Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 43
ОглавлениеTHE FIFTEENTH CENTURY: THE PROBLEM OF ENFORCEMENT
SUMMARY
Henry IV, who began the line of Lancaster in 1399, together with his descendants, Henry V and Henry VI, were all under the same disability, that is to say, kings by a doubtful title. They were therefore dependent to a large extent upon the series of family alliances and political factions which had placed them upon the throne, and in consequence we have what has been called the “Lancastrian experiment”. The experiment seems to have consisted in associating a fairly large body of nobles with the daily business of government, and so the chief characteristic of the fifteenth century is the important place occupied by the Council.
THE IMPORTANCE OF THE COUNCIL
“Practically the first public utterance of the new dynasty was its founder’s pledge to be governed by the counsel of the ‘Sages and Ancients of the Realm’, and when, three-quarters of a century later, the line had ended in violence and exile, the last echo of its departed polity was heard in Fortescue’s plea for more ‘counsel’. Time after time, Parliament prayed for ‘sufficient counsel’, and as often did Henry IV inform them of the names of his advisers and swear them to be upright and true; later, in the troublous times of his grandson, it is still the Council which was the storm centre, the Council’s dissensions which raged round the child King’s throne, and the Council’s collapse, which eventually wrought his ruin. To appreciate how intimately the fortunes of the Council were bound up with those of the nation itself, it is well to consider how widely its ramifications spread throughout the body-politic; Parliament, Chancery, Exchequer, law courts—all these still remained so closely connected with the parent body, as represented by the group of men nearest the King, that it is difficult to determine at what period, and to what extent, one should regard them as separate institutions. This interpenetration of the various government departments by the Council can be regarded as the administrative aspect of the growing political supremacy of the Crown. For centuries the Crown was steadily gathering strength and building up a political unity out of the discordant elements of feudalism. One King was to be felt at work throughout the realm, and as the task grew heavier, it was one 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.
