term there was no cause nor motion; and that at one time he had actually dismissed every cause in his court. The statutes of wills and of uses, in a course of time, supplied new materials, and furnished full employment for the chancellor, who again began to stand in need of assistance; which led to confirming the master of the rolls in his new judicial authority."*

The petitions presented to the king by poor persons and those of the king's household were referred to some one or two of the council, with a bishop, and some doctors of the civil and canon law, and some common lawyers, who were called magistri à libellis supplicum, or masters of requests. This court subsisted for many years, till it was abolished, like others of a like nature, by parliament.†

There was a jurisdiction erected by Henry VIII., which, for the figure it made in some succeeding reigns, particularly in that of Charles I., when Wentworth presided in it, deserves notice here. It was erected by letters patent, and was called "The President and Council of the North." On the disturbances that arose in Lincolnshire and Lancashire; upon the suppression of the lesser monasteries, Henry, in the thirty-first year of his reign, established this jurisdiction to preserve the peace of the northern counties. "This court,"

says Mr. Reeves, "as it was formed after the example of the king's own council, had, like that, a general authority, not well defined: it had two commissions;-one of oyer and terminer; another, empowering them to hold plea of real and personal actions, when either of the parties were so poor as to be unable to pursue the common course of legal redress; and the judges were to give sentence either according to the law and custom of the realm, or in an equitable way, according to their wisdom and discretion. This accommodation of a court to decide civil questions, without the expense and tediousness of the common law, was conceded in compliance with the earnest request of the rebels themselves. What other authority the commissioners had used to be set forth in the commission, which generally gave them powers of superintendence and inquiry as to the police and government of that part of the country. In after times, the commission used to be made in a formal way, in order to conceal those extraordinary powers with which they were to be armed, and contained a reference to secret instructions by which they were to be directed. These concealed instructions, as they carried in them something suspicious, excited much clamour at different times against the very being of this court, and at length contributed to its dissolution."

With all his barbarism and brutality, Henry VIII. had a modicum of sense sufficient to distinguish him in character as in fate from his successors, the Stuarts. He exhibited this in the

Hist. of Eng. Law, vol. iv. pp. 368–370.
Reeves's Hist., vol. iv. p. 377.

Ibid. 378. It was'dissolved by statute 16 Car. I.

way in which he took some disappointments he occasionally met with in the matter of raising money. For example, on one occasion, meeting with some resistance to his attempts at arbitrary taxation, and knowing that he had no military force ready to put it down and give general support to his despotism, he thought it advisable to send letters into every county, declaring that he meant no force by the imposition, and that he would take nothing but by way of benevolence. Yet these exceptions were far too few to give any character to his government, and the general proposition may be with safety hazarded, that this king exercised an absolute control over the property as well as the persons of his subjects.

"If we are to judge of the general administration of criminal law in this reign," says Mr. Reeves," from the trials that have come down to us of eminent persons, it appears that the lives of the people were entirely in the hands of the crown. A trial seems to have been nothing more than a formal method of signifying the will of the prince, and of displaying his power to gratify it. The late new-invented treasons, as they were large in their conception, and of an insidious import, by giving a scope to the uncandid mode of inquiry then practised, enlarged the powers of oppression beyond all bounds.” Indeed, the favourite way of proceeding against state criminals-namely, by bill of attainder-would seem to show that even the new statutes were not sufficient to answer the king's views; and that, besides these, a new law had to be made for every individual case as it arose; thus exemplifying a state of society in which we see a horde of miserable savages living without other law than the capricious and sanguinary will of the savage whom accident or fate has set to domineer over them.

The above view of the state of society in England at this time is further confirmed by the inhuman application of the torture, under the immediate view and superintendence of such men as the chancellors More and Wriothesley, whom one might expect to find at least among the most enlightened and humanised men of their age.†

"The Reports of this reign," says Mr. Reeves, "are contained in the Year Books and in Dyer, with some scattered cases in Keilway, Jenkins, Moore, and Benloe, and towards the end of the reign in Leonard. The Year Book is a very scanty one compared with those which went before, owing, probably, to persons being no longer encouraged with a stated appointment to execute this task. It contains only the 12th, 13th, 14th, 18th, 19th, 26th, and 27th years; and there ends this famous collection of Reports called the Year Book."

Hist. of the Eng. Law, vol. iv. p. 406.

+ Much new light has lately been thrown upon this subjectin "A Reading on the Use of Torture in the Criminal Law of England pre viously to the Commonwealth, delivered at New Inn Hall, by David Jardine, Esq., Barrister-at-Law;" 8vo. Lon. 1837. Mr. Jardines views, which are to a considerable extent both novel and important. will be adverted to in the next Book.

Ibid. p. 414.

The most distinguished writer upon law in this reign is Anthony Fitzherbert, a judge of the Common Pleas. His principal works were his Grand Abridgment and Natura Brevium. Another distinguished work of this reign was the Doctor and Student of St. Germain. Fitzherbert's Abridgment and Natura Brevium are both improvements of more ancient works. The former, from its containing many cases not to be found elsewhere, possesses value as an original work, independent of its value as a mere digest. The latter is a treatise on the nature and effect of the principal writs in the Register of Writs,* a large proportion of which, however, soon afterwards became obsolete.

Among the law-writers of this reign," says Reeves, are to be reckoned John Rastell, the printer and lawyer, and his son William Rastell, the lawyer and printer: the former was bred a printer, and, though he did not take to the practice of the law, yet it evidently appears from his works that he had been a diligent student; the latter, though educated for the bar, and a practiser, succeeded to his father's occupation, which he seems to have united with his profession till the honours of the latter at length called upon him to decline it altogether. John Rastell translated from the French the Abridgment of the Statutes prior to the time of Henry VII., mentioned before. He also abridged those of Henry VII., and down to the 23rd and 24th of this reign, which were printed together by the son William in 1533. This was the first abridgment in the English language, and it is introduced by the author with a long preface recommending the printing of law-books in English, and ascribing great praise to Henry VII. for first directing the statutes to be made in the mother-tongue."+

We extract the following passage from the same author respecting the government of the Inns of Court at this time:-"It appears from a manuscript of this reign, relating to the government and discipline of the Middle Temple, that the members of that society were divided into two companies, called Clerks Commons and Masters Commons. The first consisted of young men during their first two years' standing, or thereabouts, till they were called up to be Masters Commons. The Masters Commons was divided into three companies, that is, No Utter Barrister, Utter Barristers, and Benchers. The first of these were such as from their standing, or neglect of study, were not called upon by the elders or benchers to dispute and argue some point of law before the benchers: those disputes were called mootings. Utter Barristers were such as were of five or six years standing, and were called upon to argue at the mootings; so that making an Utter Barrister was conferring a sort of degree for the party's progress in learning. Benchers were such Utter Barristers as had been in the house fourteen or fifteen years; they were chosen by the elders of the house to read, expound,

The Register of Writs is said to be the oldest book in the law,
History of the English Law, vol. iv. p. 418.

and declare some statute openly to all the society. During the time of his reading, this person was called a Reader, and afterwards a Bencher."*

The following curious account of the state kept up by these Readers, in the time of their reading, is given by one of them, in the next century, in his vindication of himself against the interference of Archbishop Laud :-"Readers of law, during the time of their reading, do hold up the ancient honour and dignity of a reader, on whom, for that time, is devolved the government of the house. They have four cubbard-men, ancient barristers of the house, to attend them in their reading, and four stewards to attend them in their feasting, for the inviting their guests of noble rank, and ten or twelve men of his own to attend his person."+

66

The author of the manuscript quoted above by Mr. Reeves, complains that the young students of the Middle Temple had no place to walk in, and talk, and confer their learning, but the church; which in term time, by reason of the confluence of suitors, had in it no more quietness than the pervyse of Pawle's ;" alluding to the custom of serjeants choosing their pillars at St. Paul's, where their clients resorted to them. The same writer remarks that, owing to this house having no revenues for the encouragement and support of stu dents, many a good wit was compelled to forsake study before he had acquired a perfect knowledge in the law, and "to fall to practising, and become a tipler in the law."

The principal legislative acts of the reign of Edward VI. are those relating to religion and the church, which have already been noticed in the two preceding chapters. One statute, 1 Edw. VI. c. 12, deserves mention in the history both of our criminal and of our constitutional law. It abolished most of the treasons and felonies created in the preceding reign, ordaining that no act or deed being by statute made treason or petit treason, should be so deemed, but only such as are treason or petit treason by stat. 25 Edw. III. st. 5, c. 2, and by the present act. It repealed all acts of parliament concerning doctrine and matters of religion; and likewise stat. 31 Hen. VIII. c. 8, enacting that proclamations made by advice of the council should be obeyed as acts made by parliament; and stat. 34 and 35 Hen. VIII. c. 23, for the due execution of such proclamations.

The tendency of the reign of Mary was to restore the power of the church of Rome in England and other things nearly to the state in

History of the English Law, vol. iv. p. 433.

A Just Vindication of the questioned part of the Reading of
Edward Bagshaw, Esq., had in the Middle Temple Hall, 24th
February, 1639, upon the statute 25 Edward III. called Statutum de
Clero. With a True Narrative of the Causes of Silencing the Reader
by the then Archbishop of Canterbury, &c. London, 1660.
Chaucer says-

A serjeant of the lawe ware and wise,
That often hadde yben at the parvis.

Prol. Cant. Tales.

A parvyse, or parvis, meant, both in English aud French, a portico before a church. Fortescue, in his Treatise De Laud. Leg.Ang., tells ns that the courts of law were shut after mid day, and that the lawyers then went to meet their clients and hold consultations at the parvis and elsewhere.

which they were in the early part of the reign of her father Henry VIII. There is one remarkable statute of Mary's respecting the royal authority of a queen (she having been the first queen regnant of England, at least of the dynasty of the Conqueror) which we shall briefly

notice. The stat. 1 Mary, sess. 3. c. 1, sets forth that, because the statutes of the realm attributed all prerogative and pre-eminence to the name of king, together with the punishment of offenders; therefore, some malicious and ignorant persons had pretended to think that the queen could not take the benefit and privilege of them. It then enacts that the law of this realm is, that the kingly or royal office, with all its dignity, prerogative, and power, being invested either in male or female, ought to be as fully deemed and taken in the one as in the other; and that whatever the law has appointed the king to have or do, the same the queen may enjoy or exercise without doubt or question.

The secret history of this act was afterwards related by Fleetwood, the recorder of London, to the Earl of Leicester, from whose notes of the conversation Bishop Burnet has published it.* The bill, as first introduced, declared that the queen had as much authority as any of her progenitors. To this it was objected, that she was thereby declared to have as much authority as William the Conqueror, and might, like him, seize all the lands of Englishmen and give them to strangers. Upon this, the House went into a committee, in which the bill was put into the form above described. The act originated thus. A book had been presented to the queen by the emperor's ambassador, containing the outlines of a plan of

Hist. of the Reformation, vol. ii,

government for the queen to adopt. She was to proceed upon the notion that all limitations by statute on the royal power regarded kings, and not queens, of England. She was to declare herself a conqueror; or that she succeeded by the common law, and not by statute, which could not, upon the above principle, bind her. The queen gave the book to Gardiner, and told him to read it and give her his advice respecting it. Gardiner's opinion being unfavourable to the project, the queen committed the book to the flames. Gardiner, however, to prevent such designs for the future, drew this act, in which, though he seemed to intend an advantage to the queen, by putting her title beyond dispute, he really meant that she should be restrained by all those laws to which the former kings of England had consented.

Upon the accession of Queen Mary, in imitation of what had been done when her brother came to the throne, a statute (1 Mary, c. 1) was passed, annulling all additions to the law of treason which had been made during the late reign, and again bringing back the law upon that subject to the state in which it had been fixed by the statute of the 25th of Edward III. Since the time of Mary, however, the number of treasons has again considerably increased, as we shall find as we proceed with the succeeding reigns. Indeed, some treasons and felonies were very soon created by Mary herself. Thus it was ordained by statute I Mary, sess. 2, c. 6, that persons who counterfeited gold or silver coin, not the proper coin of this realm, but current with the queen's consent (and by stat. 1 and 2 Philip and Mary, c. 11, those who brought such coin into the realm), should be adjudged traitors, as also those who counterfeited the queen's

sign manual, privy signet, or privy seal. In the same session an act was made (1 Mary, sess. 2, c. 12) against riotous assemblies, which differed from the act of George I. made for the same purpose, in inflicting the penalty of felony, instead of felony without clergy.

Some changes had been gradually taking place in the criminal law, respecting which our space will only permit us to say a few words. Murder is defined by Britton to be "The felonious secret killing of a person without being able to discover by whom it was committed."* The offence which we now call murder was then expressed by felonious killing or voluntary homicide. At that time murder could not be the subject of inquiry before the jury who were to try the felonious killing; being always to be inquired of by a presentment of Englishry. When these presentments were abolished by law (14 Edw. III. c. 4), the term murder had lost all legal meaning or use; till, by degrees, it crept into indictments, and was adopted, at first merely to aggravate the charge. But in the last reign it had been determined to imply malice, and at length it became the principal charge of every indictment.

When," says Mr. Reeves," murder with malice prepense had taken the place, as it were, of felonious homicide, and became the sting of such indictments, the common apprehension must be, that an acquittal of the murder and malice was an acquittal of the felonious killing. But when the statutes of Henry VIII. and Edward VI. had singled out murder with malice prepense as a mode and circumstance of killing which should no longer enjoy the benefit of clergy, the judges began once more to separate the legal ideas of murder and felonious homicide; and to say that there still remained a felony in the indictment; and though the prisoner was acquitted of the murder, yet if the jury convicted him of killing (without adding the qualification of se defendendo, or per infortunium), they convicted him of a felony, for which he should have judgment to die; and to this felonious killing they gave the name of manslaughter, and sometimes chancemedley. The former of these words, it is obvious, was only another term for homicide; the latter was to express a sudden affray, or scuffle, chaudmélée, it being under such circumstances that the killing here meant to be signified most usually happened. Conformably with this new construction of the judges, homicide is thus divided by Staunforde, who wrote three or four years after the time of which we are now speaking. He says, that killing a man is either justifiable, or se defendendo, or per misadventure; and if it is not one of these three, it is voluntary homicide; which he subdivides into two-the more heinous species, called murder; the less heinous, called chancemedley."+

The most eminent law-writer of this period was

Britton's Pleas of the Crown, translated by Kelham, f. 15 a.
History of the English Law, vol. iv. pp. 536-7.

Staunforde, who has just been mentioned; his Pleas of the Crown, written in French, was the first work which treated the subject of criminal law professedly and in detail.

In 3 and 4 Philip and Mary, an order was agreed upon to be observed by all the four inns of court, that no attorney was to be admitted into any of the houses; and in all admissions thenceforward this condition was to be implied, that if he who was admitted practised attorneyship, he should be ipso facto dismissed, and have liberty to repair to the inn of chancery from whence he came, or to any one of them, if he were of none before.* It was required that none of the companions or members of the inns of court should wear their studygowns into the city any further than Fleet-bridge, or Holborn-bridge, or as far as the Savoy, on pain of forfeiting 3s. 4d., and for the second offence, of expulsion. None of the said companions, when in commons, might wear Spanish cloaks, sword, and buckler, or rapier, or gowns and hats, or gowns girded with a dagger on the back, upon the like pain.†

The first work done on the accession of Elizabeth was the re-establishment of the Reformation upon the same footing where the death of Edward VI. had left it. Of the several statutes passed for that purpose, we shall only here notice the first of the reign, which conferred on Elizabeth the supremacy over the church as fully as it had been enjoyed by Henry VIII. and Edward VI. (Stat. 1, Eliz. c. 1). By a clause of this act, as noticed in the preceding chapter, the queen is empowered to name and authorize by letters patent, as often as she shall think meet, for such time as she shall please, such person or persons, being natural-born subjects, as she shall think fit, to execute all jurisdiction concerning spiritual matters within the realm, and to visit, reform, redress, order, correct, and amend all errors, heresies, schisms, abuses, offences, contempts, and enormities whatsoever, which by any ecclesiastical authority might be lawfully ordered or corrected. Such was the origin of the power of the formidable and hated Court of High Commission, one of the most dangerous weapons ever placed in the hands of a monarch, and which, though originally designed to crush the power of the Romish hierarchy, became in the hands of such ministers as Laud and Strafford a most sharp and powerful instrument at once of spiritual and tem-poral, of religious and political tyranny.

The first commission granted under this act was in 1559, when one was made for the province of Canterbury, and another for that of York. This commission, directed to persons both lay and clerical, was designed merely to assist in the establishment of the Reformation, and was confined to the clergy, of whom the commissioners were em

powered to suspend or deprive such as were unworthy, and to proceed against such as were obstinate--that is to say, such as stood out against the new ordinances about reform-by imprisonment, by church censure, or in any other legal way. In subsequent commissions the commissioners were empowered to visit and reform all errors, heresies, and schisms in the towns, and to the extent prescribed by the statute; and they were directed to make inquiry by juries and witnesses, and all other means and ways which they could devise; "which seems," observes Mr. Reeves,*" to authorise every inquisitorial power, the rack, the torture, and imprisonment." Besides their jurisdiction over spiritual matters, they had power to punish incest, adultery, fornication, with all misbehaviours and disorders in marriage. It will be thus seen that this court and the Star Chamber constituted two engines of arbitrary power, which, as a writer we have repeatedly quoted remarks, " perhaps never were surpassed by any contrivance of government to keep the people in continual awe of the sovereign authority."+

A new and reformed commission of the peace was settled in this reign.

We shall briefly notice the following statute of Elizabeth in illustration of the spirit of the age. It was enacted by stat. 5 Eliz. c. 16, that if any person use or practise any invocation or conjuration of evil and wicked spirits, or practise any witchcraft, enchantment, charm, or sorcery, whereby any one shall happen to be killed or destroyed, it shall be felony without clergy; and if any one be thereby wasted, consumed, or lamed, in body or member, or any of his goods destroyed or impaired, such offender is to be imprisoned for a year, and to stand in the pillory once a quarter during that time for six hours; and, for a second offence, shall be treated as a felon without benefit of clergy. And further to put an end to all practices of this kind, any person taking upon him, by witchcraft, enchantment, charm, or sorcery, to tell in what place any treasure of gold or silver, or stolen goods, might be found; or using the above practices with intent to provoke any one to unlawful love; or to hurt or destroy any one in body, member, or goods, is to suffer imprisonment and pillory; and, for the second offence, to be deemed a felon