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Volume 4: Papers and Reviews – G. R. Elton, University of Cambridge . Publisher: Cambridge University Press; Online publication date: February.
Table of contents
- Cambridge University Press
- William Gerald McLoughlin papers
- William Gerald McLoughlin papers (MS.2009.003)
- From Colonial Legacies to Modernity
The executive officer of all these local bodies was still the sheriff. Though no longer the master of his shire, he remained responsible for finding juries, guarding prisoners and producing them for trial, hanging convicted felons, executing all royal writs sent down to the shire, and arranging elections of members of Parliament for the county. A serious study of the Tudor sheriff is overdue.
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These were the standing commissions for carrying out local government, but special commissioners abounded — to deal with a particular case, to control river navigation, to investigate complaints, to assess and collect taxes and so on. Writs of commission provided for aflexibleand inexhaustible transfer of authority from the centre to the localities and therefore for the extension of royal rule over all the realm.
Of course, their effectiveness depended on the willingness of the amateur and unpaid gentlemen so commissioned often, as at assizes and sessions, assisted by a paid and professional clerk to carry out the burdensome work demanded by the crown. Though lapses occurred and private favour could frustrate justice, there is no reason for doubting that the system generally worked very well. We should also note the multiplicity of local courts independent of any exercise of the royal will, at least in their existence and powers, though not necessarily in the work they did.
Cities and boroughs ruled themselves under mayors and aldermen who held regular courts for their 14 Government and Politics towns. Those feudal remnants, the courts of the leet and the manor, provided rule and justice as well as much ordinary administration, for instance over admission to manorial landholding at the level of the village. They settled the small disputes over boundaries, casual violence, or neighbourly hostility that, to the people at large, mattered more than the occasional greater crimes or litigious disputes that reached the king's courts.
In these village tribunals, leading local men — peasants often of small property acting as guardians of the rules the custom of the manor - conducted a measure of self-government for the common man that has been insufficiently recognized in social studies of the period.
Two things become apparent as one surveys the working of this sometimes well organized, sometimes haphazard structure of authorities for the government of England. Though the ultimate control vested in bodies such as the king and the Privy Council, whose function and ethos were political, the instruments charged with the application of political power were all in form courts of law — agencies for the settlement of disagreements and claims of right according to known rules.
Even the Privy Council, quite apart from its alter ego appearance in Star Chamber, often acted as a quasi court, as it responded to petitions put before it by individuals seeking justice. This was government not only under the law but by the law. Parties to a dispute often tried to avoid the costs and delays involved in using the courts by agreeing to abide by the decision of one or more persons of eminence whose oracular pronouncements carried no powers of enforcement but nevertheless quite frequently terminated a dispute.
Arbitration is another subject so far insufficiently studied. The great Royal Household, the offices of Chancery, the Exchequer, the secretaries of state, and the central courts between them employed men by the hundreds. Most of them had other personal interests and wished to set themselves up as landed gentlemen, investing the profits of office in the only form of wealth that gave social status.
Many of them went in and out of office in the wake of their superiors. Some of them, in fact, behaved like members of an American-style spoils system, while others more closely resembled the officials of nineteenth-century Britain, but 15 Politics and the Reformation all were nonetheless civil servants of the crown.
Their kind is also found in the localities: officers of the Exchequer customers and their colleagues in the ports, receivers of land revenue , representatives of the Court of Wards and clerks of assizes and sessions. In the greater departments definite career courses can be discerned as men rose through the ranks, whereas some offices provide interesting evidence of dynastic practices: men would get patents of survivorship or reversion, which enabled them to associate their sons in the office with themselves and thus to create a family preserve that could extend over several generations.
This civil service drew its income from two sources.
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The crown paid salaries, but these were never meant to be adequate and always lagged behind the steady inflation of prices. The major profits of office arose from the fees paid by people who used the offices. Fees were payable for the issue of all government documents solicited by the public writs, letters patent , for all enrolments, for every step taken in the paying of revenue. In a case at law, litigants owed regular payments to the officers of the courts as well as to their own attorneys and counsel. Fees were supposedly fixed and indeed were posted in offices, but throughout the period complaints multiplied that officers arbitrarily increased the official scales - as they had to do if they wished to keep up with inflation.
In James I's reign, many officers overcharged for their services, but efforts to control their greed achieved very little, while the value of crown office increased markedly. Though unauthorised increases should not have been tolerated, the fees system by itself constituted no sort of corruption; it reflected the principle that at least a part of the costs incurred by the king's government should be borne by those who specifically made use of it for their own purposes.
In addition, beyond any doubt, improper gifts and bribes were paid by people who sought to tip a decision in their favour or at least accelerate the operations of government, but it is understandably difficult to get firm evidence for this. Gifts were no doubt frequently of money, but what we can learn of them shows that presents in kind — a bolt of cloth, a cheese, a quantity of wine, or a piece of venison — very often served, changing manifest corruption into kindnesses bestowed on friends. Frequently promises of compensatory services sufficed, or even kind words about prayers offered or memories recalled.
While probably fairly rampant at the top, it seems to have played far less part within the civil service proper. Thanks to the survival of the correspondence of Sir Michael Hickes, secretary to Lord Burghley and later assistant to Robert Cecil, we know that the sale of wardships put money that should have gone to the crown into ministers' pockets, and we learn of the sizeable gifts they expected to receive for their favours, though many of these gifts really did represent a proof of personal attachment.
But the Cecils' opportunities were exceptionally great. The indications are that truly corrupt behaviour increased at the much looser court ofJames I, where several genuine scandals came to light. Unquestionably, privy councillors and men of influence thought it right to exploit the help they could give to applicants, and the general ethos of the day supposed that friendly services from one side justified expectations of friendly appreciation from the other. The line of propriety excluded excessive greed which was with reason charged against some of the favourites of James I , strikingly biased actions in return for bribes the charge that ruined Francis Bacon in , and blatant robbing of the royal till the misbehaviour that brought down Lord Treasurer Suffolk in Though the worst cases did occur after , it is plain that things improper by the standards of the time not just by ours happened under Elizabeth, too.
The most systematic suppliers of bribes were foreign envoys intent on buying both favour and information; they found English courtiers exceptionally open to such offers, which the English seem to have treated as an agreeable and amusing way of fleecing the foreigner. Moralising judgements about 'wholesale corruption' not only go well beyond the evidence but also obscure the realities of a system that incorporated the demands made by close personal acquaintance and relations, with palpable exchanges of favours, in the structure of civil government.
The society involved in this work was small, and its members knew one another too well to remove all temptation to exploit acquaintance.
Consequently, those less well acquainted needed to use more obviously corrupt methods to attract the attention of the men at the heart of government. Finally, it must be noted that successful careers in the civil service depended not only on favour but also very much on ability, though this encouraging aspect of the scene deteriorated as the monarch and Council distanced themselves from administrative affairs in the s. Like the secular offices, those of the church were inherited from the medieval past but had gone through important transformations that testified to the end of medieval kingship some time in the s.
In the church, these changes had been called for after the Henrician Reformation removed the foreign authority of the papacy. The two provinces of the English church, Canterbury and York, presided over by archbishops, consisted of bishoprics - eighteen in the south and four in the north - themselves divided into archdeaconries. The parishes, the lowest rung in this chain of command, were grouped in rural deaneries. The cathedrals, seats of the bishops, were independently managed by deans and chapters, whose members held 'prebends' and were termed 'prebendaries'.
The relative simplicity of this hierarchic order was slightly complicated by the existence of 'peculiars' - parishes and manors lying within one diocese but subject to the bishop or archbishop of another. The archbishop of Canterbury, as primate of England, ranked above his brother of York but had no governmental means of control over him; the traditional organisation of the English church provided for no single instrument of unification, since before the Reformation that function had been exercised by the pope and his court at Rome.
Each province possessed a representative assembly called a convocation, which consisted of an upper house of bishops and a lower house of proctors elected representatives of the clergy. By this time the convocations, though they still commonly met during parliamentary sessions, retained no significant powers.
If they passed laws for the church, these had no authority without parliamentary enactment. Even the taxes of the clergy, which it required their grant to make available to the crown, were always further embodied in an act of Parliament. In terms of government, the church, like the state, operated essentially as a system of law courts, presided over by bishops and archdeacons, or in the first case usually by deputies chancellors, vicars general, officials principal appointed for the purpose.
The courts were linked in a regular sequence of appeals from the lower to the higher, something the state did not possess. The law administered in the church courts stood in some confusion.
In the study of the canon law of 18 Government and Politics the universal church was prohibited at the universities as popish, and in lawyers trained in the civil Roman law were authorised to take the place of canonists as practitioners in the courts. Several attempts to provide a reformed code of law suitable to a Protestant church failed to gain authorisation, until the canons of , agreed by the convocations but never enacted by Parliament, came, as a case of necessity, to be treated as applicable.
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The church courts in the main dealt with four categories of cases. They enforced discipline on the clergy in matters of personal behaviour and uniformity of worship; they asserted the claims of the clergy on the laity in matters of money especially the tithe ; they adjudged the moral delicts of the laity, a competence that brought within their grasp not only such sins as adultery and fornication but also all matters arising out of marriages and defamation; and they presided over the probate of testaments so far as movables were concerned.
Land devised by will came under the common law after the Statute of Wills of Because they impinged in many, often intimate ways on the life of the people, the church courts were not popular. Though their powers had declined since pre-Reformation days, they remained very active, especially in matrimonial, testamentary, and moral cases.
The sanctions they could apply included excommunication rarely used and penances, very commonly commuted for money payments. These courts were necessary aids in the affairs of men, as well as somewhat oppressive instruments of social coercion; and clerical lawyers, civilians now rather than canonists, continued to do good business. The system was inadequate in two important respects. The supposedly ultimate cause for the attention of the church courts — the matter that most concerned the church as an instrument of salvation — was the assurance of spiritually sound means of grace and the prevention of heresy; and by the time that Elizabeth settled her Protestant church, these courts found that they had effectively relinquished jurisdiction over such matters.
The second weakness lay in the removal of papal authority, with the consequent loss of a unifying umbrella above the archbishops and a unifying court of appeal above their courts.
William Gerald McLoughlin papers
In both areas, the new pope — the supreme head, and after the supreme governor, of the Church of England — intervened. The experiment by which Henry VIII delegated the whole of his quasi-papal authority to a vicegerent in spirituals was never repeated after the fall of Thomas Cromwell in , but the statutory creation of an ad hoc court of ultimate appeal, called the High Court of Delegates and appointed each 19 Politics and the Reformation time such an appeal came forward, survived quite usefully into the nineteenth century.
For the rest, the crown predictably resorted to its well-tried power to delegate authority by commission. Royal commissions were created within the government of the church for specific occasions before the Reformation, but it was only in the reign of Elizabeth that their existence was regularised by the creation of occasional ecclesiastical commissions over dioceses and especially the setting up of Courts of High Commission for each archiepiscopal province.
Possessed of powers to fine and imprison, the high commissions composed of clergy and laity dealt with the more serious offences triable at spiritual law and acted as general supervisors of order and uniformity within the church. The problem of uniformity, however, proved insoluble.
Doctrine was plain and simple: since all Englishmen composed one church, all should in matters of the faith behave alike, accepting the doctrines defined in the Thirty-Nine Articles , worshipping according to the rites laid down in the Book of Common Prayer , and obedient to the queen, the bishops and the rest of the established order. Not all Englishmen were willing to do so. Those who refused to accept the restoration of a Protestant church in and adhered to Roman Catholicism proved no problem for the church courts: their refusal to attend the services of the church recusancy and their involvement in actual or potential treasons were matters for the secular courts.
William Gerald McLoughlin papers (MS.2009.003)
Deviance among Protestants, however, called for rectification by the bishops and their courts. These were the instruments available for tackling the many and various failures to conform — ranging from a refusal to use the Prayer Book or some part of it to demands for a presbyterian church government in place of an episcopalian one - which are nowadays summed up under the name 'Puritanism'. These courts also dealt with the more extreme departures from the form of religion laid down in law, namely the growth of separatist sects that rejected the principle of a national church and regarded themselves as the only true Christian congregations 'gathered churches'.
The term Puritanism should be reserved for those English Protestants who accepted the existence of a uniform, national church but who in one way or another regarded that set up by the settlement of as inadequately scriptural and therefore in need of further reform, whether that reform touched the wearing of clerical vestments, the role of prayer and sermon, the use of certain ceremonies reckoned to be 'rags of popery' for instance, the use of the ring in marriage, the sign of the cross 20 Government and Politics in baptism, or kneeling at communion , or the structure of church government.
From Colonial Legacies to Modernity
Few Puritans really looked for revolution, and the attempt made in the s to set up a presbyterian government was easily repressed by Archbishop Whitgift and the high commission. But deviation short of revolution, fed by the ardent Calvinism of a younger generation of clergy coming from the universities, remained ineradicable because it often represented an active spiritual zeal that many in authority welcomed and wished to see at work in the church.
Elizabeth herself always implacably opposed all visible signs of non-conformity while remaining indifferent to deviant opinion so long as it caused no public scandal. James, once persuaded that the Puritans did not seek to do away with bishops or undermine his own authority in the church, showed himself more receptive to the disputations ardour of those preachers. In his reign a strongly Protestant, very Calvinist state of mind sufficiently dominated the church, especially after the death of Archbishop Richard Bancroft in , to inhibit energetic action against minor manifestations of non-conformity within the church.
Separatists and sectarians were another matter: it was at this time that the English refugee congregations from which sprang the Pilgrim Fathers of settled in the Netherlands. Even if this monarch was supposed to govern under and by the established law, and even though he commonly did so, he resembled a truly absolute king very closely.
Jacobean theorists, from the king downward, regularly emphasised this quality in English kingship, though by absolute they meant not superiority to the law but only unlimited exercise of power within that law. Political realities, however, made the king rather weaker in practice than in theory.