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was, it is true, proposed in 1566 to give the judge of the court of Admiralty statutory powers to hear certain commercial causes "summarie et de plano et sine strepitu et figura judicii, sola facti veritate inspecta, omnique appellatione remota "-to make it, in other words, a commercial court with the summary procedure used in continental commercial courts. But nothing came of this proposal, and the procedural defects of the court remained unremedied. But, in spite of this, we cannot doubt, that, from the point of view of the substantive law which it administered, it was a more satisfactory tribunal than either the courts of common law or even the court of Chancery, because, as we have seen, neither of these courts administered that maritime and civil law with which the merchants were familiar; and neither possessed the peculiar machinery needed to do justice in maritime causes.2 If the agreements as to the jurisdiction to be allowed to the Admiralty arrived at in 1575 and 16323 had been adhered to, there can be little doubt but that the Admiralty would have become the tribunal in which the law merchant was principally administered.

That the Admiralty never developed into such a court is due perhaps in part to the fact that it was not wholly satisfactory to the merchants, but chiefly to political causes. The Tudors never succeeded in settling the boundaries of the jurisdiction of the various courts new and old which administered the various parts of English law in the sixteenth century; and the issue of the political controversies of the seventeenth century was fatal to all those courts to which either the common law or Parliament were hostile. It is true that they were hostile to the court of Chancery; but that court had established its position before these controversies had become acute; and it therefore survived them.1 Consequently, after the Great Rebellion, the ordinary courts of law and equity acquired complete jurisdiction over commercial causes, and by far the greater part of the jurisdiction over maritime causes. Therefore in England alone among the nations of Europe commercial and maritime law became simply a branch of the ordinary law, founded indeed on those principles and rules of the cosmopolitan Law Merchant which were introduced into England during this period, but developed by the machinery and in the technical atmosphere of the courts of law and equity. It was therefore developed by men who knew very little of that great body of law and legal theory which on the Continent had

1 Select Pleas of the Admiralty (S.S.) ii xiii, xiv; for the meaning of these terms see above 81-82. 3 Vol. i 553, 555-556.

2 Above 134, 138-139.

4 Vol. i 463-465; below 217, 236-238.

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grown up and was still growing up around these topics.1 Mr. Marsden tells us that, "many points of maritime law that were afterwards painfully elaborated by the common lawyers had for at least a century been familiar to the civilians. . . . General average, insurance, and the negotiability of bills of exchange all matters of rare occurrence in the Westminster courts during the Elizabethan and Stuart period, were very frequent in the Admiralty. The Westminster Courts elaborated their law upon these and many other points of commercial law, without much reference to the previous decisions of the Admiralty. Nevertheless the common law, with tardy steps, followed the Admiralty in many of its decisions, perhaps unconsciously, and certainly without acknowledgment. Sir Mathew Hale is careful to point out that the common law courts, as well as the Admiralty, administered the civil law, so far as, by the law of England, the civil law was applicable to maritime cases; and the supremacy of the former being established, the decision as to what was the law of England was necessarily in their hands." Hence in England the growth of commercial and maritime law was slow; and though the actual rules in many cases agreed with, and were in fact founded on the law laid down by the continental civilians, at many points they diverged from continental usages. With the beginnings of this native development of commercial and maritime law through the courts of law and equity I shall deal in the Second Part of this Book.

We must now turn to those other legal developments outside the sphere of the common law which are less directly connected with the civil law.

1 See Pepys' Diary (Ed. Wheatley) iii 364 for an amusing account of a trial in 1663 of an action on a policy of marine insurance in the King's Bench, in which the court displayed an entire ignorance of the meaning of ordinary nautical language and commercial terms, "To hear how sillily the counsel and the judge would speak as to the terms necessary in the matter, would make one laugh."

2 Select Pleas of the Admiralty (S.S.) ii lxxx.

CHAPTER IV

ENGLISH LAW IN THE SIXTEENTH AND EARLY SEVENTEENTH CENTURIES (Continued)

DEVELOPMENTS OUTSIDE THE SPHERE OF THE COMMON LAW (Continued)

I

N this chapter I shall deal firstly with the law administered by the Council and the Star Chamber, and secondly with the equitable jurisdiction of the Chancellor.

THE LAW ADMINISTERED BY THE COUNCIL AND THE STAR CHAMBER

The functions of the Council and Star Chamber were twofoldexecutive and judicial. No doubt in the work of the Council executive functions predominated, and in the work of the Star Chamber judicial functions; but we have seen that they were to a great extent staffed by the same men,1 and that the separation between the bodies themselves and their work was never quite complete. As executive bodies they had a large influence upon the development of public law, and upon the commercial and industrial policy of the state; and they used their wide judicial powers to create a considerable amount of law upon these topics. Of this part of their work I have already said something,3 and I shall have something more to say of it in the next chapter. But this part of their work naturally led them to extend their jurisdiction to other cognate topics. At all times the effective administration of the criminal law is intimately connected with the good government of the state. We have seen that the anarchy of the fifteenth century was largely due to the failure of the common law to administer it effectively; and that therefore, in the sixteenth and early seventeenth centuries, the interference of the 2 Vol. i 502.

1 Vol. i 500; vol. iv 60-61, 63.

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3 Vol. iv 85-88, 273-274, 335-338, 343-354, 377-379, 381; above 136-137.

4 Below 421-423.

5 Vol. ii 414-416.

Council and Star Chamber was urgently needed.1 The success achieved by these bodies was no doubt mainly due to the facts that they comprised among their members all the leading statesmen of the day, and that they acted as the immediate agents of the king's prerogative. But it is also in part due to another and a more purely legal reason-the system of procedure which they employed. It was through this system of procedure that they were able to develop many new branches of the criminal law; to punish many kinds of sharp practice, and many attempts to use the procedure of the common law and other courts as an instrument of oppression; and to exercise occasionally a civil jurisdiction in cases in which the rules of the common law worked or were made to work injustice. It is with these more purely legal developments that I shall deal in this chapter.

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In this part of their work the Star Chamber was important than the Council. All through this period it was gradually developing many of the characteristics of a court of law. The chief justices and other lawyers were generally present. It was acquiring a staff of officials. Its rules of procedure and pleading were beginning to attain fixity. Like other courts of justice, and unlike the Council, it heard cases in public. In 1589 Manwood C.B., pointed out that it would be fairer to himself that the complaints against him should be heard by the Star Chamber rather than by the Council, both because lawyers were always present in the Star Chamber, and because the hearing there was public.5 The publicity of its sittings, as contrasted with the Council, is attested by Bacon," and by other writers.' It would not of course be true to say that the Council did nothing to assist these legal developments. But it is clear that, owing to the judicial characteristics which the Star Chamber was acquiring,

1 Vol. i 491-493, 507-508; vol. iv 25, 53, 190. 2 Vol. i 500; vol. iv 270 n. 7.

Ibid 501; below 178-184.

3 Vol. i 500. 5" Myself having byn a publique person in place of Justyce above xxxty years for the peace, and thereof above vi yeares a Judge in the Common Place, and above xi yeares Cheyffe Baron of the Exchequer and (in two greate Cyrcutes of the Realme a judge above xviitene yeares) not to be convynced nor displayced nor disgracyed but by due order in a Publique courte of Justyce. My Lords and others of her Matyes counsell for the moste parte have not study or Judgment of lawe, and but small experyence of law to dyscusse what ys an offence of lawe and what not, unles they be assysted by the Judges and the Quenes lerned counsell as in the Star Chamber they be and here not," Lansdowne MS. 59, Art. 64, cited Scofield, A Study of the Court of Star Chamber 43; for Manwood's offences see vol. i 505.

6 Spedding, Letters and Life vii 70, 71, 289, “it is a supreme court of Judicature ordinary; it is an open council."

7 Strype, Grindal 348 (cited Scofield, op. cit 59 n. 4). "Her Majesty findeth it expedient to have the world understand her actions in this matter; and also to have the archbishop's misdemeanours declared and to call him to answer the same. Therefore he is to answer hereunto in that open place "-i.e. the Star Chamber.

it is mainly to that court that we must look for the legal developments with which we are here concerned.

The fact that the Star Chamber was becoming a judicial court which was making law, is clear from its records, from the reports of its proceedings, and from the books describing its organization and jurisdiction which were beginning to make their appearance in the legal literature of the latter part of this period. I shall therefore say a few words about these records, reports, and books before describing the manner in which its actual work influenced the development of English law.

(1) The records, reports and books.

When we apply the term "records" to the proceedings of the court of Star Chamber we are using it in a sense which was technically incorrect in the sixteenth century, and is perhaps technically incorrect at the present day. Such courts as the Star Chamber, the Council, the Chancery when acting as a court equity, and the Admiralty, did not technically keep "records"they were not courts of record. But the technical conception of a court of record was not ready made. It was of slow growth; and owes, it seems to me, some of its modern sharpness of ɖefinition to that rivalry between the new courts and councils of this period and the courts of common law, which was beginning to become acute at the latter part of the sixteenth century. Of the growth of this technical conception, therefore, I shall here speak shortly, because it illustrates both the new position which these courts were taking in the state, and the attitude of the common law courts to them.

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"The distinction," says Maitland, "that we still draw between courts of record and courts that are not of record takes us back to very early times when the king asserts that his own word as to all that has taken place in his presence is incontestable. This privilege he communicates to his own special court; his testimony as to all that is done before it is conclusive." 2 Thus the formal records of the king's court cannot be disputed; and herein it differs from inferior courts, which keep no such formal records. They may be called on by writ

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1 "A court of record is that where the acts and judicial proceedings are enrolled in parchment for a perpetual memorial and testimony; which rolls are called the records of the court, and are of such high and supereminent authority, that their truth is not to be called in question," Bl. Comm. iii 24; cp. Baldwin, Select Cases before the Council (S.S.) xi, xii.

2 P. and M. ii 666.

3" Sciendum tamen quod nulla curia recordum habet generaliter præter curiam domini regis. In aliis enim curiis si quis aliquid dixerit unde eum pœnituerit, poterit id negare contra totam curiam tertia manu cum sacramento, id se non dixisse vel cum pluribus vel cum paucioribus secundum consuetudinem diversarum curiarum," Glanvil viii 8; in certain matters however other courts might have records e.g. if battle were

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