Front Page Titles (by Subject) English Law , 1307–1600. - The Collected Papers of Frederic William Maitland, vol. 2
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English Law , 1307–1600. - Frederic William Maitland, The Collected Papers of Frederic William Maitland, vol. 2 
The Collected Papers of Frederic William Maitland, ed. H.A.L. Fisher (Cambridge University Press, 1911). 3 Vols. Vol. 2.
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English Law, 1307–1600.
The desire for continuous legislation is modern. We have come to think that, year by year, Parliament must meet and pour out statutes; that every statesman must have in his mind some programme of new laws; that if his programme once become exhausted he would cease to be a statesman. It was otherwise in the Middle Ages. As a matter of fact a Parliament might always find that some new statute was necessary. The need for legislation, however, was occasioned (so men thought) not by any fated progress of the human race, but by the perversity of mankind. Ideally there exists a perfect body of law, immutable, eternal, the work of God, not of man. Just a few more improvements in our legal procedure will have made it for ever harmonious with this ideal; and, indeed, if men would but obey the law of the land as it stands, there would be little for a legislator to do.
During the fourteenth century a good deal is written upon the statute roll, and a good deal can still be said in very few words. “Also it is agreed that a Parliament shall be holden once a year or more often if need be.” This is a characteristic specimen of the brief sentences in which great principles are formulated and which by their ambiguity will provide the lawyers and politicians of later ages with plenty of matter for debate. Many of these short clauses are directed against what are regarded as abuses, as evasions of the law, and the king's officers are looked upon as the principal offenders. They must be repeated with but little variation from time to time, for it is difficult to bind the king by law. Happily the kings were needy; in return for “supply” they sold the words on the statute roll, and those words, of some importance when first conceded, became of far greater importance in after times. When we read them nowadays they turn our thoughts to James and Charles, rather than to Edward and Richard. The New Monarchy was not new. This, from its own point of view, was its great misfortune. It had inherited ancient parchment rolls which had uncomfortable words upon them.
But Parliament by its statutes was beginning to interfere with many affairs, small as well as great. Indeed, what we may consider small affairs seem to have troubled and interested it more even than those large constitutional questions which it was always hoping to settle but never settling. If we see a long statute, one guarded with careful provisos, one that tells us of debate and compromise, this will probably be a statute which deals with one particular trade; for instance, a statute concerning the sale of herring at Yarmouth fair. The thorniest of themes for discussion is the treatment of foreign merchants. Naturally enough our lords, knights, and burgesses cannot easily agree about it. One opinion prevails in the seaports, another in the upland towns, and the tortuous course of legislation, swaying now towards Free Trade and now towards Protection, is the resultant of many forces. The “omnicompetence,” as Bentham called it, of statute law was recognised by all, the impotence of statute law was seen by none. It can determine the rate of wages, the price of goods, the value of money; it can decide that no man shall dress himself above his station.
On the other hand, the great outlines of criminal law and private law seem to have been regarded as fixed for all time. In the twentieth century students of law will still for practical purposes be compelled to know a good deal about some of the statutes of Edward I. They will seldom have occasion to know anything of any laws that were enacted during the fourteenth or the first three-quarters of the fifteenth century. Parliament seems to have abandoned the idea of controlling the development of the common law. Occasionally and spasmodically it would interfere, devise some new remedy, fill a gap in the register of writs, or circumvent the circumventors of a statute. But in general it left the ordinary law of the land to the judges and the lawyers. In its eyes the common law was complete, or very nearly complete.
And then as we read the statute-roll of the fifteenth century we seem for a while to be watching the decline and fall of a mighty institution. Parliament seems to have nothing better to do than to regulate the manufacture of cloth. Now and then it strives to cope with the growing evils of the time, the renascent feudalism, the private wars of great and small; but without looking outside our roll we can see that these efforts are half-hearted and ineffectual. We are expected to show a profound interest in “the making of worsteds,” while we gather from a few casual hints that the Wars of the Roses are flagrant. If for a moment the Parliament of Edward IV can raise its soul above defective barrels of fish and fraudulent gutter tiles, this will be in order to prohibit “cloish, kayles, half-bowl, hand-in-hand and hand-out, quekeboard,” and such other games as interfere with the practice of archery.
In the end it was better that Parliament should for a while register the acts of a despot than that it should sink into the contempt that seemed to be prepared for it. The part which the assembled Estates of the Realm have to play in the great acts of Henry VIII may in truth be a subservient and ignoble part; but the acts are great and they are all done “by the authority of Parliament.” By the authority of Parliament the Bishop of Rome could be deprived of all jurisdiction, the monasteries could be dissolved, the king could be made (so far as the law of God would permit) supreme head of the English Church, the succession to the Crown could be settled first in this way, then in that, the force of statute might be given to the king's proclamations. There was nothing that could not be done by the authority of Parliament. And apart from the constitutional and ecclesiastical changes which everyone has heard about, very many things of importance were done by statute. We owe to Henry VIII—much rather to him than to his Parliament—not a few innovations in the law of property and the law of crime, and the Parliaments of Elizabeth performed some considerable legal exploits. The statutes of the Tudor period are lengthy documents. In many a grandiose preamble we seem to hear the voice of Henry himself; but their length is not solely due to the pomp of imperial phrases. They condescend to details; they teem with exceptions and saving clauses. One cannot establish a new ecclesiastical polity by half-a-dozen lines. We see that the judges are by this time expected to attend very closely to the words that Parliament utters, to weigh and obey every letter of the written law.
Just now and then in the last of the Middle Ages and thence onwards into the eighteenth century, we hear the judges claiming some vague right of disregarding statutes which are directly at variance with the common law, or the law of God, or the royal prerogative. Had much come of this claim, our constitution must have taken a very different shape from that which we see at the present day. Little came of it. In the troublous days of Richard II a chief justice got himself hanged as a traitor for advising the king that a statute curtailing the royal power was void. For the rest, the theory is but a speculative dogma. We can (its upholders seem to say) conceive that a statute might be so irrational, so wicked, that we would not enforce it; but, as a matter of fact, we have never known such a statute made. From the Norman Conquest onwards, England seems marked out as the country in which men, so soon as they begin to philosophise, will endeavour to prove that all law is the command of a “sovereign one,” or a “sovereign many.” They may be somewhat shocked when in the seventeenth century Hobbes states this theory in trenchant terms and combines it with many unpopular doctrines. But the way for Hobbes had been prepared of old. In the days of Edward I the text-writer whom we call Britton had put the common law into the king's mouth: all legal rules might be stated as royal commands.
Still, even in the age of the Tudors, only a small part of the law was in the statute-book. Detached pieces of superstructure were there; for the foundation men had to look elsewhere. After the brilliant thirteenth century a long, dull period had set in. The custody of the common law was now committed to a small group of judges and lawyers. They knew their own business very thoroughly, and they knew their own business very thoroughly, and they knew nothing else. Law was now divorced from literature; no one attempted to write a book about it. The decisions of the courts at Westminster were diligently reported and diligently studied, but no one thought of comparing English law with anything else. Roman law was by this time an unintelligible, outlandish thing, perhaps a good enough law for half-starved Frenchmen. Legal education was no longer academic—the universities had nothing to do with it, they could only make canonists and civilians—it was scholastic. By stages that are exceedingly obscure, the inns of court and inns of chancery were growing. They were associations of lawyers which had about them a good deal of the club, something of the college, something of the trade-union. They acquired the “inns” or “hospices”—that is, the town houses—which had belonged to great noblemen: for example, the Earl of Lincoln's inn. The house and church of the Knights of the Temple came to their hands. The smaller societies, “inns of chancery,” became dependent on the larger societies, “inns of court.” The serjeants and apprentices who composed them enjoyed an exclusive right of pleading in court; some things might be done by an apprentice or barrister, others required a serjeant; in the Court of Common Pleas only a serjeant could be heard. It would take time to investigate the origin of that power of granting degrees which these societies wielded. To all seeming the historian must regard it as emanating from the king, though in this case, as in many other cases, the control of a royal prerogative slowly passed out of the king's hand. But here our point must be, that the inns developed a laborious system of legal education. Many years a student had to spend in hearing and giving lectures and in pleading fictitious causes before he could be admitted to practice.
It is no wonder that under the fostering care of these societies English jurisprudence became an occult science and its professors “the most unlearned kind of most learned men.” They were rigorous logicians, afraid of no conclusion that was implicit in their premises. The sky might fall, the Wars of the Roses might rage, but they would pursue the even course of their argumentation. They were not altogether unmindful of the social changes that were going on around them. In the fifteenth century there were great judges who performed what may seem to us some daring feats in the accommodation of old law to new times. Out of unpromising elements they developed a comprehensive law of contract; they loosened the bonds of those family settlements by which land had been tied up; they converted the precarious villein tenure of the Middle Ages into the secure copyhold tenure of modern times. But all this had to be done evasively and by means of circumventive fictions. Novel principles could not be admitted until they were disguised in some antique garb.
A new and a more literary period seems to be beginning in the latter half of the fifteenth century, when Sir John Fortescue, the Lancastrian Chief Justice, writing for the world at large, contrasts the constitutional kingship of England with the absolute monarchy of France, and Sir Thomas Littleton, a Justice in the Court of Common Pleas, writing for students of English law, publishes his lucid and classical book on the tenure of land. But the hopes of a renascence are hardly fulfilled. In the sixteenth century many famous lawyers added to their fame by publishing reports of decided cases and by making “abridgments” of the old reports, and a few little treatises were compiled; but in general the lawyer seems to think that he has done all for jurisprudence that can be done when he has collected his materials under a number of rubrics alphabetically arranged. The alphabet is the one clue to the maze. Even in the days of Elizabeth and James I Sir Edward Coke, the incarnate common law, shovels out his enormous learning in vast disorderly heaps. Carlyle's felicity has for ever stamped upon Coke the adjective “tough”—“tough old Coke upon Littleton, one of the toughest men ever made.” We may well transfer the word from the man to the law that was personified in him. The English common law was tough, one of the toughest things ever made. And well for England was it in the days of Tudors and Stuarts that this was so. A simpler, a more rational, a more elegant system would have been an apt instrument of despotic rule. At times the judges were subservient enough: the king could dismiss them from their offices at a moment's notice; but the clumsy, cumbrous system, though it might bend, would never break. It was ever awkwardly rebounding and confounding the statecraft which had tried to control it. The strongest king, the ablest minister, the rudest Lord-Protector could make little of this “ungodly jumble.”
To this we must add that professional jealousies had been aroused by the evolution of new courts, which did not proceed according to the course of the common law. Once more we must carry our thoughts back to the days of Edward I. The three courts—King's Bench, Common Bench, and Exchequer—had been established. There were two groups of “Justices,” and one group of “Barons” engaged in administering the law. But behind these courts there was a tribunal of a less determinate nature. Looking at it in the last years of the thirteenth century we may doubt as to what it is going to be. Will it be a house of magnates, an assembly of the Lords Spiritual and Temporal, or will it be a council composed of the king's ministers and judges and those others whom he pleases for one reason or another to call to the council board? As a matter of fact, in Edward I's day, this highest tribunal seems to be rather the council than the assembly of prelates and barons. This council is a large body; it comprises the great officers of state—Chancellor, Treasurer, and so forth; it comprises the judges of the three courts; it comprises also the Masters or chief clerks of the Chancery, whom we may liken to the “permanent under-secretaries” of our own time; it comprises also those prelates and barons whom the king thinks fit to have about him. But the definition of this body seems somewhat vague. The sessions or “parliaments” in which it does justice often coincide in time with those assemblies of the Estates of the Realm by which, in later days, the term “parliaments” is specifically appropriated, and at any moment it may take the form of a meeting to which not only the ordinary councillors, but all the prelates and barons, have been summoned. In the light which later days throw back upon the thirteenth century we seem to see in the justiciary “parliaments” of Edward I two principles, one of which we may call aristocratic, while the other is official; and we think that, sooner or later, there must be a conflict between them—that one must grow at the expense of the other. And then again we cannot see very plainly how the power of this tribunal will be defined, for it is doing work of a miscellaneous kind. Not only is it a court of last resort in which the errors of all lower courts can be corrected, but as a court of first instance it can entertain whatever causes, civil or criminal, the king may evoke before it. Then lastly, acting in a manner which to us seems half judicial and half administrative, it hears the numerous petitions of those who will urge any claim against the king, or complain of any wrong which cannot be redressed in the formal course of ordinary justice.
In the course of the fourteenth century some of these questions were settled. It became clear that the Lords’ House of Parliament, the assembly of prelates and barons, was to be the tribunal which could correct the mistakes in law committed by the lower courts. The right of a peer of the realm to be tried for capital crimes by a court composed of his peers was established. Precedents were set for those processes which we know as impeachments, in which the House of Lords hears accusations brought by the House of Commons. In all these matters, therefore, a tribunal technically styled “the King in Parliament,” but which was in reality the House of Lords, appeared as the highest tribunal of the realm. But, beside it, we see another tribunal with indefinitely wide claims to jurisdiction—we see “the King in Council.” And the two are not so distinct as an historian, for his own sake and his readers’, might wish them to be. On the one hand, those of the King's Council who are not peers of the realm, in particular the judges and the Masters of the Chancery, are summoned to the Lords’ House of Parliament, and only by slow degrees is it made plain to them that, when they are in that House, they are mere “assistants” of the peers, and are only to speak when they are spoken to. On the other hand, there is a widespread, if not very practical, belief that all the peers are by rights the king's councillors, and that any one of them may sit at the council board if he pleases. Questions enough are left open for subsequent centuries.
Meanwhile the Council, its actual constitution varying much from reign to reign, does a great deal of justice, for the more part criminal justice, and this it does in a summary, administrative way. Plainly there is great need for such justice, for though the representative commoners and the lawyers dislike it, they always stop short of demanding its utter abolition. The commoners protest against this or that abuse. Sometimes they seem to be upon the point of denouncing the whole institution as illegal; but then there comes some rebellion or some scandalous acquittal of a notorious criminal by bribed or partial jurors, which convinces them that, after all, there is a place for a masterful court which does not stand upon ceremony, which can strike rapidly and have no need to strike twice. They cannot be brought to admit openly that one main cause of the evils that they deplore is the capricious clumsiness of that trial by jury which has already become the theme of many a national boast. They will not legislate about the matter, rather they will look the other way while the Council is punishing rich and powerful offenders, against whom no verdict could have been obtained. A hard line is drawn between the felonies, for which death is the punishment, and the minor offences. No one is to suffer loss of life or limb unless twelve of his neighbours have sworn to his guilt after a solemn trial; but the Council must be suffered to deal out fines and imprisonments against rioters, conspirators, bribers, perjured jurors; otherwise there will be anarchy. The Council evolves a procedure for such cases, or rather it uses the procedure of the canon law. It sends for the accused; it compels him to answer upon oath written interrogatories. Affidavits, as we should call them, are sworn upon both sides. With written depositions before them, the Lords of the Council, without any jury, acquit or convict. The extraction of confessions by torture is no unheard-of thing.
It was in a room known as the Star Chamber that the Council sat when there was justice to be done, and there, as “the Court of Star Chamber,” it earned its infamy. That infamy it fairly earned under the first two Stuart kings, and no one will dispute that the Long Parliament did well in abolishing it. It had become a political court and a cruel court, a court in which divines sought to impose their dogmas and their ritual upon a recalcitrant nation by heavy sentences; in which a king, endeavouring to rule without a Parliament, tried to give the force of statutes to his proclamations, to exact compulsory loans, to gather taxes that the Commons had denied him; a whipping, nose-slitting, ear-cropping court; a court with a grim, unseemly humour of its own, which would condemn to an exclusive diet of pork the miserable Puritan who took too seriously the Mosaic prohibition of swine's flesh. And then, happily, there were doubts about its legality. The theory got about that it derived all its lawful powers from a statute passed in 1487, at the beginning of Henry VII's reign, while manifestly it was exceeding those powers in all directions. We cannot now accept that theory, unless we are prepared to say that for a century and a half all the great judges, including Coke himself, had taken an active part in what they knew to be the unlawful doings of the Council—the two Chief Justices had habitually sat in the Star Chamber. Still we may be glad that this theory was accepted. The court was abolished in the name of the common law.
It had not added much to our national jurisprudence. It had held itself aloof from jurisprudence; it had been a law unto itself, with hands free to invent new remedies for every new disease of the body politic. It had little regard for precedents, and, therefore, men were not at pains to collect its decisions. It had, however, a settled course of procedure which, in its last days, was described by William Hudson in a very readable book. Its procedure, the main feature of which was the examination of the accused, perished with it. After the Civil War and the Restoration no attempt was made to revive it, but that it had been doing useful things then became evident. The old criminal law had been exceedingly defective, especially in relation to those offences which did not attain the rank of felonies. The King's Bench had, for the future, to do what the Star Chamber had done, but to do it in a more regular fashion, and not without the interposition of a jury.
Far other were the fortunes of the Star Chamber's twin sister, the Court of Chancery. Twin sisters they were; indeed, in the fourteenth century it is hard to tell one from the other, and even in the Stuart time we sometimes find the Star Chamber doing things which we should have expected to be done by the Chancery. But, to go back to the fourteenth century, the Chancellor was the king's first minister, the head of the one great secretarial department that there was, the President of the Council, and the most learned member of the Council. Usually he was a bishop; often he had earned his see by diligent labours as a clerk in the Chancery. It was natural that the Lords of the Council should put off upon him, or that he should take to himself, a great deal of the judicial work that in one way or another the Council had to do. Criminal cases might come before the whole body, or some committee of it. Throughout the Middle Ages criminal cases were treated as simple affairs; for example, justices of the peace who were not trained lawyers could be trusted to do a great deal of penal justice, and inflict the punishment of death. But cases involving civil rights, involving the complex land law, might come before the Council. Generally, in such cases, there was some violence or some fraud to be complained of, some violence or fraud for which, so the complainant alleged, he could get no redress elsewhere. Such cases came specially under the eye of the Chancellor. He was a learned man with learned subordinates, the Masters of the Chancery. Very gradually it became the practice for complainants who were seeking the reparation of wrongs rather than the punishment of offences, to address their petitions, not to the King and Council, but to the Chancellor. Slowly men began to think of the Chancellor, or the Chancery of which he was president, as having a jurisdiction distinct from, though it might overlap, that of the Council.
What was to be the sphere of this jurisdiction? For a long time this question remained doubtful. The wrongs of which men usually complained to the Chancellor were wrongs well enough known to the common law—deeds of violence, assaults, land-grabbing, and so forth. As an excuse for going to him, they urged that they were poor while their adversaries were mighty, too mighty for the common law, with its long delays and its purchasable jurors. Odd though this may seem to us, that court which was to become a byword for costly delay started business as an expeditious and a poor man's court. It met with much opposition: the House of Commons did not like it, and the common lawyers did not like it; but still there was a certain half-heartedness in the opposition. No one was prepared to say that there was no place for such a tribunal; no one was prepared to define by legislation what its place should be.
From the field of the common law the Chancellor was slowly compelled to retreat. It could not be suffered that, merely because there was helplessness on the one side and corruptive wealth on the other, he should be suffered to deal with cases which belonged to the old courts. It seems possible that this nascent civil jurisdiction of the Chancellor would have come to naught but for a curious episode in the history of our land law. In the second half of the fourteenth century many causes were conspiring to induce the landholders of England to convey their lands to friends, who, while becoming the legal owners of those lands, would, nevertheless, be bound by an honourable understanding as to the uses to which their ownership should be put. There were feudal burdens that could thus be evaded, ancient restrictions which could thus be loosened. The Chancellor began to hold himself out as willing to enforce these honourable understandings, these “uses, trusts or confidences” as they were called, to send to prison the trustee who would not keep faith. It is an exceedingly curious episode. The whole nation seems to enter into one large conspiracy to evade its own laws, to evade laws which it has not the courage to reform. The Chancellor, the judges, and the Parliament seem all to be in the conspiracy. And yet there is really no conspiracy: men are but living from hand to mouth, arguing from one case to the next case, and they do not see what is going to happen. Too late the king, the one person who had steadily been losing by the process, saw what had happened. Henry VIII put into the mouth of a reluctant Parliament a statute which did its best—a clumsy best it was—to undo the work. But past history was too strong even for that high and mighty prince. The statute was a miserable failure. A little trickery with words would circumvent it. The Chancellor, with the active connivance of the judges, was enabled to do what he had been doing in the past, to enforce the obligations known as trusts. This elaborate story we can only mention by the way; the main thing that we have to notice is that, long before the Tudor days—indeed, before the fourteenth century was out—the Chancellor had acquired for himself a province of jurisdiction which was, in the opinion of all men, including the common lawyers, legitimately his own. From time to time he would extend its boundaries, and from time to time there would be a brisk quarrel between the Chancery and the law courts over the annexation of some field fertile of fees. In particular, when the Chancellor forbade a man to sue in a court of law, or to take advantage of a judgment that he had obtained in a court of law, the judges resented this, and a bitter dispute about this matter between Coke and Ellesmere gave King James I a wished-for opportunity of posing as the supreme lord of all the justice that was done in his name and awarding a decisive victory to his Chancellor. But such disputes were rare. The Chancellors had found useful work to do, and they had been suffered to do it without much opposition. In the name of equity and good conscience they had, as it were, been adding an appendix to the common law. Every jot and tittle of the law was to be fulfilled, and yet, when a man had done this, more might be required of him in the name of equity and good conscience.
Where were the rules of equity and good conscience to be found? Some have supposed that the clerical Chancellors of the last Middle Ages found them in the Roman or the Canon Law, and certain it is that they borrowed the main principles of their procedure from the canonists. Indeed, until some reforms that are still very recent, the procedure of the Court of Chancery was the procedure of an Ecclesiastical Court. In flagrant contrast to the common law, it forced the defendant to answer on oath the charges that were brought against him; it made no use of the jury; the evidence consisted of written affidavits. On the other hand, it is by no means certain that more than this was borrowed. So far as we can now see, the Chancellors seem to get most of their dominant ideas from the common law. They imitate the common law whenever they can, and depart from it reluctantly at the call of natural justice and common honesty. Common honesty requires that a man shall observe the trust that has been committed to him. If the common law will not enforce this obligation it is failing to do its duty. The Chancellor intervenes, but in enforcing trusts he seizes hold of and adopts every analogy that the common law presents. For a long time English equity seems to live from hand to mouth. Sufficient for the day are the cases in that day's cause-list. Even in the seventeenth century men said that the real measure of equity was the length of the Chancellor's foot. Under the Tudors the volume of litigation that flowed into the Chancery was already enormous; the Chancellor was often sadly in arrear of his work, and yet very rarely were his decisions reported, though the decisions of the judges had been reported ever since the days of Edward I. This shows us that he did not conceive himself to be straitly bound by precedents: he could still listen to the voice of conscience. The rapid increase in the number of causes that he had to decide began to make his conscience a technical conscience. More and more of his time was spent upon the judgment-seat. Slowly he ceased to be, save in ceremonial rank, the king's first minister. Wolsey was the last Chancellor who ruled England. Secretaries of State were now intervening between the king and his Great Seal. Its holder was destined to become year by year more of a judge, less of a statesman. Still we must look forward to the Restoration for the age in which the rules of equity begin to take a very definite shape, comparable in rigour to the rules of the common law.
Somehow or another, England, after a fashion all her own, had stumbled into a scheme for the reconciliation of permanence with progress. The old mediaeval criminal law could be preserved because a Court of Star Chamber would supply its deficiencies; the old private law could be preserved because the Court of Chancery was composing an appendix to it; trial by jury could be preserved, developed, transfigured because other modes of trial were limiting it to an appropriate sphere. And so our old law maintained its continuity. As we have said above, it passed scathless through the critical sixteenth century, and was ready to stand up against tyranny in the seventeenth. The Star Chamber and the Chancery were dangerous to our political liberties. Bacon could tell King James that the Chancery was the court of his absolute power. But if we look abroad we shall find good reason for thinking that but for these institutions our old-fashioned national law, unable out of its own resources to meet the requirements of a new age, would have utterly broken down, and the “ungodly jumble” would have made way for Roman jurisprudence and for despotism. Were we to say that that equity saved the common law, and that the Court of Star Chamber saved the constitution, even in this paradox there would be some truth.