on the opinion of -- the editor ; and all the statutes were not copied from and examined with the original records.3 But, when these allowances have been made, it is clear that Pulton's edition was an advance upon all former editions of the statutes. He -- set a new standard to the makers of these editions, to which subsequent editors made at least an attempt to conform. We shall see that this standard was a good deal higher than that either aimed at or attained by those who edited the Reports of this period.4

Footnote 1: Statutes (Rec. Comm.) i _xxviii_.

Footnote 2: '' First, with as great means care and industry, as possibly I could use, so many of the old statutes heretofore printed in the English tongue, made and published in the reigns of the first ten kings (accounting from 9 of Hen. III, unto r Rich, III, inclusive) as be chiefly in use and practice . have been by me truly and sincerely examined by the original records remaining in the Tower of London, and the residue with the Register of Writs, being the most ancient book of the law, the old and new Natura Brevium, the Book of Entries, the Books of Years, and Terms of the Law . By reason whererd, the aforesaid defects . being reformed in this edition, as it is a collection of the most usual laws, gathered from out the Grand Codex of all the statutes, so it may serve as a correction to the former impressions,'' cited Statutes (Rec. Comm.) i _xxviii_.

Footnote 3: I did ; as the Commissioners say, loc. cit., '' It was particularly unfortunate that the author did not execute that part of his proposals which made their greatest merit, namely the giving an accurate copy of the original text of the antient statutes from the record.'' Vol. v 365-369.

Footnote 4: Vol. v 365-369.

We have seen that, shortly after the introduction of printing, abridgments of the **Y**ear \*\*Books began to appear. The earliest of these abridgments was printed in or about 1490 ;5 but still

## The Status

Earlier--in 1481 or before--a " Vieux Abridgement des Statutes " had been printed by Lettou and Machlinia.1 Its name correctly describes its character. The latest statute abridged is of the year 1455, so that it was already old when it was printed. Indeed it is not improbable that it had been for some time circulating among the legal profession in MS. In 1499 Pynson published a reprint and a continuation of this work;2 and in 1519 John Rastell 3 published a translated abbreviation of the statutes based on this old abridgment, but brought down to date.4 In 1528 two other abridgments appeared, one by Owen,5 and the other by John Rastell.6 The latter work was called " Magnum Abbreviamentum "--perhaps to distinguish it from the earlier work. An English edition entitled " The Grete Abregement of the Statutys of England untyll the XXII yere of Kyng Henry the VIII " was published by his son William Rastell in 1533.7

William Kastell 8 started his life in his father's publishing business, but he deserted it for the practice of the law. Unlike his father, he was a Catholic, and became a judge of the court of Queen's Bench under Mary. He retained this post till 1563. In that year he resigned, and died at Louvain in 1565. Probably he had retained his interest in the statutes all his life. At any rate in 1557 he published his great collection of statutes from Magma Carta down to his own day." It is partly of the nature of an edition of the statutes at large, as the enacting parts of the public statutes in force are printed nearly word for word, and in their original language. But it is more of the nature of an abridgment. The subject matter of the statutes is arranged under alphabetical headings, and the preambles, private Acts, and obsolete Acts are generally omitted.10 The book was frequently republished and

**812 LAW IN XVITH AND XVITH CENTS.**

brought up to date in successive editions ; 1 and in 1579 the Latin and French statutes were translated. 2 Indeed it seems to have largely superseded the similar works, based on his own or his father's labours, for which the activity of the legislature had created a demand in the first'half of the sixteenth century. 3

In 1560 Pulton had begun his life work upon the statutes by the publication of " An Abstract of all the Penal Statutes which be general." 4 The plan of making a collection of the statutes dealing with a particular topic had been anticipated by a collection of the statutes to be executed by the justices of the peace, published by Berthelet in 1538. 5 And it was imitated, after Pulton wrote, by Thomas Ashe of Grey's Inn--a great maker of indices and abstracts. 6 His book, called "Epieicheia," was a table of the statutes equitably interpreted by the courts, and of the cases in which this interpretation was to be found. 7 It is a curious book. It begins with a learned introduction upon equity in general, 8 and then groups the cases under twenty heads. The statutes are placed in chronological order under each head ; and after each statute are given the references to the cases. 9 It involved a great deal of labour, and can hardly have been of much practical value. Pulton's Abstract, on the other hand, was a practical and a apt titles word for word, as they be in the great statutes : only leaving out as well certaine superfluous wordes, as also the most part of the preambles. 1 Nevertheless I have (I trust) put in those preambles, without which the body of the Statutes cannot well be perceived ; " he concludes by warming the reader not to conclude hastily that all the statutes contained in the book are in force, and in any matter of importance to consult the statutes at large. 1 Above 311 n. 9. 2 Stattutes (Rec. Comm.) i _xxii_, the commissioners say that the translation was executed " with superior care and industry," that the whole was " sedulously revised from time to time, and that the editions of 1591 and 1603 are particularly carefully corrected. 3 E.g. the Great Abbrydgement of all the Statutes of England, Redman 1538 and 1540, Statutes (Rec. Comm.) i App. A. no. 27 ; the editions of Petyt and Myddylton in 1542, ibid. nos. 28, 29; the edition of T. Gaultier and T. Powell, ibid. no. 34-4 Ibid no. 38. 4 Ibid no. 26 ; "In this Book are conteyned those Statutes, which to put in Execution the Justices of the Peace, Sheriffs, baylyffes, constables, and other ministers of Justice were of late admonished by the Kynges Majestie on payne to runne into his grace's moste hyghe indignation and displeasure." 6 Vol. v. 374-375. 7 " Epieikeia et Table generall a les annales del Ley, per quel facilment trouveres tous les cases contenus in yceux, queux concerne le exposition des Statutes per Equite," 160g. 8 Thus he cites, besides various Greek classical authors, Cyprian, Bracton, Aquinas, St. Germain, Plowden, West, and several canonists and civilians. 9 A few of the heads will give an idea as to his method :--(r) Ou et queux Statutes liera le Roy et de queux il prendra avail par Equitie; (a) he deals similarly with the king's heirs and successors; (3) Ou et queux Statutes serra construe d'extender per Equite al auters persons coment quils ne sont mention ; (4)-(18) deal in a similar way with topics other than persons, such as things, place, time, number, estate, actions, process, pleading, trespass, tenure; (19) deals with the restriction of the generality of the words of statutes by equity; (20) deals with the question when a later statute will be taken to be within the equity of an earlier statute.

**THE STATUTTES**

**818**

**successful book. It was reprinted in 1577, 1594 and 1596,1 In 1606 he followed it up with a large work entitled "A Kalendar, or Table, comprehending the effect of all the statutes that have been made and put in print, beginning with Magna Carta, enacted 9 H. 3, and proceeding one by one until the end of the session of Parliament 3 R. Jacobi : showing which are repealed, expired, altered, worn out of use, made for particular persons or places, and which are general in force or use. Whereunto is annexed an Abridgment of all the Statutes whereof the whole or any part is general in force and use."2 The work thus consisted of two parts--a first part in which the statutes were arranged chronologically, and a second part in which their contents were summarized under alphabetical headings. This book was even more successful than his first. Down to 1618 it had gone through five editions.**

Both Rastell's and Pulton's works were lengthy : and they necessarily grew larger with each succeeding edition. The want of a shorter volume seems to have been felt. This want was supplied by E. Wingate--the author of books on the Justice of the Peace and the Constable.3 In 1641 he published, " Statuta Pacis ; or a Perfect Table of Statutes now in force which any way concern the office of the Justice of the Peace ;" and in 1642 "An Exact Abridgment of all the Statutes in force and use from the beginning of Magna Carta." This work was continued by W. Hughes and other writers, and was republished with the necessary additions down to 1708. It was much shorter than the other abridgments ; but it had the defects of its qualities. As Cay said, the wording of the statutes was so varied for the sake of brevity that their sense was not always correctly reproduced ; while the methods of the editors of the different editions were not always very consistent.4

Footnote 1: **Statutes (Rec. Comm.) i App. A, no. 38.**

Footnote 2: **T**bid no. 45.\*\*

Footnote 3: **C**ay's Abridgment, Pref. **Vol. vi c. 7.**

Footnote 4: **Vol. i 589-598.**

Footnote 5: **Vol. vi c. 7.**

These, then, are the principal editions of the statutes at large or the abridgments of the statutes published during this period. Of the new editions published after the Restoration I shall speak later.5 Meanwhile we must turn to the more difficult task of giving some account both of the contents of the statutes thus printed or abridged, and of the manner in which they created new, or developed old branches of English law.

I have already dealt with the constitutional aspect of the : statutes which established the : English church upon its new basis ;6 and of the statutes which made necessary changes in the

### Law in Xvith and Xvitin Cents.

judicial and administrative machinery of the state.1 These statutes therefore we can pass over, except in so far as some of their provisions affected other branches of the civil or criminal law. Of the other statutes, by far the most important is the group which deals with economic and social questions. All through this period these questions were as urgent as the religious question ; and the manner in which the Tudor kings and Parlianents dealt with them is the best proof of the wisdom of the executive, and of the political capacity of Parliament. Next in importance comes Henry V11.'s famous legislation on the subject of Uses. The remaining topics on which there was legislation of some importance are the land law ; ecclesiastical law ; criminal law and procedure ; and civil procedure. I shall deal with the legislation of this period under these heads.

Footnote 1: **Vol. i 244, 281, 296, 342, 493, 547, 550; above 137-145, 155-158.**

### Commerce and Industry

The legislation upon these topics covers a very wide field. It includes such matters as the organization of trade, foreign and domestic, the policy pursued by the state in relation to agriculture, and the regulation of the rights and duties of employers and employed ; and the legislation upon these questions is intimately related to and reacts upon many other branches of the law. Thus the regulation of foreign and domestic trade touches upon certain prerogatives of the crown which assume an increased economic and administrative importance in this period, and a new constitutional importance in the next ; and the legal solution of some of the problems created by the new economic ideas as to the conduct of trade gives rise, both to some of the rules of the law which the state enforced in the interests of social and national well-being, and to the beginnings of important branches of modern mercantile law. The agricultural policy of the state touches the land law and the land-owning class at many points, and is closely connected with the problem of maintaining an adequate food supply at reasonable prices. The regulation of the rights and duties of employers and employed resulted in the formation of a national code as to apprenticeship and conditions of employment, many of the features of which lasted till the industrial revolution of the latter part of the eighteenth century. Necessarily, both the agricultural and the industrial policy pursued by the state had important and permanent effects upon the ordering of all classes of society. It is to legislation on these topics, therefore, that we must ascribe some of the most characteristic features of the English commercial, industrial, and social life of the succeeding

## 11 Commerce and Industry 815

two centuries. It is by a study of the new ideas which it introduced into our legal system that we can see most clearly the manner in which the gradual transition from mediaeval to modern habits of thought about these matters has been effected. It is by watching the technical expression given to these changes by the lawyers that we can see how it is that mediaeval rules of law have assumed their modern form, and how it is that quite new branches of the law have arisen.

The mass of statutes dealing with these related subjects is very large; and, as is usual in an age of transition, the principles which underlie them are various. Modern ideas and institutions were arising; but they were arising from a medieval foundation; and some of the mediaeval ideas and institutions were being retained and adapted to the new order. We cannot therefore hope to understand these statutes unless we make a brief trespass on the domain of economic history, and say a few explanatory words about the economic ideas by which they were inspired.

Two main factors determined the course of this legislation in this century. In the first place there was the geographical factor, and in the second place there was the political factor. (1) The new geographical conditions removed the centre of European trade from the Mediterranean cities to the seaports which bordered on the Atlantic. " England had only been on a side eddy before, but the discoveries of the fifteenth century placed her on the main stream." As a result the foreign trade of England expanded during the whole of this century; and at the end of it she was beginning to take her place as one of the great commercial countries of Europe.1 (2) The rise of the independent territorial state, and the new relations between these states were, as we have seen, the outstanding political features of this century.2 The appearance of these phenomena naturally revolutionized men's ideas as to the principles upon which all branches of commerce and industry should be regulated. At the same time the new institutions which increased both the intensity and the efficacy of the government of these states made it possible to reorganize industry and commerce so as to give effect to these principles. The state aimed at controlling and regulating the activities of its subjects in such a way that it gained in power and strength not only within its own borders, but also relatively to other states.3 But to attain

**816 LAW IN XVITH AND XVITH CENTS.**

this ideal it is clear that all branches of commerce and industry must be carefully regulated. Their regulation could no longer be left to municipalities or leagues of merchants. It must be taken over by the state itself.

The regulation by the state of commerce and industry with this object in view is known as "'the Mercantile System." As early as Richard II,'s reign the guiding principle of this system had made its appearance; and all through the fifteenth century it had inspired much legislation on matters pertaining to external trade.1 In the sixteenth century it was extended to all branches of commerce and industry. It is the guiding principle underlying the mass of legislation upon these topics. Nor did the assumption that the activities of individuals should be thus restrained and guided to promote a political ideal appear strange to the men of the sixteenth century. The idea that a man may do as he likes with his own would have been wholly denied by mediaval lawyers and political philosophers;2 and in this respect the lawyers and political philosophers of the sixteenth century agreed with them. Property, said the Doctor and Student,3 was given by the law of man, not by the law of God or reason; and therefore "the same law may assigne such conditions upon the properties as it listeth, so they be not against the law of God nor the law of reason." Therefore the state could determine the limitations under which property could be acquired. In other words it could regulate the conditions under which all branches of commerce and industry could be carried on. The idea that there should be restrictions was old. It was the ideal aimed at by these restrictions which was in some respects new.

Footnote 1: Vol. ii 47T-472. 2 Ibid 468-469.

Footnote 3: Bk, i c. 3, "'The propertie of goods is not given to the owners directly by the law of reason nor by the law of God, but by the law of man, and is suffered by the law of reason and by the law of God so to bee. For at the beginning all goods were in common, but after they were brought by the law of man into a certain propertie, so that everie man might know his owne: and then when such propertie is given by the law of man, the same law may assigne such conditions upon the propertie as it listeth, so they be not against the law of God nor the law of reason, and may lawfully take away that it giveth, and appoint how long the propertie shall continue;"cf. Crowley, An Information to Parliament (E.E.T.S) I57, "if there were no Go1 then would I think it leaf for men to use their possessions as thei lyste."

We have seen that the ideal aimed at by the mediaval legislators and teachers was a moral ideal--honest manufacture, a just price, a fair wage, a reasonable profit.4 But we have seen that this moral ideal was less applicable to foreign trade than it was to domestic trade; and that in foreign trade the ideal aimed at was rather the material advantage of Englishmen and the English state. Thus, as we have seen, the mercantile system had already

**COMMERC AND INDUSTRY 817**

begin to inspire the legislation relating to foreign trade.1 In the sixteenth century both economic and political causes led to the extension of the influence of the ideas underlying this system to domestic trade. The growing wealth of the country was giving rise to a more elaborate organization of industry. Largely owing to the extension of foreign trade, capital was making its appearance; and persons were ready to embark their capital in new enterprises which seemed likely to be profitable to themselves.2 At the same time as wealth increased prices rose;3 and this was an additional incentive to break through the mediaeval rules, and conduct all undertakings in the manner which would return the largest profit. Traders deserted the towns in order to be freed from the restrictions and pecuniary exactions imposed on them by the gilds.4 .Landlords raised rents, or evicted their tenants and created sheep farms in order to secure the larger profits which could be made out of wool ; and labourers combined to demand higher wages.6 This desire to gain wealth, openly pursued in defiance of the old rules which regarded such self seeking as immoral, is, as Professor Ashley has said, simply a phase " of what we now call the individualism of the Renaissance." 6

Footnote 1: Vol. ii 472.

Footnote 2: Ashley, Economic History, Pt. ii 226--\*It was the new mercantile capital created by successful foreign trade, and largely in the export of cloth itself, which turned back, as it were, upon industry, and by seeking to control and direct the processes of manufacture brought about the substitution of the domestic system for the gild;" under the gild system the master employed two or three men, bought the material, made it up, and sold the product--he was shop-keeper as well as artisan; under the domestic system the master sometimes received the material from, and always sold the finished product to, a merchant, who saw to the work of distribution; this system is intermediate between the earlier gild and the factory system of to-day, ibid Pt. ii 219, 220; for some legal difficulties to which the change from the gild to the domestic system gave rise see Select Cases in the Star Chamber (S.S.) ii _xcovi-ci_ 75 seqq--in that case the trading companies of merchants at Newcastle succeeded in preventing the craftsmen from dealing in commodities other than those manufactured by them--obviously the growth of the distinction between the merchant and the craftsmen is becoming clear; the Council would interfere if members of one trade tried to encroach on the province of another, see S.P. Dom. (161-1618) 186 lxiv r--an order as to bricklayers and plasterers.

Footnote 3: The author is grateful to the anonymous referee for the support of the anonymous refereeLaw in XVITH and XVITH CENTS.

Both the preambles to the Tudor statutes \[1\] and writers on economic subjects repeated the old denunciations of covetousness and self-seeking,\[2\] but these denunciations began to look archaic and unreal now that changed commercial conditions and a changed moral outlook had caused men to abandon the mediaval ideal. Moreover these new commercial conditions and this changed moral outlook were in harmony with and to a large extent the outcome of the new political conditions of the Europe of the sixteenth century. The state must protect itself against its rivals ; and when the state proceeded to regulate all branches of industry and commerce " not as matters of right and wrong, but with a view to political expediency," it is clear that it was not the moral rectitude of a transaction, but " its bearing on the power of the state that had come to be the criterion of what was allowable." \[3\] Thus although these new regulations still used the language of the mediaval legislator, and breathed some of the spirit of the mediaval ideal, the moral aim of the mediaval legislator had to a large extent given place to the desire to secure the material power of the state. It was because the legislation of the earlier half of the sixteenth century was the legislation of a period which halted between these two ideals that it was often confused and inconsistent.\[4\] It was not until

## 6 Commerce and Industry 819

the reign of Elizabeth that the legislature clearly recognized the new political and economic conditions, and modified the medieval ideal to suit these new conditions.

This modification was rendered possible by the fact that these two very different ideals had something in common. Both the medieval and the sixteenth century legislator agreed, " that there cannot be any greater bane to a well-governed commonwealth than ill-governed and disorderly trade."1 Both agreed in denouncing the pursuit of wealth for its own sake. Both endeavoured to secure the manufacture of honest goods, skill in the workmen, fair prices, and fair wages. Both prohibited forestalling, regrating, and combinations to raise wages. Both aimed at getting a reasonable supply of labour for the various callings which were necessary to secure the health and strength of the nation. And because these two ideals had much in common, it was possible to adapt the medieval institutions to the needs of the sixteenth century. A glance at the manner in which (1) the external and (2) the internal trade of the country was organized during the period will make this clear.

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

(1) In the mediaval period, when the principal foreign trade of the country was the export of raw wool, and when this trade was largely in the hands of foreigners, it was chiefly controlled by the system of the Staple towns, and the organization of the merchants of the Staple.2 But this method of control became less effective when England became a manufacturing country, and when English merchants had begun to take into their own hands the conduct of their foreign trade.3 Hence during this period the Staple system declined 4 and its place was taken by either regulated or joint stock companies.5 The oldest of the

# 820 Law in Xvith and Xvitin Cents.

regulated companies was the Merchant Adventurers, which was incorporated in Henry VII.'s reign, and received further powers in Elizabeth's reign.\[1\] Other regulated companies were the Merchants of Andalusia (1529),\[2\] the company of merchants trading to France (1611),\[3\] and the Eastland Company (1579).\[4\] The Russia Company and the Levant Companies began as joint stock companies, and, in the earlier part of the seventeenth century, became regulated companies.\[5\] The greatest of all--the East India Company (1600)--was originally something between a regulated and a joint stock company.\[6\] Other joint stock companies to trade in parts of Africa and round Hudson Bay belong rather to the latter half of the seventeenth century.\[7\]

It was through these chartered companies that the government endeavoured to regulate foreign trade in such a way that it was beneficial to the nation as a whole. These companies were able, on the one hand, to secure privileges for their members abroad, and to give them facilities for the conduct of their business ; and, on the other hand, they were able to insist upon the maintenance of a high standard of commercial morality, of adequate prices, and of the merchantable quality of the goods sold.\[8\] Moreover the limitation of trade in these defined channels helped the government to collect the customs revenue,\[9\] to deal with international complications arising out of foreign trade,\[10\] and, as we shall see, to so regulate exports as to mitigate or prevent unemployment caused by seasons of depressed trade.\[11\] Thus although these companies were often attacked as monopolies by "interlopers" who wished to be able to trade as they pleased, they stood their ground all through this and the greater part of

## 1 Commerce and Industry 821

the following period.1 The existence of some such bodies was in fact necessary if the ideal of the legislators of this period was to be realized. And just as this ideal formed the intermediate stage between the mediaeval ideal which looked primarily at the moral aspect of commercial dealings, and the modern ideal which allows the individual to pursue his own interest in his own way ; so these bodies hold an intermediate place between the mediaeval gild and the companies and combinations of modern times. If we look at some of their external features, and at some of the purposes which they served, we can see that "'they form a connecting link between the intermunicipal trade of the Middle Ages and the world-wide commerce of modern times." 2 If we look at the internal relations of their members, and the modes in which they acted, we can see that they form a connecting link between the mediaeval gild community and the corporate societies which were spreading from Italy over the commercial world.3

Footnote 1: Acts of the Privy Council (f63-f614) 22, 378-379, 398-399; Cunningham, op. cit. ii 216-219--in f622 the commissioners of trade, after careful examination, came to the conclusion that these companies served a useful purpose ; and, under the Commonwealth, after an experience of unregulated trade, it was found necessary to revert to the old system ; Scott, Joint Stock Companies i 182-183, 272-273 ; below 351, 353-8 Cunningham, op. cit. i 47.

Footnote 4: This appears in almost every volume of the proceedings of the Privy Council ; the principle is well expressed in a letter from the Council to the Lord Mayor of London in r6or, Dasent xxxi 67-68, directing him to enquire into the reasons for the high price of coal ; he is asked to enquire because, " having charge of her Highnes of that citi and being best acquainted with the nature and course of all trades and of all commodities brought thither, (he) can best discerne the deciptes and abuses which do arise in any kinde of merchandize ;" as Cunningham says, op. cit. i 517, " The old institutions continued to be used as far as was practicable. It was the policy of the government to reorganize and recreate mysteries, or fellowships, or craft gilds in places where they did not then exist, so long as they were really kept in subject to parliamentary or judicial authority."

Footnote 5: Cunningham, op. cit. ii 303-307.

Footnote 6: 21 Henry VIII. c. rz (cables) ; 34, 35 Henry VIII. c. ro (coverlets).

Footnote 7: 24 Henry VIII. c. r SS 2 (leather).

Footnote 8: 21 Henry VIII. c. rz (cables) ; 34, 35 Henry VIII. c. ro (coverlets).

Footnote 7: 24 Henry VIII. c. r SS 2 (leather).

Footnote 8: 21 Henry VIII. c. rz (cables) ; 34, 35 Henry VIII. c. ro (coverlets).

Footnote 7: 24 Henry VIII. c. r SS 2 (leather).

Footnote 8: 21 Henry VIII. c. rz (cables) ; 34, 35 Henry VIII.

### Law in Xvith and Xviith Cents.

corporations. Thus many statutes empowered mayors or other head officers of corporate towns, constables or justices of the peace, to see the observance of the statutes relating to the quality of manufactured goods \[1\]. Similar powers were given to the gills and companies of merchants or craftsmen \[2\]; and we shall see that the statutes relating to apprenticeship put large powers into the hands of the mayors and justices \[3\].

Thus the machinery by which the external and internal trade of the country was regulated during this period had a good deal in common with the medieval machinery. But there was a fundamental difference. Seeing that the object of the legislator in this period was the increase and maintenance of the power of the state, nothing less than a national system of regulation would serve. Though some of the older agencies were used, they either were or tended to become bodies of capitalists rather than of craftsmen ; and they were employed, not to regulate commerce and industry at their own discretion and according to their own ideas, but rather to apply the statutes which Parliament had made upon these matters, and to carry out the instructions of the executive government \[4\]. It is true that upon some matters there had been general statutes from an early period \[5\], and that in Henry VI,'s reign the justices of the peace had been given some control over ordinances made by gilds and other similar bodies \[6\]. But in this period national control was largely extended. A statute of Henry VII.'s reign disallowed all the ordinances of crafts, mysteries, gilds, or fraternities unless they were assented to by the chancellor, treasurer, the chief justices or any three of

**COMMERCE AND INDUSTRY 828**

them, or by both the judges of Assize for that county in which the ordinance had been made ;1 and other statutes of this period were passed to prohibit particular kinds of oppressive conduct on the part of some of these bodies.2 Edward VI.'s legislation, which confiscated those parts of the property of these societies which were devoted to religious uses, emphasized their subordination to the state ;3 and this was still further emphasized by statutes passed to regulate particular trades.4

Footnote 1: **r9** Henry VII, c. 7, reciting the act of Henry VI., enacts that, " No maisters, wardens, and felishpipes of crafts or mysteries nor eny of them, nor eny rulers of guydles or fraternities take upon them to make eny actes or ordinaunces, ne to execute eny actes or ordinaunces be them hereafore made, in disinheritance or diminucion of the prerogatyffe of the king, nor of other, nor ageynste the comen profite of the people, but yfe the same actes and ordinaunces be examyned and approved by the Chancellor, Tresorer of Englonde and cheffe Justices of either Bench, or thre of them, or before both the justices of Assise in her cycute or progresse in that shyre where such acts or ordinaunces be made; " moreover acts to restrain persons from suing to the king or his courts are specially forbidden. It was held in Elizabeth's reign that even acts so approved might be held to be void if they were contrary to the common law, below 352 n. 7. For the importance of this statute see Ashley, Economic History Pt, ii 159-167.

Footnote 3: **r10** Henry VII, c. to--ordinance of the City of London ; i2 Henry VII. c. 6--oppressive conduct of the Merchant Adventurers ; za Henry VII. c. 4--evasions of i9 Henry VII. c. 7; 28 Henry VII. c. 5--oaths imposed upon apprentices in restraint of trade ; 2, 3 Philip and Mary c. ir--oppression of weavers by clothiers ; 3 James I. c. 9--the Fastland merchants and the skinners.

Footnote 4: **r** Edward VI. c. 14; Professor Ashley has shown, Economic History Pt. ii 145-158, that this statute was by no means destructive of gilds which existed for secular purposes ; and that the powers given to the commissioners by the Act were used fairly ; $ 7 of the act expressly exempts craft gilds--the king is to have all lands and other hereditaments belonging to fraternities brotherhoods and gilds " other than sucche corporacions guydles fraternities compares and fellowships of misters or crafts." The earlier Act of i547, 37 Henry VIII. c. 4, which dealt with this subject had expired with the king's death.

Footnote 4: **r**wo good instances are r James I. c. r6--watermen; 21 James I. c. 31--an Act creating a company of cutlers in Hallamshire and giving them extensive powers.

Footnote 5: **r**Select Cases in the Star Chamber (S.S.) i 225-226, 262--two cases on the statute r9 Henry VII, c; 7; Dasent vi 379 (1558)--misuse by the clothiers of their powers ; viii 375 (1575)--impositions levied by the town of Poole, and restitution ordered ; ix 206 (1576)--misloseds of the cloth workers company ; for action by the common law courts see Bonham's Case (1670) 8 Co. Rep. r130--as to the powers of the College of Physicians ; for action by the Chancery see r Cal, Ch. xli (Hy. VI.)--complaint of irregularity of proceedings in a court of the town of Scarborough ; lxxvii (Ed. IV.)--unjust imprisonment by the mayor of Marlborough ; ci (Ed. IV.)--oppression by an alderman of Norwich ; xciv (Ed. IV.)--oppression by the warden of the shoemakers company ; Select Cases in Chancery (S.S.) no. 42--complaints against the mayor of Southampton.

Footnote 6: **d**asent i 31 (1542)--Merchant Adventurers; xviii 45-46 (1589)--the Goldsmiths' Company.

### 824 Law in Xvith and Xvitin Cents.

disputes between officers and members \[1\] or servants \[2\] of these new trading companies; it prescribed the admission of members; \[3\] it encouraged or prohibited particular trading voyages to different parts of the world; \[4\] it exercised control over the manner in which the gills or crafts supervised the quality of the goods manufactured \[5\] and over the prices charged for these goods; \[6\] and it enforced the reasonable orders made by these societies. \[7\] In fact the same change which I have noted in the position of the older bodies entrusted with the conduct of local government was taking place in the case of the bodies entrusted with the management of commerce and industry. \[8\] They still remained. They were still entrusted with the execution of the law. But since the law was more detailed in its provisions, their sphere of independent action was curtailed; and the executive government endeavoured to secure obedience to the law. At the same time the large powers which the central government assumed over all branches of commerce and industry enabled it, by the gift of special powers and privileges, to promote new industries free from the statutory or other legal restrictions which affected the older trades. \[9\]

Though commerce and industry was thus carefully and even minutely regulated by the legislature and the Council, considerably more freedom of action was left to the individual than under the medieval regime. These new national regulations were inspired quite as much by the desire to increase the power of the state, as by the desire to do abstract justice to all members of the state. Self-interest and the desire for private gain might be very reprehensible; but they were not on that account to be merely

**COMMERCE AND INDUSTRY 825**

denounced, as the mediaval writers had denounced them. If certain of their manifestations could be so used as to lead to an increase in the aggregate wealth of the state, they ought to be so used. Where the interest of the individual and the state coincided the individual was left free to make his profit and thus to benefit the state.1 It was as much because this new system of regulating commerce and industry left more liberty to the individual, as because it introduced a new aim and a new organization, that it created so decisive a break with mediaval ideas, and led to so much confusion and suffering in the earlier stages of this period of transition.

Footnote 1: See the extracts from the Discourse of the Common Weal cited by Cunningham, op. cit, i 562.

The mediaval ideal in this, as in other departments of law and government, was impossible of complete realization. But the attempt to realize it conferred two lasting services upon the country. In the first place, it created a commercial morality. It was a time when, as Professor Ashley has said, " elementary conceptions of good and honest work needed to be driven into the general conscience by minute rules vigorously enforced; when what was required was discipline rather than spontaneity."2 In the second place it created an organization strong enough to protect the activities of the worker. Under its shadow " grew up a wide middle class of opulent traders and comfortable craftsmen."3 But it had had its day and done its work even before the beginning of the sixteenth century. Like other mediaval institutions,4 it was hindering the growth of that which it had created. Neither the mediaval ideal nor the mediaval machinery was suited to this new age. The new system, though it partially abandoned the ethical aim of the mediaval system, substituted a new ideal which was something a great deal higher than the self-interest of the individual; and the enlightened pursuit of that ideal gave a new impetus to the growth of commercial morality by widening the sphere within which its rules operated. The mediaval trader was too apt to think that the duties he owed to his neighbours were confined to those who were his neighbours in a very limited geographical sense.6 The national organization of commerce and industry gave to these duties a wider range.6 They must embrace not only Englishmen but even foreigners;

### Law in Xvith and Xvith Cents.

for unless honest work was secured the trade which was essential for the maintenance of the increase and power of the state would depart.1 If the standard aimed at was less lofty, the range was far wider and the means to secure its realization were more general and more effective. The new ideal which it enforced was a constant education in the duty of patriotism. It thus helped to consolidate the power of the state, and was therefore a factor of no small importance in the establishment of the new political order.

Footnote 1: This comes out in the preambles to some of the Elizabeth statutes; see e.g. 23 Elizabeth cc. 8, 9; 35 Elizabeth c. 10; 39 Elizabeth c. 20; 43 Elizabeth c. 10; **cf.** Dasent ix 221 (1576)--an order as to suppression of frauds in the cloth industry as these frauds, if allowed, injure the trade.

If we keep these developments in view, we shall be able, in the first place, to understand the numerous statutes which gradually established, and, in Elizabeth's reign, finally settled, commerce and industry on its new basis; and, in the second place, to see the manner in which the new economic ideas, by which these statutes were inspired, changed the shape of old principles, and introduced a number of new principles into many different branches of the law. I shall describe the provisions and effects of some of the most important of these statutes under the following heads: (1) Trade, external and internal; (2) Agriculture, the food supply and prices; (3) Employer and workman; (4) Unemployment and pauperism; (5) Classes of society.

(1) _Trade, External and Internal._

The regulation of trade, external and internal, with a view to the maintenance and increase of the power of the state took many different forms, and for that reason, gave rise to many legal developments, legislative and otherwise. The first and most important consideration was that of national defence by land, and more especially by sea. With that object all industries which promoted the shipping interest were encouraged. In the second place it was realised that, on an emergency, treasure was of paramount importance, and therefore attention was given to its accumulation and retention in England. In the third place foreign trade was promoted by encouraging the export of English, and discouraging the import of foreign manufactured goods. In the fourth place the maintenance of old and the growth of new manufacturing industries was promoted both by legislation which was designed to ensure skill in the workman and good quality in the manufactured product, and by other measures which were directed to the encouragement of new industries, and the due regulation of industries old and new. I shall deal with these developments

**COMMERCE AND INDUSTRY** . **327**

under the following heads : (i) the maintenance of an adequate system of national defence ; (ii) the maintenance of an adequate stock of the precious metals ; (iii) the promotion of foreign trade ; (iv) the preservation and regulation of industries already established, and the encouragement of the growth of the new industries ; (v) the enforcement of this commercial policy.

(i) _The maintenance of an adequate system of national defence._

Among the statutes which regulated trade with a view to the maintenance of an adequate system of national defence we must assign the most important place to those which concerned the navy \[1\]. We have seen that under the two first Tudor kings England abandoned the vain attempt to win territory upon the continent of Europe, and contented herself with becoming the holder of the balance of power between the European states \[2\]. But to maintain this position an efficient navy was the first essential. We have seen that as early as Richard II.'s reign the shipping interest had been encouraged by a prohibition of the import or export of goods in any but English ships \[3\]. Two statutes of Henry VII.'s reign, passed in 1485 and 1488-1489, provided that wine and wood should only be imported in English ships \[4\], and the later of the two required the master and mariners of the ship to be English, Irish, or Welsh. Henry VIII. took an active interest in all maritime matters \[5\]. The incorporation of the Trinity House, the beginnings of a royal navy, and the attempt to establish a naval arsenal at Deptford date from his reign \[6\]; but to raise revenue he issued many dispensations from Henry VII.'s Acts \[7\]. Parliament protested against this practice \[8\], and in 1515 the statute of 1488-1489 was confirmed \[9\]. But dispensations continued to be issued \[10\]. The result was that Parliament found it necessary to make further and similar provisions in 1531-1532 \[11\], and in 1540 to pass a more comprehensive Act \[12\]. The preamble drew attention to the paramount importance of shipping to an island like England ; and complained that the old laws which were designed for its maintenance were not observed by persons who considered only "their own singular lucre and advantage." The former laws were to be observed ; the rates of freights were fixed ; notices were to be given of the sailings of

### Law in Xvith and Xvith Cents.

ships ; and aliens were encouraged to use English ships by the remission of the customs duties affecting aliens in favour of those who complied with this condition, "This Act," says Dr. Cunningham,1 "'gives a clear statement of the political objects of the navigation acts . and the attempts to remove the practical difficulties which had rendered previous measures inoperative show a considerable advance on the laws which had been already passed." Some of these statutes were repealed in Edward VI.'s reign ;2 but in 1558-1559 a tentative return was made to some of the older ideas by an Act which offered advantages to those who used English ships, and penalized those who used foreign ship,3

Footnote 1: Op. cit. i. 49.

Footnote 2: 5, 6 Edward VI. c. 18 repealing 4 Henry VII. c. 10--the reason being, " that the saide Wynes and Woade be daylie sold at suche excessyve price as hathe not before byne sense within this Realme, and the Navy of the Realme thereby never the better maybe!,"

Footnote 3: x Elizabeth c. 13; cp. L.Q.R. xxxvii 47.

Footnote 4: 2, 3 Edward VI. c. 19.

Footnote 5: Elizabeth c. 5; some small modifications were made; by 13 Elizabeth c. 15 and 23 Elizabeth c. 7; the latter statute was repealed by 39 Elizabeth c. 10; other modifications were made by r James J. c. 29; r James l. c. 23, which gave facilities to fisher for the pursuance of their trade, was inspired by a similar aim.

In the meantime the progress of the "Reformation had shown that one of its consequences might be dangerous to the navy, The abolition of fast days meant less consumption of fish and the decay of the fishing industry. But the fishing industry was a fine school of seamanship. It was therefore protected by an Act of 1549, which introduced the " Political Lent." 4 This Act provided that on Fridays, Saturdays, Ember days, and during Lent, fish should be consumed instead of flesh.

Footnote 4: 2, 3 Edward VI. c. 19.

Footnote 5: Elizabeth c. 5; some small modifications were made; by 13 Elizabeth c. 15 and 23 Elizabeth c. 7; the latter statute was repealed by 39 Elizabeth c. 10; other modifications were made by r James l. c. 29; r James l. c. 23, which gave facilities to fisher for the pursuance of their trade, was inspired by a similar aim.

In 1562-1563 the policy of Henry VII.'s and "Henry VIII.'s statutes, and the policy of the "Political Lent, were combined in an Act entitled "certain politique constitutions made for the maintenance of the navy."6 Free export and import of fish was permitted. No fish was to be carried coastwise in foreign ships. Wednesdays and Saturdays were to be observed as fish days. Wine and woad were only to be imported in English ships. The conditions under which corn might be exported in "English ships were defined.

Footnote 7: Vol. vi c. 7.

The observance of the Political Lent was enforced down to the time of the Great Rebellion ;8 and as late as 1663-1664 it was ordered to be observed by "Prolclamation,9 But after that date it seems to have been abandoned, though the statutes which had created it remained unrepealed till the nineteenth century.9

## 6 Commerce and Industry 829

On the other hand, the statutes which required English merchants to use English ships were not strictly enforced in the latter part of the sixteenth and in the beginning of the seventeenth centuries. Under Burghley's influence the government " was more careful to encourage English merchants than to limit them entirely to English ships."1 It was seen that a strict enforcement of these statutes would mean a diminution in the amount of England's trade ; and that this would hinder the expansion of the customs revenue, and the growth of native manufacturers. James I., on the other hand, took some measures to enforce these Acts;2 and, as the century proceeded, the growth of the plantations and the encroachments of the Dutch called attention to the need to secure for English ships the Plantation trade--Charles I, in 1637 forbade the governor of Virginia to trade with Dutch ships.3 In 1651 it was clear that the Dutch had secured the largest part of the carrying trade ; and England felt herself threatened by the growth of their sea power. It was with the object of capturing this trade and of so undermining their sea power that the old policy was revived by the Navigation Acts of 1651 and 1660.4

Footnote 1: Cunningham, op. cit. ii 73, 74, " The merchants of the Staple and the Merchant Adventurers were exempted from the operation of the Navigation Act of 1559, at the time of their regular shippings ; if the higher rates it imposed on goods sent in foreign ships had reduced the volume of trade at these seasons, there might have been a serious reduction in the customs, and an inconvenient restriction of manufacturing. Cecil appears to have taken the far-seeing view that there was comparatively little to be gained by competing with foreigners for existing commerce, and that the wisiest course was to open up new markets; " cp. ibid 7o, 71; but the law was at intervals enforced ; thus in 1588 there was an order that the custom house officials should see that English goods were only shipped in English ships manned by English crews, Dasent xvi 1.

Footnote 2: Cunningham, op. cit. ii 220 n. 6.

Footnote 3: 16 Charles I. cc. 5, 23, 26.

Footnote 4: Ibid 211.

Footnote 5: Ibid 211.

Footnote 6: Ibid 28, "Whereas by the laws of this realm none of his Majesties subjects ought to be impressed or compelled to go out of his country to serve as a soulier in the wars except in case of necessitic of the sudden coming in of strange enemies into the Kingdom or except they be otherwise bound by the tenure of their lands or possessions."

These were the chief but by no means the only measures by which, throughout this period, the navy and the shipping interests were encouraged. It is quite certain that the Crown had the power to impress mariners for the navy. The statutes of the Long Parliament which provided for their impressment practically assume this.5 There is no recital in them that impressment is contrary to the liberty of the subject ; and that they would have contained such a recital, if Parliament had thought the practice illegal, is clear from the fact that it carefully inserted it in the one temporary Act which it passed to render legal impressment for the army.6 There can be no doubt that the reasoning and the conclusion reached by Foster in _Rex_ v. \_Broadfoot_7 are historically sound.

### 380 Law in XVITH AND XVITH CENTS.

Discipline was provided for by statutes passed to render more severe, and to give a wider application to, the law against the desertion of soldiers and sailors.1 The safety of the mercantile marine was provided for, by the enforcement of Henry VIII.'s measures for the suppression of piracy, and for the preservation of harbours and the erection of beacons;2 and in the interests both of the navy and of merchant shipping, Acts were passed to encourage the growth of hep and flax,3 to ensure the honest manufacture of sailcloth,4 to ensure the preservation of timber fit for ship building,5 and to encourage the importation of boards fit for the manufacture of casks.6

Footnote 1: In the case of the 1990s, the 1990s, the 1990s, the 1990s, the 1990s, the 1990s, the 1990s, the 1990s, the 1990s, the 1990s, the 1990s, the 1990s, and the 1990s, the 1990s, the 1990s, and the 1990s, the 1990s, the 1990s, and the 1990s, the 1990s, the 1990s, and the 1990s, the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, the 1990s, and the 1990s, respectively. The 1990s,

## 6 Commerce and Industry 381

ment. " During the reigns of Henry VIII. and Edward VI.," says Mr. Churchill, " when our gunsmiths were learning their business, and when the spoils of the monastic belfries were eagerly sought after by French and Flemish founders, I'arliament forbade the export of bell metal, latten, brass, and copper on no fewer than four occasions."1 In 1589 the manufacturers of ordnance were obliged to furnish returns of all guns made to the Admiral and the Earl of Warwick, and export was prohibited.2 Over the production of saltpetre the government assumed complete control,3 Though the operations of the saltpetre men employed by the crown interfered with the enjoyment of private property, they were pronounced to be legal by the common lawyers,4 and were not objected to by the House of Commons,5 because they were felt to be necessary for the defence of the kingdom. We shall see that some of these statutes, which thus regulated trade in the interests of national defence, were rendered more effective by some of the statutes relating to agriculture and to the ordering of society.6

Footnote 1: L.Q.R. xxxvii 438, citing 21 Henry VIII. c. ro; 28 Henry VIII. c. 8; 31 Henry VIII. c. 7; 2, 3 Edward VI. c. 37.

Footnote 2: Dasent xvii 142 ; Acts of the Privy Council (1613-1614) 427, 437, 487 ; ibid 446 --wood is not to be cut down and used to make ordnance for export; cp. Cunningham, op. cit. ii 58-6r.

Footnote 3: Ibid 61, 62, 290-292; cp. 21 James I. c. 3 SS to which exempted the trade in salpetre from the Act, and so preserved the prerogative of the crown in relation to it.

Footnote 4: The Case of the King's Prerogative in Saltpetre (1607) 12 Co. Rep. 12; above 299; below 352.

Footnote 5: 2x James I. c. 3 SS to; it was not till 1640 that the trade in gunpowder was freed from all restrictions by x6 Charles I. c. 21--the motive of the act was doubtless largely political.

Footnote 6: Below 364, 371-373.

Footnote 7: Vol. ii 471; for a good summary of the administrative and legislative measures on this subject see L.Q.R. xxxvii 430-434.

Footnote 8: Above 27.

(ii) _The maintenance of an adequate stock of the precious metals._

The measures taken for the production of efficient seam, and for the supply of commodities useful for national defence, would have been to a large extent nugatory if the government had not been able to command sufficient treasure to procure them easily and quickly upon an emergency. It was obvious that the government must be able to command an adequate supply of the precious metals, if it was to contend on equal terms with foreign governments. From Richard II.'s to Edward IV.'s reign statutes had been passed to prevent their export and to encourage their import.7 We have seen that Henry VIII. did not forget the moral to be drawn from the poverty of the Lancastrian kings,8 We are not therefore surprised to find that statutes of his reign continued the

### 832 Law in Xvith and Xviith Cents.

policy of his predecessors. A clause of Edward IV.'s statute, which enacted that alien merchants should employ within the realm all money which they gained by trade, was made perpetual in 1487 \[1\]. Another clause of the same statute, forbidding the export of money, plate, and jewels, was revived for twenty years by a statute of 1488-1489 \[2\] and the same clause was again revived for a like period by a statute of 1552-1553 \[3\]. This clause was then allowed to drop ; but the statute of 1487 remained unrepealed, and was enforced by proclamation in 1600 \[4\].

The cessation of this type of legislation was due to the fact that it was coming to be seen that its main object could best be obtained by another road. The direct interference with the export of the precious metals was a hindrance to trade. It was beginning to be seen in Elizabeth's reign that, if exports could be encouraged and imports discouraged, there would be a balance in favour of this country which must be liquidated in money. Thus the object of these statutes would be obtained without an undue hindrance to the trader \[5\]. In fact, just as Burghley, in order to encourage native manufactures, was inclined to relax the strict rules which confined English merchants to English ships \[6\], so he was inclined to relax the strictness of the prohibition on the export of the precious metals, because he saw that anything which added to the stock of native products saleable here or abroad, increased the wealth of the country far more rapidly than the mere storing up of treasure \[7\]. In this respect Spain was somewhat of a warning to England, "While the economic system of Spain was concentrated on the possession of treasure, the English scheme \[8\], was devised with careful thought for useful commodities of every kind, and was free from any undue hankering after bullion \[8\]. It is for this reason that the measures designed to promote foreign trade and to encourage English industries become of increasing importance all through this period.

- _The promotion of foreign trade._

At the beginning of this period foreign trade was, for the most part, in the hands of foreign merchants, The Italian bankers negotiated loans for the king and others. The Genoese, the Venetians, and the Florentines imported foreign manufactured goods \[9\], The Hanse occupied an exceptionally privileged posi

**COMMERCE AND INDUSTRY 888**

**1.** But, in the latter part of the sixteenth century, the rise of the company of Merchant Adventurers and other trading companies shows that Englishmen were beginning to take into their own hands the foreign trade of the country.2 Elizabeth found it easy to borrow from her own merchants;3 for they had begun to share in those larger financial operations from which, to use Scaccia's apt comparison, like modern alchymists, they seemed to draw wealth from the mere circulation of paper.4 The famous Sir T. Gresham is credited with the feat of delaying the start of the Spanish Armada for a year by a successful corner in bills on the bank of Genoa; 5 and it was he who was mainly instrumental in procuring the expulsion of the Hanseatic merchants and the closing of the Steelyard --their factory in London--in t578.6 Both Parliament and the crown encouraged this elimination of alien influences. It found expression both in statutes 6 and administrative acts; and, at the beginning of the seventeenth century, some of the methods employed to forward this policy were beginning to raise important questions of public law.

Law in Xvith and Xvith CENTS.

encouragement of manufactured exports, and the discouragement both of the export of raw material and of the import of foreign manufactured goods \[1\].

The wool trade was the most important branch of trade in the Middle Ages and all through this period. The series of statutes which encouraged the exportation of wool in a manufactured state had begun in Edward IV.'s reign ; \[2\] and Edward IV.'s statute was confirmed and extended by statutes of Henry VII.'s and Henry VIII.'s reigns \[3\]. Sales of raw wool for export (except to the merchants of the Staple) were forbidden until the native demand had been satisfied, and native brokers were subjected to penalties if they bought wool on behalf of merchant strangers \[4\]. Out of regard to the worsted makers of Norfolk a statute of 1514-1515 forbade entirely the export of Norfolk wool \[5\]. In 1551-1552, owing to the high price of wool, a statute was passed forbidding all sales except to manufacturers and merchants of the Staple, and forbidding the owners of wool to hold back their stock \[6\]. Statutes of Elizabeth's reign forbade the exportation of unwrought cloth \[7\], and the importation of cards used in the manufacture of wool \[8\].

We can see the same idea in many other statutes relating to other commodities. In 1529 there was a prohibition of the export of copper because its deafness was injurious to the native workman ; \[9\] and in 1541 and 1548 this prohibition was extended to all metals except tin and lead \[10\]. A statute of 1562 recited that " by reason of thabundance of forreyne warcs brought into this Realme from the parties of beyonde the Seas, the Artificers are not only les occupied and therby utterly impoverished, the youthe not trayned in the said Seyences and Exercises. But also divers Cities and Townes \[3\]. muche thereby impayred, the whole Realm greatly endangered, and other Countreys notably enryched ; \[9\] and went on to enact that a long list of foreign ready-made goods specified in the statute should not be imported \[11\]. As early as Henry VII.'s

## 6 Commerce and Industry

### Law in Xvith and Xvitin Cents.

able to restrict its own subjects from leaving the kingdom or exporting their goods.1 As the controller of foreign affairs it had by virtue of the prerogative 2 and by statute 3 powers to enforce any treaties which, it pleased to make; and these treaties often dealt with the conditions under which foreign trade could be carried on.

Footnote 1: Cf. Dyer 165b; Bates's Case (1607) 2 S.T. at p. 388 \_per_Pleming C.B. ; F.N.B. 85a says--\* because that every man is of right for to defend the king and his realm, therefore the king at his pleasure by his writ may command a man that he go not beyond the sea or out of the realm without licence; and if he do the contrary he shall be punished for disobeying the king's command. ... And also the king by his Proclamation may inhibit his subjects that they go not beyond the seas;" Dyer, loc, cit. queries this view of the law ; and the judges resolved in 1571 that, in the absence of such prohibition, a man was free to go abroad, Dyer 296a; see also an opinion of Popham C.J. to the same effect cited S.P. Dom. (1677-1678) 107, with which the attorney-general agreed.

- Dasent xxi 176, 177 (1591)--a writ to the Chief Baron and the Barons of the Exchequer to surcae an informer's action on a statute of Elizabeth, because a treaty had been made with the Netherlands that both countries should remit the duties imposed ; on the other hand, Coke cites a case of 36 Elizabeth in which some French merchants, who complained that legal proceedings taken by some English merchants were contrary to treaty rights, were told by the Council that in these treaties " the laws of either kingdom be excepted," so that they must be interpreted as subject to the laws of the country with which they were made, Fourth Inst. 153, 154.

3 Vol. ii 473-474.

4 Ibid 472-473; cf. Hall, History of the Customs Revenue i 272, 273 for instances cited from Parliament Rolls in which the commons recognized the existence of these powers by asking for their exercise.

- Henry VII. c. 7.

- 26 Henry VIII. c. to--the Act gives as a reason that without it, "'suche leages and amyties as bence concluded and had between the kynges Majestie and other foreyn kynges and Princess for the weak and tranquylyte of their Realmes ...

Footnote 1: This is a very important example of the fact that the word $\\sim$ 1000 words are not _not_ (or _not_) _not_ (or _not_) _not_ (or _not_) _not_ (or \_not

### 388 Law in Xvith and Xviith Cents.

(which contained two butts) so that the duties on both sorts of wine were made equal.1

Footnote 1: The _Tudors_ made so careful a use of their prerogative that this question was never allowed to be publicly raised in this period.3 But it is clear that if Parliament grows more jealous of its rights, and if this prerogative is welded by a less diplomatic sovereign, a legal question of first-rate constitutional importance will arise. In fact, as we shall see, it arose just four years after the Tudor dynasty had ceased to reign.4

Footnote 2: The _Tudors_ made so careful a use of their prerogative that this question was never allowed to be publicly raised in this period.3 But it is clear that if Parliament grows more jealous of its rights, and if this prerogative is welded by a less diplomatic sovereign, a legal question of first-rate constitutional importance will arise. In fact, as we shall see, it arose just four years after the Tudor dynasty had ceased to reign.4

Footnote 3: It is far from easy to classify the different English maritime expeditions during the second half of the sixteenth century. Some were mainly voyages of discovery, others were intended to open up a foreign trade, as, for instance, the voyages to Russia, to Africa, and to India. In certain cases fleets were fitted out with the avowed object.

(_c_) In the latter part of the sixteenth century, and all through the first half of the seventeenth century, it is clear that the crown favoured the settlement of Englishmen overseas. All through the sixteenth century many different grants were made to different explorers and adventurers.5 Henry VII. in 1496 empowered

**COMMERCE AND INDUSTRY** **839**

Sebastian Cabot to discover heathen lands not yet found out by any Christians; and in I502 he issued a similar grant to two Bristol merchants and others.1 The incorporation in I554 of the company called by the enormous name of "The Merchants Adventurers of England for the discovery of lands territories isles dominions and seignories unknown, and not before that late adventure or enterprise by sea or navigation commonly frequented," is the origin of the Russia Company;2 and in Elizabeth's reign there are many licences to explorers such as Gilbert, Frobisher, Drake, and Raleigh to discover new lands.3 But permanent settlements were not made before the beginning of the seventeenth century--Gilbert's expedition to Newfoundland in I583,4 and Raleigh's expeditions to Virginia and Guiana from I584 to I595,5 had failed. During the first half of the seventeenth century, part of the eastern coast of America, and parts of the West Indies were colonized, either by means of chartered companies, or by means of proprietors to whom the crown made grants. The African company had a factory at Gambia, and the East India Company had factories at Surat, Madras, and Hooghly.6

Footnote 1: Carr, Select Charters of Trading Companies (S.S.) xxviii, xxix.

Footnote 2: Ibid xixix-xxxxiv; Scott, op. cit. ii 36 seqq.

Footnote 3: Ibid 241-245; Carr, op. cit. xxxvi-xxviii.

Footnote 4: Scott, op. cit. ii 243.

Footnote 5: For a tabular list of the names and dates of the various settlements made by plantation companies, trading companies, or by proprietors, see Cunningham, op. cit. ii 332 n. i; and see generally Scott, op. cit. ii 246-337 ; Carr, op. cit. Ixoxiii-xcii.

Footnote 7: Cunningham, op. cit. ii 335-

Footnote 8: Ibid ii 344-346.

Footnote 9: Ibid ii 348 ; vol. iii 304; below 398. Bacon did not approve of using colonies for this purpose, Spedding, Letters and Life vi 2x.

Footnote 10: Cunningham, op. cit. ii 336-338, citing the charter to Virginia granted in I506.

Footnote 11: Ibid ii 339, 341; above 307.

The motives of these very various settlements were various. "Political aims were kept in view in all the schemes for colonizing beyond the Atlantic. It was hoped that these plantations would tend to restrict the over-weening power of Spain in the **N**ew World, and might even serve as a basis for attacking it."7 It was seen too that they afforded an outlet for surplus population;8 and later it was found that they could be used as places to which criminals or other undesirables could be transported.9 And these political motives were connected with two different religious motives. The Plantation of Virginia was designed in part to spread the Christian religion;10 and the later settlements in New England and elsewhere were designed to provide a country in which the settlers could freely worship in their own way.11 But, as Dr. Cunningham has pointed out, the main impulse towards

### 840 Law in Xvith and Xvith Cents.

colonization was economic.1 Capitalists found that they could profitably invest money in the cultivation of the West Indies and the southern parts of North America. The produce thus obtained made Englishmen less dependent upon foreign nations ; and English shipping was encouraged. James I. and Charles I. prohibited the import of foreign tobacco and the growth of English tobacco in order to encourage the colonial product ;2 and in order that English shipping might be benefited, the Council foreshadowed the policy of the later Navigation Acts by endeavouring to restrict the Virginia tobacco trade to English ships.3

Footnote 1: Op. cit. ii 342.

Footnote 2: Above 302 ; but both James and Charles warned the colonies that the protection given to tobacco was only temporary, and till they could found other industries, Cunningham, op. cit. ii 356-358.

Footnote 3: Ibid ii 343 n. 3, 359.

In this period, then, a good start in the direction of colonization has been made. As yet it was developed by the crown and not by the legislature. But both the economic motives which induced the crown to encourage it, and the measures taken to make the colonies a source of economic strength to the mother country, foreshadow the legislation of the following period.4

Footnote 4: Nobody 302 ; but both James and Charles warned the colonies that the protection given to tobacco was only temporary, and till they could found other industries, Cunningham, op. cit. ii 356-358.

(iv) _The preservation and regulation of industries already established, and the encouragement of the growth of new industries._

At the beginning of this period England was mainly an agricultural country ; and it continued to be mainly an agricultural country till the end of Elizabeth's reign. But, from an early period, the government had been quite alive to the advantages to be gained from fostering native industries, and encouraging the growth of new industries. From the beginning of this period this policy had been actively pursued. In order to preserve industries already established measures were taken to secure skill in the workman and good quality in the manufactured product. In order to encourage the growth of new industries measures were taken to offer inducements to Englishmen and foreigners to set them up in this country. The first set of measures was mainly statutory. The second mainly rested on the prerogative ; and just as the manner in which the prerogative of adjusting tariffs was used raised questions of public law, so the manner in which this prerogative was used raised similar questions at a slightly earlier date.

(a) _The measures taken to secure skill in the workman and good quality in the manufactured product._

The rules and regulations of the mediaval gilds had generally provided for the possession of skill in the workmen by imposing

## 6 Commerce and Industry 841

varying terms of apprenticeship.1But the decay of the authority of the gilds, and the migrations of industry from the towns, had in some cases rendered the old rules ineffective, and had created a need for general and national regulations. In i55 I the clothiers complained that the merchant adventurers would not give a fair price for their cloth. The answer was, partly that the market was overstocked, partly that the cloth was of bad quality. " As long as evereic man that wolde," it was said, " had liberty to be a clothier, as they have nowe, it was impossible to have good cloth made in the rheame . . wherefore it was concluded that some devise shulde be had for a lawe that none shulde meddle with cloth making but such as had been pretises to thoccupacion."2 In fact throughout the earlier part of this century definite terms of apprenticeship had been fixed by statute for particular trades.3 It was not, however, till i562-i5634 that a general statute was passed which not only regulated the conditions of apprenticeship for several of the most important industries of the country, but also attempted to settle the relations between employer and employed, and the relations between the agricultural and manufacturing industries. To the provisions of this statute upon these two latter topics I shall return later. Here I shall deal with the clauses dealing with apprenticeship.

Footnote 1: See on the whole subject of the older rules, and their relation to the Act of Elizabeth and later practice, Some Aspects of Early English Apprenticeship, by Miss Dunlop, Royal Hist. Soc. Tr. (Third Series) v rq3-z08,

Footnote 2: Dasent iii 19, 20 (155I).

Footnote 3: E.g., 5 Henry V11I, c. 4 (worsted), made perpetual 25 Henry V11I. c. 5 ; 5, 6 Edward VL. c. 8 (woollen cloth), and c. 24 (hats) ; 2, 3 Philip and Mary c. 11 SS 7 (wevers) ; r, 2 Philip and Mary 2 c. 14 SS 2.

The term of apprenticeship, borrowed from the "custom and order of the city of London," was fixed at seven years ; 6 and all contracts of apprenticeship made otherwise than in accordance with this Act were declared to be void.4 Such contracts were declared to be binding upon minors.7 Householders in cities and towns corporate, being over the age of twenty-four, and " using or exercising any art, mystery, or manual occupation," were allowed to take as apprentices the son of any freeman, provided he was not occupied in husbandry or a labourer.8 Householders in market towns not corporate were allowed, under similar conditions, to take as apprentices the children of other artifcers.9 Different provisions were made for those " exercising any of the mysteries or crafts of a merchant trafficking by traffic or trade into any parts beyond the sea, mercer, draper, goldsmith, ironmonger, embroiderer, or clothier that cloth or shall put cloth to making or sale." They could only take as apprentices their sons or the

### 342 Law in Xvith and Xvith Cents.

children of those who had land to the yearly value of forty shillings, if the master was resident in a city or town corporate, or to the yearly value of _$3_ if he was resident in a markettown.1 For certain other trades this property qualification in the parent of the apprentice was not required.2 For cloth weavers the property qualification of the parents was, with certain exceptions, always to be _$3_.3 Powers were given to the officers of cities and towns to compel suitable persons, if minors, to bind themselves apprentices; and the justices of the peace were given large powers to settle differences between master and apprentice, and to discharge apprentices.4 It was, however, mainly through the machinery of the older gilds and newly constituted companies that the measure was enforced; and it was to their efforts that it owed its success.6 Its working gradually diffused throughout the country the custom of a seven years' apprenticeship, which lasted till the legislation of the early years of the nineteenth century; 6 and, though the fact that it was administered by the established authorities in each particular trade may have modified in practice some of the provisions of the Act,7 it ensured an intelligent administration of the Act as a whole, because it was largely founded on the older rules and practices familiar to these authorities.

Footnote 1: SS8.20, 22.

Footnote 2: SS8.23. Smith, wheelwright, ploughwright, carpenter, rough mason, plasterer, sawyer, lineburner, brickmaker, bricklayer, tyler, slater, healyer, tile maker, linen weaver, turner, cooper, miller, earthen potters, woollen weaver weaving housewife's or household cloth only and none other, cloth fuller, thatcher, or shingler.

Footnote 3: SS25.

Footnote 4: SS8.25. Royal Hist. Soc. Tr. (Third Series) v 203, 204.

Footnote 5: Cunningham, op. cit. ii 35, 658-667; 54 George III. c. 96.

Footnote 7: SS2.6 though apprenticeship was, according to the statute, the only way by which a man could enter a trade, the companies very generally recognized also the right of patrimony, i.e. that the eldest son should be entitled to freedom of the trade on attaining twenty-one, and generally on payment of lower fecs, Royal Hist. Soc. Tr. (Third Series) v 206, 207.

Footnote 8: SS3 Henry VIII. c. 6; 27 Henry VIII. c. 12; 3. 4 Edward VI. c. 2; 5, 6 Edward VI. c. 6 and 22; 8 Elizabeth c. rz; 35 Elizabeth c. rz; 35 Elizabeth c. rz; 36 Elizabeth c. 20; 43 Elizabeth c. rz; 37 James I. c. 7; 21 James I. Elizabeth c. rz; 38.

Footnote 9: Henry VII. c. rz; 3 Henry VIII. c. 10; 24 Henry VIII. c. rz; 2, 3 Edward VI. c. rz; 11; 12; 09; 5 Elizabeth c. 8; 1 James I. c. 32--an elaborate act which repelated Elizabeth c. 8; 4 James I. c. 6; 7 James I. c. 16.

Footnote 10: SS7 Elizabeth c. 8; 5 Elizabeth c. rz; 11 8 Elizabeth c. rz; 12.

Footnote 13: SS5 Henry VIII. c. 4.

**COMMERCE AND INDUSTRY 848**

goods,${}^{1}$ coverlets,${}^{5}$ cables,${}^{3}$ barrels,${}^{4}$ articles made of pewter,${}^{5}$ pins,${}^{6}$ wax,${}^{7}$ and the dyeing${}^{8}$ and painting industries${}^{9}$; and they often conferred enlarged powers upon the companies entrusted with the supervision of the particular industry. The earlier statutes were perhaps passed with an eye chiefly to the interests of the English consumer, and the internal trade of the country. But in Elizabeth's reign and later they were passed quite as much with the object of encouraging the consumption of English manufactured goods by foreigners, and of thus increasing the export trade of the country.${}^{10}$ We have seen that one of the advantages of confining foreign trade to the regulated or joint stock companies was the supervision which they were able to exercise over the quality of the goods exported. They helped, it was argued, to maintain the reputation of English goods in foreign markets.${}^{11}$

(b) _The measures taken to encourage the growth of new industries._

It was only very occasionally that Parliament intervened to encourage the founder of a new industry by the grant of statutory privileges. Perhaps the only instance is to be found in a statute of i 554.${}^{12}$ The statute recites that certain citizens of Norwich, at their great costs and charges, had introduced the manufacture of satins and fustians of Naples; and that consequently those articles were sold at cheaper rates than in foreign countries. It then enacts that these persons shall be incorporated as a fellowship, with the right to choose wardens to survey the manufacture (which is to be carried on only at Norwich), and to make ordinances for the same. The usual method by which this object was effected in the latter part of the Tudor period was the grant of a patent of monopoly; and therefore of the history of these monopoly patents I must say a few words.${}^{13}$

${}^{1}$ I! Henry VII. c. rq ; 5, 6 Edward VI. c. 23.

${}^{2}$ 34, 35 Henry VIII. c. 10.

${}^{4}$ 23 Henry VIII. c. 4.

${}^{5}$ 43, 35 Henry VIII. c. 6,

${}^{7}$ 23 Elizabeth c. 8.

${}^{8}$ 24 Henry VIII. c. 2; 32 Elizabeth c. 9.

${}^{10}$ E.g. 23 Elizabeth c. g recites that cloth has been dyed with logwood, and that cloth so dyed is sold not only "to the great deceit of the Queen's loving subjects within this her realm England, but also beyond the seas, to the great discredit and slander as well of the merchants as of the dyers of this realm ; " and cf, 7 James I. c. 14--the trade of the horners ; for other instances see above 326 n. r; cf. Dasent ix. 22x (i576)--an order as to frauds in the manufacture of cloth which are bad for trade ; ibid xxxi 387 389 (r60r).

${}^{11}$ Above 320; Cunningham, op. cit. ii 239, 240.

${}^{12}$ I, a Philip and Mary c. t4 ; L.Q.R, xii 144, 145.

${}^{13}$ On this topic see generally Hulme, History of the Patent System, L.Q.R. xii i4I, xiii 373; Scott, Joint Stock Companies i chap, vi ; Carr, Select Charters of Trading Companies (S.S.), Iv-loxi.

### Law in Xvith and Xvith Cents.

From the earlier half of the fourteenth century there are signs that the crown was alive to the advantages which would accrue from the establishment of native manufactures. Wool was the staple commodity produced at this period; and the quality of the English wool made it as indispensable to the manufacturing cities of Flanders and Italy as Welsh coal was to foreign navies before the introduction of oil fuel.1 Thus it is not surprising to find that the earliest attempts to establish native manufactures were in connection with wool. In i33I the king granted to John Kempe of Flanders and his companions letters of protection in consideration for teaching his subjects their methods of weaving, and promised to all other wearers, dyers, and fullers who came to England from abroad with the same object the same protection;2 and this grant was confirmed by statute.3 Throughout the fourteenth and fifteenth centuries there are instances of similar grants in favour of the woollen and other industries;4 and statutes of Henry VI.'s and Edward IV.'s reigns, which were passed to encourage the native producer by prohibiting the importation of certain ready-made wares,5 perhaps show that this policy was not altogether unsuccessful. The validity of such grants, if it could be shown that they were clearly for the welfare of the realm, was recognized by the medieval lawyers.6

Footnote 1: Thus in 1490 the Venetians were much perturbed because the Florentines were urging the king of England to establish a wool staple at Pisa, see Calendar of State Papers (Venetian) i x85.

Footnote 2: F. W. Hulme, History of Patent System, L.Q.R. xii i42.

Footnote 3: F. Edward III. c. 5, " All cloth workers of strange lands, of whatsoever country they be, which will come into England, Ireland, Wales, and Scotland, within the king's power, shall come safely . . . and shall be in the king's protection and safe conduct, to dwell in the same lands, choosing where they will; and to the intent that the said Clothworkers shall have the greater will to come and dwell here, our sovereign lord the king will grant them franchises as many and such as may suffice them,."

Footnote 4: L.Q.R. xii i43; Carr, Select Charters of Trading Companics (S.S.) lvi.

Footnote 5: Vol. ii 471-472.

Footnote 6: Y.B. Ed. III Pasch. pl. 8 (ff. 17, 18), " Et isisint _mota_ que artificers ou sciences queux sont pur le publike bien, sont grandement favore en le lcy etc. Et auxy le Roy come chiefe gardain del common vele ad power et auctority per son prerogative, de graunter mult des privileges par le pretence d'un publike bien, comment que (_prima facic_) il appriterent encontre comen droit; " but if clearly contrary to public policy they would not be upheld, see e.g. K.P. 50 Ed. III. no. 33 (ii 328), where the grant of the sole right to one Peachey to sell wine in London was treated as clearly illegal, and his conduct in acting under it was made one of the articles of his impeachment; it is clear from the Y.B. cited, and from Y.B. z Hy, V. Pasch. pl. z6 (vol. ii 468 n. 3) that the judges regarded as contrary to public policy contracts and special privileges which imposed restraints on trade unknown to the common law; it is true that many of the privileges which had been conferred on the boroughs by royal charter often operated to restrain trade; but these grants were hallowed by time and recognized by the law; moreover they were intimately bound up with the jurisdictional and governmental privileges of the boroughs, and were therefore regarded as standing on a different footing, below 346 n

**COMMERCE AND INDUSTRY 345**

We occasionally meet with similar grants in the early part of the sixteenth century.1 But during this period the Tudors seem to have adopted the plan of " entering into secret negotiations for the purpose of attracting skilled foreigners into its own service." Instances are " the introduction of German armourers, Italian shipwrights and glass makers, and French ironfounders." It was not till i561 that the new system of granting " industrial monopoly licences" was introduced. It is to this system we must look for the origins of our modern patent law.

Footnote 1: Dasent ii rog (1547)--an importation of foreign wexers, " which shall teach men the art of making poladivas; " ibid iii 415, 509-510 (r551)--foreign worsted makers introduced at Glastonbury by the Protector Somersct,

The earliest instances of these industrial monopolies are, as we might expect, to be found in Italy. They were known in Venice about the year i500, and followed, Mr. Hulme says, " close upon the heels of printers' copyrights." From Italy they were introduced into the Netherlands, and from thence into England.3 It was a naturalized Italian, by name Acontius, who first suggested the adoption in this country of this method of rewarding inventors.4 The essence of these grants of industrial monopoly licences was this :--In return for the introduction of a manufacturing process, formerly unknown in this country, the introducer was granted a monopoly of using that process for a specified length of time. The aim was to introduce into this country " those industries the products of which had hitherto figured most prominently on the lists of imports."5 Hence there are often clauses aimed at binding the grantee to introduce his process within a fixed period, to employ and teach English subjects, and sometimes to manufacture a certain minimum quantity within a given period.6 The grant did not create a monopoly of selling, but of manufacturing the product. It is not till much later that the exclusive right of sale comes to be regarded as the essence of the grant.7

Footnote 1: I.,Q.R. xii r44; James I, said in his Basilicon Doron, Works i64, " take example by England, how it hath flourished both in wealth and policie, since the strangers craftseme came in among them : therefore not only permit, but allure strangers to come here also ; taking as strait order for the repressing the mutining of ours at them, as was done in England, at their first bringing there."

Footnote 3: Ibid xvi 44.

Footnote 4: Ibid xii r48, r51; Carr, op. cit. lvii.

Footnote 5: L.Q.R. xii r52, r53.

Footnote 7: L.Q.R. xii r53, " the exclusive right of sale, which is supposed to be the kernel of the patent grant, is in point of fact subsequent to and derived from the sole right of manufacture. .

### 346 LAW IN XVITH AND XVITH CENTS.

important respects. In the first place the privileges granted to these boroughs and gilds were commercial rather than manufacturing privileges.1 In the second place they represented the medieval order of political and commercial ideas, according to which the details, both of local administration and of the ordering of trade, was the affair of self-governing communities.2 The lawyers expressed an historical truth in technical form when they ruled that, though these privileges would have been invalid if newly granted by royal charter, they could be justified by custom.3

Footnote 1: L.Q.R. xili r53 n. r1; Darcy v. Allin (r50a) Noy at p. r82, " it is a monopoly _cum genes vestrum potestas vendendi sit_. But when there be many sellers, although they be all free of one company, as goldsmiths, clothiers ... and such like who have settled governments, and wardens and governors to keep them in order, they were never accounted a monopoly, which the statute anno 5 Eliza. in some sort proved, because in many of these trades all persons are prohibited to use the same, but only such as have served in the same trade seven years as an apprentice."

Footnote 2: Vol. ii q03-404.

These grants also differed from the mediaeval grants of special privileges to those who introduced a new industry,3 in that they created a monopoly ; and as the system developed, they came to differ from them in another important respect. In the middle ages the crown made the grant and kept the privileged industry under its sole control. Under the new system the patentee applied for the grant, and, having got it, was left free to act under the powers conferred by it.4

Footnote 3: City of London's Case (r60) 8 Co. Rep. at p. r82, " It was resolved that there is a difference between such a custom (that no foreigner shall keep a shop or use a trade in London) within a city, and a charter granted to a city to such effect; for it is good by way of custom, but not by grant ; and, therefore, no corporation made within time of memory can have such privilege, unless it be by Act of Parliament."

Footnote 4: Above 344.

This latter distinction began to be important when the monopoly system began to be abused by the grant to persons, who had introduced nothing new into the country, of all kinds of commercial privileges, oppressive powers to enforce these privileges, and dispensations from the existing law. When, under the older system, the crown made a grant for the purpose of establishing a new industry, and kept that industry under its own control, it might be contended that it was for the crown alone to decide not only what grants should be made, but also any disputes which arose from the acts of the grantee in pursuance of the grant. But when these extensive and miscellaneous grants were made to private persons on their own application, and when these private persons abused the powers conferred on

**COMMERCE AND INDUSTRY** **347**

them, those who suffered naturally wished for a better remedy than an appeal to the authority from which they had emanated.

Of the magnitude of the evils caused by these inconsiderate grants to all classes of the community there can be no question.1 Hindrance to trade and manufacture, high prices, inferior goods, and all kinds of oppression were the natural consequence. And, while court favourites were rewarded by patents which enabled them to control the manufacture of or the trade in the common necessaries of life, really meritorious inventors were unable to obtain protection.2 Mr. Hulme's analysis of the grants submitted to the committee of grievances in 1601 shows that there were fifteen dispensations, " including licences (_a_) to traffic in forbidden articles, (_b_) to perform acts prohibited by penal statutes, and (_c_) offices delegating to an individual the dispensing power of the crown in respect to a given statute;" that there were seven copyright patents; and that there were seven industrial monopolies.3 All these patents having been granted by the crown, were protected by the prerogative; and those who protested were rcgarded by the Council and Star Chamber as wanting in proper respect to the queen.4 Even members of Parliament were rebuked in 1571 for questioning them.5 But in 1597 the prevalent industrial depression caused renewed attention to be drawn to them. The queen in dismissing the Parliament said that she hoped that her subjects would not take away her prerogative, and promised that all the patents should "be examined and abide

### 348 Law in XVITH AND XVITH CENTS.

the trial and true touchstone of the law."1 But very little seems to have been done, and, in at least one case, an action at common law, in which the validity of one of these patents would have come into question, was stayed.2

Footnote 1: D'Ewes 547 ; cf. Carr, Select Charters of Trading Companies lvv ; Scott, op. cit. rog-106.

Footnote 2: A Carr, op. cit. lxvi ; below 349 n. z.

Footnote 3: D'Ewes 644-65u, 652-654.

In i60i the House of Commons again took up the question ; and this time it was found impossible to shelve the discussion. A bill dealing with the matter was introduced; and it is clear from the debates upon it that it raised all sorts of questions as to the power of the crown to make these grants and dispensations, and to grant privileges to trading companies ; and that it even raised questions as to the nature of the prerogative and its relation to the law.3 "Two great things," said Cecil,4 " had been drawn in question : first the Prince's power ; secondly the freedom of Englishmen." And it was inevitable that these questions should be raised. Those aggrieved by these patents had long thought, and thought with some justice,6 that the common law did not warrant these infringements of liberty to trade, from which the public not only drew no advantage, but were actually damaged.

Footnote 4: D'Ewes 644-65u, 652-654.

Footnote 5: Above 344 n. 6; cf. the precedents cited in Noy's Rep. at pp. t82-t83 ; Co. Third Instit. chap. lxxxx; as early as t577 it appears that the Queen's Bench and Common Pleas had been releasing those imprisoned for infringing the monopoly of the Spanish Company, which had called forth an order from the Council to desist, Dasent x 37-38.

Footnote 6: Cecil said in his speech, D'Ewes 653, " I have heard myself, being in my coach, these words spoken aloud, God prosper those that further the overthrow of these monopolies, God send the prerogative touch not our liberty."

Such questions as these the Tudors had always managed to evade. But now popular feeling both in and out of Parliament was running so high that it seemed impossible to pursue this policy of evasion,6 Elizabeth achieved the seemingly impossible when she secured the abandonment of the bill by a promise to leave the validity of the patents to the judgment of the common law.7 She never won a greater diplomatic triumph. By abandoning her claim to settle by the prerogative all questions relating to these grants, she shifted the odium which arose from their abuse from the prerogative to the patentees ;8 and, at the same time, as the discussions in the law courts must turn to a large extent upon the facts of individual cases, far-reaching Parliamentary discussions of the nature of and the limitations uponCommerce and Industry 849 the royal prerogative were avoided. The prerogative remained with no new statutory limitations imposed upon it.

The common law was thus called upon to settle a delicate constitutional question,1 of vital importance to the trade of the country. It arose for discussion in connection with Darcy's patent for the importation of playing cards, which had for many years been maintained by the Council with much difficulty.2 As late as 1603 actions against Darcy were prohibited.3 But the common law courts got their opportunity when Darcy himself took the offensive and sued Allen for infringing his patent.

Footnote 1: Dodderidge, arguing for the defendant in Darcy v. Allen, "dit que le case fuit tender concernant le prerogative del principe et liberty del subject, et duissait estre argue owe bone caution," Moore at p. 672.

Footnote 2: Dasent x 434-435 (r578); xi 172 (r579), 430 (r58o); xviii r86 (r58q); xxxi 55, 333-336 (r60o-160f); ibd $46?348, xxxi 237 (r60r)--an action at law stayed; xxxii 497 (r603)--a similar order.

Footnote 3: Ibid xxii 497; cf. Carr, op. cit. lxvi.

Footnote 4: The Case of Monopolies (f60a) ir Co. Rep. 84b-88b.

Footnote 5: Darcy v. Allen, Moore K.B. 677-675.

Footnote 6: Darcy v. Allen, Noy 173-185--this is a report of Fuller's argument for the defendant; for a critical account of the case see Gordon, Monopolies by Patent 193-232.

The importance of the case is evidenced by the fact that it is reported by three reporters--Coke,4 Moore,5 and Noy.6 The facts upon which the action arose were as follows :--The queen had granted the sole right of importing playing cards to Bowes. Afterwards she made a similar grant to the plaintiff. The defendant, a haberdasher of London, sold cards in contravention of this grant. The plaintiff brought an action on the case against him. The defendant demurred, and the court upheld the demurrer. All the judges were unanimously of opinion that a monopoly was prima facie against the common law, statute law, and the liberty of the subject. " The sole trade of any mechanical artifice, or any other monopoly, is not only a damage and prejudice to those who exercise the same trade, but also to all other subjects, for the end of all these monopolies is for the private gain of the patentees; and although provisions and cautions are added to moderate them . . it is mere fully to think that there is any measure in misheif and wickedness : and, therefore there are three inseparable incidents to every monopoly against the commonwealth, i.e. (1) that the price of the same commodity will be raised . . (2) the second incident . . is, that after the monopoly granted, the commodity is not so good and merchantable as it was before . . (3) it tends to the impoverishment of divers artificers and others, who before, by the labour of their hands in their art or trade, had maintained themselves and their families, who will now of necessity be constrained to live in idleness and beggary."7

## 850 Law in Xvith and Xvith Cents.

The court followed the principles of the mediaval common law that prima facie trade must be free, and that that freedom could only be curtailed by definite restrictions known to and recognized by the common law.1 But it is hardly necessary to say that freedom of trade did not mean to Coke and his fellows what it means to an economist or a politician of to-day. The freedom they meant was freedom from arbitrary restraints not recognized by the law; but this was quite consistent with considerable restrictions of that freedom whenever it was desirable in the interests of the state that it should be restricted.2 In fact the attitude of the courts to the maintenance of the freedom of trade was somewhat analogous to their attitude to the maintenance of the freedom of alienation. In both cases freedom was the rule. In both cases no individual caprice should be allowed to interfere with that freedom. But in both cases public policy demanded that the law should permit exceptions. We have seen that the mortmain laws represented one of these exceptions to freedom of alienation: 3 we shall see that the growth of the rule against remoteness of limitation represented another.4 Similarly the powers of the chartered boroughs, and the prerogatives of the crown to act for the commercial interest of the nation represented limitations upon the freedom of trade, which in the interests of public policy, the law recognized. Now if these principles were applied to these grants of monopoly, it is clear that some of them were wholly indefensible. It was contrary to public policy that prices should be raised, that the quality of goods should be deteriorated, and that workmen should be thrown out of work merely to benefit a favoured individual. On the other hand, others were defensible on the ground that the crown in making them was acting in the commercial interests of the nation.

Footnote 1: Above 344 and n. 6.

Footnote 2: Obviously these interests varied, and with them varied the character of the restrictions; thus privileges of exclusive trade with Spain, Portugal, and France had been given to the company of merchants trading to those parts, but in f605-f606 this trade was thrown open, 3 James I. c. 6, without prejudice however to the privileges of the Merchant Adventures of Exeter trading to France, 4 James I. c. 9. In Attorney-Gemeral of the Commonwealth of Australia v. Adelaide Steam Ship Co. Ltd. \[1973\] A.C. at pp. 794-795 Lord Parker does not sufficiently clearly distinguish between the very different meaning which the expression 'freedom of trade' had in the sixteenth century from that which it has in our own day.

Footnote 3: Vol. iii 86-87.

It would appear from the reports of _Darcy_ v. _Allen_, from other cases, and from the debates in Parliament, that the grant of a monopoly patent might be defensible on some one of the following grounds:--

(i) It might be justified on the ground that the grantee had introduced a new invention into the kingdom and had thereby

**COMMERCE AND INDUSTRY 851**

created a new industry. Fuller, who argued for the defendant, expressly admitted this : "Now therefore I will shew you how the judges have heretofore allowed of monopoly patents, which is, that where any man by his own charge and industry, or by his own wit or invention both bring any new trade into the realm, or any engine tending to the furtherance of a trade that never was used before : and that for the good of the realm : that in such cases the king may grant to him a monopoly patent for some reasonable time, until the subjects may learn the same, in consideration of the good that he doth bring by his invention to the commonwealth : otherwise not." 1 Bacon 2 and Coke 3 were of the same opinion. The consideration for the grant of a monopoly was therefore, as Mr. Hulme has pointed out, not the disclosure of the patentee's secret, but the furtherance of trade ;4 and it is for this reason that small improvements upon existing processes were not regarded as fit subjects of a grant.5

(2) Various restrictions on trade might be justified on the ground either (_a_) that, " true trade and traffic cannot be maintained or increased without order or government ;" 6 or (_b_) on the ground that the restriction was necessary in the interest of the state.

(_a_) As an instance of a valid restriction of the first class Coke cites the institution " of a fraternity society or corporation of merchants to the end that good order and rule should be by them observed for the increase and advancement of trade and merchandise, and not for the hindrance and diminution of it." 7 Privileges granted to these bodies, though sometimes justified on the same grounds as the grant of a monopoly of a new manufacturing process,8 were generally of the commercial and not of the manufacturing order ; and they were not regarded as grievances. They were exempted from the bill of 1601, and from the Act which finally settled the law in 1624;9 nor, having regard to the objects at which the legislative regulation of trade was

### 352 Law in XVITH AND XVITH CENTS.

designed to effect,\[1\] and the manner in which these companies furthered these objects,\[2\] was the exemption so ridiculous as Bacon suggested.\[3\] No doubt this exemption opened the door to evasion;\[4\] and Bacon may have had this in his mind. But these grants of commercial privileges were strictly controlled by the Council;\[5\] and it is clear from the case of the _Cloth workers of Ipswich_,\[6\] and other cases, that the common law was quite prepared to see that these bodies used their powers for the purposes for which they were given. For instance, they refused to uphold their by-laws, though sanctioned as required by the Act of Henry VII.,\[7\] if they seemed to restrict unduly the common law right of every man to use his trade.

(_b_) A good instance of a restriction necessary in the interest of the state is the monopoly of the sole printing of books,\[8\] and the monopoly of saltpere.\[9\] Moreover, as Bacon pointed out, fluctuations in the market might make certain temporary monopolies reasonable and lawful.\[10\] In _Darcy v. Allen_ an attempt was made to justify the grant on similar grounds of public policy. Too much card playing, it was said, was bad for the morals of the subject, and therefore the crown might restrain it. Fuller

**COMMERC AND INDUSTRY 988**

thoroughly exposed the fallacy of attempting to apply such an argument to that case.1

Footnote 1: http://www.math.ucsd.edu/~~hay/

The agitation raised by the manner in which Elizabeth had used her prerogative to grant patents of monopoly had thus resulted in the ascertainment of some definite rules as to its extent. They were not observed by James I., who resorted to illegal grants of monopoly patents as a method of raising money.2 But these rules commended themselves to the public opinion of the day, and they have had a lasting influence upon the law, because, in 1624, they were put into statutory form, and became in that form the basis upon which our modern patent law still to some extent rests.

Footnote 2: http://www.math.ucsd.edu/~hay/

The statute3 began by reciting the existing law upon the subject and its infringement. For the future no such monopolies were to be granted, and the validity of any grant was to be tried by the common law.4 Remedies were given to persons damaged by illegal grants.5 Certain grants were saved. Among these were charters granted to corporations and companies " for the maintenance enlargment or ordering of any trade of merchandise ;6 privileges connected with printing ; the making of saltpte or ordonance or shot ;7 privileges connected with the manufacture of allum;8 and grants connected with the licensing of taverns."9 Obviously these savings represented the common law principle that certain forms of control must be exercised by the crown in the interests of the state. It was the sixth clause, defining the privileges which the crown might grant to new inventors, which is the foundation of the patent law of the present day. It provided that the crown might grant letters patent for fourteen years or under " of the sole working or making of any manner of new manufactures within this realm to the true and first inventor . of such manufactures, which others at the time of making such letters patents . shall not use, so as also they be not contrary to the law, nor mischievous to the state."\*\*

Footnote 2: http://www.math.ucsd.edu/~hay/

The remedies provided for the infringement of the Act, the new jurisdiction given to the common law courts to deal with

### 854 Law in Xvith and Xvith Cents.

disputes connected with these grants, and the limitation of the term to fourteen years were new provisions.1 Otherwise the Act reproduced the existing law.2 The consideration for the grant was, as before, the introduction of a new manufacture.3 As before the true and first inventor meant not only the person who discovered a new process, but also a person who brought into England a process previously unknown to or unworked by Englishmen.4 The question whether an invention was sufficiently novel was made to depend, not on prior publication, but wholly on the question whether or not there had been a prior user in England ; 5 and the invention must be wholly new--not merely a small improvement upon an older invention.6 Further, it is probable that the provision of the Act that the invention must not be " mischievous to the state " represented the view that an invention, though otherwise meritorious, ought not to be protected, or perhaps even allowed, if, for instance, it had the effect of creating unemployment.7 But this provision was so vague that the interpretation put upon it has changed with every change in industrial organization and economic theory.

Footnote 1: L.Q.R. xvi 54, 55.

Footnote 2: Mr. Hulme, ibid 55, says, " In other respects . . . the statute must be interpreted as re-capulating limitations already assigned by the common law, which limitations in their turn, . . are such as were commonly prescribed in these grants for the purpose of safeguarding the powers with which the grantee was thus invested."

Footnote 3: Ibid 55; Hulme, Essays, A.A.L.H. iii x39-14I.

Footnote 4: Ibid ; cf. L.Q.R. xvi 152.

Footnote 5: Ibid ; cf. L.Q.R. xvi 56; Hulme, Essays, A.A.L.H. iii 145.

Footnote 6: L.Q.R. xvi 56; cf. ibid xii r52.

Footnote 7: Thus Mr. Hulme says, L.Q.R. xii r52, that the application of one Lee for a patent for a stocking frame was said to have been rejected on the ground that the machine proposed to supersede manual labour; in f623 the Council ordered a machine used for making needles to be destroyed together with the needles made by it, if cause was not shown to the contrary, Tudor and Stuart Proclamations i no. r368.

During the Stuart period and later the Council still continued to exercise the chief control over matters relating to patents.8 When, at the end of the eighteenth century, patent cases began to come more frequently before the common law courts, the law which they developed diverged at some points from the principles which underlay the statute of 1624.9 But, as 1 have said, the principles which it laid down still to a large extent govern us to-day. That so permanent a settlement could be arrived at in 1624 was to a large extent due to the fact that the leading principles of the law had been settled in Elizabeth's reign. We may perhaps infer that if some of the many other constitutional questions awaiting settlement had then been similarly settled, the position of her successor would have been an easier one to fill.

**COMMERCE AND INDUSTRY** **855**

(v) _The enforcement of this commercial policy._

It is one thing to pass statutes and to create a machinery for their enforcement : it is quite another thing to ensure that these statutes are actually enforced. In our own times this task taxes the energies of hosts of officials and inspectors. But during this period the government possessed very few paid servants of this type. How then did it provide for the enforcement of its commercial policy? The answer is that it relied in the first place upon the powers of the chartered companies, craft gilds, and boroughs. We have seen that their privileges were recognized by the common law, and saved by the Act of 1624.1 Both in foreign and domestic trade their regulations were expected to ensure honest workmanship and reasonable skill. At the same time they could be made responsible for the carrying out of the statutes and proclamations relating to their particular industry or trade. In the second place, the government developed and extended another medieval expedient for securing the enforcement of the law ; and their action in this direction is historically interesting because, if the Great Rebellion had resulted in a victory for the king, it might have developed into the system of paid inspectors with which we are familiar to-day. Its history I must here sketch.

Footnote 1: Above 353.

We have seen that in the Middle Ages it was a common expedient to give the public at large an interest in seeing that a statute was enforced by giving to any member of the public the right to sue for the penalty imposed for its breach, and allowing him to get some part of that penalty.2 This expedient was largely used by the legislature in this period, both in the case of these statutes dealing with trade, and in the case of statutes dealing with many other subjects. But the Tudors improved on this idea. It might happen that no member of the public was willing to come forward and bring his action ; and so, to meet those cases, it became customary to give commissions and patents to certain persons to sue for penalties, the whole or some part of which they were allowed to keep for their own use. The adoption of this expedient brings us a stage nearer the modern system of paid inspectors. These commissioners or patentees were the nominees of the central government and subject to its control. But as yet they were paid, not by the state, but by what they could make out of the public. In fact it may well be that they had paid the government for the right to exercise these powers. The final stage was reached when the duty of supervision was given

### 856. Law in XVITH AND XVITH CENTS

to special officials who were solely occupied in this duty. They differed from the commissioners or patentees in being more directly the servants of the government. They differed from the trading companies and local government bodies to whom, as we have seen,1 these duties were sometimes entrusted, in being solely occupied with the work of supervision.

I must now say a few words about each of these stages in this development. They can be most clearly seen in connection with the commercial policy we have been considering; and I shall therefore deal with them at this point. But we should remember that this development was also taking place in connection with the enforcement of the law as to other subjects. It was in fact one, and not the least important, of those developments by means of which the modern machinery of government was being developed from a mediaeval basis.

Footnote 1: Above 320-322,

The number of statutes, old and new, in which the public at large was encouraged to enforce obedience to statutes by the promise of a share of the penalty imposed for disobedience was very large.2 A statute of 1488-1489 strongly approved this expedient;3 and as late as 1632 the Star Chamber, in order to suppress certain trade frauds, promised to give to informers half the fines which they imposed.4 But it was an expedient which was open to many obvious abuses. Old statutes which had been forgotten were unearthed and used as means to gratify ill-will.5 Litigation was stirred up simply in order that the informer might compound for a sum of money.6 Threats to sue were easy means of levying blackmail. A " turbidum genus" of informers arose whom Coke classes with " the monopolist, the concealer, and the dispencer with publicly and profitable penal laws" as the four varieties of " viperous vermin," " which endeavoured to have eaten out the sides of church and commonwealth."7 Statutes of Elizabeth's reign attempted to cure the evil by small improvements in procedure. The informer was not allowed to sue by attorney, no compounding

**COMMERC AND INDUSTRY** **857**

of the action was to be allowed without leave of the court, a year was fixed as the limitation for an informer's action unless the statute fixed a shorter period.1 Still further regulations were made by a statute of 1624, on which Coke wrote a comment.2 The informer must sue either before the judges of assize or the justices of the peace of that county in which it was alleged that the offence was committed. He must state in his pleading and prove that the offence was committed in the county where he alleged that it was committed. He must swear to his belief in the truth of his allegations, and to the fact that the offence had been committed within the preceding year. The defendant might plead the general issue, and give special matter in evidence to the jury.

Footnote 1: rs Elizabeth c. 5, made perpetual by 27 Elizabeth c. 10; 31 Elizabeth c. 5.

Footnote 2: ar James I. c. 4; Third Institut. c. lxcoviii.

Footnote 3: Dasent xi 26, 352, 384 (1578-1580)--commission to sue for penalties for infringing the statute as to wearing of caps, the money recovered to help on the industry, which was declining.

It is clear from Coke's treatment of the subject that these abuses had been very much aggravated by the device of issuing commissions and patents to certain persons to enforce these statutes. To the history of this device we must now turn.

With the increase in the number of the statutes which invited the common informer to sue for the penalty imposed for their breach, it became more and more obvious that this device did not always prove an effectual deterrent. To meet this difficulty the government sometimes issued commissions to persons authorizing them to seek out infringements of the law and to take the necessary proceedings, and rewarding them with a share of the penalty recovered.3 It was soon seen that this was a valuable right. These commissions were sought for and issued in wider and wider terms. Persons were not only empowered to sue for penalties and allowed to keep the proceeds; they were also allowed to compound with offenders, and even to dispense (doubtless for a pecuniary consideration) with the observance of the statutes.4 It was one thing to supplement the activity of the common informer by delegating persons to look into the infringements of statutes, and to sue for penalties on behalf of the crown. It was quite another to confer upon them these further prerogative rights; and matters were made worse when the Council interfered on behalf of the grantee to prevent any one else

### Law in Xvith and Xviith Cents.

from suing for the penalty.1 The abuse was growing so rampant that Parliament, Coke tells us, ceased to give the forfeiture from the breaches of statutes to the crown, and gave them instead " to the relief of the poor and other charitable uses which cannot be granted or employed otherwise."2

It is clear that the crown was abusing the powers which it possessed to enforce these statutes by means of actions for penalties, in a manner analogous to the way in which it was abusing its powers to grant monopolies to those who introduced a new manufacture. In fact these two perversions of prerogative rights were often found existing together.3 The grant of a monopoly was often accompanied by a grant of powers to enforce statutes or to dispense with statutes. In _Darcy v. Allen_ the grant was accompanied by a dispensation with a statute of Edward IV.'s reign 4 which forbade the importation of playing cards ; and Coke tells us that it was resolved in 1602 that a dispensation of this kind which wholly defeated the aim of a statute was " utterly against law."6 It was not until three years later that the \_Case of Penal Statutes_4 decisively condemned these grants by the crown of the right to sue for or dispense with the penalties prescribed by statute. The judges resolved that "if by the industry and diligence of any there accrueth any benefit to His Majesty," the king may reward such a person : but " that when a statute is made by Parliament for the good of the commonwealth, the kingcannot give the penalty benefit and dispensation of such Act to any subject ; or give power to any subject to dispense with it for when a statute is made _pro bono pulhico_, and the King is by the whole realm trusted with it ; this confidence and trust is so inseparably joined and annexed to the Royal power of the King in so high a point of Sovereignty that he cannot transfer it to the disposition or power of any private person or to any private use." Further, it was resolved, " that it is inconvenient that the forfeiture upon penal laws or others of like nature should be granted to any before the same be received or vested in His Majesty by due and lawful proceedings ;1 for that in our experience it maketh to the more violent and undue proceedings against the subject, to the scandal of justice and the offence of many."

Footnote 1: See \[1\] for a case where the penalty for coining offences was granted before conviction.

It was largely owing to this decision that the statutes of James I. succeeded better than the statutes of Elizabeth in suppressing the most crying evils arising from the activity of the common informer. Many questions as to the limits of the dispensing power yet remained to be settled.2 But grants of this power to private persons were not so frequent;3 and the law as to its use in connection with grants of monopolies was settled by the same statute as that which settled the law as to the validity of monopolies themselves.4 The device of granting a commission or patent to sue for penalties had failed. We must now say something of the beginnings of the modern device of employing an official to see that the law is obeyed.

Footnote 2: Vol. vi. c. 6.

Footnote 3: In 1613 there is a grant to Lord Morley of " money or other profits as shall accrue to his Majestie upon accions, informacions, and seizures in the Courtes of Exchequer at King's Bench, either by judgment or composicion upon penal laws," made after consultation with the law officers, Acts of the Privy Council (1613-1614) 231.

Footnote 4: 21 James I. c. 3 SS 1, 6-8.

Footnote 5: Cunningham, op. cit. i 308; ii 296, 297 ; for the aulnager at the medieval fairs see Select Cases in the Law Merchant (S.S.) i 37, 41; see Dasent, xxii 242 (1591-r592) for some disputes between the aulnager and the Wiltshire clothiers; for another dispute see Acts of the Privy Council (1613-1614) 164-165.

Footnote 6: Cunningham, op. cit. ii 297.

In the Middle Ages the only instance of the appointment of such an official is found in connection with the wool and cloth trade. To supervise this trade there was an official known as the "Aulnager." 5 His office had been developed by the creation in 1594 of the Aulnager of " the new drapery ;" and his duties were further defined in 1605." In 1619 a surveyor of lead was appointed, and in 1639 an office was established to detect abuses in the dyeing of silk.7 We read also of a surveyor of coal, of ale houses, and other trades.8 But these officials often abused their 860 Law in X-VITH AND X-VITH CENTS:

powers. They incurred much popular odium; and they went under when the Long Parliament put a final end to prerogative government. Thus the attempt to convert the clerk of the market and his deputies--the officials responsible for the correctness of weights and measures--into royal officials with large powers of supervision, was put an end to in 1640.1 It is not till quite modern times that the central government again seriously attempted to regulate, by means of its own officials, the conduct of the various trades and manufactures of the country. The result was that during the latter part of the seventeenth century the only effective control exercised over them came from the companies, craft guilds, and boroughs whose powers had, as we have seen, been recognized by the Act of 1624.2 Except in cases where this control was exercised, it was left to those of the general public who were interested in so doing to put the provisions of the statutes into force.

Footnote 1: 16 Charles I. c. 19; cf. Cunningham, op. cit. ii 94-96; for these officials see vol. i 150; when Coke said, Fourth Instit. 273, " the clerk of the market shall hold no plea but such as were holden in the reign of Ed. I.," he no doubt had these extensions in his mind.

The Stuart's followed the Tudor tradition. They endeavoured to organize both external and internal trade, and all branches of industry with a view to the maintenance and increase of national strength ; and in order to create a strong and contented people, they aimed, as we shall see, " at so ordering the economic life of the country that every man should have opportunities of practising his calling, and that he might be able to count on obtaining the necessaries of life at reasonable prices and of a good quality."3 To attain this object completely was impossible in the sixteenth or in any other century. But in the seventeenth century its attainment was especially impossible. The enforcement of this policy necessarily depended upon the prerogative. Thus we get prosecutions in the Star Chamber for various trade frauds--deceitful dyeing of silk,4 the deceitful manufacture of gold and silver hat bands,5 passing off bad cloth as good by means of counterfeit seals.6 But the nation was already chafing at prerogative rule ; and the various restrictions which this system necessarily involved all went to swell the increasing unpopularity

**COMMERCE AND INDUSTRY 861**

of the central government. The jealousy of the privileged companies which controlled the foreign and much of the internal trade of the nation,1 the objections to re-arrangements of the tariff which put or seemed to put greater burdens on the nation,2 the abuses of monopolies,3 and the exactions of the commissioners entrusted with the duty of searching out breaches of the law,4 were all turned to account by those who saw in this economic system only a series of systematic encroachments upon the liberty of Englishmen.

Footnote 1: Above 320-322. ${}^{\\bf u}$ Above 338; vol. vi c. 6.

Footnote 2: Above 347-348. ${}^{\\bf u}$ Cunningham, op. cit, ii i47, t48, ${}^{\\bf u}$ After the failure of Alva's administration

But though all the objects of this economic policy were impossible of attainment, it must be admitted that some had been in great measure attained. The measure of its success is the difference between the economic position of England at the beginning of this period and at the end. England had not only taken the conduct of her own foreign trade into her own hands, she had also begun to be a manufacturing country. London had begun to be a financial centre comparable to the commercial cities of the Netherlands.5 " Trade," Clarendon says, " had increased to that degree that we were the exchange of Christendom (the revenue thereof to the crown being almost double to what it had been in the best times), and the bullion of all other kingdoms brought to receive a stamp from the mint of England ; all foreign merchants looking upon nothing as their own, but what they had laid up in the warehouses of this kingdom."6

Footnote 6: History of the Rebellion (ed. 1843) 31.

\*\*Necessarily this changed economic position involved great developments in commercial law. We shall see that many new doctrines, well known in Italy and the trading centres of the South of Europe, came to England when, partly by reason of changed geographical conditions, and partly by reason of the wise policy pursued by the Tudor and to some extent by the two first Stuart kings and their Parliaments, Englishmen began to obtain a share of that larger commerce which in the Middle Ages these foreign cities had almost entirely monopolized. New branches of law appear on the statute book--we see the beginnings of the usury laws, the bankruptcy laws, and the laws as to insurance. Other new branches of law make their appearance in the cases reported by the courts. Banking, negotiable instruments, bills of lading, partnerships, and companies begin to set new problems to the judges ; and many topics of maritime law, such for instance as salvage, collision, and bottomy begin toLaw in Xvith and Xvith Cents.

assume their modern aspect.The .foreign doctrines upon these and similar topics were gradually assimilated into the fabric of English law by the legislature and the judges. By far the most important part of this work was done by the judges. They and other members of the legal profession helped to frame the statutes passed to deal with the new commercial conditions; and they applied and interpreted them. Moreover both these statutes and the new doctrines of commercial law frequently came before the judges and law officers of the crown in their capacity of advisers or members of crown and council. Both their judicial and advisory duties thus introduced the judges and law officers to the new world of commerce, and to the rules of the law merchant by which it was governed. I cannot but think that the knowledge thus acquired of these new legal doctrines was one of the chief causes that led Coke and his companions to desire to control this new field of legal activity; and, with that object, to begin their campaign against the Admiralty and other rival courts, which led ultimately to the incorporation of English mercantile law with the common law.1 But of all these matters I shall speak more at large in the following chapter,2 and in the second Part of this Book.3 We must now turn to the closely connected and not less important changes which the legislature made during this period in the more purely domestic departments of commerce and industry.

Footnote 1: Vol. i 558, 568-573.

Footnote 2: Vol. v zag-t48.

Footnote 3: Pt. II. chap. iv.

Footnote 4: Mr. Gay, Tr. Royal Hist. Soc. (N.S.) xiv z44 puts this very clearly--'The centre of social interest lay in the preservation of husbandmen, who were the soldiers and taxayers as well as the breadwinners of the common weal. If by hateful courocuonsess they were driven from their homes, the State was disquieted by the resulting vagbondage and robberies of the individual or the riots of the mob."

(2) _Agriculture, the Food Supply, and Prices._

The statutes passed to regulate and promote trade with a view to the maintenance and increase of national power would have been of little avail if the legislature and the executive had not taken steps to maintain an adequate food supply. This meant a careful supervision and regulation of all matters pertaining to agriculture. Indeed, the prosperity of the agricultural interest was a condition precedent to the success of all other economic legislation, because unless its prosperity had been maintained, the food supply of the nation would have been diminished, and the population would have declined. Not only would there have been a risk of .famine and consequent disorders, but also the force available to quell these disorders or to resist foreign invasion would have been weakened, and the revenue of the state would have been impaired.4 But the

## 6 Commerce and Industry 363

agricultural, in common with other industries, was passing through a period of change in methods and ideas. The old customary methods were being superseded by newer methods which made for increased production; and a change of this sort was, as Mr. Johnson has said, inevitable " if England was ever to advance out of the most primitive condition and methods of cultivation."1 This change caused at first considerable hardship to individuals. The break up of the old organization and old customary methods of cultivation, the clashing interests of the different classes who made their living from the land, the political influence of the larger landowners, and the complexity of the land law, made the task of guiding and directing the transition more difficult than in the case of any other industry. But the problem to be solved in the case of the agricultural industry was essentially the same as in the case of other industries. Within what limits could the state allow the self-interest of the individual free play without injury to itself? On what terms could it adjust its own interests, those of the producer, and those of the consumer? How, in short, could the necessary changes be so directed as to conduce to the maintenance and increase of its own power? The Tudors directed these changes with this object in view; and they attained no small measure of success. The wealth and importance of the landowners were increased by the introduction of improved methods of cultivation, with a resulting increase in the revenue of the state;2 and though hardship was inflicted in the process upon the smaller occupiers of the land, this was, to a certain extent, met by legislation which endeavoured to prevent the wholesale eviction of tenants, by the growth of the manufacturing industry, and by the minute regulation of the supply and prices of food. The mcasure of the success of the Tudor legislation is the increase in the 1rosperity of the country, and the firmness with which the authority of the government was established amid changes which might well have endangered its peaceful development.3

Footnote 1: The Disappearance of the Small Landowner 56; cf. Gonner, Common Land and Inclosure 302-304, 340.

Footnote 2: See below 374 n, 6 for the statutes of Elizabeth's reign which allowed the export of corn when the price was at a certain level, on payment of an export duty; and ibid for the statutes which permitted export with licence purchased from the crown.

Footnote 3: Cunningham, op. cit. ii g-107.

In describing the policy pursued by the Tudor legislation I shall deal firstly with the statutes passed to regulate or mitigate the agr

**364 LAW IN XVITH AND XVIIIH CENTS.**

(i) _The Agrarian Revolution.1_

I have already said something of this revolution in dealing with the history of methods of cultivation,3 and of unfree tenure.3 This revolution involved the abolition of the system of common field cultivation, and the substitution for it of individual ownership or occupation of continuous tracts of land, which could be devoted either to pasture or to arable farms. Consequently the old cultivating community was broken up, many of the smaller owners were evicted from the land, and rights of common either in the open fields or in the waste disappeared. No doubt rights of common were to some extent guarded by the statutes of Merton and Westminster II. ;4 and these statutes were expressly confirmed by a statute of Edward VI.'s reign.5 But the rights of common to which these statutes applied were, as we have seen, somewhat limited ; and if by agreement, purchase, or eviction a whole manor was enclosed, existing rights of common disappeared with the disappearance of those entitled to exercise them. That these enclosures raised the value of the property is clear. The evidence of writers on agriculture, such as Fitzherbert and Tusser and many others, is quite unanimous.6

Footnote 1: The chief authorities are--Leadam, Domesday of Inclosures (Royal Hist. Soc.); Royal Hist. Soc. Tr. (N.S.); xiv 231-303, papers by Gay and Leadam on the interpretation of the Domesday of Inclosures; ibid xiv 161-46--a paper by Miss Leonard on the Inclosures of Common Fields in the seventeenth century; ibid (Third Series) iv 7-11--a passage from Dr. Cunningham's Presidential address; E.H.R. xiii 477-507 --an article by Mr. Gonner on the Progress of Inclosure during the seventeenth century; A. H. Johnson, The Disappearance of the Small Landowner; Gonner, Common Land and Inclosure; Tawney, The Agrarian Problem in the Sixteenth Century; cf. also the other authorities cited w. ii 56 n, x, and the notes to pp. 56-61.

Footnote 2: Vol. ii 60-61.

Footnote 3: Vol. ii 60-61.

Footnote 4: Did 147-149.

Footnote 5: 3, 4 Edward VI. c. 3; cf. Gonner, Common Land and Inclosure y.

Footnote 4: Vol. ii 60; cf. Johnson, The Disappearance of the Small Landowner 55, 56.

Footnote 7: Above 362; cf. Johnson, op. cit. for some extracts from the literature of the period; Aydelotte, Elizabeth Rogues and Vagabonds 10-12; Tawney, The Agrarian Problem in the Sixteenth Century 344-345.

Footnote 8: Gay, Tr. Royal Hist. Soc. (N.S.) xiv 232; 203; Mr. Leadam, however, takes the view that the one form of incolaware was just as objectionable as the other form, and that the authorities wished to check both forms, see the two volumes of the Domesday of Inclosures (Royal Hist. Soc. N.S.), and Tr. Royal Hist. Soc. (N.S.) xiv 231-303 for the controversy between him and Mr. Gay on this point.

This rise in value took place whether the land inclosed was used for pasture or for arable farming. But it made a good deal of difference to the occupiers of the land whether the inclosed land was used for the former or the latter purpose. If it was used for pasture families were evicted wholesale, buildings fell into decay, unemployment increased, and whole tracts of country were depopulated and left defenceless.7 On the other hand, if it was used for tillage the demand for labour was not seriously diminished, the yield of the land was increased, and both the state and the landowner profited.8 Therefore we are not sur

**COMPRECE AND INDUSTRY 365**

**SSed to find that the state adopted a different attitude according as the enclosed land was used for the one purpose or the other. Neither form was left wholly unregulated ; but the nature of the regulations and the manner in which they were enforced were very different.**

\*\*Against inclosure for the purpose of creating large pasture farms the legislature had set its face from the first days of the Tudor dynasty. The series of statutes begins with two statutes passed in 1488-1489. The first was a local Act and applied only to the Isle of Wight.**1**

\*\*The second was a general Act. It provided that lessees of farms with twenty acres of land attached must maintain the buildings necessary for the tillage of that land ; and that if they did not, the lord of the fee, or in default the king, might enter and take half the profits till the buildings were repaired.**2**

\*\*In 1514-1515 another Act to the same effect was passed ; and it was further provided that all buildings used for tillage on the first day of that Parliament should be repaired.**3**

\*\*In 1533-1534 it was provided that no tenant farmer should keep more than 2,000 sheep under a penalty of 3s. 4d. a sheep. There were certain exceptions to the operation of the Act, the most important of which was the proviso that it should not apply to the owner of an estate of inheritance in the land.**4**

**In 1535-1536**5\*\* complaint was made that these Acts were only enforced on the king's lands ; and it was provided that in certain counties,**6**

\*\*in which the evil consequences were most severely felt,**7**

\*\*the king should be entitled to sue for the penalty of half the profits under the earlier Acts. In 1551-1552 it was provided that as much land was to be tilted annually as was tilted in the first year of Henry VIII.'s reign, and a commission was appointed to see that the statute was obeyed.**8**

\*\*In 1555 another commission was appointed to see to the execution of the Acts of 1488-1489 and 1514-1515. It was given power to mitigate the provisions of these Acts, and an appeal was allowed from its decisions to the court of Star Chamber.**9**

\*\*The two last-mentioned Acts were repealed in 1562-1563 by an Act which confirmed the Acts of 1488-1489 and 1514-1515.\*\*10

\*\*This Act was itself partially repealed in 1593;**11**

**but the result was an increase of inclosure for pasture farming. Therefore**

**1\*\*\*\*4**

**Henry VII. c. r6.**

**3\*\*\*\*6**

**4\*\*\*\*6**

**6\*\*\*\*7**

### Law in Xvith and Xvith Cents.

in i597 two consolidating Acts were passed which repealed, all the former Acts and substituted new and more elastic provisions. The first was a general Act and was designed to compel the rebuilding of houses of husbandry.1 The second applied only to certain counties, and was designed to effect the re-conversion of pasture into arable.2 Both these statutes expired in 1604.3 The former Acts were thereupon revived ; but, with the exception of the Act of i533-i534, they were all repealed in 1624.4 Their repeal was approved by Coke, who tells us that their provisions were so intricate that they produced little effect.5 But the government was not left without remedy against landowners who depopulated the country by their inclosures. There was still the Act of i533-i534 ; and inclosers were liable to be proceeded against at common law for depopulation.6 Such proceedings were in fact taken by the Star Chamber as late as the year 1639.7

Footnote 39 Elizabeth c. r.

Footnote 39 Elizabeth c. 2--this Act only applied to the counties specified in 27 Henry VIII. c. 22, above 365 n. 6, and to Gloucester, Hampshire, Wilts, Somerset, Dorset, Derby, Huntingdon, York, Pembroke, bishopric of Durham, and Northumberland.

Footnote 40: They were only to last till the end of the next session of

**COMMERCE AND INDUSTRY 367**

**by** the Council on the evidence thus supplied.1 There seems, however, good reason to suppose that it was only Wolsey's commission that resulted in any really definite action being taken against the inclosers.2 The opposition of the governing classes was strong enough to prevent any very general action on the part of the central government.3 In fact it would appear that the government in the late sixteenth and early seventeenth centuries was only stirred to action if it appeared that the misdeeds of the inclosers were endangering the peace of the country.4 Thus we get very frequent complaints from the Midland counties. They are always included in the statutes which were passed to prevent inclosures of this kind; b and the commission of 1607 was caused by a rebellion in Northamptonshire, and was confined to the counties of Leicester, Nottingham, Bedford, Bucks, Hunts, and Lincoln.6 We might, therefore, suppose that in the sixteenth and seventeenth centuries the inclosure movement was proceeding most rapidly in the Midland counties. But as a matter of fact the inclosure Acts of the eighteenth and nineteenth centuries show that these counties were least affected by the inclosure movement of these centuries.7 The truth appears to be that "'the Midland counties were then the great corn-producing counties of the kingdom, and consequently the change to pasture farming, and the consolidation of farms often accompanying inclosure, displaced a larger population in this part of the country than elsewhere. Moreover, at this date fewer manufactures were carried on in the Midland district than in other parts of the country, and consequently the population turned adrift by agricultural changes had a greater difficulty in finding other employment."8

Footnote 1: Gay, Royal Hist. Soc. Tr. (N.S.) xiv 239, 240, 241, " Excluding all count of the writs, there remain, during the reign of Henry VIII. 423 entries of proceedings on inclosure cases; under Edward VI, 50 more are returned, 57 under Philip and Mary, 83 under Elizabeth; and when in 1599 the last case is reached there is a total of 607 entries ... representing the grist brought to the slow mills of the Exchequer by the industry of Wolsey's commissioners; " of course the number of entries is no sure guide to the number of cases, above 254.

- Ibid 236, "'Through the whole Tudor period his was the only honest enforcement of the law against what right-minded men held to be an intolerable evil."
- Crowley, Way to Wealth (E.E.T.S.) I44.
- For some instances of interferences in the sixteenth century see Tawney, The Agrarian Problem in the Sixteenth Century 374-376.
- Above 365 n. 6.
- Leonard, Royal Hist. Soc. Tr. (N.S.) xiv 125.
- Ibid 134-136.
- Ibid 103, 104; Moore, A Scripture word against Inclosure (1656) introd., says, "I complaine not of inclosure in Kent or Essex, where they have other callings and trades to maintaine their country by, or of places near the sea or city, but of inclosure in the inland countreys which takes away tillage, the only trade generall they have to live on," cited ibid 139.

868 Law in XVITH AND XVITH CENTS. which was sadly in need of it ; \[1\] and they also, as we have seen, checked the rate of inclosure in the Midland counties. But, as we have seen, the government was stirred to enforce these statutes chiefly when their non-observance was endangering the peace of the country. And seeing the difficulties which must have attended their enforcement through the ordinary machinery of local government, and seeing also that the inclosures did undoubtedly increase the productiveness of the land, \[9\] and therefore the aggregate wealth of the country, this policy was probably wise. At the end of the sixteenth century the agricultural industry was adjusting itself to the new conditions. The encouragement of the government, \[3\] and the increased demand of a growing population, made arable as profitable as pasture farming on soil which was suitable to corn growing. \[4\] More land was being drained, and brought under the plough ; \[5\] and the growth of manufacture provided an outlet for surplus labour in many places. \[6\] The repeal of the inclosure Acts in 1624 is a significant sign of the times. We hear little more of the agitation against inclosure after the Great Rebellion. Partly no doubt this is due to the fact that the great landowners were now all powerful in the state ; but chiefly it is due to the fact that the dangers to which, in the sixteenth century, the growth of pasture farming had exposed the state were things of the past. Inclosures took place all through the seventeenth century ; but they were " essentially connected with the growth of farming." \[7\] They were caused by a desire to " put land to the use for which it was best fitted ; \[8\] and this desire was often strengthened by the growth of towns which came with industrial development. \[9\] For these reasons the agrarian changes were able to proceed not merely without the disapproval, but even with the active assistance of the legislature. \[10\]

1 Gonner, E.H.R. xxiii 486, 487.

2 One acre inclosed was said by Norden to be worth one and a half of common field, and his evidence is confirmed by other writers, who, indeed, often allege an even greater advantage to the land in severalty," Leonard, Royal Hist. Soc. Tr. (N,S.) xix 14; cf. Cunningham, Royal Hist. Soc. Tr. (Third Series) iv 9, citing Fitzherbert's Husbandry.

3 By the Acts mentioned above 365-366 ; and by the permission to export com, below 374.

4 Cunningham, Industry and Commerce ii 98-100.

5 Ibid ii 112-119; 43 Elizabeth c. ii was passed to facilitate projects of this kind ; though little was actually done in this century, public opinion was being educated, and the Act gave impulse to the movement, Cunningham, op. cit. ii 119 n. 1.

6 Cf. Gonner, Common Land and Inclosure 386.

7 Ibid i 738.

8 Ibid i 76-177.

10 Johnson, Disappearance of the Small Landowner 84-86 ; the earliest inclosure Act is 4 James l. c. ii; there was not another till 4 William and Mary no. 31, and they do not become common till George II,'s reign, Leonard, Royal Hist. Soc. Tr. (N.S.) xix ro8 ; below 369-370.

**COMMERCE AND INDUSTRY 869**

The inclusive of land and the consolidation of farms for the purposes of tillage was hardly touched by this series of statutes. It is true that certain buildings must be maintained.1 It is true also that four acres of land must be attached to each cottage,2 and that near London the inclosure of common lands was prohibited.3 But, apart from these restrictions, the only enactment which seems to bear on this form of inclosure is SS 14 of the Act of 1533-1534,4 which provided that no one should take a lease for life years or at will in land of freehold or copyhold tenure of more than two houses or tenements of husbandry to which lands were annexed ; and that the lessee should dwell in the parishes in which these lands were situate.5 The clause seems to be designed to prevent the consolidation of farms, whether for pasture or arable, in cases where such consolidation involved the destruction of buildings. It is directed to the same object as the clauses in the Acts of Henry VII., Henry VIII., and Elizabeth noted above. It did not prevent owners from consolidating, nor did it prevent consolidation by lessees if no destruction of buildings was involved.

Footnote 1: 4 Henry VII. c. 19; 7 Henry VIII. c. 1; 39 Elizabeth c. 1.

Footnote 2: 31 Elizabeth c. 7--the idea seems to have been to prevent the growth " of a landless class of married labourers who might burden the rates," I.eonard, Royal Hist. Soc. Tr. (N.S.) xiz4; it was repealed by 15 George III. c, 32.

Footnote 3: 35 Elizabeth c. 6--no common land to be inclosed within three miles of J.ondon --a rule apparently that the Queen had before this statute applied both to London and other towns, Dasent xv 425, 426 (1587-1588).

Footnote 4: 25 Henry VIII. c. 13.

Footnote 5: 8 "No person . shall receive or take in ferme for tyme of lyff yerse or at wyll by indenture copy of Courte Rolls or otherwyce any moo houses and tenements of husbandrye wherento any lands are belongying . above the nomber of two suche holdes or tenements ; and that no manner person shall have or occupie any suche holds so newly taken to the nombre of two . except be or they be dwellying within the same parishes where suche holds be."

Footnote 6: 4 Cunningham, Royal Hist. Soc. Tr. (Third Series) 8-to.

Footnote 7: For instance, see Leonard, Royal Hist, Soc. Tr. (N.S.) xix 107-110; a procedure was provided by 35 Henry VIII. c. 17 8 6 for the inclosure of wooded land on which others had rights of common, in case no agreement could be reached.

Footnote 8: 8 Johnson, op. cit. 65-68; Leonard, op. cit. 175, 178-1722; eviction or refusal to renew were not possible in the case of the owners of esta

### 870 Law in Xvith and Xvith Cents.

cases the conversion of the common field into several holding, was fairly carried out,1 The fact that the Council and the Star Chamber were ready to use their large powers to soften the shock to those who complained that they were injured by the change was not without its effect. We have already seen how much they effected for the copyholder and the villein;2 and it is clear that, though they sternly repressed any attempt to obtain supposed rights by rioting or violence,3 they were always ready to listen to complaints of injury inflicted by inclosure,4 and to urge upon landowners the duty of dealing liberally by their tenants. In 1597 complaints had been made that inclosures made by one William Harman at Shipton had deprived his tenants of their common rights. The Council wrote to him on the subject **"** Wee do not herby dcbarre you," they said, " from any proceedings or accions in law concerning the said grounds, but do wishe you rather to consider what is agreeable in this case to the use of the State and for the good of the common welthe, than to secke the utter most advantage that a landlord for his particular profitt maie take amonge his tenants."6

Footnote 1: It cannot be said that the poorer classes were wronged by the legal methods usually employed in common field inclosures, for these compare very favourably with those of the Private Acts," Leonard, op. cit. 114 ; for these methods see ibid 107-110.

Footnote 2: Vol. iii 211, 504-505.

Footnote 3: Dasent xxvi 364, 365, 383 (1596)--inclosure riots in Oxfordshire.

Footnote 4: See e.g. ibid xvii 244, 303 (1589); xxvi 382 (1596).

Footnote 5: Ibid xxvii 129 (1597).

But though, in the interests of the public order, the government was ready to do all that it could to protect those injured by the agrarian changes, there was no thought of attempting to impede forms of individual activity which were profitable both to their promoters and to the state.6 Rather they were assisted both by the executive and the legislature.7 New statutes added to the powers of the commissioners of sewcrs.8 Schemes to reclaim waste land were encouraged,9 and the

## 6 Commerce and Industry

### 6.1.1 Port of corn in years of plenty was allowed

The statute of $562-1563, which dealt with apprenticeship

attempted to solve the problem of apportioning the supply of labour between the agricultural and other industries. It provided that persons between the ages of twelve and sixty not otherwise employed, and not being otherwise exempt

must serve at husbandry

; that artifcers and other persons " meet to labour" must work on the land at the time of the hay or corn harvest

;4

and that any householder tilling half a plough land should be allowed to take an apprentice in husbandry

.6 At the same time the property qualification and other conditions which a parent must comply with if he wished to apprentice his children to certain trades were designed to secure a supply of labour sufficient for the needs of landowners and farmers

.6 Such encouragement, by helping forward changes which increased the productiveness of the land, diminished that danger of scarcity or famine which was an ever-present fear to the statesmen of the sixteenth century

; while the duty imposed on export in times of plenty brought revenue to the state.

In fact the changes in the agricultural industry were analogous to the changes which were taking place in other branches of industry. In all alike the application of capital introduced new methods, a more elaborate organization, and a larger output

.7 The business of agriculture, like other businesses, was now carried on, not entirely with a view to the maintenance of the landowner and his family from the produce raised, but also with a view to the profitable sale of the produce in a market

.8 This development could hardly have taken place unless these large changes in agricultural methods had been made. The common field system left little scope for the energies of an enterprising man. It was otherwise under the new system under which compact farms were managed by one person. Sir Thomas Smith notes that the thrifty yeomen "daily doe buy the landes of unthriftie gentlemen

.9 In fact it paid an enterprising man to invest capital in the land. Nor was there any want of persons ready to invest their money in this way. Not only yeomen, but also prosperons merchants were ready to do so, because they could make a profit out of the land by letting it to the yeomen farmers

,10 and because

**972 LAW IN XVITH AND XVIIITH CENTS.**

of the improved social position which the ownership of laged conferred upon themselves or their descendants.1 Serathon writers and satirists constantly denounced this tendency; 2 and Thomas Cromwell once thought of passing an Act to prohibit merchants from purchasing land of a greater value than $\\zeta\_{40}$ a year.3 No legislation on these lines was proposed. The extravagance of Henry VIII.'s court,4 and the dissolution of the monasteries, brought much land into the market, and any could buy land who could afford it. It was fortunate, not only for the agricultural industry, but also for the welfare of the country as a whole, that this was so. The new race of landowners were generally thrifty and enterprising; and they soon became imbued with some of the best traditions of the class to which they had attained.

Footnote 1: Cunningham, op. cit. ii ii, iiz; Aydelotte, op. cit. 17.

Footnote 2: Johnson, op. cit. 76 and references there cited; see Crowley, Last Trumpet (E.F.T.S.) 87.

Footnote 3: L. and P. ix no. 725 _ii_ Cromwell's remembrances--"that an act be made that merchants shall employ their goods continually in traffic, and not in purchasing lands; and that craftsem shall continually use their crafts in cities and towns, and not take farms in the country; and that no merchant shall purchase more than $\\zeta\_{40}$ lands by the year."

Footnote 4: A Supplementation to Henry VIII. (E., E., T.S.) Extra Series xiii gz (published r544):

Footnote 5: Mr. Johnson, Disappearance of the Small Landowner $\\xi\_{3},8\_{4}$, gives an excellent description--"At the head of this powerful, and to a great extent homogeneous aristocracy, stood the peers, closely connected with the largest of the squires by social, if not by blood, ties--a class into which their younger children were ever descending and from which they were ever being recruited; while the body of the country gently, who formed the great bulk of this curious astrocracy, was ever being added to from below by the admission into their ranks of the successful lawyer, the banker, merchant, or other prosperous man of business or affairs."

We have seen that it was on the land-owning class that the burden of carrying on the government mainly fell. And, just as the system of government which it was called upon to administer retained many medieval traits, and yet was essentially modern in its subordination to law and central authority; so this new race of landowners retained the best feature of feudalism in that they continued to perform faithfully unpaid public services, and yet proved to be efficient officials of a modern state. No other country could show either a system of government or a body of administrators possessing this curious blend of medieval and modern characteristics. It is, in fact, this blending of the characteristics of the medieval baron with those of the modern enterprising landowner which is the distinctive feature of the English aristocracy of the seventeenth and eighteenth centuries --an aristocracy reminiscent of feudalism in its connection with the land and its performance of public duties, but eminently modern and efficient because it was constantly recruited from successful men in all walks of life.6 Like so much else that is

**COMMERCE AND INDUSTRY 978**

**Characteristic of modern England, it came with the sixteenth century; and it is to the industrial and agrarian changes of that century that we must ascribe its origins. Just as the physical result of these industrial and agrarian changes was the creation of our familiar English landscapes of inclosed fields and trees and hedges, so its political result was the creation of this new governing class, whose achievements during the three following centuries have played no inconsiderable part in making the British empire of to-day. If we remember that it controlled the local government of the country from the sixteenth to the nineteenth centuries; that it led the struggle for constitutional government in the seventeenth century; and that, in the eighteenth century, it helped to lay the foundations of the British dominions beyond the seas, and added to the world's stock of political ideas by evolving the system of cabinet government--we must admit that it has a record which few aristocracies can show.**

**(ii)**: _The food supply and prices._

\*\*Though the government had no desire to discourage agrarian changes which made for the greater productiveness of the land, it had no intention of allowing all the profit of this increased productiveness to go to the producer. It desired rather to see its results so distributed that all parts of the country and all members of the community should be supplied at reasonable rates. In the interests of the consumer, and especially of the poorer class of consumers,**1** \*\*it took immense pains to secure this result; and on the whole its efforts were successful.**2** \*\*Its measures initiated the effects of times of scarcity, and thus took away the occasion for those disorders which such times often provoke.**3** \*\*I must, in the first place, say a few words as to the measures which the government took to accomplish this result; and, in the secondLaw in Xvith and Xvitin Cents.

place, I must deal with the rules of law under which these measures were taken.

(_a_) _The measures taken by the government to ensure an adequate food supply and due distribution._

In the days when facilities for transport were defective it might well happen that a time of plenty in one part of the country was a time of scarcity in another part.1 The Council, through the justices,2 through special local commissioners for grain or victuals,3 and, in the towns, through the clerks of the market,4 kept themselves well informed as to the supplies existing in all parts of the country. This knowledge enabled it in a time of scarcity to permit large towns like London or Bristol to draw on the neighbouring counties for supplies ; and at the same time, by limiting the amount of these supplies, to prevent the demands of the urban districts from causing a famine in the rural districts.6 Jt enabled it to decide whether the price of corn was sufficiently low to justify the exercise of the statutory permission to export, or whether the price was so high that permission must be withdrawn.6 With a view of preventing or mitigating the effects of a time of scarcity it kept a strict supervision over the corn badgers and other local dealers in provisions 7--a task which was facilitated by the statutes which compelled these persons to be licensed.8 Moreover it used its powers to compel owners to bring their stocks of provisions to the markets and to

## 6 Commerce and Industry 375

Sell them at reasonable rates.1 It even commandeered the cargoes of **?** or foreign ships 3 in English ports, and compelled a sale at the current market price. There can be no doubt that the information acquired by the Council and diffused throughout the country, and the constant action taken or directed by it, was of great benefit to the consumer. But, it may be asked, what legal warrant had the Council to exercise these large powers? The answer is that the statutory strengthening of the common law, both as to forestalling, regrating, and ingrossing, and as to combinations to raise the prices of food, coupled with the prevailing economic idea that it was the duty of the government to see that a just price was charged,4 permitted it, with public approval,5 to assume this wide authority to suppress practices which appeared likely to hinder the adequate supply and the fair distribution not only of food, but also of other commodities. These branches of the law thus played an important part in the economic scheme of the sixteenth and seventeenth centuries ; and they were still existing law when Blackstone wrote.6 Of them, therefore, I must say something.

Footnote 1: Dasent v 84 (1554); xxvi 38o (1596); cf. the scarcity orders of 1586, Leonard, op. cit. 87 and App. v. .

Footnote 2: Dasent xiv 155 (1586).

Footnote 3: Ibid xxvi 445-447, 454-547 (1596-1597).

Footnote 4: Above 373 n, 2.

Footnote 5: Above 373 n, 2.

Footnote 6: Bl. Comm. iv 158, 159.

Footnote 7: 5, 6 Edward VI. c. t4 SS 1-3.

Footnote 8: Statutes of Uncertain Date i 202 (Rec. Com.), "Nullus Forestellarius in villa paticur morari, qui pauperum sit depressor manifeste, et totius communitatis, et partize pulucis inimicus; " for the position of these so-called statutes see vol. ii 222-223.

Footnote 9: 25 Edward III. st. 4 c. 3; 27 Edward III. st, 2 c. 11; 28 Edward III. c. 13 SS 3 cp. vol. ii 4/9.

(_b) The rules of law under which the government acted._

In 1551-1552 the legislature defined the offences of forestalling, regrating, and ingrossing.7 A forestaller was defined as a person who purchased or contracted to purchase goods while on their way to a market, or who attempted by any means to enhance the price of such goods, or who persuaded persons not to come to the market or not to bring goods to market. A regrator was defined as a person who bought corn or other provisions in a market and sold the same again in the same market or at another market within a radius of four miles. An ingrosser was defined as a person who bought up growing corn or other victuals in order to sell them again. These definitions were intended to give precision to an old branch of the common law,8 enforced by earlier statutes,9 but never accurately defined. We have seen that in the Middle Ages it was considered that prices should be4. 376 LAW IN XVITH AND XVITH CENTS.

determined, not by the law of supply and demand, but by considering what amount would be a fair return to the producer, having regard to the cost of production ; and that consequently any manipulation of the market with a view of manipulating the price in the interests of either buyers or sellers was illegal.1 It was operations of this kind which were called forestalling ; and clearly the prohibition of this sort of conduct rested on a principle analogous to the prohibition of usury,2 in that both prohibitions were designed to secure the fairness of mutual dealings between man and man.

Footnote 1: Above 344 and n. 6; vol. ii 468-469.

In the Middle Ages the law as to forestalling was strictly enforced, generally in the local courts both of the country at large and of the boroughs,3 and sometimes in the courts of common law. A case reported in one of the books of Assizes 4 illustrates its scope. The report tells us that a Lombard was indicted in London for various offences, and among others for practising by words to enhance the price of merchandise. It was suggested on his behalf that, as his words had not had the effect intended, and no damage had been done, he had committed no offence. But this plea was over-ruled ; " and Knivet said, that certain people (whom he named) came into the district of the Cotswolds, and, in deceit of the people, spread the report that there were such wars in foreign parts that no wool could pass the sea in the following year, by reason of which report the price of wool was lowered. And they came before the king's Council, and could not deny that they had done this, by reason of which they were put to fine and ransom ; and this case cannot be distinguished."

Footnote 4: 43 Ass. pl. 38.

Footnote 5: 5, 6 Edward VI, c. r4 SS x0; for another statutory modification in the case of the butter and cheese trade see 27 James I. c, x0.

Footnote 6: Ibid SS 4.

The new economic conditions of the sixteenth century naturally demanded a reconsideration of the old doctrines. The view which the legislature took was that the old doctrines must be relaxed somewhat in certain defined cases, e.g. corn could be ingrossed if the price fell below a certain limit; 6 but that, with a view to the preservation of the peace of the state and the welfare of the community, they must, except in the defined cases, be rigidly applied to regulate the internal trade of the country. With this object in view the legislature defined the offences and imposed severe penalties on those who committed them.7 Moreover, it was not content with passing Acts against practices which

## 6 Commerce and Industry

The advanced prices. It endeavoured to fix directly a fair price not only for victuals but also for other commodities. Thus in Henry VII.'s reign Acts were passed which fixed the price of cloth and of caps.1 In I511-I512 an Act was passed to regulate the mode of fixing the price of victuals in corporate towns where the head officer was a victualer;2 in 1532-I533 the maximum prices for meat were fixed;3 in 1533-I534 a general Act was passed to provide that if the price of victuals was unreasonably enhanced in any part of the kingdom, the Council should be able to fix a reasonable price;4 in 1552-I553 the price of wine sold by retail was fixed.5 The legislature also endeavoured to suppress combinations to raise the price of victuals. There can be little doubt that these combinations were unlawful at common law--they were a form of forestalling.6 But here again a further definition of the law was thought to be desirable. In I548 it was enacted that if any butchers, brewers, bakers, poulteres, cooks, costermongers, or fruiterers should conspire not to sell their victuals but for a certain price, they should be punished as provided by the Act; and that if any society or company of victualers were guilty of this conduct such society or company should be dissolved.7

Footnote 1: _A_: Henry VII. cc. 8 and 9; see above 302 for the proclamations on this subject.

The Council, the local authorities, and the common law courts actively enforced this legislation.

Cases in which their infringement was complained of frequently came before the court of Star Chamber;8 and the records of the Council contain many entries as to the suppression of forestalling and ingrossing,9 and orders to dealers in victuals and other commodities as to the prices at which they must sell their goods.10 In fact the prevailing economic idea that the price charged for a commodity ought to be just gave the Council a very free discretion to issue orders upon this subject. Thus in 1596 it issued a proclamation to the effect that the badness of the season and consequent scarcity did not justify those who held

### Law in Xvith and Xvith Cent

stocks of corn from raising the price,1 and conversely, in 16994 told the justices that the goodness of the season did not justify sales at unremumerative rates.2 Such statements are a strong illustration of the tenacity with which the medieval view that price should be determined by considerations of justice and equity was held all through this century.

Footnote 1: See the Proclamation of July 3rst, 1596, cited Cunningham, op. cit. ii g3 n. 2; cf. above 3t8 n. 2 for the same idea expressed by Crowley.

Footnote 2: Leonard, op. cit. 203 citing a letter of the Council to the Justices in which they were urged to establish a magazine for surplus corn because it is, " the care of the state to provyd, as well to keep the price of corn in types of plenty at such reasonable rates as may afford encouragement and lively good to the farmer and husband-men, as to moderate the rates thereof in time of scarcitie for the releefe of the poorer folk."

The municipal authorities 3 and the justices of the peace 4 cooperated with the Council, acting either on its directions or independently. Nor were the common law courts behind hand in their strict enforcement of the law. Coke tells us 5 that in 1598, " it was upon conference and mature liberation resolved by all the justices that any merchant, subject or stranger, bringing victorals or merchandise into this realm, may sell them in gross, but that the vendee cannot sell them again in gross, for then he is an Ingrosser . . and may be indicted thereof at the common law, as for an offence that is _malum in se._ (2) That no merchant or any other may buy within the realm any victoral or other merchandise in gross again, for then he is an Ingrosser and punishable _ut supra:_ for by this means the prices of victorals and other merchandise shall be inhaunced, to the grievance of the subject ; for the more hands they pass through the dearer they grow. . . And if these things were lawful, a rich man might ingross into his hands all a commodity, and sell the same at what price he will. And every practice or device by act, conspiracy, words, or news to inhaunce the price of victorals or other merchandise was punishable by law." No doubt these restrictions were irksome to the traders ; and sometimes they tried to effect impossible things. It was impossible, for instance, to keep prices at their original low level when the value of money was falling, in consequence of the greater abundance of the precious metals ; and the more elaborate organization of trade, which came in later days with its expansion, necessitated some relaxation and some re-statement of old doctrines--just as in our own days it has been necessary to relax and re-state the

## 6 Commerce and Industry

1.1 **Common law rules as to contracts in restraint of trade.** But in this period they certainly mitigated the hardships of times of scarcity ; and they were not incompatible with the prosperity of either trade or agriculture.

The influence of the economists of the school of Ricardo secured the repeal of all this legislation in 1825;1 and the offences of forestalling, regrating, and ingrossing were abolished in 1844.2 But the use which traders have made of their freedom has shown that the Elizabeth judges were not wholly mistaken in their opinion that, "if these things were lawful a rich man might ingross into his hands all a commodity, and sell the same at what price he will." Trusts and combinations formed for this very object are phenomena not unknown to the modern world of commerce. They perhaps show that the common law doctrines as to forestalling and regrating were founded upon a knowledge of some very ineradicable human weaknesses; and that they had therefore at bottom a fundamental reasonableness which would have enabled them to be sufficiently developed and modified, as many other common law doctrines have been developed and modified, to remedy the same weaknesses appearing in another environment and under different forms. Possibly it may in the future be necessary to re-assert and enforce the principle at the back of these old doctrines, even as it has been found necessary to re-assert and enforce the principle at the back of the usury laws.3

Footnote 1: 6 George IV. c, tzq. 7, 8 Victoria c. 24 SS r.

Footnote 3: 63, 64 Victoria c. 51 (The Money-Ienders Act 1990). This was written before the Great War; many of the regulations made during the war to mitigate the food shortage caused thereby, show a reversion to these old principles which were permanently necessary at a period when shortage of the food supply was an ever-present fear.

The repeal of this legislation has also reacted upon the law as to the relation between employer and workman. When producers were compelled to sell at a fair price, when all devices to create an artificial price were illegal, there was nothing unjust in compelling the workman to sell his labour at a fair wage. It is clear, however, that when freedom of action was allowed to producers in their dealings with the public, the same freedom could hardly be denied to workmen in their dealings with their employers. But the intimacy of the relations between branches of the law which, before the Great War, modern legislation had unfortunately persisted in regarding as distinct, will appear more clearly when I have examined the Tudor legislation upon the topic of employer and workman.

(3) _Employer and Workman._

When the sixteenth century opened, the law as to employer and workman depended upon the Statutes of Labourers, and

### 980. Law in XVITH AND XVITH CENTS.

upon the case law which had grown up around them.1 The earlier legislation of the Tudor period merely modifier in certain details the mediaeval statutes.2 But, in t562-t563,8 the whole of this legislation was reconsidered. The main principles of the earlier law were adopted ; and the law itself was codified, and adapted to the needs of the sixteenth century. The statute deals with three of the most important aspects of the labour question--the technical education of the worker, the supply of labourers and its distribution as between the agricultural and other industries, and the relations between employer and workman. With the first two of these topics I have already dealt.4 I must now describe the manner in which this statute dealt with the third problem, and indicate its relations to the earlier legislation.

We have seen that certain definite principles underlay the mediaeval statutes of Labourers.6 Seeing that the Elizabeth legislation is a development and a modification of these principles,6 we shall understand it better if we take these principles in order, and examine how far it extended or modified them.

In the first place all persons coming within certain categories defined by the statute and able to work must do so. This principle is distinctly recognized by the third and seventeenth sections of the statute. The former section applied to men and the latter to women. But it should be observed that if the workman was not free to decline to serve, the employer was not wholly free to dismiss him as he pleased. On several occasions in the sixteenth and early seventeenth centuries the Council intervened to compel

**COMMERCE AND INDUSTRY 881**:

clothiers to go on manufacturing, although there was no market for their goods.1 In i586, for instance, it put pressure both upon the clothiers to go on with their manufacture, and upon the Merchant Adventurers to go on buying, in order -that there might be no unemployment.2 In the printing trade the orders of the Star Chamber made it obligatory upon the master printers to provide work ; and this obligation was maintained by the licensing Act of Charles II.'s reign.3 Similarly the number of copies to an edition was deliberately limited in order to find work for the compositors ; and all attempt to evade this rule by keeping the formes of type standing were suppressed.4 It is true that the duty to provide work was not a statutory duty, nor perhaps a common law duty. But a duty enforced by the Council was far from being a merely moral duty. The idea that such a duty ought to be enforced was in harmony with the economic ideas of the period--it is clearly analogous to the idea that a time of scarcity did not justify the vendors of foodstuffs in selling at an excessive price ; 6 and thus the Council, having public opinion on its side,6 was able to enforce it as if it were a legal duty.

Footnote 1: Cunningham, op. cit. ii 50, citing instances of such action by the Council in 1528, r586, r591, f622, r623; S.P. Dom. (_169_-1623\_) 343, cxxvii no. 76; Ibid 358, cxxvii no. 49; ibid 362, cxxivii no. 67; Leonard, op. cit. 47-49, 177-149, r52, 153; the manner in which foreign trade was organized, above 320-322, enabled this pressure to be applied with effect; as Miss Leonard points out, op. cit. 152, 153, the Council could tell the Merchant Adventurers that if they would not buy the cloth the trade would be thrown open ; thus " the London merchants had to choose between competition from rivals or the loss involved in buying the stocks in the manufacturer's hands; " the results were sometimes disastrous to the employers, see S.P. Dom. (_1637_) 61, ccclv no 67. 2

Footnote 2: Dasent xiv 272-274; in the same way inventions were discontinuenanced that produced unemployment, above 354 and n. 7; cf. Tudor and Stuart Proclamations i no. 1739 (1673)--the import of felts, hats, and caps was stopped because it threw people out of work.

Footnote 3: Vol. vi. c. 7.

Footnote 4: Arber, A Transcript of the Stationers' Register ii Introd, 23; ibid 883--order3 of the Stationers' Company made in 1587, and see iv 21-23; as Arber says, ibid iv 26, " In Elizabeth's reign a large London impression only meant so much less demand for a compositor's skill, and consequently oftentimes so much loss of daily bread. So that between Master and Journeyman printers, there was always a strike over standing forms of type ; whereby the type being kept undistributed for a while, might obviate the necessity of a fresh composition for a second edition."

Footnote 8: Above 377-378.

Footnote 9: Cunningham, op. cit. ii 50; cf. E.H.R. xiii 97-93; in r62z the Council lay it down that " the rule by which the wool-grower, the cloathier and merchant must be governed," is, " that whosoever had a part of the gaine in profitable times since his Majestic's happe raigne must now in the decay of Trade . . beare a part of the public losses as may best conduce to the good of the public and the maintenance of the general trade," cited Leonard op. cit. 148; S.P. Dom. (_1639_-1640\_) 38, ceccoxxii no. 22--report on an inquiry ordered by the Council into certain trade disputes, including the dismissal of workmen.

In the second place workmen must work at a reasonable rate of wages. We have seen that it had already been recognized that the ascertain

### Law in Xvith and Xvith Cents.

of necessaries.1 The Act of Elizabeth fully recognized this principle. It provided machinery for periodically fixing this state, and it did not attempt to prescribe, as some of the earlier Acts had prescribed, a maximum amount. The rate was to be fixed annually by the justices of the peace at the Easter sessions, and, by the i 2th of July, it was to be returned unto the Chancery engrossed on parchment, together with the justices' reasons for thus fixing the amount. It was then to be approved by the Council, and by the Council sent down to the sheriffs to be proclaimed.2 The justices also were required to " make a special and diligent enquiry of the branches and articles of the statute, and of the good execution of the same."3 A special allowance was made to them for the extra work imposed upon them by the Act; and a penalty was imposed on justices absent without good cause from the sessions held to fix the rates of wages.4 Evidence is accumulating that the Council was quite ready to intervene if the wages were not regularly or not fairly fixed by the justices in accordance with the Act,6 or if employers did not pay them.6 It appears, too, from a later Act of 1597 7 that the scheme was working satisfactorily. This later Act made it quite clear that the provisions of the earlier Act applied to all classes of workmen, and made a slight change in the method of procedure by dispensing with the certificate into Chancery and the approval of the Council.8 It should be noted also in this connection that the same Act of Edward VI. which declared that combinations of producers to raise the price of victuals were illegal, applied also to combinations of workmen to raise the rate of wages.9 With regard to other incidents of the contract of employment the Act

## 6 Commerce and Industry 388

followed earlier precedents by prescribing that, in a large number of specified employments, the hiring must be for one year, and that a quarter's notice must be given to terminate the contract by either employer or workman; 1 but these rules did not apply in the case of workmen hired by the day or week, or to do a particular piece of work.2

Footnote 1: 5 Elizabeth c. 4 SS8 SS a and 4; cf. 23 Henry VI. c. rz; perhaps this clause gave rise to the presumption, which at one time existed, that an indefinite hiring was a yearly hiring, cf. Co. Litt. 42b; Fawcett v. Cash (1834) 5 B. and Ad. 904.

Footnote 2: 5 Elizabeth c. 4 SS8 SS 9 and 1o.

Footnote 3: 5 Elizabeth c. 4 SS8 SS 7 and 8.

Footnote 4: 5 The ordinance of 23 Edward III. had enacted, SS 2, that no workman depart before the end of the agreed term, " et nullus subeodem pensa (imprisonmen) talem in servitio suo reciprose vel reti retirene presumat;" thus a person who retained another's servant committed an offence under the Act, and the courts deduced from this the existence of a civil right of action, vol. ii 460 n. 3.

In the third place wrongful dismissal, wrongful departure, a refusal to work at the statutory rates, or the giving or receipt of wages in excess of the statutory rates, were offences under this, as under the earlier Acts.3 The observance of some of these provisions was secured by clauses, also to be found in another form in some of the earlier Acts,4 which required a workman to produce letters testimonial in a form fixed by the statute showing that he was free to hire himself, and prohibited employers from engaging workmen who could not show a testimonial in proper form.5

Footnote 3: 5 Elizabeth c. 4 SS8 SS 2 and 4; cf. 23 Henry VI. c. rz; perhaps this clause gave rise to the presumption, which at one time existed, that an indefinite hiring was a yearly hiring, cf. Co. Litt. 42b; Fawcett v. Cash (1834) 5 B. and Ad. 904.

Footnote 4: 5 Elizabeth c. 4 SS8 SS 9 and 1o.

Footnote 5: 5 Elizabeth c. 4 SS8 SS 7 and 8.

Footnote 6: 5 SS 7 The ordinance of 23 Edward III. had enacted, SS 2, that no workman depart before the end of the agreed term, " et nullus subeodem pensa (imprisonmen) talem in servitio suo reciprose vel retirene presumat;" thus a person who retained another's servant committed an offence under the Act, and the courts deduced from this the existence of a civil right of action, vol. ii 460 n. 3.

Footnote 8: 5 See 3, 4 Edward VI. c. r6 SS 1r, which gives this right of action under the Statutes of Labouvers to masters against those who had enticed away persons appreciated under the Act.

Footnote 9: Above 380 n. 6.

In the fourth place the provisions of some of the earlier Acts as to assaults on employers, and as to the machinery for arresting fugitive servants, were re-enacted.6

Footnote 6: Adams and Bafead's Case (1597) r Leo. 240.

It will be observed that the statute did not in terms give any right of action against a person who entices or procures another to depart from the service of his employers. Nor was such a right of action expressly given by the earlier statutes. But the courts had ruled that by implication they had conferred such a right of action,7 and the legislature had indirectly sanctioned this view.8 The existence of this right of action was not affected by the repealing clause of the statute of Elizabeth,9 and, accordingly the courts held that it still existed.10 But there was some difference of opinion as to the conditions under which it lay. The majority of the court in \_Adams and Bafead's Case_11 held that it would only lie if a procurement or enticement could be shown ; and that the mere retainer of a person known to be another's servant would not suffice. But Gawdy C.J. dissented from this

### 884 Law in Xvith and Xvitith Cents.

view ; and his opinion seems to be more in accordance with the older authorities, which allowed a cause of action if a person refused to give up a servant after notice of an employer's claim.1 In 17952 the court of King's Bench adopted Gawdy's opinion. It based its decision on the general ground that " a person who contracts with another to do certain work for him is the servant of that other till the work is finished, and no other can employ such servant to the prejudice of the first master."3 The Statutes of Labourers were not mentioned either in the argument or the judgment ; and from this we may conclude that the older idea that the contract of employment gave the employed a sort of special status was disappearing. Since relationship of master and servant was regarded as contractual, the cause of action was regarded as consisting of the fact that a breach of the contract of service had been facilitated.

Footnote 1: Vol. ii 46a; cf. J.Aumley v. Gye (r853) 2 E. and B. at pp. 255-258; it may also be noted that the machinery of letters testimonied by the Act of Elizabeth would make it very difficult to engage another's servant without committing an offence under the Act ; and this fact, taken in conjunction with the interpretation put upon the earlier Statutes of Labourers, was a reason for giving the right of action in accordance with Gawdy's view.

Footnote 2: Blake v. Lanyon 6 T.R. 221.

Footnote 3: Ibid (1795) 6 T.R. at p. 222.

Footnote 4: F.N.B. r68 c ; Hart v. Aldridge (1774) 1 Cowp. at p. 56 _for_ Lord Mansfield.

Footnote 5: Blake v. Lanyon.

Footnote 6: (1853) 2 E. and B. 216.

Knowingly4 to retain a servant after notice of the employer's claims, was regarded as facilitating such breach--"the very act of giving him employment is affording him the means of keeping out of his former service."5 Thus the idea that the master has something in the nature of a real right to his employee's services was retained in a form adapted to the purely contractual basis which the relationship had then assumed. But this new conception of the nature of the cause of action paved the way for the idea that the gist of the action was the causing of a breach of contract ; and for the enormous extension which was given to that cause of action by the decision in _Lumley v. Gye_,6 that a persuasion to break any contract gives a like cause of action.

Footnote 5: After the decision in Lunley v. Gye it might perhaps be both more logical, and more in accordance with the course of the historical development of the law, to hold that contracts of service are governed by the same law as any other contracts, and that therefore an action will only lie against a person who interferes with such a

**COMMERCE AND INDUSTRY 885**

of these developments, and of the freedom of action allowed by ourmodern law both to employers and employed, a new chapter of the greatest importance has been added to that branch of legal doctrine which is on the border line between contract and tort.

In modern times the Elizabethan law as to employer and workman has often been severely criticized. The attempt to fix the rate of wages has been treated either as a vain attempt to do an impossible thing, or as an enactment made for the purpose of keeping wages down in the interests of the employer; and in support of the latter view the prohibition of all combinations to raise wages has been adduced. The obligation of all to serve at their trades has been treated as another instance of the manner in which the legislature exploited the labourer for the benefit of the employer; and the fact that the workman who broke his contract was liable to imprisonment, while the employer was liable only to a pecuniary penalty and a civil action for breach of contract, is regarded as another instance of legislative favouritism. But most of these criticisms are based upon a one-sided view. They look at the law affecting the workman without looking at the law affecting the employer. In fairness to the Elizabethan legislators we must take the same comprehensive view of the situation that they took, and consider these laws affecting the workman both in relation to the laws affecting the employer, and in relation to the general economic ideas which they assumed as a basis of their legislation.

We have seen that the rules as to fixing the rates of wages were intended to be, and, so far as our evidence goes, were enforced with the object of giving the workman a living wage. They were rules which provided a sliding scale for the raising or lowering of wages as the cost of living was raised or lowered. This method of ascertaining the rate of wages was correlative to the method of ascertaining the prices of food and other commodities. In both cases public authority intervened, on the one hand, to prevent the workmen charging too much or getting too little, and on the other, to prevent the producer from charging an excessive price, having regard to the cost of production. Now if public authority intervenes to fix wages and prices on a basis of fairness and justice, it is clear that it cannot allow either

### Law in Xvith and Xvith Cents.

workman or employer to disturb this settlement. It cannot allow workmen to combine to get more ; and equally it cannot allow the employer to get more by similar combinations, or by such operations as forestalling, ingrossing, or regrating. The workman was, it is true, obliged to serve : but this obligation to serve was correlative to the obligation to employ. We have seen that the government insisted that in bad seasons the employer was not free to dismiss his men as he pleased. If in good seasons he got labour at a fixed wage, in bad seasons he must keep the labourer and pay the same wage. With regard to the difference of remedy the legislature took the sane view that it is to the interest of the state that contracts be kept ; and that, as a pecuniary penalty and a civil action for damages are useless remedies against a man with no estate, other more efficient remedies must be provided. The poor man because he is poor cannot be allowed to break his contract as he pleases. We may if we please consider that the Elizabethan legislator was attempting the impossible when he thus tried to regulate wages and prices ; but we must admit that he applied his rules fairly to both the employer and the workman. In neither case did he allow entire freedom of contract.

In truth, until political economists of the earlier half of the nineteenth century converted the legislature to the belief that freedom of contract was the cure for all social ills, no one ever imagined that wages and prices could be settled merely at the will and pleasure of the parties to each particular bargain ; or that the contract between employer and workman could be regarded as precisely similar tc any other contract. We have seen that the legislature considered, with some reason, that to allow prices to be thus fixed would lead to manipulations of the market in the interests of producers or vendors--to forestalling and regrating, or, to use modern terms, to corners and trusts. Similarly it considered, and with equal reason, that the price of labour could not be fixed in this way ; and that having regard to the position of the parties to the contract, special remedies for its breach must be devised. It saw that to leave the wage of the workman to be determined by the bargain between the parties was not fair to the workman because it put the economically weak at the mercy of the economically strong ; and that to threaten merely a pecuniary penalty and an action for damages for breach of contract against an insolvent workman was no remedy at all. In the interests of the workman the wage must be fixed : in the interests of the employer there must be something more than a merely pecuniary penalty for the breach of the workman's contract.

## 6 Commerce and Industry 887

In the early years of the nineteenth century the statutes which had imposed restrictions on the freedom of employers to manipulate prices were obsolete; and in 1825 and 1844 they were, as we have seen, repealed.1 Prices were therefore left to be fixed by the law of supply and demand; and manufacturers were left free to manipulate the market as they pleased by combinations or otherwise. The active interference of the Council in industrial concerns had ceased after the Restoration; and therefore in times of trade depression employers could dismiss as many men as they pleased. By the same period the parts of the Elizabethan legislation which enabled a fair wage to be fixed by the justices were also forgotten; and when in 1813 Parliament was asked by the Lancashire wears to revive them, it replied by repealing them.2 As a natural consequence workmen have by gradual stages attained an equal liberty to obtain by combination or otherwise any wages they think proper. The law has in fact abandoned the greater part of its control, both over the relations between producers and the public, and over the relations between employers and workmen.

Footnote 1: Above 379.

The Tudor statesmen, like the statesmen of the nineteenth century, were confronted with the task of adjusting old laws to the needs of changed commercial and industrial conditions. They faced the task, and at least succeeded in restoring a large measure of industrial peace. The statesmen of the nineteenth century contented themselves with repealing the old laws without putting anything in their place. In this way they succeeded in using the jurisdiction of the courts over a large range of questions closely bound up with the peace and well-being of the state, with the result that these questions, like the questions which arise in international law between sovereign states, can only be settled by reference to the fighting force of the contending parties. Our modern methods of strikes and lock-outs tempered by voluntary arbitration do not compare favourably with the firm control maintained by the state and the law in the sixteenth century.

I consider, therefore, that the legislation of this period on the subject of employer and workman was a well-thought-out scheme, logically connected with the legislation on the cognate subjects of the food supply and prices. It is, as we shall now see, as logically connected with the legislation on the cognate subjects of unemployment and pauperism.

(4) _Unemployment and Pauperism._

" The poor we have always with us;" but in a comparatively primitive society the problem of the indigent and the impotent

### 88 Law in Xvith and Xvith CENTS.

is not very complex ; and in the earlier mediaeval period there were evolved a certain number of institutions and agencies, for dealing with it, which were fairly adequate. But the complexity of the problem increases as the organization of society grows more elaborate ; and, in the middle of the fourteenth century, the economic changes which led to the rise of the free labourer rendered these institutions and agencies wholly inadequate. The peace and security of the community were threatened by homeless able-bodied vagrants who supported themselves by preying on society, and refused to work for their living. The state therefore found it necessary to suppress these vagrants, and to distinguish between them and the impotent poor, who were unable to support themselves. The former must be dealt with by the criminal law : the latter were fit objects of charity. The economic social and industrial changes of the sixteenth century added further elements of complication. The problem of unemployment arose. It became necessary to distinguish between the idlers who refused to work, and the industrious who were willing to work, if work could be found for them. Clearly, if the health and strength of the nation were to be maintained and preserved, the state must endeavour to create an organization, which could not only reform and discipline the idler and help the impotent, but could also help the industrious to earn their living. The strength of a chain is measured, by the strength of its weakest link. It gradually became clear that unless the problem of providing and working such an organization could be solved, the objects of the commercial and industrial legislation which I have just described would be very imperfectly attained. After many experiments, the legislature evolved, in the last years of this and the first years of the following century, a code of law upon these matters, and a national machinery for the administration of that code, which have to a large extent survived to our own day. In that code are contained ideas and provisions drawn from all the periods through which the law on these subjects had passed. If, therefore, we would understand it, we must know something of the principles at the back of the earlier legislation, and of the social ideals at which that legislation aimed.

In the early mediaeval period the problems of unemployment and pauperism were not matters with which the central government of the state concerned itself. Society was, as we have seen, split up into a number of self-sufficing units.1 Each man was born to a definite status and a defined sphere of work ; and consequently in a comparatively stationary society, there was

**COMMERCE AND INDUSTRY 889**

**little or no want of employment.** The impotent or unfortunate were cared for (1) by the church, (2) by private charity, and (3) sometimes if they belonged to a gild, by the members of the gild.1\*\*

**(1) Some part of the title should have been devoted to the poor; but in the thirteenth and fourteenth centuries the titles had passed into the hands of monasteries, church dipinaries, and others, who did not regard themselves as bound to apply any part of them to this purpose.2 On the other hand, the monasteries spent considerable sums in relieving the poor who applied to them. But it was ill-regulated and indiscriminate relief. They gave alms " not only to the people of the district, but also to all strangers who chose to apply, without having any power of control over them."3 A better work was done by the hospitals and almshouses which were numerous throughout Western Europe. But in many cases these were in a decadent condition in the fifteenth century, and, in other cases, their income was mainly spent upon the officials who were supposed to administer them.4**

**(2) These hospitals were generally founded and largely supported by private charity. " For a long time almost every well-to-do citizen of London remembered the hospitals in his will."5 We have seen, too, that the mediaval will is distinguished by the number and variety of charitable gifts made by it.6 The day of the funeral, or the day on which the funeral was to be commemorated in successive years, was marked by a distribution of food and money.7 The great mobility often distributed once or twice a day large quantities of food to all who applied. " I myself," says Stowe,8 " in that declining time of charity, have oft seen at the Lord Cromwell's gate in London more than two hundred persons served twice every day with bread, meat, and drink sufficient; for he observed that ancient and charitable custom, as all prelates, noblemen, or men of honour and worship, his predecessors had done before him."**

\*\*(3) The religious gilds, more especially in the towns, were

### 390 I.aw in XVITH AND XVITH CENTS.

accustomed to give some relief to their poor mcmbers ; and, later, they sometimes maintained a hospital or an almshouse for this purpose.1 In the course of the fifteenth century the craft gilds followed this example. " During the course of the fifteenth century," says Professor Ashley, " all the more important companies in London erected such establishments."" Then again some of the village gilds possessed lands which after the Reformation were used for charitable purposes--the church house or gild hall sometimes becoming the parish workhouse.3

Footnote 1: Ashley, op. cit. 324-326.

Footnote 2: See instances by Professor Ashley, op. cit. 328 n. 76.

Footnote 4: Ibid 309.

Footnote 5: Below 393-394, 398-399.

Footnote 6: Vol. ii 459-460; abovc 379-380.

Thus in the Middle Ages we get, as Professor Ashley puts it, " a miscellaneous congeries of ,benevolent agencies, with no sort of mutual co-operation, and no adequate supervision of the recipients of charity." \[4\] They no doubt did good work by the assistance which they gave to the impotent or unfortunate in the earlier medieval period ; and at a time when the problem of the able-bodied vagrant was by no means acute they were not capable of doing much serious harm. With the rise of a numerous class of able-bodied vagrants, this indiscriminate charity became positively dangerous; and obviously it was wholly unfitted to deal with the problem of unemployment as it appeared in the sixteenth century. At the same time this charity was, and continued to be, a valuable aid to the impotent. Such of these medieval agencies as survived the Reformation were, as we shall see, utilized and co-ordinated with the national system created by the framers of the Elizabeth poor law, and provision was made to facilitate the creation of new foundations to further the various objects which this poor law was designed to effect.\[5\]

We have seen that the Statutes of Labourers bear witness to the fact that, in the middle of the fourteenth century, great social and industrial changes were taking place.\[6\] The refusal of the labourer to work at the old rates at once made the problem of the able-bodied vagrant acute, and therefore brought into prominence the evils of indiscriminate charity. The Statutes therefore provided, on the one hand, that labourers must work at the rates, of wages fixed by law and must not wander about the country unemployed ; and on the other, prohibited all giving of alms except to the impotent poor. The impotent poor were to remain where they were resident, or to be sent to the place of their birth.\[7\] Presumably the legislature expected that they would there get relief from existing charitable agencies, as it made no provision for raising funds for this relief, or for creating machinery to administer it.

**COMMERCE AND INDUSTRY** **891**

Up to the year 1535 the legislature adhered in substance to this scheme.1 The able-bodied vagrant was to be punished, and sent to the hundred where he last dwelt or was best known. No one was to harbour such persons or give them alms. The impotent poor likewise must not move from their place of residence or birth, but they were not prohibited from begging. In 1530-1531, however, it was thought advisable to prohibit all begging except under licence of a justice of the peace.2

Footnote 1: See e.g. _II_ Henry VII. c. 2; 19 Henry VII. c. 1z: cf. $I$ Edward VI. c. 3; 3, 4 Edward VI, c. 16; 14 Elizabeth c. 5.

Footnote 2: \_I_E Henry VIII. c. 1z SS 1.

Footnote 3: On this vagabond class generally see \_A_dplotte, op, cit.; on the literature to which this class gave rise see _ibid_ chap. vi.

But it was gradually becoming apparent that this scheme was wholly insufficient to cope with the growth of pauperism and unemployment. It was futile to enact that all men must work when no work was found for them. It was equally futile to expect that the impotent would be relieved in the places where they resided, when there were no funds wherewith to relieve them. In fact many causes had combined both in England and abroad to make the problems of unemployment and pauperism far more complicated than they had ever been before.3 In the first place the new capitalistic organization of trade produced fluctuations in the markets which threw many artisans out of work.4 In the second place the increased supply of the precious metals, and the debasement of the coinage, which occurred at the latter part of Henry VIII. and throughout $I$ Edward VI.'s reigns, caused an enormous rise in prices.5 In the third place the enclosures for pasture farming threw many out of work;6 and even enclosure for arable farming often meant the eviction of tenants.7 In the fourth place the great lords ceased to keep large bands of retainers, and let loose these idle ruffians on the country.8 Lastly the dissolution of the monasteries cut off a source of relief; and though this relief had been indiscriminate and pauperising in its effects, its sudden cessation obviously added to the existing distress.9 For all these reasons the state, both in England and abroad,10 found itself obliged to adopt new measures. It is in these new

**892 LAW IN XVITH AND XVITH CENTS.**

measures, adopted to deal with the new problems to which the new organization of commerce and industry had given rise, that we can trace the gradual evolution of the modern poor law.

A statute of I535-I536 marks the beginning of this new legislative era. The preamble announces the important discovery that the former Acts were defective because no provision was made in them for providing work for the unemployed. This means that the legislature had realized that provision must be made not only for the able-bodied vagrant and the impotent poor, but also for the able-bodied man who was idle from no fault of his own. But this made the problem far more complicated, because it was clear that neither the machinery of the criminal law for repressing vagrancy, nor the existing charitable agencies for the relief of the impotent, could meet this need. But it was likewise clear that unless some machinery could be devised capable of dealing with it there would never be any real security against internal disorder. The peace and prosperity and power of the state were dependent upon its solution.6

Footnote 6: I am grateful to the anonymous referee for his comments on the manuscript.

From 1535-I536 we can trace the growth of six main principles which underlie the poor law of the sixteenth and early seventeenth centuries :--(1) the duty to contribute to the support and maintenance of the poor is a legally enforceable duty to the state. (2) The parish, acting under the supervision of the justices of the peace, is the basis for the assessment of these contributions and for their due administration. (3) The impotent poor must be relieved in and at the cost of the places at which they are settled. (4) The children of persons who cannot maintain themselves must be taught a trade and set to work. (5) The able-bodied vagrant and the beggar must be suppressed by the machinery of the criminal law. (6) The able-bodied must have work provided for them and be compelled to do it.

Of the growth of the first two of these principles I have already said something.7 We have seen that the mediaeval view that the duty to contribute for these purposes was a duty of a religious character lived long ; and that the survival of this idea

## 1 Commerce and Industry 899

was one of the chief reasons why the legislature, from 1535-1536 onwards, chose the parish as the basis of its new system of poor relief and poor rates. The parish did not cease to be the basis of the system when, in 1563, this duty to contribute became a secular duty enforceable by the justices.1 We have seen, too, that the legislature found that the machinery which it had created for levying rates and administering the poor law had transformed the parish into a unit of local government, which afforded a far better basis for the new administrative powers of the justices than the older communities. Thus the completion of the new system of local government, which lasted till the reforms of the last century, was, to a large extent, due to the need for devising an adequate machinery for administering a national poor law.

Footnote 1: 5 Elizabeth c. 3.

The third principle that the impotent poor must be relieved in and at the cost of the places at which they were settled is, as we have seen, as old as the Statutes of Labourers.9 The statute of I535-1536 directed the officers of the towns and the churchardens of the parish to collect alms for this purpose; 3 and though the giving of alms, except for the purposes of the Act, was prohibited,4 parishoners were allowed to relieve the necessities of fellowparishoners.5 This principle was also recognized by Acts of Edward VI., Mary, and Elizabeth's reigns.6 But, till a compulsory rate was levied, it was obvious that the money collected might fall short of what was required; and therefore some of these statutes provide for the giving of licences to such persons to beg.7 It was not till 15728 that provision was made for the relief of these persons in hospitals. In 1551-1552 the bishops had been directed to enquire into the manner in which these hospitals applied their funds; 9 and now further provision was made for their supervision, and for the supervision of cther charitable foundations by the bishops and the justices.10 The same Act provided for the registration of the impotent persons settled in each parish, for the removal of non-settled impotent poor, and for assessments to be made for their relief on the basis of these registers.11 In this way such of the older charitable agencies as

### Law in Xvith and Xvith Cents.

had survived were used in conjunction with the new parochial machinery to relieve those impotent persons who had a clajm to be relieved by the districts in which they were settled.1

Footnote 1: A "Dovey 389-390.

The fourth principle that the children of persons who cannot maintain themselves must be taught a trade and set to work appears in the statute of 1535-1536. Children between the ages of five and fifteen must be employed in husbandry or apprenticed to some other trade.2 It was provided in 1549-1550 that the consent of the parents should not be necessary.3 The master was given a remedy against persons who enticed away his apprentice, and the justices were given jurisdiction to discharge apprentices illustrated by their masters.4

Footnote 2: If the parents were not in the same place, they were not in the same place.

Footnote 3: If the parents were not in the same place, they were not in the same place.

The fifth principle that the able-bodied vagrant and the criminal must be suppressed by the machinery of the criminal law also comes, as we have seen, from the Statutes of Labourers; 5 and it is maintained throughout the legislation of this period. The penalties of Richard II.'s statute were made less severe by two statutes of Henry VII.'s reign.6 But the severity of the penalties was increased by the statute of 1530-1531; 7 and in 1547 it was enacted that all such vagrants who refused to work, or who ran away, could be adjudged slaves of their masters for two years. A second attempt to escape was punished with slavery for life, and a third with death.8 This statute was repealed in 1549-1550, and Henry VIII.'s statute of 1530-1531 was revived.9 In 1572 the penalties were again increased in severity. A third attempt to escape from service was punishable by death.10 The same statute attempted to give a comprehensive list of those who should be deemed vagabonds, which is substantially the same as that given by the later Act of 1597.11 But the increase in the severity of the penalties for vagrancy was wholly unable to stamp it out. The penalties provided by the Act of 1530-1531 were restored by an Act of 1593;12 and it is clear from the researches of Harman,13 an Elizabeth justice of the peace for the county of Kent, that none of these penalties were successful in ridding the

## 1.1 Commerce and Industry 895

country of the troops of disorderly persons which infested it. There were ranks among them. They had a sort of organization, and a peculiar patter of their own. In fact it was impossible to stamp them out till the machinery for providing work for the able-bodied, and compelling them to do it, had been perfected.1

Footnote 1: Aydelotte, op, cit. 67. 27 Henry VIII, c. 25 SS L.

The sixth principle that work should be provided for the able-bodied, and that they should be compelled to do it was, as I have said, first recognized by the statute of i535-i536. It provided that the officers of towns and parishes should relieve the beggars settled there and set them to work. Parishes which neglected this duty were made liable to a fine of 40s, a month.3 This injunction to provide work was repeated in statutes of 1547, i549-i550, and i572.4 But no sort of instruction was given as to the manner in which this work should be provided. The result was that though the principle was admitted, it was not carried into effect. That it remained a dead letter is clear from the fact that it was enacted in i572 that if the poor in the cities wcrc too numerous they could be licensed to beg in certain districts.4 . It gradually became clear that if the legislature wished to give practical effect to this principle it must provide some workable machinery for carrying it into effect.

Footnote 1: Aydelotte, op, cit. 67. 27 Henry VIII, c. 25 SS L.

Footnote 3: I Edward VI, c. 3 SS 9, 10; 3, 4 Edward VI, c. r6 SS 4-6; 14 Elizabeth c. 5 SS 16, 17, 22, 23.

Footnote 4: I did 39.

In providing this machinery the legislature was assisted by the attempts which some of the larger towns had made to give effect to the principle.5 London had obtained Bridewell, a disused royal residence; and by i557 had established it as a hospital. There employment was provided for all applicants for relief, and thither the idle vagrant could be sent and compelled to work.6 The immates were paid for their work, and they paid a fixed charge for their food.7 In i57i a similar institution had been established at Norwich, together with a very complete organization for the relief of all kinds of paupers;8 and in Ipswich, York, and Gloucester hospitals had been built or refounded for this purpose.9 It was only by means of institutions of this kind that full effect could be given to the principle that work should be provided for the able-bodied; and it was not until such institutions became general that the other aims of the poor law could be effectively realized. As Miss Leonard says,10 " the organization for the relief of the poor had been called

**896 Law in XVITH AND XVITH CENTS.**

**into existence because the crowds of vagrants were a chronic nuisance and danger to society.** **Bridewell dealt with the most difficult class of these vagrants and gave some of them a chance of training and reform.** **Moreover Bridgewell as a place of punishment for idlers was the necessary counterpart of the new schemes for universal relief. It was impossible to relieve and find work for every one unless some means were provided for coercing and punishing the 'sturdy vagabond.'** **The institution of Bridgewell was therefore the keystone of the whole system."1** **In** 1575-1576\*\*\*\*2\*\* **the legislature made this institution a part of the national scheme of poor relief. It was provided that one or two houses of correction should be erected in each county for the punishment and employment of rogues.** **Further, in towns and in the country, at certain places to be fixed by the justices, stores of materials were to be collected upon which the poor could be employed. Those who refused to work on these materials, or who spoiled them, were to be committed to the house of correction.**

\*\*In the opinion of Coke it was upon the efficiency with which these houses of correction were maintained that the proper working of the poor law depended.**3** \*\*The severe corporal punishments of the earlier statutes had altogether failed in their object, and imprisonment, so far from reforming, actually corrupted. The house of correction, on the other hand, supplied a means whereby the rogue could be not only punished but reformed, and perhaps turned into a useful citizen. " Few or none," says Coke, " are committed to the common gaol but they come out worse than they went in. And few are committed to the house of correction but they come out better."**4**

**Thus by the year 1575-1576 all the essential principles of the later poor law had been adopted by the legislature. But it is one thing to adopt principles, and quite another to carry them into effect and to secure their smooth working. From** 1594 **to** 1597 \*\*there was a succession of bad harvests. The price of corn rose sometimes to four or five times the average price of the preceding years. This created an enormous amount of distress, and put too great a strain on machinery which was as yet very new.**6** **Thus in the Parliament of** 1597 **the measures to**

**COMMERCE AND INDUSTRY 397**

be taken for the relief of the poor occupied the first place, and a large number of bills were brought in to deal with various aspects of the question. Thirteen of these bills were referred to a large committee consisting of the most eminent members of the House. The committee sat in the Middle Temple Hall, and continued its meetings for the greater part of the session. The result of its deliberations was the Act for the relief of the poor, which is still the foundation of the poor law of to-day. But, besides this Act, many others were passed to deal with other aspects of poor relief. These Acts taken together form a great code in which is embodied the experience derived from the legislative and municipal experiments of the preceding years.1

Footnote 1: Leonard, op. cit. 73-80.

The first of this series of Acts was for the relief of the poor.2 The churchwardens and four overseers of each parish were to maintain and set to work children whose parents were unable to maintain them; to purchase stocks of material on which they were to set the poor to work; and to relieve the impotent. For these purposes they were to raise money by a rate; and power was given to the justices to rate a richer parish in aid of a poorer parish. Provision was made for the erection of \<\<ottages for the maintenance of the impotent poor. Parents were made liable to maintain their impotent children, and children their impotent parents--a liability extended in 1601 to grandparents and grandchildren.3 The earlier Act of 1575-1576 had provided for the maintenance of bastard children by the father.4 Begging was prohibited and all beggars were made punishable as rogues. The justices were empowered to levy a further rate for the maintenance of hospitals, almshouses, the relief of poor prisoners in the King's Bench and Marshalesa, and other charitable purposes. For this purpose no parish was to be rated at a larger sum than 6d. weekly or at a less sum than a $\\sharp$d. weekly, and the total rate for all the parishes in the county was not to exceed 2d. weekly.

Footnote 2: **39, 40 Elizabeth c. 3, substantially re-enacted by 43 Elizabeth c. 2; for an account of the very slight differences between the two Acts see Leonard, op. cit. 733-135.**

Footnote 3: **43 Elizabeth c. 2 SS 6.**

Footnote 4: **39, 40 Elizabeth c. 4.**

The second of these Acts was passed to punish rogues, vaga-bonds, and sturdy beggars.6 It repealed all former Acts ; and, following earlier precedents, gave a comprehensive list of persons who fell within these categories.6 The justices were ordered to

### Law in Xvith and Xvith CENTS.

establish houses of correction ; and all persons falling within the definition of rogue were to be whipped, sent to the place where they dwelt if they had any, or if not to the place where they had last dwelt " by the space of one year," or if that could not be discovered to the place of their birth.1 There they were to be kept at work in the house of correction. Dangerous rogues were to be committed to gaol and banished to such places out of the realm as should be assigned by the Council. This Act was supplemented in 1609-1610 by further provisions requiring the justices under a penalty of $\\mathcal{L}$5 a head to erect houses of correction. and providing for the management of these houses.2

Footnote 1: The author is grateful to the anonymous referee for the support of the manuscript.

The third of these Acts facilitated the foundation of hospitals,3 and was supplemental to earlier Acts passed to facilitate the foundation of houses of correction.4

Footnote 4: The author is grateful to the anonymous referee for the support of the manuscript.

The fourth of these Acts was passed to reform deceits and breaches of trust touching land given to charitable uses.6 The Lord Chancellor was empowered to issue a commission to the bishop of the diocese and others to enquire by a jury into the value and application of the revenues of charitable foundations. The orders of the commissioners were to be certified into Chancellor, and the Chancellor was empowered to take any proceedings on them that seemed to him to be expedient. Persons aggrieved by the orders of the commissioners could appeal to the Chancellor. The Act was enlarged and re-enacted in 1601;6 and this act of 1601 has had large effects upon the development of the law. The wide definition given, first by the court of Chancery and then by the common law courts, to the term "charity " was inspired, in the first instance, by the varied and comprehensive list of charities set out in the preamble to this statute;7 the pro

**COMMERCE AND INDUSTRY 899**

cedure provided by the Act enabled the Chancellor to intervene effectively to suppress breaches of trust; and the other provisions of the Act were so interpreted that he was able to give effect to many charitable gifts in spite of defects which would have been fatal to the validity of any other gift.1

Footnote 1: See generally Spence, Equity i 587-593; as Lord Macnaghten said in Pemsel's Case \[r89r\] A.C. at pp. 580, 58r, the statute did not originate equitable jurisdiction in cases of charity, see e.g. references to early cases cited by Spence 58r n. $f$; but it encouraged charitable gifts, and provided a machinery for dealing with breaches of charitable trusts; thus it is after the statute that we get a large number of such cases; nearly all the cases cited by Tothill, Choice Cases 20-33, are cases on this statute.

As the earlier statutes show, the assumption by the state of the burden of providing for the poor and impotent had led it to interest itself in the administration of public charitable trusts;2 and, as the legislation passed with the object of making this provision grew more elaborate and more extensive, the control of the state tightened. Thus it is ultimately to the evolution of the poor law that we must look, if not for the origins, at any rate for the modern development of the large control over public charitable trusts assumed by the court of Chancery, and of the still larger control entrusted by modern legislation to a body of Charity Commissioners.

Footnote 2: Above 393.

I.astly another Act was passed in 1601,3 in substitution for certain earlier Acts,4 for the relief of soldiers and mariners by means of weekly pensions assigned by Quarter Sessions. The money was to be raised by a weekly rate assessed on the parishes.

Footnote 4: 35 Elizabeth c. 4; 39, 40 Elizabeth cc. r7 and 21; c. r7 provided (SS 5) that the justices should find work for soldiers and mariners, and that they could levy a rate on the hundred for this purpose. It also provided severe penalties for those who wandered about the country pretending to be soldiers or sailors.

Footnote 5: ii Henry VII. c. z SS 5; rg Henry VII. c. r2 SS 7.

Footnote 6: 39, 40 Elizabeth cc. r and 2; above 366.

This Elizabeth code for the relief of the poor was an essential part, and the logical consequence of the industrial and social policy of the state. Henry VII.'s Acts against vagrancy contained provisions against the playing of unlawful games by apprentices, and empowered the justices to punish the keepers of gaming houses,6 while the series of Acts which make up this code of poor relief were preceded by two Acts which regulated tillage and enclosure.7 This code was, as Miss Leonard says,8 " part of a paternal system of government under which the rulers regarded the maintenance of the usual prosperity of every class as part of their duties." As we have seen, the state endeavoured in the interests of the preservation of order and the prosperity

### 400 Law in XVITH AND XVITH CENTS.

of all classes to keep the price of food low, and to keep employment constant, to regulate the relations of employer and workman, and to settle the conditions under which all kinds of trade, domestic and foreign, could be carried on. If these measures did not avail to prevent distress, the machinery of the poor law must be invoked to relieve the impotent, to feed the starving, to provide work for the unemployed, and to coerce the vagrant. Thus just as the commercial and industrial policy pursued by the Tudors created new commercial and industrial conditions which necessitated the growth of new branches of commercial law, so it created new social conditions which necessitated a national scheme for the relief of the poor. And, because this scheme for the relief of the poor was the logical outcome of the economic policy of the state, the persons relieved through its agency did not have the peculiar status which they have acquired under the wholly different economic system of to-day.1

Footnote 1: Leonard, op. cit. 203, 204--there was little distinction between the relief that came from the floor rates and that which came from voluntary donations or charitable institutions, * Ibid 277-292. * See ibid chaps. x and xi for the various methods of relief employed in town and country ; Miss Leonard enumerates the regulations as to the corn trade (above 374-375), provision of fuel in winter, help in time of sickness, help to sufferers from fire, apprenticeship, schooling, emigration, pressure on employers to employ, loans of capital. * Above 374-375; Leonard, op. cit. 184-197 for the administration of the scarcity orders in 1623 and 1630-1631. * Ibid 240, 241; cf. Aydelotte, op. cit. 57. * Miss Leonard (op. cit. 254) after examining much evidence, concludes that, " the efforts made by the central government to enforce the law were at last successful, and that the period to which we owe the survival of our English system of poor relief is that of the personal government of Charles I. ; " this is confirmed by many entries in the S.P. Dom. of the returns made by the justices as to what they hadFootnote 1: See \[11\] for a discussion of the _Judges_ of the \_Jud

### Law in Xvith and Xviith Cerns.

the poor law has been cast, to acquire a very intimate knowledge of the conditions under which the poor live.1 It has been no small factor in making modern England a peaceable and/law-abiding country.2 Its more immediate effect was to supply exactly the institution which was needed to ensure the success of the commercial and industrial legislation which I have just described. We shall now see that the success of this legislation has had large and permanent effects upon the ordering of all classes of English society.

Footnote 1: Leonard, op. cit. 3c2, 303.

Footnote 2: Ibid 303, 304--Miss Leonard tells us that, " " Louise Michelle on her visit to England was more struck by English poor relief than by any other English institution ; she said that a like system in France would have prevented the French revolution."

Footnote 3: Vol. i 464-466.

(5) _Classes of Society._

We have seen that in the Middle Ages the lines between the different classes of society were well defined. The various orders of the peerage and the knights, the esquires and gentlemen, the clergy, the lawyers, the merchants, the yeomen, the artisans, and the villeins, all held a very definite status of their own.3 In many cases these different classes were subject not only to special rules of law, but also to the jurisdiction of special courts ; and these very marked differences in legal position gave practical point and effect to the generally accepted belief that these differences between the various classes of society were necessary to its existence, and ordained, if not by the law of God, at any rate by the law of nature.4 This sharpness of definition gave to all the class distinctions of the Middle Ages a certain element of caste ; and, in some cases, the extent of these differences gave to certain of these classes---e.g. the clergy, the villeins, and perhaps the free labourers---almost a status of their own.

Footnote 3: Vol. i 568-573, 588-598.

The growing supremacy of the state and its laws over all persons and causes blurred somewhat the sharpness of these class distinctions. As the mercantile law and the ecclesiastical law came to be administered by courts which derived their authority from the state ;6 as villein status decayed ; 6 and as the holding of the villein got the protection of the central courts 7--the peculiarities in the legal status of the members of these different classes gradually became less marked. The commercial and industrial changes tended in the same direction. Commerce and industry were no longer organized and con

## 2 Commerce and Industry 408

ducted on traditional lines.More scope was allowed to individual activity and initiative.Men struck out new lines for themselves; and the state endeavoured to regulate these new activities in such a way that they conduced to the well-being of its subjects and consolidated its own power.\[1\] Great merchants, like Gresham, could sometimes do greater service to the state than the great landowners; \[2\] and, in some of the rules adopted by the governing bodies of the large towns, the legislature found models which they were glad to adopt as the basis of some of their statutes.\[3\] Merchants became landowners,\[4\] and, from this century onwards, the younger sons of the landed gentry turned to trade.\[5\] At the same time we get the rise of the different learned professions. We have seen that the profession of the law had been organized from an early period. Already in the days of Chaucer, lawyers were great purchasers of land.\[6\] The clergy occupied a less isolated position, now that the church had been made subject to the state. It was in this period that the profession of medicine began to get a definite organization.\[7\] Thus we get the rise of a great middle class closely connected in its highest ranks with the peerage, and in its lowest with the yeomen and smaller traders. It embraced the landowning, the commercial, and the professional classes; and its members were governed for the most part by the same rules of law, and subject to the jurisdiction of the same courts. Nor was it unusual for the members of this great class to pass from the grade in which they were born to other grades. Sir Thomas Smith tells us \[8\] that many yeomen, " after setting their sonnes to the schoole at the Universities, to the lawe of the Realme, or otherwise leaving them sufficient landes whereon they may

### Law in Xvith and Xvith Cents.

live without labour, doe make their saide sonnes by those means gentlemen." Thus although, as he says, the king alone could create knights, barons, or higher degrees, gentlemen " be made good cheape in England."1

Footnote 1: Republic Bk. i c. 20, " But ordinarily the king doth only make knights and create barons or higher degrees : for as for gentlemen, they be made good cheape in England. For whosover studich the laws of the realme, who studich in the universities, who profeseseth liberal sciences, and to be shorte, who can live idly and without manuall labour, and will beare the port, charge and countenance of a gentlemen, he shall be called master, for that is the title which men give to esquires and other gentlemen, and shall be taken for a gentleman."

Below this large middle class stood the agricultural labourers, the copyholders, the small shopkeepers, and the artisans.2 Their position, as defined by the labour and apprenticeship code of Elizabeth,3 retained more of the characteristics of a status than the position occupied by the higher classes ; and this was a necessary consequence of the commercial and industrial policy of the Tudors. The fixed rules of law as to rates of wages, and the other measures taken by the government to provide employment and cheap food, were necessary for the protection of the economically weak. The prohibition of a combination to raise wages, and the separate remedies provided to compel workmen to keep their contracts, were necessary in order to secure the peace of the state and the rights of the employer. As we have seen,4 those who obtained relief through the poor law did not occupy, as they occupy in modern times, a peculiar status of their own. The gift of such relief was an essential part of the industrial policy of the period. The law prohibited vagrancy and begging, and compelled able-bodied men and women to work. If work could be found in no other way the state undertook to provide it. Similarly the state recognized a duty to provide for the impotent and the unfortunate, and to mitigate as far as possible a time of scarcity or famine. But of this industrial code of the 'Tudor period the part dealing with the poor law has alone survived. When the state ceased to regulate the bargains made between employer and workman, the conditions of apprenticeship, the proportion of the labouring population employed upon manufacturing industries, and the prices of food, the pauper relieved by the state naturally came to occupy, under these new commercial and industrial conditions, an altogether unique status of his own. Historically that status is the product, not of the Elizabeth legislation which created the poor law, but of the repeal of the

**Commerce and Industry\*\*\*\*405**

Elizabethan legislation and the reversal of the Elizabeth policy as to commerce and industry.

It was no doubt difficult for the labouring class to rise in the social scale--more difficult than for the members of the wide and miscellaneous middle class. But it was not impossible. Moreover all these classes were not only protected by the law, they also took some share in its administration. From the nobleman who filled the post of Lord-Lieutenant of the county, to the country labourer who acted as constable or aleconner or juryman, all were called upon for gratuitous service.1 In a society so organized the remnants of villein status which yet survived to remind men of the older order, naturally appeared strange anachronisms for which writers would apologize, and against which the law would lean more strongly than ever it had leant before.2

Footnote 1: See Smith, Republic Bk. i c. 24.

Footnote 2: Vol. iii 597-598,

Footnote 3: Starkey, England in Henry VIII,'s time (E.E.T.S.) 157, 158, " But now, to keep thys body knyte togydur in unyte, prouysyon wold be made by commyn law and authoryte, that every parte may exercyse hys ollyce and duty--that ys to say, euery man in hys craft and faculty to meddyl wyth such thyng as perteynyth thereto, and intermeddyl not wyth other; for thys causyth much malyce, envy, and debate; " cf. Crowley's works (E.E.T,S.) passim, and especially, " the Voyce of the Laste 'Trumpet," which contains twelve lessons to twelve several estates of men; the pretautory lines (p. 57) run --

This new grouping of society was thus to a large extent the outcome of the economic changes of the century. We have seen that these economic changes produced much hardship and much disorder in the earlier part of the century. Therefore we are not surprised to find that writers of this period invested with a romantic halo the old days when society was arranged in fixed orders, each doing its duty in that state of life to which it had been called.3 Nor did the public opinion of the day wish to break entirely with these ideas. This comes out clearly in the idea that the members of one trade should not encroach upon the province of the members of another.4 It was still more sharply emphasized by the statutes which, throughout the sixteenth century, attempted to regulate the apparel which each class might wear, partly in order to emphasize class distinctions, and partly to moderate extravagant406 LAW IN XVITH AND XVITH CENTS.

**expenditure.1** These statutes were enforced by many proclamations;2 and the proclamations attempted also to regulate, the expenditure of the different classes on food as well as on apparel.3 But both the sharpness with which this idea was emphasized by these statutes, and the means taken to enforce it became obsolete as the century advanced; and the statutes were all repealed in 1603.4

Footnote 1: A. M.

**USES AND TRUSTS** **407**

At the same time the state control and the trade and professional organizations were not so rigid that iffpassable class barriers were created. The maintenance of class barriers between the nobility, the knights, the gentlemen, the yeomen, and the labourer in husbandry; between the great merchant, the shopkeeper, and the journeymen, helped to preserve in each class a standard of conduct appropriate to that class, and helped to make a system of self-government possible by maintaining a due subordination of the various orders in the state. But it was never impossible for an active man to rise out of his class.1 It was never impossible for talented members of an active family to rise in a few generations to the highest positions in the state.2 Thus, by the end of the century, the rigidity of the mediaeval class system has given place to the definite yet flexible class distinctions of modern English society.

Footnote 1: As we have seen, vol. iii 505-506, it was this fact which sometimes made the survival of the law as to vilein status valuanable to the lords.

_Uses and Tracts_

The commercial, industrial, and social changes which left so deep a mark upon the Statute Book necessarily led to corresponding changes in the law of property and contract. But, for the most part, these changes were not effected by the legislature. If we except the statutes dealing with the use and with the closely connected subject of the will of real property, the additions to and changes in the law of property movable or immovable, made by the legislature are neither numerous nor of first-rate importance;3 and the legislature played no part at all in the development of the law of contract. We must look for an explanation of this absence of legislation on these topics to the fact that, in the sphere of property, the use and the trust were so developed by the courts of law and equity that they fully met the needs of the owners of property for larger powers of disposition, and more convenient methods of exercising those powers; and that, in the sphere of contract, the development of the action of assumpsit4 created an entirely adequate conception of contract based upon the idea of consideration.5

Footnote 2: We may recall, in this connection the traditions that Empson was the son of a sieve maker, Thomas Cornwell of a blacksmith, and Wolsey of a butcher.

Footnote 3: See below 480-488 for some account of these changes.

Footnote 4: Vol. iii 429-453.

Footnote 5: For the history of this doctrine see Pt. II. c. SS **x**.

Both the trust and the doctrine of consideration are peculiar to English law, and to the law of those countries which have come under its influence. Both have their roots in the law of the Middle Ages, and both assumed their modern shape and their

### Law in Xvith and Xvith Cents.

modern importance in the sixteenth century. The extent and the nature of their influence upon English law at different periods in its history have been very different; but they have not been wholly dissimilar; for both have had very large effects upon the development not only of our private but also of our public law. There was a period in our legal history when the law of contract was appealed to to explain the origin of society;1 and there was yet a later period when complete freedom of contract was supposed to be the cure for all the social ills of the body politicta.2 Trusts likewise have, from the sixteenth century onwards, played a part in the development of our public law, larger and more direct than that played by contract. They have peopled our state with groups and associations which have enabled the individual persons who have created or who compose them to accomplish much more than any single individual composing them could have accomplished. Students of these entities, if they have not attempted to deify them, have at least worked hard to personify them.3 And, whatever may be the nature of their personality, it is, as we shall see, quite clear that they have exercised a large influence over our commercial, religious, political, and social life.4 The modern political theorist, having awakened to these facts of legal history, has almost dropped the use of concepts derived from the law of contract, and has adopted another and a more elastic set of concepts derived from the law of Trusts. He has found that in these days of complex constitutions and federated empires, of democratic rule and social reconstruction, the elasticity of the trust concept yields a more apt and a more fruitful crop of political metaphors.5

Footnote 1: Above 216; vol. vi c. 6.

Footnote 2: Above 379; 386-387 for some of the results of this view in the economic sphere; cp. Maitland, Gierke's Political Theories of the Middle Age xili, xiii.

Footnote 3: Geldart, The Nature of Legal Personality L.Q.R. xxvii 9o; vol. iii 482-487; Pt. ii c. 6 SS 2.

Footnote 4: Below 476-48o.

Footnote 5: Maitland, Gierke xxviii-xxviii; Trust and Corporation, in Collected Papers iii 366-403--as Maitland says, at p. 402, the Trust "is an elastic form of thought into which all manner of materials can be brought;" below 477-479 for some illustrations of the influence of the trust concept in public law.

Footnote 6: Vol. iii c. 3; 1?t. ii. c. 3.

I have already said something of the growth of our modern law of contract during this century, and I shall relate its later history in a subsequent chapter of this Book.6 Here I must deal with the development of uses and trusts, and attempt to describe the manner in which and the extent to which they have come to influence all branches of English law. With the growth of the technical rules by means of which this influence was attained I shall deal later.

**USES AND TRUSTS** **409**

The effects of the rise of a new proprietary right can never be confined entirely to private law. Already in the Middle Ages the growing popularity of the use had begun to produce effects which concerned the well-being of the state; and the state had begun, sometimes to prohibit, and sometimes to regulate certain of the purposes to which it was being put.1 In 1535-1536 the famous Statute of Uses put the law as to certain of these uses and trusts upon a new basis.2 It introduced one important variety of uses relating to interests in land into the common law, without stopping the free development of equitable rules relating to other varieties. It gave, therefore, a much-needed elasticity to the common law rules relating to all kinds of interests in land; and it did not prevent the Chancellor from applying freely his conception of the use to many other branches of the law. It determined the position which the commonest variety of the medieval use should occupy in the law of the sixteenth century, and, for this reason, it forms the starting point of our modern law of uses and trusts. It is because this statute has had these large effects direct and indirect upon the growth both of the common law and of equity that it is perhaps the most important addition that the legislature has ever made to our private law.

Footnote 1: Below 443-449: **27 Henry VIII, c, 10**, **3**Vol. i 454-455.

In order to understand the provisions of the Statute from which our modern law on this subject originates, I must, in the first place, say something of the origins of the use, of the reasons for its growth, of its mediaeval development in the Chancery, and of the extent to which it had already been controlled by the legislature. In the second place, I must deal with the Statute of Uses. In the third place, I must briefly indicate the permanent effects of the Statute of Uses. This will involve a short account, firstly, of the influence which, as a result of that Statute, the uses affected by it have exercised upon common law; and, secondly, of the influence which the trusts, which were not affected by it, have exercised upon many branches of our private and public law. My arrangement of the subject will therefore be as follows:--(1) The Use in the Middle Ages; (2) The Statute of Uses; (3) The Use at common law and the Equitable Trust.

(1) The Use in the Middle Ages.

I have already shortly summarized the mediaeval history of the use when dealing with the history of jurisdiction of the Chancery.3 Here I must deal with this subject in detail under the following heads:--(i) The origin of the use, and the reasons for the position taken by it in English law; (ii) its development by the Chancery; and (iii) its control by the legislature.

**410**: **LAW IN XVITH AND XVIIITH CENTS.**

(i) _The origin of the use, and the reasons for the position taken by it in English law._

Early writers on the use had no hesitation in looking to Roman law for its origin. Gilbert, Sanders, Blackstone, Spence, and Digby all point out the analogy which exists between the position created by the grant of a _usus_ or a _ususfructus_ or the bequest of a _fideicommissum_, and that created by the feoffment to one person to the use of another.1 But theexistence of analogy is one thing : the proof that the later in date of the two analogous things is derived from the earlier is quite another. Practically every one is now agreed that these institutions of Roman law are merely analogies of a superficial kind; and that, though some of them may have had some slight influence on the development of the use in the thirteenth and fourteenth centuries,3 we must look to quite a different quarter for its origin.

Mr. Justice Holmes was the first to point out that the root idea underlying the conception of the use is to be found among the Germanic tribes.3 That root idea consists in the recognition of the duty of a person to whom property has been conveyed for certain purposes to carry out those. purposes.4 The fact that one man trusts another in this way naturally appears in any sort of society which has progressed so far as to possess even the most rudimentary system of law.5 A very small amount of legal development will necessitate some sort of institution by which effect can be given to the desire to create trusts of this kind. That institution early Germanic law found in the Salman or

**USES AND TRUSTS**

Trewhand.1**He was, as we have seen,2** a person to whom property had been transferred for certain purposes, to be carried out either in the lifetime or after the death of the person conveying it. The recognition, if not by the law at least by public opinion, of the binding character of his obligation, involved the recognition of the broad principle that such a duty ought to be enforced.3 It was the breadth of the principle thus recognized that has made the institution by which effect was given to it the ancestor of many important institutions and principles of our modern law. It was the Salman who was the ancestor of the executor ; and it was the existence of an executor 4--a person upon whom a testator could lay many various duties--that enabled persons by their wills to give effect to their wishes as to the manner in which their property should be employed after their death.6 It is to this institution that we must look for the beginnings of the law as to bailment and agency.6 And it is to the same quarter that we must look for the origin of the earliest conveyances to uses.7 The feoffee to uses, like the Salman, held on account of another--the cestuique use;8 and it was because the feoffor could

### Law in Xvith and Xvith Cents.

impose on him many various duties that landowners acquired through his instrumentality the power to do many things with their land, from which they had been debarred by the rigid "rules of the mediaval common law.1

Germanic law, therefore, was familiar with the idea that a man who holds property on account of or to the use of another is bound to fulfil his trust. We find many illustrations of the purposes to which this idea was put both at home and abroad from the earliest period.2 Frankish formulas from the Merovingian period speak of property given to a church "ad opus sancti illius." 3 Mercian landbooks of the ninth century convey land "ad opus monachorum."4 Domesday book speaks of geld, or money, or sac and soc, held "ad opus regis" or "regimac" or "vicecomitis."5 The laws of William I. speak of the sheriff holding money " al os le rei."6 But till the law begins to develop into a regular system the place which this idea will take in that system cannot be fixed. We have seen that this development came with the legal Renaissance of the twelfth and thirteenth centuries.7 As a result of that Renaissance we get the beginnings of the common law ; and with the beginnings of the common law we can see the position which this idea of holding property on account of or to the use of another will take in it.

Footnote 1: Below 417, 436-437, 438-443.

Footnote 2: See the instances collected P. and M. ii 231, 232.

Footnote 3: Cited P. and M. ii 231 from Formulae Mercovignici et Karolini (Monumenta Germanic) 208.

Footnote 4: Cited ibid from Kemble Cod. Dipl. v 66.

Footnote 5: Cited ibid from D.B. i 60, 209.

Footnote 6: Cited ibid from Leges Wilhelmis i z SS 3.

Footnote 7: Vol. ii 145-149, 174-207.

We have seen that this development came with the legal Renaissance of the twelfth and thirteenth centuries.7 As a result of that Renaissance we get the beginnings of the common law ; and with the beginnings of the common law we can see the position which this idea of holding property on account of or to the use of another will take in it.

Footnote 7: This personal character of the action of Detinue only gradually emerged vol. ii 366-368; but it was clearly personal in character long before the sixteenth century, Core's Case (1536) Dyer at p. 22b; see vol. iii 324-328, 348-35I for its mediaval development.

We have seen that the most fundamental dividing line of the mediaval common law was the division between chattels which were protected and recoverable by personal actions, and hereditaments which were protected and recoverable by the real actions.8 In these two different branches of the law this idea has had a very different history.

Footnote 8: Cited ibid from Kemble Cod. Dipl. v 66.

Chattels could be left by will, and therefore, as we have seen, the continental Salman soon developed into an executor.9 Then again, from an early period, the personal character of the action of detinue, by which a person entitled to chattels could recover either them or their value from a bailee or a finder, emphasized the personal character of the obligation to restore which rested upon the man who had been entrusted with, or who had come into the possession of, what was not his own.10 The developmentof the personal actions which protected possession and ownership strengthened this idea. The extensions of detinue, and the rise of trove, enabled not only a bailor and a dispossessed owner,1 but also a third person, to whose use goods had been bailed,2 to get full recognition of their interests. And, as we have seen, the interest of one to whose use money had been paid was protected by the action of account.8 In fact, if this action and the ideas implicit in it had been developed, the common law might (in this as in other cases) have acquired certain principles, both of substantive and adjective law, which came in later days to be peculiarly the property of equity.4 Thus, partly by reason of the recognition of the right to bequeath chattels by will, but chiefly by reason of their destructible and movable character, which made it necessary that rights to chattels should be protected by personal actions based upon an obligation to restore, the common law had, from very early days, recognized the interest of the person on whose account another held property, and enabled him to enforce his rights against the holder. That this was in effect the enforcement of a trust was recognized by Blackstone. "There are other trusts," he said, " which are cognizable in a court of law : as deposits and all manner of bailments ; and especially that implied contract . of having undertaken to account for money received to another's use.8

Footnote 1: Vol. iii 324-328, 348-357.

Footnote 2: Ibid 355 n. 6 ; Ames, Origin of Uses, Essays in A.A.L.H. ii 743 nn. 3 and 4.

Footnote 3: Vol. iii 426-428 ; Ames, op, cit. 743 n. 5 ; the interests of persons thus protected, and that of the c.q. use of lands or chattels protected by the Chancellor, had, owing to the difference in their development, come to be quite distinct by r540, see the remarks of Baldwin J. in Lyte et Uxor v. Peny, Dyer 49b; and for a clear statement of the distinction see Hening, Beneficiary's Action in Assumpsit, Essays, A.A.L.H. iii 360-362.

Footnote 4: Vol. ii 246-249, 343-347 ; vol. v 297-299, 375-316.

Footnote 5: Comm. iii 432.

Footnote 6: Gray, Perpetuities (ed. 1906) SS 832; it is true that a bailiff who occupied land as the agent of another was liable to account to that other, vol. iii 426-428 ; below 421; but against a person who had possession of land either as tenant, Y.BB. 49 Ed. III. Hil. pl. 11; ro Hy, VI. Mich. pl, 67 ; or as a trespasser Y.B. 32 Hy. VI. Hil. pl. 60--the writ of account did not lie.

That the recognition of the interest of the man to whose use chattels were conveyed, was chiefly due to the character of the remedies by which the owner of such chattels was protected, is made the more probable by the fact that the common law did not recognize such an interest, if the owner of chattels real transferred their possession to another, to his own or any body else's use.6 We have seen that the development of the remedies for the protection of the owner of a chattel real followed a course very different from that which it followed in the case of the remedies which protected the owner of a chattel personal.7 The term gradually obtained a protection which, though it differed

**414 LAW IN XVITH AND XVITH CENTS.**

in form, was similar in kind to that afforded to the freeholder ; and his interest gradually acquired many of the characteristics of the freeholder's interest,1 not the least important of which was the absence of any legal recognition of the interest of the man to whose use another held. We shall see also that the rules of law as to the kinds of future interests which could be created in such chattels real were to some extent modelled on the law as to the creation of future interests in hereditaments.2

Footnote 1: Vol. iii 27.

From the common law relating to hereditaments the idea of one man holding to the use of another was gradually eliminated. The principal reason for this was the nature of the ownership and the character of the interests recognized by the common law in those hereditaments, and the nature of the actions by which this ownership and these interests were protected. The ownership of the freeholder protected by the real actions was much more intense than the ownership of chattels protected only by personal actions ; and consequently the law relating to it was much more precisely defined. It followed that the rights and powers of the owners of the interests in the land recognized by the law were more definite than the rights and powers of the owners of chattels. No doubt we must partly account for this phenomenon by the fact that, in the earlier medieval period, the land law was much more than merely property law.3 In its rules were contained a large, perhaps the largest, part of the public law of the state. To recognize the interest of anyone not actually seised or entitled to a definite estate in the land would have been to encourage the evasion of obligations upon the due performance of which a feudal society was based. Partly it was due to the fact that the land law, because it was so much more detailed than any other branch of the common law, suffered most from the precocious fixity attained by so many of the rules of the common law.4 Partly it is due to the fact that the prohibition of the devise,5 except in a few places by virtue of special custom,6 prevented the common law from recognizing an executor who held on account of another, and allowed it only to recognize an heir who held on his own account.7

Footnote 1: Vol. iii 27.

Footnote 4: Ibid 597-597.

Footnote 5: Ibid 271, 273-274.

But this elimination of the interest of the man on whose account another holds was not effected without an effort. In the twelfth and early thirteenth centuries it was by no means certain that his interest would not be protected. It is clear both from extant conveyances, and from cases which came before the courts, that men were in the habit of enfeo

**USES AND TRUSTS** **415**

with land "ad opus " or "in usum " of others. Thus in the Ramsey cartulary we have a deed of 1080-1087 under which one Eudo " Dapifer Regis," agreed with the abbot that Eudo should have a certain plot of land " ad opus sororis suz Murielae " during their joint lives, and that after their death this and other land belonging to Eudo should go " ad usum fratrum eternaliter."1 In Bracton's Note Book there are several cases in which the " opus " figures.2 In 1224 a jury found that a man, before he started for the Holy Land, entrusted the custody of his land to Wydo his brother " ad opus puerorum suorum."8 In 1233 a jury found that a man enefeoffed his younger son Peter aged seven, and made livery of seisin to him on the land, " et postea tradidit terram illam cuidam Magistro Radulfo sicut ad custodiendam ad opus ipsius Petri, et postea commissa fuit cuidam 1David similiter ad custodiendum ad opus ipsius."4 Moreover, the property of the religious houses was often appropriated to specific uses ; and these appropriations often gave rise to disputes which familiarized persons with the idea that one man may hold to the use of another. Thus Maitland points out that, at one stage in the quarrel between the archbishop of Canterbury and the monks of Canterbury, " Henry II. received from the archbishop's hand three manors, 'ad opus trium obedientiarorum, cellarii, camerarii, et sacristae "." In fact so common was the practice in the first half of the thirteenth century, that a jury, after finding that a certain Robert held a hundred, could be asked " ad opus cujus, utrum ad opus proprium vel ad opus ipsius Ricardi." Upon this question the jury said that they were ignorant ;6 and no doubt the impossibility of finding out facts of this kind by means of a jury was a powerful cause inducing the common law to ignore them. Of seisin and its livery the jury could speak, but uses were beyond their ken. Therefore the judges declined to recognize any right save that of the person seised.

Footnote 1: Ramsey, Cart. ii 257-258, cited P. and M. ii 232, and cp. other instances there cited.

Footnote 2: See ibid 233 for a list of these cases.

The age of Bracton was an age in which this and other fundamental questions were open.3 We have seen that it

### Law in Xvith and Xvith Cents.

was by no means settled what men could, and what they could not do by means of the conditions which they imposed upon their gifts \[1\]. It was by no means settled that 4ands could not be made devisable by this means \[2\]. Considerations of public policy, the legislation of Edward 1,'s reign, and the change in the character of the men by whom the law was administered, settled these questions. The use was banished from the land law ; and elasticity was sacrificed to certainty and fixty. In 1379 the judges, having been consulted by Parliament as to whether a request made by Edward III. to his feoffees to perform certain charges could be recognized by the common law, answered that the common law could take no notice of any limitation upon the estate of feoffees of land unless it complied with the strict rules relating to common law conditions \[3\]. These conditions must be made at the time of the feoffment, and, as we have seen, they could only be taken advantage of by the feoffor or his heirs \[4\]. Seeing that they could not be imposed after the feoffment had been made, and that a third person in whose favour they had been imposed could not take advantage of them, it was, in almost all cases, impossible to employ them for the purpose of enforcing the rights of those to whose use another stood seised. Unless the cestuique use was the feoffor himself or his heir, and unless the use in his favour had been declared at the time of the feoffment, his interest was ignored by the common law. Nor could a covenant be any more effectual as it could only bind the parties to it and their heirs.

But the use was too convenient, too widespread, and too familiar an arrangement to disappear in consequence of the attitude of the common law. The attempt of the Franciscans to live without property illustrated its power on a European stage \[6\]. In England, as elsewhere, the Friars soon found themselves in the position of commodatarii, or usufructuaries, or the beneficiaries of an "'opus " or a "'usus ; \[7\] and in 1279 the bull _Exit qui seminar_ declared that this usus was not .

Vol. iii roz-105 ; cp, vol, ii 463-264.

$ R.P. iii 6o (a Rich, II, no. z6), " A laquelle question les ditz Justices disloient, que si le doun suis-dit twist simple, come dit est, sanz parlance devant le doun, ou sur le doun, ou sur la livere d'aucun charge ou feaanuce que les enfeeffe deussen faire ; que par nulle priere faite a eux apres ceo qu'ils furent en possession, nomement par la Chartre de Roi qu'est de Record, le dit doun precedent quel fuust adonques simple ne poet estre fait condicionel ."

$ Vol. ii 594 n. j.

$ Lea, History of the Inquisition iii 5-8, 27-30, I30-I46; P. and M. ii 229, 235, 236.

$ Monumenta Franciscana (R.S.) r6 (commodatum), 17 (usufruct), ibid. (ad opus) ; see ibid 494 for a deced of 1224, and 498-507 for a list of gifts between 1224 and 1351.

**USES AND TRUSTS**

**property.1**But an arrangement which makes the legal owner of property the executor of the wishes of the beneficiary with respect to that property, will enable the beneficiary to deal freely and easily and secretly with the property either in his lifetime or after his death. It will give the beneficiary all the advantages of property, and yet leave him subject to none of the legal liabilities which property entails. So valuable a device was not likely to be abandoned by owners of property merely because the common law declined to recognize it. But its widespread adoption naturally raised serious problems for the state. To refuse to recognize its existence was to put a premium on fraud, which was wholly contrary to the current medieval idea that the ultimate purpose of the law was the maintenance of justice and equity. In 1402 the Commons were praying that a remedy might be provided against "disloyal feoffees" who granted away the lands of which they had been eneffoed in trust.2 On the other hand, the recognition and protection of the person to whose use property was held might clearly be made the cloak for frauds and evasions of legal liability, which injured both individuals and the state. This is clear from the statutes of the latter part of the fourteenth century, which were passed to prevent frauds upon creditors, the evasion of the statute of mortmain, and feoffments to uses by disscisors and by tenants of various particular estates.3 Therefore it comes about that while, on the one hand, the interest of the beneficiary gained protection in the Chancery, on the other, that interest was controlled and regulated by the legislature. With the beginning of this protection and this control a new chapter begins in the history of the use with which I shall deal in the two following sections.\*\*

Footnote 1: Lib. v. Sexto xii 3, " Nec per hoc quod proprietatem usus et rei cujusque dominium a se abdicasse videtur, simplici usui omnis rei renunciasse convincitur, qui, inquam, usus non juris. sed facti tantum-modo nomen habens, quod facti est tantum. in utendo praebet utentibus nihil juris." The fact that these Roman law analogies could be used to define the position of a person who received property to the use of another considerably helped forward the development of the principles to be found in Germanic law, e. Caillemer, L'Execution Testamentaire 549-550. " R.P. iii 57i (4 Hy. IV. no. 17z), " Item prient les Communues que par la ou Grantz des Rentz chargez, et auxi Feoffementz des Tenementz en demesne, sont faitz a desloials persones per voie d'affiaunce de perfourmer les Volunteez du tielk Grauntours et Feoffours, lesqueux desloials persones per fauzune graunont mes

### 418 Law in Xvith and Xvith Cents.

origin of the idea that property could be entrusted by its owner to a person who was bound to deal with it according to the wishes of the owner, the shape which that idea took in English law is wholly the result of the manner in which the interest, both of the man who thus entrusted the property, and of the third persons for whose benefit it was entrusted, was protected by the Chancery. The use of to-day is product of the equitable jurisdiction of the chancellor.1 Just as the original conception that justice should be done, even at the cost of non-compliance with the strict letter of the law, obtained in England a unique technical meaning, because a separate court was specially entrusted with its administration ;2 so, for the same reason, the interest of the persons to whose use another held property acquired in English law a unique character. The unique character of the English use or trust is the direct consequence of the unique manner in which the principles of equity were developed in England, owing to the fact that their administration was entrusted to a separate court.

Footnote 1: Ames, Essays, A.A.L.H. ii 742. I agree that Holmes is right in his account of the origin of the use ; but I think that Ames is right in pointing out that the peculiarly English development of the use is the product of the equitable jurisdiction of the chancellor ; in fact this is true of our whole system of equity, see vol. ii 346 347 ; the history of the use is merely a particular instance of the general principle.

Footnote 2: Above 279, 287 ; cp. vol. i 449.

The reason why jurisdiction over the uses came, from the first, under the jurisdiction of the court of Chancery, is plain. The inadequacy of the procedure of the common law to try cases which involved a breach of trust was, as we have seen, one of the reasons why the common law refused to recognize them.3 But this refusal obviously encouraged frauds of the grossest description. The court of Chancery, which set out to do equity, employed a procedure which well fitted it to discover and to remedy such breaches of trust.4 It was not a court which had but one resource--the jury--for the ascertainment of disputed facts. It could summon the parties before it and examine them. It could therefore get at the real facts of those private arrangements from which uses generally originated. Moreover it was not tied down to any rigid scheme of actions. Conceivably the common law might have enforced the duty existing between the feoffor and feoffee to uses by treating its breach as the breach of a contract. In the first half of the fifteenth century the action of assumpsit would have been capable of giving damages to the feoffor, if the feoffees had dealt with the property in a way inconsistent with the undertaking they had assumed when they received the propcrty.5 But, by that time, the opportunity had

## 13 Uses and Trusts

been lost--" The chancellor was already in possession."1 Moreover, for two other reasons the action of assumpsit, even in its developed form, would have been an inadequate remedy. Firstly, the same reason which rendered common law conditions and covenants incapable of doing the work of the use2 made the action of assumpsit, even in its developed form, an insufficient remedy. It was only the feoffor who could have sued by this action ; and in many cases it was not the feoffor, but the persons to whose use the feoffees held, who required protection. We shall see that it was, as often as not, the persons whom the feoffor wished to benefit by his will who appealed to the chancellor for protection.3 Secondly, to treat the relation created by the grant of property to a use as a contract enforceable by action of assumpsit would not have been satisfactory even to the feoffor. If it had been so treated he would have " exchanged the ownership of property for the inalienable benefit of a promise."4 What was required was a personal remedy against the feoffees, which, at the same time, was not a remedy of so exclusively a personal nature that it debarred others, besides him who had created the use, from suing upon it. But such a remedy was quite outside anything to be found in the Register of Writs.5 Therefore, whether we look at the ethical principles upon which the chancellor interfered, or at the procedure of the court of Chancery, or at its freedom from fixed forms of action, we can see that the chancellor and his court were as strikingly fitted, as the common law and the common law courts were strikingly unfitted, to assume jurisdiction over the use.

Footnote 1: Maitland, Equity 29. 3 Above 416.

Footnote 2: In fact, the definition of a _good_ is not a _good_, but it is420 LAW IN XVITH AND XVIIITH CENTS, but also by the collections of wills of this period. There is a case in which the Council examined a defendant as to a feoffment to uses of lands and chattels as early as 1350; \[1\] and the earliest known application to the chancellor comes from the last years of the fourteenth century.\[3\] His jurisdiction grew very rapidly, as it was well established in the first quarter of the fifteenth century.\[3\] The earliest Year Book case in which a feoffment to uses clearly appears comes from the year 1371.\[4\] There is another case of the year 1385; \[5\] and there are several allusions to them in the Year Books of Henry IV.'s reign.\[6\] It is about the same period that the use begins to make its appearance in wills. The will of Henry Percy of 1349 contains no directions to feoffees to uses.\[7\] A will of 1355, which contains such directions, is drawn up in the form of a deed, and perhaps operated as an immediate settlement of the property comprised in it.\[8\] But the will of Lord Latimer (1381) is a true testamentary instrument, and contains numerous directions to the feoffees of his lands.\[9\] From that time onwards such directions become increasingly common in the wills of all kinds of landowners. We must conclude, therefore, that by the beginning of the fifteenth century the development of the use by the Chancery had begun. We only occasionally meet with a conveyance of chattels to the use of or in trust for other persons.\[10\] In the vast majority of cases it is land which is thus conveyed. The reasons are fairly clear. In the first place chattels could be bequeathed by will; and the ecclesiastical courts took much the same view of the duties of the executors to the beneficiaries under a will,\[11\] as the Chancery took of the duties of the feoffees to uses to the

**USES AND TRUSTS** **421**

cestiuique use. In the second place the actions of debt, detinue, and account gave a fairly adequate remedy when chattels or morfey had been bailed to the use of a bailor or a third person.1 In the third place we should remember that, at this period, chattels mainly consisted of destructible things such as furniture, armour, clothes, or books.2 Mainly for this reason permanent trusts of these things are not very common even at the present day.3 It is not until the appearance of accumulations of capital invested in the form of transferable stock that we get forms of personal property which partake of the permanent character of land. It is not until then that trusts of personalty will become as general and important as trusts of reality. But we have seen that capital was only just beginning to make its appearance in the economic world at this period; 4 and the appearance of transferable stock was still in the future.5 For these reasons the early history of the use is the history of the use of land.

Footnote 1: Vol, iii 316-337, 348-349, 425-428 ; above 413.

Footnote 2: More valuable chattels would often be heirlooms, and regarded as land; for a good modern statement as to the law relating to them see Hill v. Hill \[1897\] x Q.B. at 494-496 _per_ Chitry L.J.

I shall summarize the history of the development of these uses by the court of Chancery from the end of the fifteenth century to the passing of the Statute of Uses under the following heads :--(_a_) The creation of the use ; (_b_) the capacity to be a feoffee to uses or a cestuique use; (_c_) the position of the feoffee to uses; (_d_) the nature of the interest of the cestuique use; (_e_) the incidents of the interest of the cestuique use.

(_a_) _The Creation of the Use_.

By the end of this period uses might either (_a_) be expressly created, or (_S_) arise by operation of law, or (_S_) be implied from the acts of the parties. The first method was the oldest and during the medieval period the most ordinary, the second arose later, and the third latest of all.

(_a_) To create a use expressly, the legal estate must be conveyed by feoffment,6 fine,7 or recovery 8 to one or more feoffees. It is most unusual to find only one feoffee.9 They are usually

### Law in Xvith and Xvith Cents.

#### a party, and sometimes a large party of persons.1

Footnote 1: E.g. Test. Ebor. iv 72 (t493) there are nine feoffees ; ibid v x54 (t524) there is a direction to enefeolf six, eight, or iacre feoffees.

The reasons are obvious. If there was one feoffee only the risk of fraudulent dealing was increased ; if he died, the estate of which he was enefeolf became liable to dower and to the feudal incidents ;2 and, if he died without an heir, it escheated to the lord who was not bound by the use.3 Thus we find that if the number of feoffees was getting low steps were generally taken to enefeolf others.4

Footnote 1: E.g. Test. Ebor. iv 72 (t493) there are nine feoffees ; ibid v x54 (t524) there is a direction to enefeolf six, eight, or iacre feoffees.

The uses to which these feoffees held were sometimes declared at the time of the conveyance, either verbally 6 or in writing.6 But in a large, and perhaps the largest, number of cases the uses were declared by the will of the feefor. Occasionally the will which makes this declaration takes the form of an indenture.7 Often it is in a part of the will separate from that in which the chattels are disposed of ;8 and occasionally a will alludes to another document in which the uses are more fully declared.9 Sometimes the land is left just as if it were a chattel;10 but this is most usual in the case of burgage tenements devisable at common law. We may take as a typical example of the manner in which uses were thus created the introductory words to an elaborate settlement of real estate made by the will of Roger Flore Esquire of London and Oakham 11 in 1424-1425 :--" And moreover, for als mykyle as at divorce feffementes that I had had to divorce meu of certeyn part of my londes, to the entent that they shulde do my wylle lyke as in sum wrytynges and condicions upon the same feffementes it is more pleynly conteyned, And also, for als mykel as divers men haf joint astate

**USES AND TRUSTS**

**whit me in divorce of my purchase be wey of truste for to fullyile my while when I required hem, or declared it to hem, Nowe I declare here my laste wille, als well to my saide effees as to my joint effees." Then follow the directions to the feoffees.**

\*\*($\\beta$) It happened in many cases that a man conveyed his land to feoffees on the understanding that they held to his use until he gave them further directions.1 In such a case he continued his possession and enjoyed the profits. Such an arrangement was so common that if there was a feoffment to feoffees, and the feoffor continued his possession and enjoyed the profits, the law implied a use in the feoffor's favour, and a corresponding duty in the feoffees to make estates according to his directions.2 It is possible that the courts may have been helped to this conclusion by the provision usually inserted in Acts of attainder of the fifteenth century, that lands held to the use of the person attainted should be forfeited to the crown ; 3 for in Henry IV.'s reign the continued enjoyment by an attainted person of the profits of land which he had conveyed was treated as a proof that the land was held to his use.4 However that may be, it was laid down in Edward IV.'s reign that whenever a man conveyed land to feoffees without express declaration of a use, the use resulted to him, and he could deal with it as he pleased by will or otherwise.5 But, it may be said, if the law is stated so generally, how are we to tell whether or not, when one man enfeoffs another, and makes no express declaration of uses, a feoffment to uses is intended? Of course if, as was often the case, he continued his possession

**424 LAW IN XVITH AND XVIIIH CENTS.**

the case was clear enough. But if he did not, could a use arise in his favour if it had not been expressly declared? The answer to this question was found in the extensive use which Chantery was beginning to make of the distinction between gratuitous conveyances and conveyances for value.1 The test as to whether, in the case of a feoffment on which no uses had been declared,2 a use resulted to the feoffor came, by a very natural development, to be, not necessarily the continued enjoyment of the land by the feoffor, but the presence or absence of valuable consideration for the feoffment.3 As Bacon put it, " Because purchases were things notorious and trusts were things secret, the chancellor thought it more convenient to put the purchaser to prove his consideration than the feoffor and his heirs to prove the trust; and so make the intendment towards the use, and put the proof upon the purchaser."4 This gave rise to the modern rule, ascertained as early as i52i if not earlier, that whenever one man enefeoffed another without consideration a use results by operation of law to the feoffor.5\*\*

Footnote 1: See Y.B. 21 Henry VII, Hil, pl, 30 _per_ Rede J.; and cp. Y.B. 20 Henry VII, Mich. pl. 20; Doctor and Student ii cc. 21 and 23.

Footnote 2: If a use had been declared the presence or absence of consideration made no difference, Perkins, op. cit. SS37; Brook, Ab., _Referentes al uses_ pl. 40 (24 Hy. VIII.) _per_ Norwich; Sanders, Uses (5th Ed.) i 59-60.

Footnote 3: Rede said in the Y.B. cited in note r, " Et donques al auter matiere, le quel cest covenant changera un use maintenant, ou enemy; semble a moy que non: uncore _gratia argusnuti_ ; jo veux agrecr que ou est seisi a son use demesne, si il vend la terre, per force del sale si sera di teoffe al use cesty que ceo ema: mes icy il n'est come un bargain et sale de terre est, eins il est merement en covenant; et ceo que gist en covenant ne poit changer un use;" and he went on to cite a case of Sir J. Mordant, in which he had been counsel, where this had been held.

Footnote 4: Reading on the Statute of Uses 400-470; as Bacon there points out, " The intendment of an use to the feoffor where the feoffment was without consideration grew long after, when uses waxed general."

Footnote 5: I4 Henry VIII. Mich. pl. 5 p. 7 _per_ Fitzherbert J.; Doctor and Student ii c. 21, **' If a man seised of land make a feoffment thereof, and it appeareth not to what use the feoffment was made, nor it is not upon any bargain or other recompence, then it shall be taken to the use of the feoffor, except the contrary can be proved.''**

Footnote \*: Y.B. 27 Hy. VIII. Pasch. pl. 15 _per_ Shelley; pl. 22, **'** Jeo dy que n'est ascun doutbe mes si jeo vend a vous mon use, maintenant sur la vente l'use est change in vous hors de ma person," per York _arg._; Brook, Ab. _Referentes al uses_ pl. 54, 36 Hy. VIII, _par_ Hales; above n. 3.

Footnote 7: In Y.B. 21 Hy. VII, Hil, pl. 30 (above n. 3) Rede J. expresses no decided opinion, and Tremile dissents from this view; cp. Ames, Essays in A.A.L.H. ii 744; but in Y.B. 20 Hy. VII. Mich. pl. 20 it is said that on a bargain the use would be changed,

**USS AND TRUSTS**

before the passing of the statute of Uses.1 There were in fact two lines of reasoning by which the lawyers arrived at this conclusion. In the first place, if on a feoffment made without consideration a use resulted to the feoffor, much more on a bargain and sale ought a use to be implied in favour of a purchaser; for, if it is unconscientious that a man who has taken gratuitously should hold to his own use, much more is it unconscientious that a man who has obtained the purchase price of land which he has not conveyed, should continue to hold that land to his own use.2 In the second place the analogy of a bargain and sale of goods led to the same conclusion. We have seen that by the last quarter of the fifteenth century it was settled that a sale of goods passed the property in the goods.3 A bargain and sale of land clearly did not pass the seisin--the legal estate in the land.4 But equity followed the law as to bargains and sales of chattels, and established the rule that a bargain and sale of land passed the use.5

Footnote 1: Brook, Ab, _Conscience_ pl. 25, 32 Hy. VIII, _per_ Audley C.; and references cited above 424 n. 6.

Footnote 2: I did not mention the possibility that the lawyers arrived at this conclusion. In the first place, if on a feoffment made without consideration a use resulted to the feoffor, much more on a bargain and sale ought a use to be implied in favour of a purchaser; for, if it is unconscientious that a man who has taken gratuitously should hold to his own use, much more is it unconscientious that a man who has obtained the purchase price of land which he has not conveyed, should continue to hold that land to his own use.3 In the second place the analogy of a bargain and sale of goods led to the same conclusion. We have seen that by the last quarter of the fifteenth century it was settled that a sale of goods passed the property in the goods.3 A bargain and sale of land clearly did not pass the seisin--the legal estate in the land.4 But equity followed the law as to bargains and sales of chattels, and established the rule that a bargain and sale of land passed the use.5

Footnote 3: I did not mention the possibility that the lawyers arrived at this conclusion. In the second place, if on a feoffment made without consideration a use resulted to the feoffor, much more on a bargain and sale ought a use to be implied in favour of a purchaser; for, if it is unconscientious that a man who has taken gratuitously should hold to his own use, much more is it unconscientious that a man who has taken gratuitously should hold to his own use, much more is it unconscientious that a man who has obtained the purchase price of land which he has not conveyed, should continue to hold that land to his own use.4 In the second place the analogy of a bargain and sale of land of land of goods led to the same conclusion. We have seen that by the last quarter of the fifteenth century it was settled that a sale of goods passed the property in the goods.3 A bargain and sale of land clearly did not pass the seisin--the legal estate in the land.4 But equity followed the law as to bargains and sales of chattels, and established the rule that a bargain and sale of land passed the use.5

Footnote 4: I did not mention the possibility that the lawyers arrived at this conclusion. In the second place, if on a feoffment made without consideration a use resulted to the feoffor, much more on a bargain and sale ought a use to be implied in favour of a purchaser; for, if it is unconscientious that a man who has taken gratuitously should hold to his own use, much more is it unconscientious that a man who has taken gratuitously should hold to his own use, much more is it unconscientious that a man who has obtained the purchase price of land which he has not conveyed, should continue to hold that land to his own use.5

Footnote 5: I did not mention the possibility that the lawyers arrived at this conclusion. In the first place, if on a feoffment made without consideration a use resulted to the feoffor, much more on a bargain and sale ought a use to be implied in favour of a purchaser; for, if it is unconscientious that a man who has taken gratuitously should hold to his own use, much more is it unconscientious that a man who has taken gratuitously should hold to his own use, much more is it unconscientious that a man who has obtained the purchase price of land which he has not conveyed, should continue to hold that land to his own use.5 In the second place the analogy of a bargain and sale of land of goods led to the same conclusion. We have seen that by the last quarter of the fifteenth century it was settled that a sale of goods passed the property in the goods.3 A bargain and sale of land clearly did not pass the seisin--the legal estate in the land.4 But equity followed the law as to bargains and sales of chattels, and established the rule that a bargain and sale of land passed the use.5

Footnote 6: I did not mention the possibility that the lawyers arrived at this conclusion. In the second place, if on a feoffment made without consideration a use resulted to the feoffor, much more on a bargain and sale ought a use to be implied in favour of a purchaser; for, if it is unconscientious that a man who has taken gratuitously should hold to his own use, much more is it unconscientious that a man

## 426 Law in Xvith and Xvith Cents.

consideration to raise a use, and the judges had taken time to consider their decision.1 In 1523 Hales J. was clearly of opinion that such a consideration was not sufficient.3 On the otherhand, in Edward VI.'s reign, all the judges resolved that marriage was a sufficient consideration to raise a use, and that even a parol contract based on such a consideration would suffice 4; and in 1565 it was held that a covenant made in consideration of marriage would raise a use.4

Footnote 1: Y.B. 2o Hy. VII. Mich. pl. 2o.

Footnote 2: Brook, Ab. _Feffementes al uses_ pl. 54.

Footnote 3: Callard v. Callard (r597) Popham at p. 48, where Popham C.J. says, on the authority of Manwood C.B., that all the judges in the Star Chamber had then resolved that, " the use of freehold of land will pass upon a contract by parol, in consideration of marriage; 1" but two cases reported by Dyer would seem to show that the law was in an uncertain state at this period, Dyer 53a (1542); and toza (1553).

Footnote 4: Assoy v. Manners (1565) Dyer 335a.

Footnote 5: Plowden a98.

It was not until the end of the century that the law was finally settled by the two cases of \_Sharington v. Strotton_5 (1565) and _Callard_ v. \_Callard_6 (1597). In the former case it was held, after a very elaborate argument, that natural love and affection was a sufficient consideration to raise a use.7 In the latter case, the Exchequer Chamber, reversing the King's Bench, held that a contract to raise a use in consideration of natural love and affection must be made under seal.8

Footnote 8: The reports of the case in the King's Bench are in Cro. Eliza 344-345, and more fully in Popham 47; the report of the reversal of the decision in the King's Bench is in 2 Anderson 64.

On the whole the conclusion arrived at was not unreasonable. It was clear that there were differences between the kinds of consideration which will raise a use, and the consideration on other formalities needed to validate a contract. A deed made without consideration, though it would pass the property in chattels 9 or give validity to a contract, would not raise a use, because such a deed amounted only to a gratuitous gift.10 It was

**USS1 AND TRUSTS** **427**

clear therefore that the court was not tied to the strict rules of contract law in determining the question whether any given consideration was sufficient to raise a use. It was common knowledge that uses were, by the year 1565, extensively employed as part of the machinery of a family settlement. Seeing that a family settlement and an ordinary contract are very different things, it was good sense to hold that the considerations sufficient to validate them might be different. On the other hand, to allow a mere parol agreement, made in consideration of natural love and affection, to raise a use would have rendered the proof of such a transaction very difficult. The same objections applied to it as applied to bargains and sales before the statute of Enrolments.1 This statute only applied to bargains and sales ; but, on that very account, it was good sense to require that a contract by which a use was raised in consideration of natural love and affection should be made under seal.

Footnote 1: For this statute see below 462. * Vol. iii 467-468.

When Bacon delivered his Reading on the Statute of Uses it was settled law that the two kinds of consideration necessary to raise a use were either payment of money or natural love and affection. It followed therefore that the two forms of contract by which a use could be raised were a bargain and sale or a covenant to stand seised. We shall see that, by that time, the Statute of Uses had caused these two forms of contract to operate as conveyances.

(_b_) _The capacity to be a fepfree to uses or a cestriquee use._

The king could not be a fepfree to uses. The reason for this was, as we have seen, by no means clear in the fifteenth century ;2 but in the sixteenth century the lawyers had come to the conclusion that all gifts made to the king were made to him in his politic or corporate capacity, and that because he was corporation sole he could not, any more than any other corporation, whether sole or aggregate, be seised to a use.3 On the other hand, he could be cestuique use.4 A corporation could not be seised to a use both because it had no power to take property to any other use than its

**428 LAW IN XVITH AND XVIIIH CENTS.**

own,1 and because the process of the court of Chancery against the person could not be executed against an artificial body which was neither capable of confidence nor amenable to physical constraint.2 On the other hand, it is clear from the wording of the Statute of Uses that a corporation which had a licence in mortmin could be a cestuique use.3

Aliens and persons attainted could be reoffees to uses ; but aliens, persons attainted, and those suffering from other procedural disabilities could not bring actions on behalf of their cestuique use till the law was modified by a statute of 1488.4 Whether or not an alien could be a cestuique use was a doubtful point.5 But it would seem that a person attainted could be a cestuique use.6 However, if a person attainted, who had a fee simple in the use, was executed, it would seem that the reoffees would hold the land to their own use.7 A villein, unless he belonged to the king, could be a feoffee to uses ;8 and until 1503-1504 he could be a cestuique use. A statute of that year tested his property in the use in his lord.9 An infant and a married woman could be both feoffees to uses and cestuique use.10

Footnote 1: Brook, Ab. _Refmentes al uses_ pl. 40 (24 Hy. VIII.); Plowden at p. ro3.

Footnote 2: I did not mention that the authors of this paper are not aware of the fact that the authors of this paper are not aware of the fact that the authors of this paper are not aware of the fact that the authors of this paper are not aware of

**USES AND TRUSTS**

**the marriage, upset the disposition by a** _cut in vita_\*\*,**1** \*\*just in the same way as she could upset a disposition made by herself or her husband of the legal estate in her land.**2** \*\*The chancellor did not at this period attempt to give the wife a disposing power over equitable interests during the marriage ; and he thought, rightly enough, that, for the purpose of protecting her interests after the termination of the marriage, the common law writ was sufficient.**3** \*\*We must wait till the next century for the development by the court of Chancery of the separate use.**4**

Footnote 1: For this writ see vol. iii 22.

**Finally it should be noted that at this period it was only a feoffee of an estate in fee simple who could hold to another's use. A feoffee of an estate for life or in tail could hold only to his own use, because in these cases a tenure was created between feoffor and feoffee. The existence of the tenure always implied fealty, and this duty prevented any presumption that the property could be held to any other use.**6** **It was the better opinion that this presumption was** _juris et de jure_**, i.e. it could not be negatived even by the express declaration of a use.**6** **We shall see that this**

### 430 Law in Xvith and Xvith Cents.

curious doctrine, that where a use was thus conclusively presumed by law, no other use could be expressed, probably has some bearing upon the manner in which the Statute of Uses was interpreted in _Tyrrel's Case._\[1\]

The position of the foeffees to uses.

At law the foeffees were the absolute owners of the property of which they had been enfeoffed,2 and they were subject to all the liabilities of ownership.8 They were the only people who could take proceedings against those who interfered with their ownership ; and if, for instance, a trespass had been committed with the licence of the cestuique use they could take proceedings against him, for he was at law only a tenant at sufferance.4 Similarly they were the only people who could take proceedings against tenants of the land to compel them to perform their obligations.5 Thus if debt was brought for rent by a cestuique use, and the defendant pleaded " nihil habitut tempero dmissionis," the plaintiff would have lost his action if he had not made a special replication setting out the facts.6 At the same time the view that the law wholly disregarded the existence of the cestuique use must not, as Bacon expressed it, and as the case last cited shows, be taken " too grossly."7 It is true that the ownership of the foeffees was the only ownership recognized by the common law ; but this did not prevent the common law from recognizing incidental effects of the existence of the cestuique use.8 Thus a cestuique use of property to the value of 4os, a year was liable to serve on a jury.9 A release by a cestuique use to his feoffee was

**USES AND TRUSTS**

a good consideration for a contract.1 The existence of the relationship between feoffees to uses and cestuique use was a good plea to an action for maintenance.2

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

In equity the feoffees to uses were compelled to use their powers as legal owners for the benefit of the cestuique use. Thus they owed many duties to the cestuique use, and they had certain rights against him. Their duties can be summed up under three heads.3 Firstly, they must suffer him to take the profits of the land.4 Secondly, they must make estates in the land in accordance with his directions.5 These directions might be either verbal or in writing;6 but they must be clear. The feoffees were entitled to refuse to make estates unless they were certain that the directions given to them expressed the real wishes of the cestuique use. In Henry VI.'s reign a subpoena against two feoffees who refused to make an estate was refused, because there was no clear proof that the cestuique use had commanded such an estate to be made.7 Thirdly, they must take all necessary proceedings against those who attempted to disturb their seisin, and defend, in accordance with the directions of the cestuique use, all proceedings taken by persons who claimed title to the land;8 and it was for this reason that, as we have seen, the existence of this relationship was an answer to an action of maintenance.9 On the other hand, the feoffees could claim as against the cestuique use to be indemified for all costs and necessary expenses incurred in the fulfilment of these duties.10 Similarly the expenses of retaining counsel, stewards of manors, and the like, could be charged by the feoffees even against an infant cestuique use.11 It was clear in Edward IV.'s reign that, if the cestuique use died without heirs, the lord could not claim that the feoffees should hold to his use.12 The result was that they took beneficially.13

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

**492 LAW IN XVITH AND XVITH CENTS.**

(_a_) \_The nature of the interest of the estuigue use.\_1

Footnote 1: It should perhaps be noted that in many cases the feoffe to uses was himself the first cestuique use. In this section I include his interest when this is the case. Of course, because he was the creator of the use, he had much larger powers than any other cestuique use of directing the coeffees to uses; thus, as is pointed out by Shelley J. (Dyer 49b), it was held that if a man made a foffment to perform his will, and the will was annexed to the charter of feoffment, and livery of seisin was made in accordance therewith, the will could be altered or revoked.

${}^{1}$Y.B. 22 Ed. IV. Pasch. pl. 18, "_Hussey le Chief $\\not$ Justice de Bank le Roy,_ Quand jeo venue primiere al Court, lequel n'est passe xxx ans, il fut agree en case per tout le Court, que si home unt enfeoffe un autre de trust, si'l mport selsie, isint que son heir fut eins per discent, que donques nul $\\not$_Subpara_ ne gist."

${}^{3}$Y.B. 8 Ed. IV. Trin. pl. 1, " Et fut move si $\\not$_Subpara_ gist vers executor ou envers heire, Et $\\not$_Choke_ dit, que il sua autrefoits $\\not$_Subpara_ vers le heire de un feoffee, et le matiere fut longuement debate. Et l'opinion de la Chancellor et les Justices que il ne gist pas envers le heire, per que il sua un bill al Parliament etc."

${}^{4}$Y.B. 22 Ed. IV. Pasch. pl. 18, " Le Chancellor dit, que est le comen course en le Chancery pur granter (subpcna) ... sur feoffement de trust lou l'heir le feoffee est eins per discent ou auterment, car nous trouvomes recorde en le Chancery de tels i " cp. Saundre v. Gaynesford (Hy, VI,) a Cal. Ch. xxviil.

${}^{5}$Y.B. 5 Ed. IV. Mich. pl. 16, " Si J. enfeoffa A. a son use, et A. enfeoffa R. nient obstant que il luy vende etc. si A. dona notice a R. del entend del primer feoffment, il est tenu per breve de $\\not$_Subpara_ de perfourmer le volonte."

${}^{6}$ Above 424.

${}^{7}$Y.B. 14 Hy. VIII. Mich, pl. 5 p. 7 $\\not$_Per_ Fitzherbert J.; cp. Y.B. 5 Ed. IV, Mich. pl. 16.

${}^{8}$Y.B. 14 Hy. VIII. Mich. pl. 5 p. 8 $\\not$_Per_ Brook J.

${}^{9}$ (r585-1595) I Co. Rep. at p. 122a.

**USES AND TRUSTS** **493**

than "_per_" the feoffees. Such a person had no privity of estate with the feoffees ; and, as a use is a confidence annexed in privity to the feoffee's estate, a person who got the land otherwise than through the feoffees was not bound by the use.1 Thus neither a disseisor, an abator, an intruder, nor a person who took by a title paramount to the title of the feoffees were bound ;2 nor, for the same reason, was the lord to whom a surviving or sole feoffee's estate escheated.3 These conclusions had been reached by the beginning of the sixteenth century ; and when they had been reached, the root principle of the equitable ownership of modern English law had been ascertained.

Footnote 1: **The author is grateful to the referees for the support of the manuscript.**

Footnote 2: **The author is grateful to the referees for the support of the manuscript.**

It was a wholly unique form of ownership which the chancellor had thus developed from a conscientious obligation of a very personal kind. It was not a true _jus in rem_ because it was not available against the whole world. There were or might be many persons as against whom it could not be asserted. Then, although it rested on the chancellor's power to proceed against the person whose conscience was affected by notice of the use, it was far more than a mere _jus in personam._ It could be asserted against many persons besides the original feoffee, and by many persons who were not parties to the original feoffment. A right of so peculiar a kind could probably never have been invented by lawyers who had a firm hold of the Roman distinction between

**494 LAW IN XVITH AND XVITH CENTS.**

_dominium_ and _obligatio_, or of the modern distinction between jura in rem and jura in personam.1

Footnote 1: Maitland, Equity 23, 24.

The interest of the cestuique use was a very relative kind of ownership. His power of compelling the feoffees and others bound by the trust to use their legal powers for his benefit, gave him practically all the rights of an owner against these persons, and as against the world in general ; but he had none of these rights as against certain defined persons.2 This relativity probably seemed natural to men who were familiar with the various rights to seisin--relatively good or relatively bad--which were recognized by the medieval common law.3 But here again we may doubt whether it could have been invented by lawyers who had grasped the distinction drawn by the Roman lawyers between dominium and the various subordinate possessory or quasi-possessory rights which they recognized. It is true that there is a certain relativity in the rights of bonitarian owners, bonorum possessors, and usucapion possessors. They are owners as against the world in general ; but there may be another who can asscrt a better legal right. But there was no permanence in this relativity. The expiry of the period fixed for usucapion soon put an end to it. There was on the other hand a very permanent relativity in the various rights to seisin and possession recognized by the common law. It was no uncommon spectacle in the fifteenth century to see disseisors enjoying substantial ownership, and disseisees making continual claim, and constant attempts to assert their rights by entry or action.4 Many estates might exist contemporaneously in the same land ; and, in the case of chattels, there might be a bailor, a bailee, and perhaps a third person to whom the bailee had contracted to hand over the goods.5 Similarly there was a very permanent relativity in the rights of the cestuique use. As against certain persons he had, to the extent of his interest, substantial ownership : as against other persons he had no rights at all. This division, therefore, between legal seisin vested in a f coffee to uses, and an equitable right in a cestuique use to get seisin or to have the feoffee's seisin employed for his benefit, might appear to be merely another instance of that division between actual seisin and a right to get seisin with which the common law was abundantly familiar.

Nevertheless there was a great and a fundamental difference between the principle which underlay this division between the rights of the feoffee to uses and the cestuique use, and the

**USES AND TRUSTS**

principle which underlay the various cases of divided ownership recognized by the common law. A comparison between these principles will help us to understand the very striking peculiarities of this new jurisdictional conception which have, as we shall see, enabled it to influence so many branches of our modern English law.

In all the cases of divided ownership recognized by the common law--whether it is a case of tenant for life or remainder-man, or lessee for term of years and sublessee, or bailor and bailee--each owner has his separate right which is recognized by law as belonging to him absolutely. The actual enjoyment of the property over which the right exists may be postponed; the right itself may be inalienable;1 but, for all that, the right confers a definite proprietary interest on the person entitled which he may deal with for his own benefit in any manner permitted by the law. But in the case of a feoffment to uses the feoffee has the whole legal ownership of the feoffor vested in him. He is not like a bailee whose right is limited by the rights of his bailor, or a tenant for life whose rights are limited by the rights of a reversioner or remainderman. His legal rights are unlimited by the existence of any rival claimant. But these absolute rights he must exercise for the benefit of another person--the cestuique use. He holds them on account of another.2 The only real parallel to the relationship of feoffee to uses and cestuique use is the relationship between the executor who has paid all his testator's debts and a legatee. In substance his relation to the legatee is similar to the relation between the feoffee to uses and the cestuique use.3 Even at the present day the difference between an executor and a trustee is often fine. It was fine at the end of the fifteenth century.4 Testators sometimes made their feoffees to uses their executors;5 and bills were filed in Chancery against them.6

Footnote 1: Vol. iii. 92.

Footnote 2: Maitland, Equity 45, 46. The difficulty of distinguishing these allied concepts ...ons arises partly from the fact that they spring from the same root, above 43; the fundamental difference nevertheless existing in modern law illustrates the entirely different turn which the use took owing to its development by the court of Chancery, and justifies Ames' view, Essays in A.A.L.H. ii 742 that the modern use is the product of the equitable jurisdiction of the chancellor.

Footnote 3: Ibid 48, 49.

Footnote 4: Y.B. 4 Ed. IV. Mich. pl. 20--The Chancery and the cecclesiastical courts were in conflict over an executor who was also a trustee.

Footnote 5: Furnivall, Fifty Earliest English Wills (E.E.T.S.) ir8--all property in use is left to executors; Test. Ebor. ii (444) 130-134 some of the feoffees are clearly executors; Felbrigge v. Damme (Hy. VI) z Cal. Ch. xxiii,

Footnote 6: Polgrenn v. Feara (Hy. VI.) r Cal. Ch. xoxia; Prior of St. John v. Clyffe (Ed. IV.) ibid cx; xi; Select Cases in Chancery (S.S.) nos. 37 (after x397), x04 (x40-I412), x09 (x407-I409), x10 (x454).

The practical results of this difference in principle were

### Law in Xvith and Xvitin Cents.

enormous. We have seen that it was the presence of the executor which enabled a testator to effect so much by his will.1 Similarly it was the existence of a feoffee to uses, who must act in accbdance with the wishes of the feoffor or the cestuique use, which enabled landowners to effect so much by a feoffment to uses. Why then does the presence of the executor or the feoffee to uses so much increase the powers of the owners of property? The answer is that it increases their powers because the common law is not the only system of law in force in England. Both the executor and the feoffee to uses were compelled by a set of rules external to the common law--by the ecclesiastical law or by rules of equity--to use the powers belonging to them by the common law as another directed.2

Footnote 1: Vol. iii 558-559.

Let us see what consequences this involves. The owner of property has over that property indefinite rights to use or abuse. It is true that, because he is the owner of property, the law imposes upon him various liabilities to pay taxes, to serve on a jury, and the like. It is true that if he wishes to deal with his property the law will impose conditions both as to the form and as to the substance of these dealings. It will say, you shall not convey without a livery of seisin; you shall not dispose of your land by your will. If you try to do these things they will not be recognized by the law. But the law cannot define the innumerable things which an owner may or may not in fact choose to do by virtue of his ownership. It cannot, for instance, prevent him from allowing X to occupy the property till he marries, nor can it prevent him on the happening of that event from allowing Y to occupy it for his life, nor can it prevent him from then allowing a devisee under Y's will to occupy it. It may refuse to recognize the validity of limitations which purport to effect such an arrangement. But it cannot prevent a man from allowing his property to be in fact enjoyed in this way. But if an arrangement is made under which an owner can be compelled by rules, external to the rules of law, to use his indefinite rights of ownership for the benefit of another person, the other person will be able to effect through the owner an indefinite number of things. Unless these things are positively illegal the law does not prevent an owner from doing them--after all he is owner; and the rules external to the

**USES AND TRUSTS**

rules of law--the ecclesiastical law or the rules of equity--will make it obligatory on him to do them. Thus it becomes possible for an owner, who has conveyed his property to an intermediary, to achieve a large number of things, because he has at his command the indefinite powers involved in the ownership which he has conferred on this intermediary. And by taking appropriate measures to fill up vacancies in these intermediaries caused by death, they may be rendered practically a permanent body. Therefore the owner, through the agency of this body, may control the fate of the property long after his death. He dies, but his powers of ownership survive through the directions which he has given in his lifetime to these intermediaries. Moreover, seeing that he has conveyed his legal ownership to another, he incurs none of the liabilities of ownership. Thus a testator who can lay commands on an executor which will be enforced by the ecclesiastical courts, and a feoffor or cestuique use who can lay commands on a feoffee to uses which will be enforced by the court of Chancery, gain a range of powers limited only by positive lcgal prohibition, or by the rules laid down by the ecclesiastical courts or by the court of Chancery. When this result has been reached, it becomes necessary for these courts to lay down some rules as to the sort of commands which an executor or a feoffee to uses can be asked to obey. In other words, it must define the incidents of this equitable ownership which it has created.

(_e_) _The incidents of the estate of the estuique use._

In moulding the incidents of the estate of the cestuique use the chancellor necessarily started from the basis of the ownership recognized by the common law; for, as we have seen, the rules of equity were in all cases founded upon the basis of the common law.1 Thus the rules of inheritance2--even the doctrine of possessio fratris 3--and the rules as to the kinds of estate in the use which could be created by a feoffor followed common law rules.4 But it must be admitted that upon the latter topic equity followed the law very critically. If a doctrine of the common law seemed to be inequitable the chancellor refused to follow it. He would have nothing to do, for instance, with the doctrine of collateral warranty.5 He would not allow

**488 LAW IN XVITH AND XVITH CENTS.**

the use to escheat on the attainder of the cestuique use.1 At this period he sometimes allowed an estate of inheritance to be created without the regular words of limitation, if the intent of the parties was clear.2 We shall see that just about the time of the passing of the Statute of Uses, and for some time after, some lawyers, relying upon the older cases in which the equity had followed the law, held that the incidents of the estate of the cestuique use should follow the rules applicable to legal states very much more closely.3 But Bacon, approving the reasoning of Anderson C.J. in _Corbet's Case_, pointed out that this view was incorrect. As he said, the older cases in which the equity had followed the law proved only that, " the chancellor would consult with the rules of law when the intention of the parties did not specially appear."4 In fact the principle upon which the chancellor acted made it necessary that he should give the fullest effect to the intention of the parties; and to give this effect to their intention it was necessary that the rules which he laid down should diverge widely from the strict, inconvenient, and often unfair rules of the common law.

Footnote 1: Y.B. 5 Ed. IV. Mich. pl. 18.

Footnote 2: Brook, Ab. _Conscience_ pl. 25 (32 Hy, VIII.), Y.B, 37 Hy. VIII. Pasch. pl. 22 (p. 8) _per York org:_; see below 46a for the law since the Statutes of Uses.

Footnote 3: See the argument of Herewood and Pollard 27 Hy. VIII. Pasch. pl. 22.

Footnote 4: Reading 402; Corbet's Case 2 And, at pp. 142, 143; there cited; the arguments in favour of the view that uses " were at common law," and that therefore the law relating to them should follow closely the common law, a And. at p. 143, Anderson C.J. calls " illusions of the ignorant, and nothing to the purpose to prove that uses were at common law."

We have seen that the chancellor's action aimed at compelling the feoffee to uses to fulfil honestly and honourably his undertaking to obey the directions of the feoffor or the cestuique use.5 Any directions not positively illegal were therefore held to be binding on the conscience of the feoffee. The most common directions were those given by a landowner as to the disposition of his land after his death. For as the sixteenth century law books point out,6 it was the fact that lands were not devisable that, more than any other single cause, had gained for the use its popularity. By means of directions given to feoffees to uses, landowners got powers over their land similar to and even greater than the powers which they had over their chattels. They could use their land to pay their debts;7 they could charge it with

**USES AND TRUSTS** **489**

annuities in favour of their relatives \[1\] or dependants," or with portions to their wives or younger children \[3\]; they could order it to be sold and the proceeds devoted to charity \[4\]; and they could found charitable institutions and provide for their management \[5\]. In other directions also the machinery of the use proved to be serviceable. Provision could be made for a family by marriage settlement far more easily than by the cumbersome machinery of the common law \[6\]. Finally by their means, gilds, chantries, and unincorporated bodies were in substance enabled to enjoy proprietary rights. The common law was coming to the conclusion that such unincorporate bodies could not own property \[7\]. In a case of Henry VII.'s reign Fineux C.J. denied that a parish could be a cestuique use of land. He admitted indeed that such property as ornaments appertaining to the church could be held by them or to their use, because such things were necessary to the due performance of the duties of the parish \[8\]. They might be regarded as a quasi-corporation for this purpose only \[9\], and therefore, though they could own such property, they could own no other \[10\]. But the court of Chancery was quite ready to recognize the ownership of such bodies. In Henry VIII.'s reign the parishners of St. Clement Danes filed a bill before Sir Thomas More to recover possession of premises belonging to the gild of St. Clement Danes, which had been let for a term of years which had then expired \[11\]. We have seen that parishes \[1\].

1 Test, Ebor, iii $\\tt z58$ ($\\tt z466$) gift to a brother ; iv $\\tt 65$ ($\\tt z491$).

2 Furnivall, Fifty Earliest English Wills $\\tt z55$; Test, Ebor, ii $\\tt 221$.

3 Ibid i $\\tt z36$, $\\tt 237$--gifts by John of Gaunt to the Beauforts; $\\tt 349$--a gift by Gascoigne C.J. to his wife of an estate in certain lands in lieu of dower.

4 A very common direction, see Furnivall, op. cit. $\\tt 33$ ($\\tt z478$); $\\tt 70$ ($\\tt z426$); Test, Ebor, iv $\\tt 66$ ($\\tt z491$); $\\tt 235$ ($\\tt z504$); cp, r Cal, Ch. lvii, lxiii, z Cal. Ch. xilv.

5 Test, Ebor, iii $\\tt 65$ ($\\tt z466$); ibid $\\tt 25$ ($\\tt z404$)--the will of Sir William Heron, Lord Say; at, p. $\\tt 26$ the charges his reoffees, " Just they make, or elles performe, an hospital, that is bygunme, of syx or foure pore men at leste, and a presete in channtite by wyse and discrete ordinance and discretion perpetualf fore to governe hem \[7\].

6 The Doctor and Student li c, zaz says, " And sometimes such uses be made, that he to whose use etc. may declare his will thereon, and sometimes for suretie of divers covenants in indentures of marriage, and other bargains, and these two last articles be the chief and principal cause why so much land is put in use ;" for the cumbersome character of the common law machinery see vol. iii $\\tt z50$-$\\tt z52$; two private acts of Henry VIII.'s reign--3 Henry VIII. c, $\\tt 16$ and $\\tt 21$ Henry VIII. c. $\\tt 23$--give good illustrations of these settlements.

7 Vol. iii $\\tt 478$.

8 In such a case the property could be laid in the church wardens who could bring trespas or an appeal if they were taken from them, Y.B, $\\tt 37$ Hy. VI. Trin. pl. $\\tt 17$ _per_ Molle J.

9 Y.B. zz Hy. VII. Trin. pl, $\\tt 7$ ($\\tt p.$ 29) cited vol. iii $\\tt 477$ n. $\\tt 7$.

10 " Car si un lease pur terme de vie, ou un feoffement soit fait ... ou per case un lease pur terme d'ans, ou tiels chose qui ont continuance, a ceux choses leur corporation n'extende," ibid ; S.C. Y.B. $\\tt 13$ Hy. VII, Mich. pl. $\\tt 5$ ; note that in r553 it was said by Bromley C.J. in the Star Chamber that a grant by the king to the inhabitants of a place would make them a corporation for the purpose of taking the property, Dyer, rooa.

11 Ellowe and others **v. Thomas Taylor r Cal, Ch. excix.**

### 440 Law in Xvith and Xvith Cents.

often in fact possessed and managed property in land at this period,1 The wills of this period show that much property was in the hands of parishes, chantries, and other religious or qfasial-religious societies,4 and justify the statements made in the preamble to the statute of I 531-I 532.8

Footnote 1: For instances of them see below 44 r. 4, 474-475 ; a shifting use arises where, on the happening of an event, a use already created passes over to another, e.g. a gift to A and his heirs and, if A marries, to B and his heirs; a springing use arises where, on the happening of an event, a use not already in existence arises, e.g. a gift to A and his heirs to take effect from A's marriage, see Digby, History of the Law of Real Property (4th Ed.) 35.

The fulfilment of such purposes as these involved the creation of many varied kinds of limited interests in the land, and many different kinds of future estate, which were impossible at law. We have seen that the only future estate in favour of third persons allowed by the common law was the remainder ; and that it was not till the latter part of the fifteenth century that the validity of a contingent remainder was beginning to be admitted.4 We shall see also that the rules regulating the creation of all remainders, whether vested or contingent, were very strict.5 But at common law the use was nothing at all--not even a chose in action.6 Therefore over the kind of estates which could be created in it the common law had no control. The validity of the future estates needed to give effect to the directions of the feoffor or the cestuique use was necessarily from the first admitted by the chancellor ; and obviously no one of the common law rules could apply to them. Thus land could be given to a certain person till a sum of money had been raised out of the rents and profits, and then over.7 It could be given to executors for a term of years, and after its determination it could be given to the testator's son in tail.8 It could be made to go over from one beneficiary to another on the happening of an event.9 Thus by means of these springing and shifting uses 10 landowners acquired a large and a certain control over the future fate of their property.

Footnote 1: Above 153-I 54:

${}^{\\mbox{\\tt 1}}$Above I 53-I 54:

${}^{\\mbox{\\tt 2}}$3 Henry VIII, c. ro,

${}^{\\mbox{\\tt 4}}$Vol, iii 545-546,

${}^{\\mbox{\\tt 3}}$1 Pt, 11. c. i 8 3.

${}^{\\mbox{\\tt 4}}$Thus Anderson C.J. said in Corbet's Case z And. at p. r47, that the use,

${}^{\\mbox{\\tt 4}}$N'ad esse nec essentia, mes est solemen imaginacion; " cp, Abbott of Bury v. Bokenham (1535) Dyer at p. riza _per_ Fitzherbert J., " L'use n'est rien en ley, mes est confidence,"

${}^{\\mbox{\\tt 7}}$Mador, Form. no. 747--feeffees of a manor to stand seised to the use of one of them till he raised out of the profits of the manor a certain sum, and then to certain uses in tail ; Test. Ebor. i zzz.

${}^{\\mbox{\\tt 8}}$Mador, Form. no. 749--settlement to executors for seven years, then to wife for life, then to son in tail, with remainders over,

${}^{\\mbox{\\tt 8}}$Furnivall, Fifty Earliest English Wills (E.E.T.S.) Izi-rz8 (I 439)--the testator after devising land to his sons in tail provides (p. rz8), " that if his wife or any of his saide sontes worke the contrarge of this his present wille, in lecturing or distourly-ing the said executours of fulfilling thereof, that then they shall lose advantage and benefits of this present wille."

${}^{\\mbox{\\tt 10}}$For instances of them see below 44 r. 4, 474-475 ; a shifting use arises where, on the happening of an event, a use already created passes over to another, e.g. a gift to A and his heirs and, if A marries, to B and his heirs; a springing use arises where, on the happening of an event, a use not already in existence arises, e.g. a gift to A and his heirs to take effect from A's marriage, see Digby, History of the Law of Real Property (4th Ed.) 35.

**USES AND TRUSTS**

There was no doubt a danger that this large control might be used to its own destruction, if the property were so settled that it was vested in perpetuity in a succession of limited owners. But it would seem that this danger did not clearly appear during this period. Bacon tells us that it was not till after the passing of the Statute of Uses that settlements deliberately drawn up with this object made it necessary to make rules to prevent its attainment.1 We shall see that these rules took different forms.2 One of them gradually developed into the modern rule against perpetuities, which at the present day, threatens to swallow up all the other rules which were created to effect a similar object. At this period the powers of the use were not fully realized ; and settlers and testators generally contented themselves with creating life estates or other limited interests in favour of existing persons, followed by a series of estates tail also to existing persons.3 Under these circumstances it is not surprising to find that, if an occasional settlor wished to make a more elaborate settlement, he was apparently at perfect liberty to do so.4 Such settlements were so infrequent that the dangers inherent in them were not as yet realized.

Footnote 1: Reading 109--he points out that, " of late years, since the statute (of uses)," one of the reasons for the popularity of uses has been "an excess of will in men's minds, affecting to have assurances of their estates and possessions to be revocable in their own times, and too irrevocable after their own times."

Footnote 2: Pt. II. c. r SS 6.

Footnote 3: Joshua Williams, r Jurid. Soc. Papers 46-48, says that he has found no trace of a limitation of an estate to an unborn person before i557; and that, before that date, property was usually settled either on the husband and wife and the heirs of their two bodies in special tail, or on the husband and wife and the heirs of the body of either husband or wife ; this is borne out by a petition to Cronwell of a young conveyancer in i540 (L., and P. xv no. loz8), in which he gave particulars of the settlements which he had been employed to draw; none of them contain remainders to unborn children; it is borne out also by the two private Acts cited above 439 n. 6. Thus it would seem that at this period there was no need for a rule against perpetuities, see Gray, Perpetuities SS8 i23, i34.

Footnote 4: It is clear from Manning and Andrew's case (r576) r Leo. z56 that settlements, which would later have been held void as creating a perpetuity, were, in at least one instance, attempted; in that case a feoffment was made to the uses of the feoffor's ,ill in i509, and in i517 the feoffor made a settlement by his will to the use of his wife for life, then to the use of his son and his son's wife for life, then to the next heir of the body of his son for life, then to the heir of that heir for life, then to the use of the heirs of the body of the son for the life or lives of every such heir, with a final remainder to the right heirs of the son; the Statute of Uses saved the rights of persons other than the rights of the feoffees whose seisin was divested by the statute, 47 Henry VIII. c. ro SS ii (z), and cf. Plowden i5_note\_; these limitations therefore were not affected by the rules laid down by the common law for uses executed by the statute; the way in which the case was argued seems to suggest that, as before the Statute of Uses these limitations were valid, and as they were made before the Statute, they must be still regarded as valid, see I.,Q.R. xv 73 and n. 4; xxx 308, 313, and Sugden, Powers (6th Ed.) r7 there cited; for the later law see Pt. II. c. r SS 6.

### 442 LAW IN XVITH AND XVITH CENTS.

enabled them also to get rid of the common law rules as to the forms which their dispositions must take. Though the use, regarded from the point of view of the actual powers over the land exercised by the cestuique use through the feoffees to uses, might be regarded as equitable ownership,1 from the point of view of conveyancing it was an equitable right to compel the foolfees to act as directed by the feoffor or the cestuique use. From this point of view, therefore, it was merely an equitable chose in action.2 Equity, therefore, could make what rules it pleased as to modes of transfer; 3 and, as we have seen, it used its power to release the cestuique use from all requirements of form. Thus on all sides, the restrictions of the common law upon dealings with land were relaxed; and effect was thereby given to the tendency, which had been increasing in strength all through the Middle Ages,4 to regard land simply as a species of property, and, consequently, to give to landowners powers of disposition over it as full as those which they enjoyed over any other kind of property.

Footnote 1: Above 433-437.

Footnote 2: As Bacon picturesquely put it, Reading 420, "Conveyances in uses were like privileged places or liberties; for as there the law both not run, so upon such conveyances the law could take no hold."

Footnote 3: A.8a was said by Shelley in Abbot of Bury v. Bokenham (x535) Dyer at p. rib, "Though he did not request the feoffees to make the feoffment (which gave a jointure to his wife), still the foolfees did no more than they ought to do, for a man ought, in common decency (per la ley de honesty), to provide a jointure for his wife out of his land, when she is excluded from dower."

These incidents of the estate of the cestuique use had been developed by means of a series of decisions upon the question whether the feoffor or the cestuique use was entitled, by means of a writ of subpena, to compel the feoffees or other persons whose consciences were affected by the use, to employ their legal powers in the manner directed by him. The chancellor, therefore, had concentrated his attention upon the rights and powers of the cestuique use. The question of his duties and liabilities, except in so far as he owed duties to the feoffee,5 never arose in these cases. The legal duties and liabilities were annexed to the legal ownership; and, as the cestuique use had no legal ownership, he was not subject to any of them. No doubt in some cases the public opinion of the fifteenth century saw no great harm in some of the effects of this freedom from legal liability. Such incidents of tenure as wardship and marriage were burdensome anachronisms. The wife's right to dower and the husband's right to curtesy could be sufficiently provided for by the new power to make wills of lands, and by the improved forms of marriage settlement which the use had rendered possible.6 But

**USES AND TRUSTS** **448**

In other cases more serious results ensued. The claims of creditors could be evaded, purchasers could be defrauded, maintenance was encouraged, and the law against conveyances in mortmain could be made a dead letter. Very soon after the protection of the chancellor converted the estate of the cestuiqui use into a form of property, these results began to appear. It therefore became necessary for the legislature to intervene in the interests of honest dealing and public policy. Hence, long before the Statute of Uses, the development by the chancellor of the equitable interest of the cestuique use was controlled and modified by the legislature. With the effects of this legislative action we must now deal.

The control of the use by the legislature.

The purposes which the use as thus developed by the court of Chancery could be made to serve may be grouped under three heads :--(_a_) there were purposes to which there was no legal objection ; (_b_) there were purposes which were either illegal or clearly contrary to public policy ; and (_c_) there were purposes which were not clearly legal or illegal, nor, in the opinion of the majority of Englishmen, contrary to public policy.

There were many purposes to which uses were put which were open to no legal objection ; and, with the carrying out of these purposes, the legislature in no way interfered till 1535. Instances are the mbre flexible modes of conveyance, the larger control over property thereby secured, and the power to devise. These new powers which the use conferred upon landowners harmonized with the new conception of the nature of land ownership which had come with the passing of feudal ideas.\[1\]

There were many purposes which were either illegal or clearly contrary to public policy. It was with the object of frustrating these purposes that the legislature interfered from a very early period in the history of the use. Firstly, it had interfered as early as 1377 to prevent the conveyances to uses of land or goods for the purpose of defrauding creditors.\[2\] Further provisions against such frauds were made in 1379, 1488, and 1504.\[3\] Secondly, it had interfered as early as 1392 to prevent444. LAW IN XVITH AND XVITH CENTS. the evasion of the statute of mortmain.1 This statute in terms applied not only to gifts to corporations, but also to gifts to gilds and fraternities.2 But apparently it was not effectual to stop gifts to chantry priests and other unincorporate bodies. The statute of 1530 prohibited such gifts, either for obits and the perpetual service of priests, or to churches, chapels, or gilds " erected or made of devotion" without corporation, for a longer period than twenty years, on the ground that such gifts were as injurious to the state as gifts in mortmain.3 Thirdly, the legislature interfered to prevent feoffments to great lords by disseisors or persons whose titles were contested, in order that these lords might maintain the titles of these feoffors.4 Fourthly, it interfered to prevent the enefoffing by lssees for life or years of many feoffees, whereby reversioners were impeded in taking proceedings for waste; 5 and, by a later statute, demandants in a writ of formcdon were allowed to proceed against the pernor of profits, i.e. the cestuique use, and were not to be driven to sue feoffees, of whose existence they were very probably unaware.6

Footnote 1: 15 Richard II. c. 5.

Footnote 2: "And that the same statute extend and be observed of all lands, tenements, fees, adwosons, and other possessions purchased or to be purchased to the use of Gilds or Fraternities."

Footnote 3: 23 Henry VIII. c. 10. Maitland, Collected Papers iii 395, 396, thinks that the Act intended " utterly to suppress " all trusts made in favour of unincorporate bodies; and that it was due to a restrictive interpretation that its operation was confined to superstitions trusts--" perhaps the members of lnns of Court were not quite impartial expositors of the King's intentions;" but the words in the Act, " erected or made of devotion " would seem to justify the view which the judges took in Porter's Case (1592) t Co. Rep. at p. 24b; the terms of Richard II.'s statute, above n. 2, really appear to be wider.

Footnote 4: 16 Richard II. c. 9; 4 Henry IV. c. 7; 17 Henry VI. c. 3.

Footnote 8: 16 Richard III. c. 1; it is interesting to note that another statute of the same year, r Richard III. c. 5, passed to protect the interests of those to whose use Richard III. was solely seised before he became king, foreshadows the remedy applied by Henry VIII.'s statute of Uses (below 461); its operative words run as follows: " Be it ordeyned ..., that suche po session, right, title, and interesse of and in any londes ..., whereof the king is sole seia

**USES AND TRUSTS**

" for the relief of those that come in by the party."1 It enacted that the cestuique use should have the power to make dispositions of the land which should hold good as against the cestuique use who made them, as against his heirs, and as against all persons who had title or interest only to his use at the time when the disposition was made.2

Footnote 1: The _I'm_ is the _I'm_, which is the \_

**446 LAW IN XVITH AND XVIIIH CENTS.**

**v.**_Bernard,1_ the facts of which are as follows : A and B his wife were cestuique use in special tail, remainder to A in general tail, remainder to C in fee. A enefoffed D in fee simple, who eneffoffed E, who enefoffed C, who enefoffed the defendant. After the death of A, it was held that the reoffees could re-enter on behalf of B. The feoffees did not hold _only_ to the use of A;2 and the feoffment of C was not operative because he only had a use in remainder.3

Footnote 1: (1568) Plowden 348; cp. Sanders, Uses (5th Ed.) i 25-26.

Footnote 2: Plowden at p. 351.

Footnote 3: \*\*: Nor was it intended (by this statute) that the acts of them in retnainder or reversion, before the particular estates determined, should hurt the particular uses, or the state of the feoffees seised to particular uses, but that they might enter to revive the first uses," ibid at p. 352.

(_c_) The purposes not clearly legal or illegal, and not obviously, contrary to public policy, were the evasion of such incidents of tenure as wardship, marriage, relief, primer seisin, fines for alienation, and escheats whether _proper defectum sanguinis_ or _proper delictum tenentis.4_ The simple device of enefoffing several persons as joint tenants to the use of the feoffor afforded a complete protection against all these incidents. In fact, just as the existence of these incidents of tenure had had much to do with shaping the course of Edward I.'s legislation upon the land law,5 so they had much to do with the popularity of uses at this period. We shall see, too, that they were the principal cause for Henry VIII.'s legislation upon uses;6 and that they had no slight effect in determining the manner in which the Statute of Uses was interpreted at different periods.7 Thus in different ways and at different periods in the land law they have, during the whole period of their existence, exercised a very powerful effect upon its development.

Footnote 4: For these incidents see vol. iii 54-73.

Footnote 5: Vol. ii 348-349.

Footnote 7: Below 458-473; vol. v 307-309.

Naturally the view which was taken of this evasion of legal liability by the contemporary law and public opinion was affected by the nature of these incidents. Now it cannot be denied that, long before the fifteenth century, any meaning that these incidents of tenure had once possessed had departed. They were merely pecuniary exactions profitable to king or other lord entitled, and very burdensome to the tenant. Both king and lords lost by their evasion. But, while the lords on the whole gained, because, though lords in respect of some parts of their possessions they were tenants in respect of others, the king always lost. He alone was always lord and never tenant.

To the mediaval king who must not only live of his own, but also pay the expenses of the government of the state from the same source, this evasion of the incidents of tenure was a serious matter.

**USES AND TRUSTS** **447**

The revenue of the state was gravely diminished. But the evasion of laws which impose pecuniary burdens on the subject has never appeared quite in the same light as the evasion of laws which impose penalties for practices which are clearly immoral, or directly injurious to the state--a feeling to which Lord Mansfield gave expression when he said that "one nation does not take notice of the revenue laws of another."1 And, if these laws are clearly unjust, the strength of the feeling that no great harm will be done if they can be evaded, will very much increase. It was thought then, as it is thought to-day, that if an owner of property can so deal with it that it escapes the incidence of the tax, so much the better for him. No law prevents him from doing this. No law prevents a skilled lawyer from pointing out means and ways by which this can be done." And when these dealings take the form of settlements which are made to fulfil the obvious moral duties of securing the future of a man's widow, or children, or other relatives or dependants, his acts may be regarded as not only permissible, but even meritorious." In the same year that the Statute of Uses was passed, the crown tried to prove that certain feoffments to uses, made by Lord Dacres, were covinous, because they defrauded the king of his rights of wardship and marriage; and that therefore his devise of lands thus settled was void. To this argument Montague C.J. refused to listen.4 He said that the mere making of a will could not be said to be fraudulent; and that in the will itself no fraud could be found. It contained directions that a manor should be given to his youngest son, and that money

### Law in Xvith and Xvith Cents.

should be raised out of his lands for the marriage of one of his cousins, and for the payment of his debts ; and from such provisions no intention to defraud the king could be inferred. Ta hold otherwise would be to throw into confusion all the settlements in the kingdom.1 The substantial similarity of this reasoning to that which had been made use of by the House of Lords in the construction of modern Finance Acts is striking.

Footnote 1: "Et si tuit nul raison provuvant ce, in le Civil Ley est dit, _communis error facis jus_. Et sera grand mischief de changer la Ley a or; car moults inheritances de Realm, dependant a ce jour in uses, issint que il sera grand confusion si ce sera fait." SS Equity 32. SS Vol. i 48'3-48; 491; vol. ii 474-418. SS R.P. iii 558 (6 Hy. IV. no 63) evasion of the incidents of wardship and marriage; ibid 445 (r Hy. IV. no. 159)--evasions of the incidents of escheat and forfeiture. SS 4 Henry VII. c. 17. SS As Coke points out, Co. Litt, 76b, if there was a single koffee to uses who died leaving an infant heir, there might be a double wardship " for one and the same land, the one by the statute 4 Hy, VII., the other by the common law." SS Y.B. 27 Hy. VIII. Pasch. pl. 22 (p. 8); cp. Bacon, Reading 441; vol. ii 594-595; it was one of the reasons put forward for the argument that, uses being at common

**USES AND TRUSTS** **449**

antiquity of the system of feoffment to the uses with which the fifteenth century was familiar.1 A statute of 15042 (which deals also, as we have seen, with frauds on creditors)3 took up the question of the rights of the lords of land held to the use of their socage tenants, and of lands held to the use of their villeins. If land was held to the use of their socage tenants the lord was to be entitled to heriots and reliefs; if land was held to the use of their villeins the lord was to be entitled to seize the land.

Footnote 1: As we have seen, above 477-478, the antiquity of the idea of one man holding to the use or on account of another is one thing; the antiquity of the use as developed by the court of Chancey in England is quite another.

Neither of these statutes really went to the root of the question. The most burdensome of the incidents of tenure and the most valuable to the crown were the rights of escheat and forfeiture, and the rights of wardship and marriage. The evasion of the first two incidents was not touched; and, as we have seen, the evasion of the two latter was only stopped when the tenant died intestate. But it would have been impossible to do more. As we shall now see, the history of the passing of the Statute of Uses and the political consequences which followed its enactment, show clearly that Henry VII. could not have effected a thorough-going reform, upon a matter which touched so nearly the pecuniary interests of the most powerful class in the country, without risking a throne which was none too secure.

(2) The Statute of Uses.4

Footnote 1:

### 450 Law in Xvith and Xvith Cerns.

avoid these paradoxes if we look at the matter historically and examine (i) the political causes which shaped the Statute of Uses ; (ii) the provisions of the Statute and its immediate consequences ; and (iii) the extent to which the framers of the Statute succeeded in attaining the objects with which it was framed.

1. _The political causes which shaped the Statute of Uses._

Some years before the passing of the Statute of Uses fiscal necessities had led Henry VIII. to reflect upon the depletion of his feudal revenue. Loans and benevolences meant the complete loss of a personal popularity, which the divorce proceedings and the threatened legislation against the church were beginning to imperil. Though he was able, partly by persuasion and partly by diplomatic pressure, to induce Parliament to further his ecclesiastical policy and his matrimonial schemes, he could not induce it to vote him a permanently adequate supply. Under these circumstances the restoration of his feudal revenue, which after all was his own property, appeared to Henry's legal mind as the most promising source from which a permanent increase in the royal revenue might be drawn.1

Footnote 1: That the desire to increase the royal revenue was the real cause of Henry VIII.'s legislation on the subject of uses was clearly explained by Harper J. in Brent's Case (1583) a Leo, at pp. r6, 17; his exposition comes nearer to the historical truth than any other of the contemporary speculations on the subject; this, the real reason for the passing of the statute, was also emphasized by Lord St. Leonards, Sugden, Powers (8th Ed.) 7.

Henry's attention, therefore, was directed to the land law ; and in the land law he could not but see much that displeased him ; for it was at once the most highly developed and in some respects the most irrational part of the common law.2 He did not hesitate to propose to make in it changes of the same drastic character as those which he was making in other branches of the law.

Footnote 3: Letters and Papers, Henry VIII, vol. lvi ff. 36-39, calendared Letters and Papers, Henry VIII, iv no. 6043 (b); printed App. III. (r).

In 1529 two measures were drawn up to be submitted to Parliament.

The first 4 was a draft bill which, if it had been carried, would have at once revolutionized and simplified the law. It began by reciting the "grate trobull, vexacion, and unquietness amonges the kynges suggettes .

**USES AND TRUSTS**

(2) No uses of any land were to be valid, " onles the same use be recordid in the kynges courte of the commen place."1 A special officer of the court was to be deputed to keep a separate roll for each shirc, and he was to charge certain fees for keeping the roll.2 (3) To avoid the risk of forgery, all purchasers were required, so soon as the deed of conveyance was sealed and livery of seisin made, to have the deed openly read in the parish church or churches. where the land was situate, " att suche type as moste people be present." The priest was to " fyrme the said deede;" and it was to be registered " in the schere towne in which the land lay."3 (4) All lands of which recoveries had already been suffered or fines levied were, after the lapse of five years, to be held in fee simple by those in whose favour the recovery had been suffered or the fine levied;4 and all seised of lands of which they or their ancestors had been peaceably seised for forty years without claim made were to have an indefeasible title.5 (5) Entails were still to be permitted " to the nobyll men off thys realme being within the degree of a baron;" and no one was to buy such noblemen's land without the king's licence.6 If such licence were given, the deed must comply with the formalities required for ordinary conveyances, and the purchaser was to hold in fee simple.7

Footnote 1: App. III. (r) SS 3-

Footnote 4: Ibid SS 7: Ibid SS 5 and 6; the latter section seems to be designed to make it clear that these lands are from henceforth to be held in fee simple.

Footnote 8: Cotton MSSS. Titus B. 4, ff. 1r4 (125)-1r8 (125), calendared L. and P. Henry V1II., iv No. 6044; they are printed in App. III. (2).

Footnote 9: Ibid Articles 1, 2, 20.

Footnote 10: Ibid Articles 3 and 20.

Footnote 11: Ibid Article 21.

This measure proposed so give considerable privileges to the mobility. In return the nobility were prepared to concede something to the king. Their concessions form the second of these two measures. They are contained in twenty-three elaborate articles which, having been agreed upon by the king and the nobility, were to be laid before Parliament for its sanction.8

Footnote 12: Ibid Article 4.

Under these articles the king was to have the wardship of the lands of all his tenants holding of him for an estate of inheritance by knight service in chief and leaving an infant heir (excepting only the fees of the Archbishop of Canterbury and the Bishop of Durham between Tyne and Tees), whether the tenant had the use or the legal estate.9 If the land was devised or otherwise settled, the king was to have the wardship of a third (notwithstanding such devise or settlement) from the lands so devised or otherwise settled;10 but with a saving for the rights of tenants under existing settlements.11 If part was devised or otherwise settled, and part not, the king was to elect whether he would take the part not devised or settled, or whether he would take the third.12 If the land

**452. LAW IN XVITH AND XVIIITH CENTS**

held of the king by knight service in chief did not amount to a third of all the tenant's lands, and h devised or other-wise settled all his other lands, the king was to have the wardship of the lands held in chief and of so much of the other lands as would amount to a third of all his lands.1 Any estate coming to the ward from his ancestor who held of the king, by reason of the expiration of a particular estate, was to be held by the ring, unless otherwise settled.2 The same rules were to apply t lands held of the king by reason of any escheat, honour, or otherwise, and not in chief.3 On suing out livery the king was to be entitled to a whole year's profits of a third of the land;4 an specific rules were made as to the time for suing out livery of estes in possession and reversion.5 Heirs of full age were to pay, half a year's profits as before.6 It was provided that recovering to secure jointures or settlements of the land were to be permitted as before, and should have the same effect.7 Mesne lords were to have the same advantages as the king;8 and these rules were to aly to \_Gard pur cause de gard.9 Neither the king nor any other lands was to have any right of marriage in respect of persons ("bch", g of the full age of consent") married in the ancestor's life.10

Footnote 15: http:

**USES AND TRUSTS** **458**

meaning declared by the Articles above written is limited or appointed, yet, that notwithstanding, the kinge's heightnes is contented that it shall be enacted that his Grace .

### 454 Law in Xvith and Xvith Cents.

and "The Replication of a Serjeant to the Doctor and Student,"1 show that this feeling existed.2 Probably the perception of the common lawyers was quickened by their professional jealouy of the Chancery. Many of them no doubt would have liked to capture for their own courts jurisdiction over this new form of property, which was making the fortune of the court of Chancery ; and the new theory, which at this time was beginning to make its appearance in the law courts, that uses were known to and recognized by the common law 3 is perhaps evidence of this desire--" The wish was father to the thought." Clearly there was a possibility of drawing a measure which would both give the king what he wanted and command the approval of the lawyers.

Footnote 1: Hargrave, Law Tracts 333-331 ; the full title is, "A Replication of a Serjeant at the Lawes of England to certaine Pointes alleaged by a Student of the said Lawes of England in a Dialogue in Englishe between a Doctor of Divintive and the said Student; " for this tract see vol. v 269.

Footnote 2: "They \[uses\] began of an untrue and crafte invention to put the king and his subjects from that which they ought to have of righte by the good true common lawe of the realme; as the kinge's hignhes from his escheats, his wardes, and his primer seasins ... and his subjects from their escheats and wardes, women from their dowers, and husbandes of such women that be inheritours from their tenures by the curtesie of England ... And those that have good right and tyle to any land to recover it by action after the course of the common lawe be put from their actions, ... By soche uses the good common lawe of the realme ... is subverted and made as voyde, so that none of the said subjects can be and stand in anie surety of any possession," ibid 328, 329 ; cp. the remarks made by Lord Ellsemere upon the frauds rendered possible by Henry VIII.'s Statute of Wills cited below 472 n. 6, which agree with the views expressed in the preamble to the Statute of Uses.

Footnote 3: Vol. ii 594-595 ; for the conclusion sometimes drawn that the incidents of the estate of the _cestique use_ should follow closely all the incidents of the legal estate see above 438, 448 n. 7.

Footnote 4: See L., and P. vii no. 383 (r534) ; Cromwell writes to the sheriff of Yorkshire that, being informed of the death of Sir J. Denham, who held lands _in capita_ of the king, the Council think that, in order to prevent the king's rights from being cloaked, the persons to inquire for the king should be resident near the lands ; the names of suitable persons are enclosed; the case reported Y.B. 27 Henry VIII. Pasch. pl. 22, above 447, affords another illustration.

Footnote 5: State Papers, Henry VIII. Q. f. x38 (31), calendared L. and P. Henry VIII. vii no. r67 (3) (r534).

Footnote 6: "Nother sergeaantes nor apprenticis woll for the preferent of they clavantes cause goo ... barre at any tyme afor your Justices without the fee of ijjs. iiijd. to

**USES AND TRUSTS**

owing to the bribery of undersheriffs, and the misconduct of attorneys and juries. It pointed out that, in consequence, persons werecompelled " for veary poverte to sue to your grace by peticion whereby your grace and counsaill are molested and troubled." It prayed, in conclusion, that statutes should be enacted to expedite causes, and to fix the fees of counsel, attorneys, and sheriffs. As usual Henry's diplomacy was successful.

In I 535-I 536, two years after the presentation of the petition against abuses in the administration of the law, a list of grievances suffered by the realm from uses,1 three draft bills concerning uses and wills,2 and one draft bill concerning the enrolment of covenants, contracts, bargains, or agreements made with reference to the uses of lands,3 were before Parliament. It was from this material that the Statute of Uses, and the statute supplemental to it, concerning enrolments of bargains and sales, finally emerged.4

Footnote 1: I., and P. Henry VIII, vol. ci f. 282, calendared L. and P. Henry VIII, x no, 246 (3), printed App. III. (3).

Footnote 2: I., and P. Henry VIII, vol. ci ff. 252, 261 _et seq._, 286, calendared L. and P. Henry VIII, x nos. 246 (i), (2), (4). The draft bill in L. and P. f. 286, calendared L. and P. x no. 246 (4), is printed App. III. (4).

Footnote 3: I., and P. Henry VIII, vol. ci f. 303, calendared L. and P. Henry VIII, x no. 246 (6), printed App. III. (5).

Footnote 4: It will be seen from the Appendix that the draft bill is far more elaborate than the Statute of Enrolments actually passed--27 Henry VIII, c. r6. But it is quite clear that both the draft bill and the actual statute were integral parts of Henry's scheme for dealing with uses. The Statute of Enrolments was certainly not, as is sometimes stated (e.g. Jenks, Short History of English Law 121), a statute passed in a hurry to supply an unforeseen defect in the Statute of Uses. It is really, as Bacon pointed out in his Reading on the Statute of Uses at p. 432, a proviso to the Statute of Uses--' Ieoreseeing that the execution of uses would make frank-tenement pass by contracts parol, they made an ordinance for enrolments of bargains and sales , but without any preamble, as may appear, being but a proviso to this statute.,"

The list of grievances suffered by the realm from uses is long and detailed. It is written in two hands and there is a certain amount of repetition.5 In some cases it gives particular instances of inconveniences suffered ;6 and at the end there is a summary statement of the various fraudulent purposes which uses had been made to serve.7 The writers insist much on the disadvantages of uses from the point of view of the cestuique use, of the public at large, of the king and lords, and of the law. The cestuique use is at the mercy of a fraudulent bailiff or feoffee ; nor can he take action against a trespasser. He loses his curtesy, and his wife her dower. The king loses his forfeitures, and king and lords lose their incidents

### Law in XVITH AND XVITH CENTS: of tenure.

The public at large is defrauded because no man can tell against whom to bring his action, nor is anyone secure in his purchase. The law is wholly uncertain--"the openyons of the Justices do chaunge dely apon the suertyez for landes in use."1 The use is, " but the shadowe of the thyng and not the thyng indeyd."3 It causes the law to be double, and to sever the real from the apparent ownership, " which is a grett disseytt."3 "Where per case some one man takyth esyngler well their be a hundrioth against one that takyth hurt and lose theipy, is yt a good law?"4 the writer asks. He thinks it would be a good thing if uses were "chene put out the law."5 The document is an able statement of the case against uses ; and it may well have been the raw material upon which those who drew the preamble to the statute worked.

The three draft bills concerning uses and wills present two different schemes for dealing with the problem of the use--there is a less thoroughgoing scheme which was not followed, and there is the more complete scheme which was followed.

The less thoroughgoing scheme6 begins with a short general preamble to the effect that by means of uses "the good old laws of the realme be nygh subverted ;" and then goes on to subject the equitable interest to the liabilities of the legal estate for certain purposes, and to limit the modes in which uses can arise. Thus the estate of the cestuique use is made liable to forfeiture on attainder, to curtesy, to his ancestors' specialty debts to which the heirs were bound, and to the incidents of tenure.7 Recoveries, fines, feffments, releases, and confirmations by cestuique use were to have the same effect as if cestuique use had had the legal estate.8 For the future no uses were to have any legal effect except those clearly expressed at the time of conveyance ; and a recovery was not to be suffered to any other use but to that of the recoveror.9 No bargain, contract, covenant, or agreement with reference to land was to change the use of the land.10 Those injured by the breach of such contracts were confined to their remedies for breach of contract.6 Then comes a clause, the effect of which would have been somewhat revolutionary, as it would, apparently, have prevented a recovery from affecting the interests of remaindermen and reversioners without their own consent.11

Footnote 10: Ibid SS 6.

This scheme would no doubt have put an end to some of the most crying evils produced by uses. But it would have effected this object by subjecting the use to many of the rules of the common law.

**USES AND TRUSTS**

It would have made the common-law modes of conveyance necessary if the use was to be transferred, and it would thus have stopped beneficial developments in the law of conveyancing. On the other hand, it would not have stopped the practice of devising land, which was so hurtful to the king's pecuniary interests. The limitation put upon the effect of a recovery, and the retention of the power to devise, lead me to think that this was a scheme put forward by the landowners. They wished to concede as little as possible, and hoped to minimize their concessions by introducing a clause which 'modified the effects of a common recovery. It was essentially a half-and-half measure. It was useless, or almost useless, to the king; and probably therefore it never had a chance of passing into law.

The more complete scheme, which is in substance enacted in the Statute of Uses, is contained in two draft bills.1 They did not tinker with the problem as the other bill had done, but boldly annealed the legal estate to certain uses in land. Thus they got rid of the various evils attending the separation between the legal and equitable estate in the case of those uses to which they applied. But they did not abolish uses, as some had advocated; and thus they preserved for the land law the elements of elasticity, and the opportunities for development, which were inherent in the use. The points wherein these draft bills differed from the statute actually enacted are merely verbal. In fact they show signs of having been corrected so as to embody the small changes made during the passage of the bill through Parliament.3

Footnote 1: L. and P. Henry VIII. vol. ci ff. 252, 26r _et seq._, calendared L. and P. Henry VIII. x nos. 246 (r), and 246 (r); these two documents are in substance identical so far as they go; but the former is much torn in one place, and it stops short some distance before its natural conclusion.

Footnote 2: Because they are substantially similar to the statute I have not thought it worth while to print them.

Footnote 3: L. and P. Henry VIII, vol. ci f. 303, calendared L. and P. Henry VIII. x no. 246 (r), printed in App. III. (5).

The draft bill concerning the enrolment of covenants, contracts, bargains, agreements, or otherwise," unless declared by writing under seal and enrolled as provided by the Act.5

### Law in Xvith and Xvith Cents.

Further, it provided that, for the future, all evidences of any kind should be enrolled.1 One chief officer or more (to be called the Master of Enrolments) was to be appointed by the king in each shire and riding ; and for each of these officers a clerk was to be appointed by the chancellor, to be called the Clerk of Enrolments. They were to take acknowledgments of and to enrol evidences and writings concerning lands within their districts;; they were to take an oath of office to act honestly, and to see that the parties to these documents were capable of disposing of their property;3 and they were to have a seal wherewith to seal the documents' acknowledged before them. The date of the acknowledgment and the number of the roll on which they were to be enrolled were to be endorsed on the deed ; and all documents not enrolled within forty days of their date were to be void.4 The deeds so enrolled were to be absolutely conclusive upon all parties to them.6 The fees of these officials and their qualifications for office were fixed ; and penalties were provided for neglect of duty. It is interesting to note that it was the committee of the Council, created by the Act pro Camera Stellata of 1487, which was given jurisdiction in such cases.6 The clerk and the master must act together in taking acknowledgments. The clerk must prepare the rolls ; and, within thirty days after the end of the year, must deliver them to or confidence . be declared by wrytuges suffycently to be made under seale and that the same wrytuges be enrolled in manner and forme underwytten." 1 " Also it ys ordeynyd . that all manner of eyudences and wrytuges, of what name soever they, concorrying londes tenementies or heredyantens, which shall be made after the said laste day of July . r536, shalbe knowleged and enrolled in manner and Forme as shalbe hereafter expressed in phys acte." 2 There was a proviso at the end for the enrolment of the conveyances of land which lay in sundry shires in such shire as the party might elect. 3 " That . they shall not Recove the knowledge of any persons being naturalloles or not of hole mynde, and that they shall endowur themselves with all due circumstance to knowledge and serche that the persons knowledgyne any eyudences or wrytuges a for them do it of their true and good wytte." 4 A relaxation was made in cases where the party making the deed died within the forty days. 5 " No person . shalbe admitted to denye the same evidences and wrytuges so knowleged and synollyd to be his . .

**USS AND TRUSTS**

the master, who within the next thirty days must deposit them in the Chancery. These rolls were to be open to the public, and could be searched and copied on payment of fixed fees. Lands in towns, where conveyances were enrolled before the mayor or other officer, copyholds, and conveyances enrolled in the Chancery or before the Exchequer or the judges of either bench, were exempted from the necessity of enrolment. Landowners were allowed, if they wished, to enrol evidences made before the Act came into force; and similarly persons were to be allowed, if they wished, to register "all oblygacyons, acquytaunces and other wrytings consernyng personally things." Being enrolled, they were to have the same force and effect as if they had been acknowledged before a court of record.

This is a remarkably comprehensive scheme for the registration of conveyances; and, if it had been passed and efficiently carried out, we should have to-day in working order a series of county registers, which would have considerably simplified the land law. We should not have been faced with the difficulty of fitting a scheme of registration on to a system which the large powers of landowners and the ingenuity of conveyancers have made more complex than any other modern system. Such a scheme would have been easy to apply to a comparatively youthful legal system, and in a country which was as yet by no means densely populated. The then existing defects in the land law were caused chiefly by the complexity of the procedure in the real actions, and by the need to regulate uses. The first defect was to a large extent remedied by the substitution of the more convenient action of ejectment for the older real actions; and the second would have been remedied to a large extent by the Statute of Uses, if it had been combined with an Act providing a comprehensive scheme of this kind for the registration of conveyances. The causes which render a scheme of registration so difficult to-day are largely the result of the failure to pass the bill proposed in 1536.

Parliament chose the right course when it passed the comprehensive scheme submitted to it for dealing with the problem of the use. It was necessarily a difficult and a complicated Act to consider; and perhaps Parliament was hardly prepared to face the labour of considering another Act quite as difficult and complicated. Perhaps, too, the lawyers again united with the landowners to throw it out; for it is clear that universal registration, and the publicity necessarily involved, were not quite in accordance with either of their interests. Certainly the pecuniary interests of the king were not so directly involved in the passing of these proposals. But the reasons for their abandonment we can only conjecture. We could only learn the truth if the missing

**460 LAW IN XVITH AND XVITH CENTS**

records of the proceedings of this Parliament were to come to light. Whatever the truth may be, it is clear that a great opportunity was lost for ever when this bill was rejected. Parliament declined to consider a general scheme of registration, and passed instead a short Act, supplemental to the Statute of Uses, to deal simply with those bargains and sales of freehold interests in land which the Statute of Uses had converted into conveyances. The ingenious conveyancer had not much difficulty in evading the obligation to enrol imposed by this makeshift piece of legislation.1

Footnote 1: That the Statute of Enrolments did not extend to a bargain and sale for a term of years was recognized at least as early as 1595, Heyward's Case, z Co. Rep. at p. 36 a; it was decided in Lutwich v. Mitton (1621), Cro. Jac. 604, that a bargain and sale for a term followed by a release would pass the freehold. The statute did not refer to covenants to stand seised in consideration of love and natural affection, not, as Dr. Jenks (Short History of English Law, ziz) says, because the legislature was " determined to tolerate them," but because they did not at this date operate as conveyances, see above 423-426. The reference in App. III. (4), SS 6, to a covenant changing the use is not inconsistent with this view, since at this period, as Ames has pointed out, the term " covenant " is often used simply as a synonym for contract. " The lords have lost their wards, marriages, reliefs, heriots, escheats, aids _pure faire fils chivalier_ and _pur file marier_. . The king's highness hath lost the profits and advantages of the lands of persons attainted, and of the lands crafylyl put in reoffment to the uses of aliens born, and also the profits of waste for a year and a day of felons attained, and the lords their escheats thereof; " as a matter of fact lands held to the use of traitors had been declared forfeit by a statute of the preceding year, z6 Henry VIII, c. 13, SS 4.

**USES AND TRUSTS**

Maitland has truly said that the Statute of Uses " was forced upon an extremely unwilling Parliament by an extremely strong-willed king." 1 But I think that the evidence shows that this strong-willed king was obliged first to frighten and then to conciliate the common lawyers in order to get the Statute through the House of Commons ; and that probably their opposition caused the failure of his well-considered scheme for the registration of conveyances. If this be so the action of the common lawyers has had a large effect upon the form which the Statute of Uses and the Statute of Enrolments finally assumed, and, consequently, upon the whole of the future history of the law of real property.3

Footnote 1: Maitland, Equity 35.

(ii) _The provisions of the Statute and its immediate consequences_.

The governing idea of the Statute 3 is to take the seisin or legal estate from the reoffees to uses and vest it in the cestuique use--following the precedent set by a statute of 1483, which was passed to transfer to the cestuique use of Richard III. the legal estates which he had held in use before he became king.4 This governing idea is contained in the first clause. In substance it runs as follows :--When any person or persons are, or shall be, seised of any honours, castles, manors, lands, tenements, rents, services, reversions, remainders, or other hereditaments to the use of other person or persons or to the use of any body politic ; these other persons or bodies politic that have the use in fee simple, fee tail, for life or years, or for any estate in remainder or reverter,5 shall be seised for the like estates as they had in the

### Law in Xvith and Xvitin Cents.

use ; and the estate of the feoffees shall be adjudged to be in them that have the use for such an estate as formerly they had in the use. As it was the estate of the feoffees which was thus transferred, it followed that, unless an estate was given to the feoffees coextensive with that given to the cestuique use, the estate given to the cestuique use could only take effect to the extent of the estate given to the feoffees.1

Footnote 1: Anon, (1560) Dyer 186 ; cp. Jenkins v. Young (1632) Cro. Car, at pp. 231, 245.

The second clause deals with the case where divers persons are jointly seised to the use of one of them ; and the third clause with the case where persons are seised of hereditaments to the use that some other persons shall have a rent out of them. In both cases the legal estate is vested in the cestuique use to the extent of his interest.

Then follow the provisos to the Statute.Clauses 4-7 deal with the woman's dower, and provide, as we have seen,2 for the barring of dower by a legal jointure. Clause 8 provides that the execution of uses by the Act shall not discharge any statute, recognisance, or other bond. Clause 9 provides that all devises already made, or that shall be made, before the first of May, 1536, shall be valid. Clause 10 fixes the same date as the time from which the king shall be entitled to primer seisin, livery, ouster le main, fines for alienation, reliefs, or heriots, from the uses of land converted into legal estates by the statute ; and the same date is fixed as the time from which other lords shall be entitled to fines, reliefs, and heriots. Clause 11 provides that cestuique use, who have estates executed by the Act, shall have all remedies and rights of action open to the feoffees to their use before the passing of the Act ; and Clause 12 provides that actions pending against feoffees shall not be abated by the execution of the use. Clause 13 provides that nothing contained in the Act shall prejudice the king's rights to wardships of heirs now within age.3

Footnote 3: Vol. iii 196.

The Statute of Enrolments 4 (which was, as we have seen, in the nature of another proviso to the Statute of Uses 5) provides that, from the last day of July, 1536, no bargains and sales of estates of freehold or inheritance shall be valid, unless made in writing and under seal, and enrolled within six months of the date of the deed either in one of the king's courts of Record at Westminster, or in the county where the lands are situate.

Footnote 4: 27 Henry VIII. c. 16.

The words of the Statute of Uses make it reasonably clear

**USES AND TRUSTS**

that there was no intention to abolish uses.1 As Bacon points out, both this Statute and the Statute of Enrolments in more places than one provide not only for uses then existing, but also for uses that shall be hereafter.2 What it did intend to do was to execute or turn into legal estates the uses to which it applied, in order that the various evils which the preamble attributed to the division between the legal and equitable ownership might be avoided. It is also reasonably clear that the Statute did not apply to all uses. (1) The first clause deals only with the case where one is _seised_ to the use of another. Seeing that when the Statute was passed the word " seisin " had come to be exclusively applicable to the hereditaments,3 it could not apply when one was _possessed_ of chattels real or personal to the use of another.4 Though the words of the first clause made it clear that it applies where A is seised to B's use for a term of years, it does not apply where A is possessed of a term to the use of B. (2) The words of the first clause are applicable only to the case where A is seised to the use of B, i.e. where A is under the merely passive duty of allowing B to occupy the land for the estate limited to him by the instrument settling the uses, or by other directions given to the foeffees. It was in such cases that the evils mentioned in the preamble arose. B was in possession of the land and apparently owner; but he escaped all the liabilities of ownership, and had great opportunities for the defrauding of purchasers. It is quite another case where the foeffees are in possession and have active duties to perform.5 The evils of divided ownership do not arise in such a case; and to have taken away from the foeffees their legal estate would have made it impossible for them to carry out their trust.

Footnote 1: Reading 423, " If they had had any such intent, i.e. to abolish uses, they would have had words express that every limitation of use made after the statute should have been void. And this was the exposition, as tradition geoth, that a reader of Gray's Inn which read soon after the statute was in trouble for--and worthly; " for this view and later modifications of it see Pt. II. c. r SS8 4 and 6.

Footnote 2: Reading 422. ${}^{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{\\text{ \\text{\\

**404 Law in XVITH AND XVITH CENTS:**

advantages. The advantages gained by common lawyers were three in number. In the first place, they secured jurisdiction over the uses which the statute had converted into legal estates & and; this brought to their courts no small accession of business. In the second place, they obtained the sanction of the legislature to all the current legal objections to uses ; and, though these legal objections were not shared by the nation at large, the statement of them in this solemn form had, as we shall see, a considerable influence upon the manner in which the common lawyers, later in this century, dealt with the uses over which the Statute had given them jurisdiction.1 In the third place, the Statute was a far less radical measure of law reform than those measures which a few years earlier the king had proposed to enact in accordance with the agreement between himself and the nobility.9 On the other hand, the advantages gained by the king were quite as great. The Statute, by abolishing the power to devise freehold, made the incidents of tenure far more valuable than they would have been under a scheme which only gave the king the wardship of one-third of lands held by military tenure which had been devised, and continued to allow the devise of socage lands. The king gained peculiarily ; but at the price of the abandonment of his large scheme for the reform of the land law.

Footnote 1: \*\*The preamble of this law was justly commended by Popham, Chief Justice, in 36 Regina, where he saith there is little need to search and collect out of cases before the statute what the mischief was which the scope of the statute was to redress ; because there is a shorter way offered us by the sufficiency and fulness of the preamble," Bacon, Reading 418 ; see Pt. II. c. x SS 6.

The advantages secured by the lawyers hardly appealed to the landowners, and the advantages secured by the king were diametrically opposed to their interests. So much hostility did the Statute arouse that it was by no means an unimportant factor in aggravating the danger caused by the Pilgrimage of Grace, No doubt the Divorce, the consequent religious changes, and the dissolution of the smaller monasteries, which had been brought about in the same session of Parliament as that in which the Statute of Uses had been passed, were the main causes of the rebellion.9 But the repeal of the Statute of Uses figures in the demands of the rebels,10 and it appears from the depositions of Aske 11 and others 12 that it was the abolition of the power to devise which was one of the chief causes which induced the landed gentry--the natural leaders of the counties--to side decisively

**USS AND TRUSTS** **465**

with the rebels.1 It would appear too that the lawyers had already invented a method of vesting property for a long term of **yeas** in trust in order to regain this power.2 Henry was never under any illusions as to the nature and extent of the practical limitations upon his powers.3 That he was well aware of the importance of securing the adhesion to his new religious settlement of a class upon whom the working of the local government depended, is clear from the manner in which he disposed of the monastic lands,4 Having crushed the rebellin, and having improved his finances by the dissolution of the larger monasteries, he secured the adhesion of the landed gentry and their active co-operation, by restoring a large measure of the power to devise. In 1540--the year after the dissolution of the monasteries had been ratified by Parliament5--he reverted to the scheme which he had propounded eleven years before.6

Footnote 1: I., and P. xii $i$ no. _yo_ (x)--one Phillip Trotter deposed, " that Mr. Dighton of Horton, George Stanes, and Mr. Dymmoke of Carlton asked the commons whether they thought it not good to make one article that men should be at liberty to make their wills, saying, ' Masters, men cannot now make their wills, for if they make a will now and happen to die twenty or thirty years after the making thereof the same will shall stand, and the testator shall not at any time after the making of the same will change anything contained therein. .' He thinks that all the gentlemen were among the commons willingly, for he saw them always busy to set forward their purposes with no less diligence than the commons themselves. . . From the beginning to the end of the insurrection the gentlemen might have stayed it if they would, for the commons did nothing but by the gentlemen's commandment, and they never dursit stir in the field from the place they were appointed to, till the gentlemen directed them what to do."

Footnote 2: Ibld xv no. roz8 (7540)--a lawyer who describes himself as " a poor young man who must gain a living without exhibition or friend," in a petition to Cromwell says that he has not since the Statute of Uses, " devised any estates to bring a term of years to the owner of the inheritance of any lands, with a remainder over, to declare a will; " this device is alluded to in 34, 35 Henry VIII. c. SS 8, and by a statute of 33 Henry VIII. c. 26 such a conveyance by Sir J. Shelton was found to be covinous, and declared void by Act of Parliament; but, when Bacon wrote, it was apparently a device commonly used; he says, Reading 422, " that may be an abuse of the law which is not against the law; as the taking long leases at this day of land _in capita_ to defraud warships is an abuse of law, but yet it is according to law; ;; it found no favour with Lord Flesmere, below 472; apparently Aske, L, and P. xii $i$ no. gor (p. 408) hints at another device by which the son could be made to take as purchaser.

Footnote 3: Above 31, 453-455. 4 Above 37. 53 Henry VIII. c. 73. 53 Henry VIII. c. 73. 53 Henry VIII. c. 7. 53466 Law in XVITH AND XVITH CENTS:

been no devise. Those who held land by knight service in capite, whether or no they held other lands of the king or any other. Lord, were allowed a similar power to devise two-thirds of their lands. In this case the king reserved his rights to wardship and primer seisin on one-third, and his fines for alienation on the whole of the lands devised. Those who held lands by knight service, not in capite of the king or of other lords, and also socage lands, were allowed to devise two-thirds of the former and all the latter lands. The rights of the king to wardship and primer seisin, and of the other lords to wardship out of a third of the lands were carefully saved; and, in case the yearly value of the third of the lands did not amount to the full value of a third of all the tenant's lands, the king and the lords were to be entitled to make up the deficiency from the two-thirds devised. If lands were settled in joint tenancy to two for life with remainder to the heirs of one, the king was to have the wardship and marriage of the heir, though the other joint tenant survived. The widow's dower was to be payable out of the two-thirds devisable. In 1542-1543 it was found that the breadth of the terms in which the power to devise had been conferred by the Act of 1540, needed some explanation.1 .It was declared that the power to devise extended only to lands held for an estate in fee simple, and did not give liberty to devise to a corporation. Devises made by married women, infants (under twenty-one), and idiots, were declared to be void. Gifts made fraudulently with intent to deprive the king or lord of his rights were also declared to be void. Provision was made for the manner in which the king's and lord's rights to the incidents of tenure from a third of the lands held in knight service were to be realized. A devise of more than two-thirds was to stand good for two-thirds, and, if the king's or lord's claims caused the eviction of a devisee, he could sue in Chancery to get compensation from the shares of the other devisees.

These two statutes of Wills were the direct results of the Statute of Uses. The king got back some part of his rights of which the practice of settling lands to uses had almost entirely deprived him; and the permanent settlement of these rights by the Act of 1540 was marked by the establishment in the same year of a new court--the Court of Wards--entrusted with the duty of seeing that they were duly enforced.2 On the other hand, the landowner retained a large part of the power to devise which he had enjoyed for upwards of a century. The breadth of the terms in which that power was conferred created a new kind of future

**USS AND TRUSTS**

interest in the land--the executory devise--which differed entirely from legal remainders, and in some respects from future interests created by way of shifting or springing use.1

Footnote 1: Pt. II. c, r SS 4.

(iii) _The extent to which the framers of the Statute of Uses succeeded in attaining the objects with which it was framed._

Modern writers upon the law of real property have sometimes severely criticized the draftsmanship of the framers of the Statute of Uses; and they have maintained that, owing to their carelessness, it failed to carry out most of the objects which it was passed to attain. This was not the opinion of competent critics in the sixteenth century. Bacon said that, though it had been somewhat "perverted in exposition by the humour of the time," it was "the most perfectly and exactly conceived and penned of any law in the book," and, "the best pondered in all the words and clauses of it of any statute that I find."2 We can safely follow Bacon and other lawyers of this period, who were no mean judges of legal draftsmanship; and, this being the case, it is not surprising to find that, so far from the Statute having failed to attain the objects with which it was passed, it attained them all. Later legislation, and changed ideas of public policy, may have settled the law in a manner very different from that in which it was settled by the Statute. But clearly we must distinguish between the results effected by the Statute itself, and those effected by these later influences. Let us look at the objects with which the Statute was passed, and see how far the Statute succeeded in attaining them, and how far the fact that they were not attained was due to later changes in the law.

We can group these objects under four heads: (1) The restoration to the king of his revenue from the incidents of tenure; (2) the abolition of the power to devise; (3) the restoration of publicity of conveyance; (4) the abolition, in the case of uses to which the statute applied, of the separation between legal and equitable ownership.

We have seen that the Statute accomplished the first two of these objects so effectually that it helped to cause rebellion; and that the king found it expedient to restore partially the power to devise, and to suffer the consequent diminution of his revenue from

### 468 Law 1n Xvith and Xvith Cents.

the incidents of tenure.1 The third object was attained because the Statute of Enrolments, which, as we have seen, must be regarded as an integral part of the Statute of Uses,2 required\*the enrolment of all bargains and sales. It is true that the Statute made no provision for covenants to stand seised; nor did its framers foresee that ingenious conveyancers would evade the Statute of Enrolments by the device of a bargain and sale for a term of years followed by a release. But we cannot expect the framers of any statute to possess the gift of prophecy. We have seen that the covenant to stand seised was not a recognized form of conveyance at the time that the Statute was passed; 3 and it was not till many years later that the validity of the method of evading the Statute of Enrolments by means of a bargain and sale for a term of years was finally established.4

Footnote 1: Above 465-466. * Above 455 n. 4. * Above 425-426. * Lutwich v. Mitton (162x) Cro. Jac. 604; above 4.0 n. r. * Brook, Ab, _Feffementes al uses_ pl., 40 (24 Hy. VIII.); cp. ibid pl. 54 (36 Hy. VII1.); Ames, Origin of Uses and Trust, Essays, A.A.L.H. ii 748; the will of William Bulmer (1524), Test. Ebor, v 189, provides a clear instance by the creation of a use on a use; he directed his reoffesto to hold to the use of his wife for fifteen years " to such use and behove as I have charged my saide vif with." * Bk. ii c. 21--the case put is a foeffiment to X to the use that hc pay a rent to AB; and the question is whether AB holds this rent to his own use if nothing further is said; the Student answers in the affirmative, " without the contrary can be proved, and if the contrary can be proved, and that the intent of the feoffor was, that he should dispose of it for him as he should appoint, then hath he the rent in use to another use, and so one use should be depending upon another use, which is seldom seen, and shall not be intended till it be proved."

**USES AND TRUSTS**: **469**

no effect could be given to it on the following grounds : They were clearly of opinion that if a use was implied by law in favour of anyone, other than a volunteer, no further use could be expressed. Thus we have seen that if A enefotified B for a life estate or for an estate tail, B would hold to his own use, whether or no any further use was expressed, because the obligation arising from the tenure between A and B was a sufficient consideration to raise a use in B's favour \[1\]. On the other hand, if A enefotified B gratuitously for an estate in fee simple, no such obligation arose, and a use would be implied in A's favour ; \[2\] but this implied use could be negatively if it was expressly stated that B was to hold to the use of X \[3\]. A, in other words, could waive a benefit which the law gave him. It was quite a different case if A enefotified B in fee simple to the use of X \[3\] to the use of Y \[3\]; for here two wholly incompatible uses were expressly limited. It was thought, and on the whole reasonably, that the same principle should be applied to the second of these uses, as was applied to an express use, which was incompatible with an implied use in favour of a tenant for life or in tail \[4\]. Therefore the use declared in favour of Y was void, because it was incompatible with the use previously declared in favour of X.

For a short time after the passing of the Statute of Uses some uncertainty on this point existed. In I555, in the case of _Milburn v. Ferrers \[5\]_ the question whether any effect could be given to the second use was doubted \[3\]; but three years later, in _Tyrrel's Case \[6\]_ the court of Wards, with the approval of the judges of the court of Common Pleas, decided that the second use was void. The facts of that case were as follows \[3\]; Jane

**470 LAW IN XVITH AND XVITH CENTS.**

Tyrrel, for PS400 paid by G. Tyrrel her son, by deed enrolled bargained and sold to G. Tyrrel all her lands, to hold to the said G. Tyrrel and his heirs, to the use of Jane for life, and after her decease to the use of G. Tyrrel and the heirs of his body, and, in default of issue, to the use of the heirs of Jane. These uses the court of Wards held to be void "because a use cannot be reserved out of an use." "And here it ought to be first an use transferred to the vendee before that any freehold or inheritance in the land can be vested in him by the inrollment. And this case has been doubted in the Common Pleas before now. But all the Judges of the C.B. and Saunders, Chief Justice, thought that the limitation of uses above is void, for suppose the statute of inrollments had never been made, but only the statute of uses, then the use above could not be, because a use cannot be ingendered of a use." Or, as Anderson more intelligently says, "the bargain for money implies in itself a use, and the limitation of another use is merely contrary." In _Dillon_ v. _Fraine_ he expressly compares this case to the cases in which it had been held that a tenant for life or in tail could be seised to no use but his own, because, the tenure between feoffor and feoffee having raised an implied use in favour of the feoffee, no other use could be expressed.1

Footnote 1: I And, at p. 313, " It is agreed \[by Tyrrel's Case\] that if one by deed indented and indrolled bargains and sells land to I,S, to the use of the bargain for life or in fee or to the use of a stranger, this limitation of a use is wholly void, because by the sale for money a use is implied, and to limit another (even though it be by deed that the other use is limited) is merely repugnant to the first use, and they cannot stand together, and 24 H. 8 Br. it, Feoffment al Uses 40 \[above 429 n. 5\] one cannot give land in tail to the use of another, because the tenant in tail cannot be seised to the use of any one else than himself and the heirs of his body, and cannot make a valid foeffment to him to whom the \[second\] use is appointed."

It would appear from Dyer's report that the court of Wards were of opinion that, if the use had been transferred to G. Tyrrel the son, by indenture inrolled, he might then have declared that he held to the use of Jane Tyrrel for life ; but that this could not be done by one conveyance, because a use cannot be reserved out of a use. The reasoning of the court of Common Pleas was, however, somawhat different. They followed precedent, and laid it down that in no case could a use be executed which would contradict a use which arose by implication of law, whether by reason of a feoffment in tail or for life, or by reason of a bargain and sale. About the same time they also decided that no implied use could be raised which would contradict a use expressly declared--a logical decision of what was really the converse

**USES AND TRUSTS** **471**

In coming to these decisions the court followed an obvious analogy, and applied both to the use implied from a bargain and sala, and to a use expressly declared, the law in force with regard to the use implied from a gift to A for life or in tail. But we have seen that, towards the end of the sixteenth century, some lawyers thought that the use implied by law in favour of the done on a gift for life or in tail might be rebutted by express declaration.1 But if this were so, why should not the use implied from a bargain and sale be likewise rebutted? If this could be done the decision in _Tyrrel's Case_ could not stand. But by this time an alternative reason had been found for it. The court of Common Pleas had declined to separate the two uses, and allow the validity of a use declared upon the legal estate arising from the execution of the first use by the Statute.2 Now a use was not regarded as having any existence at all at law.3 It is true that in respect to some of its incidents the use of freehold land was assimilated by the chancellor to a hereditament;4 but it had not all the qualities of a hereditament;6 so that it could hardly be maintained that it was a true hereditament. But if it was not a hereditament no use declared on it could be executed by the statute.6 It was in the same position as the use of a chattel real or personal.

But, if this reason is given for the decision, it may be asked why the chancellor should not enforce this second use. In an anonymous case of the year 158o the judges, in answer to a question asked them by the chancellor, said that the use of a term of years was void in that it was not executed by the Statute of Uses.7 But it is quite clear that the chancellor recognized these (the feoffee's) own use, and the feoffee suffers the feoffor to occupy the land for divers years, still the right is in the feoffee, because an express use is contained in the deed, which is sufficient without any other consideration; the law is the same when the feoffem is made to the use of a stranger and his heirs;" see above 424 n. 5, 469.

Footnote 1: Above 429 n. 6; Anderson notes this diversity of opinion in his argument in Dillon v. Fraine (1589-1595), r And. at p. 313; and in Corbet's Case (1599-1500) 2 And. at p. 136 it was said, " Et (nient obsant le opinion de darren temps) si un done terre a autter in tail al use de auter et ses heyres, cest limitation de use est ousterment void come applier 41 H. 8,"

Footnote 2: Above 430, 440.

Footnote 3: Wimbish v. Talbois (1557) Plowden at p. 58 _per_ Mountague C.J.; above 437-438.

Footnote 4: Winchester's Case (1583) 3 Co. Rep. at f. zb.

Footnote 4: Bacon, Reading 425, " the fourth word is hereditament. . This word excludes annuities and uses themselves; so that an use cannot be to a use."

Footnote 7: Dyer 360a, " A being possessed of a lease for a term of years granted all his estate . . to B and C and their assigns to the use of the said A and his wife for the terin of their lives and of the longer liver of them. And afterwards the said A gave to a stranger such interest as he then had in the said lands in lease, and died. Whether this grant made by A gave all the term of B and C or not? And it was answered by all the Justices and the Chief Baron . that the gift or grant of him, in trust for whom the term was granted, was void, and out of the statute of _cesstuyque uses_ etc.; " after noting this case Crompton, Courts 65, says, " Mes done dun terme

**472 LAW IN XVITH AND XVITH CENTS.**

uses.1 If, it might be said, he enforced one kind of uses not recognized by the common law courts because not executed by the Statute, why should he not recognize another sort? But he certainly did not recognize these uses upon uses;3 and the reason no doubt is that if the chancellor had enforced uses upon uses, such as those which were created in _Tyrrel's Case_, the king's revenue from the incidents of tenure would again have been depleted, and frauds upon creditors and purchasers,3 and evasions of the laws imposing forfeitures for treason or felony and penalties for recusancy,4 would have been facilitated. In short, all the objects specified in the preamble to the Statute would have been frustrated. _Tyrrel's Case_ was decided in the court of Wards where the financial interests of the king were likely to have the greatest weight; and the chancellor was a great officer of state with whom similar considerations might also be expected to weigh.6 However this may be, there is good evidence that at the end of the sixteenth century Lord Ellesmere agreed with the views expressed by those who framed the preamble to the Statute," and expressed dislike for trusts for long terms of years made by tenants in chief, because they were used to defraud the king of his feudal revenue.7 For these reasons, therefore, the court of Chancery was hardly likely in Ellesmere's time to render the Statute nugatory by recognizing the uses of uses. But, considering the financial straits of the government at the end of the sixteenth and the beginning of the seventeenth century, it was probably the financial reason which weighed the most heavily. At any rate we shall see that it was not till the incidents of tenure had become things of the past that the Chancery finally decided in all cases to enforce as trusts those uses upon uses which _Tyrrel's Case_ had

**USES AND TRUSTS**

declared to be void at law.1 It was not until this result had been achieved, more than a hundred years after the passing of the Statute, that it can be said that it had failed to effect a union between the legal and the equitable estate in the cases to which it applied.

We must now turn to the broad results of the Statute of Uses upon the future development of uses and trusts at law and in equity.

The Use at Common Law and the Equitable Trust.

The uses executed by the Statute, and thus brought within the sphere of common law jurisdiction, gave a much-needed elasticity to the land law, and enabled this essentially mediaval body of law to be adapted to the changed commercial, industrial, and agricultural conditions of the sixteenth and seventeenth centuries.2 With the history of the technical developments in the law by means of which they produced this result I shall deal in the second Part of this Book.3 Here I shall only indicate in brief outline the manner in which they influenced the future development of the land law.

Footnote 1: Vol. v 309; vol. vi chap. 8; for earlier cases in which these uses upon uses had been enforced under special circumstances see vol. v 307-309.

The broad result of the conversion of the uses affected by the Statute into legal estates, was a large addition to the powers of the landowner, and an improvement in the means by which these powers were exercised. Since the Statute was not accompanied by any large reforms of the land law, landowners retained all their existing powers of dealing with their property, and, in addition, gained the new powers and the improved modes of exercising them which were rendered possible by the machinery of the use. The skill with which the conveyancers made use of the position which the statute had thus created enabled landowners to make full use of their opportunities; and they used them with very little interference on the part of the legislature. The chief limitation on their freedom of action came, not from the legislature, but from the courts.

We have seen that, from an early period, the courts had been astute to prevent any direct restrictions upon freedom of alienation.4 The readiness with which they had allowed the estate tail to be barred by the device of a common recovery showed that they were equally astute to prevent the indefinite fettering of that freedom by the means of unbarrable entails,5 even when the creation of these entails had the sanction of the legislature; and the restrictions which they placed upon the contingent remainder, the validity474: LAW IN XVITH AND XVIIITH CENTS.

of which they had come at length to admit,1 were inspired by the same policy.9 It was soon seen that the limiting of land in perpetuity to a succession of limited owners could be very easily effected by the machinery of the use. But we shall see that, from the latter part of this century, the courts, by applying to some of these interests the rules applicable to legal contingent remainders, and by applying to others principles which eventually developed into the modern rule against perpetuities, prescribed the utmost length of time for which future limited interests in all kinds of property could lawfully be made to endure.2

Footnote 1: Vol. iii 134-136; Pt. II. c. r SS 3.

Footnote 2: Ibid SS 3 and 6.

Footnote 3: See the Eyre of Kent (S.S.) ii 78, for a statement of the rule and a suggestion by Spiggumel , as to a means of,evading it.

Subject to this restriction, landowners were able to use the new facilities which were now at their disposal very much as they pleased. We get therefore, in the first place, a much greater variety in the nature of the interests which can be created in the land, and, in the second place, a development in the machinery by which both these and other interests can be created or transferred.

(i) At common law a man could not convey an interest to himself or his wife.4 This was quite possible by means of the machinery of the use : and was found to be convenient when it was wished to change trustees or to settle property on marriage.6 At common law the only future interests in land which it was possible to create were reversions, and remainders vested or contingent ; and, as we shall see, the liability of the contingent remainder to failure or destruction rendered it a precarious estate.6 But future legal estates could now be created by means of shifting and springing uses.7 It was ultimately held that they were not liable to failure or destruction in the same manner as legal contingent remainders ; and the rules affecting their creation were not so rigid.8 At common law it was not as a rule possible to separate the power of disposition over land from the estate in the land. It was not possible to give to A a limited interest, and to give either to A or to some third person, who had no estate in the land, a disposing power over the fee simple. But such powers of appointment could be created by means of uses.9 Moreover, a settlor of property

**USES AND TRUSTS**

could give a power to revoke uses declared, and to appoint to fresh uses.1 When the appointment was made the fepofees stood seised to tife use of the appointee, the Statute executed the use in his favour, and so gave him the legal estate. The best illustration of the manner in which the conveyancers made use of these new facilities is the modern strict settlement of land. A person seised in fee simple is able to convey the property to trustees to the use of himself and his heirs till marriage, and from and after the marriage to the use of himself for life, with remainder to the use of his eldest and other sons successively in tail, with remainder to his right heirs. The claims of his widow and younger children can be met by rent charges on the property secured by limiting long terms of years to the use of the trustees in priority to the estates tail ; and, if it is desired to give larger powers over the property either to the life tenant or the trustees, in the interests either of the family or of the needs of estate management, this can be accomplished by means of powers of appointment.

Footnote 1: Digges Case (r598-1600) r Co. Rep. 173a.

(ii) The methods by which lands could be settled or conveyed were simplified. The law will not, for three hundred years, allow that corporeal hereditaments lie in grant;2 but a long step in that direction was taken when it became possible to limit a use by deed, and when the Statute annexed the legal estate to the person in whose favour the limitation was made. When the ingenuity of the conveyancers evaded the requirement of enrolment,3 the landowner acquired not only a convenient, but also a secret, method of conveyance.

Footnote 2: **Above 460 n. I.**

These new powers acquired by landowners had both their strong and their weak points. They enabled land to be settled in such a way that, while it devolved as one estate upon the eldest son, provision could be made out of it for other members of the family. Thus a succession of substantial landowners was created, who, in the seventeenth and eighteenth centuries, did good service in administering the local government of the country, in improving its agricultural condition, and in imparting an element of stability to the ordering of the classes of society.4 On the other hand, these large powers of disposition, coupled with secret modes of exercising them, caused inevitably a large amount of complication in the law. The manner in which the new law was pieced on to the old added to the complication thus caused. It has made dealings in land expensive, because the whole history of the property must, on the occasion of each purchase, be critically examined by an expert. In the sixteenth, seventeenth, and eighteenth centuries the political

### Law in Xvith and Xvith Cents.

and social effects of the large powers acquired by the landowners probably outweighed the evils arising from the necessary complications in the land law which resulted therefrom. But changes in economic conditions, and in the political and social organization of the state, have gradually destroyed these compensating advantages, and created a demand for simplification, even at the cost of the sacrifice of some of the powers acquired by landowners during these three centuries.

The influence of the equitable trust has been more far-reaching than the influence of the uses executed by the Statute. These uses have affected only the land law. The equitable trust has affected not only the law of property, but also family law, and some parts of our public or semi-public law. And it is only natural that the influence of the equitable trust should have been more far-reaching ; for we shall see that these equitable trusts were designed to suit modern needs, and that they were free from many of the technical defects of the mediaeval use.1

Footnote 1: Vol. v 304-307; vol. vi c. 8; Pt. II. c. I SS 4.

(i) The two main branches of the law of property affected by the equitable trust have been the law as to chattels personal, and the law as to executors and administrators. When the Statute of Uses was passed the law as to chattels personal was rudimentary. It was regarded rather as a branch of the law of crime or tort than an independent branch of the law;2 and we have seen that uses of these chattels were not affected by the Statute.3 But the growth of commerce soon made some of these chattels personal quite as, if not more, important than interests in land. Such chattels as stocks and shares resembled land in that they were permanent in character and produced an income. The owners of such chattels, therefore, desired to be able to deal with them as a landowner dealt with his land. By means of the equitable trust such dealings could easily be effected. They could be settled to go in succession to a number of limited owners, and powers of appointment could be created over them. Similarly, when the court of Chancery absorbed the powers of the ecclesiastical courts over the administration of the estates of deceased persons,4 it easily applied its rules as to the rights and duties and liabilities of trustees to the personal representative. It is the application of these equitable rules to the representative which has created the largest part of our modern law on this subject.

(ii) The two branches of our family law which the equitable trust has created are the law as to married women's property, and a considerable part of the law of infancy and guardianship. The

**USES AND TRUSTS** **477**

denial of all proprietary capacity to the married woman by the common law 1 was remedied by the invention of property vested in trastees to her separate use.2 Over this property she was gradually given a complete power of disposition. Thus, by means of a properly drawn settlement, the married woman was given all, and sometimes more than all, the advantages which she would have enjoyed if the common law had treated her proprietary capacity as normal. The law of infancy and guardianship had remained in a rudimentary state largely owing to the long life of feudal wardship. When the disturbing influence of this mediaeval institution was swept away, it soon appeared that there was a gap in our family law which the institution of the trust was peculiarly well adapted to fill.3

Footnote 1: Vol. iii 525-527-

(iii) In thus filling up the gaps in our law of property and in our family law the equitable trust did some of the work which was done abroad by the adaptation of the principles of Roman law to the needs of the modern state. The subject matter of the English rules was very different from the subject matter of the continental rules ; but, both in England and abroad, bodies of law were developed which dealt with analogous social needs and social relations. The influence of the equitable trust upon our public or semi-public law is wholly unique. By its means a set of institutions and a body of law were developed which have no parallel in any continental state. But to explain this I must briefly recall one or two of the salient features of the public law of this and the following century in this country and abroad.

We have seen that in the middle ages the law knew many miscellaneous communities and groups which performed many miscellaneous functions--governmental, charitable, religious, and social.4 But these groups assorted badly with the new system of government which depended upon royal officials controlled from the centre.5 They assorted as badly with the new view, taught by the Roman lawyers, that only a person natural or artificial could be recognized as capable of rights and duties ; and that an artificial person could only be created by the sovereign.6 It followed that these unincorporate groups were incapable of owning property ; and without property the activities of a group must be very limited. Thus we find that abroad these miscellaneous mediaeval groups gradually disappear, or become recognized corporations. In England we can see plain traces of similar legal doctrines. The common lawyers laid it down in the late fifteenth and sixteenth centuries that' no unincorporate group can own478 Law in XVITH AND XVITH CENTS.

property.1 But both the law and the institutions of England in the sixteenth century retained a much larger mediaeval element than the law and institutions of continental states.2 Many of these unincorporate groups were both alive and active. Counties, hundreds, and parishes were essential parts of the machinery of government; and, whatever the lawyers might say, they sometimes possessed property.3 And the lawyers themselves were organized in unincorporate Inns of Court, which, even in the sixteenth century, were owners of property on a fairly large scale.4 Thus the obvious facts of important sides of English life were favourable to, we might almost say necessitated, a recognition of these various groups.

Footnote 1: Above 153: 9 Above 163-165.

Footnote 2: Above 153: it was said in Porter's Case (1592) I Co. Rep. at p. 24b that, "almost all the lands belonging to the towns or boroughs not incorporate are conveyed to several inhabitants of the parish and their heirs, upon trust and confidence to employ the profits to such good uses, as defraying the tax of the town, repairing the highways, repairing the church, maintaining the poor of the parish or supporting other charges in the parish. And it would be a thing dishonourable to the law of the land, to make such good uses void, and to restrain men from giving lands to such good uses."

Footnote 3: Above 449-440.

Footnote 4: Above 393, 398-399; "Note reader that any man at this day may give lands tenements or indetermiments to any person or persons and their heirs, for the finding of a preacher, maintenance of a school, relief and comfort of maimed soldiers, sustenance of poor people, reparation of churches, highways, bridges, causeways, discharging of poor inhabitants of a town of common charges, for making of a stock for poor labourers in husbandry and poor apprentices, and for the marriage of poor virgins, or for any other charitable uses," Porter's Case (1592) I Co. Rep. at p. 26a.

The legal recognition which the common law found itself unable to give was supplied by the machinery of the equitable trust. These groups might not be able to own property, but property could be held on trust for them. We have seen that as early as Henry VIII.'s reign the Chancellor entertained a suit by parishioners to enforce their rights to certain gild lands.5 We have seen, too, that Henry VIII. regulated by statute certain trusts for religious purposes.6 It is clear from the Elizabeth statutes relating to charitable trusts that much property was held by trustees for the most various charitable purposes.7 But a device by which a group of persons may, through the medium of trustees, be given in substance the enjoyment of property, to be used for the furtherance of the purposes for which the group has come together, is capable of the most diverse applications; and from the sixteenth to the twentieth century it has been employed to effect the most various purposes.8 In the religious world it has helped forward the cause of freedom of conscience, because nonconformist bodies, whom the state would hardly tolerate, have been able to

**USES AND TRUSTS**

Enjoy property and apply it to the maintenance of their religious views.1 In the political world it was used, in the eighteenth and early\*nineteenth centuries, to eke out the deficiencies of municipal government, by the creation of bodies of trustees to carry out such duties as those of lighting, paving, drainage, and road making.2 In the commercial world it has been used to create organizations of persons engaged in a particular business, such as Lloyds and the Stock Exchange, which exercise large powers of discipline over persons engaged in that trade.3 In the social world it has fostered the growth of all manner of clubs and societies.4 In the literary world it has enabled institutions such as the London Library to be created; 6 and we who write legal history may remember that the Selden Society carries on its work under a trust.6

Footnote 1: Maitland, op. cit. 363; 364.

Footnote 2: Ibid 378, 399; Webb, Local Government, the Manor and the Borough 3 n. a--Turnpike Trustees : g6 n. a--trustees for the night watch and for paving in the Savoy; the jurisdiction of the court Leet was often taken over by a body of Trustees, ibid 122.

Footnote 3: Ibid 377-374.

Footnote 4: Ibid 377, 378.

Footnote 5: Ibid 388.

Footnote 6: Ibid.

Thus in England the mediaeval group did not altogether disappear. Like many another mediaeval institution it survived because it was transformed; 7 and, in its transformed state, it became the ancestor of many new groups formed to forward many various activities of English life during the last three centuries. These new groups were necessarily different in many respects from their mediaeval ancestors. They depended for their life upon a body of trustees acting under a trust deed which defined their powers. Thus their constitution and their activities were fixed--it may be fixed within wide limits--but still fixed. Because the mediaeval group did not possess a written constitution, the sphere of its activities more easily admitted of modifications as and when occasion arose. It is for this reason that we find that these groups, which have flourished by means of the equitable trust, have been bodies formed for some specific purpose, the nature and manner of the fulfilment of which could be permanently defined by a trust deed. It was difficult, as the United Free Church of Scotland found, to alter even slightly the purposes for which the trust was created without losing all right to the trust property.8 They are not suited therefore to bodies who wish to modify their aims and purposes with changing circumstances. Much less are they suited to the active conduct of a business; for it is clear that the rapid changes of policy which new emergencies and fresh

### Law in Xvith and Xvitin CENTS.

developments may at any moment demand are wholly incompatible with a precise written constitution. A commercial partnership or a corporate body are more suited to such a purpose because they can exercise a wider discretion than is possible under the necessarily fixed terms of a trust.

But, though the nature and constitution of the equitable trust thus limit the sphere of the activity of the groups which flourish under its shelter, their long life, their constant increase in number and variety, and the great part which they have played in our national life from the sixteenth century onwards, justify us in regarding them as the trust's most remarkable achievement. The Trust has in fact preserved, in a shape suited to modern legal and political ideas, the mediaval power to create groups ; and these groups, because they are autonomous and yet subject to the law, have had a share in imparting a sound political instinct to the greater part of the nation who are members of one or more of them, hardly inferior to the share attributable to that peculiarly English system of local self-government, which enlisted all classes, from the highest to the lowest, in the service of the state.

### The Lund Law

The statutes relating to uses and wills of land are by far the most important of the statutes dealing with the land law. The remaining statutes can be summarized very much more briefly under the following heads : The prevention of frauds on creditors, purchasers, remaindermen or reversioners, and the crown ; conveyancing ; the doctrines relating to seisin ; the limitation of the real actions ; the interest of the termor ; landlord and tenant ; forcible entry.

1. _The prevention of frauds on creditors_, _purchasers_, _remaindermen or reversioners_, _and the crown_.

The Statute of Uses put a stop to one method of defrauding persons who had an interest in, or who wished to deal with land. But fraudulent persons are generally resourceful ; and it soon became necessary to pass statutes to deal with new forms of fraud. A statute of i5711 recites that gifts of lands and goods to defraud creditors are " more commonly used and practised in these days than hath been seen or heard of heretofore," and enacts that such conveyances shall be void as against creditors whose actions are thereby defeated and delayed. Penalties were inflicted on all the parties thereto, and those who sought to take advantage of them ; but it was provided that the statute should not affect those who

**THE LAND LAW**

**had acquired the land for consideration without notice of the fraud. A statute of 1584-1585 1 provides for the case of the conveyance of lands with intent to defraud subsequent purchasers. Such conveyances were to be void as against the purchaser, his heirs, executors, administrators, or assigns. If a conveyance of land (other than a bona fide mortgage) contained a clause of revocation at the will of the conveying party, a subsequent sale for value was to make this clause void. Provision was also made for the registration of Statutes Merchant and Staple.**

\_Tuyne's Case, which arose on the former of these statutes, and Standon v. Bullock, which arose on the latter, show that both these statutes were extensively construed.2 It would seem from these cases that the courts in the sixteenth century, as at an earlier period,3 were pressed by the difficulty of trying the thought of man. How could a fraudulent intent be proved? They saw, of course, that it could only be proved by the surrounding circumstances ; and accordingly they defined with elaboration the circumstances from which fraud could be inferred.4 It is perhaps due to this elaborate definition that in later cases--in fact right down to the last quarter of the nineteenth century 6--the courts adopted the practice of inferring fraud as a matter of law from certain facts, whether or not there was any actual intention to deceive. The most remarkable instance of the manufacture of this species of constructive fraud was the interpretation put upon the statute of 1584-1585. It had been laid down in Standon v. Bullock that, "voluntary estates made with power of revocation as to purchasers are in equal degree with conveyances made by fraud and covin to defraud purchasers." 6 As early as 1608 it was held that any voluntary conveyance was to be regarded as fraudulent as against a subsequent purchaser, merely because it was voluntary.7 Notwithstanding decisions which laid down the more reasonable rule that the fact that a conveyance was voluntary

### Law in Xvith and Xvitin Cents.

was only evidence of an intent to defraud,\[1\] the view that any voluntary conveyance must be deemed to be fraudulent as against a subsequent purchaser prevailed.\[2\] It was not till 1893 thats this strained construction was overruled by the legislature, and the natural meaning of Elizabeth's statute restored.\[3\]

The recognition of the common recovery as an effectual method of completely barring an estate tail,\[4\] had apparently led to frauds upon the rights of remaindermen and reversioners. A statute of 1540 \[6\] provided that recoveries suffered by tenants for life, by the curtesy, or by tenants in tail after possibility, should be void, unless the recovery were suffered with the consent of the remainderman or reversioner. This statute was repealed, but in substance re-enacted in an improved form by a statute of 1572.\[6\] A king who was careful to preserve his revenue accruing from escheats and forfeitures, was not likely to permit his reversions or remainders to be imperilled by recoveries suffered by the tenant in tail. A statute of 1542-1543 provided that, if an estate tail was granted by the crown as reward for services,\[7\] a common recovery should not be able to bar the issue so long as the reversion or remainder was vested in the crown.\[8\]

The severity of the statutes directed against the treasonable practices of Roman Catholics, and the severity of the penalties against recusancy, naturally produced attempts to evade some of their consequences. Two statutes of 1586-1587 made provision against this. The first enacted that fraudulent gifts of property made by traitors should be void ; and that all who claimed under such gifts must enrol them within two years, and produce evidence that they were made bona fide.\[9\] The second \[10\] enacted that secret conveyances made by recusants to evade the penalties for recusancy, imposed by a statute of 1580-1581,\[11\] should be void.

1 Sir Ralph Bovy's Case (1672) r Vent. r93; Jenkins v. Keymis (1604) r Lev. r50; Lavender v. Blackstone (1675) z Lev. r46; cf. Cadogan v. Kennett (1776) Cowp. 434 for a dictum by Lord Mansfield to the same effect.

1 Doe v. Manning (1807) 9 East 59.

1 So, 57 Victoria c. 21.

1 So, 53.

1 So, 57 Victoria c. 21.

1 So, 53.

1 So, 57 Victoria c. 21.

1 So, 57 Victoria c.

**THE LAND LAW** **488**

(ii) _Conveyancing_.

Besides the Statute of Uses and the Statute of Enrolments one or two minor changes were made in the established methods of conveying or creating interests in land. We have seen that a statute of Henry VII.'s reign,\[1\] passed to restore the efficacy of fines to bar adverse claims, was construed to apply to the estate tail; and that a statute of Henry VIII.'s reign \[2\] confirmed this construction.\[3\] The latter statute made the fine an immediate bar to the issue, unless the fine was levied by a woman tenant in tail of lands _ex provisione viri_, by a person restrained by Act of Parliament, or by a tenant in tail of lands, the reversion of which was in the crown. In i58o-i58i \[4\] a statute was made to avoid errors in fines and recoveries, and to provide for their amendment. It provided a special office for their enrolment; and in i588-i589 a small change was made in the days in term on which fines were to be proclaimed in court.\[6\] In i539 the writ of partition available to coparceners was extended to joint tenants in fee simple;\[6\] and in i540 the privilege was extended to joint tenants for life or years.\[7\] In i529 a bargain and sale by executors was declared to be good though made only by the acting executors.\[8\]

(iii) _Doctrines relating to seisin_.

We have seen that the person seised, though seised only of a limited estate or tortiously, might convey an estate in fee simple. If the heir of the person thus tortiously seised, or of the persons to whom the property had been conveyed, succeeded to the property, the true owner's right of entry was gone, and he could only sue by real action. 'This principle was limited by a statute of i540,\[9\] which provided that the succession of the heir of a disseisor who had died seised, should not take away the true owner's right of entry, unless the disseisor had had peaceable possession for five years after the disseisin, without entry effected, or continual claim\[10\] made. We have seen also that a feeffment by certain limited owners did not give the tenant thereby injured a right of entry, but forced him to sue by real action. A conveyance which thus converted a right of entry into a right of action was said to work a discontinuance.\[11\] But we have seen that the operation of this doctrine had been already curtailed when Littl c484 LAW IN XVITH AND XVITHENTS.

**THE LAND LAW**

action, it did not bar the claimant's right of entry.1 A remedy for this was provided by the statute of i623, which enacted that writs of formedon and rights of entry must be brought or enforced within twenty years after the right to bring the writ or make the entry accrued.\* There was a proviso similar to that contained in the Act of Henry VIII., in favour of persons under disability ; and to the list contained in that Act was added persons who were non compos mentis.\* As no action of ejectment lay unless the lessor of the plaintiff had a right of entry, the result of the Act was to fix twenty years as the limitation for the action of ejectment,4 which had then, as we shall see, become the most usual action for the recovery of land.5

Footnote 1: Bevil's Case (i575) 4 Co. Rep. 8a; at f. rxb it is said, " Although a man has been out of possession of land for sixty years, yet if his entry is not tolled, he may well enter, and bring any action of his own possession ; " cf. z S.L.C. (roth Ed.) 634. 3 zz James I. c. z f SS x. It might happen that, though the tenant in tail's formedon was barred, he had a subsisting right of entry, as such right only accrued on the death of the tenant life, Hunt v. Burn (r702) 2 Salk, 422. 3 SS z. 4 Bl. Comm, iii 307. * Pt. II. c. r SS x. * I Mary Sessa. z c. 5--that statute declared that Henry VIII.'s statute did not extend to writs of right of advovson, quarce impedit, jure patronatus, darnein presentment, writ of right of ward or ravishment of ward ; for these writs see vol. iii 17 n. I, 24-46. 7 SS y, 4 William IV. c. z z f SS 30. * Bl. Comm. iii 250, 251. * Vol. ii 585-586; Challis, Real Property (3rd Ed.) 407-408; Bl. Comm. iii 175; Blackstone points out that the word deforement is sometimes used in a general sense

### Law in Xvith and Xvith Cents.

the right of action would be lost after the period fixed by the Act of 1540. Such possession would be adverse and turn the true owner's estate to a right of entry if it was gained by disseisin, abatement, or intrusion.1 In that case the right of entry, and therefore the right to bring the action of ejecment,2 would be lost after the period fixed by the Act of 1623, and the true owner would be thrown back upon his right to bring a real action. But, unless the possession was thus adverse, neither of these statutes applied. One of their results, therefore, was to give a large importance to the doctrine of adverse possession,3 which was not diminished till the Act of 1833 allowed the right of action and the title of the original owner to be barred by possession not technically adverse for twenty years after a right of entry first accrued.4

Footnote 1: Ibid 175 ; for seisin and disseisin see vol. iii qt-92; Pt. II. c. r SS 2; abatement may be defined as " when a person dies seised of an inheritance, and before the heir or devisee enters, a stranger who has no right makes entry, and gets possession of the freehold," Bl. Comm. iii r68 ; an intrusion is " the entry of a stranger, after a particular estate of freehold is determined, before him in remainder or reversion," ibid 160.

Footnote 2: Above 485.

Footnote 3: a S.L.C. (roth Ed.) 634, 635; Pt. II. c. r SS 2.

Footnote 4: 3, 4 William IV. c. z7 SS 2 and 3; 2 S.L.C. 640, 641; Pt. II. c. r SS 2.

Footnote 5: Vol. iii z14, z16-217.

Footnote 6: 21 Henry VIII. c. 15--the provisions of the statutes extended also to those entitled by virtue of a statute merchant or staple.

Footnote 7: Above 365-366; cp. vol. iii z16-211.

Footnote 8: 32 Henry VIII. c. z8, amended by 34, 35 Henry VIII. c, 22.

Footnote 9: The Act did not extend to land not commonly leased within twenty years before the lease was granted ; the leases must not be without impeachment of waste, or for the same reason.

- _The interest of the termor._ We have seen that, by the beginning of the fifteenth century, the interest of the termor had gained adequate protection by the development and improvement of the action of ejecment.5 But he was still liable to be ousted by a fictitious recovery of which he had no notice. A statute of I529 6 allowed him to falsify these recoveries in the same way as a freeholder was already able to do. But the practice of settling lands in such a way that the freeholder in actual possession had only a limited interest exposed the termor to another danger. On the determination of this interest he was liable to be ejected by the heir or other person entitled in succession. To permit this was quite contrary to the policy of the statutes for the encouragement of tillage;7 and so a statute of I5408 gave him some protection by providing that, under certain conditions, certain lcases,9 made by certain limited

## 6 The Land Law

### 6.1 _Landsord and tenant_

The largest change in the law of landlord and tenant was made by the statute of 15402 which permitted certain covenants to run with the reversion. This statute was, as we shall see, passed in consequence of the large transfer of reversionary interests which resulted from the dissolution of the monasteries.3 Another statute of the same year4 allowed the executors or administrators of a landlord to sue or distrain for rent in arrear at the death of their testator or intestate. Similar provisions were made enabling a husband to recover rent in arrear in the right of his deceased wife, and a tenant pur autre vie to recover rent in arrear after the death of the cestuique vie. In 1529 some assistance was given to landowners who were injured by secret conveyances made by their tenants to persons unknown. The result of this practice was that the landlord did not know on whom to avow when he distrained for his rent or other services. It was therefore enacted that he might avow without specifically naming the tenant.6 A statute of 15546 made some small improvements in the law as to the disposal of the things distrained, and the making of replevins. Some relief against forfeitures for non-payment of rent or non-performance of services was given to crown tenants in 1623-1624.7

Footnote 2:488 LAW IN XVITH AND XVIITH CENTS:

abuse of the statute of Henry VI. ; and so it was provided in 1588-15891 that no restitution should be given under this statute, if the party against whom the proceedings were taken had been in peaceable possession for the preceding three years.

Footnote 1: 37 Elizabeth c. 17; 37 James I. c. 15 extended the remedy to copyholders, terms, and other holders of chattel interests in land.

None of these statutes cover any very large amount of ground. But taken together they effect some very practical and valuable reforms. From the close of this period until the beginning of the nineteenth century the development of the land law was left almost entirely to the courts, with very little help or hindrance from the legislature. And so during all these three centuries and later these statutes have retained their importance. Some of them are still in force ; and others have only been repealed by modern statutes which carry out their policy more completely. Without their assistance it would hardly have been possible for the courts to have developed our modern law of real property from its medieval basis.

### 1.2.1 Ecclesiastical Law

1 have already dealt with the series of statutes which put the relations of the English church and the English state upon their modern basis.3 We have seen that the canonists gave place to the civilians as judges of the ecclesiastical courts;3 and that the construction of a new body of ecclesiastical law, better fitted to this new basis than the papal canon law, was also contemplated.4 This new body of law was drawn up, but it was never enacted : and therefore so much of the papal canon law as is compatible with this new basis is still the law of the church, and the groundwork of the king's ecclesiastical law of the church of England.6 But, seeing that the church was subordinated to the state, we get, from this century onwards, a larger number of statutes upon ecclesiastical topics than in the mediaeval period; and some of this legislation dealt also with such ecclesiastical or semi-ecclesiastical foundations as the colleges in the two universities, and other charitable institutions. A few of these statutes relating to the altered status of the clergy and other persons connected with religion, to clerical discipline, to ecclesiastical property, to the marriage laws, and to jurisdiction over wills and grants of administration, must be briefly noticed.

**ECCLESIASTICAL LAW** **489**

(1) _Status of the cergy._

The Reformation settlement involved certain changes in the status of those connected with the church. The monks in the Middle Ages were dead persons in law.1 As a result of the dissolution of the monasteries it was necessary to give them the capacity of normal citizens. A statute of 1539 enabled them to purchase and hold real property, to sue and be sued, and to inherit real property the title to which accrued after their departure from religion.2 Unless they were priests, or unless they had become professed after the age of twenty-one, they were allowed to marry. In 1551-1552 2 all restrictions on the marriage of priests were removed, their children were declared legitimate, they were to be entitled to curtsey, and their widows to dower.

(2) _Clerical discipline._

1 have already dealt with the statutes which began by restricting and modifying, and ended by altering the shape of the Benefit of Clergy.4 Among other statutes relating to clerical discipline we may note a statute of Henry VII.'s reign enlarging the power of the bishops to proceed against incontinent priests; 6 and a statute of Henry VIII.'s reign forbidding clerics to farm land, to engage in trade, or to hold more than one benefice.6 A statute of Elizabeth's reign 7 was designed to remedy abuses in the election of scholars, fellows, and officers of colleges in the universities, and in the presentation to benefices. Proof of bribery was to avoid the election of a scholar, fellow, or officer; and a simoniacal presentation was to be void. Penalties were imposed upon corrupt institutions to benefices, upon contracts to resign benefices in consideration of a money payment, and upon ordinations corruptly procured.

(3) _Ecclesiastical property._

Certain changes were made in the manner in which ecclesiasticl property was protected ; and certain rules were made to ensure

### 490 LAW IN XVITH AND XVITH CENTS.

its proper management. A statute was passed in 1535-1536 to regulate proceedings for the subtraction of titles, which was to last till the revised code of ecclesiastical law should be completed.1 In r540 the dissolution of the larger monasteries (which were large tithe owners) called attention to the plight of lay impropriators, who were unable to sue either at common law or in the ecclesiastical courts. They were allowed to sue in the ecclesiastical courts, and those who refused to pay were threatened with imprisonment.2 The law and procedure on the subject were consolidated by a statute passed in r548.3 In Elizabeth's reign several statutes were passed to ensure the proper management of ecclesiastical property. In r558 the queen's rights to the temporalities of a see during vacancy were defined; and archibshops and bishops were forbidden to lease the lands of the see for longer than three lives or twenty-one years, and at less than the usual rent, unless the lease was made to the queen.4 In r571 6 a remedy was provided for fraudulent conveyances made by bishops or clergy in order to defeat their successors' right to take proceedings for dilapidations; and the same statute provided that deans and chapters and parsons and vicars should not be able to lease their lands for longer than twenty-one years or three lives. This provision as to powers of leasing was applied to colleges and hospitals. In r603-1604 bishops and archibshops were prohibited from alienating to the crown the possessions of their sees.6

Footnote 1: 27 Henry V11I, c. 20.

Footnote 2: 32 Henry V11I, c. 7.

Footnote 3: 2, 3 Edward VI, c. 13.

Footnote 4: 1 Elizabeth c. 19.

Footnote 5: 12 Elizabeth c. 10.

Footnote 6: 12 James I. c. 3.

Footnote 7: Vol. i 624-623 ; on the whole subject see P. and M. ii 362-396; and c.l, the authorities cited in the arguments in the case of The Queen v. St. Giles in the Fields (r547) ii Q.B. at pp. 200-204.

## 11 Ecclesiastical Law

established the church of England on its new basis.\[1\] The one subject upon which the legislature made new law was upon the degrees of relationship within which marriage was prohibited. The reason for this legislation was obvious. The canon law had multiplied indefinitely the range of prohibited degrees ; and these rules had degenerated, as Maitland has said, " into a maze of flighty fancies and misapplied logic," which was only rendered tolerable by the wide papal power of dispensation.\[2\] Even the limits of this power were not accurately defined ; and it was one of Henry VIII.'s contentions that the pope, in authorizing him to marry his deceased brother's wife, had overstepped the limits of his own powers.\[3\] But, now that recourse to the pope was cut off, it was necessary to lay down clear rules.

The principles upon which the legislature proceeded were the restoration of the prohibitions laid down in the Bible, the repeal of all others, and the prohibition of all dispensations with the law thus enacted ;\[4\] but the history of the statutes by which effect was given to these principles is somewhat complex, owing to the political events of the period.

The prohibited degrees were defined in the first instance by statutes of 1533 \[6\] and 1536.\[6\] The statute of 1533 was repealed in 1553,\[7\] and the statute of 1536 in 1554.\[8\] The modern law is laid down by a statute of 1540.\[9\] That statute was repealed in 1554,\[10\] but was revived in 1558.\[11\] It is therefore upon this statute that the law primarily rests. But recourse may also be had to the repealed statute of 1536 for the purpose of explaining the provisions of the statute of 1540. The reason for this is as follows :--Another statute of 1536,\[12\] concerning dispensations got from Rome, referred to the section of the repealed statute of 1536 on the subject of the prohibited degrees as a sound exposition of the law.\[13\] This statute was also repealed in 1554,\[14\] but it was revived by the Act of 1558;\[15\] and therefore the section of the

**492 LAW IN XVITH AND XVITH CENTS.**

repealed Act of 1536, which was thus referred to in the revived Act of 1536, can be used to explain the Act of 1540.1 The prohibited degrees, as thus defined, were set forth by authority in 1563; 2 and, except in so far as they have been modified by the statute of 1907, which allows marriage with a deceased wife's sister,8 they are still part of the law.

Footnote 1: The Queen v. Chadwick (1847) ir Q.B. 205; Brook v, Brook (1861) ir H.L.C. at p. 225 _per_ Lord Cranworth ; at p. 244 _per_ Lord Wensleydale.

Footnote 2: The _Queen v. Chadwick_ (1847) ir Q.B. 205; Brook v, Brook (1861) ir H.L.C. at p. 225 _per_ Lord Cranworth ; at p. 244 _per_ Lord Wensleydale.

Footnote 3: The _Queen v. Chadwick_ (1847) ir Q.B. 205; Brook v, Brook (1861) ir H.L.C. at p. 225 _per_ Lord Cranworth ; at p. 244 _per_ Lord Wensleydale.

Footnote 4: 21 Henry VIII. c. 47.

Footnote 5: 43 Elizabeth c. 8; vol. iii 557; for executors de son tort see ibid 571-572.

Footnote 7: H.C.L. ii 263.

Footnote 8: These exceptions were as follows: 22 Henry VIII. c. g--passed in consequence of the attempt of the bishop of Rochester's cook to poison him--made poisoning treason punishable with boiling to death; but by ir Edward VI. c. 12 SS2 it was enacted that poisoning should be treated like any other murder; 31 Henry VIII. c. 8

**THE CRIMINAL LAW** **493**

Firstly, the statutes making it treason to interfere with the order of succession to the drone as established from time to time by statute; secondly, the statutes making it treason to recognize the authority of the pope, or to do certain other acts hostile to the new religious settlement; and, thirdly, expansions of the act of Edward III,, which, as we have seen, has, throughout our history, continued to be the principal statute upon this subject.1 The statutes coming within the first two categories are not of the same general importance as those coming within the third category, though many of them have lived long on the statute book.2 They were, as Stephen has said,3 the necessary consequences of the war between England and the Pope which was being waged in the reigns of Henry VIII., Edward VI., and Elizabeth; and they necessarily ceased to be of much practical importance when the issue of that war was settled. On the other hand, the statutes coming within the third category have very materially influenced our law of treason as it exists to-day. I shall therefore, in the first place, summarize shortly the statutes of comparatively temporary importance, and, in the second place, deal rather more fully with the statutes of more permanent interest.

Footnote 1: Vol. iii 287.

Footnote 2: Thus many of the statutes of Elizabeth's reign designed to support the Reformation settlement, below 495-496, were not repealed till the last century.

Footnote 3: H.C.L., ii 257, 258--" If it is admitted and fully realized that the controversy between the king and the pope in Henry VIII.'s time was simply a war carried on between rival powers claiming jurisdiction of an analogous though distinct kind over the same population, it can hardly be said that the legal weapons used were other than those which on such an occasion must be used if the war was to be effective and thoroughgoing."

Footnote 4: Above 32.

(a) _Statutes relating to the succession._ The desire to obtain an undisputed male heir to the throne was, as we have seen, one of the causes of Henry VIII.'s chequered matrimonial career.4 His various marriages were followed by statutes which resettled the succession, and made certain acts done in contravention of these statutory settlements treason. In I 533 6 Henry's marriage with Catherine was declared void, and his marriage with Anne was declared valid. It was enacted that any persons who by writing, printing, or other overt act did anything to slander the

**494 LAW IN XVITH AND XVITH CENTS.**

**king's marriage, or the persons upon whom by the Act the crown was settled, should be guilty of treason; that if they did anything of this kind by words only they should be guilty of misprison of treason; and that a refusal to take an oath to observe the Act should be misprison of treason.1 If the king died leaving infant children they were to be in the guardianship of their mother and a council, and all who opposed the mother and the council were to be guilty of treason. In 1536 2 the statute which annulled the marriage with Anne and settled the crown on the issue of the king and Jane Seymour containing similar but more stringent provisions. All who by words, writing, or overt acts did anything to the prejudice of the king's present marriage or of any future marriage, or who adjudged his former marriages valid, or who refused to answer interrogatories, or to take the oath required by the Act, were declared guilty of treason. Moreover it was provided that if any of the king's heirs or children claimed the crown contrary to the line of descent limited in the Act, they should be guilty of treason. In 1540 3 the statute which annulled the marriage with Anne of Cleves made it treasonable to assert its validity. In 1543 4 the statute which finally settled the crown, and gave the king power to limit the succession by his will on the failure of his issue, again made it treasonable to attempt anything contrary to the settlement so made; and in 1547 5 a provision, similar to that contained in the statute of 1536, made it treasonable for the king's heirs or successors to attempt to alter the line of succession as provided by the statute of 1543.**

Footnote 1: Coke, Third Instit. c. 3 says that misprison is committed, " when one knoweth of any treason or felony and concealeh it;" but the offence of misprison of treason was extended to cover many other acts by this and other statutes; see vol. iii 389 n. I. 28 Henry VIII. c. 7. 32 Henry VIII. c. 25. 43 Henry VIII. c. I. 5. 6 I Edward VI. c. rz SS 8. 7. 8. 9. 10 Henry VIII. c. rz SS 8. 11 Henry VIII. c. rz SS 8. 12 Henry VIII. c. rz SS 8. 13 Henry VIII. c. rz SS 8. 14 Henry VIII. c. rz SS 8. 15. 16. 17 Henry VIII. c. rz SS 8. 16. 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.

The Criminal Law

these oaths when commanded to do so should be treason. A statute of 1543-1544 \[1\] set out the king's style and made it treason to imagine or attempt to deprive the king, queen, or his heirs of "their titles, styles, names, degrees, royal estate, or legal power " annexed to the crown of England.

In 1547 \[2\] all the statutes relating to treason, and, as we shall see, to felony \[3\] passed in Henry VIII.'s reign were, with some exceptions, repealed. But the repealing statute in substance re-enacted some of their provisions. Thus, asserting by writing, printing, or other overt act that the king was not supreme head of the church was again made treason ; and asserting this by words was made treason on a third conviction.\[4\] In 1551-1552 a similar provision was made against asserting that the king was a heretic or usurper.\[5\] At the beginning of Mary's reign all the legislation of the last two reigns was again repealed,\[6\] and the statute of Edward III. was again left as the sole statute in force.

In Elizabeth's reign the reversion to the Reformation settlement of Henry VIII. necessitated a renewal of legislation directed against the Pope and the Roman Catholics. A statute of 1558 \[7\] made it treasonable to affirm by writing, printing, or overt act that the queen ought not to be queen, or that any other person was entitled to the throne. To affirm this by words was made treason on a second conviction. In 1571 Pius V.'s bull of deposition and the activity of the Jesuits made further measures necessary. A statute passed in that year \[8\] made it treasonable (i) to publish, declare, hold opinion, or say that the queen ought not to be queen, or that any other person ought to be queen of England ; (ii) to say that the queen was a heretic, schismatic, tyrant, infidel, or usurper ; (iii) to affirm that anyone had a right to the throne after the queen's death contrary to any royal proclamation forbidding this ; (iv) to deny, during the queen's life, that the common law, or that this or any other statute could limit the descent of the crown. Another statute of the same year made it treason to obtain or use any papal bull, or to give or receive absolution under the authority of these bulls.\[9\] In 1580-1581 \[10\] it was provided that all persons pretending to have power to absolve subjects from their obedience to the queen, or who practise to withdraw them to the Romish religion, or to promise obedience to any foreign potentate, and all subjects so absolved, or withdrawn, or promising obedience as aforesaid,

**496 LAW IN XVITH AND XVIIITH CENTS**. should be guilty of treason. In 1584-15851 all Jesuits were ordered to leave the kingdom within forty days, and all who remained longer or who came into the kingdom were declared to be traitors. All subjects who were being educated abroad in any Jesuit seminary were declared guilty of treason if they did not return and take the oath of supremacy within six months after a proclamation ordering them to do so.

Footnote 1: 57 Elizabeth c, z,

We have seen that at the end of Henry VIII.'s and Edward VI.'s reign the legislature reverted to the statute of Edward III. But it was often found necessary again to enlarge the scope of that statute. In fact its provisions were quite inadequate to protect the government of the state against attempts to subvert it. It is therefore to these statutory enlargements of some of its provisions that we must look for one important element which has gone to the making of our modern law of treason.

The clauses of Edward III.'s statute, which were designed to guard against attempts to subvert the government of the state, were those which made it treason to compass or imagine the death of the king, to levy war against the king, or to be adherent to his enemies.2 It is clear, as Stephen says,3 that these clauses were worded too narrowly if they were to be construed literally. They made no provision (_a_) against conspiracies to depose, imprison, or otherwise to harm the king, or (_b_) against conspiracies to levy war or to create internal disorder. Therefore from Henry VIII.'s to Elizabeth's reign a series of statutes was enacted designed to remedy these defects.

(_a_) The statute of 1533,4 in addition to the provisions already mentioned, made it treasonable by writing, printing, or other external act to do or cause to be done anything to the peril of the king, or to the disturbance or interruption of his enjoyment of the crown, or of the succession as settled by the Act. Committing these offences by words only amounted to misprision of treason. A statute of 1533-15345 was more severe. Under that statute it was made treasonable, " to wish will or desire by words or writing, or by any craft to imagine invent practise or attempt any bodily harm to the king queen or their heirs," or, as we have seen, any deprivation of their dignity, title, or royal estate. There were similar provisions in the statute of 1536;6 and, as we

**THE CRIMINAL LAW**

have seen, the statute of I 543-I 544, which settled the royal style, made any imagination or attempt to deprive the king or his heirs of his title or style as settled by the Act treason.1 These statutes having been repealed in I 547,2 it was provided by the repealing statute that to compass or imagine by writing, printing or other overt act the deposition of the king should be treason, and that to do so by open and express words should be treason if the offence were repeated a third time.3 This statute was repealed in I 553;;4 but by statutes of I 554 and I 558 substantially similar provisions were made.5 In I 571 came a still more stringent enactment.6 It was provided that anyone who by printing, writing or words should compass or imagine any bodily harm to the queen, or the levying of war against her within or without the realm, or the invasion of the realm by foreigners, should be guilty of treason.

Footnote 1: I. 549-I 559-

**498: LAW IN XVITH AND XVIIITH CENTS.**

\*\*This series of statutes extending certain of the clauses of Edward III,'s statute ceases early in Elizabeth's reign. This, as we shall see, can be accounted for by the fact that a substitute had been found for this legislation in the large construction which the lawyers, encouraged by the example of the legislature and actuated by the same motives of public policy as those which inspired it, were prepared to put upon these clauses of Edward's statute. But with the growth of this doctrine of constructive treason I shall deal in the second Part of this Book.\*\*1

\*\*We have seen that the statute of Edward III. included and the crime of treason certain offences which, unlike those of the I have been speaking, were not political in character.\*\*2

\*\*Synt these were extended by statutes of this century. Statutes Henry VII's and Mary's reigns made it treason to counter foreign coin current in the kingdom.\*\*8

\*\*In i554 it was made treason to import foreign counterfeit coin.\*\*4

\*\*In i562 a statute Henry V., which made the clipping of coin treason, was revived and its stringency was increased in i575-i576.\*\*6

\*\*In i572 counterfeiting foreign coin not current in the realm was declared to be misprision of treason.\*\*7

\*\*Similarly the clause of Edward III.'s statute as to forgery of the Great Seal was extended to forgery of the king's sign manual, privy signet, or privy seal.\*\*8

\*\*But the legislature sometimes recognized that such species of treason were offences of a character different from the treasons which were directed against the king and state. Some of these statutes provided that conviction for coinage offences created by them should not work corruption of blood;\*\*9

\*\*and conversely the provisions made by statutes of Edward VI. and Mary to secure a fair total of the prisoner were sometimes excluded.\*\*10

**Of these provisions made to secure a fair trial of the prisoner**

\*\*SS x of the Act made it felony to conspire to take, detain, burn, or destroy any of the queen's castles or fortresses if such conspiracy were evidenced by words acts or writings.\*\*1

\*\*Pt, II. c. 5 S z; it may be noted that in 1554 in Throckmorton's Case (i554) x S.T. 86g the judges were quite prepared to give a large construction to Edward III.'s statute, see Stanford's dictum at p. 88g, and Bromley C.J.'s ruling, and Throckmorton's rep:y at pp. 89r-89z.\*\*3

\*\*Vol. ii 449; vol. iii z8g.\*\*3

\*\*4 Henry VII, c. t9; x Mary Sess. z c. 6.\*\*4

\*\*4, z Philip and Mary c. ii.\*\*5

\*\*5 Elizabeth c. ii7, reviving 4 Henry V. c. 6.\*\*6

**6**\*18 Elizabeth c. i.\*\*7

**7**i4 Elizabeth c. 3; the offence of counterfeiting farthing tokens contrary to the king's proclamation was a less serious offence of which the Star Chamber took cognizance in pursuance of its general jurisdiction to enforce proclinations, see Atty.-Gen. v. Taylor and Stevenson (i63) Rushworth vol. ii Pt. II. App. 33-34; Atty.-Gen. v. Hammond (i63) ibid 41; Crane v. Hawks (i635) ibid 69-70.\*\*8

**8**?\*\*Henry VIII, c. z, expressly saved in the repealing act x Edward VI. c. zz; x Mary Sess. z c. 6.\*\*9

\*\*E.g. 5 Elizabeth c. rr; x8 Elizabeth c. i.\*\*10

\*\*E.g. r, z Philip and Mary c. io 8 zz and c.-T1.\*\*11

**E.g. 6**

**THE CRIMINAL LAW 499**

there were two. Firstly, for the treasons which could be committed by spoken words a short period of limitation was in many cases provided \[1\]. Secondly, the more important was a clause in the statute of 1551-1552 which enacted that a charge of treason should be substantiated by two accusers \[3\]. Throughout the latter part of the sixteenth and seventeenth centuries it was an unsettled question whether or not this clause was repealed by a clause in the statute of 1554 \[3\], which provided that all trials for treason should be according to the due order and course of the common law and not otherwise. Coke, by drawing a very artificial distinction between the witnesses to the indictment and the witnesses at the trial, held that the statute of 1551-1552 was still in force \[4\], and this ruling seems to have been followed in 1660 \[5\]. But later it was questioned \[6\], and, it would seem from Hale's somewhat reluctant opinion in the first volume of his Pleas of the Crown \[7\], rightly questioned. It is true that he is content to follow Coke's opinion in another passage in the second volume \[8\], but the legislature, by requiring specifically two witnesses for many of the new statutory treasons, showed that it did not rely upon this view of the law \[9\]. Nevertheless the rule was adhered to on the occasion of Strafford's impeachment \[10\], in the case of Whitbread and Fenwick in 1678 \[11\], and in all treason trials after the Revolution \[12\]. To clear up the doubt the legislature provided in 1696 that the testimony of two witnesses was essential \[13\].

Two other enactments of 1541-1542 and 1572, relating to the procedure on a trial for treason and to the consequences of a conviction, were designed to strengthen the hands of the government. Certain of the clauses of the first of these statutes were

1 r Edward VI. c. r.r 19; 5, 6 Edward VI. c. r.r 17; r, 2 Philip and Mary c. ro 19; r Elizabeth c. 15 18; r3 Elizabeth c. r 18; r5, 6 Edward VI. c.r 18 19; see generally Wigmore, Evidence iii 2712-2717 19 2036.

1 x, 2 Philip and Maryc. ro 18 6.

- Kleying g; though Bridgeman C. J. and other judges dissented, ibid x8.

- Ibid 49-50; it is there pointed out that Coke's authorities do not bear him out, " and there are many other things in his posthumous works, especially in his pleas of the Crown concerning treasons, and in his jurisdiction of the courts concerning Parilaments, which lie under a suspicion whether they received no alteration, they coming out in the time of that which is called the Long Parliament ; " as it is there said it is difficult to see how it can be held that the plain words of the later statute do not repeal the earlier ; and the judges seem to have been of this opinion in r555, Dye x3rb; and they were certainly of this opinion on Raleigh's trial in 1603, a S.T.

15.

- Hale, P.C. i zg8-300, 8 Ibid ii 286.

- Elizabeth c. 18; r3 Elizabeth c. r 18; the fact that the statute of 1554 itself required two witnesses for the treasons created by that Act seems to me to be conclusive as to the view of its framers.

10 (1640) 3 S,T. at pp. 1450, 1463, 1479.

11 7 S.T. 119, 120.

12 13 Foster, Discourses 237; for his argument that this was the right view see ibid 237-240.

13 7 William III, c. 18 1.

500${}^{\\circ}$ Law in XVITH AND XVITH CENTS.

both short-lived and savage. They provided that insanity supervening after the commission of treason should be no impediment to the trial, and should not excuse from punishment.1\*\*These clauses were repealed by the statute of 1554 which provided that all trials for treason should be according to the course of the common law.2 But two other clauses of this statute, which provided for the forfeiture " as well of uses rights entries conditions, as possessions remainders reversions and all other things " without office or inquisition found,3 survived till 1870.4 The second of these statutes dealt with conspiracies to liberate those charged with or convicted of treason. It provided that a conspiracy to liberate such persons before indictment should be misprision of treason, that a similar conspiracy after indictment should be felony, and that after attainder it should be treason.5

Footnote 1: 33 Henry VIII. c. 20 SS 1-3; these clauses gave power to try in their absence persons who had become insane after they had committed treason.

Footnote 2: 1, 2 Philip and Mary c. 10 SS 6; Coke, Third Instit. 6; Hale, P.C. i 35.

Footnote 3: SS SS SS SS 3 and 4; the Act also amplified 26 Henry VIII. c. 3 which provided for the forfeiture of entailed lands as against the traitor and his heirs; see Dowtie's Case (1584) 3 Co. Rep. at f. rob; Hale, P.C. i 240 seqq.; but it was repelaled by 34, 35 Henry VIII. c. 20 in respect of estates tail granted by the Crown; however, a later Act of 5, 6 Edward VI. c. 17 SS 6 had the effect of making land held by a tenant in tail of the gift of the crown liable forfeiture, and so repealed the clause of 34, 35 Henry VII. c. 20 which had prevented this result, Hale, P.C. i 243-244; for the effect of the clauses of 33 Henry VIII. c. 20 on powers of appointment see Sugden, Powers (8th Ed.) 182-186; Pt. 1, c 1 SS 5. Note that lands held by a corporation sole were only forfeited for treason during the life of the traitor; the Acts which dissolved the monasteries, 27 Henry VIII. c. 28 SS 3, and 37 Henry VIII. c. 3 SS 4, made the forfeiture perpetual; but the common law was restored by 5, 6 Edward VI. c. 17 SS 2; see I. D. Thornley, Royal Hist. Soc. Tr. (3rd Series) xi 177-179.

Footnote 4: 33, 34 Victoria c. 33. 514 Elizabeth c. 2. 671 Henry VII. c. 1; cf. vol. iii 468.

Footnote 7: Stephen, H.C.L. ii 254-255; this is shown by the proviso to the statute " that no person or persons shall take any benefit or advantage by this Act which shall hereafter decline from his or their allegiance;" this proviso is, as Hale says, P.C. i 274, "dark and dubious; " if strictly construed it would go far to deprive the Act of all but a temporary importance, except as to persons born during an usur The Criminal Law

extended in scope, and in the second place a large number of new felonies were created. I shall deal with the legislation on this subject under these two heads :--

1. _Extensions of the older felonies._ In 1604 the statute of stabbing,\[1\] said to have been passed in consequence of the affrays between Englishmen and Scotchmen at James I.'s court,\[2\] enacted that if a man stabbed another who had no weapon drawn or had not first struck at the stabber, and the person stabbed died within six months, the stabber should be guilty of murder. As Stephen has pointed out, the development of the law as to the circumstances under which homicide is committed with "malice prepense," and so is murder, has superseded the necessity for the statute.\[3\] In 1623-1624 the scope of murder was further extended by a statute which made a mother who concealed the death of her bastard child liable to the punishment for murder.\[4\] In the offences against property several extensions were made. We have seen that a statute of I527 created the offence of larceny by a bailee if the bailee was a servant. It enacted that if servants, not being apprentices or under the age of eighteen, embezzled goods entrusted to them of the value of 40s. or upwards, they should be guilty of felony.\[5\] This Statute was repealed by the Act of 1553 which repealed the Acts of Henry VIII,'s reign creating new felonies ;\[6\] but it was revived and made perpetual by an Act of 1562-1563.\[7\] In 1589 persons who embezzled munitions of war to the value of 20s. or upwards, which had been entrusted to them, were likewise declared to be guilty of felony.\[8\] In 1562-1563 a much-needed consolidation and extension of the law as to forgery was effected.\[9\] We have seen that in the Middle Ages the scope of forgery had been very narrow. Besides the kinds of forgery which were treason, the only forgery punishable at common law was the reliance on a false document in a court of law.\[10\] A statute of Henry V.'s reign had given a civil remedy to those whose title to real estate had been disturbed by

**502 LAW IN XVTH AND XVITH CENTS.**

the production before a law court of forged title deeds, and had enacted that the guilty person should be fined.1 But beyond this the legislature had done nothing.

Footnote 1: I. Henry V. c. 3; vol. ii 452.

The inadequacy of the common law had led to the interference of the court of Star Chamber. It would appear from Hudson's treatise 2 that, throughout the sixteenth century, it had anticipated the legislature by exercising a general jurisdiction in cases of forgery ; 3 and no doubt the cases which came before that court helped to call the attention of the legislature to the need for an improvement in the law. The Act of 1562-1563 4 testified in its preamble to the widespread practice of forging charters, evidences, deeds, and writings, and went on to provide that (i) the forgery of deeds, charters, court rolls, or wills in writing, with intent to disturb the title of any person entitled to an estate of freehold ; or (ii) the giving in evidence in any action of such forged documents knowing them to be forged ; should render the person guilty of these practices liable to be sued at common law or before the Star Chamber by the person injured, and also liable to be punished by the forfeiture of the rents and profits of the land for his life, by perpetual imprisonment, and by the pillory, branding, and loss of ears. Similar but less severe penalties were provided for those who forged deeds with intent to claim a lease for years or an annuity, or who forged obligations, acquittances, or releases. On a second conviction all these offences were made felony without benefit of clergy.

After this statute was passed the Star Chamber ceased to exercise jurisdiction in all cases where the accused had already been convicted of a first offence,5 since it had no power to deal with felony. But in all other cases it exercised concurrent jurisdiction with courts of common law ; and it did not cease to exercise its former jurisdiction over cases not touched by the statute 6--" manyThe Crimual Law508 are the forgers," says Hudson, " which have been sentenced in this court which were not within this law."1 This seems to have given rise to the belief that, apart from the Act, forgery was punishable at common law 2--a belief which was certainly not historically true. But it was a belief which enabled the common law courts, after the abolition of the court of Star Chamber, to treat as misdemeanours cases of forgery which did not fall within the Act.3 Though the Act and the cases decided under it helped to make the definition of forgery more precise, the wide jurisdiction of the Star Chamber, in this as in other cases,4 helped to broaden permanently the outlook of the common law judges, and so to widen the sphere of the criminal law. (ii) _The new felonies._

Footnote 1: Ibid 70--he gives as instances, a case of 4, 5 Philip and Mary where a sentence was given for forging testimonials ; a case of 12 James I, where Harvey, an alderman of Bridgwater, was sentenced for putting the town seal to a certificate of good behaviour without the consent of the mayor and alderman ; similarly razure of writs, and inserting names in blank warrants of sheriffs was punished.

Footnote 2: Ibid 66 ; and Coke seems to assume this, Third Instit, r68, r69 ; cf. BL Comm. iv 245.

Footnote 3: Viner, Ab. _itit_. Forgery A. SS 3, and cases there cited ; Comyn. Digest, _itit_. Forgery A. i.

Footnote 4: Vol. v 201, 203, 204, 208, 212.

Footnote 5: Breaking the inclosure of any park, or the banks of any fishpond, or conduit, or the destruction of deer, rabbit warrens, dovheouses, fish in ponds, houses, barns, stacks of corn.

(a) _Rios._

The statute of 1549-1550 which enacted that those taking part in certain kinds of riotous assemblies, and not dispersing after due notice, should be guilty of treason, enacted also that those taking part in certain other kinds of riotous assemblies, and not dispersing after dispersing after due notice, should be guilty of felony.5 The latter class of assemblies were those which met for the purpose of destroying certain kinds of property ;6 or of securing the forcible abatement of rent or the price of corn. Moreover it was further enacted that those who summoned, procured, moved, or stirred any such assembly should be guilty of felony.7 We have seen that in 1553 the offences which were treason under this Act were made felony.8

Footnote 7:

### 504 Law in Xvith and Xvith Cents.

certain dykes in Norfolk and the Isle of Ely was made felony, and this statute was revived by an Act of i555.1 In i545 it was made felony to burn or cut a frame of timber prepared for making a house; and other forms of damage to person and property were made misdemeanours, for which the offender was liable to a fine of $10, and an action for trespass for trebThe Criminal Law

i 598 it was enacted that those convicted under this statute as principals, procurers, or accessories before the fact, should be deprived of benefit of clergy.1 We shall see that other offences of a similar kind were made misdemeanours by a statute of 1557-i 558.2

Footnote 1: 39 Klizabeth c. g.

Footnote 2: 4, 5 Philip and Mary c. 8; below 514.

Footnote 3: See generally in this subject vol. i 107-ro8; Stephen, H.C.L. iii 276-282.

(e) _Hunting and Game.3_

Footnote 4: 13 Richard II. st. c. r. i?; vol. ii 466; Stephen, H.C.L. iii 277.

The legislation on this subject proceeded on many different principles. Sometimes it proceeded on the principle that assemblies for the purpose of hunting and sporting gave opportunities for riot and disorder; sometimes on the principle that hunting and sporting ought to be the privilege of the landowners, and that other classes ought to employ themselves in a manner more suited to their condition in life; and sometimes on the principle that it resulted in the wanton destruction of game. We can see all these principles underlying Richard II.'s statute on this subject;4 and they appear clearly enough in the various statutes of this period.

Footnote 5: 13 Henry VIII. c. z.

The earliest statute was passed in the first year of Henry VII,'s reign,6 and was directed mainly to the suppression of disorder. It was recited that hunting in forests, parks, and warrens in disguise led to rebellions and riots; and it enacted that hunting in disguise or by night should be felony, and that the rescue of such offenders should likewise be felony.

Footnote 7: 13 Henry VIII. c. z.

Certain statutes of Henry VIII. created new felonies partly in order to suppress the evils of unlicensed sporting, partly in order to preserve the rights of the king and other landowners. A statute of 1539 made fishing in a private pond by night, and breaking the head of a private pond by night or day, felony; and another statute of the same year7 made it folony to steal falcon's eggs in the royal manors, and to fail to restore to the king within twelve days a hawk which had been found. It was also made felony to enter by night or at any time in disguise into any chase or park belonging to the king or his children with intent to steal, slay, or hunt deer or rabbits. The provisions of this statute were modified in 1540.8 Killing deer in any park by night or at any time in disguise was made felony if the park was enclosed; but it was provided that all tenants could kill the rabbits on their own land. These statutes of Henry VIII.'s 506 LAW IN XVITH AND XVIIITH CENTS.

region were repealed in the first year of Edward VI.'s reign.1 The two last mentioned were revived in 1549 for three years, but were suffered to expire at the end of that time.2

Footnote 1: 1: Edward VI. c. z2.

Footnote 2: 1: Henry VII. c. 17.

Footnote 3: 1: Henry VII. c. 14.

Footnote 4: 1: Henry VIII. c. 17.

Footnote 5: 19 Henry VII. c. z1.

Footnote 6: 23 Elizabeth c. z1.

Footnote 7: 32 Henry VIII. c. 8.

Footnote 9: 23 Elizabeth c. z1.

Footnote 10: 1: James I. c. z7; 7 James I. c. z1; for James's views on the necessity for the preservation of game see Works, 546-547.

Footnote 11: 3 James I. c. z3.

Footnote 12: 3 Edward VI. c. z; 6 Edward VI. c. z.

Footnote 13: 31 Henry VIII. c. z4.

Footnote 14: 1: 24 3 Edward VI. c. z; 6 Edward VI. c. z.

Footnote 15: 19 Henry VII. c. z1.

Footnote 16: 23 Elizabeth c. z1.

Footnote 17: 32 Henry VIII. c. 8.

Footnote 18: 23 Elizabeth c. z1.

Footnote 19: 23 Elizabeth c. z1.

Footnote 20: 17 James I. c. z7; 7 James I. c. z1; for James' views on the necessity for the preservation of game see Works, 546-547.

Footnote 21: 3 James I. c. z3.

Footnote 22: 3 Elizabeth c. z1.

Footnote 23: 17 James I. c. z1.

Footnote 24: 17 Henry VII. c. z1.

Footnote 25: 19 Henry VIII. c. z1.

Footnote 26: 23 Elizabeth c. z1.

Footnote 27: 32 Henry VIII. c. 8.

Footnote 28: 23 Elizabeth c. z1.

Footnote 29: 23 Elizabeth c. z1.

Footnote 30: 17 James I. c. z7; 7 James I. c. z1; for James' views on the necessity for the preservation of game see Works, 546-547.

Footnote 31: 3 James I. c. z3.

Footnote 32: 17 Henry VIII. c. z4.

Footnote 33: 17 Henry VIII. c. z4.

Footnote 34: 17 Edward VI. c. z.

Footnote 35: 19 Henry VII. c. z1.

Footnote 36: 23 Elizabeth c. z1.

Footnote 37: 32 Henry VIII. c. z1.

Footnote 38: 23 Elizabeth c. z1.

Footnote 39: 23 Elizabeth c. z1.

Footnote 30: 17 James I. c. z7; 7 James I. c. z1; for James' views on the necessity for the preservation of game see Works, 546-547.

Footnote 31: 3 James I. c. z3.

Footnote 32: 17 Henry VIII. c. z4.

Footnote 33: 17 Henry VIII. c. z4.

Footnote 34: 17 Edward VI. c. z.

Footnote 35: 19 Henry VIII. c. z1.

Footnote 36: 23 Elizabeth c. z1.

Footnote 37: 32 Henry VIII. c. z1.

Footnote 38: 23 Elizabeth c. z1.

Footnote 39: 23 Elizabeth c. z1.

Footnote 30: 17 James I. c. z7; 7 James I. c. z1; for James' views on the necessity for the preservation of game see Works, 546-547.

Footnote 31: 3 James I. c. z3.

Footnote 32: 17 Henry VIII. c. z4.

Footnote 33: 17 Henry VIII. c. z4.

Footnote 34: 17 Henry VIII. c. z4.

Footnote 35: 19 Henry VIII. c. z1.

Footnote 36: 23 Elizabeth c. z1.

Footnote 37: 32 Henry VIII. c. z1.

Footnote 38: 23 Elizabeth c. z1.

Footnote 39: 23 Elizabeth c. z1.

Footnote 30: 17 James I. c. z7; 7 James I. c. z1; for James' views on the necessity for the preservation of game see Works, 546-547.

Footnote 31: 3 James I. c. z3.

Footnote 31: 32 Henry VIII. c. z1.

Footnote 33: 17 Henry VIII. c. z4.

Footnote 34: 17 Henry VIII. c. z1.

Footnote 35: 19 Henry VIII. c. z1.

Footnote 36: 23 Elizabeth c. z1.

Footnote 37: 32 Henry VIII. c. z1.

Footnote 38: 23 Elizabeth c. z1.

Footnote 39: 23 Elizabeth c. z1.

Footnote 30: 17 James I. c. z7; 7 James I. c. z1; for James' views on the necessity for the preservation of game

**THE CRIMINAL LAW**

**507\*\*\*\*Acts of Supremacy and Uniformity,${}^{1}$ and the legislation both of Elizabeth's and James I.'s reigns against Jesuits and other religious sectaries.${}^{2}$ In 1605-1606 it was enacted that if any persons left the realm to serve any foreign "prime without taking the oath of allegiance, or if any one who had held a commission in the army left the realm with a view to such service, without entering into a bond neither to be reconciled to the "pope nor to be party to any plot against the king without revealing it, they should be guilty of felony.${}^{3}$**

Perhaps the most curious development in the criminal law relating to religious " or quasi-religious offences is to be found in the legislation against "sorcery and witchcraft. Here again a set of "offences," which had formerly come within the exclusive cognisance of " the ecclesiastical " courts," was taken over "by the state. But to understand the statute law on this topic I must say something of the earlier history of this supposed crime.${}^{4}$

A belief "in the occult powers of witches, magicians, and scorerers is common to all primitive peoples.${}^{5}$ Such a belief may change its form, but it is not necessarily dispelled "by an advancing civilization.${}^{6}$ With the advent of Christianity it took the form of a belief that the world was peopled with malignant "demons," who, acting under the orders of their master the devil, were actively employed in preventing the extension of Christ's kingdom and in harassing the faithful.${}^{7}$ Enactments of the early Christian emperors against magicians were preserved in "Justinian's Code," and "did much harm in after ages."${}^{8}$ The Bible clearly laid it down that a witch should not be suffered to live ;${}^{9}$ and the folk laws both of the Anglo-Saxons and of other tribes contained enactments against sorcerers.${}^{10}$ Charlemagne in the ninth,${}^{11}$ and "Cnut ${}^{18}$ in the eleventh century," legislated against them.

In the earlier and "darker ages" men believed so implicitly in the power of "the church and of "the individual Christian to overcome these evil beings that comparatively little was heard of "I Elizabeth cc. r and "2" "3" "4" "5" "6" "7" "8" "8" "9" "10" "11" "12" "13" "14" "15" "16" "17" "18" "19" "19" "20" "21" "22" "23" "24" "25" "26" "27" "28" "29" "21" "28" "29" "21" "22" "23" "24" "25" "26" "27" "28" "29" "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" "66" "67" "68" "69" "69" "70" "61" "62" "63" "64" "65" "66" "67" "68" "69" "69" "61" "62" "63" "64" "65" "66" "67" "68" "69" "69" "60" "61" "62" "64" "65" "66" "67" "68" "69" "69" "61" "62" "63" "64" "65" "66" "67" "68" "69" "69" "61" "67" "68" "69" "69" "60" "61" "62" "63" "64" "65" "66" "67" "68" "69" "69" "61" "62" "63" "64" "65" "66" "67" "68" "69" "69" "61" "67" "68" "69" "69" "61" "69" "62" "63" "64" "65" "66" "67" "68" "69" "69" "60" "61" "68" "

### 508 Law in Xvith and Xvith Cents.

proceedings for witchcraft and sorcery.1" The exact boundary between legitimate and the illegitimate sciences was vague. A little harmless necromancy would be met by blame that was tinctured by awe and admiration; bishops and even popes, it was whispered, had trifled with the powers of evil."2 It was far otherwise when, with the revival of learning in the twelfth century, men " had learned to doubt but had not yet learned that doubt was innocent," when " the new mental activity had produced a variety of opinions, while the old credulity persuaded men that all but one class of opinions were suggestions of the devil."3 War must be waged against the heresies to which such doubts gave rise; and of these heresies, the practice of witchcraft and sorcery was the most pernicious.4

Footnote 1: Lecky, op. cit. i 37-40--41 What may be called the intellectual basis of witchcraft existed to the fullest extent. All those conceptions of diabolical presence; all that predisposition towards the miraculous, which acted so fearfully upon the imaginations of the fifteenth and sixteenth centuries, existed; but the implicit faith, the boundless and triumphant credulity with which the virtue of ecclesiastical rites was accepted, rendered them comparatively innocuous."5 P. and M. ii 55.6 3 Lecky, op. cit. i 49.

Footnote 4: P. and M. ii 552. 8 Ibid 554.

Footnote 5: Lecky, op. cit. i 66, instances such names as Thomas Aquinas and Gerson.

Footnote 7: Above ii-i2; cp, vol. ii 129-f30.

" Sorcery," as Maitland has well said, " is a crime created by the measures taken for its suppression."5 As persecution increased, the belief in and the horror excited by it became more intense. The strongest and acutest intellects of the day firmly believed that human beings could and did make compacts with the devil which gave them supernatural powers to inflict harm.6 Two other causes contributed to foster this delusion. In the first place the intellectual conditions prevailing in the Middle Ages led men to suppose that all acts and events were immediately governed by the higher powers of good and evil.7 Thus all sudden and apparently fortuitous calamities affecting peoples and individuals were ascribed to direct demoniacal interference. It was inevitable therefore that when such calamities occurred a search should be made for the human agents through whose instrumentality the devil worked. In the second place the procedure of the Inquisition, by means of which this search was conducted, made it inevitable that it would not be fruitless. The horrible punishments inflicted for the crime, and the tortures used to extort confessions, easily procured testimony from the heated imaginations of the terrified, the ignorant, and the superstitious. This testimony, coupled with the general sense of insecurity which such epidemic visitations as the Black Death produced, gave rise to a body of evidence as to the existence andThe Crimial Law

nature of these evil agencies which made it wholly absurd to deny their existence.1

Footnote 1: Lecky, op. cit. i 68, 7x.

The realistic imagination of medieval men soon constructed a definite picture of the extent of the dominions of the devil, of the number ranks and employments of his subjects, and of the methods by which he was accustomed to harm and harass the human race.2 In the fourteenth and fifteenth centuries the gradual decay of the beliefs, and the gradual change in the intellectual conceptions which underlay the life and thought of the Middle Ages, united with the growing definiteness in men's knowledge of the manner in which the devil worked, to cause a universal terror, which gradually overcast the horizon of thought, creating a general uneasiness as to the future of the church, and an intense and vivid sense of Satanic presence.3

Footnote 2: See a curious work, entitled Pseudomonarchia Demonomantie de Sorciens," noted by Lecky, op. cit. i 87 n. x, in which the names of seventy-two princes of the devils are given, and the number of their subjects estimated at 7,405,926; Sprenger's Malleus Maleficarum collected the most important medieval treatises in which the current theories of witchcraft were contained; for the most part they were written by inquisitors, Lecky, op. cit. i 68 n. x.

The old intellectual system passed away in the sixteenth century. Its passing, so far from causing the decay of this superstition, gave it, in the first instance, an added strength. The religious conflicts of the Reformation tended to excite a religious fervour which increased men's consciousness of the consequences of sin, and of the reality of the active machinations of the devil. Heresy and witchcraft must be at all costs suppressed. Thus we find that all over the continent of Europe, in Protestant and Catholic communities alike, the war against witchcraft and sorcery was waged by church and state more fiercely than before. In the sixteenth century, as in the Middle Ages, the keenest intellects of the age gave it their active approval. Bodin wrote a book on the subject, in which he denounced the wickedness and folly of those who doubted the overwhelming evidence of the reality of the crime.4

Footnote 3: Ibld 59.

In England the legal writers of the thirteenth century said that the crime could be punished by the king's courts by burning.5 But it was generally left to be dealt with by the ecclesiastical courts; and it seems that it was very seldom that cases occurred before any court, lay or ecclesiastical.6 In the fifteenth century the witch could be punished under the statutes relating to heresy; 7 and cases, sometimes apparently of a political nature, were brought before the

**510 LAW IN XVITH AND XVITH CENTS.**

Council.${}^{1}$ Witchcraft was the principal charge against Joan of Arc; and a similar charge was brought by Cardinal Beaufort against the duchess of Gloucester in 1441.${}^{2}$ But there is good reason to think that, even in the fifteenth century, the war against witches was waged less fiercely in England than on the continent. " When there is no torture there can be little witchcraft."${}^{3}$ But in England, as elsewhere, the Reformation called public attention to the need for its suppression. The first statute on the subject was passed in 1541-1542.${}^{4}$ It was enacted that it should be felony without benefit of clergy to devise or practise "any invocations or conjurations of spirits witchcrafts inchantments or sorceries," with intent to get or find money or treasure, to waste or consume any person in body member or goods, to provoke unlawful love or any other unlawful act, to find lost or stolen goods; or, in despite of Christ, to pull down crosses. This statute was repealed by the statutes of 1547 and 1553;${}^{6}$ but in 1562-1563,${}^{6}$ owing perhaps to the exhortations of bishop Jewel,${}^{7}$ another statute was passed which made it felony to use exercise or practise any invocations or conjurations of evil spirits to or for any purpose, or to cause by witchcraft the death of another. It was made a misdemeanour to cause by witchcraft harm to body member or goods, or unlawful love, or to pretend by this means to discover treasure. This statute was " neither so severe nor so comprehensive as the canon law"${}^{8}$ and the continental legislation;${}^{9}$ and there do not seem to have been many prosecutions under it.${}^{10}$ But in the following reign the fanatical belief of James I. in the existence of this crime${}^{11}$ gave rise to more severe legislation and a more active enforcement of the law. An Act of 1603-1604 declared to be felony withoutThe Criminal Law

benefit of clergy the invocation of evil spirits, the consultation or rewarding of evil spirits, the taking up of dead bodies to employ any_part of them for the purposes of witchcraft, and the use of witchcraft to kill or hurt any person. Further, the use of witchcraft to discover treasure, or to provoke unlawful love, or to injure any person's property, was to be punishable on a first conviction with imprisonment, and on a second as felony.1

Somewhat allied to this legislation was that directed against false and fantastical prophecies. The making of such prophecies was declared to be felony in 1541-1542;2 and after the repeal of this statute in 15478 such prophecies were made misdemeanours by statutes of 1549 and 1562-1563.4 The reason for the enactment of these two latter statutes, and probably of the first-named also, was the fact that these prophecies were made for the purpose of stirring up rebellion.6

Footnote 1: I James I. c. z2; we shall see that there were witch trials in the latter half of the seventeenth century; but, though no less a person than Hale, C.B. believed in the existence of witches, this belief was then on the decline, vol. vi c. 8; on the whole subject see Forcraft, Life and Letters of Sir G. Savile ii 493 n. z.

Footnote 2: I Edward VI. c. rz.

Footnote 3: I Edward VI. c. rz.

Footnote 4: I Edward VI. c. rz.

Footnote 5: We get a parallel in the legislation of the Roman Empire; Lecky, op. cit. i x8, rg, tells us that in the later period of pagan Rome the laws against magic were revived not on religious, but on political grounds--_'_ under the head of magic were comprised some astrological and other methods of foretelling the future; and it was found that these practices had a strong tendency to foster conspiracies against the emperors. The soothayer often assured persons that they were destined to assume the purple, and in that way stimulated them to rebellion. By casting the horoscope of the reigning emperor, he had ascertained, according to the popular belief, the period in which the government might be assailed with most prospect of success; and had thus proved a constant cause of agitation."

Footnote 6: Above 392 seqq., 331-332, 335.

Footnote 7: Edward VI. c. 6.

Footnote 8: I, 2 Philip and Mary c. 4.

Footnote 9: I, 4 Elizabeth c. 5; 39, 40 Elizabeth c. 4.

Footnote 10: 37 Henry VIII. c. ro.

Footnote 11: 2 Philip and Mary c. 3; 1 Elizabeth c. 6.

Footnote 12: 23 Elizabeth c. 2.

**512 LAW IN XVITH AND XVITH CENTS.**

such words was declared to be felony, and speaking such words was declared to be felony on a second conviction. It was further made felony to cast the queen's nativity, to prophesy the duration of her life, or to foretell the successor to the throne and the changes which would take place on her death. The Act was to last during the life of the Queen, and during its continuance the Acts of 1554 and 1558 were repealed.

**(3)**_Misdemeanour._

We have seen that in the latter part of the medieval period the criminal law was unable to prevent many forms of atrocious wrong to person and property.1 This was due mainly to two causes. In the first place the weakness of the executive had paralysed the efficient working of the existing rules of the criminal law. In the second place the law itself was defective. No doubt in most cases an injured person could take proceedings for trespass;2 and trespass, as we have seen, was a remedy of a quasi-criminal nature.3 But owing to the weakness of the executive the civil aspect of trespass had developed at the expense of its criminal aspect. The injured individual was left to remedy any wrong he had suffered by suing for damages; and owing partly to the manner in which the sheriffs, juries, and other subordinate officers of justice could be corrupted or terrorized, partly to the unscrupulous use which was made of a vicious system of procedure, such a remedy was worse than useless. In the sixteenth century these defects were met in two ways. Firstly by a large extension of the criminal jurisdiction of the Council, and secondly by large statutory extensions of the criminal law. With the contributions made to the growth of the criminal law by the extension of the jurisdiction of the Council I shall deal more fully in a later chapter.4 I am here chiefly concerned with the manner in which its sphere was extended by statute.

Footnote 1: Vol. ii 415-416, ${}^{$}$ Vol. iii 37-318, 370-377.

Footnote 2: Vol. v 167 seqq.

The statutory extensions of the spheres of treason and felony were accompanied by similar statutory extensions of the sphere of misdemeanour. These statutory extensions emphasized the criminal side of trespass; consequently it is from this century onwards that the term trespass tends to be applied only to wrongs redressible by a civil action, while the term misdemeanour is appropriated to describe wrongs under the degree of treason or felony which are redressible by a criminal prosecution. In some cases of course an injured person could, and still can, elect which manner of proceeding he will adopt. In other cases the sixteenthThe Criminal Law

century statutes gave both a civil and a criminal remedy. The legislation as to forgery and damage to property \[1\] affords examples. But, with the development of the criminal law, it was inevitable that the scope of and principles applicable to the law of tort should become more sharply differentiated from the scope of and the principles applicable to the criminal law. Moreover the development of the law of procedure and pleading tended to widen the difference. The criminal procedure, whether applied to the felonies or to offences under the degree of felony, tended to fall apart from the civil procedure applicable to trespass, and the many offshoots of trespass, which were beginning in this period to show signs of overrunning the whole field of common law jurisdiction. Thus the creation by the legislation of this period of a large number of offences under the degree of felony, which were punishable on indictment by a strictly criminal procedure, gave to the misdemeanour the more precise meaning and the importance which it still possesses in our criminal law. Just as the developments which I have described in the law of treason and felony show that the state had mastered the lawlessness which had reduced it to impotence in the fifteenth century ; so, the continuous increase in the number of the misdemeanours created by statutc, from the sixteenth century onwards, shows that it was prepared to exercise a constantly increasing control over all departments of the national life through the machinery of the criminal law.

I have already touched upon some of these misdemeanours in describing the additions made to the list of felonies during this period. They are often less heinous forms of the same offence, or, in some cases, the same offence committed for the first time.\[2\] Thus we get in the case of the misdemeanours as in the case of the felonies a number of offences connected with the poor law, with vagrants, with the regulation of trade, with the preservation of game, with religion,\[3\] and with the safety of the state.\[4\] Similarly Edward VI.'s legislation as to riot, which created new varieties of treason and felony, created also new misdemeanours,\[5\] Occasionally the creation of a new statutory misdemeanour emphasized rules laid down by royal proclamation--an illustration is a statute of I592-I593 which restricted the building of small houses in London and Westminster.\[6\] In other cases quite new

**S14 LAW IN XVITH AND XVITH CENTS**.

and independent developments of the criminal law were made in this way. With these cases I must deal, as I dealt with the felonies, and consider them under several distinct categories.

_(a) Offences against person and property._

In 1511-15121 an attempt to enter a house in a mask or other disguise, or to make an assault or affray on the highway or elsewhere, was punished by imprisonment; and a penalty was imposed on the vendors of these masks. In 1557-15582 the abduction of heiresses, being minors under sixteen, without their parents' consent, was made punishable with fine or imprisonment; and a long term of imprisonment was imposed on those who in addition violated or married such heiresses. If the heiress consented, her next of kin were to enjoy the profits of her land during her life. In 1541-15423 to obtain falsely and deceitfully chattels or money by false tokens or counterfeit letters was made punishable by the pillory and other corporal penalties. The statute specially saved the civil remedies of those who had been thus deceived. In 1566 cutpurses and pickpockets, who, as the statute said, had " made among themselves as it were a brotherhood or fraternity of an art or mystery," were deprived of the benefit of clergy.4 Several minor forms of damage to property, such as cutting growing corn, robbing orchards, digging up fruit trees, or breaking fences, were made punishable by fine in 1601; 5 to which list in 1609-1610 was added the burning of moors in certain places at unseasonable times.6

_(b) Offences against morals._

At the end of this period we can trace Purtanical influences in legislation directed against profane swearing,7 and against the profanation of the Lord's day either by doing certain kinds of work,8 or by meetings of persons for sport out of their own parishes.9 But a more important and a more permanent contribution to the law, which is probably to be ascribed in part to the same influences, was made by a set of statutes of the early Stuart period which attempted to suppress the prevalent vice of drunkenness. Some of these statutes attempted to effect theirThe Criminal Law

object directly, and imposed penalties for drunkenness.1 But most of them followed precedents set by statutes of Henry VII. and Edward VI.'s reigns,2 and attempted to effect their object indirectly. They gave the justices of the peace power to suppress ale-houses where drunkenness or disorderly conduct was permitted, and some of them subjected the keepers of these ale-houses to penalties if they permitted drinking contrary to their provisions.8 But this legislation was not found to be satisfactory. The justices were careless and offenders were not punished ;4 while the device of granting a patent to certain persons to see that the law was enforced 5 failed owing to the corruption of the patentees 6 and the opposition of Parliament.7 The judges resolved in 1625 that the statutes in force did not prevent any one who wished from opening an ale-house.8 The justices could suppress an ale-house which proved to be a nuisance ; they could not prevent it from being opened.9 It was probably in consequence of this resolution that in 1627 the legislature made a new departure and required all ale-houses to be licensed.10 It thus inaugurated what was destined to become a very special and a very complicated branch of the law.

Footnote 10: 3 Charles I. c. 4: 10 Vol. ii 400 ; P. and M. ii 529-547.

Footnote 11: 4 James I. c. 5 ; 7 James I. c. 7: 1 Charles I. c. 4: 10 3

Footnote 12: 13 May 1999

Footnote 14: 14 James I. c. 5 ; 7 James I. c. 7: 1 Charles I. c. 4: 10 3

Footnote 15: 16 James I. c. 4: 10 3

Footnote 17: 10 James I. c. 4: 10 3

Footnote 18: 10 James I. c. 4: 10 3

Footnote 19: 11 James I. c. 4: 10 3

Footnote 20: 11 James I. c. 4: 10 3

Footnote 21: 12 James I. c. 4: 10 3

Footnote 22: 13 May 1999

Footnote 23: 14 James I. c. 4: 10 3

Footnote 24: 10 3 James I. c. 4: 10 3

Footnote 25: 10 James I. c. 4: 10 3

Footnote 26: 10 James I. c. 4: 10 3

Footnote 27: 10 James I. c. 4: 10 3

Footnote 28: 10 James I. c. 4: 10 3

Footnote 29: 11 James I. c. 4: 10 3

Footnote 20: 11 James I. c. 4: 10 3

### Law in Xvith and Xvith Cerns.

at issue.1 But, when the jury changed its character, it soon appeared that there was a large gap in the law. It is true that the ecclesiasticl courts could punish perjury.2 But their jurisdiction was ineffective for two reasons. In the first place they were constantly hampered by writs of prohibition because they often used this jurisdiction, as they used their jurisdiction over _laesio fidei,_ to gain cognizance of cases concerning land or contracts to which they were not entitled.3 In the second place, as they naturally regarded the offence from the moral point of view, their treatment of it, even if they had been allowed by the lay courts to deal with it as they pleased, would hardly have resulted in any workable rules of law. It would have suffered from the opposite defect to that from which the common law suffered, because it would have been too wide to be practically effective. The common law was right when it limited the sphere of punishable perjury; but the nature of the limitation required to be recast in the light of the new developments which were taking place in the machinery of the courts. Seeing that the jury were fast ceasing to be witnesses, the procedure by writ of attaint was becoming obviously inapplicable to them. But these juries were led by evidence written or oral. It was upon such evidence that the courts outside the sphere of common law jurisdiction had always acted; and it was assuming an increasing importance in the common law courts. Therefore, just as it had become necessary to deal with the forgery of written evidence,4 so it had become necessary to deal with perjured oral evidence. In the case of perjury, as in the case of forgery, the Star Chamber led the way; and therefore the origins of our present law of perjury must, like the origins of our present law of forgery, be sought for partly in the jurisdiction assumed by the Star Chamber and partly in the legislation of this period.

Footnote 1: Vol. i 339-341.

Footnote 2: **P. and M. ii 541** ; Stephen, H.C.L. iii 243-

Footnote 3: **Y.B. z Hy. IV. Trin. pt. 40** ; cf. Y.B, z Hy, IV, Mich. pl. 45-

Footnote 4: Above 501-503.

Footnote 5: **Star Chamber, Part II. SS vii.**

Footnote 6: Hudson 74.

It is clear from the account which Hudson gives of this branch of the jurisdiction of the Star Chamber 5 that that court assumed power to punish practically all kinds of perjury committed by anyone in the course of legal proceedings. It extended not only to witnesses but also to presentments made and indictments found at courts leet and courts baron,6 and possibly also to false oaths made by compurgators.7 It did not extend to false oaths made by jurors upon which attaint lay, as this case was sufficiently dealt

## The Criminal Law

with by the common law.1 Nor did it extend to a false oath as to the remembrance of a fact;2 but apparently it did extend to a false oath as to a person's belief.3 The chief limitation which the court imposed on its jurisdiction arose from a well-founded fear that too great severity might discourage the production of necessary testimony. Just as at the present day the burden of proof in an action for malicious prosecution is made to weigh heavily upon the plaintiff because the prosecution of a criminal is a public duty, so it was felt to be expedient so to mould the law as to perjury that honest witnesses would not be discouraged from coming forward to testify. Thus the court would hear no case of perjury in respect of pending proceedings;4 and at one period it hesitated to deal with perjured witnesses when the verdict had passed according to the evidence,5 or with allegations of perjury made against witnesses for the crown.4 But, when Hudson wrote, both these last two limitations had disappeared. All that was left of them was the rule, against which he protested, that " perjury committed against the life of a man for felony or murder" when the accused was convicted, was not examinable or punishable.7

Footnote 1: Hudson 76-- but the imbracery, corruption, and instruction of jurors is here examinable."

Footnote 2: Ibid 8x, 8a.

Footnote 3: Ibid 8o, " It may be thought strange that a man deposing truth should be punished for perjury, and yet it is most certain; for in the case of _Vernon versus North_, a man was charged by persuasion to have deposed the value of cattle which he never saw; and that was held to be perjury although he deposed the truth."

Footnote 4: Ibid 8o; cf. Lord Beauchamps v. Sir R. Croft (1569) Dyer 285a for a similar decision that an action of scandalum magnatum would not lie for bringing an action for forging deeds against a peer, more especially while the writ was pending.

Footnote 5: Ibid 74-- because .

### 518 Law in Xvith and Xviiith Cents

and justices power to punish perjuries committed by officials, or injuries, or by those who gave or submitted evidence before the Council or the Chancery. In 15401 various offences connected with litigation were penalized, including suboronation of perjury; but it was not till 1562-15632 that the first comprehensive statute was made. It provided penalties for persons guilty of perjury or suboronation of perjury in the giving of evidence before the Chancery, the Star Chamber, the court of Requests, or any other court which by the king's commission could hold a plea concerning any land, all courts of record, courts leet, courts baron, hundred courts, courts of ancient demesne, and the Stannary courts. It did not extend to perjured evidence before the ecclesiasticl courts; and it saved the existing powers to punish perjury conferred by Henry VII.'s statute upon the chancellor and " others of the Kinges Counsel" which were usually exercised in the Star Chamber, and the powers exercised by the Councils of Wales and the North. In order that the statute might not have the effect of making it difficult for litigants to procure testimony it was provided that all witnesses who, on being duly summoned, failed to appear, should be liable to pay a fine, and to compensate the party to the action thereby damaged.3

Footnote 1: 32 Henry VIII. c. g. ${}^{,\\

**THE CRIMINAL LAW** **519**

punished either by the common law courts or by the Star Chamber, even though it did not fall within the provisions of the statute. Thus perjury committed before the ecclesiastical courts, which was specially excepted from the statute of Elizabeth, was punishable certainly by the Star Chamber,1 and probably also by the common law courts,8 The immediate result was that the wide jurisdiction of the Star Chamber continued to be exercised ; and the ultimate result was that the principles which the exercise of that jurisdiction had established were imported into the common law.

Footnote 1: Hudson 74--he seems to think that, as all depositions there are _ut credit_, and as the perjury was therefore to be as to the belief, proceedings on it could only be taken in that court.

Footnote 2: Coke admits, Third Instit. r64, that perjury not grounded on the statute is " most commonly " punished in the Star Chamber ; but it would seem that he considered that, in theory at least, the common law courts had jurisdiction ; it was decided in r67 that they had, i Sid. 454.

Footnote 3: " Perjury is a crime committed, when a lawful oath is ministered by any that hath authority, to any person, in any judicial proceeding, who sweareth absolutely and falsely in the matter material to the issue, or cause in question," Third Instit. r64; cp, R. v. Griepe (r698) r Ld. Raym. 256.

Thus the offence of perjury, as it existed at the close of this period, was shaped partly by the legislature, partly by the common lawyers, and partly by the Star Chamber. The legislature had definitely penalized certain cases of false swearing. The common lawyers and the Star Chamber had agreed that certain other cases were also punishable. And in determining what other cases were thus punishable we can trace the influence of ideas coming from both these jurisdictions. Thus the rule laid down by Coke that the false oath must be material to the issue 3 is probably, as Stephen says, " an adaptation of the old law of attain."4 Attaint did not lie for falsely finding facts not in issue ; and therefore, by analogy, a false oath as to facts not material to the issue was not and is not punishable. On the other hand, the fear that too great severity might discourage witnesses, which had tended to limit the jurisdiction of the Star Chamber, was probably the origin of the decisions, that the oath must be administered in the course of a judicial proceeding,5 and that no action on the case for damages could be brought by a person who had suffered by a perjury.6

### 520 Law in Xvith and Xvith Cents.

1. _Offences connected with officials._

In this, as in the preceding period, there are a certain number of statutes passed to prevent the misdeeds of such officials1 as sheriffs, and their officers,1 escheators,2 and tax collectors.3 The most significant and the most novel of these statutes is an Act of 1551-1552 for the prevention of the sale of offices.4 It is significant of the growth of the modern state and of modern political ideas; and it introduces a principle which was wholly opposed to the feudal confusion of office and property. The Act imposed penalties upon anyone buying and selling, or agreeing to buy or sell, or directly or indirectly taking or agreeing to take any profit, by reason of an appointment to offices connected with the administration of justice, the management of the revenue, the keeping of towns, castles, or fortresses, or clerkships in courts of record. Certain offices in the gift of the chief justices of the king's bench and common pleas and the judges of assize were saved; and we have seen that it was not till the beginning of the last century that the ideal aimed at by the framers of the statute was realized.5 But, when all deductions have been made, we cannot but regard it as a piece of legislation which shows that the transition from mediaval to modern ideas was being rapidly accomplished.

1. _Offences connected with the abuse of the procedure of the courts._

There are a few laws directed against the practices which had in the preceding period reduced to impotence the ordinary process of the law. In 14876 the Act " Pro Camera Stellata " was passed to deal with the evils which arose from maintenance, embracery, and giving of liveries; and another Act of the same year was passed to prevent the retainer by other persons of the king's officers and tenants.7 In 1495 it was enacted that if the leaders of riots, which, as the Act says, were often made by servants or retainers, did not appear in obedience to a proclamation of the justices of the peace, they should stand convicted;8 and in 1503-1504 heavy penalties were imposed on those who kept retainers otherwise than for the purposes of domestic service.9 The vigilance and the growing power of the Tudor Council gradually rendered a repetition of these enactmentsThe Criminal Law

against retainers unnecessary. But the other and less violent methods of abusing legal procedure were still rampant. A **staute** of 15401 imposed fresh penalties on maintenance, champerty, embracery, and, as we have seen, subornation of \*\*perjury.2 Further, it penalized the buying and selling of any pretended titles to lands, tenants, or hereditaments, unless the vendors had been seised or possessed of an estate in possession in the land, or of an estate in reversion or remainder, or had taken the rents and profits thereof, for a year before the sale.3 But here again the steady pressure exerted by the Council effected an improvement which the long series of medieval statutes and the efforts of the common lawyers had been unable to effect.4 We shall see that this work was assisted by some of the statutes which removed abuses or effected improvements in the procedure of the common law courts.6

Footnote 1: 32 Henry VIII. c. 9. Above 518.

Footnote 3: See Partridge v. Strange (1553), Plowden 77 ; and cf. Jenkins v. Jones (1882), 9 Q.B.D. 1z8.

Footnote 4: Vol. i. 334-335 ; vol. ii. 416, 457-459 ; vol. v zot-203.

Footnote 5: Below 524, 534, 535-536.

Footnote 6: Vol. i 294 ; vol. iii 599-604 ; 13 Edward I. st. 2 cc. r and z; 28 Edward III.

(4) _Topics connected with criminal law and procedure._

The legislation of this period made a few modifications in certain topics connected both with the substantive law and with procedure which deserve a brief mention.

_The substantive law._

(a) _The hue and cry._

It was an old and salutary principle of the criminal law that, if a robbery or other felony was committed, the inhabitants of the hundred where it was committed were liable for the damages sustained by the person injured by the crime, unless they raised the hue and cry, and captured the criminal within forty days.6 Such a system required the active co-operation of hundred with hundred. But it was found that the neighbouring hundreds were negligent in performing this duty, as they did not stand to lose in the event of failure to catch the criminal.7 Apparently also it was the custom to levy the damages from the most solvent inhabitants of the hundred, who had no means of recouping themselves from their fellow-inhabitants.8 The result was that criminals were negligently pursued ; and the penalty for this neglect of duty fell upon a few individuals arbitrarily selected.

**522 LAW IN XVITH AND XVITH CENTS.**

It was therefore enacted in 1584-15851 that the inhabitants of aevery hundred, who neglected to make fresh suit, after the hue and cry raised, should be liable for half the damages recoverable against the hundred where the crime had been committed. These damages were to be recovered by action brought in the name of the clerk of the peace of the county. The amount of any damages payable by the hundreds under this statute, or the older statutes imposing liability, was to be raised by a rate made by the justices of the peace, and assessed by the constables. The constables were to pay the money to the justices, who were to pay it over to the persons entitled to be indemnified. If one of several offenders were arrested, no damages were payable; and the party complaining must give notice at the nearest town of his loss as soon as possible, and must sue for compensation within a year.

Footnote 1: 27 Elizabeth c. 13; by 39 Elizabeth c. 25 the hundred of Benherst, within which lay Maidenhead thicket--a place notorious for robberies--was allowed to throw the whole damages on the neighbouring hundreds which had been negligent in pursuit. Gad's Hill had a similar reputation, see (1577) 2 Leo, r2--a case which may have suggested the scene in Henry IV. Pt. I.

Footnote 2: Vol. v 08-99, 105, Ito-III.

Footnote 3: Vol. ii 36; below SS33.

**THE CRIMINAL LAW** **528**

made in the substantive part of this branch of the law. We have seen that the changes in the character of the Benefit of Clergy, which ended by making it a complicated series of rules exempting certain persons from punishment for certain felonies, began with the legislation of this period;1 and that Henry VIII.'s legislation as to Sanctuary paved the way for the abolition of this institution in 1623-1624.2 Statutes of 1535 and 15368 substituted the common law for the civil law procedure in the cases which fell within the criminal jurisdiction of the court of Admiralty. The decay of the appeal of larceny was completed by the statute which gave to the owner of stolen property a writ of restitution, if the thief was convicted on indictment by the help of the evidence of the owner of the stolen goods or of the person from whom they had been taken.4 The efficiency of the criminal law was increased by the statute which allowed those accused of murder to be indicted at once, without waiting to see if the relatives of the murdered man would bring their appeal.5 The strictness of the older law, and the advent of more modern notions of criminal liability, are illustrated by the fact that it was thought necessary in 1532-1533 to pass a statute to declare that no forfeiture should be incurred by a person who killed another who was attempting to rob or murder him in his house or on or near the highway, or who was attempting to commit burglary.6

Footnote 1: Vol. iii 299-302.

Footnote 2: Ibid 306-307; 2x James I. c. 28 SS 7; for some account of the criminal quarters of Elizabeth London, sometimes miscalled sanctuaries, see Aydelotte, op, cit, 8a-83; some existed till the end of the seventeenth century, vol. vi c. 8.

Footnote 3: 27 Henry VIII. c. 4; 28 Henry VIII. c. 15; vol. i 550; above 260.

### 524 Law in Xvith and Xviith Cents.

examination before the Council, a person confessed or was vehemently suspected of treason or murder, he might be tried anywhere within the kingdom. It also enacted that no peremptory challenge should be allowed in trials for treason. This statute was repealed by the clause of the statute of 1554 \[1\] which enacted that all trials for treason should be according to the course of the common law.\[2\] The later of these statutes was passed in 1543-1544,\[3\] and is not affected by the statute of 1554.\[4\] It recites that doubts had arisen whether treason committed abroad could be tried in England, and enacts that such treasons shall be tried in the King's Bench or before special commissioners in any county in England. It was settled in _Story's Case_\[5\] that this statute was not repealed by the statute of 1554, either because such treason, not being triable at common law, was not affected by an Act which provided only for treasons so triable;\[6\] or because such treason was triable at common law in any county in England.\[7\]

The second of these changes is connected with an extension of the procedure by way of criminal information which was effected in 1495.\[8\] A statute passed in that year gave power to the judges of Assize and the justices of the peace to bring to trial persons accused of misdemeanours upon an information instead of upon an indictment. This statute is of some importance in the somewhat obscure history of this form of criminal proceeding. I shall deal with the controverted question of its historical significance in that connection,\[9\]

Under this head we may note the earliest of the Statutes (now represented by the Public Authorities Protection Act) passed to give certain procedural advantages to justices of the peace and other officers of the local government, when sued for acts done in the execution of their office.\[10\]

1, a Philip and Mary c. ro.

2Coke, Third Insit. 27; (1555) Dyer 132a.

335 Henry VIII. c. 2.

5(1555) Dyer 131b.

5(1571) Dyer 298b, following the resolution of 1555, ibid 132a.

6" And it seems that notwithstanding this (i.e. x, 2 Philip and Mary c. ro) the statute 35 Hy. VIII. c. 2 is in force, because no offence of treason committed out of the realm was triable here by the course of the common law, therefore this statute enlarges the power and authority of the trails of the realm in this point ; but for treason committed in a foreign country, and triable in B.R. or in any county at the pleasure of the king, by statute 33 Hy. VIII. c. 23, it seems otherwise; because this treason by course of law was triable in the county where the offence was committed," Dyer 132a; cf. Foster's Case (165) 1C Co. Rep. at p. 63a.

7" Hale, r. P.C. 169, 170--" At common law he might have been indicted in any county of England, and especially where the offender's lands lie, if he have any;" cf. The Case of the Admiralty (167) 13 Co. Rep. at p. 54; Pt. II. c. 5 8 1..

8" tr Henry VII. c. 3.

10" James I. c. 5; 21 James I. c. rz.

The Criminal Law 525.

1. _Changes which gave advantages to the subject._

I have already mentioned the statutes which effected certain improvements in the procedure upon trials for treason,\[1\] and those dealing with proceedings taken by common informers.\[9\] Small changes were also made in favour of sheriffs in relation to proceedings taken upon their accounts with the king,\[3\] in favour of crown tenants who had been vexed by informations of intrusion,\[4\] and to remedy certain abuses connected both with the obtaining of process to keep the peace by one subject against another, and with the removal of indictments for riots and other offences into the superior courts.\[5\] The only other change of any importance was made by statutes of Henry VIII.'s and Elizabeth's reign,\[6\] which abolished the maxim _nullum tempas occurrit regi_ in the cases to which they applied. Elizabeth's statute, which replaced that of Henry VIII., fixed two years as a period of limitation for actions, informations, or indictments on penal statutes brought by the king, and one year if these proceedings were brought by a common informer suing either for himself only or for himself and the king.\[7\]

1. _Changes which made for the greater efficiency of the law._

These changes affected the law as to bail, as to the preliminary examination of the accused, as to venue, and as to formal errors in indictments.

_Bail._ It may be that in early days those who offered themselves as security for the appearance of an accused person were literally bound body for body.\[8\] But in the thirteenth century these sureties were only liable to amercement if they allowed their prisoner to escape.\[9\] Later it became usual, either to make the surety promise by recognizance to pay a sum certain in the event of the non-production of the prisoner; or, combining the older idea of the nature of the surety's obligation with the newer means taken to enforce it, both to make him promise by

**526 LAW IN XVITH AND XVITH CENTS.**

recognizance to pay a sum certain in the event of his non-production, and to commit the accused to the surety's custody.1 If the accused was thus committed to the custody of the sugty he was strictly and technically his bail ; if the surety merely gave security for his appearance he was said to give mainprize and to be a mainpernor.2

Footnote 1: This form appears as early as Edward III.'s reign, Fitzherbert, Ab, _titl_, Mainprize pl. rz and r3.

From an early period the sheriff had a large discretion as to taking or refusing to take bail or mainprize. In the twelfth century it would seem that the only cases in which he could not take bail or mainprize were cases in which an accusation of homicide had been made.3 The writ by which the sheriff could be compelled to release the prisoner on bail or mainprize was the writ _de homine replegiando_ ;4 and, when that writ attained its final form, the list of cases in which bail must be refused had grown by the addition of offences against the forest law, and arrest by the special command of the king.5 Further it would appear that the sheriff was given a wide power to refuse bail in cases where by the law of England bail ought to be refused. These cases were taken to include treason, and sometimes any crime punished by death or mutilation.6 But the law was in a very uncertain state ; and this uncertainty put too much power into the hands of the sheriffs. In 1275 the main foundations of the modern law were fixed by one of the clauses of the Statute of Westminster I.7 That statute enumerated the offenders who were not bailable, and the offenders who might be released on bail. The offenders not bailable included outlaws ; those who had abjured ;8 approvers ;9 those caught with the stolen property upon them ; those guilty of prison breach ; known thieves ; those appealed by approvers ; those accused of arson, coining, counterfeiting the king's seal, treason touching the king's person, or of open misdeeds ;10 and excommunicates taken at the bishop's request. The offenders bailable included those indicted of larceny before the sheriffs ; those who were but lightly suspected,

**THE CRIMINAL LAW** **527**

or accused only of petty larceny, provided that they had not been previously found guilty of larency; those accused of being accessory before or after the fact to a felony;1 those accused of trespass not punishable with loss of life or member; and, those

appealed by an approver who had subsequently died. In 14442 this statute was supplemented by a provision that the sheriff must, with certain exceptions,3 release on bail all persons in custody by reason of any personal action, or by reason of any indictment for trespass.

Footnote 1: For the law as to the conditions under which accessories were bailable see Hale, P.C., ii 135 and the Y.BB. there cited.

Footnote 2:3 Henry VI. c. g.

Footnote 3: Persons in prison by reason of condemation, execution, capias utagatum or excommunicatum, surety of the peace, those committed by the special command of any justice, and vagbands refusing to work according to the Statutes of Labourers.

When the latter statute was enacted the power to bail was passing to the justices of the peace. It had perhaps been conferred upon them in certain cases by statutes of Edward III.'s reign;4 and it was certainly conferred upon them in very general terms by a statute of 1483-1484.5 With the accession of the Tudors a stricter control over the manner in which the power was used began to be exercised. A statute of 14876 recited that persons not bailable were often bailed, whereby many murderers and felons had escaped ; and enacted that the power to bail should be exercised by not less than two justices, one of whom was to be of the _quorum_, and that the prisoners whom they bailed should be certified at the next general sessions of the peace or sessions of gaol delivery. It would appear that this statute had not worked altogether satisfactorily. It was stated in 15547 that one justice, in the name of himself and another who knew nothing of the case, had sometimes by "sinister labour and means" set at large notable offenders. Justices were therefore prohibited from bailing any persons not bailable by the statute of 1275. Prisoners must be bailed in open sessions, and at least two justices, one being of the _quorum_, must be present at the time of the bailment. A certificate must be made to the next sessions of gaol delivery, and the justices of gaol delivery were given power to fine justices for breach of

### Law in Xvith and Xvitin Cents.

the provisions of the Act. Later statutes were passed to ensure that bailors should be substantial persons,1 and to make special provision for bail in the case of particular offences; but the statute of i27,5 as to offences bailable, and the statute of 1554 as to the procedure by which bail could be obtained, remained the basis of the law on this subject till 1826.2

Footnote 1: 2r James I, c, 8 SS 3--it recites that persons " commonly called Baylers or Knights of the post " cause themselves to be assessed at high rates in the subsidy books or take upon themselves the names of substantial persons in order that they may be accepted for bail.

_The preliminary examination of the accused._ We shall see that in many continental countries the Reception of Roman law led to the growth of an entirely new form of criminal procedure. For the oral and formal accusation leading up to one of the older modes of proof there was substituted the inquisitorial procedure of the civil and canon law.3 By the first half of the sixteenth century the development of this procedure had, in most continental countries, resulted in the almost complete disappearance of that liberty of defence which under the older procedure had been allowed to the accused.4 In England, on the other hand, the development of the jury system had prevented the introduction of this inquisitorial procedure.5 Thus, in the sixteenth century, the English criminal procedure still retained many medieval characteristics which made it far more favourable to the accused than the continental system.6 We shall see, however, that some of the continental ideas were introduced, partly through the practice of the Council and Star Chamber, and partly because even the judges of the common law courts were ready to admit that it was not to the interest of the state to give too many advantages to accused persons.7 Here I shall deal with the only one of these changes which was introduced by the legislature.

Footnote 3: 3: Vol. v 170-176; for the older modes of trial see vol. i 299-312; vol. ii 168-176.

Footnote 4: Vol. v 174- 9 Vol. i 304, 317-320; vol. iii 620-622; vol. v 176-177.

Footnote 5: Vol. iii 622; and see Pt. II, c, 7 SS 2 for a sketch of the later history of criminal procedure.

The change which was taking place in the character of the jury was making it quite clear that, in the interests of justice, some sort of preliminary examination of an accused person ought to be established. Juries were ceasing to have a first-hand knowledge of the facts;8 and just as the knowledge of the petty jury required to be supplemented by the testimony of witnesses, so the knowledge of the grand jury required to be supplcmented by evidence which could only be got by a preliminary examination into the causes for suspecting an accused person.

**THE CRIMINAL LAW** **629**

In 15541 it was enacted that, on an application for bail, the justices should, in all cases where the prisoner was accused of any mapslaughter or felony, before they admitted him to bail " take the examination of the said prisoner and information of them that bring him of the fact and circumstances thereof; and the same, or as much thereof as shall be material to prove the felony, shall put in writing." The examination and admission to bail must be certified to the next sessions of gaol delivery. In all cases where a person was indicted for murder or manslaughter before the coroner, the coroner was to put into writing the material evidence given to the jury; and both the justices and the coroner were given power to bind over the witnesses to appear and give evidence at the trial. The difference between the character of the examination, held by the justices and that held by the coroner is remarkable.2 It is probably due to the fact that in the former case there was an accusation definitely formulated against some specific person, which must be presented by the grand jury before the prisoner was arranged; whereas, in the latter case, there was simply an inquiry at large into the facts, resulting in a presentment, on which the accused could be at once arranged, without the need for any further presentment by the grand jury. The nature of the inquiry and the character of the subsequent proceedings naturally affected the character of the preliminary examination.

Footnote 1: **x, a Philip and Mary c, x3; vol. i z96; above 527-528.**

The provisions of this statute relating to the preliminary examination before the justices applied only when the prisoner was bailed, because the main object of the statute was to settle the procedure in cases where bail was applied for. But it was clear that some preliminary examination was quite as useful when the prisoner was committed on a charge of manslaughter or felony as when he was bailed. It was therefore enacted in 15553 that the examination should be made in this case also.

Footnote 2: **x, 3 Philip and Mary c, x0.**

We have seen that these statutes contemplated an inquisitorial examination of the prisoner, not a judicial enquiry into the facts of the case.4 They gave, as they were designed to give, the executive some of the advantages against prisoners which were conferred by the inquisitorial procedure of foreign states; and it is not till the reforms of the last century that this examination lost its original character, and became an enquiry of a judicial nature.5 Such a procedure may seem strange to our modern ideas. But, in the sixteenth century, it was necessary in order to secure the observance of the law and to protect the state against its enemies.

Law in XVITH AND XVITH CENTS.

It would be hardly too much to say that the preservation of the medieval criminal procedure, based upon the presentment of the grand and the trial by a petty jury, and its adaptation to the needs of the modern state, would hardly have been possible if the practice of examining suspected persons, which had been introduced by the Council, had not been thus extended. In this way the powers given to the executive by these statutes have helped to preserve and develop a unique form of criminal procedure, which, even in the sixteenth and seventeenth centuries, maintained a standard of fairness to the accused unattainable by the inquisitorial procedure of continental states. But with this and other characteristic features of the English criminal procedure I shall deal more fully in the following chapter, and in the second Part of this Book.

\_Venue.\_1 Trial by jury was a trial by those who lived in the neighbourhood of the place where the crime was committed.2 From this two consequences flowed. In the first place the jury must come from this neighbourhood.3 In the second place the accused could only be put on his trial in this neighbourhood. 'Several inconveniences followed from the latter rule. Criminals are often vagrant persons; and the rule that they could not be tried where they were caught was clearly a hindrance to the administration of justice. In the case of larceny this inconvenience had been partially got over by the rule that if a man stole property and carried it about, he was considered to continue to steal it throughout his wanderings, so that he could be tried at any place where he was caught.4 But this subterfuge was not possible in the case of other crimes. In all other cases the prisoner must be brought back to the place where the deed was done. A much more serious consequence of the rigid application of this doctrine was the fact that it prevented many crimes being tried at all. If A wounded B in one county, and B died in another, A could be indicted in neither county, because the jurors of the county where B died could have no knowledge of the wound, and the jurors of the county where the wound was given could have no knowledge of the death. Again if A stole in one county and conveyed the property to an accomplice in another, the accomplice could not be indicted as an accessory if the principal were convicted, because the jurors of the county where the receipt took place could have no knowledge of a conviction in a foreign county.6 These two cases were remedied by a statute of 1548,6 The Criminal Law

which is the ancestor of a long line of statutes 1 passed to remedy an obsolete rule which still troubles the administration of our criminal law.2

Footnote 1: Stephen, H.C.L., i 27.

_Formal errors in indiciments._ Among the many archaic traits which our criminal law long retained was the extreme precision required in the wording of indictments. This, indeed, was a characteristic of all branches of the law as to pleading.3 But we shall see that in civil cases several statutes had modified the strictness of the old rules.4 These statutes did not apply to criminal cases. The legislature was jealous, and at this period rightly jealous, of taking away from an accused person any advantages which were given to him by the common law. The only statutes which in this period were passed to modify the common law rules was a statute of 1545,5 which enacted that the omission of the words " vi et armis videlicet baculis cutellis arcubus et sagittis and the like" should not annul an indictment; and a statute of 1605-1606 which provided that indictments for recusancy should not be annulled for want of form.6

Footnote 2: "A rule which requires eighteen statutory exceptions, and such an evasion as the one mentioned in the case of theft (above 530 n. 4) is obviously indefensible. It is obvious that all courts otherwise competent to try an offence should be competent to try it irrespectively of the place where it was committed, the place of trial being determined by the convenience of the court, the witnesses, and the person accused," ibid. 278; even Blackstone thought that the strict rules should be departed from "when the great ends of justice warrant," Comm. iii 385.

Footnote 3: Vol. ii 105-160; vol. iii 616-62o, 633-634; Pt. II, c. 7 SS 2.

Footnote 4: Below 535-536.

Looking at these changes in the criminal law and procedure as a whole, we can see that the legislature attempted to adapt it, as it adapted other branches of the law, to the needs of the modern state. But we must admit that it did not attain the same measure of success. As compared with the legislation upon other topics it suffered from the fatal defect of a lack of continuity. Much of the legislation of Henry VIII.'s reign gave, it is true, promise of necessary and radical changes in many parts of the criminal law. But, as was inevitable in a time of revolutionary change, it often erred on the side of severity; and, after his death, a return was made to the law in force before his accession, with all its anomalies and imperfections. Men feared, not altogether unreasonably, to extend unduly the sphere of the criminal law. It was clear, however, that some extensions were necessary; and these extensions were made; but they were made tentatively, experimentally, and without any attempt to modify the mediaval basis upon which the law rested. Thus it comes about that the criminal legislation of this period did not adapt mediaval rules to

**582 LAW IN XVITH AND XVITH CENTS.**

their new environment with anything like the success achieved by the legislation which dealt with other sides of the national life; and, seeing that both the good and bad points of the Tudqr legislation have had very permanent results upon the whole course of our legal history, English criminal law long suffered, and still to some extent suffers, from its shortcomings.

In some respects, as we shall see, these deficiencies of the statute law were remedied by the action of the courts. It is true that the list of colonies could only be extended by statute. But we shall see that the action of the common law courts was more successful than the action of the legislature in permanently adapting Edward III.'s statute of treasons to modern needs; \[1\] and that, in the cases of offences under the degree of felony, the action of the Council and the Star Chamber both created new offences and increased the efficiency with which the law prohibiting these offences, new and old, was enforced.\[2\] The common law courts and the Council and Star Chamber worked together to enforce and to supplement the common law and the amending statutes; and their work had a considerable measure of success.

For the development of the law of tort the legislature did nothing, beyond sometimes giving to the party wronged by one of the new statutory misdemeanours an action for damages. This branch of the law was developed partly by the common law courts but chiefly by the Council and the Star Chamber. When the Council and the Star Chamber lost their English jurisdiction the developments which had originated with them were in many cases adopted by the common law courts. Of these developments I shall say something when I deal with the jurisdiction of the Council and Star Chamber,\[3\] and with the history of the technical development of the law of crime and tort in this period and the next.\[4\]

_Civil Procedure_

The most important statutory innovation in this branch of the law was the introduction of the principle of the limitation of personal actions in 1623-1624. From then to now the statutes of limitation have operated solely through the law of procedure; with the result that in the case of all actions, other than those coming within the scope of the Real Property Limitation Acts,\[5\] the remedy, not the right, is barred. I shall therefore in the first place deal with the statute of 1623-1624, and then with certain other subjects connected with civil procedure.

1 ptc. II. c. 5 8 x. " Vol. v 197-214. " Ibid. " Pt. II. c. 5 8 2 and 3. " 3, 4 William IV. c. 27 ; 37, 38 Victoria c. 57.

**CIVIL PROCEDURE** 538

1. _The limitation of personal actions_.

We have seen that the principle of the limitation of actions had already made its way into the land law,1 and into certain parts of the criminal law.2 But, if we except a temporary Act of 1609-1610 passed to prevent frauds of shop-keepers,3 it had not been applied to purely personal actions. The Act of 1623-1624,4 which is still the foundation of our modern law, provided that for most personal actions, the period of limitation should be six years, but that for actions of assault and false imprisonment it should be four years, and for actions on the case for words it should be two years. The Act thus applied to almost all personal actions. But it did not apply to specialty contracts,5 nor to actions of account between merchants their servants or factors,6 nor to actions brought for a debt under a special statute,7 nor to actions brought on a record.8 It further provided that the statutory period should not run if the plantiff was, when the cause of action accrued, an infant, a married woman, non compos mentis, in prison, or beyond the seas.9

Footnote 1: Above 484-485.

Footnote 3: 7 James I. c. 12-- entitled " an act to avoid the double payment of debts; "" it provides that a shop book shall not be evidence of a debt after twelve months.

Footnote 4: 2r James I. c. 16 SS 3.

Footnote 5: Ibid; as to the meaning of this exception see the notes 6 and 7 to Webber v. Tivil a Wms. Saunders at p. r27 ; Inglis.v. Haigh (r841) 8 M. and W. 769 ; Robinson v. Alexander (r834) 2 Cl. and Fin. 717 ; the exception was abolished by the Mercantile Law Amendment Act, r9, 20 Victoria c. 97 SS 9.

Footnote 7: Talory v. Jackson (r639) Cro. Car, 513.

Footnote 8: Cf. Jones v. Pope (r666) 1 Wms. Saunders 37, where it is assumed that actions on a record, on a contract under seal, and on a statute, are all specialties and out of the statute.

Footnote 9: 2r James I. c. 16 SS 7.

Footnote 10: Vol. v 178-188, 285-287, 302-303.

### Law in Xvith and Xvitin Cents.

common law courts.1 With these large developments in the law as to procedure and pleading I shall deal later. Here I shall only note briefly the chief legislative changes made during this period. These changes were made entirely in the common law rules, probably because the systems employed in the other courts and councils had hardly developed sufficiently to attract the attention of the legislature. But we have seen that during the Middle Ages the common law had evolved an elaborate system, the rules of which were very strict, and often productive both of delay and injustice.2 Some of these defects the legislature endeavoured to remedy ; but its efforts were tentative and the reforms made covered very little ground. I shall deal with these reforms under the following heads :--Process, Pleading, Proceedings in error, Costs, Judicial Machinery.

Footnote 1: Vol. v 190-r94, 285, 333 ; Pt. II. c. 7 SS 3.

Footnote 2: Vol. iii chap, vi SS 2.

Footnote 3: Ibid 626.

_Process._

We have seen that the rules of process were quite the most irrational part of the common law.3 Every action had its own process which must be rigidly adhered to.4 Some small simplifications were made by statutes of 1503-1504 5 and 1531.6 The former statute assimilated the process in actions on the case to that in trespass and debt ; and the latter assimilated the process in actions on Richard II.'s statute of forcible entries to process in trespass, and the process in actions of annuity and covenant to the process in the action of debt. The result was that in all these actions the defendant could be in the last resort outlawed. An Act of 1589 7 provided for due proclamation of an impending outlawry in the county where the defendant resided, and made provisions for ensuring that the summons in a real action was brought to the knowledge of the defendant.

Footnote 3: I'E Edward VI, c. 7.

**A** salutary Act of 1547 8 prevented the discontinuance of suits by the death of the king, by alterations in the commissions of assize or any other commission, or by the failure of the judges to appear at the appointed day. Persons found guilty before judges acting under one commission could be sentenced by judges acting under another later commission. The fact that the plaintiff in an action, or the judge who tried the case, was promoted to any rank or dignity was not to abate the writ.

Footnote 8: I'E Edward VI, c. 7.

Three Acts of James I.'s reign dealt with process in execution of a judgment. The first was caused by the questionCIVIL PROCEDURE 585 of privilege which arose in _Shirley's Case_. It provided that the release of a member of Parliament on the ground of privilege should neither render the sheriff liable for an escape, nor prevent the creditor from suing out a fresh writ of execution when the period of privilege had expired.1 The second of these Acts' provided that if a prisoner were taken in execution and died, the creditor should be able to pursue his remedies against his personal representatives.4 The third provided that in certain actions execution should not be stayed by suing out a writ of error, unless the party wishing to sue it out would give a recognizance in double the sum recovered.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.

_Pleading:_

The painful accuracy with which the common law courts required all the complicated steps in their process to be recorded had, in the preceding period, led to the passing of numerous statutes of " Jefail." 4 These statutes were designed to remedy the faults, careless or intentional, of the sheriffs, clerks, and other officers of the courts. They did not provide for mistakes made by the pleader in the statement of the case. Perhaps the system of oral pleading, under which the pleadings were settled after an exhaustive debate in court, made such provision unnecessary.5 But we have seen that a pleading after the term in which it had been enrolled became a record, and therefore subject to all the strict rules as to absolute accuracy which applied to records ;6 and that it was in this period that written pleadings settled by the parties out of court took the place of the oral pleadings settled in court after debate between the opposing counsel.7 It is clear that this system of written pleadings did not afford the same guarantee as the earlier system that the pleadings enrolled were absolutely accurate. It therefore became necessary to extend the provisions of the statutes of Jefail to cover, not only errors in process committed by the officers of the courts, but also errors in pleading committed by the advisers of the parties. It appears from a statute of 15408 that, even after verdict given, parties could and did insist on formal errors both in pleading and process, and so rendered all the proceedings useless. It was therefore enacted that, after verdict, the judges should proceed to judgment, in spite of mispleading or insufficient pleading, mistakes of process, misjoinder of issue, lack of authority

**696 LAW IN XVITH AND XVIITH CENTS.**

**in the attorney of one of the parties, " or any other default or negligence of any of the parties, their counsellors or attornies." In i5761 and 1623-16242 a further list of faults of form was enumerated, which were to be cured by verdict; and in i584-15858 a similar list was made which, for the future, were not to be insisted on after demurrer, unless the party specially objected to them when he demurred.**

**In i5294 an attempt was made to shorten the pleadings in the possessory assizes. It did not effect very much; for, as we shall see, the action of ejectment continued to encroach rapidly on the sphere, not only of the assizes, but also of the other real actions.**6****

Footnote 1: **I'd not only in the case of a $\\alpha$-function, but also in the case of a $\\alpha$-function.**

Footnote 2: **I'd not only in the case of a $\\alpha$-function.**

Footnote 3: **I'd not only in the case of a $\\alpha$-function.**

Footnote 4: **I'd not only in the case of a $\\alpha$-function.**

Footnote 5: **I'd not only in the case of a $\\alpha$-function.**

Footnote 6: **I'd not only in the case of a $\\alpha$-function.**

**Proceedings in error.**

**I have already dealt with the provision made for proceedings in error by Elizabeth's enactments relating to the Exchequer Chamber.**6****We have seen that proceedings in error were begun by writ of error which lay for errors on the record, or on a bill of exceptions.\*\*7****In one case the right to bring this writ was taken away. It was enacted in i586-1587**8\*\*\*\*that no record of attainder, when the person attainted had been executed, should be reversed by that person's heirs. The reasons for passing the Act must be looked for in the political necessities of the time. It was in i587 that Mary Queen of Scots had been executed.**

CIVIL PROCEDURE 587 The amerement gradually became merely formal, and finally disappeared \[1\]; but the law about costs has increased in bulk and complexity from the thirteenth century onwards.

There are some grounds for thinking that in all cases where damages were recoverable a successful plaintiff could recover costs under the name of damages \[2\]. But this rule did not apply where no damages were recoverable ; and in actions to recover land it is clear that only the profits of the land, and not damages, could be recovered \[3\]. Some changes were made in these rules in the latter part of the thirteenth century. The Statute of Marlborough (1267) provided that if a lord maliciously impleaded his tenants, on the pretext that they had made reoffments to defeat his wardships, they should be able to recover damages and costs \[4\]. The Statute of Gloucester (1275) allowed damages and costs to the successful plaintiff in certain real actions \[6\]; and laid down the rule that a plaintiff who recovered damages should always be entitled to costs. This rule was applied even when a later statute increased the damages payable for an existing offence \[6\]. But, if a later statute provided that a fixed amount of damages should be recoverable for a new offence created by it, Coke thought that no costs were recoverable by the plaintiff, unless under the express provisions of the statute \[7\].

These rules applied only to the original proceedings and not to proceedings in error, and, except in the single case provided for by the Statute of Marlborough, only to successful plaintiffs, and not to successful defendants. Both of these defects were partially remedied by statutes of this period. A statute of 1487 \[8\] provided that costs should be recoverable from those against whom the court had decided in the proceedings on a writ of error, or from those who had by their default discontinued the

### Law in Xvith and Xvith Cents.

proceedings. Statutes of I5311 and I5652 allowed successful defendants to recover costs in certain specified actions and courts; and in I607 defendants were allowed to recover costs in eall actions in which the plaintiff was entitled to costs.3

Footnote 1: I. I.

**CIVIL PROCEDURE**

procedure for summoning the jury, and for punishing jurors who failed to appear. A statute of 15481 gave persons, who wished to defend their rights as against an office found for the king, the power to traverse the office, instead of proceeding by the cumbersome method of a petition of right. Other statutes show that the inconveniences resulting from the growing centralization of the judicial machinery were beginning to be felt. In I514-15153 it was provided that the judges of the King's Bench might remove indictments, sent into that court to be tried, into the counties where the crime had been committed. In I576,4 in order to relieve the courts of common law of some of their business in term time, it was provided that issues joined in the Chancery or the common law courts should be tried at nisi prus at Westminster in term time, or four days after the end of the term. In I601 it was provided that writs to remove suits depending before inferior courts must be served before the jury appeared;4 and that if a personal action were begun in any of the superior courts for a less sum than 4os. the plaintiff should not be able to be awarded as costs a greater sum than he recovered in the action.5 We have seen that statutes of James I.'s reign recognized and strengthened the court of Requests set up in London by the Common Council for the trial of actions of Debt when the amount at stake did not exceed 4os.6 Another Act of his reign restricted the removal of cases from inferior courts of record to Westminster, if the judge of the inferior court was a barrier of three years' standing.7

Footnote 1: 2, 3 Edward VI. c. 8; below Pt. II. c. 6 SS r.

Footnote 3: 6 Henry VIII, c. 6. SS r8 Elizabeth c. r2.

Footnote 4: 43 Elizabeth c. 5. SS Ibid c. 6; vol. i. 74-

Footnote 5: 6 James I. c. 14; 3 James I. c. r5; vol. i 88.

Footnote 7: 24 James I, c. 23; vol. i 74; for a bill on these lines in I62o-I62r which failed to pass see Hist. MSS, Com. 3rd Rep. r8.

Footnote 8: 7 James I, c. 1o.

A statute of 1603-1604 imposed a penalty on any referee, to whom any cause had been committed by any of the courts at Westminster, if he directly or indirectly took any money or other reward for his report or certificate.8

Footnote 8: 7 James I, c. 1o.

If we look at this collection of statutes as a whole we cannot but see that the largest and by far the most important part of it is concerned with those branches of law, public or private, which were bound up with the economic and social problems of the age. And it is natural that it should be so. All questions relating to commerce and industry affected the state very nearly in this age

**540 LAW IN XVITH AND XVIITH CENTS**, of transition from medieval to modern ; and the problem of the Use was, in one of its aspects, a fiscal problem. This legislation was, on the whole, successful. By its means this transition from medieval to modern was effected in England with perhaps less friction than was experienced in any other country in Europe, and with the most beneficial results upon the development of trade, the organization of industry, and the settlement of the relations between the different classes of society. At the same time the settlement of the problem of the Use helped forward the development of that trust concept which can claim to be the most original contribution which English law has made to general jurisprudence. But, apart from uses and trusts, the legislature was content to leave the development of some branches of the criminal law, and of many branches of purely private law to the lawyers. It intervened occasionally to remove a grievance or to alter an inconvenient rule ; but the statutes which made these occasional changes show that the principles of the branches of law which they modified must be looked for elsewhere than in the statute book. Thus the law of contract and tort, some parts of the criminal law, and many parts of the land law, the development of equity, and of mercantile and maritime law, were left to almost entirely either to the common law courts, the Chancery, the Star Chamber, or the Admiralty. As in the preceding period, the lawyers not only developed on their own lines these important branches of the law, they also interpreted the statutes relating to all branches of the law. By means of this interpretation they worked their provisions into the logical system which they were developing. At the same time some of them, by their literary labours, which took many different forms, conferred great and lasting services upon all parts of the law, by recording, explaining, systematizing, and sometimes criticizing the results of the work of the law courts and the legislature. With these various activities of the lawyers and their influence upon legal development I shall deal in the three following chapters.

## Appendix A Appendix

I

THE JUSTICES OF THE PEACE

(i) THE CONTENTS OF LAMDARD's EURENARCHA

The Proheme.

Book I.--Conteining a theorique (or insight) of the office of Justices of Peace.

Chap. I.--What Justices of the Peace be, and why they are called Justices.

Chap. I1.--Of the signification of this word _Peace_.

Chap. I11.--Of such as had the Conservation of the Peace at the Common Lawe.

Chap. IV.--Of the first ordeining of the Wardens and Justices of the Peace,

by Statute Law.

Chap. V.--By whose authority, and by what means Justices of the Peace

be appointed : and of what sorts they be.

Chap. VI.--What manner of men the Commissioners of the Peace ought to be.

Chap. VII.--How many Commissioners of the Peace there ought to be in each County.

Chap. VIII.--The forme of the late reformed Commission of the Peace.

Chap. IX.--An explication of sundrie parts of the said Commission of the Peace.

Chap. X.--Of the Oaths usually ministered to the Justices of Peace.

Chap. XI.--Of the power absolute, and limited, that the Justices of the Peace have.

Chap. XII.--Of the jurisdiction, and Coertion, belonging to the Justices

of Peace.

Chap. XIII.--The Justices of the Peace be Judges of Record.

Chap. XIV.--How long time the authority of the Commissioners of the Peace is to endure : and by what means it may be suspended, or determined.

Book I1.--Containing the Practique of the Justices of the Peace, and of the Sessions.

Chap. I.--That all the authority of the Justices of the Peace is exercised,

either out of the Sessions, or at (or by reason of) the Sessions

of the I'eace, etc.

Chap. II.--What any one Justice of Peace (out of the Sessions) may doe to prevent the breach of the Peace, and therein of Surety of the Peace, and the good Behaviour, and of sundry things incident

to the same.

Chap. III.--What any one Justice of Peace out of the Sessions may doe concerning the staying or punishing of the Breach of the Peace without a multitude, against the person.

**APPENDIX**

Chap. IV.--What any one Justice of Peace out of the Sessions may do concerning the Breach of the Peace, without, or with a multitude, by Forcible Entrie into Lands or Tenements, etc.

Chap. V.--Of other breaches of the Peace, with a multitude : As by Riot, Rout, or other unlawful Assembly, etc., and what any one Justice of the Peace may do therein out of the Sessions.

Chap. VI.--What other things any one Justice of the Peace alone may do out of the Sessions, by vertue of Statutes mentioned in the Commission.

Chap. VII.--What other things one Justice of the Peace may do, out of the Sessions, by the power of other Statutes, not mentioned in the Commission, and therein of manslaughter, and all other Felonies.

Book III.--Conteyning the Practique of two (or moe) Justices of the Peace out of the Sessions.

Chap. I.--What things any two Justices of the Peace may do, out of Sessions : and therein first of Riots, etc.

Chap. II.--What things some two Justices of the Peace may doe out of the Sessions : and therein of Bailement.

Chap. III.--What things three or moe Justices of the Peace may doe out of the Sessions.

Chap. IV.--Of the reward and punishment of Justices of the Peace, for things done, not done, or misdone out of the Sessions of the Peace.

Book IV.--Intreating of the Sessions of the Peace, and of things incident or belonging thereunto.

The Proheme.

Chap. I.--The Description of the Sessions of the Peace.

Chap. II.--Who shall appoint the Sessions of the Peace : and how, and where.

Chap. III.--What persons ought to appeare at these Sessions, and therein of the Castos Rottolorum, the Records of the Sessions, and the Clarke of the Peace, and how the Jurors ought to be qualified and ordered, and of the privilege of the Sessions.

Chap. IV.--Of the Articles that are to be given in Charge, at the Sessions of the Peace.

Chap. V.--Of the Endictments, and Presentments, given by the Jurors : and of the Matter, and forme, and receiving, and rejecting of them.

Chap. VI.--Of the Presentments and Informations of Officers, and other men.

Chap. VII.--Of the impediments of proceeding upon Endictments, before the Justices of Peace, and therewithall of the Certiorari to remove Records.

Chap. VII.--Of the sandrie sorts of Processe upon Endictments and Informations : and of the Supersedeas for stay of them.

Chap. IX.--Of Hearing upon Confession.

Chap. X.--Of Hearing by Discretion.

Chap. XI.--Of Hearing (or Triall) upon Examination.

Chap. XII.--Of Hearing (or Triall) by Certificat.

Chap. XIII.--Of Hearing (or Triall) by Traverse.

Chap. XIV.--Of Trial upon Araignement, and therewithall of the Triall of Felonies, and what Pleas, or other helpes may be used therein.

**APPENDIX**

**Chap. XV.--Of judgement.**

**Chap. XVI.--Of the Processe for the Fine of the King, and of the assessing thereof : and of the Exterating for the King.**

**Chap. XVII.--Of Executorie Processe, and Execution, for the parties that sue, or for other persons : and of the restitution of goods stollen.**

**Chap. XVIII.--Of certifying the Records of the Sessions of the Peace to other Courts or Officers.**

**Chap. XIX.--Of the general (or quarter) Sessions of the Peace.**

**Chap. XX.--Of the Specaill Sessions of the Peace.**

**Chap. XXI.--Of the Rewards and Punishments due to Justices of the Peace in respect of their Sessions.**

**The Epilogue.**

**A Table containing (verie neere) all the imprinted Statutes, both generally and particular, wherewith Justices of the Peace have in any sort to deal. Now follow sundrie Enditements, Presentments, and Processes.**

**An Appendix \[containing an index to the Precedents set out in the Treatise\].**

**A Table of all the principally matters and words contenied in the Booke of the Office of Justices of Peace, observing the Alphabetically order.**

**(2) THE ARTICLES OF THE CHARGE given by justices of the Peace at Quarter sessions.**

**Lambard, Eirenarcha (Ed. 1619), 406-483**

**The points of the charge that wee have in hand, may be reduced to a few heads, and that after sundry sorts of distribution : of which (for examples sake) I will shew you some.**

**First thus,**

**1. All the matters inquirable, be either Ecclesiasticall, or Lay and Temporal : and these Temporal, be either high treasons, petit treasons, felonies, otherwise punishable and fineable offences : Or thus,**

**2. All these points, do either concerne God, the Prince, or Subject : Or thus,**

**3. The breach of these Articles, is offensive either against the first or the second Table of the Ten Commandements of God : Or thus,**

**4. All these matters be inquirable, either by vertue of the Commission of the Peace, and of the statutes therein implied, or else by power of the statutes not comprehended within the Commission : Or thus,**

**5. All these Lawes doe either command or prohibit things agreeing or repugnant to some of the four cardinal (or principally) vertues, Prudence, Justice, Fortitude, or temperature : Or thus,**

**6. All offences inquirable here, bee either voluntarie, involuntarie, or mixt : Or thus,**

**7. All these Ordinances doe either draw us to the good, or withdraw us from the evil, of the mind, the bodie, or fortune : Or thus,**

**8. Men doe offend these laws, either by doing nothing of that which is commanded : or by doing another thing then is commauded : or by doing that amisse, which is commanded well : Or thus,**

**9. These Lawes be offended, either by doing too much, or too little.**

**They may also be divided, by the variety of the punishments, & by some other accidental respects : all which I leave to the choise of such as shall give them in charge, and will now (for this time) set downe the Articles themselves, after the order of the first & third sort of division, pointing out in the first place the Ecclesiasticall causes, & then pursuing the Temporal.**

\*\*In which doing, first, I will omit all such statutes as do concerne but only

**APPENDIX**

some one, or a few particular places, knowing that I write to the most part, who have not to do with them.

The manner of

This charge,

Secondly, I will purposely pretermit the distinct rehersall of punishments,

conteyned in the statutes that I am to run throw: as well for brevities sake,

because those do rather pertaine to the Justices, then to the Jurors, as also

for that I have an ancient precedent or two to make for me: the one of the

Justices in Eire (who in their charge) did only read the articles in offence,

without using any mention of the paiens due unto the same.

As it appeared,

by _Bracton, Britton,_ and the small volume of the old Statutes, under the Title

_Capitula Itineris:_ and another like of the Articles delivered to the enquest

of Office in the kings bench, as is to be seen in the booke of Ass. lib. 27

pl. 44.

And yet, if in some speciall point it may bee serviceable, to have the paine

of the Law laide wide open (as in a great many through the lentitie thereof,

it will doe no good at all) the Reader shall find it for the most part quoted in

the margine here, and readie to be used by him.1

Footnote 1: I have omitted these marginal notes. I have also marked other places where

Lastly, I will neither recite all the parts of each general Statute by it selfe,

nor yet comprehend them wholly and fully with others: because the first of

these waies would be verie long, through the often iteration of the same things,

and the other would be so crooked and comberous (through the varitie and

difficite of the exceptions) that the hearer would bee many times lost, before

I should come to the end.

I know, that Mr. Fitzherbert was of the opinion, that the Justices of peace

ought at their quarter Sessions, and might at their privat Sessions, give in

charge to the inquest, all such matters as they have power to determin: and

this he urgeth, as well by the Oath of the Justices (who are sworn to do right

in all causes within their Commission, or the statutes) as also by the ignorance

of the Jurors, who be instructed only by the charge: which if it be so, I see

not (for my part) how either these Justices (that are bound to utter all, can

be discharged, or the Jurors (that ought to hear all) can be informed without

this, or some such compendious and plane way, that may both shortly for

the time, and lightsomely for the order, comprehend the chief substance of

all that which belonged to their Enquirie.

Howbeit, as I thinke it the best for the Justices, to rehearse all such points,

whereof the Jurie may make presentment before them: so yet, I hold them

discharged (in my slender opinion) if they unfold only the Articles of their

Commission, and of such other statutes as doe expressly authorise them to

make enquirie.

For, as there be sandrie Lawes that do give the Just. of the P. a certaine

speciali (or particular) power in them, & doe not yet yield unto them any

authority to enquire upon the same (of which sort be the statutes,

27 Hy. VIII. c. 7 of titles: the st. 35 Hy. VIII. c. 17 of wood: the

stat. 23 Eliz. c. 9 of Logwood, & sandrie others: So also there be divers others,

that do afford to the Just. of P. the power of hearing & determining, & yet

doe not expressly give them the name of Enquirie.

And, forasmuch as they may heare and determine of these, by Information

(given to themselves, and by them recommended to the Jurie) it

seemeth to me, that they be not so necessarily bound to give them in charge, but that

they be well enough discharged, if they be open & readie to receive the informations and presentations that shall be offered upon them: And of this

kind be the statutes of Highwaies (5 Eliz. c. 13 & 18 Eliz. c. 9) the statute of

fighting in Church or Churchyard (5 Ed. VI. c. 4) the statute of Informers

**APPENDIX**

(18 Eliz. c. 5) and sundrie others, whereof it would be superfluous to make rehearsal.

Nevertheless, because I will not that my fantasie shall either stand against his judgement, or be prejudicially to other mens profit, I have contended (what I may) to deliver the principal and most serviceable parts not only of the Commission and of such Lawes as doe specially conteine their inquirie within them, but also of all such other statutes as may bee heard & determined by Justices of the Peace at any their Sessions : and that in so narrow a roome, as (if I be not after some proofe, deceived) they may be distinctly read over in a couple of houres, at the most : So alwaies, that the varieties of the punishments, the yeeres of the kings and their Parliaments, and such other Notes as fall in by the way, bee left unread and be passed over.

_Ecclesiastici Causes_

If any person have (within this halfe yeare) by writing, printing, teaching, Ertoll any for-preaching, expresse deed or act, advisedly, maliciously and directly affirmed, right power.

holden, set forth, or defended the authoritie, preheminence, power, or jurisdiction Spirituall or Ecclesiasticall, of any foreine Prince or person whatsoever heretofore claimed, used, or usurped in this Realme, or any the kings Dominations, or have advisedly, maliciously, and directly, put in use or executed any thing for the extolling, setting forth, or defence of any such pretended or usurped jurisdiction, preheminence, or authoritie, or any part thereof. Or if any person (compelable to take the Oathe of Recognition of the kings Majestic to be supreme Governor in all causes within his Dominations) have refused to take the said oath, after lawfull tender thereof to him made, t Eliz. c. 1; 5 Eliz. c. 1 enquirable by words of 23 Eliz. c. 1.

If any person, under the kings obedience, have at any time (within this Pope, yeere) by writing, cyphering, printing, preching, or act advisedly holden, or stood with, to extoll, or defend the power of the Bishop of Rome, or of his See hertofore claymed or usurped within this Realme : or by any speech, open in deed, or act, advisedly attributed any such maner of authoritie to the said See of Rome, or to the Bishop thereof, within any the Kings Dominations, ye shall present him, his abebettors, procurors, counsellors, ayders, and comforters. 5 Eliz. c. 1.

If any person have by any means practised to absolve, perswade, or with- Withdraw any draw any other within the kings Dominations from their natural obedience or from obedience. (for that intent) from the religion now established here, to the Romish religion, or to move them to promise obedience to the See of Rome, or other estate : Or if any person have been willingly so absolved, or withdrawne, or have promised such obedience.

And if any person have willingly ayded or mainteyned any such offender, or knowing such offence have concealed it, and not within XX daies, disclosed it to some Justice of Peace or other higher officer. 23 Eliz. c. 1.

If any subject of this Realme have after the X day of June in the yeere Depart out of the of our Lord God 1606 gon out of this Realme to serve any foreign Prince, foreign pelos.

State, or Potentate, or have after the said tenth day passed over the Seas, and there hath voluntarily served any such foreign Prince, etc., not having taken the Oath expressed. 3 Jac. cap. 4 before the Customer & Controller of that port, haven, or creeke where he had passage.

If any Gentleman, or person of higher degree, or any person which hath borne any office or place of Captain, Lieutenant, or any other place, charge, or office in Campe, Armie, or Companie of Souliers, or Conductor of Souliers, have after gone voluntarily out of this Realme to serve any foreign Prince, State or Potentate, or have voluntarily served any such Prince &c, . VOL. IV.--35

**APPENDIX**

before he become bound by obligation, with two sufficient sureties unto the king, his heirs or successors, according to this Act. 3 Jac. c. 4.

**Muse.**: If any person have $(1)$ said or sung Masse : or have willingly $(2)$ heard Masse. 23 Eliz. c. 1.

**Bull.**: If any person have used or put in use, any Bull, Writing, or Instrument of Absolution or reconciliation, or of other sort, gotten from the Bishop of Rome, or See of Rome, or from any person clayming authority from the same : Or have by colour of any such taken upon him to absolve or reconcile any person, or have published any such Bull or Instrument : Or if any person have received such absolution, or have procured, abetted, or counselled any such offendor, to the intent to uphold such offence.

It any person have (after such offence) ayded, comforted, or mainteyned such offendor, to the intent to uphold the authoritic of the said See of Rome.

If any person (to whom such Bull or Instrument hath been offered or persuaded) have not within six weekes next after signified the same to some of the Kings privie Councell, or the Kings privie Councell, or the Lord President of the North, or of Wales.

If any person have brought hither from the Bishop or See of Rome, or from any person authorised, or claiming to be authorised by any of them, any Agnus dei, crosses, pictures, beads, grains, or such like superstitious things, and have the same delivered, or caused, or offered to be delivered to any the kings subjects to use or weare in any wise : and if any person have to such intent received or taken the same, & have not apprehended the offerer thereof, nor within three daies after disclosed him to the Ordinarie, or to some justice of the P., nor within one day delivered the thing to some Justice of the Peace. 13 Eliz. c. 2, 23 Eliz. c. 1.

**Iesuits and Seminario.**: If any person (being at libertie or out of hold) have since the viii day of May, in the 27 yeere ot the raigne of the late Queene Elizabeth.) wittingly and willingly, received, ayded, or mainteyned, within any part of his High-nese Dominations, any \[esuit, Seminarie Priest, or such other Priest, Deacon, or Religious, or Ecclesiastical person, being borne within this Realne, or any his Highnese dominations, and (at any time since Midsomer, in the first yeere of the said late Queene Eliz. raigne) made, ordeyned, or professed by any authoritic derived, challenged, or pretended from the See of Rome knowing him to be a Jesuit, Seminarie priest or other such Priest, Deacon, or Religious, or Ecclesiastical person. 27 Eliz. c. 2.

**Cojuration.**: If any person have used Invocation, or Conjuration of any evil spirit, or have consulted, covenanted with, entertained, imploied, fed, or rewarded any evil spirit for any intent, Or have taken up any dead man, woman, or child or any part of any dead person to be used in any manner of witchcraft, sorcery, charm, or inchantment, Or have used witchcraft, inchantment, charme, or sorcerie, whereby any person hath bin killed, destroied, wasted, consumed, pined, or lamed in his bodie, or any part thereof.

**Felony,**: If any person have undertaken by Witchcraft, Inchantment, Charme, or Sorcerie, to tell in what place any treasure of gold or silver might be found, Or where goods lost or stollen should be become, or to the intent to provoke any person to unlawful love, or to destroy, or impair any persons goods, or to hurt any person in bodie although the same were not effected. 1 Jac. ca. 12.
**Prophecrying.**: If any person have within these sixenties advisedly advanced, published and set forth by writing, printing, open speech, or deed to any other person, any fantasticall or false prophecie, upon arms, fields, beasts, or badges, or upon any time, name, blood shed, or warre, to make thereby rebellion, dissention, lose of life, or other disturbance within the Kings Dominations. 5 Eliz. c. 1.
**Perjurie.**: If any person have unlawfully procured any other to commit wilfull &

**APPENDIX**

corrupt perjurie, in any cause depending in suit in any of the Kings Courts of Record, or in any Leete, Court Baron, hundred, or court of ancient demesne or have coruptly suborned any witnesses sworne to testifie _in perjouran rei memorian :_ or if any person have upon such procurement, or by his owne act wilfully committed such Perjurie. 5 Eliz. c. 9 and 14 Eliza. ca. 11, I Jac. c. 25.

If any person have of purpose, maliciously or contentpuously molested, or Disturbe a by any unlawfull meanes misused any preacher lawfully authorised in any Preacher. his open Sermon or preaching, in any Church, or other place used, or to be appointed : and who were his aiders, procurers, or abetters. 1 Ma. c. 3. _Learn if this statute do stand for this part_.

If any person have (within these 3 months) by contemptuous, or reviling Sacrament, words, or have advisedly in any otherwise deparved, despised or reviled the blessed Sacrament of the bodie and blood of Christ. 1 Ed. VI. cap. 1, & I Eliz. cap. 1.

If any Parson, Vicar, or minister have refused to use the Common Service and prayers, or to Minister the Sacraments according to the Booke of Common Sacraments, prayers : or (wifully standing in the same) have used any other forme in open prayers, or in administration of the Sacramentes, or have spoken any thing in derogation of the sayde Booke, or any part thereof : Or if any person have in any play, song or rime, or by any open word, spoken in derogation of the said booke, or of anything therein contained : or have caused or maintained any person, vicar, or minister, to say any common praier, or to minister any Sacrament in other maner, then after the said booke : or have interrupted any Parson, Vicar, or minister to say open prayer, or to administer any Sacrament according to the sayd Booke. 1 Eliz. cap. 1 & 23 Eliz. cap. 1.

If any person (being above the age of xvi yeres, & not having lawfull & Repaire to reasonable excuse to be absent) have not repaired and resorted unto his or Church, her parish church or chappell accustomed, or (upon let thereof) to some usual place where common prayer is to be used, upon every Sunday, and other I Holy day : and have not there orderly and soberly abiden, during the time of such common prayer, Preaching, or other service of God : and how long such person hath forborne so to reapaire and resort. 1 Eliz. cap. 2 & 23 Eliz. cap. 1. See 3 Jac. cap. 4.

If any person have willingly maintained, retained, relieved, kept, or Keeping a re-harboured any Servant, Sojourner, or stranger not repayring to some Church, cusant in his Chappel or usuall place of Common prayer, to heare Divine service, by the space of one Moneth together, not having a reasonable excuse (other then such as harboredeth his father or mother not having other sufficient maintenance, or the ward of any such person, or any person committed to the custodic of any by authorite) or have retained or kept in service, fee, or liverie any not repairing to some Church, as before, by the space of a moneth together, knowing the same. 3 Jac. cap. 4.

If any Popish Recusant convicted having conformed him or her selfe, Conformed Recusant, have not within the first yere after hee or shee hath conformed him or her cusant. selfe, & after the said first yeree, once in every yeare following at the least, received the blessed Sacrament of the Lords Super in the parish Church, where he or shee have most usually abiden within the said yeere, & if there were no such parish church, in the church next adioyning. And if he or she having received the said Sacrament as aforesaid, have after effsoones offended in not receiving the same as is aforesaid by the space of a yeare. 3 Jac. cap. 4.

If any Popish recusant, or other Seditious Sectarie, which is by any the popish recusants statuts (35 Eliz. c. 1 & 2), to be abiured this Realme and all his Majesties and seditious sectarie.

**APPENDIX**

Dominions have either refused to make such Abjuration, or making it, have not gone to such haven within such time, as was to him therefore appointed, and have not from thence departed this Realme : or after such departure have returned into any his Majesties Dominions, without his speciall licefce. 35 Eliz. c. i & 2, I Jac. c. 25.

Schoolmaster. If any person have kept or maintained any Schoolemaster which resorteth not to the Church, or is not allowed by the Bishop or ordinary of the Diocese. 23 Eliz. c. i.

Fighting in

Church or

Churchyard. Church, or Churchyard, or drawn any weapon there to that intent. 5 Ed. VI. c. 4.

Faire or Market

in Churchyard.

Rob Church or

Chappell.

_Felonies in Lay Causes_

Servant and

Master, husband

and wife, clarke

and petite.

If any person have (of prepensed malice) killed or murdered another, openly or privily, whether he that was killed were an Englishman or a stranger, living under the protection of the king.

Polasoning

Murd.

If any have wilfully killed any other by poisoning : and who be his aiders, abettors, procurers, and counsellors. 1 Ed. VI. c. 12.

Stabbing

Murd.

If any person hath stabbed or thrust, another, that hath not then any weapon drawn, or that hath not then first stricken the party so stabbing or thrusting, so as the partie so stabbed or thrust have died thereof within sixe monthes after. 1 Jac. c. 8.

Manslaughter. If any person have by chance-medly feloniously killed another.

Cut out tongue or put out eites.

Of any person have of malice prepensed, cut out the tongue, or put out eites.

Gooler handling

starily his

principle.

I amy Gaoler, keeper, or underkeeper of a prison, have by duresse and paincepelled any his prisoner, to become an appeacher of others against his will. 14 Ed. III. c. 17.

Buggerie. If any person have committed the detestable vice of Buggery with man or beast. 25 Hy. VIII. c. 6 & 5 Eliz. c. 17.

Rape. If any man have ravished a maid, widow, or wife, above tenure yeeres of age, against her will, though she consented afterward. W. II. c. 34.

Child. If any man have carnally knowne and abused a woman child, under tenure yeeres of age, though she consent before. 18 Eliz. c. 7.

Tale woman. If any person have taken a maiden, widow or wife, having lands, or goods, or being heire apparent to any, against her will unlawfully, (other than his ward or bondwoman) : and of his procurers, abettors, & receivers, knowing thereof. 3 Hy. VII. c. 2.

Marrie, the former husband or wife living.

If any person being married, shall marie any other, the former husband or wife being alive (other then such person, whose husband or wife hath remained beyonde the Sea seven yeares together, or hath absented him or herselfe one from the other seven yeares together within the kings Dominions, the one not knowing the other to be living, or that was at time of such marriage lawfully divorced, or whose former marriage hath by sentence Ecclesiasstell been declared to be void, or whose former marriage was had within age of consent.) 1 Jac. c. 11.

Robberie. If any person hath robbed another, going or riding by the way, or otherwise, how much or how little soever it be that hee taketh from him : or have privily and fraudulently picked or cut the purse of another, being upon him. 18 Eliz.

**APPENDIX**

cap. 4. Or hath robbed any house by day, or by night, any person being in Robbe house, the same, or thereby put in feare : Or have robbed any person in any part of his dwelling, the owner, wife, children, or servants beeing therein, or within an other place within the precinct thereof, and then being waking, or sleeping : Or have robbed any person being in a Tent or Booth, in a faire or Booth or tent. market, the owner, his wife, children, or any servant being then within the same, sleeping or waking. 5 Ed. VI. cap. 9. Or hath robbed by day time (though no person were then therein) any dwelling house or othouse there to used, and hath taken thence goods to the worth of above. 39 Eliz. c. 15.

If any person or persons, have feloniously taken the goods of any other : Larceny and and whether the same bee above twelve pence in value, or under.

If any Purveyor for the kings Majiesties house, or his Undertaker, Deputie, Purveyora, or servant, have made any Purveiance without warrant, and have carried any thing away against the consent of the owner, being above twelve pence in value. 28 Ed. I. c. 2, 18 Ed. II. cap. _ultin._, 5 Ed. III. cap. 4, 2 & 3 Phil. and Mary cap. 6.

If any Purveior of the K. or his undertaker, deputie, or servant, have taken any carriage in any other manner then is contained in his commission. 36 Ed. III. cap. 2. Or have made purveiance without the testimonie and appraisement of the Constable, and fource honest men of the towne, & without delivering tales or Indentures under his seale, testifying his purveiances, the goods being above 12 pence in value. 5 Ed. III. cap. 2, 25 Ed. III. cap. 1. Or hath taken any sheep with their wools between Easter and Midsomer, at small prises, and caried them to his owne house, and shore them. 25 Ed. III.

**c. 15.**

_Quaere_, if the felonie of Purveiors (made 36 Ed. III. c. 6) be not altered by 23 Hy. VI. c. 14.

If any person have found a Falcon, Tercelet, Lanor, Lanneret, or other Hawkes, Falcon that was lost, and hath not forthwith brought it to the Sherife, that hee might proclame it, but did steale and carrie away the same. 34 Ed. III, c. 22, 37 Ed. III. c. 19.

If any servant (being 18 yeres of age, and not being an Aprentice) hath Servant embone away with or hath converted to his own use, any money, jewels, goods **beceling goods** delivered. or catlets of his masters, or mistresses, and of his or her deliverie to keepe, of the value of xl. s. to the intent to steale the same. 21 Hy. VIII. c. 7, 5 Eliz. c. 10.

It any person have by night broken any house, tower, walks, or gates, and Burglaria. hath entered in with an intent to doe any robberie murder, or other felonious act there : or if any person have burned any dwelling house : or have by night **Burne house** or **b**urne\*\* house\*\* or **b**urne\*\*.

If any person imprisoned for felonie, have broken the prison. I Ed. II. Breake prison. Or if any other person have broken the prison for such a prisoner, by which he escapeth : or if any Gaoler have willingly suffered such a pri-oner to escape : & if any person, being arrested for felonie, have been rescued, and by whom.

If any person, having the charge or custody of any Armor, Ordinance, Convey muml. Munition, Shot, Powder, or habiliments of Warre of the K. Majiesties, or of tion or victuals, any victuals (provided for the victualling of any Souldiers, Gunners, Marinets, or Pioners) shall for any lucre, or gain wittingly, advisedly, and of purpose to hinder or impeach his Majiestice service, embesile, or convey away any of the same to the value of xx shillings at once, or at severall times, 31 Eliz. cap. 4.

If any person have unlawfully hunted in the night, in any Forest, Parke, Hunting by or Warren, or with painted faces, vizors, or other disguisings, to the intent to night, be unknowne, and have upon examination by one of the K. Counsel, or by a Justice of peace of the same shire, wilfully concealed such hunters or hunting,

**APPENDIX**

or have disobeied any arrest for such hunting, or made rescue to any person warranted to arrest such hunter so that the warrant was not executed. 1 Hy. VII. c. 7.

Multiplying.

If any person have practised the arte of multiplication of gold or silver. 5 Hy. IV. cap. 4.

Convey sheep.

If any have the second time brought, sent, or received, into any ship or bottome, any rams, sheep, or lambs, being alive, to be conveied out of the K. Dominations, or procured the same. 8 Eliz. c. 3.

Infected with

If any person infected with Plague, and commanded to keep house, have wilfully and contemptuously gone abroad and conversed in company, having any infectious sore upon him uncured. 1 Jac. cap. 31.

Rebellious

Assmellies.

If any persons (of or above the number of twelve) have beene assembled, and have entended, gon about, and practised with force of arms, unlawfully to change any laves of this realm or to cut or cast downe any inclosuer of parke, or inclosed ground, or the bankes of any fishpond, or any conduit head or pipe, to the intent they should lie open, or void, or to have any Common or way there : Or to destroy the Deere or Conies in any Parke or Warren, or Dovchouses, or fish in Poole, or in Pond, or to cut downe any houses, barnes, milles, or hayes, or to burne any stack of cornea or granite, or other usuall sustenance of men : and (being commanded by the Sherife or any Justice of the peace of the shire, or by the Maior, Sherife, Justice of the peace, or Bailfiles of the city, borough or corporat towne, where the assembly was, by _proclamation in the kings name to depart to their houses) have notwithstanding continued together one hour after, or have after that, forcibly attempted to do any such thing._

And if any person have unlawfully by ringing of Bell, sounding of Trumpet, Drumme, Horne, or other Instrument, or by firing of Beacon, or by malicious speech, or Outcry, or by setting up, or casting any writing, or by any other act raised, or caused to bee raised twelve persons, or have, in such maner and to any such intent as is aforesaid, & they (being commanded by proclamation, as before) have nevertheless continued together one hour after or have afterward attempted forcibly to do any of the said things : And if any the wife, or servant of any the said assembled persons, or if any other person have willingly & without compulsion delivered or conveied money, harnesse, weapon or victual to any of the said persons assembled during their aboard together as before, And if any person have hundred or hurt any that did proclaim or went to proclaime, as before : & if any parties so assembled (knowing of that hindrance, or procuring it) have nevertheless afterward committed or put in use any the things aforesaid : And if any persons (to the number of fortie or moe) have so assembled to the intent to do any the said things, or any other felonious or rebellious act, and have continued together three hours, after such proclamation made, at or nigh the place of assembly, or in some market towne next adjoving, and after notice to them thereof given. 1 Mar. Parl. c. 12 & t Eliz. c. 16.

Souldour

Mariner, or

Gunner departing

If any Souldour (centred a Souldour of Record) and having taken part of the kings wages, or any Mariner or gunner (having takn prest wages to serve the king on the Sea) have not accordingly gone to his captain (unlesse he were letted by notorious sickness, or other impediment from God) or have departed from his Captain, without his licence under his seale. 18 Hy. VI. cap. 19, 2 and 3 Ed. VI. cap. 2, 4 and 5 Phil. and Mar. cap. 3, and 5 Eliz. cap. 5. But consider whether this entire of Record have any use now.

If any strangers, calling themselves, or being commonly called Egpitans, have remained in the Realme one month : And if any person (being foueteene yeeres of age) which hath beene seene, or found in the fellowship of such Egyptians, or which hath dignified himselfe like to them, have remained

**APPENDIX**

heere, or in Wales by the space of one moneth, either at one time, or at several times. 1 and 2 Phil. and Mar. cap. 4, 5 Eliz. cap. 20.

If any dangerous Rogue, that was banished the Realme, or adjudged perpetually to the Galleyes, have returned into the Realme without lawfull licence. Roger.

39 Eliz. c. 4, 1 Jac. c. 25.

If such Rogue after he hath beene branded in the open Sessions with a Romane R. upon the left shoulder, and sent to the place of his dwelling, the place where he last dwelt by the space of a yeare, or the place of his birth, to be placed in labour, have offended againe in begging or wandering contrarie to the statute. 39 Eliz. c. 4 or this Act, 1 Jac. c. 7.

If any Souldier, or Mariner, or other person (as Souldier or Mariner) have Idle Souldier wandred idle, without setting himselfe to service, labour, or other lawfull and Mariner. course of life, and hath not repaired to his place of birth, or dwelling : and had not a lawfull Testimional from a Justice of peace, of or neere the place where he landed : or hath counierfeited such Testimonially, or hath carried the same (knowing it counterfeit:). 39 Eliz. c. 17. 1 Jac. c. 25.

If any person have commanded, counselled, waged, or procured to be Accessaries committed any petit treason, murder, manslaughter, Rape, Robberie, burglary, or other the felonies aforesaid.

If any persons knowing the said Felons, have received, comforted, aided, Accessaries abbettted, or favoured them, before their attainder, or after.

_Hitherto of Felonies and their accessaries in Lay causes, all which are punished by the pains of death, except petit Larceny._

If any person have mainly another of any member, whereby he is the Maine lesse able to fight as by putting out his eye, striking of his hand, finger, or foot, beating out his foreteth, or breaking his Scul : And of their Accessaries.

If any have committed unlawfull assault, beating, wounding, or such like Trespasses, trespasse, against the bodie of any man : Or have with force & a against the Law taken the goods of another, or have done any trespass in the lands of another, _Commission of the peace._

If any Ordinarie, Archdeacon, Officially, Sherife, Escheator, Coroner, Exterior, Undersherife, Bailfe, Gaoler, or other officer, have by color of his office, or for doing his office, taken a greater or more excessive reward or fee then belongedt to hum : or have taken any fee or reward for expedition in doing his office or have unlawfully exacted any oath or other undue thing, _Commission of the peace._

If any Escheator (other then of such a Citie, borough, or towne, as hath Escheator, anthoritie to make Escheators within themselves by Letters Patents of the king, or his progenitors) have taken upon him that Office in this shire, or occupied in this shire, or another, and had not then in this shire, lands, tenements, or rents, for life at the least of 2ol, by yeare : or have sold or set to ferne that office, or made any deputies for whom he will not answer, and whose names he hath not certified within 20 daiies after into the Eschequer. 12 Ed. IV, 9.

Of if any Escheator hath taken for the execution of any _Dieu clausit extremum_, or other Writ in one Countie, above xls. in all : or that xls. where the lands are not found to be holden _in cupite._ 23 Hy. VI, cap. 17 and Fitzh. 143. Or hath taken for the finding of any office of lands (not exceeding five pounds by yeere) above xvs. in all, for all things thereof. 33 Hy. VIII. c. 22.

If any Sherife have letten his Countie, or any his Bailiwkes, Hundrednes, Sherifes and or Wapentakes ; or have returned in any pannels, any bailiifes, officers, or their Ministers etc.

their servants, or servants servants, or have refused to let to Baile (upon sufficient sureties) any person being in his custody, because of any action personal, or because of endictment in trespass, & not being in for any Condemnation, Execution, Utaharie, Excommunication, Suretie of the Peace,

**APPENDIX**

or commanded of any Justice, or for being a vagabond : Or have taken any obligation by colour of his office, but only to himselfe, and upon the name of his office, and upon condition only to appeare according to the writ or warrant : or have taken for an arrest above xxd. Or if he, or any other minister, have taken any thing for making of any Returne or : Pannel : or above 4d. for the copy of the Pannel or above 4d. for the said obligation, or for any warrant or precept : or any Bailife above 4d. for making any arrest : or the Gaoler above foune pence upon the committing to his Ward of any person arrested, or attached. 23 Hy. VI. c. 10.

**Sherifle arrest.**

**lig or levigine**

**fine for Balticments in his turns,**

**turne,**

**APPENDIX**

If any Coroner have refused to doe his office upon the view of a dead body Coroner, by misadventure, without taking any fee therefore. 1 Hy. VIII. c. 7. Or have taken upon the view of the dead bodie of a man slaine or murdered, above xiiis. iiiid. of the goods of the slayer or murderer, if he had goods, or (otherwise) of the Towne where he was slaine in the day time, and was suffered to escape. 3 Hy. VII. cap. 1.

If any Ordinarie, or his Scribe, or Register, have taken moe, or greater fees, Ordinarie for the probate of a Testament, or for Letters of Administration, then hee ought to take, that is to say, 6d. for the Scribe, for writing the probate of a Testament, that shall be brought written in parchment, and likewise sixe pence for the Administration, where the goods of the Testator or Intestate, bee not above v. li. If the goods be above five pounds, and not above fortie pounds, then two shillings sixe pence for the Corlinarie, and twelve pence for the Scribe. If they exceed fortie pounds, then two shillings sixe pence for the Ordinary, and ijs. 6d. to the Scribe, or else one penny for every tenne lines at ten inches length, at the Scribes election : the like shall bee given for every copie of a Testament or Inventory, or else after the rate of lines as before. 21 Hy. VIII. cap. 5.

If any person, Vicar, or Curate, have taken above foure pence for entering Parson. Vicar, into the Church Booke the licence of a sick person to eate flesh upon the fish Curate, days. 5 Eliz. cap. 5. Or above two pence for Registring of a Testimonially of any servant, departing from one place to another. 5 Eliz. c. 4.

If any spiritual person (or any other for him) have taken Mortuarie (or corps Mortuary, present) or anything for the same in any place, where the same was not used to be given before the one and twentie yere of K. Henry the eight : or taken (in places where Mortuaries were then used) any thing for a Mortuary where the goods of the dead person were under ten markes : or more than three shillirgs foure pence therefore where the goods were of the value of ten markes, and under thirtie pounds : or above six shillings and eight pence therefore, where the goods were under xl. pounds : or above ten shillings where the goods were above xl. l. 21 Hy. VI. c. 5.

If the Clerke of the Peace have taken above twelve pence for the enrolling Clerke of the the bargaine and sale of any land, not exceeding forty shillings by the pence. yeare ; or above two shillings 6 pence if the land exceed that value by the yeare, 27 Hy. VIII. c. 16. Or have taken above two shillings in all, for any licence and Recognisance of a badger, drover, kidder, or lader, and for the Registring thereof, 5 Eliz. c. 12. Or have taken above xijd. for a Recognisance of him that taketh a Kogue into his service for one yeere. 14 Eliz. cap. 5.

Or if the Clerke of the Peace or the town-clerke have not accepted, entered, and recorded without fee, the presentments at the quarter Sessions of the monethyl absence from Church of popish Recusants, and of the names of their children of nine yeres old and upward, biding with their parents, and of the names of the servants of such Recusants, appointed to be made by the Churchwardens and Constables or some of them, or by the chiefe Constables of the Hundred, according to the statute. 3 Jac. cap. 4.

If the Clarke of any Justice of Peace have taken above xijd. for any Re- Jauticas Clarke, cognisance of an Alehouse keeper, or Tipler. 5 Ed. VI. c. 25.

If the Clarke of the Market have taken any common fine, to dispense with Clarke of the fauIts : or hath ridden with moe then five horses, or hath tarried longer in market, the countrie than the necessitie of his businse required. 13 Rich. II. c. 4.

If any officer have in any Towne taken Scavage, or Shewage (that is to Savage, say) any thing for the shewing of ware, or marchandize that be truly customed to the King before. 19 Hy. VII. c. 8.

If the Mayor of this Towne of Maidstone (and so of other townes in other Scale weights, shires) have taken above one penny for sealing a bushel measure : or above

**APPENDIX**

one penny for sealing an hundred weight, or above a halfe penny for halfe a hundred weight, or above a farthing for any lesse weight. 7 Hy. V1I. c. 3, and 11 Hy. VII. c. 4.

Churchwarden

If the Churchwardens & Constables of every town, parish, or chappel,"or some one of them, or where there be none such, the Constable of the hundred,

hath not once every yere presented at the quarter Sess. the monthly absence

from church of Popish recusants, and the names of every of their children

(of $g$ yeres old & above, abiding with their parents) & as neere as they

could the age of the said children, and the names of the servants of such

Recusants. 3 Jac. c. 4.

Churchwardens.

If any Churchwardens and overseers of the poore, (to whom the money

forfeited by 4 Jac, for uttering of Ibeere or Ale to Tiplers unlicenced, bath

been paid by the Officer or other person, that hath

level or received the same) have not within convenient time truely bestowed the same amongst the

poore. 4 Jac. c. 4.

Parveiors.

If any Purveiors of the kings Ma. have taken any thing of the value of xls.

Constable.

or under without readie payment therefore made : if any Constable or Borsholder.

sholder have not (upon request made) assisted the owners to resist the

Purveiors so taking. And any of the kings officers have procured any to be

arrested or vexed for such resistance. 20 Hy. VI. c. 8, and 23 Hy. VI. c. 2.

If any Purveior of timber have felled for the kings use any Oaken timber

tree, meet to be barked, but only in barking time (other then trees for building or repairs of the Kings houses or ships :) Or have taken any profit by the

lops, tops, or barke of any trees taken by him : Or have taken from the

owner any more of any tree then only the timber of the same tree. 1

Jac. c. 22.

If any Purveior have taken anything of any man, to the end to spare him :

or have taken come by any other measure then by the striked bushel, or by

any more then eight such bushels to the quarter : or have taken carriage

therefore, without making readie paiment. 25 Ed. III. c. 1, 36 Ed. III. c. 3, and 1 Hy. V. c. 10.

Informer,

If any common Informer or Promoter (as he is commonly called) have

compounded or agreed with any person, for any offence against any pemall

Lawe, without the order or consent of some of the Courts at Westminister,

or have willully delayed or discontinued his suite once commenced. 18 Eliz.

cap. 5, and 27 Eliz. cap. 10.

Huy and Cry.

If any man have raised Huy and Cry without cause, or (being raised) upon

good cause, have not been ready at the comandement of the sherife, or at

the Huy and Cry of the Countie, to pursue and arrest felons, or such as have

dangerously hurt any man : And if the Sherife or any Bailifs have not

followed such Huy and Cry with horse and Armor. W. I., 3 Ed. I. c. 9,

3 Ed. I. _Offimum Coronatoris_, Stat. Winch. 13 Ed. I.

If the watch in every Borough and toune have been kept from Sun rising

to Sun setting, betwecene Accession day, and Michaelmas day, to arrest

strangers that passe by in the night season. Stat. Winton. 13 Ed. I.

Highwaies.

If any lord of the soile have not enlarged the highway from market to

market so that no dike, bush, nor tree (except great trees) bee within two

Ride or goe

armed.

If any persons (except the kings servants and officers in doing their

services, and their companie, aiding them in that behalfe) have ridden or gone

armed, by day or by night : or have brought force in affraie of the people

before the kings Justices, or otherwise. Stat. Northamp. 2 Ed. III. c. 3.

Escape by

negligence.

If any person arrested, or imprisoned for felonie, have bin negligently

suffered to escape. 1 Rich. III. c. 3.

If any be a Barretor, or a common quarrellor, or otherwise of evil name

**APPENDIX**

and fame. 34 Ed. III. c. 1. Or a maintainer of quarrels, or an Embracer Barretors. Maintainers.

of Junies. 33 Hy. VIII. c. 10, and 37 Hy. VIII. c. 7, and 38 Ed. III. c. 13- Embracers,

. . . . If any be a _Champarlow_, that is to say, one that mooevth pleas or suites, Chapmetors, or tauseth or procureth them to be mooved at his ovine costs, to the end to

have part of the land, or other thing in variance. 33 Ed. I.

If any Juror in any Inquest here, have taken any thing of any man to Juror.

make his presentment favourable.

If any person have by himselfe, or other for him, given any Liverie of signe Liveries of

or company, or badge, or retained any man, other then his houshold servant,

Badgea,

officer or learned man in the Lawe. 1 Hy. IV. c. 7, 2 Hy. IV. c. 22, and

8 Ed. IV. c. 2.

If any companie of men (other then men of fraternities, and men of Artes

in Cities and Boroughs) have made any one general sute of cloth,

hoods or

hats amongst them, to bee known by. 7 Hy. IV. cap. 14.

If any person have by writing, or open speech notified, that the eating of Fish.

fish, or forbearing of flesh, upon any daies, now usually observed as fish

daies, is of necessitie for salvation of Soules, or is the service of God,

otherwise then as other politike Lawes bee. 5 Eliz. cap. 5.

If any person have falsly and deceifully gotten into his possession any False tokens or

money, or any other things of any other mans, by colour or false privic token,

etcrs.

or of counterfeit letter, made in another mans name. 35 Hy. VIII. c. 1.

If any person (above the age of seven yeres) calling himselfe a scholler, Who be Rogues,

hath gone about begging: Or if any Seafaring man (not having suffered

shipwracke, nor having a lawfull testimonil from a Justice of Peace, of, or

neere the place where he landed) have gone about begging or have trans-

gressed such Testimonil: Or if any Idle person have gone about begging,

or have used any subtill craft, or unlawfull game or play, or have feined

knowledge in Phisisiopnomy,

'Palmestry, or other like crafte Science, or have

pretended to tel Destnies, Fortunes, or such like phantasticall imaginations:

Or have uttered himselfe to be a Proctoru, Procurer,

Patent gatherer, or

Collector, for any Gaole, Prison, or Hospital: Or if any fencer,

Ieareward,

Minstrel, or common

'Player of Enterluds, Angler,

Tinker,

Peller,

,

**APPENDIX**

endevored to levie such assesses : or have absented themselves from their monthly meeting, or have not accounted as they ought. 39 Eliz. cap. 3.

If any Parents or children, being of sufficient abilities, have not relieved their poorer and impotent children or parents, at their owne charge, in such sort as hath at any Quarter sessions of the peace been appointed for them to do : Or if the Minister of any Parish have not kept a Register booke of the testimonials for Rogues. 39 Eliz. cap. 3 and 4.

If any persons (to the number of three or above) have beene riotously assembled, to beate any man, to enter upon a possession, or to do any such unlawfull act, & have done it indeed, or attempted to do it : Or have beene assembled together in Routs for any common quarrell, or otherwise unlawfully against the K. Maiesties peace. 2 Hy. V. cap. 5. _Commission_, under the name of Conventicles.

Refinitions as:

If any persons (above the number of two, and under twelve) being assembled, have intended unlawfully with force to murder or stay any of the king's subjects : or to cut or cast downe any inclosure, or bankes or any fish-pond, or conduit head or pipe, or to do any the deeds (mentioned in unlawfull assemblies before) and have not departed upon proclamation, but have attempted to do any of these things.

Or if any person (being moved to make any rebellious assembly) have not within twenty foure hours after disclosed the same to a Justice of the Peace, or to the Sherife : Or if any person have stirred or procured any other to make such assembly. 1 Mar. Par. 1 cap. 12, 1 Eliz. cap. 17.

Lying in await. 1 If any have lien in awaite, to maine, or kill any other.

Foredible entries. 1 If any have entered into lands or possessions with force, or entering peaceably, have hidden the same with force. 8 Hy. VI. c. 9.

If any person have unlawfully broken, or destroied, the head or damme of any Ponde, Mote, Steve, or several pitte wherein fishes are put by the owner thereof : Or have wrongfully fished in any of the same, to the intent to take away the fish against the owner's will : Or have wrongfully entered into any parse or other ground, before the statute inclosed, or after this statute, (by the licence of the king) to bee inclosed, and used for keeping of deere, and have wrongfully hunted, driven out, hurt or killed any Deere there : Or if any person have unlawfully taken away any Hawke, or the eggs of any Hawke out of the woods or grounds of any other person. 5 Eliz. c. 21. See 2 Jac. cap. 13.

Takes Hawks eggs : take

havkes or drive

them away. 1 If any person have taken, or caused to bee taken upon his owne, or other mens ground, the eggs of any falcon, Gothawke, Laner, or Swanne, or have taken any Eirer, Falcon, or Gothawke, Tercel, Lanner, or Lanneret, or have purposely driven them out of their coverts : or have borne any Hawke of the Niesehawke, breed of England called a Niesse, Gothawke, Tassel, Lanner, or Lanneret. 11 Hy. VII. c. 17.

Dogu, Nets,

Farreta. 1 If any Artificer, Laborer, or other Lay man, not having lands or tenements of xls. by yere, or any spiritual person advanced to x. l. living by the yeare, have kept grayhound, hound, or other dogge to hunt : or have used ferrets, nets, or other engins, to take or destroy deere, hares, conies, or other gentle-mans game. 13 Rich. II. cap. 13.

Tanc Hare. 1 If any person have traced, killed & destroied any Hare, in the snow. 14 Hy. VIII. c. 10.

Take Pheasants or Partridge,

If any person whatsoever, have taken, or killed any Pheant or Partridge, with any manner of net or other devise whatsoever, upon the freehold of any other without special licence, or in the night time, except it were unwillingly, by lowbelling or tramelling, who also did then and there presently let them

Hawking in

Goot. 1 If any person have havehaked, or with his spanijs hunted in any ground (not being his own) where any come or grain, did then grow or

**APPENDIX**

before it was shocked, or copped, without the consent of the owner of such

come or graine. 11 Hy. VII. c. 17, 23 Eliz. c. 10. See 7 Jac. c. 11.

If any person have shot at, killed, or destroyed with gun, crosbow, stronbow,

of longbow, any fesant, partridge, housedove, or pigeon, herne, mallard, ducke,

teale wigeon, grouse, heathcocke, moregame, or any such fowle, or any hare :

Or have taken, killed, or destroied any fesant, Partridge, Housedove, or

Pigeen, with setting dogs & nets, or other engine : Or have taken the eggs

of any fesant, Partridge, or Swans, or willingly destroied the same in the

nests : Or have traced, or coursed any Hare in the Snow, or taken any Hare

with harepipes, cords, or any such instruments or engines. 1 Jac. 27. See

7 Jac. c. 11.

If any person keepeth any Grayhound, for coursing of Deere or Hare, or Grayhound sett-

setting dogg, or net to take fesants, or Partridges, (not being seised of some

ing dog, dc.

state of Inheritance, of lands, tenements, or hereditaments, in his owne right

or in the right of his wife, of the yerely value of x pounds : Or of lands, tenements, or hereditaments, in his own, or wives right, for terme of life, of the

yerely value of xxx.li. Nor being possessed of goods to the value of 2oo l.

to his owne use. Nor being the Sonne of a knight, Baron of the Parliament,

or of some higher degree, or Sonne and heire apparent of an Esquire).

If any person have sold, or halt bought to seal again, any Deere, Hare, Deere &c.

partridge or fesant (not brought up in house). 1 Jac. cap. 27.

If any person, in the night time, or by day, have unlawfully broke, or entered

Unlawful hunt-

into any Parke, impaled, or other

several grounds inclosed, used for the

ing.

ing of Deere : Or in the night time have unlawfully broke or used for the

keeping of Conies, and unlawfully have hunted, driven, or chased out, or

taken, killed, or slaine there any Deere, or Conies, against the will of the

owners, occupiers, or possessors of the same, not having lawfull authorities so

to doe. 3 Jac. cap. 13 and 7 Jac. cap. 13.

If any person have by himselfe, or any other, sold any

Murchandizes

or

Unarie.

wares, to any other, & have within three monethes next after that, by himselfe, or by any other bought the same, or any part thereof

again, upon a

lesser price, knowing them to be the same : Or if any person have by any

corrupt

bargaine, mortgage, or other meanes, taken in

gaine above the rate of ten pounds for the hundred, for one whole years forbearance, & so after

that rate, for more or less. 37 Hy. VII11, cap. 9, 13 Eliz. cap. 8, and 27 Eliz. cap. 11.

If any have within these two years forestalled, regrated, or

forgetailers,

forgetailers.

inlawfully. ...

If any person have within these two yeeres bought corn in any

fare or

marked for change of his seed (having then sufficient for his house and

for

sowing his ground for a yeare) and did not bring

thither (if he might) so

much as hee did so buy, and did not the same day sell it after the price then

going. 5 Ed. VI. cap. 14.

If any person have (at any time within this yere, the moneths of June,

Making of

Multy, & August only excepted) made any Barley Malt, that was not the time

of 3 weekes (at the least) in the fat, floore, steeping, &

sufficient drying : &

if in any of the said 3 months, & was not 17

daies (at the least) in the fat,

floore, steeping, and sufficient drying.

.If any person have within this yere mingled any Malt not sufficiently made

(or made of move burnt, or spired

Barley) with other good Malt, and after

put the same to sale.

If any person hath within this yere put to sale any Malt not sufficiently

wel troden, rubbed, and fanned, whereby halfe a pecke of

dust, or more may

bee fanned out of one quarter thereof. But this Act extendeth not to Malt

made for the provision of a mans owne house or familie. 2, 3 Ed. VI. c. 16

and revived 27 Eliz. cap. 14, 1 Jac. c. 25.

**APPENDIX**

If any person (beeing lawfully restrained touching his making of Malt) have not accordingly forborne to make the same. 39 Eliz. cap. 16.

**Live cattell.**

If any person have within these two yeres bought Oxen, Ronts, steeres, kine, helifers, calves, sheepe, lambs, goates, or kids, lyying, and sold of the same againe alive, before he hath kept them five weekes. 5 Ed. VI. c. 14.

**Barke.**

If any person have regrated, ingrossed, or got into his hands any Oaken barke, to the intent to sell the same again. 1 Jac. cap. 22.

**Hiltes.**

If any person have forestalled any hides, or bought any hide out of open Market or Fayre, unlesse of such as have killed beasts for their owne provision. 1 Jac. cap. 22.

**Woolen yarn.**

If any person have bought any Wollen yarne, and have not made Cloth thereof. 8 Hy. VI. cap. 5. Or have bought any Wooll, but of the owner of the sheepe, and of the tith. 14 Rich. II. cap. 4.

**Weinfings under two yeres.**

**Calves under 5 weekes old.**

\*\*Fayre, you

**APPENDIX**

If any Butcher have sold or offered to sell Swines flesh mezled, or any flesh Corrupt, that died of the murreine : Or if any other victualler have sold, or offered to Vicutail, sell, any corrupt or unwholesome victuall. _Stat. Pistorum_, c. 7, 51 Hy. 3.

If any person have against proclamation thereof made, transported or Transport corne, carried out of this Realme, any Corne, Graine, or Malt, growing, or made cheese, snaith, here : Or any beere, butter, cheese, or wood, in any vessel (except to Barwicke, herring, wood. or the-Marches thereof) without sufficient authoritic, or any Seafish, or Herring not taken by a naturall borne subject heere : or have by any means conveied, or willingly consented to convey any of the said things to any vessel being on the Sea, or in any place or Haven of this Realme, to be transported over Sea, or into Scotland, without sufficient authoritic : Or if any person having licence to convey any of the said things, have fraughted, or laden his vessel, or any part thereof, at any moe places than one only. 1, 2 Philip and Mary c. 5, 13 Eliz. c. 11 and 13. See 1 Jac. c. 25.

If any person have bought (to sell again) any Butter, or Cheese, unlesse Butter and it bee in open faire or Market, by retailing it after the way of Cheese, and cheese. barrel of Butter, or after a lesse quantitie : Or unlesse it be victualers for that which shall be retailed or spent in their houses. 3 Ed. VI. c. 21 and 14 Eliz. cap. 11, 27 Eliz. cap. 11, 1 Jac. c. 25.

If any person have packed fish in barrels, & have mixed the countable fish Fish packed, with the smal fish. 22 Ed. IV. cap. 2, 11 Hy. VII. cap. 23. Or have bought of Bought of a Stranger borne, or out of a strangers bottom, any Herring (other then such Stranger, as comes hither by reason of shipwacke) not sufficiently salted, packed, and casked. 5 Eliz. c. 5.

If any have brought, sent, or received into any Ship or bottome, any Rams, Ramnes, Sneep , Sheepe, or Lambes, being alive, to be conveyed out of the kings dominions : lambus fran- Por, if any person have procured the same. 8 Eliz. cap. 3.

If any person have dryed in this Realme to bee sold, any fish taken or Drying of fish brought by any Stranger borne. 13 Eliz. cap. 11.

If any stranger borne, have brought into this realm, any cods, or lings5, Coda or Lings in packed in barrels, or other casks. 13 Eliz. c. 11.

If any person (within this yeare) have taken upon him to set price, to take set price or tare Toll, or to demand any tare upon any Sea-fish taken by any Subject of the K, upon sea-fish. in their owner vessels : If any Purveyor or other person have within that time, Purveyor, by colour of any Commission taken any such Herring or Sea-fish (other then the accustomed composition fish _Island_) against the will of the bringer in thereof : Or if any person have within that time, caused to be laden and Sea-fish and carried in any vessel (whereof any stranger borne, is wholly or partly owner Herring or Master) any fish, victuall, or other thing, from one Port or creek of this Realme, to any other of the same : Or if any person have within that time Wine or wood in brought into this Realme, or any part thereof, other then into the Ile of Man, a strange bottom, or into Wales, any Wine comming out of the dominions of France, or any Tholouse Woad, but only in such Vessell whereof some Subject of the kings was then owner, or part owner. 5 Eliz. c. 5 and 27 Eliz. c. 11.

If any person authorised to sell wine by retaile, have within this yeare sold Wines retailed, the same above the prices thereof limited by the K. proclamation, if there have beene any. 5 Eliz. c. 5 and 27 Eliz. c. 11.

If any Inholder, Taverner, Alehouse-keeper, common victualler, common Utter flesh. Cooke, or common table keeper, hath uttered, or put to sale, any kind of flesh victuall, upon any day in the time of Lent, or upon any friday, saturday, or other day appointed by former law to be fish day (not being Christmas day) except it be to such person as (resorting to such house) had lawfull licence to eate the same according to the statute thereof made. 5 Eliz. c. 5, 27 Eliz. c. 11.

If any person (other then by reason of age, sicknesse, childing, or licence) Eating flesh,

**APPENDIX**

have within this yeare eaten flesh in Lent, or upon any fish day observed by the custome of this realme. 2 Ed. VI. cap. 19, and 5 Eliz. cap. 5, 35 Eliz. cap. 7. See the Stat. 1 Jac. c. 29.

**Assise of bread and ale.**

If any common Brewer, Baker, or Tipler, have broken the Assise of bread, beere, or ale : And if any Steward of Lect, or office in market towne, have taken any fine for breach of the assise of bread or ale, in such cases, where corporall punishment is appointed. 13 Rich. II. cap. 8.

**Tipler.**

If any Inn-keeper, Victualer, or Alehouse-keeper, have at any time sold lesse than one full Alequart of the best Beere or Ale for a penie, and of the small ij. quarts for one penie. 1 Jac. cap. 9, 4 Jac. cap. 5, 7 Jac. cap. 10.

\*\*.**Tipler.**

If any Innne-keeper &c., have suffered any person dwelling in the towne, village, or hamlet, where such Inne, Alehouse, or Tipling house is, to reraine and continue drinking there (other than persons invited by travailers, accompanying them only during their necessarie abode there, laboring and handicrafts men, for one hour at dinner time, and labourers and workmen, which for following their worke lodge or victuall in such houses) other then for urgent occasion allowed by ij, Justices of peace. 1 Jac. cap. 9, 4 Jac. cap. 5, 7 Jac. cap. 10.

**Drunkenen.**

If any person have (within these six months) remained tipling in any Inne, Victualing house or Alehouse being in the same towne, village, or hamlet, wherein such person dwelt at the time of such tipling (unless in such cases as are by 1 Jac. c. 9 excepted, where see here next before). Or if any person have (within these six months) beene drunk. 4 Jac. c. 5, 7 Jac. c. 10.

**Brewer.**

If any person have sold uttered, or delivered any beere, or ale to any person, or into the house of any person, that hath sold beere or ale as a common Tipler having licence in force to sel beere and ale. 4 Jac. cap. 4.

**Weights and Measures.**

If any person have bought or sold by any unlawful weights or measures : or if any person have bought or sold in any city or market with any weight or measure that is not awfully marked or signed : 11 Hy. VII. cap. 4. Or have bought corne by heaped measure, in any place (except within shipboard) or have used double measure, the one to buy, the other to sell with. 15 Rich. II. c. 4, 11 Hy. VII. c. 4, 5 Ed. III., _de Pistoribus_.

**Common weights and measures.**

If they of the towne where the kings standard is appointed to reraine, have not their common Weights and Measures signed, or have not thereby signed weights and measures sold to all that have required the same : And if the head Officers of Market towne have not twice yearely made view and examination of Weights and Measures there. 11 Hy. VII. cap. 4.

**Yessel for ale or beer.**

If any vessel for beere or ale, have bin sold or put to sale, being made of unseasonable wood, or not having thereupon the marke of him that made it : or if any barrell for beere container not of the kings standard 36 gallons, the kilderkin 18 gallons, the frikin 9 gallons, every barrell of Ale 32 gallons, the kilderkin 16 gallons & every frikin 8 gallons. 23 Hy. VII. c. 4.

**Vessels for Wine, Honey, Oile, Herring Eeles, Salmon,**

containing 82 gallons, or hogshed not containing 63 gallons, or Butte of Malmsei not containing, 126 gallons, or barrell of Herring not containing, 32 gallons of wine measure : Or barrell of Eeles not containing 42 gallons, or Butt of Salmon not containing 84 gallons : Or any kindkerkins, tertians, frikins, or rudelets, but after the same rate. 2 Hy. VI. c. 11, 1 Rich. III. c. 13; and 28 Hy. VIII. c. 14.

**Vessels of Sope.**

If any have made any vessel of Sope, the being empty containeth not 32 gallons for the barrel, 16 for the halfe barrel, and 8 for the frikin, or weigheth above 26 pound, the barrel, 13 the halfe barrel, or 6.1 and a halfe the frikin. 23 Hy. VIII. c. 4.

**APPENDIX**

If any millers have taken Toll by heaped measure. 31 Ed. I., _de Pistor_ Toll dish.

_et Braciait._

If any Artificers, workemen, or laborers, have conspired or promised to- Artificers cor-gether, or made any oathes that they will not do their works, but at a certaine spring.

price or rate, or but at certaine times, or but a certaine work in a day, or that one of them shal not take upon him to finish that which another hath begun.

2 Ed, VI. c. 15.

If any person doe use any Art or manuel occupation (used in the first yeare Artificers,

of the late Q. Eliz.) which hath not beene brought up therein seven years

(at the least) as an apprentice : or hath set any to worke in it, which is not a workeman, or journeyman by yeare, or hath served as an apprentice. 5 Eliz.

c. 4.

If any Arrowhead Smith have not wel boiled, brased, and hardened at the Arrowhead

appoint with steel, and marked with his mark, such heads of Arrowes and Smithe,

quarels, as he hath made. 7 Hy. IV. cap. 7

If any Butcher have gashed, slaughtered, or cut the hide of any Oxe, Bul, Gash and water

Steere, or Cow, whereby it is impaired : Or have watered any hide except in hides.

June, July and August, or have put to sale any purified or rotten hide.

If any person during the time that hee hath used the occupation of a Butcher,

Butcher, have also used the misterie of a Tanner.

If any person (during the time that he hath used the misterie of a Tanner) Tanner,

have used also the misterie of a Shoomaker, Currier, Butcher, or of any

Artificer using the cutting or working of Leather.

If any person (other then such as had a Tanhouse 19 _Die Martii_, 1603,

and did then occupie tanning of Leather, or hath beene taught as an

Apprentice or hired servant seven yeres in the misterie of tanning of leather,

or hath beene wife to a Tanner, or sonne of a Tanner brought up in that

mysterie fours yeres, or the Sonne or Daughter of a Tanner, or such person

as hath married the Wife, or daughter of a Tanner, that left to the same his

Tan-house and Fats) have tanned any Leather, or taken any profit by tanning

thereof.

If any person have bought, contracted for, or bespoken any rough hide,

or calves skine in the haire (except salt hides for the necessary use of ships)

but such persons only, as shall and may by this Act tan the same, or will

law the same.

If any person have bought, sold, or bespoken any tanned Leather, not

wrought into made wares (other then necks and shreds of Sadlers and

Girdlers) but such persons only as will convert the same into made

wares.

If any Tanner have suffered any hide to lie in the Limes, till the same be

over lined : Or have put any Hides into any Tanne fats before the lime be

perfectly wrought out of them : Or have used any thing in Tanning, but only

Ashbarke, Oakebarke, Tapwort, Mault, Meale, Lime, Culverdung, or

Hendung : or have suffered his Leather to be frozen, or to be parched with the

fire or Sunne : Or have tanned any rotten Hides : Or have not suffered the

Hides for outer sole Leather, to lie in the woozes twelve monents, and for the

upper Letter nine Months : Or have negligently wrought the Hides in the

woozes, or have not renewed their wozes as of as was requisite : Or have

put to sale any tanned Hide not wrought according to this statute.

If any Tanner have raised with any mixtures any Hide to bee converted to

Barkes, Bend Leather, Clowing Leather, or any other sole Leather, except

the same be fit and sufficient for that use.

If any person have put to sale, exchanged, or otherwise departed with any

Tanned Leather (red and unwrought) but in open Faire or Market, in the

places therefore prepared, unlesse it have been first lawfully searched and

VOL. 1V. - 36

**APPENDIX**

Sealed in some open faire or market : Or have put to sale any Leather, before it hath beene searched or sealed according to this statute.

If any Tanner have put to sale any Leather insufficiently, or not thoroughly tanned, or not well and thoroughly dried, and the same so found by the Triers of Leather, appointed by this act.

If any person hath set his Fats in Tanhills, or other places, where the wozes or leather to be tanned in the same way take any unkind heats, or hath put any Leather into any hoat or warme wozes, or hath tanned with hoat or warme wozes.

**Barke.**: If any person have felled any Oaken trees meet to be barked, where Barke is worth two shillings a load, above the charges of barking and pilling (Timber for necessarie building and reparations of houses, ships, or milles excepted) but between the first day of April, and the last of June.

**Currier.**: If any Currier have curried any Leather, but in his owne house, scituate in a Corporat or Market Towne : Or have curried any Leather not well tanned, or not thorowly dried after his wet season, or have used in such wet season any deceitfull meanes to corrupt the same : Or have curried any utter sole leather, with any other stuffe then hard Tallow, or lesse of that then the Leather will receive : or inner sole leather, or over leather, but with good stuffe, being fresh and not salt, or have not liquored them thorowly : Or have scalded or shaven too thin, or gasht in shaving, or otherwise, or not wrought sufficiently, any leather.

If any Currier have (during the time that hee hath used Currying) used the seate of a Tanner, Cordwagner, Shoomaker, Butcher, or other Artificer using cutting of Leather.

If any Currier have refused to curry within eight daies in Summer, and sixteene daies in Winter, in all degrees perfectly, any leather brought by any Cutter of Leather, or his servant, bringing with him good stuffe, for the perfect liquoring of the same.

**Shoomaker.**: If any Shoomaker have made any Bootes, Shooes, Buskins, Startups, slippers, or pantofles, or any part of them, of English leather wet curried (other then Deer, Calve, or Goatskins dressed like Spanish leather) but of Leather well tanned and curried, or well tanned only, and well sewed with threed wel twisted, waxed, and rosend, with stiches hard drawne with hand leathers, without mixing Neats and Calves leather in the overleathers thereof : Or have put into any Shooes, Boots, &c. any leather made of Sheepe-skinne, Bull-hide, or Horse-hide, or into the upperleather of any Shooes, Startups, Slippers, or Pantofles, or into the nether part of Boots (the inner part of the shoe only excepted) any part of the wombe, Neck, Shanke, Flanke, Pole, or Cheek of any Hide, or into the utter sole other then the best of the Oxe or Steere hide, or into the inner sole other then the Wombes, Neck, Poll, or Cheeke, or in the Treswels of the double-soled shoes other then the flanks of any the said hides : Or have put to sale in any yeere (between the last of September and the twentieth of April) any Shooes, Bootes, Buskins, Startups, Slippers, or Pantofles, meet for any person above four yeeres old, wherein hath bin any dry English leather (other then Calve or Goate skins dressed like Spanish leather :) Or have shewed for sale any of his wares upon the Sunday.

If any Lord of Faire or Market have not appointed and sworne yerely two, three or more honest and skillull men to be serchers and sealers of leather there, and six honest and expert men to try the same Leather : and if such Triers have don their dieties therein without any delay : And if any Sercher or Sealer so appointed, have refused with speed to seale good leather, or have allowed insufficient leather : or have received any bribe, or exacted any undue fee for execution of his office : or if any person duely elected Sercher or Sealer refuse to execute the same Office.

**APPENDIX**

If any person have denied, withstood, or not suffered any such Searcher to enter into any house or other place to serch tanned Leather, and wrought ware, or to seize and carrie away that which was insufficient : Or have put away any Tanned Leather (red and unwrought) without registering the same, and the price thereof : Or have bought any Tanned Leather before it was searched and sealed, or have carried it out of any Faire or Market, before it was registered.

If any person (to whom any unlawfull leather or stuffle hath beene given by this Act) have given, or sold the same, to any person that hath sold the same againe. 1 Jac. c. 22.

If any Goldsmith, or worker of silver, have wrought any silver, that is not Goldsmith, and so fine in allay as the sterling, or have not set his marke upon his worke be- gilding.

fore he set it to sale, 2 Hy. VI. cap. 14. And if any have gilded any Sheaths, or any mettal but silver, saving the spurs of Knights, and the apparrell of a Baron, or such as are above that estate. 8 Hy. V. cap. 3.

If any Pewterer, or Brasier, have sold, or exhanged any Brasse, or Pewterer, or but onely in open faire, or Market, or in his house, unlesse hee were thereto Brasier, required by the buyer : Or hath wrought any hollow wares of lay mettall, which is not according to the assise of the lay mettall wrought in London : Or have not set his seale or marke upon the said ware. 19 Hy. VII. cap. 6 and 4 Hy. VIII. cap. 7.

If any Tilemaker have not digged and cast up his earth for Tile, till after Tilemakers. the first of November, or have not stirred and turned it till after the first of February following : Or if he have wrought it before the first of March following : or if hee have not wrought and tried it from stones, veines, and challe : Or if hee have made, or any person have put to sale, any plane Tile, under x inches and a halfe in length, size inches and a quarter in breadth, and halfe an inch and a quarter in thicknesses : Or any roofe Tile under xiii inches in length, and halfe an inch and halfe a quarter in thicknesses, with convenient deepnese : Or any gutter Tile under x inches and a halfe in length, with convenient thicknesses, bread, and deapth. And if any Searchers appointed for the oversight of the true making of Tile, have not done their effectual indevor and diligence in their behalfe. 17 Ed. IV. cap. 4.

If any person have sold, or set fourth candles or other works of Ware to Ware works, sale, at higher price then after the rate of four pence for the pound, over the common price of plaine ware between Merchant and Merchant. 11 Hy. VI. cap. 12.

If any Clothmaker have not set his Seale of Lead unto his Cloth, thereby Clothmaking declaring the just length thereof, to be tryed by the water. 3 Ed. VI. c. 2. and Dying.

If any person have stretched any Clouth above one yard and a halfe in length, or one quarter of a yard in breadth, or have put to sale any Cloath that hath shrunke more in the wetting then is aforesaid : Or have stretched any narrow Streit or Kersey above one yard in length, and a quarter of a yard in breadth, or have put any such to sale that have shrunke more in the wetting. 3 Ed. VI. cap. 2.

If any Dyer of Woollen Cloath, have dyed any brown Blewes, Pewkes, Tawnies or Violets, that were not perfectly bovled, grained, or maddered upon the Woad, and shot with good Corke, or Orchall sufficiently. 3 Ed. VI. cap. 2.

${}^{\*}$ If any person have dyed any wool for Cloth called Russets, Marbles, Graies, Bayes, or such like, or for Hats or Caps, unlese it were perfectly woaded, bovled, and maddered : Or have dyed with Brazell, to the intent to make a false colour, in any such Cloth or wool : Or have put any foxe, challe, starch, or other deceivable thing upon any Cloth (except certaine Devonshire and Cornwall straights. 3 Ed. VI. c. 2.) Or have occupied any Proncards, or

**APPENDIX**

picards in rowing of any woollen Cloth : Or have sold any Cloth of any lesser measure then after the true content thereof by the yard and yuch : Or have put to sale in this Realme any Cloth (being pressed) to bee occupied in England, Wales, or Ireland. 3 Ed. VI. c. 2.

If any Overseers of Cloth, appointed by the Justices of peace for this yere, have refused to be overseers, or have not within their charge, made due search thereof once everie Quarter : And if any person have interrupted them to make such serch. 3 Ed. VI. cap. 2.

If any Kentish broad Cloth (except course Cloth only not exceeding vi. l, price) hatch bin made, that contained not in length between xviii, and xxx. yardes, being wet : and in breadth seaven quarters within the lites : and in weight 76 pounds, being well scoured, thicked, milled, and fully dried. 5 Ed. VI. cap. 6, and 4 and 5 P. and M. cap. 5. See this altered 4 Jac. c. 2.

Linnen cloth,

If any person have used, or caused to be used, any racking, beating, or casting of any deceitful liquor, or other meane, with any kind of Linnen Cloth, whereby the same became deceitful, or the worse for the good use thereof. 1 Eliz. cap. 12.

Sciences of religious housats.

Religious house (that was in yearley value under 200 pounds) doe not keepe an honest and continuall houshold thereupon. 27 Hy. VIII. c. 22, and 5 Eliz. c. 2.

Sheepe.

If any person have at once kept above the number of 2000 Sheepe of all sorts, against the purport of the Statute. 25 Hy. VIII. c. 13.

Faire and

If any Owner, officer, or ruler of any Faire or Market, have not appointed one certaine open place there, for the sale of Horses, Geldings, Mares, and Coltes, and one sufficient person to take Toll, and keepe the said place : And if any such Toll-gatherer, or his deputy, have taken any more then one penie toll for one contract, or for entering the names of the parties, and that in the same place onely, and between tenure of the clocke in the morning, and Sunne-setting. 2 and 3 Phil. and Mar. cap. 4.

Fatric in toll

If any person have in any Faire or Market, sold, given, or put away, any Horse, Mare, Gelding, Colt, or Fully : unlesse the Toltaker, Bookkeeper, Baylife, or chiefe Officer thereof, will take upon him perfect knowledge of the same person, his name, surname, and place of dwelling, or resiance, and shall enter the same into a booke kept for horses sold : or unlesse the said person doe bring to such Toltaker, bookkeeper, &c. one sufficient and credible person that can and will testifie, that he knoweth the seller, giver, or putter away, his name, surname, mysterie, and dwelling place : and there enter into such booke, as well the same, as the name, surname, mysterie, and place of dwelling, or resiance of such testifier, together with the true price that shall be taken for any such Horse, Mare, Gelding, Colt, or Filly so sold : None shall so testifie unlesse hee doe indeede truly know the same, upon paine to forfeite five pound for everie default in any the premises. And the like paine upon the Toltaker, or other Officer aforesaid, that shall refuse to give to the buyer, or taker of such Horse, &c., a true note in writing of that his entire, the party paying two pence for the same. 31 Eliz. cap. 12.

Inne-holder.

If any Inn-holder (dwelling in any Citie, Towne corporate, or Market towine, wherein is any common Baker that hath been Apprentice there seven yeeres)

Horsebrend.

have within his owne house made any horse bread : or (dwelling in any other thorowfare) have made it insufficiently, and not of due assise. 13 Rich. II. c. 8, and 32 Hy. VIII. c. 41.

Hy and outs.

If any Innholder have taken any thing for litter : or have taken excessively for hay, or have taken above one half peny in a Bushel of oats, over the common price in the Market. 13 Rich. II. cap. 8, and 4 Hy. IV. cap. 25.

If any person have been retained into service to worke for any lesse time

**APPENDIX**

then a whole yeere, in any the Arts of a clothier, wollen weaver, tucker, fuller, Servants not relocthworker, sheereman, dri, hosier, tailer, shoomaker, tanner, pewterer, alanine for lesuc baker, brewer, glover, cutler, smith, ferro, currier, sadler, spurrier, turner, felsuing to $\\copyright$, \\

**APPENDIX**

Mineral works, coale mines, Quarries of stone, or slate, or about the making of brick, tile, lime, or coale so that they be not distant above one mile from the workes, & be used only for the habitation of such workers : Nor to cot-tages within a mile of the sea, or upon the side of any Navigable river within the Admirala jurisdiction, so as none dwell therein but Saliers, or men of Manuel occupation for the making, furnishing, or victualling of ships, or vessels used to serve on the Sea : Nor to any Cottage in any fortrest, chase, warren, or parke inhabited only by they that keepe the Deere, or game there : Nor to any cottage hereafter to be made, wherein only a common headman, or common sheepheard of any towne, or any poore, lame, sick, aged, or impotent person that dwel : Nor which for any just respect (upon complaint to the Justices of Assise at the Assises, or to the Justices of peace at the Q. Sessions) shall by their order (centred in open Assises, or Q. Sessions) be decreed to continue for dwelling, for so long time only as by such decree shalbe limited, 31 Eliz. Reg. c. 7. Nor extendeth to any Inmates to be placed by the order of the Justices in their quarter Session, with the leave of the Lord of any wast, or common, at the charge of the Parish, Hundred, or Countie. 43 Eliz. cap. 2.

**Bridges.**

If any bridges in the Highwaies (being out of the Cinque Port', and members thereof) be broken or decaied, to the annoiance of passengers, and if yes, then what Hundred, Ctie, towne, parish, or person certaine, or bodie politike, ought of right to repaire or amend the same. 22 Hy. VIII. c. 5.

**Highwaies.**

If the Constables and Churchwardens of any parish, have not in Easter weeke called their parishomers together, & appointed overseers of the works for amendment of the highwaies leading to any Market, or have not appointed the sixe daies for that worke : & if any such Overseers, have refused that charge. And if any person (having a plow land in tillage or pasture, or keeping a draft or plow) have not found one Waine or Cart, furnished to worke eight hures, everie of the said daies : Or if any other person (being assessed in Subsidie to v. l. in goods, or xl. s. in lands) have not likewise found two able men : or if any other housholder or Cotager, have not by himselfe or any other, so wrought every of the same daies.

If the hedges, ditches, trees, and bushes, in and on each side of any such highway bee not kept low, scowred, and cut downe by the owners of the grounds adjoining : If any such overseer, have not within one month after any of the said offences done, presented the same to the next Justice of the peace : and if any person occupying land adjoining to any such highway, have cast the scouring of any ditch thereof into the high way.

If any Bailfles, Constables, Surveyors, or Churchwardens, have not levied the forfeitures for the offences aforesaid, and imploied them upon their said highwaies and accounted thereof. 2, 3 P. and M. c. 8, 5 Eliz. c. 13, 18 Eliz. c. 9, 27 Eliz. c. 11.

**Highwaies in the**

**Weald of Kent,**

**Sussex and**

\*\*Surrey.

**APPENDIX**

And if any of the last said Surveys have not so appointed the place, or have not demanded the said money, or have not at the next quarter Sessions of the Peace presented the default thereof. 39 Eliz. cap. 19.

$\\bullet$ If any person have (for luce) mainteyned or kept any common house, Unlawfull games. alley, or place of bowling. coyting, cloth, cailes, tennis, dicing, tables, carding, shovegrot, or any other game prohibited by any former statute (as football and casting of the stone) or any other unlawful new game now invented : if any Artificer of any occupation, or any Husbandman, Apprentice, Labourer, Servant at Husbandrie, Journeyman, or any Servant or Artificer, or any Mariner, Fisherman, Waterman, or serving-man (other than of a Nobleman, or of him that may dispend C. li. by yeere, playing within the precinct of his Masters house) have plaid out of the Christmas at any of the said unlawfull games, or in the Christmas out of the house, or presence of their master. 33 Hy. VIII. c, 9., and vide 12 Rich. II. c. 7 and 10.

If any person have shot in, used, or kept any hand gunne, but such as in Crosnebowst and stocke and gun one yard long : or any hagbut or demyhake, not being three Gunnes. quarters of a yard long. 33 Hy. VIII. c.6.

If any person (not having C. li. revenue by the yeere) have caried in his journey any. crossbow bent, or Gun charged, unlesse it be to the musters : if any person have shot at large (other than at a but or banke of earth in place convenient) at any thing with any gun in any Ctie, Borough, Market towne, or within a quarter of a mile of any of them, or have commanded his servant to shoot in crossebow, or gun, at anything other than a but or banke of earth : or if any person (not having C. li. by yeere, or not dwelling within five miles of the Sea coast, or not dwelling in a house two furlongs distant from any Ctie, Borough, or Towne) do keepe or have in his house any Crossebow. 33 Hy. VIII. cap. 6.

If any person (having C. li. by yeere, and having seised any crossebow or gun by vertue of this Act) have not broken the same in pieces within xx. daries next after such seizure. Ibid.

If any Marchant stranger, being of any Countrey from whence bowstaves Archerie, have been or ought to be sent into this Land, have not (for everie tun weight of burden that his vessel contepreuth) brought hither founer bowstaves. 12 Ed. IV. c, 2, 33 Hy. VIII. c. 13, and 37 Hy. VIII. c. 7, and 13 Eliz. c. 14, and for everie But of Malmesie tenure bostaves. 1 Rich. III. c. 11.

If any man being the kings subject, and not having reasonable cause or Archerie. impediment, and being within the age of lx. yeeres (except Spiritall men, Justices of the one bench or other, Justices of $\\Lambda$ssises, and Barons of the Eschequer) have not a long bow and arrowes readie in his house, or have not used shooting therein : or have not for every man child in his house (between vii yeeres, and xvii of age) a bow and two shafts, and for every such being above xvii yeeres, a bow and founer shafts, or have not brought them up in shooting : If any man under age of xxiii yeeres, have shot at standing picks : or (being above that age) have shot at any marke under eleven score yards with any pricke shaft, or slight.

If the inhabitants of any towne have not made and continued their Buts as Butte, they ought to do.

If any Bowyer have not for everie Bowe that he made of Ewe, made also Bowyer, founer obures of apt wood to shoot in : Or have not sold his Bowes for all ages, at their due prices : If any stranger borne, not being a denizen, have used to shoote in a longe Bowe, without the King's licence : Or have conveyed out of his Majesties Dominations, any longe Bow or shafts, without such licence. 33 Hy. VII1. c. 9.

If any Temporall person of full age (whose wife not being divorced, nor Horse for Ap-willingly absenting herself from him) both weare any gowne or peticote of parell.

**APPENDIX**

silke, or any velvet in her kirtle, or in any lining or part of her gowne (other than in cuffes or purfles) or any Frenchood, or Bonet of velvet, with any habitiment, paste or edge of gold, pearle, or stone, or any chaine of gold about her necke, or upon any her apparell, have not found and kept a light horse furnished, except he hath been otherwise charged by the statute to find horse or gelding. 33 Hy. VIII. c. 5.

Musters.

If any person being generally or specially commanded to muster before any (having authorities for the same) have without true and reasonable cause absented himself, or have not brought with him in a readinese, his best furniture of array, and armor of his ovine person. 4, 5 P. and M. c. 3.

Captaines.

If any person (authorized to muster, or to levie men for the King's service in warre) have taken any regard for the discharge or sparing of any person from that service : or if any person having charge of men for warfare, have not paid to his Souldiers their whole wages, conduct, and coat money, or have for any gaine licenced any of them to depart out of the service. 2 Ed.

VI. cap. 2 _ibidem_.

Souldiers.

If any Souldier serving the King in his warres, have given away, wilfully purloyned, or put away any Horse, gelding, mare, or harnesses, wherewith he was set forth. 2 Ed. VI. c. 2.

Horses and masers for hered.

If any person have put to feed in any Forrest, Chase, Moore, Parish, Heath, Common, or wast ground, within this Shire, where any Mares are used to be kept, any stoned Horse, being above two yeeres old, and not being xiii handfuls high, between the lowest part of the hoofe, and the top of the wither : If any such forest or grounds have not been yeerely driven within fifteen dates after Michaelmas by the owners or officers thereto appointed. 32 Hy. VIII. c. 13.

Sewatch.

If watches have not bin made upon the sea coasts in such places, and with such number of people, and in such maner as it was wont to be. 5 Hy. IV. c. 3.

Parliament.

The Statute of leyving the wages of the Knights of the Parliament (made 25 Hy. VI. c. 11) hath no common use, and is therefore pretermitted. _Note also that these Statutes following are to be openly published at any Sessions of the Peace, viz._

Purveyora.

The Statute (36 Ed. III. c. 2, 3, and 4) shall be proclaymed by the Justices of Peace evere yeere, and thereof they inform the people. 23 Hy. VI. c. 2.

Vietualers.

All former Statutes for Victual being in force shall be proclaymed two times yeerely in the Sessions of Justices of the Peace. 23 Hy. VI. c. 13.

Archerie.

The Act for Archerie, 33 Hy. VIII. c. 9, must be proclaymed at the several Sessions of the peace.

II

THE WILI AND TWO CODICILS OF ROGER FLORE OF LONDON AND OAKHAM GIVING DIRECTIONS TO THE FEOFERES TO USERS OF THE TBSTATOR'S LANDS

(_The Will was written on April 15/h_, 1424, _the first Codicil on April 18/h_, 1424, _and the second Codicil on October 28/h_, 1425; _and all were proved on June 20/h_, 1428)

F. J. Furnivall, Fifty Earliest English Wills (E.E.T.S.) 55-64

Testamentum Rogeri Flore \[_In margin_\].

In dei nomine Amen. Ego, Rogerus Flore, miser et indignus, de Okeham, compos mentis, laudetur alissimus, xv de Aprilis, Anno domini Millesimo

**APPENDIX**

ccccmo xxiiiito, condo testamentum meum in hunc modum. \[_A leaf and 3 quarters Latin testament follows, with appointment of Executors, and on the back as follows :_\] Et ad istam execcioem bene et fideliter faciedam oedino et constituo Johann Clerk de Wyssenden, Radulphum Humberstone de leicestria, Ricardum Hawey, Magistrum cantarie de Manton, et Willelemum Baxtir, custodem Hospitalitatis de Okeham, Executores meos, ad dispondundum et exequendum testamentum meum et voluntatem meam predictas, cum supervisione Henrici Plesynton 1 militis, prout velint coram summo Judici respondere.

Codicillus ejusdem Rogeri. \[_In margin_\].

In the name of almyghty god, fader and sonn and holy gost, Amen.

I Roger Flore of Okeham, declare my last will in this bile, als well of my testament as of my landes that standez ineffez handles. \[_Then follow the directions as to the textator's personality which do not differ in form from the walls of which specimens have been given in vol. iii App. IV._ (2), (3).

_The testator then proceeds to give directions to his foeffees as to the disposition of his lands as follows_\] :--

And moreover, for als mykyl as at divorce effementes that I have mad to divorce men of certeyn part of my londe, to the entent that they shulde do my wylle lyke as in sum wrytypes and condicions upon the same effementes it is more pleynyl conteyned. And also for als mykel as divers men haf joint astate whit me in divorce of my purchase be wey of truste for to fullyle my wille whan I required hem, or declared it to hem. Now I declare here my laste wille, als wel to my said feffez as to my joint feffes :

First I wul and ordeyne that my joint feffez of my maners of Stenby and Braceby, withe here appurtenaunces, in Lincolnshire, suffre my wyfe Cecile have the profitez of theim alle the while she lyreth sool withoute husbonde. And if she take the mantel and the rynge, and avowe chastite,1 then wul I that forthe wife my said joint feffes make her astate, for terme of hire lift, of the same too lordships, up condicion that she lyve sool, withoute husbonde ; the remainder of the manar of Steneby, withe the apurtenaunces, to Thomas my som and heire, and to the heires of his body comynge ; and for defaute of heires of his body comynge to my right heires. And the remainder of the the saide maner of Braceby, withe the apurtenaunces, to James my sonsn, and to the heires of his body comynge ; and for defaute of heires of his body comynge, to the heires of my body begetyn ; and for defaute of issu his body comprage, to my right heires. And if my saide wif of my body begetyn, the renaindre to my right heires, and it may said joint feffez make astate to R Robert, my sonn, of my saide maner of Steneby with the apurtenauncez for terme of his moder lyfe Cecile, the remainder of said manere withe the apurtenauncez to my sonn Thomas, and to the heires of his body comynge, and so forthe, as hit is declared afore. And if hit so be that my saide wif take the mantell and the rynge, avowe chastite as hit is saide before, and thereupone have astate of my said too maners for terme of hir lift, the remainder forth as hit is before declared, than wil I that my joint feffez of my landes andenemes that I bought of Richarde Oxenden in Okeham, and also that my joint feffez of my lande and tenementez in Mastorpe, and also my joint feffez of the burgate in the newgate of Okeham, the whiche I bought of Richarde Milnere, make astate of them to Roberde my sonn afore saide for terme of the lyf of his modere Cecile ; the remainder of theim

**APPENDIX**

to my sonn Thomas and to the heires of his body ; and for defaute of issu of his body, thanne to the heires of my body ; and for defaute of issu of my body, the remainder to my right heires, so that my ful wille is, that if my saide sonn Robert har not Steneby, that thanne he haf these other things as hit afore declared.

Moreovere my wille is, that my joint effez of my landes and tenementes in Brauntoft in Lyndeseye make astate of them to Roger my sonn, and to the heires of his body comynge ; and for defaute of \[issue of\] his body comynge, the remainder to my sonn Thomas and to the heires of his body comynge ; and for defaute of issu of his body comynge, to the heires of my body comynge ; and for defaute of issu of my body, thanne to my right heires.

Also I wul that my joint effez of my landes and tenementes, whithe there appurtenaunces, in Halton in Lyndesey, make astate of theme to Johnn my sonn, and to the heires of his body comynge ; and for defaute of issu of his body, the remainder to the heires of my body ; and for defaute of issu of my body, forth to my right heires ; so that my wylle is, that the remainder of alle my landes and tenementes that I ordepyn to my other children fro myn heire, abide, for defaute of issu of theim, to myn eldest sonn and heir that over lyvethe hem, and thanne forth as hit is afore declared.

Moreover my wylle is that alle myn enreflex of other divorce of my landes and tenementes in Rotelande and Leycestreshire, als wel tho that stande eneffede by me, as tho that ben joint feffede withe me, make astate of theim to my saide sonn Thomas and to the heires of his body comynge ; And for defaute of issu of his body comynge, the remainder to the heires of my body ; and for defaute of issu of my body, the remainder to my right heires, saf that I wul that myn eneffez of my place that I wonne Inne, suffer my wyf wone ther Inne a yere after my decesse, if she wille, so that she take no husbande in the mene tyme ; And after that I wul that my saide enfefez make astate therof to my saide sonn Thomas, as of the remenaunt it is afore declared. And if hit so befelle that my saide sonn Thomas died to fore these astates aforesaide made, theme wille I that like astate be made to myn eldest sonn that thanne over lyvethe him.

And my wille is, that alle the astates beforeside be made by dede endented, to that entent that one of the dedys mcw be deliverede to him that the gyft shal be made to, and the other to myn heire, because of the remainder. And I wul that myn heires dedys be kept with the remenaunt of my dedys in the same cofere that my dedys both kept in nowe, and so delyvered him to his use ; And I wul that the other parties of the dedys endentyd, with the remenaunt of the dedys that longen to myn other childre, be put in the coffe that Thomas Audeby gaf me, in the whiche my selver vesselle is now kept, til like childe come of age to receeyre that longes to him ; and that last shal receeyre his dedes, I wil that he haf the coffe whitale ; so that I wil that they have no lyvere of theire dedys til they come til yeres of age and discrecion to reseyve hem. And if they died orhei came to suche age, thanne his dedes that so died were deliverede to myn heire. And I wolde that the substancialle 1 dredes of myn other childre were copied, and the copies put among myn heirs for a remembraunc. And if it might godely, I wolde alle the giftes aforesaide were done by fyn, for more swerte, on my cost.2

Footnote 1: Original. * For the reasons for this see vol. iii 252-253.

And my wil is, that this astates be made al so sone as thei move godely after my decesse, and that my saide children have ill of hem the profit of thaire lande that I ordepyn hem, forthewithe anone after my dirige. And I wul that the said coffe that myn other children dedes shall be kept in, be kept in the Almeshouse of Okeham, undre thre keyes, too under keeping of myn

**APPENDIX**

**Executours, and the thridde under the keeping of an overseer of my testament, so that thei now make deliveraunce to my childre of there dedes, as hit is seid afore.**

- I write no more atte this time, but that I prey to almyghty god als entirely as any synful man may prey, that of his endeles mercy and grace; through the preiers of oure lady seint Marye and alle the seints of heven, he haf mercy of my synful soule, and bring hit to his blis, and gyf myn Executors grace to make good ende of my testament, and wille, and my feffez also of my feffements, Amen. Written with myn owne hande the xviii day Aprille, the yeere specefied in my saide testament.\*\*

**And as touching the warde and marriage of Thomas Dale, my wille is, but if he and my doughtere Anneys move accorde by the assent of hire moder Cecile, elles I wil that the warde and marriage of him be solde to my profit There hit may be to his worshipe.1 And I wil that the profit, that cometh thereof, helpe to fulfyle my testament and wille, if hit nede be, and elles be done for my soule by myne Executours. And if my said doughter Anneys and he accorde of marriage, Than wil I gyf hire the marriage, abatyng for hire c li. that I haf beqwthen hire be my testament lx li., the which I wil helpe to fulfilling of my testament and wil, if it nede, and elles be done by myn Executours for my soule and for alle cristen soules. And also I wil 'that John Oudeley haf a coveryd pece of silver, price of xls., or elles xls. to bie one white, of my cost, for a remembrance of me. My wille is also that my new vestment that I made last be delivered to myn Autere in the kyrke, there to serve and abide in remembrance of me while it wil endure, to the worshipe of god ; and Ihe \[jesus\] mak gode ende.**

Footnote 1: For the manner in which the rights of wardship and marriage were regarded as proprietary interests see vol. iii 6r-64, 215. In this case the marriage is, if possible, to be used to settle the testator's daughter in life by providing her with a husband : if not it is to be sold.

**\[**_The second Codici!\]_.\*\*

**And for a moche as I Roger Flore, overseying my testament and wille, have conveyede that I have not oderyed what James my sonn shude have during his moder lyl, soole, whithouten husbonde, therefore my wille is, that my joint feller of my purchase of Leesthorpe in Leicestershire, gravunte by here dede, to James my saide sone, an anuite of c.s. of my saide purchas of Leesthorpe, to have it for terme of his moder lif Cecile, if she lyye sool, so that after here deceses, or if she take hire an husbonde, he move have the remainre of Braceby, like as I have ordenede for him in my wille, so that whanne the remainndre falleth to him, that thanne the saide annuite of an cs. see. And I will that the said graunte of the saide annuite be grauntede with clause of destresse paieable atte too termes, that is to say, at Esterne and Michelmese**

\*\*Furthermore my wille is, that if Robert my son be a prest in time to come seyng that thanne my lande that is taylede to him in Leicester, Whytewelle and Lital Hamildone shulde descende to the saide James, that thanne the remainder of Braceby afore saide be til William my sone after the decesse of his modere Cecile ; or if she take hire an husbonde, as hit is rehersyd afore. Moreover my wille is, that if my saide sonn Robert be here aftire prest, as hit is saide before, thanne wil 1, if he haf any benefice of holy chirche or prebende, that thanne the astate that I oderignede that joint feffez of my londes and tenements that I bought of Richarde Oxenden of Okeham, and also of my burgage the whiche I bought of Richard Mylnere in the Newgate of Okeham, and my joint feffez of my lands and tenements in Mashorpe shulde haf made to Robert my sone for the terme of his moder lif in suc

**APPENDIX**

manere and forme as hit is declarede in my formere wille, that thanne thay shalle make astate of the saide londes and Tenements to my saide sone William in suche manere and fourme as thei shulle have made to my saide sone Robert, with the remainder as hit is in my former wille declarede. $\\bullet$

In witness of whiche this my writynge of my own hande, I have annexede this my wille with my testament and former wille, under my seal of my armes, affermynge my saide testament and former wille except that is chaunged in this my last wille.1

Writen at Okeham the Fryday afore the fest of the aposteles, Seint Simon and Jude, the yere of oure lorde a thousande fourre hundrede and xxv, and the yere of the reigne of King Henry the sext after the conquest, the fourte. And I prey my feffez that alle these astatys, by the ays of a wel lerned man of the lawe, of mv cost, to be paied by myn Executours. Almighty god make good end ! Amen.

Probate fuit presents testamentum et codicillum coram Magistro Johanne Lyndefelde, Commissario etc. xx die mensis Junii, Anno domini Millesimo ccccmo vicesimo octavo, et commissa est administracio omnium honorum d'etici d'etotic Ricardo Hiwey, et domino Willelmo Baxter, Executoribus in codem testamento nominatis, Reservata potestate, etc.

## III

DOCUENTS CONNECTED WITH THE STATUTE OF USES LETERS AND PAPERS. HENRY VIII, Vol. 56, fols. 36-39. Calendared in L. and P. Hy. VIII. Vol. iv. No. 6043 (6)

(1) THE DRAFT BILL OF I529

\[I have divided this document into numbered paragraphs for convenience of reference. In the original there is no such division. I have punctuated both this and the succeeding documents.\]

(1) For as moche as long before thys tyme hathe ben and yet to this present day there is grete trobull vexacion and unquietness amonges the kynges suggettes withyn this hys nobyll realme of Inglonde, whiche trobull moste comenly risith amonges the sayde suggettes for tytyll of londes tenementes and other hereditamentes within thys hys realme, as well by intayle as by uses and forgyng of false evidences, whiche all is so secretely done that men can nott com to the trew knowledge therof for lake of good and holsum laws provided for the same, by whiche the purcheser or biar may have perfett knowledge in what case and condicion the premisses stond, to the grete dishonov of owe sovereign Lord the kyng, all his realme, and to the intollerable cosets and charges and utterly undoyng of a grete part of his feyghtfull suggettes within this hys realme.

(2) FOR REMEDI wherof and for augmentacion of Justes be hytt In actyd by owe sovereign etc. that, from the fyrst day of Janiver next coming forward for ever, all intayles made of londes tenementes and all other hereditamentes be utterly frustrate disannulled and adnichelate for ever, as well intayles before thys day made as any hereafter to be made so that all manner of possessions be in state of fe simple from this day forward for ever.

(3) FURTHERMORE be ytt inactyd by like actorite that no use nor

**APPENDIX**

uses hereafter to be made to any person or persons upon or for eny possescions within thisy realme be valyeable or of eny effect in the law, nor that no manner of person schall take or reseyve any profit or benefite of the same, onles the same use be recorded in the kynges courte of the comen place, and that the officer or officers ther forputed schall keep for everi schere within thys realme a particuler Rooll or boke to the intent that the purcheser and all other may com to the knowledge ther of the sayde recordes, and that the officers ther forputed schall take to the kynges use for suche record ij s. sterling and nomore, and for the regestring and writyng thereof for everj vijj lines being of x inches long j d. sterling and no more.

(4) AND be hyt further enactyd by like autorite, to avoyde all'unrowthe for forgyng of evidences, that every purcheser schall,1 immediately after the partie that sellyth hathe selyd and fermid the deade of geft of any londes tenementes for \[sic\] other hereditamentes so sold and possession thereapon taken with sufficient recordes, that then the sayd decide to be openly red apon a holy day next folowyng in the parische cherche or cherchis in whiche parische or parisches the sayd lond schall ly, att suche tyme as moste people is present, and so red, the vicar parische preste or curate to fyrme the sayd deede, to the intent that the most parte of the parische may knowe of the sayde sale and possession so made and gevyn ; and for further suerte that the sayde deede be regested in the schere towne In whiche schere the sayd lond schall lye, and the mayre bayliff or other hee officer of suche schere towne to sett to the seale of the towne or suche a seale as therfor shall be ordered and apoyndet, and they to take for regestryng and sealyng of the same ij s. sterling and no more.

(5) Provided allways that this act nor not nothyng theryn conteyned be in any wise prejudiciall to the nobyll men of thys realme, being within the degree of a baron, butt that thyer londes and possessions may remayne Intayled as hitt now is or hathe ben in tymes past, and that no maner of person or persons presume to by any such noble mens inheritans within the degree aforesayd, except the sayd noble man have fyst obteyned the kynges license under hys broke seale therfor ; the whiche obtayned, hytt schall be lawfull as well for the sayd nobull man to sell as to any of the kinges natural borne subiectes to by and purchase the same ther londes tenementes and other hereditamentes, withowte any prejudice of any of the parties.

(6) AND be hitt further inacted by like autorite that londes tenementes and other possescions so purchased, being the dede openly redde in the parische or parisches where the lond lieth, subscribed by the curate registrid, and sealid in the schere towne as is afore sayd, schall not be devict evict or recoverid owte of the power and possession of hym that so hathe purchased them In no court or courtes within the kynges realme, butt that he thatt is so possessed, as is aforesayd, schall peasably possess and inioy the same to hys heyrys and assines for ever.

(7) AND further be hytt inactyd by autorite aforesayd thatt all manner of londes tenementes and other possessions of the whiche before thys type Recovery hathe ben had or fyne leveyd apon, and v yeris past after the recovery or fyne, be taken for fee symple in the law, to the possession of hyt for ever, any law or costume herto fore made or used to the contrary notwithstanding.

(8) AND be hitt further inactyd by the autorite aforesayd that every manner of person beyng seisid of londes tenementes and other possessions, of whiche hys anciters or predecessors have ben peasably seased and possessed by the space of xl yeris Immediatlty afore, without any clayme made by dew course of the law within the sayd type, that then from hens forthe no actionto be admitted in no corte or corttes withyn thys realme to disposes any person or persons so possessid, butt that the possessor schall injoy the same to hvm hys heyris and assines for ever.

(2) THE AGREEMENT BETWEEN THE KING AND THE NOBILITY, 1529. COTTON MS. Titus B. IV. Fols. 114 (121)-118 (125). Calendared in L. and P. iv. No. 6044.

\[I have added the numbers to the various paragraphs\]

Articles condescended and agreee by the Kinges Heighnes and the noble men of this his Realme of England being assembled in this present Parliament begunne in the third day of November in ths xxjth syere of his most noble reigne to be ingrossed in due forme And to be enacted by autho : of the same Parliament in the next full Court thereof, after the proporacion of the same hereafter to be had.

**HENRY R.**

1. First, yf any person hold landes of estate of inheritance of the Kinge in Cheife by knightes service, and other landes of other lordes or persons, And dyeth seised thereof, (his heyre being within age) the Kinge, according to his owne laws, shall have the wardship of the whole heretage, Except the Fees of the Archbishop of Canterbury and of the Bishop of Duresne betweene Tyne and Tese.

1. Item, if any man have landes of like estate holden of the Kinge in Cheife by Knightes service, and other landes holden of other men by like or other service, and all be in Feoffment or Recovery to his use, and he dyeth, (his heire beinge within age) no will joincture or other limitacion of use thereof declared, the King to have the whole in ward.

1. Item, if any man have landes of like estate holden of the Kinge by Knightes service in Cheife ; And other landes holden of other men by Knightes service or otherwise, And all beinge in recovery or feoffment to his use, and dyeth (his heire beinge within age) the King shall have the third part of all those landes and Tenementes, notwithstanding any will Jointure or other use to the contrarie hereafter to be limited or assigned.

1. Item, if any person have landes holden of the Kinge by Knightes service in Cheife, and much other landes holden of other men in Socage or otherwise, and the owner declaration his will or by Jointure, or otherwise both put in use but part of the landes holden of the Kinge or of the other Lordes, The Kinge shall have all the residue, whereof no will or other use is then declared or made, If it be better then the third part of the whole landes, or else the King to have the third part of the whole landes at his pleasure.

1. Item, if any man havinge landes holden of the Kinge by Knightes service in Cheife, which landes extende not to the third part of his whole landes, And he maketh his will or other limitacion of use of all other his landes, or of so much thereof, as the residue shall not be the third part, The Kinge shall have the landes holden of his Grace, and as much of the residue as the one with the other shall amount to the very third part of the whole landes.

1. Item, if any heire beinge within age, and in the Kinges ward by reason of landes holden of the King by Knightes service in Cheife, and so beinge in ward, any Tenante for terme of life or in dower, whereof the revercion or use thereof was in the same Auncestor, dieth, whereby the possession or the use of the possession cometh to the same heire (he being within age), The Kinge shall have those landes wholely, if no further will be by the same Auncestor thereof declared to the contrarie.

1. Also of all other landes and Tenementes holden of the Kinge by

**APPENDIX**

Knights service, by reason of any Escheate honor or otherwise and not of the Kinge in Cheife, The Kinge shall have the third part of the same landes and tenementes so holden of him by Knights service, and not in Cheife, Any wMl use or Jointure to the contrarie hereafter to be made notwithstanding, And if no will use nor Jointure be thereof made then the Kinge to have all the said landes and Tenementes so holden of him.

8. Item, as to suinge of Lyveries by the heire which was in the Kinges ward, The heire, beinge at full age, by himselfe or his Attorney, cominge into the Chauncerie within three Monethes next after that he shall be of full age, and findinge sufficient sueritie to paie the Kinge the third part of the profittes of one yere of all such landes and tenementes whereof the Kinge took profittes by reason of his noneage, to be paid at such daiies as shall be agreed with the Kinge or his Counsell assigned to survey such lyveries, the same heire shall have his liverie thereof with the whole profitt from the time of his full age.

1. And in case that such heires, which was in the Kinges ward, doe not make such suite as is beforesaid for his liver within the said time of three monethes, then the Kinge shall have the whole profittes of the landes and tenementes wherof the Kinge tooke profittes by reason of his noneage, after the rate of the type as longe as it shall so remaine in his handes, and unto the time the heire shall have sued lyverie as is aforesaid.

1. And in case that any such heire will sue any livery of any revercion or use of revercion which decended or came unto him while he was in the Kinges ward, the same heire shall paie to the Kinge, for his Liverie of that revercion, the third part of one yeres valewe of the same landes and tenementes so being in revercion, And whereof he both su: his liverie.

1. Also if any such heire will not sue his livery of such revercion or use o revercion till the possession thereof in deede or in use falleth or cometh unto him, And shall paie for his livery thereof the halfe of one yeres profittes thereof, And shall set in suertie therefore as is aforesaid, And if he doe not sue for his livery thereof within the said time of three monethes, the Kinge shall be answered of the meaning profittes thereof; from the death of the Tenante for terme of life as is aforesaid till he shall have sued his livery thereof.

1. Also if such heire be of full age at time of death of his Annecstor, if he come into the Chauncery within three monethes next after the death of his Annecstor and there sue for his livery, and put such suerties as is beforesaid to paie to the Kinges grace the motie of one yeres profitt of the whole heritage which to him descended from his Annecstor in possession or in use, Then he shall have his Liverie thereof with the sysuse and profittes from the death of his Annecstor, And if any such heire sue not his said Liverie within the three monethes as is aforesaid, then then \[_sic_\] the King shall be answered of the issues and profittes of those his landes from the death of the Annecstor unto the time that Liverie thereof shalbe sued in manner and forme aforesaid.

1. Item, in case any heire will sue Liverie thereof of any revercion that shall discond to him from the same Annecstor, be it sued in the life of the tenante for terme of life or of other particular estate or after the same Tenantes decease, the same heir shall paie to the Kinge for his livery thereof, the halfe part of one yeres value of the same landes and tenementes so being in revercion, whereof he so shall sue his liverie, the same liverie of the revercion to be sued within the monethes as is above said of landes in possession.

1. Also it is condescended and agreede That if any manner of person, of whatsoever estate degree or condicion he or she be, havinge or which shal have any landes tenementes or hereditamentes houlden of the Kinge his heyres or Successors, make or cause to be made any guift in taile to his heyre apparant or to any other to his use of any of his landes or tenementes

**APPENDIX**

or an other thinge do or cause to be done whereby the Kinge his heyes or successors should or might be evicted or excluded from any benefit or profit of ward primier seison or liverie contrarie to the effect and plaine meaning of any of the Articles ahove written, Or if any other imaginacion or invencion hereafter shall be found contrived or devised contrarie to the same, yet, that or any such thinge notwithstanding, the Kinges heighnes his heires and successors shall have the full benefit and effect of his wardes of the bodyes and landes and of primier seisons and liveries, according to the plaine and true intent of the said Articles and every of them.

15. And in like wise, if at any time hereafter imaginacion devise or invencion shall be found or contrived for the Kinges heighnes his heires or successors, whereby it shall be pretended that any larger or more profites or advantages concerning his or their wardes primier seasons or liveries should or might growe to Kinges heighnes any \[_sic_\] of his heires or successors then by the plane and true meaninge declared by the Articles abovewritten is limited or appointed, yet, that notwithstanding, the Kinges heighnes is contented that it shalbe enacted that his Grace his heires and successors shalbe pleased to accept and take the benefites and profites before limited by the said Articles, and none other more or larger.

01. Also it is condescended and agreed that every of the said noble men and other the Kinges Subjectes, assentinge to the Articles above written, for suerties hereafter to be had and made of Joyntures willes or other uses of landes tenementes or hereditamentes, shall or may sue writtes of Right out of the Kinges Chauncery against the tenementes \[_sic_\] in possession or in use or against the partners \[_sic_\] of the profites of the landes or tenementes to be recovered, payeing for every such writ like fyne onelie, and none other, as hath beene used to be paid for or upon writt of Entry in the Post heretofore used to be sued by an assent of parties, And upon such writtes of Right to have Recoveries according to the lawe of this Realme.

01. And that every such Recovery shall be a barr against every Tenant vouchee and person joyeninge in aide named in the same Recovery and their heires, for every estate and title of Fee simple or Fee taile of or in the landes or tenementes so recovered, which any of the same tenantes vouchees or persons joyeninge in ayde had or pretended to have in possession or in use at the time of the same Recovery.

01. Also it is condescended and agreed that if it happen any of the said noble men or other Lords or person agreeinge to the said Articles to decease hereafter and before that the said Articles shall be in due forme enacted by Authorities of Parliament as is aforesaid, Nevertheless the said Articles shall take full effect betweene the kinges heighnes and the heire or heires of the person so deceased, in as ample and full manner and forme as if the same Articles were in deede enacted by authorie of this present Parliament.

01. Also the Kinges heighnes is pleased That it shall be enacted that every of the said noble men, And all other his Subjectes and their heires and successors of whome any landes or tenementes be or shall be holden by Knightse service, shall have full benefit and profit of the wardship of the third part of the whole of the same landes or tenementes holden of the Kinges subjects as the case shall require, as by the said Articles is devised for the Kinges heighnes his heires and successors of landes and tenementes of him holden by Knightse service and not in cheife.

01. Item, it is agreed and declared that, in every case which shall happen by the Articles above written, whereby the Kinge shall be intytuled to whome \[_sic_\] the third part of landes and tenementes, as is above written, that third part shall be due to the Kinge his heires and successors only in cases where the Annestor shall dye his heire being within age, And in every such case,

**APPENDIX**

**if the Kingee have not this full third part of the whole heritage by the landes and tenementes descended in use or in possession, then the Kinge may take, for accomplishment of the same third part, of the landes appointed to the performacion of the said Auncestors will, if those lands will thereunto suffice, or or else the Kinge to take those landes and asmuch of the other landes which shallbe appointed for the Jyonture or other use as the one with the other will extend to the full third part of the whole heritage.**

**zi. Also it is condescended and agreeed that, of dowers Joyntures and other particular estates for terme of life in use or possession heretofore made, the Articles abovewritten shall not extend to give the Kinge any profit or advantage duringe the life of any such particular tenant, but that the Kinges Interest and title shall begine and take effect to have the third part, or the moyty thereof as the case shall require, immediately by and after the death of the same particular tenante, and not before.**

**22. Also it is condescended and agreeed that the Kinges heightnes and every other Lord shall have advantage of Gard per cause de Garde after the nature of their tenures, according to the effectes of the rates limited by the Articles above written, and that no benefit or avayle shall be taken or claymed by the Kinges heightnes or any other Lord for the marriage of any heire being married in the life of the Ancestour, (The parties so being married being of the full yeres of consent at the time of deaih of the same Ancestor), otherwise then according to the Kinges laws in like cases heretofore used.**

**23. Also it is agreede That every heire which shall sue liverie by the Articles abovewritten, being beyond the Sea at the time of the death of his Auncestor, shall have the time of fyve monethes to make sure for his liverie, Any thinge abovewritten notwithstanding, And that every such or other heire aforesaid shall be at libertie by himselfe Feoffees or recoveries, \[_sic_\] being seised to his use, to sue a general liverie or a speciall liverie, paicinge for every such liverie after the rates above written.**

\\begin{tabular}{l l} Thomas More \\ Cancellarius \\ Thome Dorset. \\ John Oxynford. \\ Thomas Rutland. \\ Arthur Lyssle. \\ T. Berkeley. \\ Harry Morley. \\ John Berners. \\ T. Darcy. \\ A. Wyndesore. \\ Edmond Bray. \\ \\end{tabular}

**(Signed) Henry R.**

\\begin{tabular}{l l} Thomas More \\ Canellarius \\ Thome Dorset. \\ John Oxynford. \\ Thomas Rutland. \\ G. Bergevenny. \\ Henry Mountagu. \\ Edward Grey. \\ W. Mountjoy. \\ T. Mouncegle. \\ T. Wentworth. \\ \\end{tabular}

**(Signed) Henry R.**

\\begin{tabular}{l l} Thomas Suffolk.${}^{1}$ \\ W. Arundoll. \\ H. Worcester. \\ Robert Sussex. \\ Audelay. \\ William Dacre. \\ William Graye. \\ Harry Daubney. \\ John Husey. \\ Thomas Burgh. \\ \\end{tabular}

\*\*(S.) Henry R.

**APPENDIX**

(1) Fryst, yer is no accion ayenshym or them which have ye use but by statutez, wheirapon do ryse such doutes thatt no man can be sure of any land lawfully purchesyd by lawfull barganyng.

(2) Item, ye openyons of ye Justices do chaunge dely apon the suertyer For landes In use.

(3) Item, yest usez causyth ye Justices to be in doute or in seuerall openyons In ye most Commen case, as In case a man have dyvers Feffer to his use of landes In dyvers Townez within one shyre, and he do make a deed of Feoffment of all ye seyd lendes and make leuery but in one Towne, this grettrly doutyd whether all ye lond pass or but thatt land whereof he made leuery.

(4) Item, if a recouery he had ayenst _Cestui a que use_ In Tayll, whether this shall bynd after his deth or no is also in doute amonge ye Justices.

(5) Item, if a man ough to have a reall acyon, For yes secrett Feffmentes to use he can nott Tell ayenshym to brenge his acyon but ayenshym thatt Takyth ye proffeffettes, and if he breng nott his acyon within a ye he hath no remedy in ye most parte of acyons.

(6) Item, if a man hauyng neuer so much landes In use be bound and his heres In an obligacyon and dye, hauyng nott goodes suffecyent to satsyfye the obligacyon, his heir, tho he haue ye use of a thousand pounde land, shall nott be chargyd with no parte of the sayd obligacyon, and yet if ye land had dissendyd he should haue made Satssfacion For ye seyd dett.

(7) Item, ye usez cause much landes to come into mortmayn and to Fyndyng of pretes.

(8) Item, usez cause landes to passe by wyll commonly when he that makyth ye wyll knoweth nott what he doth nor his gostly Father what he wryyth.

(9) Item, if a man makyth a wyll of his landes and goodes, and hytt is prouyd in ye speretuall Court that he had nott at ye makyng of ye wyll such perftt mymd _qualem Testantes debent haore_, all shall be made voyde and yat by ij wytnesez.

(10) Item, he thatt hath Feffer to his use doth apper to be owner and Tennant and is nott, by reson wheiroff many be disseud In barganyng with them, and many poore Fermers undun, and many old seruyng men In yer age put From ye offices and anuytez before grauntyd them in recompens of yer servyce doyn in youth.

(11) Item, yes usez doth undo many Wood salez wherfore money is payed.

(12) Item, I omytt ye grett nombre of doutes which doth ryse by usez.

(13)1 Item, where, _par Cas_, Some one man takyth asyngler welth their be be a hundrioth against one that takyth hurt and losse theirby, is yt a good lawe ?

(14) Item, if a man see and consyder the matterz nowe hyngyng in vary-aumce in euery the kinges Courtes and in arbitrement, he shall Fynd y yes decefull usez is the cause the most parte of the seid varyaumce.

(15) Item, if the usez, which is in Regard but ye shadowe of the thyng and not ye thyng Indeyd, were clene put out of the lawe men yat had right should hereafter rather come to there remedyes.

(16) Item, yes usez defraude women From dowers and men which mary we \[men\] Inherytable or Inherytors For yer Interestes as Tenent by the Courtesy.

(17) Item, if a man put a maner eneffment, to which an aduouson is appendent, be hit neuer so grete in value, he nor his heirez can nat present, and iff he do he is a wrong doer, and so hit is if hit be an aduouson In gros, we is grete myscheif and makyth trouble off.

**APPENDIX**

(18) Item, if a man which hath Feoffes to his use do comande one of his seruantz or Freyndes to Cut downe a Tre in his grounde. or licens a pore man to cut downe a Tre or put his bestes in his grounde, the Fefferz may punyshe the seid seruant by Fyne and Imprisonment or utary or Inditement in the sessyons of peace.

(19) Item, if A. B. haue Feffer to his use, and an estranger put his bestes upos the,gonde, A. B. takyth the bestes In his grounde or percas In his Corne and dryuth them to pounde, he that ought the beyestes shall punyshe A. B. for takyng the seid bestes.

(20) Item, wheirby the lawe of ye Realme if a man do Treson murder or Felony, in example of other, the Kynge or the other lordes should haue his landes, nowe _Cestui que use_ commyttyng Treson felony or murder, shall Forfett no lande by e Commene lawe, to the greet boldness of evyll persons.

(21) ${}^{1}$ Item, if _Cestui que use_ be outlawed, the kyng ought, if he had the possession, to haue ye protettes of his landes, and nowe ye land, beyng In use, he can haue nothing.

(22) Item, if landes dissend unto ij or mo wemyn wc mary, if the one husband be of more power than ye other, and Takyth ye hole proffettes or ye grett parte, or Fellyth all ye woodes, ye is no remedy by ye commen lawe of ye realme, nor he thatt is wrongyd can not compell the other to make pro- tecyon nor seueraunce.

(23) Item, _Cestui que use_ both occupye the grounde and makyth lessez, if ye lesse do lett downe housez or cut downe woodes, he hath no accyon of wast nor other remedy by ye lawe.

(24) Item, he that hath ye use can not haue accyon of accompt nor other remedy ayenst his baylyez nor \_F_erners.

(25) Item, In all accions of Transgressiones accept or other accyon personali brought by . the Fefferz, if any one of them wylbe currupt and relez, all ye matter is lost and all ye other barred For euer.

(26) Item, _Cestui que use_ can not make a good quytaunce to his bayly when he hath payd him his rent.

(27) Item, women wich haue ionturez For their lyuez and Fefferz to yer ussez, mey cut downe woodes and pull downe housez and no remedy by ye lawe.

(28) Item, yes Feffementes to usez cause many deleys by essoynes vouchers and other wyse In real accyons, wheirby men be of Infenytely of their lawfull Rigth deleyd.

(29) Item, all yes Feffmentes to usez and ententes began Fryst apon Fraude and disseyt, wc is nott meytt to be made nor allowed For a lawe.

(30) Item, if aman haue Fefferz to his use, and one of his Fefferz be unthryfty and be bounde in a statute, ye land shalbe In execucyon For ye porcyon of ye landes of _Cestui que use_.

(31) Item, if the suruyuor of ye Fefferz dye, his wyff shalbe Indowed of ye iijde parte of other men slandes, and iff ye he he within age, ye lord etc. shall haue ye ward ofye resedowe of the land etc.

(32) Item, ye usez make double lawe, and cause thatt yer is no remedy att ye comen lawe, For _Cestui que use_ can not sue att ye comen lawe.

(33) Item, _Cestui que use_ might make no leez graunt Feffment nor relez to be good before ye statute of Richard ye therd, apon which do ryse agrett nombre of doutes and myscheffes.

(34) Item, ye would no accyon lye ayenst _Cestui que use_ be before ye statutes of pernors of proffettes apon wich doth ryse many doutes and unsuetyez.

(35) Item, _Cestui que use_ can haue no accyon by ye lawe, and yet he semyth Tenant and owner to ye world, which is agret disseytt.

(36) Item, Fynally the usez began apon disseytt, and ye most thatt

**APPENDIX**

**followwith yerof is disseyt, so thatt, ye disseytes thatt be their In, I will undertake shall conteyne a grett boke, if ye be well serched out with study, so thatt ye usez subuerte ye lawe and Customez of vis Realme.**

**(37) Item, here fowith For whatt purpose and entent Feffementes to usel haue byn practysed within this realme.**

**(38)** **Fyrst, to ye Intent and euvll purpose that if a man of power gatt ouer ye possession of landes, albe thatt hytt were by wrong, yett, if he were able to kepe ye possession, he would make so many Feffmentes, thatt the partye that shoulde shew, myth neuer knowe ayenst whome to breng his accyon, and so without remedy by ye Comen lawe of ye realme.**

**(39) Item, to ye entent To dyfraude ye lord of whom the land is holdyn from ward marayage and releyffe, And to ye entent that ye cheif lord should nott knowe apon whatt person or persons to adouwe, For his rentes Customez and seruyces dewe.**

**(40) Item, to ye entent that if a man dyd Treson murder or Felony thatt he should Forfett no land.**

**(41) Item, to ye entent that all recouerey in acyons real ayenst hym should be voyde.**

**(42) Item, to ye entent thatt, if any recovery were had in any accyon personal For dett or otherwise, thatt ye should be no execuyons of ye landes.**

**(43) Item, to ye entent that no man should knowe of whom to take a leez gyfft or Feffement, For their** \[_stic_\] **Fraudez and such lyke were usez deuysed. Endorsed :-**'Damna usuum," and "Inconveniences for suffearance of uses."\*\*

**(4)** **THE PROPOSED alternative to the STATUTE OF USES. LETTERS AND PAPERS. Henry VIII. Vol. 101, fo. 286. Calendared in L. and P. Hy. VIII. Vol. x. No. 246 (4)**

**\[I have added the numbers to the paragraphs.\]**

**For as moche as by reason of uses lately practised in this realme, the good old laws of the same be nygh subuertid, to the derogacion of the Kinges crowne and hurt of his people and Subgettes of this realme, Be it therfer enacidt, by auctorite of this present parliament, as herafter ensueth in these articles folowyng.**

**(1) First, if eny person or persons, hauyng the use of eny londes tenementes or hereditamentes, be atteyntid or convict by the dewe course of the laves of this realme of eny treasons murdres or felonyez or eny other offencez wherby londes ought to be season lost or forfit, shall in euery suche case lose and forfit the londes tenementes and hereditamentes, whereof suche person or persons so offendyng shall haue suche use att the day of suche offensez don oneny time after, in like maner forme and condicion in euery behalf as if suche offendor, hauyng suche use, had had suche estate in possession reuision or remaynder in the said londes tenementes or hereditamentes so to be season lost or forfit, as he had in the use.**

**(2) Item, if eny man mary a woman hauying the use of eny londes tenementes of hereditamentes in fee simple or intayle, and after suche mariage haue issue by the said woman, and she dieti, the husband shalbe tenant-by the courtesy of the same londes tenementes and hereditamentes, so beyng in use, in like maner forme and condicion as if his wife had had suche estate in the possession of suche londes tenementes or hereditamentes as she had in th'use.**

\*\*(3) Item, if eny use of londes tenementes or hereditamentes discend in fee simple to eny person or persons from their auncestors, that then, in euery

**APPENDIX**

**suche case, the heir and heirez, to whom suche use shall discend, shalbe bounden to all accions execucionz, and to all other intentes whatsoeuer, in like maner forme and condicion as suche heir or heires shuld haue ben bounden, if the annectors had died seasoned of the possession reversion or remaynder of suche londes tenementes or hereditamentes so discendid in use.**

**(4) Item, euery person and persons, hauyng the use in eny londes tenementes or hereditamentes, shalbe admytted taken and reputid, in all condicion8 1 and to all ententes and purpose, tenantes to the chife lerdes of whom the londes tenementes or hereditamentes, wirof they haue suche use, shalbe holden, in like maner forme and condicion in euery behalf, as if they had had suche estate in the possession reuersion or remaynder of the londes tenementes or hereditamentes, whereof they haue suche use, as they haue in the use, and that all recoueryez had or herafter to be had ageyn them, and fynes feofementes releassez and confirmacions levied made or to be ievied and made by them, shalbe of the same effect strength and force ageyyn them and their heirez, to all intentes and purpose, as if they, att the type of suche recoueryez or levying suche fynez or makyng suche feofementes releassez or confirmacions, had had suche estates rightes and interestes in the possession reuersion or remaynder of the same londes tenementes or hereditamentes so beyng in use, as they had in the use.**

**(5) Item, that uses may be declared and expressed in Fynes, if the parties to the fyne will require it, and that euery fyne feofement release and confirmacion, to be be made levied or had by eny person or persons to eny person or persons after the first day of January next, wherein none use shalbe certenly lymytted and fully expressed, shalbe takyn to the onely use of these persons to whom suche fynes feofementes releassez or confirmacions shalbe made or had, and that all recoueryez shalbe to the use of the recouerers, eny usage to the contrary heretofore had not withstandyng.**

**(6) Item, that no bargeyn contract Couenaunt or Aggrement, by them selfes onely, shall make or chaunge the use of eny londes tenementes or hereditamentes from eny person or persons, but that the persons grevid by non performance of suche bargeyns contractes couenauntes or aggrementes, their executores or admynystrators, shall haue their remediez by accions of couenaunt or upon the case or otherwise, as the case shall require to be requisite, and recouer their damages and amendes in euery suche accions and sutes for brekyng and non observuyng suche bargeynes contracts couenauntes and aggrementes, and none otherwise, eny usage heretofore used to the contrary herof not withstandyng.**

**(7) Item, that recoueryes, in comen writtes of entre in the post, had by assent of the parties, and fynes and feofementes hereafter to be had or made, shall bynde the parties to suche recoueryes fynes and feofementes and their heires and the feoffez to their usez and their heires ; And that none other person or persons, whiche shall haue eny reuersion or remaynder of the londes and tenementes herafter to be recouered in suche writtes, or wirof eny fynes or feofementes, herafter shalbe made or had, shalbe bounden or take eny losse damage or hurt by reason of suche recoueryes fynes or feofementes, unlesse they be made privy to them by voucher, aide prayer, or otherwise by their assentes determyn or release their interestes rightes and titles in suche reuersions and remaynders, but that the title interest and possession whiche eny person or persons, not beyng parties nor privie to eny suche recoueryez fynes or feofementes shall haue in eny reuersions or remaynderz att the type of such recoueryez fynes or feofementes had or made, shall still remayn and abide in them and their heires, as if no suche recoueryez fynes or feofementes had be \[_sic_\] had or made.**

**APPENDIX**

(5) THE PRPOSED STATUTE OF ENROLEMENTS. LETTERS AND PAPERS.

**HENRY VIII.** Vol. 101, fol. 303. Calendared in L. and P. Hy. VIII.

**Vol. x.** No. 246. (6) \*

\[I have divided this document into numbered paragraphs for convenience of reference. In the original there is no such division. I have inserted the words in square brackets.\]

**Where as gret stryues debatis and varyaunces dayly are moued amongste the Kinges subiectes for rightes titles interestes and possessions of londes tenementes and hereditamentes, as well by occasyon of forgyng of dedys foeffementes Releases feases confirmacyons Indentures and other evydences and wrytinges concerning the same, as for the tryall of the truthe of suche euydences and wrytinges, and also by occasyon of bargeines contractes and agrementes oftentypes made of londes tenementes and hereditamentes only by wordes without wrytinges, to the grett inquietnes of the kynges subiectes, and to the importable charges and expenses yn the sutes of the lawe by reason of the tryall of suche forged euitences, for remedy wherod be it enacted by auctoryte of this present parlyament in maner and Forme as hereafter ensuethe in Articles, that is to saye :--**

(1) First, it ys ordenyd by Auctoryte a fore sayd that the use trust or confidence of suche londes tenementes or hereditamentes, after the last day of July wc shallbe in the year of our lorde god MLD and xxxvj, shall not pass alter chaunge from on to an other, nor shallbe had or made by or to any person or persons to any use of trust or confidence, by reason of any Recouerys fynes Feofamentes gyftes grauntes Couuenantes contracts bargeynes Agrementes or otherwyse, Onless that the use trust or confidence, agreyd and concluded between the parties upon suche recoueryes fynes Feofamentes gyftes grauntes contractes or bargeines, be declared by wrytinges suffycently to be made under seale, and delyuered by and to the parties according to the laws of this Realme, and that the same wrytynges be enrolled in manner and forme under wrytten.

**Also it ys ordenyd by auctoryte aforesaid that all maner of euydences and wrytinges, of what name \[_stic_\] so euer they be, concernyng londes tenementes or hereditamentes, which shallbe made after the said laste day of July which shalbe in the yere of our lord god a MLD xxxvj, shall be knowledged and enrolled in maner and Forme as shallbe hereafter expressed in thys ace.**

(2) And, for the due executyon thereof, the Kynges hyghnes hys heires and successors kinges of this Realme shall haue power and auctoryte to constitute or ordeyne and make, by his letters patentes under his great seal, in euery shire and Rydinge of this Realme, one prnycypall officer or mo at his or their pleasures ; and that the Chaunclear of Englande for the type being shall haue power and auctoryte, by the Kinges letters patentes, to be made in the Kinges name, to constitute make and assinge one clerke for euery of the seid offycers \[which\] shallbe called and named Master of Enrolmentes of euydences and wrytinges concernyng any landes Tenementes and hereditamentes, And that euery of the said Clerkes shalbe Called Clarke of the enrolmentes of the said eupdences and wrytynges ; and that euery of the seid offycers, with one of the seid Clarkes joined with him, shall iovntly together haue power and auctoryte to accept and take the confession of euery person that wyll knowlege to be his dede any euydences or wrytinges, what so euer they be, cernyng any tenementes or hereditamentes lying or beinge within their lymyttes to be conteyned in their letters patentes, and fully to enrolle the same in a Rolle of Recorde remaynyng with them, in such lyke maner and Forme or according to suche effectes as euydences and wrytinges be knowleged and enrollyd in the kinges Chauncery or any other his cortes of Record.

**APPENDIX**

**(3) Item, it ys ordeyned by the auctoryte aforesaid that euery of the seyd officers and Clarkes, after ther letters patentes to them graunted and be for and \[_sic_\] exercise of their offices, shall take a corporall othe before the Chaunclear of England for the type being, that they shall not Receue the knowledge of any persons being naturall foles or not of hole mynde, and that they shall endeavour them selues with all due cryptantance to knowlege and serche that the persons knowledgynge and euydences or wrytinges a for them do 'it of their Fre and good wyttes, and that they shal not wittingly receive the knowlege of any other then of the parties to such euydences and writynges, and that they shall well and trewly do use and exercse their offices in euery thinge as shall apparteine, according to the Forme of thys \[Act\] without fraude descocyte Couen or corruptyon so helpe them god and all saintes.**

**(4) Item, it ys ordeynyd by auctoryte aforesaide that euery of the seid officers shall haue a seall dyleurid unto him by the lorde Chauncelor of England for the type being, which shalbe called the seale of his office, wherwith he shall seale with waxe euery of the seid euydences and wrytinges before them knowleged and enrolled, and euery of the seyd Clarkes shall endorse and wrytt upon the baksyde of suche euydences and wrytings his owne proper name, and the day and yere of the knowlege of suche euydences * and wrytynges, and the treu numbers of the Roll wher in they be enrolled.**

**(5) Item, it is enactyd by auctoryte a forseyd that euery of the seid principally officers to be assigned, as ys aforesaid, shall take of the parties knoledginge any eupdences or wrytinges afore them, concerning any landes tenementes or hereditamentes beinge under the clere yerely value of xxs., iiijd. and not aboue, and for eupdences and wrytinges to be knowleged and enrolled concerning any landes Tenementes or hereditamentes of the seid Clere yerely value of xxs. or aboue and under the clere yerely value of v markes, euery of the seid prsyncpall offycers shall take for the knowlege of the seid parties viiid., and euery Clarke for the enrollinge xijd. and not aboue, and for eupdences and wrytinges to be knowlegdy and enrolllyl of any londes tenementes and hereditamentes of the cleir yerely value of v markes or aboue, and under the cleir yerely value of x l., euery of the seid officers shall take xxd., and euery of the clarkes for enrollinge thereof ijs., and for eupdences and under the cleir yerely value of x l., euery of the seid officers shall take xxd., and euery of the clarkes for enrollinge thereof ijs., i' and for eupdences and other wrytinges to be knowlegyd and enrolled concernyng landes or hereditamentes of the clere yerely value of x l. or aboue to any other yerely value, euery of the seid principally officers shal take iijs. iijid., and euery of the seid Clarkes vs. and not aboue ; And that the clere yerely value of the landes and tenementes and hereditamentes shalbe tryen and taken only by the othes of the parties which shalbe knolegyd by suche euydences and wrytynges, without further examynacyon therof.**

\*\*(6) Item, it is ordeynyd by the auctoryte aforeseyd that euery person and persons at their will and pleasure may knolege and cause to be enrolled all evidences and wrytinges heretofore made concerning any landes Tenernes or hereditamentes ; And that all and singular evidences and wrytinges concerning landes tenementes and hereditamentes, wiche shalbe made after the seid last days of July which shalbe in the yere of our lorde god a ML V C xxxvj, and not brought and prefered to any suche of the seid prsyncpall Offycers or clarkes which shall haue autoryte to take the knowlege and enrolmentes therof by auctoryte of this Acte, within the tyme of XL days next after the date of the seid euydences or wrytinges, to be knolegyd sealyd and enrollyd

**APPENDIX**

by vertue of this acte in \[_sic_\] as ys aboue seide, nor caused. to be enrolled in any of the kynges highe Courtes, comenly callyd the Chauncery the kinges benche the Comen place and the kynges Eschequyre, within the type of half one yere nexte ensuinge the date of the seide euydences or wrytings, shalbe' voyde and of none effecte, prouyded alweys that yf any person or persons make seale or delyuer any euydences and writings concernyne any landes tenementes or hereditamentes, and afterwarde happen to decese within the seide XL days next after the date therof, by reason wherof they cannot be enrolled, yet neuer chelase euery suche euydences and writings shalbe of the same effecte strenght and vertue as they shuld haue bein yf this acte had neuer byn made, anythinge in this acte mencyoned to the contrary notwithstanding.

(7) Also it ys enactyd that the principally officer or Clarke, to whome any suche euydences or wrytypes shalbe so brought and prefered to be enrolled, shal furthwith indorse with fewe wooddes declaringe treuly the daye and yere of his recept therof, as thus, _Receptum per me A.B. Magistrum irrotulamentorum etc._, or thus, _Cericum irrotulamentorum etc._, _primo die Maij Amo Regui Regis Henrici Octani viecsimo septimo;_ And when it ys enrolled the Clark shall add thermuto, _Et irrotulatum Rotulo xxo_, or otherwise, as the truthe shalbe.

(8) Also it ys enactyd that no person or persons, whose knowlege shalbe taken of any suche euydences or wrytings nor any heire of any of them, after suche knowlege taken and inrolment therof made and hadde in forme aboue remembered, shalbe admitted to denye the same evidences and wrytings, soo knoweygd andynrolyd, to be his or their dedes ; Nor to allege that they were not hole of mynde at the makinge and sealing of them, nor that such euydences or wrytings were made by mynasses or duresse of imprisonament.

(9) Item, it is ordeynyd by auctoryte aforesaide that, in case any of the seid offycers or Clarkes do falsely and untruly exercyse and use the seyde office in any parte that shall apperteine to the same, or take any more or other fees than is aboue lymytyd by this Acte, And be therof convict by witnes proues or confessyon be fore the lord Chauncelor lorde Tresorar lord president of the kinges most honorable Counseill lord pryuy seall or any of them syttyn the sterre Chamber of Westminster And Calling to them the too chyff iustices of eyther bynche for the tyme being or one of them, that then euery of them, so being convict, shall lose his office, and yelde treble damages to the parties greued, And ouer that shall haue imprisonment of his bodye tyll he haue made fyne att the kynges wyll and pleasure.

(10) Item, it ys odeynyd and enactyd by auctoryte aforesaide that no person shalbe assigned to be any of the seide pryncypall Officers, onles he haue londes and tenementes of Frehold to the clere yerely value of xx l. aboue all yerely charges within the shere where shalbe suche offycer, and that euery of the seide pryncypall officers shalbe dwellyng and keep howshold within the lymytes of his auctorite to be contenynd in hys letters patentes, And that one suche pryncipal officer and one Clarke shall dwelle and abyde in one towne or within the dystaunce or space of thre myles from the one to the other, to the entent that they may be in a Redynes for the case and comodryte of the kinges people that shall Resorte to them for knowledging and Enrollying of their evidences and wrytings.

(11) And that none of the seide offycers shall take any knowlege of person or persons but yn the presence of the clerke that shalbe lymytyd within hys auctoryte to enrolle the seyde euydences and wrytings, upon payne that euery of the seide Offycers and Clarkes, offendyng this article, shall lose forfeitt x l., the one Moyte ther to the kynges highnes, and the other moyte of the same to suche as will sue for the same by wrytite bylle pleinte or In

**APPENDIX**

formacyon in any Courtes of Record, in which sutes no wager of lawe shalbe admytted, nor eny esosine or protecyon shalbe alowed.

(12) Item, it ys ordenyd and enacted by auctoryte aforeseyd that euery $\\delta$f the seyde Clarkes, that shall haue suche letters patentes by auctoryte of this Acte, shall well and truly enrolle all such euydences and wrytings as shalbe knowledgyd before him And one of the seide princypall offycers with whome he shalbe ionymod, within XL days next after the knowleging of suche euydences and wrytings ; And that all the rolles that shalbe made yn one yere, wherin suche euydences and wrytings shalbe contenyyd, shalbe con-ioyned by the Clarke, And by the same clarke shalbe delyvered within the type of XXX${}^{\\rm ti}$ days, nexte after the ende of the same yere, to the Master of the ynrolmentes, with whome he shalbe adsocyate ; and that the seide Master or his suffycyent depute, within other xxx${}^{\\rm ti}$ days from thens nexte ensuinge, shalbringe the rolles of the seyde yere precedent into the kinges Chauncery, there to remayne and to be kept in lyke maner and forme as other the kynges Recordes of the Chauncery be kept, withoute any Fee or rewarde to any offycer of the Chancery for Receyuyng of the same ; And that euery of the seide Clarkes of the Chauncery or Clarkes of the pety bagges, to whome any suche Rolles shalbe preferyd, shall receiue the same Im-medyalty and withoute any delay, under payne of forte to the Master of the enrollmentes brynging the same Recordes one hundryth shilynges.

(13) And yf the seide officers and clarkes or any of them do make default of the enrolment or in bryngyng and delyueryng the seide Rolles according to this $\\Lambda$cte, That then euery suche officer or Clarke offendyng theirin shall lose their offyces And also shall lose xx${}^{\\rm ti}$ to the kinges highnes, to be levyed of their landes goodes and Catalles to the kynges use by such processe as shalbe deuysed in the kynges Chauncery for the same ; prouyded alwey that the seyde Artycle for brynging and delyueryng of the Rolles of any euydences or wrytynges unto the kynges Chauncery shalnot extend to Mayars bayues Stewardes or towne Clarkes of Cytes boroughes or corporat Townes, but that they may keep their enrolmentes with them as they haue be accustomyd, Any thynge in this article to the contrary not withstanding.

(14) And it is further enacted by Auctoryte aforeseyde that euery person shal and may haue serche of euery enrolment upon resonable request therof made to suche \[as\] shall haue the custodge of the Rolles therof, And that no person shall pave for the serche of any enrolment but only as hereafter folowith that is to sey, for euery yere of the enrolment that any person wyll desyre serche of them \[he\] shal pave vj d. and not aboue ; And yf any person wyll desyre to haue copye of the enrolment, That then euery suche person shall pave for wryttrg of euery xvj lynes, to be wrytten in a shete or shetes of papur accustomyd, iiij d. and not aboue ; And yf any person or persons deny suche serche, or requyre more for that serche and copyes then is aboue expressyd, That then euery suche Oflycer shal lose and forfeitt for euery suche offence vi${}^{\\rm ti}$, the one half therof to our soueringe lorde the kinge, and the other partie therof to the partye that will sue for the same in any of the kinges Courtes, in wiche sute no wager of lawe shalbe admytted nor any essoyne or protecyon shalbe allowed.

(15) Prouyded alweis and be it enacted by auctoryte aforesayd that Mayars and Ballyues of cytes boroughes or townes corporat and the Stwardes \[sic\] or towne Clarkes of such Cytes boroughes or townes corporate, where they haue be accustomed to enrolle euydences and wrytings concernyng any landes tenementes or heredytamentes, shal haue powar and auctoryte to take knolege of all euydences and wrytings concernyng any landes tenementes or heredytamentes lying or beinge within the precyncles or lybartyes of any suche Cytes boroughes or townes corporat, and to enrolle the same, in lyke maner and

**APPENDIX**

forme as the seid offycers and Clarkes to be made as ys aforeside shal and may do by auctoryte of this Acte ; prouydyd alvetis that the landes tenementes and heredytamentes of women couert with barne shalnot passe nor to be conveyed from them duryng theyre couerture, but after suche ordre and forme as hathe hertofore be accastomed by the course of the laws of the Realme, any knowlege or Inrolment to be had or made by auctoryte of this acte in anywyse notwithstanding.

(16) Prouyded also and be it enacted by auctoryte aforesaid that landes tenementes and heredytamentes maybe and shalbe grauntyd by Copie of Courte Rolle as hathe ben accustomyd, and that euery suche grauntre Inrollyd in the Courte Rolles of the lorde shalbe good and effectuall accordyng to the tenor of the seid grauntes, Albeit that the Copyres or Rollys therof shalnot be knowledged nor Inrollyd according to this acte afore any of the seide Officers and Clarkes auctorysed by this acte, anythinge in this acte to the contrary notwithstanding.

(17) Prouydyd also that all maner of euydences or wrytinges at any type knoledged Afore the lorde Chauncelor only of the great Seale, or be fore the Master of the Rolles, or any masters of the kinges Chauncery, or any of the kinges Justyves of ether benche, or be fore any of the barons of the kinges excheker, and Inrolled of record as it hathe ben accustomyd, shalbe as good and effectuall to all ententes or purposes as they were or shuld haue byn yf thys acte had neuer be made and had, And as yf they had ben knowledgyd and enrollyd be fore suche persons as be auctorysed by this acte, any thinge in this acte to the contrary notwithstanding.

(18) Prouyded aluye that all Inrolmentes, herafter to be made in any towne of this Realme where Inrolmentes haue ben hertofore used of any landes or tenementes lying within the presinct or Jurysdycyon of the same, shalbe taken and Inrollyd by the offycers of the seide towne as haue ben hertofore used and accustomed, this acte or any thinge theirin conteyned to the contrary notwithstanding.

(19) Prouyded also, and be it enacted by auctoryte aforeseyde, that yf any eueros or wrytinges, that shall be Inrolled by verte of \[this\] acte, concerne Maners landes tenementes or heredytamentes lying in sondry Shyres and places, Aut \[_sic_\] not all only within the lymete of the letters patentes of any of the seid prnycypall officers and the Clarke iojned with hym, That then yn euery suche Case the parties may haue suche euvidences and wrytynges knowleged and Inrolled be fore suche one of the seid prnycypall officers and the Clarke iojnyd with him as they wyll for their ease and Commodyte chose for the same, any thinge acte \[_sic_\] yn this acte to the contrary notwithstanding.

(20) And it ys also ordeynyd and enactyd by auctoryte aforeseyde that euery of the seide prnycypall officers, with one suche of the seide Clarkes as shalbe assocyate with him, shall haue powar and auctoryte to take the knowlegges of all oblygacyons acquytaunces and other wrytinges consernyng personall things, and to enrolle the same, in lyke maner and forme as they may doo wrytynges concernyng landes tenementes or heredytamentes by verte of this acte.

(21) Prouyded alweis that no person shalbe bownden to enrolle any suche oblygacyons acquytaunces or other wrytinges concernyng personall things but at their owne free will and pleasures, and yff suche wrytinges be not knowledgyd and Inrollyd, yet neuerthelesse they shalbe of the same strenght as they shuld haue ben as yf thys acte had \[never been\] had nor made ; Aid if suche things concernyng personall things be knowledgyd and enrolled by auctoryte of this acte, that then euery of them, so being knowledgyd and enrollyd, shalbe of the same strenght and force and effecte as yf they had ben knowledgyd afore any Jugeg of Record, and enrolled in any place amonges the kinges Recordes.

## Index

BARTOLUS, 191, 222, #27, 228, 230, 239, 242, 243, 290.

BASTARDY ORDERS, 157.

BAUDOUN, 226, 227.

BEAUROPT, cardinal, 510.

BEAUNAOIR, 100, 249.

BEGING, unlicensed, 511.

BELMAN, 158.

Benrefit of CLERGY, 523.

BenEVOLENCES, 26, 104.

Berthelet, 113, 308, 312.

BIGANY, 504.

Blackstonne, 375, 410, 413, 485, 536.

BodeWELL, Richard, 235.

Bodin, 190, 193-195, 196, 197, 198, 215, 261; his views on witchcraft, 509.

Bologna, 249.

Bolts, 263-264.

Bonser, bishop, 232.

Book of the Council, the, 62.

Bookshinding, 335.

Books, see Press.

Boroughs, the, character of in Middle Ages, 131 ; individual development of, 131-132 ; leet jurisdiction of, 132-133 ; separate commission of the peace for, 133 ; rotten, 94, 96.

Borsholders, 123.

Bourbon, duke of, to8.

Bourges, 226.

Bowstaves, 330.

Bowyer, 310.

Bacton, 4, 187, 100, 194, 204, 209, 221, 230, 249, 279, 286, 292, 415.

Bray, 26.

Bridewell, 395, 396.

Bridges, 142.

Brides, 306.

Brissaub, 223, 227, 246.

Britton, 230, 286.

Brooke's Bridgement, 212.

Buce, 259.

Budz, 225.

Building Acts, 303.

Burgerliches Geserzbuch, 292.

Burgolley, 44, 47, 48, 72, 320, 332.

Bustness of the Common Law Courts, quantity of, 253-256.

Bylaws, of parishes and older communities, 158 ; of trading companies, 352.

C

Cabinet, the, compared with the Tudor Council, 67, 68.

Cabot, Sebastian, 339.

Calandar, reform of the, 306.

Call to the Bar, orders as to, 270.

Calvinis, 19, 20, 43.

Cambridge, teaching of Roman law at, 228-229, 232-235 ; commission to inquire into, 233-234.

Camden, 49.

Canada, 48.

Canon Law, 228-232, 272 ; decline of throughout Europe, 244 ; influence of on development of equity, 275-276, 278 ; as to marriage, 490-491.

Canterbury, archbishop of, his rules as to admission of advocates, 236.

Capacity, natural and politic of the king, 202-204.

Capital, 317, 371, 391, 421.

Carriades, proclamations as to, 307.

Carriad FGDI, the, 113, 114, 115.

Cary, 259.

Case Law, 220, 221, 223, 224-225 ; in the Chancery, 278 ; helps to eliminate equitable ideas from the common law, 279.

Cateau Cambresis, treaty of, 43.

Catherine of Aragon, 493.

Cecil, 348.

Central Government, foreign development of in sixteenth century, 56-60 ; English development of, 60-107.

Ceremonis, ecclesiastical, 300.

Cestuique Use, 411, 416; capacity to be a, 427-430 ; legal position of, 430-431 ; nature of his interest, 432-437 ; incidents of his interest, 437-443 ; his liabilities, 431, 442-443 ; statutory extensions of his powers, 444-446 ; effect of Statute of Uses on, 461-462.

Challenges of Jurors, 524.

Chambre, des Comptes, 58 ; des Enquetes, 170 ; des de la Tournelle, 1 Chaucer, 403.

Cheke, 43.

Church, the, control of by Council,

81-82 ; use made by state of its organization, 83.

Church Alles, 152-153.

Church Hous, the, 153-154.

Church Rates, 153.

Chiurchwardens, 139, 141, 152, 153,

156, 157, 393, 397.

Civil Law, use of to statesmen and lawyers, 244-245 ; teaching of in Middle Ages, 228-232 ; in sixteenth century, 232-233 ; encouragement of at the Universities, 233-234 ; assistance of foreign teachers, 235 ; Doctors' Commons, 235-237 ; place of in England, 237-238 ; 272 ; a small reception of in the sixteenth century, 239 ; analogies and contrasts with continental development, 239 ; influence of on equity, 275-276 ; 278.

Clarendon, 361.

Classes of Society, the medieval idea,

304, 402 ; its decay, 402-403 ; tendency to fusion, 403-405 ; public duties of the different, 405 ; survival of older ideas, 304, 405-406 ; results of fusion of medieval and modern ideas,

406-407.

Clergy, status of the, 489.

ClERICAL Discipline, 489.

Clerk, to the Council, 62 ; of the peace,

150.

Clerks, to the justices of the peace, 148,

150 ; of the market, 360.

Cnut, 507.

Coinage, the, reform of, 48 ; proclamations as to, 297-298 ; debasement of, 391 ; offences connected with, 498,

511.

Coke, 130, 149, 173, 184, 186, 202, 205,

225, 253, 257, 272, 280, 288, 296, 349,

350, 351, 356, 357, 358, 362, 366, 378,

396, 432, 499, 518, 519, 537.

Colet, 29, 30, 41.

Collateral Warranty, 437.

Colonies, the, 48 ; foundation of, 338-340.

Combinations, to raise prices, 377 ; to raise wages, 382.

Commentators, the, see Post-glossators.

Commercial Law, growth of doctrines of, 361-362.

Commissions Appointed by the Council, 68-70.

Committees, of the Council, 67-68 ; for the state, 68 ; of the House of Commons, 177-178.

Common rights of, 364.

Common Privers, 158.

Common Field System, 364, 371.

Common Informers, 356-357.

Common Law, supremacy of in danger in sixteenth century, 284 ; national character of, 292-293 ; advantages to from Statute of Uses, 464.

Common Law Courts, their control of local government, 165 ; helped by growth of powers of Parliament, 164-165 ; business of in sixteenth century, 254-256; struggle with rival courts,

284-285.

Common Pleas, state of business in, in sixteenth century, 255.

Common Recoveries, 482 ; errors in, 483.

Commons, House of, opposition to Henry's proposals as to uses, 453-454,

460 , 461 ; see Parliament.

Commutual Courts and Officials, 122-125 ; judicial forms under which they acted, 133 ; constitutional importance of this, 133 ; 151.

Communeros, revolt of the, 108, 167.

Companies, trading, 48, 302, 355, 360 ; regulated and joint stock, 319-321.

Comparative Law, science of, 289.

Compounding Drbts, commissions for, 68, 69.

Conditions, common law, 416.

Conscience, see Equity.

Consile du Roi, 50-59, 109, 110, 111.

Consideration, needed to raise a use,

424, 425, 425-427 ; doctrine of compared with doctrine of uses and trusts,

407-408.

Congiracies, to depose or harm the king, 496-497 ; to levy war, 497 ; to liberate traitors, 500.

Conspiracy, 273.

Constaable and Marshall, court of, 238, 272.

Const

**Index**

Corporation Sole, the king as a, 203. Corporations, could not be reoffees to uses, 427-428 ; could be cestuis que use, 427-428. Correction, see Houses of Correction. Corruption OF Blood, 498. Corts, the, 107, 166, 167, 168, 170. Costs, 536-538. Cotton, Sir R., 62, 309, 310. Council, the Privy, 60-61 ; the Acts of the, 61-63 ; clerk of the, 62; composition of, 64-65 ; meetings of, 65 ; personnel, 65-67 ; committees of, 67-68 ; commissions and references, 68-70 ; relation to local government, 71-80, 162-165 ; relation to church, 81-83 ; relation to judicial system, 83-88, 284 ; relation to Parliament, 88-105, 189-190 ; compared with similar institutions abroad, 105-107, 163-165 ; criminal jurisdiction of, 273-274 ; enforcement of laws as to trade, 323-324 ; upholds monopolies, 347 ; upholds grants to sue for penalties, 357-358 ; control of food supply, 374-375 ; policy of as to inclosures, 370 ; success of poor law due to, 400-401 ; see Administrative Law. CouncilLoss, ordinary, 64 ; privy, 64. Councils of the North and Wales, 66, 73-74, 80, 84. Counter Reformation, the, 43-44. Counties Palatine, 127. County, business, 148 ; surveyor, 151 ; treasurer, 157. Court dels Aides, 58. Court Baron, the, 128, 129, 130. Court Customary, the, 128, 130. Coutts, political functions of, abroad, 169-172 ; in England, 188. Covonants, to stand seised, 426-427, 468 ; running with the reversion, 487. Cranmer, 39, 40. Creditors, frauds on, 443, 480-482. Criminal Law, character of legislation as to, 531-532 ; action of courts in developing, 533. Criminal Law and Procedure, legislation as to, 492-531. Criminal Procedure, continental and English development of compared, 528. Crompton, 119, 211, 212 ; his book on the Justices of the Peace, 116. Cromwell, Thomas, 32, 64, 72, 94, 96, 209, 253, 257, 260, 372. Cujas, 226, 235, 239, 286. Cunningham, 328, 339. Curtesy, 442. Customary Law, relation of sovereign to, 196. Cusvonus Revenue, the control of by crown, 105. Custos Rottlorum, the, 149-150. Dale, Valentine, 235. Dalton, his book on the sheriff, 119. D'Ewws, 175, 178, 180. De Homins replegiando, the writ, 526. De Tocquevillik, 56, 274. Debt, action of, 421. Debt, action of, 421. Debt, 485. Debt, 485. Debt, 485. Debt, 485. Debt, 485. Debt, 485. Debt, 410. Discontinuous, of estates, 483, 484, 485 ; of actions, 534. Dismissal, wrongful, 383. Dispressing Power, of the king, 205 ; delegation of, 347, 357-359 ; of the pope, 491. Disputed Elections, see Elections, 483, 486. Disclaim, 487. Disclaim, 487. Disclaim, theory of king's, 196, 200, 215. Divorce, Henry VIII's, 35, 450, 464. Dector of Civil Law, degree of, 229, 236. Doctor of Dscreres, degree of, 229. Doctor and Student, the dialogue of the, 259, 275-276, 316, 468 ; theory of equity contained in, 279-282. Doctors' Commons, 235-237. Donkau, 226, 227. Donkau, John, 41. Doukaen, 226. Doukaen, 226. Dower, 442, 462, 466. Drake, Sir Francis, 339. Drunkenness, 514-515. Duchy Chamber, court of, 271. Duck, Arthur, 226, 244, 247, 249. Dudel, 26. Dudel, 304. Duplessis-Mor

## Index

Eccclessiatical Polity, the, see Hooker. Executors, 411, 412, 414, 420, 435, 436, Eccclessiatical Property, 489-490. Edward VI., 40, 43, 96. Egerton, 274, 277, 472. Egorpians, 511. Ejjectment, action of, 485, 486. Elections to Parliament, interference with by council, 95 ; disputed, 95, 178. Elliot, Sir John, 175, 178. Elizabeth, 41, 90, 91, 96 ; accession of, 43 ; her Scotch policy, 44-45 ; her foreign policy, 44-47 ; her ecclessiatical settlement, 47-43 ; her economic and social policy, 48-49 ; character of her reign, 49-52 ; completes Henry VIII.'s work, 52-53 ; relation to Parliament, 53, 89-99 ; her action on the monopoly question, 348-349. Ellessmer, see Egerton. Elsyno, 310. Embrezzl-MENT, 501. Embracery, 520, 521. Emigration, proclamation as to, 307. Emmanuel, 246. Employer and Workman, law of, 379-387. Employment, contract of, 382-383. Empson, 26. Enclosures, see Inclosures. English Constitution, native development of, 4, 5. English Law, its medieval development compared with that of continental states, 223-225. Enrolmnt of Conveyances, draft bill as to, 457-459 ; why it failed to pass, 459-460 ; the statute of, 427, 460, 462, 468 ; evasion of, 468. Entail, Henry VIII.'s proposals as to, 450-453 ; when bar of is prohibited, 482. Entries, book of, 62. Entry, right of, 483, 484. Epistolae Obscuorum Viorum, 15. Equitable Ownership, nature of, 433-437. Equity, place of in the English legal system, 278-281 ; limits of its interference with law, 281-282 ; becomes a system, but dependent on law, 282-283. Erasmus, 13, 15, 29, 30, 258, 259 ; his Nowum Instrumentum, 30, 41, 52. Error, proceedings in, 536. Escheats, 437, 446. Egtates GENERAL, the, 20, 107, 166, 167, 168, 169, 197. Examination of Accused Persons, 273, 528-530. Excluding Court of, increase of business in, 255. Execution, process of, 534-535. Executors, 411, 412, 414, 420, 435, 436, 437 ; influence of trust concept on law of, 476 ; de son tort, 492. Executory Devises, 467.

**INDEX**

Franciscans, the, 416.

Franco-Gallia, the, 197, 198.

Fraud, proof of, 481.

Fredom of Trade, meaning of in sixteenth century, 350.

French Revolution, the, 199.

Frobisher, 339.

Fronde, wars of the, 59.

Fuero Juzoo, the, 246.

Fugitive Servants, 383.

Fuller, 351, 352.

Fundamental Laws, abroad, 169, 172;

not recognized in England, 186-187.

G

Gairedner, 27.

Gallico, 50.

Game, 505-506, 513.

Gaols, 142.

Gardinwr, bishop, 102, 201.

Gawdy, C. J., 383, 384.

General Sessions, see Quarter Sessions.

Gentili, 235, 239, 290.

German Law effect of the reception, 248 ; evolution of, 291-292.

Gerbany, divided state of, 8 ; reformation in, 17-19.

Gerson, John, 230, 276.

Gierke, 243.

Gilbert, C. B., 410.

Gilbert, Humphrey, 339.

Gllos, charitable works of, 160 ; used to control trade, 321-322, 355, 360 ; control of ordinances of, 322-323 ; control of common law and council, 324-325 ; regulations as to apprentices, 340-341 ; as to quality of goods, 342 ; religious, 389-390, 439.

GLANVIA, 4, 230, 286.

Glosss, the, 221.

Glossators, the, 220-222, 286.

Glouchester, statute of, 537.

Godefroy Jacques, 226.

Good Condition, 214.

Good Condition, 97.

Governors, Royal, 109.

Grand Conseil, 58.

Grand-Chambre, the, 170.

Gravina, 227.

Great Convecils, period of the, 21.

Gresham, Sir Th., 333, 403.

Gresham College, 237.

Grocyn, 29.

Groot Hugo de, see Grotius.

Grotius, 290, 291, 298.

Groups, personality of, 408 ;incorporatedated, 439, 444, 477-478 ; those which were helped by trust concept, 478-479; their characteristics, 479-480.

Guardianship, 477.

Gumpowder, 299, 330-331.

H

H Hakluytt, 49.

Hale, 337, 499.

Hallam, 72.

Hannibal, Thomas, 235.

Hanse, the, 332-333.

Harsburg, house of, 8.

Harrison, lord, 298.

Harvey, 51.

Haters, 335.

Hawarde, 86.

Haywards, 158.

Head borrows, 123.

Hriedelborg, 250.

Hinscuus, 227.

Henry VII, 10 ; problems confronting, 23-25 ; his character and policy, 25-28 ; Tudor policy foreshadowed by, 28-29.

Henry VIII, 10, 91, 92, 94, 102, 104, 283 ; his character and policy, 30-32 ; early years of reign, 33-34 ; policy after Wolsey's fall, 34-36 ; dissolution of the monasteries, 36-37 ; continuity the note of his domestic policy, 37-38, 283; pilgrimage of grace and its suppression, 38-39 ; maintenance of his ecclesiastical settlement, 39-40 ; his proposals for reform of land law, 450-455 ; legislation as to uses, 455-457 ; as to enrolment of conveyances, 457-459 ; as to wills of land, 465-466 ; his mar images and the law of treason, 493-494.

Hersy, 506-507, 509 ; proclamations as to, 300.

Herwick Books, proclamations as to, 299.

Hervey, Dr., 235.

High Commission, court of, 81-82.

High Court of Parliament, 183.

Highways, 139, 157.

Hindoo Law, 271.

Hobbs, 195.

Hobhouse, bishop, 152.

Hogwardens,
**INDEX**

HOTMAN, Jean, 235.

Houses of CORRECTION, 139, 144, 157,

J 396, 398.

Hudson, 502, 503, 516, 517, 518.

Hues and Cvx, the, 521-522.

Huings, W., 313.

Huugknots, the, 46.

HuIME, 345, 347, 351.

Huundred, 153, 160; liability of, 521-522.

Huugary, 3.

Huunting, 505-506.

HuSE, C.J., 432

HuSS, 9.

Huttren, Ulrich von, 15, 258.

J 1

I

**Index**

Kitchin, John, his book on the court leet and baron, 120-121; I30-131.

Knuvet, 376.

L.

Labourers, statutes of, 141, 379-380; principles underlying and their modification, 380-383, 390, 393, 394.

Lambard, 84, 130, 137, 138, 139, 140, 143, 144, 145, 146, 211; career of, 117; his Archainornia, 117; his Archeion, 117, 118; his Eirenarcha, 117, 118-119; his tracts on constables, etc., 117, 118, 119, 120.

Land Law, statutes relating to, 480-488.

Landlowners, statute of uses increases their powers, 473-476; their services to the state, 372-373.

Larceny by a Bailer, 501.

Latimer, lord, 420.

Law, new definition as result of theory of sovereignty, 195-196; supremacy of the, 111, 169, 188-189, 200, 201, 202, 275, 284, 290-291; flooker's theory of, 212-214.

Law of God, 279, 280, 281.

Law Merciant, 238, 240.

Law of Nature or Rkason, 279, 280, 281, 289, 290.

Law, John, 110.

League of Nations, 168.

Leases, by redesignical persons and colleges, 490.

Leather, trade in, 335.

Lee, Dr. Robert, 273.

Leet, the, 152, 153, 158; jurisdiction of, 127-131; in boroughs, 132-133.

Legal Education, in the Inns of Court, 263-264; compared with the universities, 270.

Lroisislation, effect of development of procedure of, 184-185.

Leicester, the earl of, 53.

Leonard, Miss, 395, 399, 400.

Lepanto, battle of, 9.

Leetup, 311.

Levant Company, the, 320.

Lex et Consuetudo Pakliamenti, 176.

Libel, 273.

Licensing of Ale-houses, 515.

Limitation, period of for indictments for certain kinds of reason, 499; for certain other indictments, 525; for personal actions, 533; for real actions, 484-486.

Linacre, 29.

Lit DE Justice, 171.

Littlerton, 230, 483.

Liveries, gifts, of, 520.

Loans to THE Crown, 104.

Local Government: _Abroad_--development of, 108-111; growth of official bureaucracy, 109-110; supported by standing army, 110; dependance of on the Conseil du Roi, 110-111; _In England_--compared with foreign development, 112; literature of, the medieval tracks, 112-115; books on justices of the peace and older officials, 115-116; books on justices of the peace. 117-119; books on other officials, 119-120; books on court baron and court leet, 120-121; medieval period, communual courts and officials, 122-125; the foudal element, 125-127; the franchises, 127-134; later medieval period, 134-137; the sixteenth century, new powers of justices of the peace, 137-145; new organization of justices of the peace, 145-151; the parish, 151-152; a unit of celestial government, 152-155; a unit of secular government, 155-160; why adapted to secular uses, 160-163; characteristics of English local government, 163-165.

Local Government Control of, by the council, 71-80, 162-163; contrasted with medieval and continental forms of control, 71-72; by the provincial councils, 73-74; by the judges of assize, 75-76; by the lords-lieutenant, 76-77; how the council acted, 77-79; support given by the council, 79; settlement of disputes, 79-80; control of the common law courts, 165; con flict between common law and administrative law of the council foreshadowed, 165-166.

London, 303, 304, 361; court of requests of, 539.

Long Parliament, the, 293, 329, 360.

Lords, House of, 92, 93.

Lords-Lieutenant,
Market Overt, 522-523. Market Overt, 522-523. Markborough, statute of, 448, 537. Markowe, 49. Marriage, of priests, 489 ; prohibited degrees of, 491-492. Market Women, 428 ; interest in land held to their use, 428-429 ; separate property of, 477. Marky, 40, 43, 91. Mary Queen of Scots, 44, 46, 47. Masters of Requests, English, 64 ; French, 57, 109. Maxors, control of by council, 78-79 ; disputes between, 79-80. Mendoza, the case of, 235. Mercantile System, the, 316, 366. Merchant Adventurkers, the, 320, 333, 381. Merchants of Andalusia, company of, 320. MIDdle Ages, legal and political ideas of, 21, 22, 240, 290. Midddle Classes, rise of the, 403-404. Mischframework, growth of conception of, 512-513 ; classes of, 514-521. Modern State, rise of in England and abroad, 54-55. Mohacz, battle of, 3, 9. Monasteries, charitable works of, 160. Monasteries, dissolution of, 36-37 ; effect on learning, 42 ; effect on land ownership, 372 ; effect on paperism, 391 ; helps to cause pilgrimage of grace, 464-465 ; other effects, 487, 489, 490. Monks, status of, 489. Monopoly Patent, 344-354 ; medieval grants, 344 ; ncw system introduced from Italy, 345-346 ; abuse of system by crown, 302, 346-348 ; Parliament-tary agitation against, 90, 348-349 ; common law rules as to, 349-353; James I.'s statute, 353-354 ; origins of modern patent law, 353-354 ; jurisdiction over patents, 354. Moore, 349. Moorts, 234, 263-264. Mores, Sir Th., 12, 17, 29, 33, 41, 64, 115, 258, 277, 439. Mortmain, evasion of statutes of, 444. Morton, cardinal, 26, 64. Mountjoy, lord, 29, 30. Mulder, 501. Mulderton, 308. Napter, 50. Napter, 50. National Defense, trade regulations to safeguard, 327-331. National Laws, 291-292. Navigation Acts, 328, 329, 340. Navy, 48 ; proclamations as to the, 299 ; statutes as to the, 327-333. Natherd, 158. Netherlands, religious wars in, 48-49. Nretrarity, 298. Netwoundland, 339. Nish Prius Casas, trial of at Westminster, 539. Non Obstante, 205. Norman Conquest, the, 242. North, Roger, 113. North, Still Th., 40. North, council of the, 66, 73-74, 80, 84. Northern Earls, rebellion of the, 47. Northumberland, duke of, 40. Norwich, 343, 395. Nova Statuta, 308. Noy, 349. Nululu Tempus, etc., rule abolished in certain cases, 525. Nvs, 243. O

**INDEX**

PARLEMENTS, 58, 59, 197 ; the Provin-Piliformage of Grace, the, 38-39, 89, cial, 107, 171-172 ; of Paris, 20, 107, 94, 245 ; effect of statute of uses on, 170-172.

PARLEMENT, in Tudor period, Wolsey's

Gislative of, 33 ; Henry VIII.'s management of, 35 ; The Reformation Parlment of, 35 ; Rise of Puritan opposition, Plantations, trade with the, 329.

48-49 ; Elizabeth's management of, Plays, 306.

53 ; control of by council, 88-105 ; place of in constitution, 88-89 ; growing importance of, 89-90 ; how far

PLEADERS, 306.

discussion was free, 90-92 ; skillful

PLEDING, 535-536.

control of by crown, 92-93 ; crown's

Plownd, 130, 279.

influence on composition of, 93-96 ; Poland, 3.

on business of, 96-99 ; position of

Pole, cardinal, 17.

speaker, 97-98 ; privy councillors in, Political Discussion, effect of reception on, 290.

104 ; its powers over taxation, 104-

Political Theory of the Middle Age, 290.

growth of, 173-174 ; effect of alliance

with lawyers, 174, 184-185 ; effect of

use made of Parliament by Tudors, 174 ; _Procedure_, 174-178 ; rules of debate, 175-176 ; the speaker, 176-

177 ; forms of legislation, 177 ; committees, 177-178 ; _Privilege_, 178-180 ; causes and effects of its development, 180-182 ; in what sense a court, 182-184 ; growth of distinction between legislative and judicial acts, 184-186 ; no fundamental laws, 186-

187 ; legislative supremacy of, 186-

187 ; 283-284 ; effects of this on the common law, 187-188 ; strengthens

common law control over officials, 188 ; so preserves medieval idea of

supremacy of law, 188-189 ; leads

to rival political theories, 189-190 ; these problems shelved in Tudor

period, 190 ; effect on position of

king, 200-201 ; Smith's treatment of, 211.

Partition, writ of, 483.

Pasquier, 250, 251, 252, 291.

Pasquier Farms, legislation as to, 365-

368.

Paments, see Monopoly Patents.

Pauper, status of the, 400, 404-405.

Pays, des Coutumes, 225, 241, 249, 250 ; du droit ecrit, 246.

PENAL STATUTES, 347.

PENALTIES, patents to sue for, 355, 357-

359.

Percy, Henry, will of, 420.

Perjury, 273, 515-519.

Perpetuities, creation of by way of use, 441 ; rule against, 474.

PERSON, offences against, 514.

Petry Sessions, 147.

Pewterers, 335.

Philip II., 19, 45, 46, 246, 249.

Pickopockets, 574.

Pikorimage of Grace, the, 38-39, 89, 94, 245 ; effect of statute of uses on, 464-465.

Piracy, 330.

Pitchov, 235.

Pitus V., 495.

Plamations, trade with the, 329.

Plavs, 306.

PleA Rolls, number of, Henry TV.-

Elizabeth, 254-255.

PleADERS, 306.

PleADING, 535-536.

PleADING, 130, 279.

Poles, 3-96.

Poles, cardinal, 17.

Political Discussion, effect of reception on, 290.

Political Lett., 300, 328.

Political Theories of the Middle Age, 290.

Politicques, the, 20.

Poor Law, need for, 387-388 ; medieval

expedients, 388-390 ; their failure, 390-392 ; principles underlying, 392 ; relief of poor, 155-157, 160-16

**Index**

Prince of Purpole, 268.

Printing, see Press.

Prisoners, relief of, 157.

Private Acts, 185.

- Privaterters, 298.

Privilleg of Parliament, 178-180.

Priv Councilfors, position of in House of Commons, 98-99; see Council, the Priv.

Procedure, civil, 532-539; criminal, 498-500, 533-532; offences connected with, 520-521.

Proces, 534-535.

ProcedamATIONS, how they differed from statutes, 99-100; prerogative to issue jealously guarded, 100; extended use after Henry VIII:'s reign, 100-101; why their sphere was ill-defined, 101-102; object of the statute of proclamations, 102-103; its effects, 296; the case of, 296-297; sphere ill-defined at close of sixteenth century, 104; contents of : as to administration of the government, 297-299; as to religion, 299-301; as to commerce and industry, 301-303; as to social life, 303-305; as to the press, 305-306; miscellaneous, 306-307.

Property, damage to, 503-504; offences against, 514.

Prophecies, false, 511.

Prophet, John, 62.

ProtHorne, 66.

Provincial Councils, the, 164, 274.

Pulton, 309; his edition of the statutes, 309-310; of the penal statutes, 312, 313; his abridgment, 313.

Purchase, for value without notice, 432.

Purchasers, frauds on, 443; 480-482.

Puritans, the, 47, 48.

Pinson, 308, 311.

Quagestiones, the, 69.

Quarter Sessions, 134, 135, 142-145; procedure at, 142-143; judicial form of, 144; the charge at, 143-144; App. I \[2\]; independent action of, 144; appellate jurisdiction of, 144.

R Rabhlais, 260.

Raleigh, 339.

Ranke, 19.

Rastrell, John, 253, 255, 256, 311; William, 311; his abridgment, 311-312.

Rates, 139, 141, 144; poor rate, 157; of 393; highway rate, 157; for destruction of vermin, 157; for relief of prisoners, 157; for disabled soldiers and sailors, 158; refusal to pay, 86.

Readings, 230, 263-264.

Real Actions, 414; limitation of, 484-486.

Reception of Roman Law, reasons for, 217; differences in character of, 217; 218; why important in English legal history, 318-319; \_continental and English development of law in Middle Ages compared,\_220-228; the glossators, 220-222; the post-glossators, 222-225; Renaissance jurists, 225-228; \_development of Roman Law in England,\_228-239; the deformation and the canon law, 228, 232; medieval teaching of civil and canon law, 229-232; decadence of in sixteenth century, 232-233; university commissions to remedy this, 232-234; revival of, 234-235; Doctors' Commons, 235-237; place of Roman law in English system, 237-239; _Contimental Reception:_ causes, 240-246; why favoured or disliked, 245-246; content of, 246-250; how effected, 250-252; _Influence of Reception on English Law:_ sixteenth century a critical time for the common law, 253; state of business in courts, 253-259; defects in law and procedure, 259-262; cessation of the Y.BB., 262; flourishing state of legal education at Inns of Court, 262-263 (see Inns of Court); effects of this on common law, 270-272; rival bodies of law arising, 272-283; courts administering the civil law, 272-273; council and Star Chamber, 273-275; the court of Chancey, 275-276; close connection of equity and common law, 276-278; conscience and equity, 278-282; dependence of on law, 282-283; existence of common law in no danger, 283-284; supremacy in danger, 284-285; peculiarities of English reception, 285-287; effect on form of English law, 287-288; similarities to continental developmentreason, 494-496; on belief in witch-craft, 509-510.

Reformation, the Scotch, 44-45; political ideas inspired by, 215.

Rejous Prokysorships, foundation of, 42.

Rezating, see Forestalling.

Replioous Dissent, political effects of, 198.

Reimandermen, frauds on, 482.

Reimandermers, 440, 474.

Renaissance, the, 4, 7, 11-54; new ideas of, 11-13; break with the old theological ideas, 13; in Latin and Teutonic countries, 15; effects of Reformation on, 14, 21; progress in England, 29-30 41-43, 49-52; effects of in England and abroad, 54.

Renaissance, legal, of twelfth and thirteenth centuries, 4, 7, 240-242.

Renaissance Jurists, the, 225-228, 239, 286, 288.

Reinr, recovery of, 487.

Replevin, 487.

Representative Assemplies, in continental states, 166-169, 172.

Reprisals, 298.

Requests, court of, 84, 273, 277, 284; masters of, see Masters of Requests.

Restitution, writ of, 522, 523.

Returna Brevium, 113, 114, 115.

Revels, at the Inns of Court, 267-268.

Revisions, frauds on, 482.

Ricardo, the school of, 379.

Rich, 277.

Ridley, 233.

Ritors, 140, 497, 503, 513, 520.

Rivers, conservation of, 139.

Rogues, 141, 157, 397, 398.

Roman Law, influence of on uses, 410; ownership in compared with English law, 434; see Reception of Roman Law.

Roman-Dutch Law, 225, 291.

Russia Company, 320, 339.

S

Sailors, relief of, 158, 399.

St. John's College, Oxford, 43.

Salman, the, 410, 411, 412, 417.

Saltretretre, 331; monopoly of lawful, 352.

Sanctuary, 523.

Sanders, 410.

Saunders, C. J., 470.

Saccia, 333.

Savengers, 158.

Scotch Law, 247, 248.

Secretaries of State, in France, 57; office of in England, 66-67.

Seisin, development of law as to, 483-484.

Selden, 298.

Serjeants-at-law, compared with doctors of civil and canon law, 230; their inns, 229; compared with Doctors' Commons, 237.

Service, procuring departure from, 383-384.

Session, court of, 251.

Sessions of Justicrs of the Peace, differentiation of, 146-149.

Settlement, law of, 156.

Settlements, strict, 475.

Sewers, 142.

Shakespeare, 49.

Shepherd, his court keeper's guide, 121.

Sheffield, the, 122; control of by the council, 79.

Ship-money, 105.

Shipping, 48; encouragement of, 327-331.

Sidney, 49.

Siete Partidas, 246.

Simony, 489.

Six Articles, Act of the, 39.

Skrts IV, 9.

Skeel, Miss, 74.

Skren, Sir John, 248.

Slander of the King, 511-512.

Smith, Sir Thomas, 43, 44, 64, 70, 97, 174, 175, 177, 181, 182, 201, 208, 209-210, 232, 235, 239, 270, 271, 403; his republic, 210-212.

Society, classes of, see Classes of Society.

Sododory, 504.

Soldiers, relief of, 158, 399.

Solictors, charges of, 538.

Somerset, the protector, 40, 102, 201, 233.

Sorexy, see Witchcraft.

Sovregrigently, theory of, 172-173; not yet grasped in England in the sixteenth century, 190, 208-209, 214-215; Bodin's theory of, 193- law as to forgery, 502-503; as to per-jury, 506-507, 518-519.

Starkey, 259, 261.

Statz, the, new position of in sixteenth century--_abroad_, 192; based on new theory of sovereignty, 193-196; see Sovereignty; opposition to theory, 197-198; based on medieval ideas, 158-199; why it failed, 199; _in England_, 200; Smith's book, 210-212; Hooker's book, 212-214; absence of definite theory, 214-215; influence of continental theories slight, 215-216.

State, reasons of, 86.

Statham's Abridgment, 262.

Statures, how they differed from pro-clamations, 99; at large, editions of, 308-310; abridgments of, 310-313; _as to Commerce and Industry_, 314-407; character of, 314-326; trade, 326-362; agriculture, food supply and prices, 362-379; employer and workman, 379-387; unemployment and pauperism, 387-402; classes of society, 402-407; _Ues and Trusts_, 407-430; see Ues and Trusts; _the Land Law_, 480-488; frauds on creditors, etc., 482; conveyancing, 483; seisin, 483-484; limitation of actions, 484-486; the termor, 486-487; landtord and tenant, 487; forcible entry, 487-488; _Excelensiatial Law_, 488-492; _Criminal Laws and Province_, 492-532; irenson, 492-500; felony, 500-512; misdemeanour, 512-521; other topics, 521-532; Civil Procedure, 532-539; characteristics of statutes of the period, 539-540.

Stathword, 203, 204.

Stephens, 492, 496, 501, 519.

Storey, John, 232.

Stowk, 253, 255, 389.

Strafford's Impacachment, 499.

Srickland, 92, 99.

Stuart Kinos, aims of the, 5.

Stuments of the Common Law, petition of, 253, 257.

Supremacy of the Law, see Law, Supremacy of ; the royal, 300.

Supreme Court of Judicature, 287.

Surveyors, of certain trades, 359; of highways, 156; court of, 271.

Swearing, 514.

${}^{\\ast}$Taille, the, 168.

${}^{\\ast}$Tanner, 88.

Tariff, adjustments of the, 298.

Taxation, control of council over, 104-105; control of Parliament over, 104-105, 174, 180.

Tenths and First Fruits, court of, 271.

Termor, the, his remedies, 413-414, 486-487.

Tiers Etat, the, 168.

Tilag, inclusive for, 369-370.

Tithes, 389, 490.

Tithino, the, 152, 158.

Tithino Man, 123.

Tobacco, growth of, 302, 340.

Toleration, growth of, 20, 21.

Tort, absence of legislation as to, 532.

Torture, 273.

Toulum-Smith, 152.

Township, 152, 158, 160.

Trade, medieval and modern theories as to, 316, 317, 318, 319, 321, 322, 324-326; regulation of, 326-362; to maintain national defence, 327-331; to maintain stock of precious metals, 331-332; to promote foreign trade, 332-340; to encourage industry, 341-354; enforcement of trade policy, 355-360; effects of this regulation, 361-362.

Tkatfors, fraudulent conveyances by, 482.

Traversk of Office, 539.

Treason, 492-500; statutes of temporary importance, 493-496; statutes of permanent importance, 496-498; constructive reason, 498; non-political treasons, 498; new rules as to trials for, 498-499, 523-524; effect of insanity, 500; forfeiture for, 500; conspiracy to liberate persons charged with, 500; service to king _de facto_,

## Index

Use upon a Use, the, 468-473.

Uses and Trusts, 407-480; position of in English law, 407-408; _medieval period_, 409-499; origin of, 410-417; development of by chancey, 417-443; control by legislature, 443-449; _The Statute of Uses_, 97, 449-473; its political causes, 450-461; its preamble, 460-461; provisions and effects of, 461-467; how far it succeeded, 467-473; _the use and the equitable Trust_, 473-480; see Trust.

Uses, active and passive, 463; creation of, 421-427; ill effects of, 455-456, 460; resulting. 423-424; springing and shifting, 440, 474.

Uses, feoffees to, 411,420, 432, 435, 436, 437, 438; why numerous, 421-422; capacity to be, 427-430; only holders of an estate in fee simple could be, 429-430, 469, 470, 471; position of at law and in equity, 430-431, 445; effect of Statute of Uses on, 461-462.

Uses, statute of, see Uses and Trusts.

Usus Modernus Pandectarum, 292.

Uttoria, the, 12; 33.

Vagabonbs, 155, 157, 303; definition of, 394.

Vagrants, 155, 388, 390, 391, 392. 394; 395, 513.

Vennuz, 530-531.

Vermin, destruction of, 155, 157.

Vestry, the open, 159; close, 159-160, 162; see Parish.

Vetera Statuta, the, 308.

Vienna, relief of, 9; foundation of a university at, 250.

Villeins, 402, 405, 428, 449.

Vinci, Leonardo da, 50.

Vindiciae contra Tyrannos, 198, 199.

Vinogradoff, 247, 253.

Vigginna, 329, 339.

Vives, 235.

Voluntary Conveyances, 424, 481-482.

Wages, of members of Parliament, 93-94; of workmen--rates, 144, 147, 303, 381-382; mode of fixing, 382-383; wisdom of this policy, 385-386.

Wales, Henry VIII.'s policy as to, 37, 38, 283; council of, 66, 73-74, 80, 84.

Walsingham, 47, 64.

Wards, the court of, 271, 466, 469;470, 472.

Wardship and Marriage, 442-443, 446, 447, 465-466.

Wars of Religion \[French\], political literature inspired by, 216.

Wights and Measures, 302.

Wentworth, Paul, 92; Peter, 92, 99, 179, 180.

Williams, Thomas, 260.

Wills, of land, 420, 422-423, 438-439; statutes of, 294, 465-466.

Wilson, Thomas, 272.

Wingatz, E., 313.

Witchcraft, 507-511.

Witnesses, two needed in treason trials, 499.

Wittenberg, 250.

Wolsey, 17, 32, 33, 34, 64, 115, 253, 257, 258; his colleges, 33, 41; his commission on inclusures, 366-367.

Wool, Trade, the, 334.

Woolf, 243.

Work, provision of, 392, 395-396, 397.

Workman and Employer, law of, 379-387.

Wriothesley, 257.

Wycliffe, 9, 292.

Yerar Books, the, development of English law in, 223-225; cessation of, 253, 262; printed editions of, 262; chancery cases in, 277.

Z

Zasius, 225.

Zouche, Richard, 290.

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