Cromartie Alan. The Constitutionalist Revolution: An Essay on the History of England, 1450-1642 (Ideas in Context)
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Commonwealth and common law 109
of a statute is restrained, and when enlarged by equity, it is a good way,
when you peruse a statute, to suppose that the law-maker is present’, partly
because ‘while you do no more than the law-maker would have done, you
do not act contrary to the law, but in conformity to it’.
103
The second was the king’s political body, a theme addressed in cele-
brated works by F. W. Maitland and Ernst Kantorowicz, both of whom
used the Commentaries to illustrate what they supposed was ordinary pro-
fessional opinion. It is a pity that neither of these great scholars had access
to Plowden’s tract on the succession, which uses similar material for an
avowedly polemical purpose, because this would have stimulated curiosity
about the extent to which the law reported was shaped by the private ideas
of its reporter. One point to which they might have given more weight
is that the doctrine Plowden was expounding was not, strictly speaking, a
doctrine of two capacities. Plowden taught that the king had two capacities
because he had two bodies, the former being his ordinary body, the latter ‘a
body that cannot be seen or handled, consisting of policy and government
and constituted for the direction of the people, and management of the
public weal’.
104
In the reports as in the tract, this meant that the political
powers enjoyed by English monarchs were properly rights granted by the
English common law.
Plowden’s originality lay in his combination of what are sometimes
thought to be two widely divergent conceptions. On the one hand, he
believed that law is something that is made by human beings – he casually
referred to ‘the founders of our law’
105
– but on the other, he was confident
that it included principles that would be adequate to cope with any situ-
ation. Unwritten law consists in rules, but even rules must be applied by
reason:
there are two principal things from whence arguments may be drawn, that is to
say, our maxims, and reason which is the mother of all laws. But maxims are the
foundations of the law and the conclusions of reason and therefore they ought not
to be impugned, but always to be admitted; yet these maxims may by the help of
reason be compared together and set one against another (although they do not
vary) where it may be distinguished by reason that a thing is nearer to one maxim
than to another, or placed between two maxims.
106
There was normally, it followed, scope for judgement in application of these
principles. Moreover, legal principles included the notion that rules could
be suspended when circumstances made this necessary; necessity could
dispense with ‘common custom of the realm’ and even with the ‘ordinary
103
Ibid., 467.
104
Ibid., 213.
105
Ibid., 368.
106
Ibid., 27.
110 The Constitutionalist Revolution
course of the common law’.
107
Butif‘necessity’ were a legal concept, then
regal powers that rested upon necessity were part of the expanding sphere
that judges supervised.
In Plowden’s thought, much scope for judicial discretion was created by
the need to make presumptions about the intentions of the legislators. In
this connection, his most pregnant statements were a succession of dicta
from the great case of Willion v. Berkeley. The case turned in part on
the question of whether the monarch was bound by the statute De donis
conditionalibus,alaw in which ‘the king’ was not actually mentioned. A
judgement put into the mouth of Chief Justice Dyer asserted that she fell
within its scope, on the grounds that the statute corrected an abuse – ‘which
being a common error was taken for the common law’ – that had the effect
of frustrating the donor’s intentions.
108
Thus a priority discerned within
the common law (at least if the system were rightly understood) had made
the statute binding on the monarch.
The best-known passage in the whole report was an account of argu-
ments attributed to counsel in which a version of this point was repeatedly
expounded. It had apparently been said that ‘in general statutes made for
the safety of inheritances, or for the public good, the expositors of them
have construed them according to the course of the common law’, bearing
in mind the principle that ‘the law hath so admeasured [the king’s] prerog-
atives that he shall not take away nor prejudice the inheritance of any’.
109
If
the concept of inheritance was strictly understood, then this was not at all
anew idea; there was a sense in which the law existed for the protection of
‘inheritances’, that is to say of property which could not be devised, which
was for the most part property in land. Plowden was able to cite Fortescue,
who noted that the king was free from tolls, but not from so-called ‘toll-
traverse’, which was for ‘crossing or going over another’s soil or freehold’.
But elsewhere in the passage, the notion of inheritance was used with collo-
quial looseness: Plowden could write of ‘every man’ as an ‘inheritor’ of a law
‘which belongs to a common person’.
110
It was by no means clear which laws
could be said to ‘belong’ to the people, but the criterion appealed to seemed
to involve a judgement about the public good; when he said that the statutes
binding on the monarch were ‘those which concern the reality or inheri-
tance, or the public good of the realm’,
111
the last phrase evidently added some-
thing. The report was thus a landmark in the process by which an essentially
specialised legal system acquired the pretensions of a science of common
weal.
107
Ibid., 9.
108
Ibid., 251–2.
109
Ibid., 236.
110
Ibid., 236.
111
Ibid., 237.Myitalics.
Commonwealth and common law 111
It had some influence on a more explicit work: a treatise on the royal
prerogative addressed to William Cecil, now Lord Burghley, by the presby-
terian barrister James Morrice. Morrice’s treatise had its origins in a Middle
Temple reading of 1579, but by his own admission he had rewritten it, no
doubt with an eye to the concerns of its distinguished reader. He frequently
made reference to the ‘New Commentaries’, and noted that the king was
bound by statute ‘when as common right and equity is by act of parliament
restored, and wrong and injury by common error crept in for law is abol-
ished’.
112
Where Morrice departed from Plowden was in his more explicit
populism. His ultimate assumptions were derived from Fortescue:
The ancient customs and usages of the realm (whereof the king’s prerogatives are
a principal part) be called the common laws by which the same is governed not
commencing about the time of King Henry I (as this ignorant Italian [Polydore
Vergil] would have many of them) but (as Mr Fortescue that great and learned
judge affirmeth) have been continued and used within this realm in the ancient
reigns and governments of the Britons Romans Danes and Saxons and last of all
in the time of the Normans received and allowed.
113
Unlike Fortescue, however, Morrice appears to have thought of law in its
entirety as the product of a popular agreement:
Forasmuch as the sovereign rule and absolute authority of one passing the sacred
bonds of justice hath oftentimes burst forth into hateful tyranny and insolent
oppression. And for that good kings and princes are neither by nature immortal,
nor of themselves being men immutable, another state of kingdom and better kind
of monarchy hath been by common assent ordained and established. Wherein the
prince (not by licentious will and immoderate affections but by the law that is
by the prudent rules and precept of reason agreed upon and made the covenant
of the commonwealth) may justly govern and command and the people in due
obedience may safely live and quietly enjoy their own.
114
But though the king of England could not change the laws at will, he was
more than ‘a Venetian Duke or Spartan king’. To see how much more, it
was necessary ‘to search out and discuss what right and prerogatives the
ancient common laws, or as Mr Saunders late Lord Chief Baron said, the
commons of this realm in times past have given to the king’.
115
Here was evidence of a decisive shift towards a populist account of English
institutions. What makes the shift impressive is that Morrice was addressing
the Queen’s chief minister and that he clearly understood the government’s
point of view. He criticised Brooke, for example, for claiming that the king
could not require an extra-judicial opinion from his judges. In Morrice’s
112
British Library, Egerton MS 3376,fo.16
113
Ibid., 47.
114
Ibid., 4v.
115
Ibid., 5v, 7.
112 The Constitutionalist Revolution
view, it was ‘no small part of the justices’ allegiance expressed in their oath
faithfully and lawfully to counsel and advise the king in his affairs’.
116
He
also disliked Brooke’s statement that monarchs could not personally take
recognisances ‘for what is this but greatly to estrange his Majesty from the
government’.
117
It is this obvious readiness to take the monarch’s side that
makes his theory so significant. Though Morrice probably had no intention
of undermining personal monarchy, he nonetheless seems to have taken it
for granted that even the Queen’s most extensive discretionary powers had
been conferred on her by common law.
There was, however, one important question that Morrice’s treatise failed
to address. Though he made the conventional admission that the Lord
Chancellor enjoyed both absolute and ordinary power, he did not trouble
to explore the question of the relationship between the law and equity. But
even this dangerous question was soon to receive an interesting discussion
from someone who treated the Chancellor’s power as based on English cus-
tom. During the Lent vacation of 1581, the Middle Temple Reader, Serjeant
Snagg, decided to lecture on Magna Carta’s concept of lex terrae, which he
believed was ‘as it were, the sum of all the charter’.
118
Part of the interest of
Snagg’s work was his evident sensitivity, foreshadowing seventeenth-century
controversies, to questions concerned with the origins of law. He thought
it was important to deny that common law was introduced by Normans or
even by Saxons. He also wanted to defend post-conquest baronial risings
as rebellions ‘not only of the people, that did rise without reason, but of
divers of the nobility of the best sort...andalltheir cause was, but to be
restored to their ancient laws and liberties’.
119
This interest in the details of the past superficially resembled Fortescue’s,
but its underlying assumptions were quite different. Fortescue saw the sta-
tus of the kingdom as a dominium politicum et regale as something forever
established by its founders. As a result, he was relaxed about the Norman
conquest; the reason that the antiquity of custom could guarantee its wis-
dom was that the unchanged character of English unwritten law reflected
a series of judgements by successful conquerors, men who had the capacity
to change the laws of England but sensibly decided not to do so. Snagg, by
contrast, thought of conquest as a problem. The period from William I to
Henry III was a time, he believed of will-government in kings, conclud-
ing only when the latter’s charter established that ‘how far the prerogative
116
Ibid., 36v.
117
Ibid., 27v.
118
Robert Snagg, The antiquity and original of the court of Chancery and authority of the Lord Chancellor
of England. Being a branch of Serjeant Snagg’s Reading (London, 1654), 11.
119
Ibid., 4, 6.
Commonwealth and common law 113
should go, and what is right and justice common to all, is referred to be
decided per legem terrae’.
120
Snagg’s view of events was supported by a ref-
erence to Bracton, whose author was said to be ‘one of the chief that were
appointed (as it is delivered by tradition) to find out again the ancient laws
of the land’.
121
He quoted Bracton’s statement that law makes the king and
used it to draw a political conclusion: ‘if the law of the land made the king,
there was none before it; but kings we find by all stories to be of great
antiquity here in this land and so by consequence the law must [be]’.
122
Snagg’s basic conviction was that
Our law is the ancient custom of the country or land, and of that antiquity, that
there is no record nor matter that can show the commencement thereof, nor any
man can tell it, but it was before all memory of man that remaineth in the world,
consisting of maxims, general grounds and rules, received, approved, and allowed
as good, just, and necessary for the government of this land, begun when this land
first became a commonwealth under a king.
123
Where Fortescue had stressed the forbearance of kings who had decided not
to change the customs, Snagg thought that the lex terrae was ‘the ancient
custom of the land that all people of several nations that at several times
inhabited here liked best of’.
124
It followed that popular usage constituted
monarchy. This was a momentous pronouncement, the explicit formu-
lation of a theory that would hereafter organise most understandings of
the legal past. It was the more significant, as Snagg himself had grasped,
because it brought the Chancellor’s power within the legal sphere. Snagg
was troubled that the Chancellor ‘had most to do and bare the greatest
rule; and yet gave his judgement (as it seemed to me) as pleased himself,
whatsoever the law of the land required in the case’.
125
This observation
left him ‘in a maze, not seeing at first how it could stand with the Great
Charter that referred all judgement ad legem terrae’, but his fundamental
legal theory provided him with a natural solution:
I found that the custom of the land, which is that lex terrae, allowed of that authority
also, as of the rest; and that it was also a species of that general, the law of the land,
which was the ancient custom of the realm.
126
Snagg did not deny the traditional case for the provision of equitable
procedures; he agreed it was ‘impossible but some particular cases must fall
out’ in which a strict adherence to the letter of the law would necessarily
lead to some injustice.
127
He even defended the King’s Bench latitats (which
120
Ibid., 12.
121
Ibid., 14.
122
Ibid., 15.
123
Ibid., 17.
124
Ibid., 16.
125
Ibid., 20.
126
Ibid., 20–1.
127
Ibid., 21–2.
114 The Constitutionalist Revolution
were encountering much criticism from the conservative staff of Common
Pleas) on the grounds that ‘no law can prescribe the king a form to proceed
in justice for those causes that be before himself’.
128
He was not, in other
words, a pedantic believer in the superior wisdom of well-established rules,
but he was eager to attack the theory that the office of Lord Chancellor
‘had been besides the law, erected out of the absolute authority that the
conquerors claimed’.
129
Discretion remained an element of the system, but
it was a manifestation of positive law, not a suspension of its principles. In
short, Snagg had developed a fully constitutionalist position.
128
Ibid., 57.
129
Ibid., 31.
chapter 5
Puritans and Anglicans
The readings of Morrice and Snagg are evidence of a new kind of thinking
about the common law’s capacities. It was probably not just coincidence
that both were produced by puritans of presbyterian leanings. From the
perspective of such men, a constitutionalist approach was the most natural
response to an anomaly: the fact that though Elizabeth in general deferred
to the law, there was one sphere of national life – the church – in which
she placed some emphasis on extra-legal power. By 1571, her spokesman Sir
Nicholas Bacon felt able to tell parliament that ‘by religion we do not only
know God aright but also how to obey the king or queen whom God shall
assign to reign over us, and that not in temporal causes, but in spiritual or
ecclesiastical, in which wholly her Majesty’s power is absolute’.
1
As Bacon’s audience must have realised, this somewhat shrill assertion
was a piece of crown aggression, for there was every reason to believe
that further reform of religion was parliament’s responsibility. In its earli-
est formulations, Elizabeth’s Supremacy was markedly less ‘personal’ than
her father’s. At the beginning of the reign, she cautiously placated both
Protestant and Catholic opinion by dropping the title ‘Supreme Head’ in
favour of the less offensive ‘Supreme Governor’, while her Injunctions put
a moderate gloss upon the oath that recognised this status, describing it,
in essence, as an acknowledgement of ‘sovereignty and rule over all man-
ner of persons . . . so as no other foreign power shall or ought to have
any superiority over them’.
2
On the official view, then, the purpose of the
Governorship was simply to exclude the papacy.
Tw o further features of the settlement suggest a wish to minimise her
personal involvement. One was the fact that the church courts continued to
be formally the bishops’; the government omitted to revive the Edwardian
statute instructing the clergy to act in the name of the monarch. This
1
Hartley, Proceedings, i 198.
2
Gerald Bray, Documents of the English Reformation (Cambridge, 1994), 347.
115
116 The Constitutionalist Revolution
was not, as we shall see, a trivial matter. The other was that powers of
visitation were placed on a statutory basis. King Henry’s Supremacy statute
had simply, by its own account, declared existing powers; Elizabeth’s was
more ambiguous, but it could plausibly be read as making a new law to
the effect that any jurisdiction for dealing with ‘errors, heresies, schisms,
abuses, offences, contempts and enormities’ should ‘for ever, by authority
of this present parliament, be united and annexed to the imperial crown of
this realm’. A further provision previously thought needless allowed ‘your
Highness, your heirs and successors, kings or queens of this realm’ to delegate
this power to a royal commission.
3
Anxiety about Elizabeth’s gender thus
tended to bring the church further under parliament’s control.
This was unfortunate for the queen, because her idiosyncrasies in this
particular sphere made clashes with the Commons almost inevitable.
Elizabeth’s religion was doubtless in a broad sense Protestant, but it was
more conservative than that of her immediate followers; it should perhaps
be seen as a survival of moderately reformist Henrician thinking into a much
more polarised late sixteenth-century world. Even the settlement obtained
in 1559 may well have gone beyond her personal wishes. We know that
the Commons considered a ‘Lutheran’ scheme (which was probably based
upon the Book of 1549)aswell as the more radical one (a re-issue, with minor
conservative revisions, of the Prayer Book of 1552)eventually embodied in a
statute.
4
Though William Cecil undoubtedly favoured the latter, Elizabeth’s
behaviour was more equivocal. When she made her Easter communion
in 1559, she formally assented to the words ‘This is the body of Christ’
before reception of the sacrament (an act required in 1549, but pointedly
omitted in 1552).
5
The Injunctions that she subsequently issued not only
insisted on standards of clerical dress that had obtained in 1548 (a policy
allowed for in the Prayer Book), but also established the principle that she
could disregard a Prayer Book rubric: the Prayer Book insisted that min-
isters use ordinary bread for communion; Elizabeth chose to over-ride the
statute by enforcing her own preference for wafers.
This trivial disagreement prefigured more serious clashes. In every single
parliamentary session from 1566 to 1593, there was some attempt to bring
in legislation by which to remedy what were seen as clerical abuses. On
J. E. Neale’s account, these episodes were stirrings of a puritan ‘opposition’;
but the work of G. R. Elton and M. A. R. Graves has shown that many
3
Elton, Tudor constitution, 374.Myitalics.
4
Roger Bowers, ‘The Chapel Royal, the first Edwardian Prayer Book, and Elizabeth’s settlement of
religion 1559’, Historical Journal 43 (2000), 334–5.
5
Jones, Faith by statute, 122.
Puritans and Anglicans 117
‘opposition’ leaders were really ‘men of business’ with close links to the
council. In fact, they were probably both; a parliamentary session was an
opportunity for a well-organised establishment to put unusual pressure on
the monarch. Cecil himself had used this mechanism to give unwanted
counsel to the queen when trying to persuade her to get married. Those
members who went much too far, by advocating presbyterianism, were still
in principle engaged in much the same type of activity.
All this suggests a simple and appealing theory, tracing the origins of
‘opposition’ to tensions at the heart of government. In the religious sphere,
Elizabeth could not rely upon her own supporters, so she was forced to get
her way by making use of extra-legal power. She had good reason to believe
that making use of statute encouraged the spread of what, to her, were
dangerous assumptions; when she made the mistake, in 1571,ofpassing a
statute punishing those clergy who would not sign the thirty-six ‘doctrinal’
articles, she inadvertently gave rise to what was to prove the tenacious belief
that parliament had power over doctrine. She therefore circumvented the
assembly by appealing to the wisdom of the bishops (who were relatively
easy to control) as the appropriate authorities in matters that were broadly
spiritual. Because her Stuart successors adopted comparable attitudes, the
period as a whole gave shape to a familiar world: puritans had a motive to
appeal to legal values; while the upholders of the status quo had reason to
present themselves as friends of monarchy. The characteristic alignments of
English politics, in which high churchmen, by and large, were also royalist,
while puritans were broadly legalistic, could thus be traced back to the
1560s.
The model can indeed be taken further. If any group in later Tudor
England was heir to the humanist project of sacralising ordinary life, it was
the godly magistrates of communities like Norwich or Bury St Edmunds.
Such people had excellent grounds for tracing the legitimacy of their under-
takings to the inherent wisdom of their measures – or perhaps to an imag-
ined godly monarch. This was the way of thinking that led Sir Francis
Knollys, Elizabeth’s most puritan councillor, to identify two factions among
the gentlemen of Oxfordshire, one of which ‘leaned passionately to the strict
observance of the ceremonies of the Book of Common Prayer’, while the
other ‘did passionately lean to the strict observation of the dutiful main-
tenance of her Majesty’s supreme government’.
6
The ‘dutiful maintenance
of her Majesty’s government’ appears, if anything, to have excluded respect
for her religious preferences.
6
John Strype, The life and acts of John Whitgift D.D., 4 vols. (Oxford, 1822), i, 604.
118 The Constitutionalist Revolution
Knollys was registering the existence of two novel social roles. One was
the puritan-baiter, the opponent of the godly, who used the liturgy to
undermine them; the other was the gentleman who acted as their patron
and protector. In areas where puritans were strong, the very existence of
agroup committed to further reform created opportunities for English
politicians from Robert Dudley, earl of Leicester, downwards to draw sup-
port by offering them favour. There were places where this role was so
attractive that it became hereditary in certain families; the Hampdens of
Buckinghamshire, for example, were still performing it in 1700 (by which
time they were known, of course, as ‘Whigs’). Conversely, those suspicious
of Protestantism became the natural allies of conformists; by the mid-1570s,
the embattled conservative bishop of radical Norwich was welcoming the
assistance of crypto-Catholics.
7
Of course, religious groupings may well have been shaped in their turn
by older interests and loyalties, but the idea of politics that hinged on
godliness was evidently perfectly familiar, so much so that the pattern
could be projected on more traditional contests for local dominance.
8
This
way of understanding local quarrels can be connected, in its turn, with
the appearance of a novel concept: the increasingly prominent notion of
‘popularity’ (the bogey, that is, of deliberate appeal to the mob). The term
was found useful by the conformist Whitgift, whose anti-presbyterian The
defence of the answer to the Admonition (1574) may well have introduced
it to the language; the first recorded use of ‘popular’ (a straightforward
Anglicisation of the Latin party label popularis) occurred just five years
later in 1579.
9
The ready acceptance of both words thereafter suggests the
need to characterise a new phenomenon.
Some such model perhaps underlay Neale’s detailed work on par-
liamentary history. It cannot be refuted by showing that some ‘oppo-
sition’ manoeuvres enjoyed the full approval of privy councillors; the
fact that puritans enjoyed some tacit support in high places made their
audacity intelligible, but not, from the monarch’s perspective, less alarm-
ing. Although what enabled the godly to act as they did was that they
saw their actions as far from radical, the attitudes shaped by those
actions could nonetheless have long-term and subversive consequences.
7
Diarmaid MacCulloch, Suffolk and the Tudors: politics and religion in an English county 1500–1600
(Oxford, 1986), 193–5.
8
John Craig, Reformation, politics, and polemics: the growth of Protestantism in East Anglian market
towns, 1500–1610 (Aldershot, 2001), esp. 150–1.
9
Oxford English Dictionary, s.v. ‘popularity’ and ‘popular’.