CAMBRIDGE STUDIES IN ENGLISH LEGAL HISTORY Edited by D.E.C. YALE Fellow of Christ's College and Reader in English legal History at the University of Cambridge LAW AND POLITICS IN JACOBEAN ENGLAND THE TRACTS OF LORD CHANCELLOR ELLESMERE LOUIS A. KNAFLA Associate Professor of History University of Calgary CAMBRIDGE UNIVERSITY PRESS Cambridge London New York Melbourne · · CAMBRIDGE UNIVERSITY PRESS Cambridge, New York, Melbourne, Madrid, Cape Town, Singapore, Sao Paulo Cambridge University Press The Edinburgh Building, Cambridge CB2 8RU, UK Published in the United States of America by Cambridge University Press, New York www.cambridge.org Information on this title: www.cambridge.org/9780521211918 © Cambridge University Press 1977 This publication is in copyright. Subject to statutory exception and to the provisions of relevant collective licensing agreements, no reproduction of any part may take place without the written permission of Cambridge University Press. First published 1977 This digitally printed version 2008 A catalogue record for this publication is available from the British Library Library of Congress Cataloguing in Publication data Knafla, Louis A 1935- Law and politics in Jacobean England (Cambridge studies in English legal history) 'Ellesmere's tracts' (p. ): A coppie of a wrytten discourse by the Lord Chauncellor Else­ more concerning the royall prerogatiue. ca. 1604. - The speech of the Lord Chancellor of England, in the Eschequer Chamber, touching the post-nati. [etc.] Includes indexes I. Egerton, Thomas, Baron Ellesmere and Viscount Brackley, 1540?-1617. 2. Law -Great Britain - Addresses, essays, lectures. 3. Great Britain - History -James I, 1603-1625 -Sources. I. Egerton, Thomas, Baron Ellesmere and Viscount Brackley, 1540?- 1617. II. Title. III. Series KD621. E35 K55 340'.0942 76-4757 ISBN 978-0-521-21191-8 hardback ISBN 978-0-521-07264-9 paperback CONTENTS Preface Vll List of abbreviations Xll Notes on style XlX Table of statutes xx Table of cases xxiv INTRODUCTION PART ONE: LAW AND POLITICS 37 I The Making of a Legal Mind 39 II Kingship and the Problem of Sovereignty 65 III Lords and Commons 77 IV Reforming Privy Councillors: Crown Finances and the Administration of Government 93 The Problem of Law Reform 105 v VI The Clash of Jurisdictions: Central and Local Authorities, Secular and Ecclesiastical 123 VII Les Enfants Terribles: Coke, Ellesmere, and the Supremacy of the Chancellor's Decree 155 VIII The Provenance of Ellesmere's Tracts 182 PART TWO: ELLESMERE'S TRACTS Editorial notes IX 'A Coppie of a wrytten discourse by the Lord Chauncellor Elsemore concerning the Royall Prerogatiue' (c. 1 604) 197 v CONTENTS VI 'The Speech of the Lord Chancellor of England, in x the Eschequer Chamber, touching the Post-Nati' (1608) 202 XI 'Speciall obseruacions touching all the sessions of the last parlement anno 7 Regis and etc.' (161I) 254 XII 'Thinges to be Considered of before a parlement to be Called' (I6 I 5) 263 XIII 'Memorialles for ludicature. Pro Bono Publico' (c. 1609) 274 XIV 'Some Notes, and Remembrances, concerning Prohibitians, for Staying of suites in the Ecclesiastical! Courts, and in the Courts of the Admiraltie' ( 6I I) 282 l 'The Lord Chancellor Egertons Observacions xv vpon ye Lord Cookes Reportes' (1615) 297 XVI A breviate or direccion for the Kinges learned Councell collected by the Lord Chauncellor Ellesmere, mense septembris 1615 319 Anno Jacobi Regis' Index of Persons and Places 337 Index of Subjects and Terms 347 PREFACE The consolidation of the state under the aegis of monarchy was one of the salient features of the English, as well as the Continental ex­ perience in the sixteenth century. In England the cultivation ofroyal power presaged that of Parliament and the common law. Such growth was due largely to the respect for authority that was instilled in society by the Tudor monarchs and the governing class. Confidence in the Crown and its policies had become a trait of the English political personality in the sixteenth century; a trait that endured until the waning years of Queen Elizabeth and the coming of the Stuarts. There is little doubt, however, that by the turn of the century English society was witnessing a growth of tension in the relations between the members of the governing class, and between society and the State. Divisive social and economic problems, religious contro­ versy, corruption in the governing process, conflicts in the courts, and confusion in the law were factors which contributed to this growth of tension. The institutions of society and the State were approaching a crossroads where either their reform or collapse would become inevitable. Thus crucial questions of State that involved the prerogatives of the Crown, the powers of Parliament, the responsibi­ lities of the courts of law, and the rights and obligations of the citi­ zen remained unresolved, and became the subject of increasing public discussion. They also began to appear in the prose and poetry, and the political and religious writings of the age. Numerous memoranda, pamphlets, tracts, and treatises have pro­ vided us with sources for the study of the crisis in the governing class, and in the relations between society and the State in the early seventeenth century. There are, however, few sources whose authority has bli!en established that provide us with the copious thought of those individuals who actually managed the affairs of government. Much of the existing literature was composed by courtiers or writers who were patronised to present that which their Vil viii PREFACE sponsors wished to have believed. Administrators -apart from those with antiquarian interests - were habitually too occupied in carving out careers in the labyrinth of government to address themselves directly to the crucial questions. As with public officials in all ages, their time was too absorbed in dealing with the matters that came to hand. Those men who did reflect on the crucial questions of State would be wary of disclosing their frank reflections on the printed page and thereby incurring either the opprobrium of the king or the nefarious attacks of political factions. The published, and particularly the unpublished, writings of Chancellor Ellesmere are a case in point. They represent in their broadest significance a group of documents expressive of the growth of that tension within the governing class, and within the institutions of government and the law. Ellesmere was both an assiduous administrator and a minister of the first rank who was deeply concerned with the hotly contested questions of the times. He disclosed his opinions openly in his private writings, publishing only the least controversial. All of his tracts except the Post-Nati were composed in a semi-formal manner. His analysis was usually cogent and pithy; the style concise and abrupt. His perspective was generally moderate for a period of sharp political, constitutional, and legal conflict. At these times Ellesmere combined the perspicacity of the administrator with the meditation of the jurist. But there were occasions when his opinions were either radical or reactionary, and these instances reflected the influence of the conflicts of the age on one of the most seasoned statesmen of Jacobean England. If a thread exists which provides a recurring theme to Ellesmere's tracts, it can be found explicably in the law. The Chancellor was from the beginning a lawyer. And whether he was discussing the forms of action at common law, or Parliament and the prerogatives of the Crown, his ideas stemmed from a legal framework which domin­ ated more of the thought of the period than historians have generally acknowledged. The chancellor's close association with judges and legal writers such as Sir Edmund Anderson, John Popham, Sir Francis Bacon, Sir Edward Coke, Sir John Davies, and William Lambarde give his writings a specific importance in the literature of the law. His tracts, in reflecting a reading of Continental politics and juris­ prudence, are also important sources for European constitutional and legal thought. Their most immediate significance, however, stems PREFACE ix from Ellesmere's long experience in government and the courts oflaw, an experience which covered more than thirty-five years of public office. In this respect his tracts are part of the political, constitutional, administrative, and legal history of the era. Ellesmere's tracts have not been readily available since the mid­ seventeenth century. At his death in March of 1616-17, contempor­ aries such as Sir Francis Bacon commented upon 'the precious jewels' which the famed Lord Chancellor had left in the care of his chaplain and later successor, John Williams. The jewels referred to were Ellesmere's manuscript tracts. Contemporaries at Williams' death in 1650 had noted the disappearance of the tracts, and their loss was attributed to the dispersal of archives during the Civil Wars. An extensive search has resulted in the discovery of the original, or early copies of seven of his tracts on the royal prerogative, Parliament, government, and the law in manuscript collections at numerous libraries in North America and Great Britain. These tracts form the basis of this book. The work has been organised around the tracts to facilitate an examination of Ellesmere's ideas within the context of his life and career. After an introductory biographical sketch, Part One comprises an analysis of Ellesemere's thought on a series of political and legal problems in the reign of James. Part Two contains a critical edition of Ellesmere's tracts on those subjects in the order in which they were composed. Together, these two parts have been designed not only to make, with the appropriate background, an interpretation of the subject, but also to present as much of the record as possible. Ellesmere as a man has often been misunderstood, both by con­ temporaries and modern writers. Since the issues in which he became involved were public issues, contemporaries often forced him into the various categories of their thoughts. Thus he was accepted by 'royal­ ists' and 'puritans', both of whom found nourishment in his career. But, while he was a common lawyer, his greatest enemies were at times common lawyers. Dilemmas such as this will never be resolved definitively. They will, however, become understandable when writers cease to base their work on those 'select' sources which have bred a genre of historical literature for the period that is often as inaccurate as it is biased. Only by examining the wide range of notes, letters, memos, tracts, and treatises, within the context of an essentially large body of personal and public records, will writers come to a knowledge­ able understanding of the history of men, and their ideas and institu- x PREFACE tions, in the early seventeenth century. My purpose here is simply to resurrect some of the thought and work of Ellesemere as a lawyer, judge, and statesman, to raise some of the questions which contem­ poraries asked about law and politics, and to indicate some of the material from which I hope the answers will come. A number of research libraries throughout North America and the United Kingdom have made this study possible. The libraries and their staffs in North America whom I wish to thank for their assistance in making the sources available are as follows: the Univesity of California libraries at Berkeley and Los Angeles, the Folger Shakes­ peare Library, Washington, D.C., the Harvard Law and University libraries, Cambridge, Massachusetts, the Henry E. Huntington Library, San Marino, California, the Newberry Library of Chicago, the New York Public Library, the Stanford Law School Library, Stanford, California, the University ofToronto libraries, Ontario, and the Yale Law School and University libraries, New Haven, Connecti­ cut. In the United Kingdom the principal centres for sources used in London were the British Museum, the Duchy of Cornwall Record Office, the Historical Manuscripts Commission, the House of Lords Records Office, the Inner Temple Library, the Institute of Historical Research, the Lambeth Palace Library, Lincoln's Inn Library, the Univesity of London Library, the Public Records Office, and the Warburg Institute. Outside London, I had recourse to several of the college libraries at Oxford and Cambridge, particularly at Corpus Christi and Exeter colleges, Oxford, the Bodleian Library, Oxford, the Cambridge University Library, the John Rylands Library, Man­ chester, the National Library of Wales, Aberystwyth, Trinity College Library, Dublin, and the University College of North Wales, Bangor. Equally important were the county record offices where I had the pleasure of doing research: namely, those of Cheshire, Flintshire, Oxfordshire, Northamptonshire, Shropshire, and Warwickshire, and of the City of Chester. Finally, I want to give special acknowled­ gement to those havens for scholars where most of my writing was done - to the staffs of the libraries of the Institute of Historical Re­ search, the Henry E. Huntington Library, and the University of Calgary. Research and writing demand good criticism, and regardless of the results of this work I have been fortunate to receive the generous critical advice and suggestions of a number of scholars. For the