A Concise History of the Common Law. Theodore F. T. Plucknett. Читать онлайн. Newlib. NEWLIB.NET

Автор: Theodore F. T. Plucknett
Издательство: Ingram
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Жанр произведения: Юриспруденция, право
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isbn: 9781614872474
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      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

      And, finally, we come to the movement known as the Reception.2 This was a widespread tendency in various countries of Europe to receive the classical Roman law in place of the mediaeval customary law which had only been partially Romanised, if at all. The legal scholars of the day had taken anew to the study of the books of Justinian, ignoring the thousand years of history which had introduced serious modifications in adapting Roman law to current conditions. The same problem arose in England. Traditional Christianity as represented by the mediaeval Catholic Church was replaced by a system which to its adherents seemed simpler, more reasonable and more in accord with ancient history. Ought not a similar reform to be carried out in the sphere of law? Ought not the mediaeval common law which was inexpressible in any decent language, French, Latin or English, to be replaced by the pure and ancient doctrine of the Digest? This question was seriously considered. Reginald Pole, cardinal and last of the Yorkist line, who stood equally good chances of becoming King of England or Pope, had committed himself to the idea. Henry VIII was well aware of the merits of the civilians, and founded the still existing Regius Professorships at Oxford and Cambridge for the propagation of their learning. As administrators and as judges in the prerogative courts their influence was paramount. They also maintained an ancient feud with the canonists and the papacy. But against the courts of common law they stood little chance of success. The close organisation of the profession and the numerous vested interests which it contained, the strong tradition of its educational system centring in the Inns of Court, and the practical impossibility of superseding the courts by a newer system, had the result of entrenching the common lawyers within the tangles of their feudal learning, which, moreover, had become the basis of every family fortune in the land. We venture to suggest that once again the common law stood impregnable upon the foundations laid by Henry II. It was he who gave the common law its firm grip upon the land, and for the future the more elaborate the land law became and the more subtly it contrived to entangle both present and future generations in the maze of real-property law, the more impossible it became for the landed classes to contemplate any interference with the system which assured to them and their children the complicated benefits of inheritance. In Germany, France and Scotland the Reception was accomplished with varying degrees of thoroughness; but not in England. Nevertheless the common law for a time had to maintain a stubborn defence, and for the first time in its history it made a definite alliance with the members of the House of Commons, who were equally willing to accept the aid of the lawyers. In this way were laid the foundations of the coalition between the House of Commons and the common law which was to dominate English history during the seventeenth century.

      The Tudor period had its own social problem. The transition from serfdom to copyhold was nearly complete, but nevertheless there was considerable economic distress, and from the later years of Queen Elizabeth proceeds a stream of legislation dealing with unemployment and the relief of paupers, while the mediaeval machinery for the fixing of wages was kept in steady operation and even enlarged. Then, too, we find English writers for the first time taking an interest in such topics as international law and in the international aspects of commercial and maritime law, of which we shall speak later.

      “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