CHAPTER VIII.

THE MATURITY OF THE LAW.

64. The administration of justice by councils.The Wars of the Roses, following hard on the long and draining struggle of the Hundred Years' War with France, left the English people exhausted and anxious for nothing so much as peace. Even during the civil strife the courts of law had carried on their regular operations; indeed the chances the warring nobles had been running of having their estates forfeited for treason, as one or the other faction got hold of the reins of government, had led to a great increase of conveyances of these estates in trust to non-combatants. But the sanction behind the judgments and decrees of the courts was weak. It was impossible for them to enforce their orders against the powerful nobles and their retainers. The machinery of the courts, dilatory at best and rendered more inefficient by the timidity and dishonesty of the juries obtainable in the general breakdown of traditional morality characteristic of the time, added to the dissatisfaction of the nation with the justice of the courts. England was ready to welcome a strong government, even though it should be an arbitrary and despotic one; and such a government the Tudors, so soon as they were safe on the throne, proceeded to inaugurate. They secured it by reorganizing the king's council, the original source not only

of administration but of judicature, into a close group of officials selected by the king as his advisers because of their personal loyalty to him and their administrative abilities as his officers. This council laid hold on many of the judicial duties, especially in cases of public wrongs, which the courts of common law had been unable to exercise effectively in the recent troublous times. So largely was this jurisdiction, which had never passed entirely out of the king's hands into those of the law courts, resumed by his council, that in this capacity the council, or a committee of its members, were soon themselves recognized as a court, the famous Star Chamber. It exercised a wide jurisdiction not only over matters of direct interest to the crown but also over litigation between private parties; indeed its historian, Hudson, states that "all offenses might be here examined and punished if the King will." Moreover, it was a court of very summary procedure. It had no jury; it could proceed on mere rumor; it subjected the accused to examination; it used torture to extort confessions. Other tribunals of a similar summary procedure exercised jurisdiction in special parts of England, as the Councils of the North and of Wales; or over special classes of litigation, as the Courts of Requests and of Wards. In fact, the administration of justice in England threatened to cease to be judicial, and to become executive; for the rapidity of action in these administrative tribunals, the simplicity of their procedure, and especially the effective sanction behind their decisions, brought the great bulk of the legal business for a

time to their doors. The courts of common law were often idle. The Year Books ceased, being succeeded only by an occasional set of reports put together by individual lawyers. With the executive tribunals monopolizing the important causes, the courts of common law were suffered to live largely because their activity was inconspicuous.

Meanwhile the legislative source of law was active, and during the greater part of the reign of Henry VIII and also of Elizabeth, Parliament met regularly and enacted many statutes. But these were really only legislative enactments of the royal will. Parliament, under the skillful manipulation of the king's ministers, especially Thomas Cromwell, was utterly servile. Fortunately this disposition made it unnecessary for the crown to dispense with it; and since acts which were really the king's were in form Acts of Parliament, the tradition of the legislative power of Parliament survived its period of servility, to grow, with the more courageous assemblies of the Stuart period, into the organ through which the national liberty was preserved.

The cruelty and despotism of the Tudors found only too ready a tool in the councils, but they consolidated the English people in their opposition to arbitrary government. From quasi-judicial institutions which imprisoned and tortured arbitrarily, judged without certain and defined rule, and without popular participation through the jury, the people began to turn to the tradition of a justice according to law. Men recalled the days when even a king was subject to the law, and when, in courts where

precedents were known and adherence to them was enforced by professional tradition, the course of justice was, if slow, still certain. The reaction began in the days of the new sense of nationality which in the closing years of Henry's reign rejected several attempts to secure in England a reception of the Roman law similar to that which was spreading it through Europe. This pride in national institutions was enhanced by the separation of the church in England from the Roman See, and by the splendid history of "the spacious times of great Elizabeth." The common law, with its adherence to custom and precedent, its trial by a jury of the countryside, its insistence on the superiority of law even over the monarch, seemed, in retrospect and in contrast with the Roman procedure of the administrative courts and the facile aid they lent to arbitrary power, the most valuable of English institutions.

65. The constitutional struggle with the Stuarts -Legal aspects. In the long struggle of a renascent Parliament with the tyranny of the Stuarts, weaker and less popular than the Tudors as they were also more insensible to popular feeling and tradition, the learning of the common law and the ability of its lawyers were the chief forces on the side of the people. Bracton and the Year Books were appealed to against the king's absolutism, and precedent against the arbitrary powers of the executive tribunals. The courts of common law made headway against those which were offshoots of the Council, and the triumph of the Parliament in 1640 was marked by the abolition of the Court of Star Cham

ber and most of the subsidiary tribunals of similar powers. The Court of Admiralty lost a great part of its jurisdiction, and only the Court of Chancery survived with practically undiminished prestige.

The victory of Parliamentary government and of the common law was none the less thoroughly achieved because of the Restoration of the Stuarts in 1660. The Habeas Corpus Act of 1679 entrusted to the judges of the common law the protection of individual liberty against arbitrary imprisonment on charge of crime, and the statutory activity through-~ out Charles II's reign shows in what complete accord the two great institutions of Parliament and the courts were working. The Bill of Rights (1689) and the Act of Settlement (1701), embodying in definite formulas the results of the long struggle between crown and people, provide alike for the liberty of the individual and of the nation from the arbitrary exercise of the executive power; insuring as they do the freedom and power of Parliament, and the independence of the judiciary not only from the control of the crown over the appointment of judges, but also from the competition of royal commissioners and courts of like nature in the administration of law.

66. The standardizing of equity. The Court of Equity, as has been said, resisted all attempts at destruction or absorption. It survived alike the opposition of Henry VIII and the even more powerful and long-continued attacks of the courts of common law in Stuart times. In 1535 Henry, by the Statute of Uses, sought to destroy its most important field