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Published online by Cambridge University Press: 16 September 2015
1. Fortescue, De Laudibus Legum Angliae, c. 18.Google Scholar
2. It was only rarely that expression was given to the view that there existed rights which neither king nor parliament could change; and such expressions are usually to be found in the arguments of the extreme prerogative lawyers: e.g., in R v. Hampden (1637), 3 St. Tr. 825, at col. 1235 (the ship money case), and Godden v. Hales (1685), 11 St. Tr. 1165.
3. Bonham's Case (1609), 8 Co. Rep. 107, at p. 118; the case is also reported in 2 Brownlow 265.
4. The authorities are Y.B., 8 Edw. III, Pasch., pl. 26; Fitz. Abr., Cessavit, pl. 42, Annuity, pl. 41.
5. E.g., Y.B., 18 Edw. III (Rolls Series), 130. Y.B., 24 Edw. III, Trin., pl. 46; counsel stated that “Toutes les statutes que restreignent Comen Ley sont stricti juris.”
6. Y.B., 33 Hen. VI, Pasch., pl. 8: “C'est un Acte de Parlement, et nous voillomes estre bien avise devant que nous anullons ascun Acte fait en la Parlement: et peraventure le matter doit attendre jusques a le prochein Parlement adonquez nous poimes estre certifle par eux de la certainte de la matter: mez non obstante nous voillomes estre avises que sera fait.”
7. Of course then, as now, both bench and bar were ready to grumble from time to time at particular statutory provisions; e.g., Y.B., 24 Edw. III, Mich., pl. 105: “Grene granta en ceo pie que 1'estatut fuit fait plus en damage du people, que amendment de Commen Ley.”
8. It is this fact which makes trials like those of Fisher and More of such great constitutional importance.
9. Yet late in the seventeenth century there were great judges who still regarded it as possible to hold that an act of parliament was void; see, e.g., Hutchins v. Player (1663), O. Bridg. 272, at p. 300, per Sir Orlando Bridge-man, C.J., and R. v. Earl of Banbury (1695), Skin. 517, at p. 527, per Holt, C.J.
10. See Margaret Roper to Alice Alington [Aug., 1534], printed in Rogers, Correspondence of Sir Thomas More (Princeton, 1947), 514, at p. 524. See, further, the argument developed by St. Thomas More at his trial, and considered later.
11. Y.B., 10 Hen. VII, Hil., pl. 17: “Rex est persona mixta car est persona unita cum sacerdotibus Saint Eglise.”
12. Y.B., 21 Hen. VII, Hil., pl. 1. In arguing that the king could be made a parson by act of parliament, Vavisour said that various lords had parsonages, “issint n'est impertinent que le Roy sera dit parson: et especial per le Act del Parlement. Car en temps le Roy R. 2 if fuit or tard, et pur ceo que il fuit certifie au Roy et son Conseil, que certein Prestres in Anglia avoient effendus in divers points ils furent per Acte de Parlement deprives de lour benefices.” To this argument Frowicke, C.J., observed that if lords had parsonages, then it was by consent of the pope, and that “Un acte temporal sans le assent del Supreme teste ne poit faire le Roy parson.”
13. 24 Hen. VIII, c. 12 (printed in Statutes of the Realm, iii, 427; Pocock, Records of the Reformation. The Divorce, 1527-1533 (Oxford, 1870), ii, 460; Gee and Hardy, Documents illustrative of English Church History (London, 1896), 187).
14. The conception of indefeasible royal prerogatives appeared as early as the reign of Richard II; see Rot. Pari, iii, 224, 233, 234; cf. Figgis, Divine Right of Kings, 27-29.
15. It is not easy for the layman to follow this argument as it appears in the early accounts of More's trial which have come down to us. In view of the constitutional importance of the trial, it is much to be regretted that none of the accounts was written by a lawyer, with the exception of that of Roper; and Roper, who wrote nearly twenty years afterwards, was not present at the trial of his father-in-law and was dependent upon others for his account; however, his principal informants were Anthony St. Leger, Richard Heywood and John Webbe, the first two of whom were barristers. See Roper, The Lyfe of Sir Thomas Moore, knighte (E.E.T.S., 1935), 96, 97).
16. 26 Hen. VIII, c. 1.
17. 26 Hen. VIII, c. 13.
18. In civil litigation, a plea in abatement was a defence whereby a defendant showed cause why he should not be sued or, if sued, why he should not be sued in the form adopted by the plaintiff, and praying that the action might abate (i.e., cease). In criminal proceedings a plea in abatement was the usual means by which objection was taken to the indictment, on the ground that it did not comply with the requirements of the law. Although a prisoner could make such a plea as soon as the indictment was put to him on arraignment, he was not bound to do so, and could reserve such a plea until the close of the trial; the more usual practice was to reserve the plea until after verdict (but before judgment), since matters might arise during the trial itself which would render the indictment liable to be quashed. See Parmiter, “The Indictment of St. Thomas More”, in Downside Review, 75 (1957), 149,CrossRefGoogle Scholar at pp. 159, 164, 166; Parmiter, “Tudor Indictments”, in Recusant History, 6 (1961-2), 141, at p. 147.Google Scholar Roper, who was a barrister, noted that, “Wherefore [More] pleaded thereto Not Guilty; and so reserved unto himself advantage to be taken of the body of the matter, after verdict, to avoid that indictment.” (Roper, op. cit., 86).
19. Roper, op. cit., 92. Cf. Harpsfleld, The Life and Death of Sir Thomas More, Lord high chancellor of England (E.E.T.S., 1932), 193. Almost all the early accounts of the trial state that the lord chancellor pronounced sentence immediately after the verdict. That cannot be right. In cases of treason and felony, if the prisoner were found guilty, the court was bound to ask him what he had to say why judgment should not be pronounced against him. This demand, known as the allocutus, is obligatory, and it enables the prisoner to move in arrest of judgment.
20. See note 18, supra. In view of the opinion often expressed by writers on St. Thomas More (and which still seems to be prevalent) that More made this speech, by way of self-justification, after the conclusion of the trial, it is necessary to emphasize that it was made during the trial, albeit at a late stage; judgment had not then been pronounced. The opinion that the speech was made after the conclusion of the trial deprives it of all point.
21. 26 Hen VIII, c. 1.
22. In one sense it may be said that More's argument was directed against the Treason Act of 1534 (26 Hen. VIII, c. 13) as well as against the Act of Supremacy, since the Treason Act, which was recited in the indictment, was enacted, in part, for the more effectual enforcement of the Act of Supremacy. But More's argument was, in terms, directed against the Act of Supremacy alone.
23. Cf. Roper, op. cit., 92, 93; Harpsfield, op. cit., 193, 194.
24. Roper, op. cit., 93.
25. See the account of the trial in the small pamphlet (probably printed in Paris) entitled Novitates qvaedam ex diuersorum praestantium epistolis desumptae (cited as N), and in MS Guildhall 1231, ff. 4-15 (cited as G). The differences between N and G are, in general, slight but in some places G appears to preserve a better text, which suggests that they were both derived from a third document and not one from the other. In the relevant passage G omits a phrase contained in JV; the words of N are: “quoniam ex professo iurastis nunquam quicquam facere contra ecclesiam”; G omits the words in italics. It may well be, however, that G preserves the correct text, and in that case More's argument would be that the statute was unlawful because it forced a man to take an oath against the church which was one and indivisible. Students of Tudor history are indebted to Mr. J. D. M. Derrett for drawing attention to N and G, which have been strangely neglected; see Derrett, “Neglected Versions of the Contemporary Account of the Trial of Sir Thomas More”, in B.I.H.R., xxxiii (1960), 202-223, and “The Trial of Sir Thomas More”, in E.H.R., lxxix (1964), 449-477.
26. Professor Plucknett regards the legislative jurisdiction of church and state as being independent and mutually exclusive; see Plucknett, Concise History of the Common Law (5th ed., London, 1956), 337:Google Scholar “A practical limitation upon the legislature was of course the competing jurisdiction of the Church, and it was universally admitted during the middle ages that an act of parliament could not operate within the sphere of the Church — a restriction in every way analogous to the inability of parliament to legislate for a foreign country, for Church and State were two independent sovereign powers, each supreme within its own sphere, in just the same way as two nations exercise sovereignty within their respective frontiers.” This is, perhaps, too simplified a view.
27. A custom is a particular rule which has existed either actually or presumptively from time immemorial, and has obtained the force of law in a particular locality (Tartistry Case (1608), Dav. Ir. 28, at pp. 31, 32; Termes de la Ley, s.v. Custom), although it may be contrary to or inconsistent with the general common law of the realm (Lockwood v. Wood (1844), 6 Q.B. 50, Ex. Ch., at p. 64, per Tindal, C.J.). As regards the matter to which it relates, a custom takes the place of the general common law and becomes, in respect of that matter, the local common law within the particular locality where it obtains (Lockwood v. Wood, ut sup.).
28. For example, there were customs preventing those who were not freemen of the city from keeping shops or exercising any trade; see, e.g., City of London Case (1610), 8 Co. Rep. 121b, at p. 126b.
29. In general, a custom is not extinguished by non-user; the effect of non-user, against persons seeking to rely upon an alleged custom, is to raise a strong presumption that the custom alleged never existed. And a custom is not destroyed, as such, by being embodied in a bye-law of an ancient corporation.
30. See, e.g., 1 Ric. II, c. 11; 1 Edw. III, st. 2, c. 9; 14 Edw. III, st. 1, c. 1; 1 Hen. IV, c. 1. Magna Carta, § 13: “Et civitas Londoniarum habeat omnes antiquas Iibertates et liberas consuetudines suas, tam per terras, quam per aquas”. The city's customs had also been confirmed by the important charter granted by Edward, 111, dated 3 June, 1341; but the charter was merely declaratory of the city's existing rights: City of London Case (1610), 8 Co. Rep. 121b; Hutchins v. Player (1663), O. Bridg. 272.
31. Pulling, Cf., Laws, Customs, Usages and Regulations of the City and Port of London (2nd ed., London, 1849), 3.Google Scholar
32. See, e.g., London Corporation v. Bernardiston (1661), 1 Lev. 14, at p. 15: “The customs of London are of such force that they shall stand against negative acts of parliament.” Cf. Co. Litt. 115a. In Appleton v. Stoughton (1638), Cro. Car. 516, the court inclined to the opinion that the custom of London was good as against the statute 5 Eliz. I, c. 4, s. 31, which forbade persons to exercise any art, etc., without having been apprenticed to it. See also R. v. Bagshaw (1634), Cro. Car. 347.
33. Hutchins v. Player (1663), O. Bridg. 272, at p. 319.
34. See Appleton v. Stoughton (1638), Cr. Car. 516, cited in note 32, supra.
35. For an authoritative review of the legislative power of the city of London, see the judgment of Sir Orlando Bridgeman, C.J., in Hutchins v.Player (1663), O. Bridg. 272; 124 E.R. 585. Cf. Pulling, op. cit. 43 et seq.
36. See Hutchins v. Player (1663), O. Bridg. 272, at p. 277: an Act of Common Council “is lex loci, and every man at his peril must take notice of it…, London is a county palatine; and we take notice of their laws and customs”.
37. Of course, parliament had power, by express enactment, to annul city legislation as was done, for example, by the statute 3 Hen. VIII, c. 9.
38. Henry VIII, during his matrimonial dispute with the pope, had sought to rely on the “custom of England”, without much success; see Parmiter, The King's Great Matter (London, 1967), 141, 142. It need hardly be said that the Act of Supremacy, which extinguished papal jurisdiction in England, went much further than the restriction of papal rights.
39. E.g., the Council of Ephesus in 431 (Denzinger, Enchiridion Symbolorum, no. 112); Council of Chalcedon in 451 (Denzinger, op. cit., no. 149); Council of Constance in 1415 (Wycliffe's errors; Denzinger, op. cit., no. 617), and in 1418 (Hus's errors; Denzinger, op. cit., nos. 633, 636, 637, 639); Council of Florence in 1439 (Denzinger, op. cit., no. 694); Fifth Lateran Council in 1520 (Luther's errors; Denzinger, op. cit., no. 765). Cf. the bull Unam Sanctam of Boniface VIII, 18 Nov., 1302, and the pronouncements of various popes (Denzinger, op. cit., nos. 87, 100, 110, 163, 171, 230, 350, 570).
40. It is, of course, unthinkable that a general council would, in practice, assent to any legislation similar to the Act of Supremacy, since the position of the pope as head of the universal church is at the heart of, and fundamental to, the body of faith proclaimed by the Catholic Church. This might, however, not have been so obvious in More's day as it is in our own.
41. Cf. Derrett, “Thomas More and the Legislation of the Corporation of London”, in Guildhall Miscellany, ii (1963), 175-180. Mr. Derrett's emphasis differs considerably from that of the foregoing.
42. Roper, op. cit., 95.
43. So long as the puzzle remains, it is impossible to understand More's argument.