Читать книгу A Concise History of the Common Law - Theodore F. T. Plucknett - Страница 51

Finally some words must be said on the extremely important legislation of the Tudor sovereigns. The reign of Henry VIII saw an outburst of legislation which is almost comparable to that of Edward I. The great statutes which carried out the Reformation have already been mentioned, and their importance exceeds even their position as the foundation of the Church of England, for they were astonishing examples of the almost limitless powers assumed by Parliament. Besides this, a good deal of legislation was concerned with treason, illustrating the growth of the idea of the State and the inadequacy of merely mediaeval law for its protection against the new dangers which its own activities had aroused.¹ Of the rest of Henry VIII’s legislation we must mention the Statute of Proclamations (1539). Although soon repealed it is nevertheless highly significant. The old view that this statute constituted a sort of Lex Regia conferring upon the Crown the power of wide legislation without the concurrence of Parliament has been abandoned.² The growing complication of government had brought the proclamation into prominence for the first time as a useful means of supplementing statute law on points of detail, and of carrying out those processes which to-day are effected by administrative bodies with powers delegated from the legislature. The latest and best opinion is that

“the existing law was obscure and the inconvenience of this obscurity was not likely to be overlooked by a King who was remarkable for his political prescience. Henry VIII’s Statute of Proclamations was an extremely able attempt by King and Parliament to deal finally with the problem in a manner which should commend itself to the public opinion of the day.”³

The statute provided that in cases of emergency the King and Council may issue proclamations which shall have the force of an act of Parliament. They were to be published in a manner prescribed by the act, and offenders against them were to be tried by a board of councillors named in the act, constituting, as it seems, a special tribunal for the enforcement of proclamations.⁴ This device is certainly in accord with Henry VIII’s general policy of erecting special courts for special business, instead of enlarging the jurisdiction of the old common law courts. The second section of the statute contains carefully drawn safeguards to prevent proclamations being used in an oppressive manner; the principles of the common law, existing acts of Parliament, and property rights were put beyond the reach of proclamations. Moreover, it is equally clear that the use made of these powers by Henry VIII and his Council was moderate and reasonable; there is no evidence that the King hoped by means of proclamations to establish an absolutism or to supersede the legitimate activities of Parliament. The immediate occasion for the act was the refusal of the judges to give effect to certain proclamations by which, as an emergency measure, the government had attempted to control dealings in corn at a moment of scarcity.¹ There is nothing in the numerous proclamations which have come down to us which would suggest that the act was accompanied by any serious change in their contents or their numbers, nor did the repeal of the act in 1547 prevent the constant use of proclamations by Queen Elizabeth. There is much to be said for the view put forward by Sir Cecil Carr, who suggests that its principal effect was of a more subtle order. It is one of those acts which, by conferring on the Crown powers which it already possessed, made it seem that those powers were really the gift of Parliament. Under the guise of strengthening the prerogative, it therefore really weakened it when, in after years, the implications of the act were judged from a different standpoint.² If this is so, then an interesting parallel is to be found in the unexpected results drawn from the famous Star Chamber Act of 1487.

The two other great statutes of this reign, the Statute of Uses and the Statute of Wills, must be considered more at length in discussing the history of real property.³ Here it will be sufficient to mention them and to premise that their policy was dictated by deep political causes and required a good deal of bargaining between the Crown and different classes of society. At the basis of them lies the grave movement of agrarian unrest which was to produce several insurrections under Henry VIII and Edward VI.