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English Legal History
4/7/2009
Outline
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I. KINGS AND BATTLES AND DATES
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II. REVIEW UP TO THE REFORMATION PARLIAMENT
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II. FROM 1461 TO THE REFORMATION PARLIAMENT
(1529–36)
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V. SOME FUNDAMENTAL CONSTITUTIONAL AND LEGAL
THEMES
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TUDOR AND STUART
CONSTITUTIONS
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1485–1603
– Tudors
Henry VIII (1509-1547)
1515–1529 — ascendancy of Thomas Wolsey
1527–1532 — the “King’s Great Matter” (divorce)
1532–1540 — Thomas Cromwell; Reformation Parliament; dissolution of the
monasteries
Edward VI (1547-53); Protestantism
1553 (1555)–1558 — Mary (Philip and Mary);
Catholicism
Elizabeth I (1558-1603)
1569 — 39 Articles
1587 — execution of Mary Queen of Scots
1588 — defeat of the Armada
1603–1714 — Stuarts (with a break
1649–1660)
James I (1603-1625) (James VI of Scotland)
1605 — Gunpowder Plot
1616 — Dismissal of Coke
1621 — The Great Protestation
Charles I (1625-49)
1628 — Petition of Right
1640–1653 — The Long Parliament (called “the Rump” from 1648–1653)
1642–1646 — Civil War
1648–1650 — Civil War
1649 — execution of Charles I
Commonwealth (1649–1660) – Oliver Cromwell
Protector (1653–1658)
Charles II (1660-85, officially from 1649)
1660 — Restoration
1667 — Impeachment of Clarendon
1678 — Popish Plot
James II (1685-88)
William & Mary (1689-1702)
1689 — Glorious Revolution; Bill of Rights
Anne (1702-14)
1707 — Act of Union (of England
and Scotland)
1710–1714 — ascendancy of Bolingbroke
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1.
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It makes little sense to consider 1485 a major breaking point other than
the change of dynasty. It makes more sense to take 1461 (accession of
Edward IV) as a breaking point.
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2.
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In the first half of the 15th century control of the Chancery comes to
rest first in the council and the privy seal and then in those who possess the
signet and the way is paved for the reforms of Thomas Cromwell in the reign
of Henry VIII.
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3.
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We noted that Edward III had experimented with chamber finance. Richard II did not, nor did the
Lancastrians. We will see when we
return to the topic that in the second half of the 15th century there was a
return to the practice of chamber finance.
Edward IV, Richard III, Henry VII had increasingly tight control
over finances through the Chamber.
Again the final reform comes under Cromwell with the reform of the
Exchequer and the rise of the Privy Council.
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1.
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The danger of rebellion did not stop at Towton. But from 1471 to his death in 1483,
Edward IV was solidly in control.
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2.
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In April of 1483 Edward IV died young. In June, his brother Richard
usurped the crown. In 1485, Henry
Tudor (who claimed through the Beauforts), won a great victory at Bosworth
field. In 1486 Henry married
Elizabeth of York, Edward IV’s daughter, thus uniting Lancaster and York.
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3.
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The problem of the succession, however, did not end there.
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4.
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So many had lost their lives or had been attainted during the 15th
century that Henry VIII had the opportunity to create a virtually new
higher nobility. His father, Henry VII, made use of a wider circle of
advisers.
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5.
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The first European power to take the Tudors seriously was Spain.
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6.
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Henry VIII’s foreign ventures.
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7.
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The period from 1515 to 1529 was the period of the ascendancy of Cardinal
Wolsey.
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8.
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We have already said that from Edward IV on we have an increasing trade
and prosperity. There was also,
beginning in 1500, a truly phenomenal inflation. The causes of this are once more in
dispute.
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9.
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Officially Protestantism begins in the late 16th century. Most modern historians regard Henry
VIII’s break with Rome as a schism rather than as an open espousal of
Protestantism.
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1.
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Henry VIII (1509–1547).
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a.
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Continuity,nationalism, humanism, anticlericalism, reformation
(Wittenberg, 1517).
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b.
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Divorce.
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c.
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Reformation Parliament(s): Appeals, Supremacy, Annates (episcopal
elections), Succession, Monasteries, Uses and Wills
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d.
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The reforms of Thomas Cromwell.
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2.
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Edward VI (1547–53) & Mary (1553–58).
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3.
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Elizabeth (1558–1603)
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a.
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The Prayer Book (1559) and the 39 Articles (1563).
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b.
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Mary of Scotland (in England 1566 to 1587) and Elizabeth.
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c.
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Economic expansion.
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d..
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War with Spain (Armada 1588) and the age of Shakespeare.
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e.
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The reforms of Thomas Cromwell enforced.
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f.
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Various incidents in Elizabeth’s parliaments reflect a growing bloody-mindedness
on the part of the commons.
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1.
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The 17th and 18th centuries.
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2.
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Large claims about the importance of the 17th century from Christopher
Hill, The Century of Revolution,
pp. 1–4:
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3.
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James I (1603–1625
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a.
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Personal incompatibility.
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b.
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Foreign policy:
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i.
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Scotland—Calvin’s Case.
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ii.
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Ireland — settlements in Ulster
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iii.
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the Continent (30 years war, 1618–1648, France and Spain). His continental
son-in-law (a Protestant) and marriages (Anne of Denmark, his queen, became
a Catholic); finally Charles marries Henrietta Maria.
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c.
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1605—the Gunpowder Plot—Guy Fawkes Nov. 5
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d.
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1616—dismissal of Coke
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e.
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1621—the Great Protestation—parliamentary rights
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4.
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Charles I (1625–49):
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a.
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The problem of finance. 1628 the petition of right, Coke’s last
parliamentary effort. The fear of the parliamentarians that the institution
is in trouble.
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b.
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Attempts to raise money without Parliament, for a long time
successfully. The Ship-money Cases.
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c.
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The problem of Scotland, St. Giles 1637, the attempt to impose episcopal
organization and Anglican ritual on a Presbyterian church, the covenanters
(the Swiss analogy), the bishops’ wars (1639) and the short Parliament
(spring of 1640).
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d.
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The long parliament (1640–1660)—Pym—impeachment of Thomas Wentworth,
earl of Strafford, Laud—abolition of the prerogative courts—Parliament
starts giving money to the Scots—Parliament divides along religious lines—2
armies—the Great Remonstrance (1641).
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e.
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1st Civil War (1642–46)—Prince Rupert (Charles’s nephew) and Cromwell,
Marston Moor (Dec. 1643) and Naseby (1644).
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f.
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2d Civil War (1648–1651)—Pride’s purge—the Rump—execution of Charles.
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5.
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Commonwealth—their inability to govern—a kind of black hole in the
traditional accounts
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6.
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Charles II (1660–85), James II (1685–88), William & Mary
(1689–1702), Anne (1702–14)
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a.
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Restoration (1660) and the return of the religious issue (the financial
issue had largely gone away)—1667 the impeachment of Clarendon—1678 Popish
Plot
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b.
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The bill of rights—1689
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c.
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The Protestant succession, the Hannoverians (inheritance through a dau.
of James I)
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d.
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The beginning of the party system Bolingbroke and Walpole
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1.
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On the consitutional side:
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a.
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Law, the king and the state—parliament and prerogative.Law, the king and
the state—parliament and prerogative.
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b.
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Courts and the Constitution—the big cases, e.g., Monopolies (1602), Bates’s
Case (1606), Commendams
(1616) and the fall of Coke.
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c.
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Law, history and revolution—fundamental law and the Whig view of
history. The sovereignty of Parliament is still a ways off; the phrase
“fundamental law” may mean something that is hard to change. Dr. Bonham’s Case (1610) is
isolated.
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d.
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Law and Liberty—certiorari,
prohibition, mandamus, as means
of restraining the courts and other bodies against which the individual is powerless.
The beginning of the notion of the rights of criminal defendants that
appear in the state trials of the late 16th and 17th centuries.
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e.
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Law and Inequality—villeins, pastime of the gentry, levelers and gentry.
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f.
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Law and Community—family, corporate bodies, the inns, the realm, the
charities. This is the part that fits into the Whig view of history the
least well. This is not economic liberalism or anything like it yet.
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2.
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The relation of all this to private law.
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a.
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During the 16th and early 17th centuries Parliament emerged as lasting
institution in English government; yet we did not and need not have said a
word about it in our history of contract.
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b.
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The social and economic history of these centuries is complex.
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c.
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The 17th and 18th centuries are the great periods of common law
conveyancing.
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d.
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The 17th c. begins with a concerted attack on the prerogative courts and
the church courts. The chancery survived, but the church courts never really
recovered bringing defamation and curious family actions into the c.l. The
organization of the law of torts was beginning, but that is basically a
19th c. story. In contract the effects were more immediate, and Lord
Mansfield who “incorporated the law merchant into English law” is clearly
the dominant figure.
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e.
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The history of the institutions may provide us with our link between the
social, political and the private law.
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