A Concise History of the Common Law. Theodore F. T. Plucknett

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.

THE CLOSE OF THE TUDOR AGE

      With the reign of Queen Elizabeth (1558-1603), and especially the second half of it, we come to a sort of uneasy peace. The Reformation is an accomplished fact; the various attacks upon the position of the Crown, whether from domestic pretenders or from foreign foes, had definitely failed; the deposition of Queen Elizabeth by papal bull and the attempt to execute it by foreign invasion had likewise failed; the defeat of the Spanish Armada (1588) had given to England security upon the sea, and henceforward there was to be no serious question of foreign interference with her domestic politics—at least openly. In the sphere of law there is a similar feeling of problems having been settled or at least shelved; the common law courts begin to revive; the momentous legislation of Henry VIII is being absorbed; a new generation of lawyers brings fresh life to the old system, and a sincere attempt is made to stretch the common law to the measure of the growing needs of the nation. Parliament, although less frequently summoned, was settling its sphere of activity within the enlarged boundaries which Henry VIII’s reign had assigned to it. The House of Commons was growing steadily more important; it attracted men of great ability and was establishing close contact with the administrative side of the government. It is during this period that officials, secretaries of state, and members of the Privy Council begin to appear explaining and defending their policy before the Commons and acting as a liaison between the government and the governed. Although the Tudor age at first sight seems to end upon a quiet note, nevertheless there are indications that a loyal and devoted respect for the great Queen had a great deal to do in preventing the Commons from insisting too pointedly upon matters where they differed from the Crown. The extraordinary knowledge of human nature which Queen Elizabeth possessed, together with her admitted ability and prestige, had enabled her to prevent the raising of difficult questions; upon the first signs of trouble a motherly scolding was usually effective in reducing the House of Commons to respectful silence and even apologies. In the meantime the House developed a considerable degree of control over its own procedure, and discipline over its members. The constant enlargement of “parliamentary privilege” helped a great deal in establishing a spirit of united self-consciousness in the House, and the precedents themselves stood in good stead in the succeeding troubles with the Stuarts. In short, the quiet closing days of Queen Elizabeth’s reign were in fact a period of armed peace, interrupted, it is true, by a few significant incidents, during which both Crown and Parliament were quietly strengthening themselves for a conflict which both of them seemed to apprehend. It must never be forgotten that the Tudor monarchs were wise enough and strong enough to use Parliament as an implement of their policy, but that the success of this method depended upon the monarch commanding the personal devotion of the Commons, both by reason of a policy which was at least to some degree popular, and of the certainty that the Crown really did stand for the good of the realm. When the Commons begin to doubt whether the King is more concerned for his own or the nation’s interest, then this working alliance between Crown and Parliament will cease. There is no longer any question of a feudal nobility stepping into the breach; if the Crown cannot govern to the satisfaction of the nation, then the House of Commons will be compelled to undertake the government itself. This brings us to the Stuart age.

CHAPTER 7

      THE STUARTS: STRUGGLE FOR THE SUPREMACY OF LAW

      SUMMARY

       Political Speculation

       The Supremacy of the Common Law

       The Growth of the Conflict

       The Church in Politics

       The Courts during the Interregnum

       Reforms at the Restoration

       The Statute of Frauds

       The Habeas Corpus Act

       The Stop of the Exchequer

       Restoration of Church and Prerogative

       The Bill of Rights

       The Act of Settlement

       Revolutions and Political Theory

       Thomas Hobbes

       John Locks and the Revolution

      Much new light has been thrown upon the history of the seventeenth century, and large masses of new documents have become available since Hallam wrote his classical Constitutional History over a century ago.¹

POLITICAL SPECULATION

The seventeenth century was an age when conscious and deliberate political theory entered the arena of practical politics. At the same time there were undoubtedly important economic factors which played a large part in the conflict. Religion also added endless complications to an already baffling situation. Elizabeth held the reins of Church and State, but the Church itself had been based upon a denial of tradition and authority; the Church consequently had no answer to fresh denials, save to shelter behind the throne. To an extraordinary