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English Legal History
4/10/2009
Outline
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II. IMAGES OF SOCIAL STRUCTURE
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III. THE IDEA OF LAW c. 1500 (cont’d): FORTESCUE
(CJKB, c. 1385–1477/9)
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IV. THE IDEA OF LAW c. 1500 (cont’d): ST. GERMAN
(c. 1460–1540)
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pOLITICS, LAW AND SOCIETY—THE ‘LONG’ FIFTEENTH CENTURY
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1.
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Richard II
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a.
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Westminster Abbey Portrait
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b.
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The Wilton Diptych
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2.
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Richard III
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3.
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Henry VII
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1.
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The Lutrell Psalter, commissioned by and executed for Sir Geoffrey
Luttrell, of Irnham (Lincs.), sometime before his death in 1345.
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a.
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The Royal Carriage, folios 181v–182r. [The four queens depicted here may
have been those whom Sir Geoffrey knew in his lifetime Eleanor of Castile,
Margaret of France (Edward I), Isabella of France (Edward II), Philippa of
Hainault (Edward III). The text is Ps. 102(Vulg.)13–18 (KJV trans.): “Like
as a father pitieth his children, so the Lord pitieth them that fear him.
For he knoweth our frame; he remembereth that we are dust. As for man, his
days are as grass: as a flower of the field, so he flourisheth.For the wind
passeth over it, and it is gone; and the place thereof shall know it no
more. But the mercy of the Lord is from everlasting to everlasting upon
them that fear him, and his righteousness unto children’s children; To such
as keep his covenant, and to those that remember his commandments to do
them.”]
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b.
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Knight and Lady (Sir Geoffrey Luttrell), folio 202v.
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c.
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Roasting Meat, folio 206v.
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d.
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Stewing, Chopping and Grinding with Mortar and Pestle, folio 207r.
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e.
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Carving and Serving, folio 207v.
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f.
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The Luttrell Family at Table, folio 208r.
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g.
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Ploughing. Luttrell Psalter, folio 170r.
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h.
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Sowing. Luttrell Psalter, folio 170v.
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i.
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Harrowing. Luttrell Psalter, folio 171r.
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j.
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Reaping. Luttrell Psalter, folio 172v.
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k.
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Stacking Sheaves. Luttrell Psalter, folio 173r.
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2.
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The Ellesmere Chaucer [1400 X 1410, perhaps commissioned by Thomas Chaucer,
the poet’s son.] Characters in The Canterbury Tales:
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a.
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The Serjeant at Law
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b.
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The Manciple
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c.
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The Summoner
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1.
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Fortescue, CJKB, in exile with Henry VI and Prince Edward, 1461–1470, returns
with the readeption and dies 1477. He is ready to attack the question of
the relationship of the king to law. His contribution to political theory
is the notion of limited monarchy, the dominium
politicum et regale. This is preferable because men are weak and the
king may become a tyrant; therefore, he must be restrained by law. At times
he seems to be saying that this law is simply natural law or moral law, and
in this sense he is no different from contemporaries of Bracton, but
200 years of parliaments have added a different idea: the notion that the
king is bound by what is done in Parliament. He is also prepared to say or
at least to suggest that the king can’t change the customs of the realm,
except perhaps in Parliament. The idea of legislative power is coming to be
defined, though we still need the Reformation Parliament to break down the
idea that Parliament is simply doing what has been done in the past, and
even the Reformation Parliament so pretended. The encomium on the English
jury is not yet, but can become, a 17th century discourse on the rights of
Englishmen and the blessings of ordered liberty. And the notion has
developed that we should judge the law not only by its antiquity but also
by its results. See the comparison of France vs. England. What we lack yet
is any guide to what can be changed and what can’t. That will take another
200 years to work out, but the beginnings are there. In the 16th century we
will begin to see a distinction between fundamental law and other kinds of
law, and that century (with proclamations) may also see the beginnings of
an administrative law or regulatory law.
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2.
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The problem with Fortescue is making sure that we see him in his
medieval context. The modern application is easy enough.
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3.
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The basic notion of politicum et
regale is announced at the very beginning, Mats., p. IX–11, citing Aristotle and Thomas (De regimine).
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4.
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The basic argument that power is power only to do good, citing Boethius.
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5.
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Different types of law:
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a.
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Law of nature, customs, statutes.
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b.
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The antiquity of English customary law.
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c.
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Statutes promulgated in parliament.
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6.
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Direct comparison of English and civil law.
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a.
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Jurors and witnesses. Naboth’s vineyard
and Susanna and the elders. The case of mr John Fringe. The use of torture
in France. Better that 20 guilty should go free than one innocent man die.
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b.
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The effects of the civil law on the poverty of France and the richness
of England.
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7.
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Concludes that Thomas concludes that it were best that all men be ruled
politically.
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1.
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St. German’s work like Fortescue’s is written in dialogue form (1525 and
1530). Somewhat chaotic. So far as the relationship between law and
morality is concerned, St. German’s work, like Fortescue’s, is in many
ways, unsatisfactory. If Fortescue’s problem is that he has too little
theory, St. German has too much. His moral theory is quite sophisticated,
though quite medieval. He begins with sinderesis, the innate drive in men
to do good and avoid evil. To this he adds the divine law revealed by God
and the natural law discovered by reason. Conscience is the application of
moral rules to specific case and in this definition conscience is hard to
distinguish from equity, thoug the latter looks more to the judge while
conscience looks more to the individual.
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2.
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Definition:
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a.
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“Equity is right wiseness that considereth all the pertinent
circumstances of the deed, the which is also tempered with mercy.” (I.16, p. IX–22).
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b.
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Notion that it is also inherent in the common law (I.17, p. IX–23, the
example derived from Littleton is that an infant is not deprived of a right
of entry by descent cast). Equity of a statute (id., example is the
exception read into the waste statute that it does not cover the infant
tenant who suffers waste).
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c.
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Chancery example (p. I.12, p. IX–19, the classic example of the debt on
an obligation to which no sealed acquittance has been obtained).
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d.
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Limit to Chancery on appeal (I.18, p. IX–25, the statute of 4 H. 4, c.
22, which prohbits examination of a judgment given in the king’s courts in
chancery, parliament or elsewhere). There must be an end to disputes. What
it means as a practical matter is that the injunction must preceed the
judgment at common law. Later an exception was made in the situtation of
judgments obtained by fraud, and the Coke-Ellesmere dispute involved this.
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e.
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Notion of conscience ordered after law (I.20, pp. IX–27 to IX–28,
example is common law inhertance, borough English inheritance and gavelkind
inheritance). What is the principle?
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3.
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Indeed, the most interesting part of the book is where St. German
examines cases where there seems to be a conflict between equity and law.
Let’s take a look at a couple on that is in and one that is not in the
mats:
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a.
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A formal conveyance (fine) in court binds even those who were not
parties to it after 5 years in both law and conscience (I.25, p. IX–33).
But an acquittance not under seal will bind the parties in equity but not
in law. In both cases we look to the
purpose of the law and in both cases we discover that the purpose is to
provide stability to transactions. In one case equity will intervene; in
the other it won’t. Why? The
five-year limitation on fines is made by statute, that requiring a sealed
aquittance is a matter of common law, but St. G. makes nothing of this
distinction.
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b.
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A bequest of English land is void and not binding in conscience (I.20, p.
IX–28). A bequest of a use is equally void at law, but the feofees will be
compelled in equity to execute it (II.22, pp. IX–33 to IX–36). The
testator’s purpose in both cases is the same, and the argument given for
the use, that the law doesn’t prohibit it just makes it void (p. IX–34), is
equally applicable to a straight bequest.
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4.
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Some, although not all of these dilemmas, can be resolved by looking to
the defendant. The conveyee in the fine has no relationship to the stranger
who seeks to upset it nor has the heir at law of the testator who
bequeathes English land agreed to the bequest. By contrast both the
creditor who gave the unsealed acquittance and the feofee to uses have made
agreements which it would be unconscionable to allow them to break. The law
is no respecter of persons; equity operates in personam. This may be as
close as we can come to resolving dilemmas that St. German does not face.
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