Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 49

This secularisation of law had its effects upon the constitution. In England, as in several other States, government fell into the hands of the professional administrator, and “reasons of State” placed in his hands an extremely wide, over-riding discretion. In England this took the form of the dominance of the Council under all the Tudor sovereigns, and in the rise to importance of the office of Secretary of State. As long as Queen Elizabeth lived she was generally able to maintain this novel supremacy of the administration above the old feudal legalism, which was timidly asserted from time to time by the common lawyers. Only in her very last years did she suffer an occasional reverse. In general terms the conflict between the Council and the courts, between administration and law, is the theme of sixteenth- and also of seventeenth-century history, and its origins are clearly to be traced back to the Reformation and the resulting disorganisation of mediaeval political thought. During all this period the typical common lawyer was generally on the conservative side. He still pored over mediaeval books, he practised in mediaeval courts, and was often suspected of being secretly an adherent of the old religion. There was, therefore, a tendency to look outside of the legal profession for men to fill administrative posts, and it was to the civilians that Henry VIII turned when he was founding or reorganising such administrative courts as the Privy Council, the Star Chamber, the Court of Requests, the Court of High Commission, the Council of the North, the Council of Wales, and the rest.

Attendant upon the Reformation came the Church settlement. It is a striking feature of Henry VIII’s reign that he was able to use Parliament itself as a convenient machinery for effecting the complicated settlement. The results were momentous. Parliament thereby acquired the experience of carrying out measures which were in fact revolutionary. In one statute it declared that the supreme head of the Church was not the Pope, but Henry; in another it confiscated enormous quantities of property which had been held by the Church for centuries undisputed; in another even so sacred a thing as Christian doctrine was restated by Parliament in the Statute of Six Articles; soon it was to establish a prayer-book to replace the age-old formularies hitherto in use. When in later years the powers of the modern State came to be analysed, Parliament held a very large place in the scheme of things. Those who maintained the omnipotence of Parliament found their most striking illustrations in the acts which carried out the Reformation in England. Henry VIII has been well described as the “great architect of Parliament”.¹