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THE KING’S GOVERNMENT AND THE COMMON LAW 1471-1641 THE KING’S GOVERNMENT AND THE COMMON LAW 1471 - 1641 By Sir CHARLES OGILVIE, c.s.i., c.b.e., m.a. Sometime Lecturer in History in the University of St. Andrews BASIL BLACKWELL OXFORD 1958 (355 © BASIL BLACKWELL OXFORD 1958 Printed by Messrs. Billing and Sons Ltd., London Printing Works, Guildford, Surrey, and bound at the Kemp Hall Bindery in the city of Oxford. ONULP To G.E.M.O. and M.B.S.B. 3029 ACKNOWLEDGEMENTS My attention was first drawn to the influence of the theory and practice of the Common Law on the history of England by the inspiring lectures of Dr. K. W. M. Pick- thorn, M.P., of Corpus Christi College, Cambridge, especially those dealing with the Judicial and Parliamentary career of Sir Edward Coke. I also owe much to the advice and criticism of Professor W. L. Burn, of the University of Durham, on the arrangement of the book, on the expansion of certain parts of it, notably those dealing with the Chancery, and on the elimination of irrelevancies. Any mistakes, on the other hand, either in matters of fact, or in deduction therefrom, are entirely my own work. C. Macl. G. Ogilvie. vi CONTENTS CHAPTER PAGE I. Introductory x II. The Origins of the Common Law 9 III. The Development of Common Law Procedure 15 IV. The Disappearance of Equity 25 V. The Creation and Development of the Equitable Jurisdiction of Chancery till the End of the Fifteenth Century 34 VI. The Criminal Law 43 VII. The Restoration of Order (I)—The Yorkists 48 VIII. The Restoration of Order (II)—Henry VII 55 IX. The Restoration of Order (III)—Wolsey 67 X. Henry VIII and the Cessation of Projects of Law Reform 73 XI. The Organization of the Common Law Courts and Chancery during the Later Tudor and Stuart Periods 79 XII. The Court of Requests from the Reign of Henry VIII 88 XIII. The Court of Chancery in the XVIth and XVIIth Centuries 91 XIV. The Criminal Jurisdiction of the King’s Council from 1540 98 XV. The King’s Council and the Civil Law 113 XVI. The Common Lawyer’s Counter Attack on Chancery and the Prerogative Courts 118 XVII. The Direct Attack on the King’s Government 134 XVIII. The King’s Counter Attack on the Common Law, and its Defeat 144 XIX. Conclusion 161 Index 169 vii CHAPTER I INTRODUCTORY Much has been written about the King’s Government in Tudor and Stuart times, and something about that of the Yorkists. One main aspect of the problem facing the “New Monarchy” has however attracted little systematic attention from political and constitutional historians. There has been no general recognition of the part played by the procedure and practice of the Courts of Justice in the day-to-day administration of the law. It may indeed be said that there has been a failure to perceive the close and organic connection between the social, economic, and political malaise of the fifteenth, sixteenth, and seventeenth centuries, and the hoary but sinewy deformities of the English legal system. It is, moreover, arguable that the struggle of the “New Monarchy” to restore and maintain order was more with the law than with the law breakers. Also it may reason¬ ably be held that the efforts of the King’s Government to mitigate the rigours of the Civil Courts in the interests of the ordinary citizen were, in part at least, responsible for the downfall of Charles I. The main cause for the neglect of this factor may perhaps be found in the undifferentiated use of the word ‘law’. The term normally evokes general notions of order, rectitude, and impartial justice, or the idea of a regulating principle, but not detailed considerations of legal technicalities and intricate procedural rules. But they too are ‘law’. In England their transcendant import could hardly have been exaggerated up to the second half of the nineteenth century. But as Sir Frederick Pollock wrote (with reference to the practical application of legal principles)—“We have come in this country to look upon law as a subject so technical and difficult, not to say repulsive, that nobody but lawyers can well meddle with it.” Mait¬ land held the same opinion. “With all their love of pohtics and pubhc affairs Englishmen are easily content with knowing nothing of the ordinary Civil law under which they live.”1 1 F. Pollock, Essays in Jurisprudence and Ethics, London 1882, p. 198, and F. W. Maitland, Collected Papers, Vol. II, Cambridge 1911, pp. 162-3. B I 2 THE KING’S GOVERNMENT AND THE COMMON LAW On the other hand in no country is there, or was there, deeper traditional reverence for the idea of the law than in England. It was held to define, and almost to sanctify, the indefeasible rights of individual freemen, and particularly their rights in property. “As one looks at the Common Law as a whole, one must continually notice the insistent testimony it bears to its feudal origins.”1 There are certainly some pre-Conquest elements to be considered, but these were not altogether ahen to the feudal custom of the Anglo- Norman King’s tenants-in-chief, which became not only the private law of all free Englishmen, but also the enduring foundation of public law. It was based upon the fundamental notion of Fealty,2 not on ultimate obedience to authority, and long after feudalism had decayed, it was almost universally accepted by the politically valid class that the safeguarding of the national liberties depended upon the preservation of what had become a national heritage. The position of the unique English legal system was also fortified by generally accepted theory. The jurists and pohtical philosophers of the Middle Age held that the positive law of any society acquired its sanction from the Divine Law by which the whole Universe is governed, and this came to be considered to apply to procedural as well as to substantive law. There could be no legislation, at least theoretically, in the modern sense of the word. Law was not made. |It was recognized as the result of generations of experience, and then 'duly declared and accepted. Good law must be old law. The longer positive law had continued unaltered, the more certainly could it be considered to be part of the Divine Law, and the champions of the Common Law in the sixteenth and seventeenth centuries claimed for it an immemorial antiquity. To them it was not a piecemeal system slowly developed from the Royal Writs of the twelfth and thirteenth centuries, but the time-honoured custom of the freemen of England, which had survived not merely the Norman, but the 1 W. T. Barbour, History of Contract in Early English Equity, Oxford, Clarendon Press, 1914, Cap. I, p. n. * “From the eleventh century at latest the fealty of the subject was compared, and even identified with the homage of the vassal. Although this did not mean that the relationship between monarch and subject was wholly feudalized, in the law of the land the mutual relations of the two were assimilated to the contract between Lord and Vassal.” Kern—Kingship and Law, Oxford, Blackwell, 1948, p. 121. “All well founded private rights were protected from arbitrary change, as parts of the same objective legal structure as that to which the monarch owed his own authority.” Ibid., p. 70. INTRODUCTORY 3 Saxon conquest, and the main duty of the King was to protect and preserve it. It seems that the course of the courts” with all its archaic formalism and technical elaboration came to share in the sanctity of the underlying principles. Because the Common Law j , partook of the nature of the eternally, universally, and immutably/ binding ordinances of God, and was indeed a reflection of them, 0/ of part of them, it was to be observed by Princes as much as by subjects. This fitted in well with the fundamental notion of Fealty. The law in this sense was sovereign. In spite of the revolution in thought brought about by the Renaissance, and by the doctrine of royal absolutism plausibly extractable from the study of Roman Jurisprudence, the pre-eminent position of the law survived in England till 1641. This may well have been due to the fact that the common or national law had been rooted in feudal custom for four hundied yeais. The reciprocal character of fealty, and the protection it gave to acknowledged individual rights, ran completely counter to any form of absolutist doctrine. It cannot be too strongly insisted that the Common Law was public law as well as private. It was regarded as a barrier against arbitrary exactions, which the Roman Law, as received in France, clearly did not provide. As Fortescue said, the King of England was unable to burden an unwilling people with strange imposts, so that, ruled by laws they themselves desire, they freely enjoy their properties, and are despoiled neither by their own King, nor any other”.1 The actual exercise of the royal authority was consequently severely restricted. The King’s prerogative was to govern. No one in this period would seriously have disputed this, at least until the seventeenth century. The desire of the ancient territorial aristocracy to co-operate with the King, or even to control him, in the business of government had ceased to be effective after Edward IV regained his throne. The newer and potentially more formidable aristocracy of the upper middle class did not begin to show its teeth for nearly a century after 1471. But the exercise of the King’s absolute pre¬ rogative was in practice limited by the prerogative of the subject, which, save in immediate national emergencies, was equally indefeasible. The Kiing was expected “to live of his own”, and to bear not only the expenses of his household, but the cost of carrying 1 Sir John Fortescue, De Laudibus legum Angliae, ed. S. B. Chrimes, Cambridge Studies in Legal History, 1942, Cap. IX, p. 25.