A Concise History of the Common Law. Theodore F. T. Plucknett
Council which ensured the smooth working of the various organs of the administration. As a result, the fifteenth century possessed as highly centralised a constitution as one could expect to find, considering that communications—the nerves of a bureaucracy—were still so tardy; such machinery as did exist, however, was to a striking degree amenable to Council influences, and at times subject to Council control.”1
For a time the system worked; while the novelty of it lasted, the barons appeared fairly regularly at the Council table and busied themselves with the daily work of government. But it could not last very long. To lords who were used to power and longed for more, the tiresome routine of a government office was irksome, and as the fifteenth century proceeds we note the increasing difficulty of assembling any number of lords. With their defection the machinery of government was bound either to collapse completely or else to fall into the hands of a group of minor officials. Finally a way was found whereby the regular business of administration was left to professional clerks and household officials, while the lords trusted to their influence in Parliament and the Great Council to be able to supervise the general progress of events. But even this proved too much for the barons. Sooner or later it was unavoidable that they should be divided into the two camps of Lancaster and York, and the Wars of the Roses were an inevitable result; and so the mediaeval baronage finally destroyed itself.
THE LANCASTRIAN CONSTITUTION
To the historians and political antiquaries of the seventeenth century the records of the Lancastrian period were a rich mine of precedents for parliamentary procedure, and their interpretation of the history of the fifteenth century was decisive during the period of the Great Rebellion. To the leaders of the opposition to Charles I, the Parliaments of Henry IV and his successors seemed just the same in composition, in powers and in constitutional spirit as the Parliaments of their own day. Just as the “myth” of the Great Charter is more significant than the Charter itself, so the seventeenth-century interpretation of Lancastrian history has had more practical effect than the actual events would warrant.2 But to an historian who would examine the constitution under the Lancastrian kings and free his mind from the theories which were current in the reigns of James I and Charles I the picture seems rather different. The institutions were there and we can read about them in language which looks strangely modern, but, nevertheless, the spirit within them is still feudal. It was characteristic of the middle ages that the law of land and the property ideas connected with it should take the place and serve the purpose of what is now called constitutional or public law. It is perfectly clear that this was still the case under the Lancastrians.
PROPERTY AND PUBLIC LAW
When great public questions arose, as happened more than once, they were discussed in terms of feudal property. Indeed, since this paragraph was first written, a distinguished mediaevalist has expressed this attitude in words which deserve careful thought:
“If I were asked which of the famous maxims into which the political thought of the world has at times been compressed is the one which on the whole best comprises the living political conceptions of the later middle ages, my choice, I imagine, would be rather unexpected, and not in all cases accepted, but it is one which my study of this period makes me willing to defend. It is the aphorism from Seneca’s De Beneficiis, ‘Ad reges enim potestas omnium pertinet: ad singulos, proprietas’—to kings belongs authority over all: to private persons property.”1
Nor were the middle ages alone in looking to the idea of property for their principal protection, for it lies at the root of much American constitutional law: the peculiarity lay rather in the fact that the elaborate doctrines of property law were themselves used as a sort of constitutional law. It was not until we reach the reign of Edward IV that we find the first examples of reasoning which are truly and essentially modern upon such questions.2
THE ENFORCEMENT PROBLEM
The same thing is true of local conditions. The barons who hoped to establish their domination over the Crown were carrying out the same policy in the sphere of local politics. Large masses of evidence3 bear witness to the extent to which local government was demoralised through the influence of the great landowners. Trial by jury collapsed utterly;4 parliamentary elections either represented the will of the local magnate or took the form of small battles; the administration of law both at Westminster and in the country was seriously hampered by the breakdown of local machinery and widespread corruption. The lawyers did all they could under the circumstances. They elaborated the law patiently and skilfully. A succession of judges of marked ability were making decisions of great importance, but it was on the administrative and political side that the common law became ineffectual.
THE YORKISTS
By the time the Wars of the Roses were over the baronial ranks on both sides had been seriously depleted. In fact the baronage, as a political class, had destroyed itself and there remained only the Crown, weakened indeed, but still ready at a suitable moment to resume the great tradition of re-establishing orderly government. With the exile of Henry VI (1461) and the accession of the Yorkist, Edward IV, the work of reconstruction begins. New instruments and new methods begin to appear. The Court of Chancery becomes much more prominent and fills gaps where the common law had been too timid or too weak to attempt reform. The Court of Star Chamber was at this time nothing more nor less than the Council, and it struggled manfully to enforce order in cases where the normal criminal law was hopelessly inadequate. In all this the mainspring was necessarily the Crown, and so we find that the nation turned to the monarchy with a sigh of relief after sixty years of baronial anarchy. This brings us to what has been called the “new monarchy”, which will eventually culminate in the popular nationalist dictatorship of the great Tudor monarchs, especially Henry VIII and Elizabeth.
THE TUDORS: RENAISSANCE, REFORMATION AND RECEPTION
SUMMARY
The Reformation and the Constitution
The house of Tudor came to the throne with the accession of Henry VII after the battle of Bosworth in 1485, and ruled England during one of its most brilliant periods, the sixteenth century, until the death of Queen Elizabeth in 1603. It was the golden age of literature, beginning with Sir Thomas More and ending with Bacon and Shakespeare; an age, too, of heroic adventure when the seamen ranged the ocean in search of new continents, and planted distant colonies whose future they could never have guessed. But besides the remote new worlds which adventurers had discovered, there was something like a new world in old Europe too. A