Cromartie Alan. The Constitutionalist Revolution: An Essay on the History of England, 1450-1642 (Ideas in Context)

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St German’s world 49

supplied the only existing theory of their status, they offered a way for ama-

teurs to know a legal system that was derived from natural law, custom, and

statute.

St German alluded to Fortescue’s treatment of maxims, but his own

thoughts on the subject were rather different. To him, they were more

than pedagogic aids; they were themselves examples of positive law ‘of

the same strength and effect in law as statutes be’. There was no need to

offer ‘any reason why they were ﬁrst received for maxims’; the practice of

assigning ‘reasons or consideration why such maxims be reasonable’ was an

expository device that was meant to assist future lawyers ‘to the intent that

other cases like may the more conveniently be applied to them’.

The only

real distinction between a maxim and a general custom was that the general

customs ‘were known through the realm as well to them that be unlearned

as learned’, while maxims were ‘only known in the king’s courts or among

them that take great study in the law of the realm’.

St German thus asked

his readers to accept that much of English law was really custom – that

is, ‘accepted and approved by the king and his progenitors and all their

subjects’ – in spite of the fact that its details were virtually unknown to all

but the most learned of the lawyers. This incoherence was the price he paid

for severing the common law proper from reason. His probable motive for

taking this step emerged from his discussion of the role of Chancery.

iii

In the early Tudor period, the court of Chancery was still the forum in

which the Chancellor, acting for the king, displayed the monarchical virtue

of epieikeia:aconcept deﬁned by St German, conventionally enough, as ‘no

other thing but an exception of the laws of God or of the law of reason from

the general rules of the law of man: when they by reason of their generality

would in any case judge against the law of God or the law of reason’. He gave

his deﬁnition a more unusual twist by suggesting that ‘if any law were made

by man without any such exception expressed or implied it were manifestly

unreasonable’.

In the context of the kind of disagreements occasioned by

Wolsey’s behaviour, this view of epieikeia cut both ways. On the one hand,

it suggested the need for an additional jurisdiction that could correct the

common law’s procedures by reference to natural principles; but on the

other it implied that equitable exceptions were actually a part of positive

law.

Ibid., 59.

Ibid., 97.

50 The Constitutionalist Revolution

St German was not a mere government hack, but his defence of Chancery

was seen by the authorities as helpful. Doctor and student was put out by

Thomas Berthelet, the royal printer, and Wolsey offered him a post as

Master of Requests.

As Wolsey should have realised, however, St German

was, in some respects, politically unreliable. Wolsey might have been struck,

to begin with, by a signiﬁcant silence. The little tract Diversite de courtz

(1523), the only printed treatise on the subject, had echoed a well-known

passage in the Year Books by drawing a distinction between an ‘ordinary’

and ‘absolute’ power, the former being exercised in line with positive law,

the latter ‘in all the ways by which the truth of the matter can be known’.

The notion of an ‘absolute’ power was obviously politically suggestive, but

St German never mentions the idea.

This silence was consistent with the important fact that Doctor and stu-

dent placed limits on the Chancellor’s intervention. Not every rule with

unfair consequences required correction from outside the system. The

judges were entitled, for example, to disregard the letter of a statute where

it evidently frustrated the intention of its makers. At times, the law had

made express provision for the inequities that it created; a maxim that

had unfair consequences could be corrected by another maxim. But even

on occasions when the rigour of the law had generated manifest unfair-

ness, the Chancellor’s power to step in was not unlimited; the tag nullus

recedat a cancellario sine remedio – let no one return from the Chancel-

lor without a remedy – was thus at best misleading. The sphere from

which the Chancellor was excluded was extensive. Given that the very

existence of property depended on convention, it was entirely reasonable

that human convention should govern its transmission (by demanding, for

example, that payment should be proved by a receipt). What was more,

there was a public interest in the stability of property rights which justi-

ﬁed the rule that a common law judgement could not be overturned by

Chancery.

These principles were defensible enough, but as St German readily admit-

ted, they offered rather little practical guidance. It was unclear when com-

mon law could deal with a problem on its own and when the Chancellor

should act by issuing a subpoena.Hesummed up the whole question by

remarking that

Guy, St German on chancery, 14.

Diversite de courtz (London, 1523), sig. A6v; YB T 9 Edward IV, fo. 14, pl. 9. The YB uses the word

‘ordinata’, which suggests that the distinction is theological in origin.

St German, Doctor and student, 107.

St German’s world 51

thus it appeareth that sometime a man may be excepted from the rigour of a maxim

of the law by another maxim of the law. And sometime from the rigour of a statute

by the law of reason and sometime by the intent of the makers of the statute, but

yetitistounderstand that most commonly where any thing is excepted from the

general customs or maxims of the laws of the realm by the law of reason the party

must have his remedy by a writ that is called subpoena.

This was an interesting taxonomy of ways of relaxing the rigour of positive

law, but it cast no light at all upon the question of whether a subpoena could

be issued in any given unprecedented case.

Perhaps the most interesting feature of St German’s legal theory was his

acceptance of the implication that the learning surrounding the issue of

subpoenas was in effect a part of positive law. He noted that ‘it is oft times

argued in the law of England where subpoena lyeth and where not: and daily

bills be made by men learned in the law of the realm to have subpoenas’.

These arguments left no trace in the common law records because they were

conducted before the Chancellor. St German nonetheless believed they had

a legal status, for

the Lord Chancellor must order his conscience after the rules and grounds of

the laws of the realm, in so much as it had not been much inconvenient to have

assigned such remedy in the Chancery upon such equities for the vii ground of the

law of England, but for as much as no record remaineth in the kings court of no

such bill ne of the writ of subpoena or injunction that is sued thereupon, therefore

it is not set as for a special ground of the law, but as a thing that is suffered by the

law.

The distinction between common law and Chancery equity was thus depen-

dent upon record-keeping.

This aspect of St German’s thought was greatly clariﬁed in two of his

unpublished later writings: the ‘Replication of a Serjeant at the laws of

England’ and ‘A little treatise concerning writs of subpoena’. The former

was a brief attack on Doctor and student’streatment of the subject, taking the

form of dialogue between the Student and an unnamed Serjeant. Although

it is anonymous, it was written in a style much like St German’s, with

what looks like a touch of parodic over-statement in its depiction of the

Serjeant’s views. But its authorship is not of much importance, compared to

the picture that it gives of the position against which St German had deﬁned

his jurisprudence. Underlying the serjeant’s objections was a conception of

the law as a ﬁxed repertoire of remedies by which the king himself was

Ibid., 103.

Ibid., 105.

52 The Constitutionalist Revolution

limited; the subpoena could not possibly be valid because it could not

be located in registers of writs.

Aremarkable statement grounded this

position in the restrictions on the monarchy:

I marvel much what authority the Chancellor hath to make such a writ in the king’s

name, and how he dare presume to make such a writ to let the king’s subjects to

sue his laws, the which the king himself cannot do right wisely, for he is sworn the

contrary, and that is said hoc possumus quod de jure possumus.

Some of the Serjeant’s arguments would doubtless have occurred to any

writer making a comparable case. He insisted, for example, that any resort

to discretion diminished law’s predictability ‘and the more uncertain that

the law is in any realm, the less and the worse it is for the common weal of

the realm’.

The Chancellor appealed to conscience, but conscience was

‘a thing of great uncertainty, for some men think if they tread upon two

straws that lie across, that they offend in conscience’.

Rather less obvious,

perhaps, was his depiction of the lay reformer:

I may liken my Lord Chancellor, that is not learned in the laws of the realm, to him

that standeth in the vale of the White Horse, far from the horse, and beholdeth

the horse; and the horse seemeth and appeareth to him a goodly horse, and well

proportioned in every point. And then, if he come near to the place where the

horse is, he can perceive no horse, nor no proportion of any horse.

The Serjeant was giving expression to the thought that proper under-

standing of a detail of the law depends on a grasp of its function within

an ordered whole. The germ of this idea was the common law saying that

‘mischief ’ was to be preferred to ‘inconvenience’; its fruits would ultimately

include a prominent theme of Burke’s conservatism. The Serjeant used it

to maintain that the apparent ﬂaws within his system were the delusions

of the ill-informed and that existing remedies were adequate to cope with

any wrong, ‘for the law commandeth all thing that is good for the common

wealth to be done, and prohibiteth all thing that is evil and that is against

the common weal’.

He even asserted that ‘if ye therefore follow the law

truly, ye cannot do amiss, nor yet offend your conscience, for it is said, quod

implere legem est esse perfecte virtuosum (to fulﬁl the law is to be perfectly

virtuous)’.

The Student made the obvious objection that the law that the

scriptures referred to was in fact the law of God, but the Serjeant afﬁrmed,

undaunted, that ‘the law of man is made principally to cause the people to

keep the law of God; and so me seemeth that if ye follow the law of the

Guy, St German on chancery, 102.

Ibid., 100.

Ibid., 101.

Ibid., 102.

Ibid., 103.

St German’s world 53

realm truly, ye shall not need to leave the law for conscience’.

He went on

to complain that ‘these uses began by an untrue and a crafty invention’

and that the result of Chancery interference was ‘such an uncertainty that

no man can be sure of any lands...buteveryman’s title shall be by this

mean brought into the chancery’.

The Serjeant may be a straw man, but straw men are not very useful to a

polemicist unless they resemble a possible opponent; as we shall see, some

later common lawyers appear to have held a similar position. What was

more, the views imputed to this common law extremist were actually in

some respects quite close to St German’s opinions. St German’s reply to his

onslaught, ‘A little treatise concerning writs of subpoena’, did not deny that

‘common law’, when taken in a broad sense, ought to dictate the conduct

of crown servants; it simply denied that the system was exhausted by the

procedures of the two great courts. To begin with, the Chancellor’s equitable

powers resembled the powers of King’s Bench and Common Pleas in being

founded on a general custom: ‘no man ought to marvel what authority the

Chancellor hath to make such a writ of subpoena in the king’s name; for

the old custom, not restrained by any statute, warranteth him by reason of

his ofﬁce so to do after certain grounds’.

St German accepted the Serjeant’s basic premise that English law was

grounded on the law of God and nature ‘for else it were a very gross law, and

far insufﬁcient, and also against reason in many things’, but he thought that

the word ‘law’ should be construed as covering the remedies supplied by

Chancery.

Thus common law judges knew perfectly well that purchasers

without receipts were entitled to enjoy their purchases, but it was not a

judge’s place to offer this kind of assistance:

the judges of the common law know as judges by the grounds of the law that

the payment sufﬁciently dischargeth the debt in reason and conscience, as the

Chancery doth, but yet they may not by the maxims and customs of the law admit

the only payment for a sufﬁcient plea...forthat they may not break the grounds

and principles of old time used in the courts where the action is taken. But the

common law pretendeth not that the maxim stretcheth not [sic]toall courts nor to

the whole common law, but to certain courts, according to the custom before time

used . . . And so it is ofttimes seen that several courts hath several customs, and the

law suffereth them all.

St German thus probably shared the Serjeant’s proto-Burkean view of the

coherence of the legal system; but he coped with the Chancellor’s equitable

Ibid., 103.

Ibid., 104.

Ibid., 105.

Ibid., 108.

Ibid., 110.

Ibid., 111 (my italics).

54 The Constitutionalist Revolution

powers by treating them as a resource afforded by that system, within a

sphere delimited by custom.

Toacasual modern reader, the Serjeant’s fulminations suggest post-

prandial conservatism; they seem the sort of attitudes more likely to be

cherished than defended. But in fact a not dissimilar position was care-

fully set out by John Hales in ‘An oration in commendation of the laws’,

a manuscript treatise submitted to the king in about 1540.Hales was

the archetypical bien-pensant humanist, the man who inadvertently de-

stabilised the Somerset regime by an ill-advised crusade against enclosures;

it tells us something interesting about the common law that someone with

his temperament should think that it deserved a panegyric. The primary

purpose of his work appears to have been to argue for codiﬁcation, which

he was sure could be achieved without substantive losses: ‘what were their

laws that we now call civil before the noble Emperor Justinian’s time but

customs unwritten and answers and opinions of learned men’. He was

the ﬁrst of many whose conﬁdence in the details of the system was partly

Protestant and nationalistic: ‘whereupon at the ﬁrst did the Romans ground

their laws but upon the XII Tables fett [sic]from the Greeks? Have not we

better principles the ten of commandments of God the very exposition of

the law [of] nature?’

He went out of his way to praise Sir Thomas Audley

(the then Lord Chancellor) not only for his ‘learning in the laws, but for

the knowledge that he hath in God’s word’.

What nonetheless concerned Hales about Chancery’s behaviour was

that ‘because most of the masters thereof [i.e. the Masters in Chancery]

be civilians, some will say that our laws be tempered by the civil’.

responded by distinguishing two types of equity. One was the general

rule of aequum et bonum, which he called ‘arithmetic’ equity. This was

‘the matter and ground of all laws positive which hath respect [to] and

helpeth the thing that happeneth generally’.

The other was ‘geometric’

equity, which remedied general rules in particular cases. This latter type

of equity was not a part of any legal system. Hales offered a traditional

example:

The civil law commandeth and willeth that if I give my knife . . . to another to

keep, he shall re-deliver that when I ask it. This is reason. But if in the mean

season I fall out of my wit, then saith the civil law ye may keep it, for it is to be

thought I would kill myself therewith. And this exception they take for an example

geometric, whereunto I agree not for this is but an inferior law.

British Library, Harleian MS 4990,fo.17–17v.

Ibid., 44.

Ibid., 42.

Ibid., 42–42v.

St German’s world 55

The right of retaining the weapon was grounded on ‘another law, which

is he doth the hurt which giveth the occasion thereof’ or on the ‘general

law both of nature and God which saith thou shalt not kill’.

It followed

that ‘there is no equity geometric in the example but two contrary laws’.

Hales went on to maintain that it was better ‘to suffer one private injury

than a common mischief ’, using St German’s instance of the purchaser who

loses his receipt. There were, however, occasions when circumstances would

demand the Chancellor’s intervention: ‘upon a false and untrue surmise of

the party not known to the laws equity geometric will help in another court,

that is to say, in the Chancery, the circumstances examined’.

The importance of Hales and St German is not that their ideas were ‘typ-

ical’ (a judgement we are not, of course, in any position to make), but that

their writings demonstrate awareness of some emergent possibilities. Close

reading of their treatises reveals a subtle difference between them in their

divergent attitudes to rules. Hales thought that Chancery was not a rule-

based jurisdiction; it was the jurisdiction that coped when rules broke down.

St German thought it did appeal to rules – to laws of God and nature –

although the area in which the Chancellor could do so was ultimately lim-

ited by custom. In other words, St German thought that there were laws

outside the common law. This difference deserves some attention because it

implied a divergence between their views of monarchy. Both men believed

that power to control the national church was inherent, by the law of God,

in monarchs; but their underlying positions were incompatible. As Hales

subsumed the law of God into the body of the common law, he thought

of Royal Supremacy as quite straightforwardly a common law doctrine:

‘this law of declaration of the king’s majesty to be the supreme head in

earth of the church of England is not new. But a conﬁrmation of the old

laws of this realm, grounded and consonant with the law of nature and

the word of God.’

St German believed that ‘the king’s grace hath now

no new authority by that that he is confessed by the clergy and authorised

by the parliament to be the head of the church of England. For it is but

only a declaration of his ﬁrst power by God committed to kingly and regal

authority and no new grant.’

But the ‘kingly and regal authority’ referred

to in this passage is royal authority outside the sphere of common law; it

is an example of Fortescue’s ius regale. The only passage in St German’s

writings in which he actually refers to Fortescue’s political theory provides

a conﬁrmation of this reading:

Ibid., 42v.

Ibid., 42v–43.

Ibid., 43v–44.

Ibid., 31v–2.

Atreatyse concerninge the power of the clergye and the laws of the realm, sigs. Gv–G2.

56 The Constitutionalist Revolution

There be two manner of powers that kings and princes have over their subjects:

the one is called ius regale that is to say a kingly governance: and he that hath

that power may with his counsel make laws to bind his subjects and also make

declaration of Scripture . . . the other is called ius regale politicum, that is to say a

kingly and politic governance. And that is the most noble power that any prince

hath over his subjects and he that ruleth by that power may make no laws to bind

his subjects without their assent.

The important power of declaring scripture is mentioned as an attribute of

‘kingly’, but not of ‘kingly and politic’ governance.

The difference between Hales and St German corresponded, of course,

to a tension within the ideas appealed to by Henry VIII’s regime. During

the 1530s, Henry repeatedly appealed to his ‘imperial’ rights, rights annexed

to his crown by either God or nature. But when he made use of parliament

and lawyers in order to declare these royal powers, he tended, as it were, to

naturalise them: to encourage their absorption into ordinary law. Henrician

legislation on the Supremacy provides examples of this kind of slippage;

but the same kind of tension is perceptible elsewhere. Thus the ‘Act for

recontinuing of certain liberties and franchises heretofore taken from the

crown’ (1536), the statute that effectively completed the king’s monopoly

of jurisdiction, noted that ‘divers of the most ancient prerogatives and

authorities of justice appertaining to the imperial crown of this realm’

had been lost to the crown by ‘sundry gifts’ of Henry’s predecessors. The

opening clause of the statute provided that ‘the whole and sole power and

authority’ to pardon should be ‘united and knit to the imperial crown of

the realm, as of good right and equity it appertaineth’.

But the ‘good

right’ that the statute so vaguely declared was hard to distinguish from a

right that parliament conferred.

The most revealing instance of this process was Henry’s famous Act of

Proclamations (1539), a statute suggesting that thought about law in its con-

nection with the regal power had reached new levels of self-consciousness.

A letter from Thomas Cromwell to his conciliar colleague the duke of

Norfolk suggests this was a new development. At the time when it was writ-

ten (in 1531), the crown felt a need to stop merchants exporting the coinage.

Thomas Cromwell and others consulted the government’s lawyers, who

offered conﬂicting opinions on the subject, ‘but ﬁnally it was concluded

that the statutes should be insearched to see whether there were any statute

or law able to serve for the purpose’.

In the end a ‘good statute’ was found,

but in the mean time Cromwell asked another kind of question:

An answere to a letter, 5v–6.

Elton, Tudor constitution, 37–8.

Life and letters of Thomas Cromwell, ed. R. B. Merriman, 2 vols. (Oxford, 1902), i, 409–10.

St German’s world 57

If in case there were no law nor statute made already for any such purpose what

might the king’s highness by the advice of his council do to withstand so great a

danger like as your grace alleged . . . to the which it was answered by my Lord

Chief Justice that the king’s highness by the advice of his council might make

proclamations and use all other policies at his pleasure as well in this case as in any

other like . . . and that the said proclamations and policies so devised by the king

and his council for any such purpose should be of as good effect as any law made

by parliament or otherwise which opinion I assure your grace I was very glad to

hear.

What is most striking in this glimpse of government in action is the apparent

absence of an intellectual framework for coping with this kind of difﬁculty:

although the government recognised its need to ﬁnd a ‘law’, it seems to

have had no particular preconceptions about the form this ‘law’ would be

likely to take. All parties may have been unsure if the Chief Justice seriously

meant that the effect of such a proclamation was legally identical to statute

(and thus enforceable at common law) or if he was simply admitting that

this extraordinary course of action was in some vaguer sense legitimate (and

thus enforceable by some conciliar jurisdiction).

The Act of Proclamations dispelled this innocence. In the version ﬁrst

considered by the Commons, it may have conferred on royal proclamations

precisely the same authority as statutes, but there exists some evidence that

this original draft met with unprecedented opposition.

100

The statute that

eventually emerged was a considerably more modest affair, incorporating

safeguards for every type of private property; but its reﬂections upon ‘regal

power’ were nonetheless revealing. It noted that some subjects, ‘not con-

sidering what a king by his regal power may do’, had shown contempt for

royal proclamations ‘for lack of a direct statute and law to coarct offenders

to obey’; and also that ‘sudden causes and occasions’ often required ‘speedy

remedies’ without ‘abiding for a parliament’. Lastly, it mentioned ‘that his

Majesty (which by the kingly and regal power given to him by God may

do many things in such cases) should not be driven to extend the liberty

and supremacy of his regal power and dignity by wilfulness of froward

subjects’.

101

This ﬁnal assertion was probably meant as a threat, but the wording of the

statute did offer some comfort to anybody worried about extra-legal power.

It could be taken to restrict the exercise of such a power to real emergencies.

The preamble’s concluding words offered support to this interpretation:

Ibid., i 410.

100

R. W. Heinze, The proclamations of the Tudor kings (Cambridge, 1976), 153–71.

101

Elton, Tudor constitution, 27–8.

58 The Constitutionalist Revolution

It is therefore thought in manner more than necessary that the king’s highness of

this realm for the time being, with the advice of his honourable council, should

make and set forth proclamations for the good and politic order and governance

of this his realm...forthedefence of his regal dignity, and the advancement of his

commonwealth and good quiet of his people, as the cases of necessity shall require,

and that an ordinary law should be provided, by the assent of his Majesty and

Parliament, for the due punishment, correction and reformation of such offences

and disobediences.

102

As it happens, the ‘ordinary law’ that eventually passed turned out to

be of little practical use, if only because the conciliar court entrusted with

enforcement was much too cumbersome to be effective. The importance of

the episode lies in its revelations about perceptions of monarchical power.

It shows that the king was believed to possess some extra-legal powers –

of which the ‘speedy remedies’ appropriate to an emergency were probably

the paradigm example – but it also shows awareness of the possibility

of bringing such powers within the reach of ordinary law. Whether this

constitutionalising process would ultimately limit monarchy depended,

of course, on the attitudes of judges. Here we enter much more difﬁcult

terrain, for the attitudes in question are more difﬁcult to study than simple

propositional beliefs. The best approach, as we shall see, is through the

history of the Reformation.

102

Ibid., 28.