Henry Lawes

“ The lesser courts, with their old clumsy procedure, were at a hopeless disadvantage before the professional judges, who could use all the new legal methods. If a man suffered under these there was none to plead his cause, for in all the country there was not a single trained lawyer save those in the king's service. However we who look back from the safe distance of seven hundred years may see with clearer vision the great work which was done by Henry's Assize, in its own day it was far from being a welcome institution to our unhappy forefathers. ”

“ Henry reddened. “Strictly between the two of us, I don’t like the idea of Sunday business, anyway. But unfortunately, that’s the big day.... But, if you had to work indoors, eight hours a day, six days a week, maybe you’d be satisfied to spend Sundays picking sweet violets out by the barge canal, but what would you do when it rained?”
“Of course,” admitted the Judge, “it’s a 105 poor policy to have a law on the books, and ignore it. Both of us must admit that. A good law ought to be kept; a bad one ought to be repealed; but any law that is valid oughtn’t to be winked at. ”

“ And the successful practise of the law lies almost as much in evading the law as in complying with it—I suppose we should say that softly, too. In support of the last proposition, let me say that we are dealing with P. Henry, Junior, of Virginia, arch-rebel, and a defier of law and precedent. Had he reverenced law as law, his name would have been writ in water. The reputation of the man hinges on the fact that he defied authority.
The first great speech of Patrick Henry was a defiance of the Common Law of England when it got in the way of the rights of the people. ”

“ In four ways especially Henry's assize is a landmark in English history. It was the first attempt made by an English king to put forth a code of laws, as distinct from a mere reassertion of traditional ‘custom.’ It was the first attempt to break down the feudal system of government by bringing its countless independent jurisdictions and irresponsible tribunals into subjection to one uniform judicial administration. ”

“ The alternative is to consider independent communities as not related to each other by any law, but this condition of lawlessness is exactly the vacuum which the Nature of the jurisconsults abhorred. There is certainly apparent reason for thinking that if the mind of a Roman lawyer rested on any sphere from which civil law was banished, it would instantly fill the void with the ordinances of Nature. ”

“ He does not speak in a tone of authority; in England there is a confused multitude of laws which it were hopeless to define; but he will try to set down some matters of daily importance. He writes as a lawyer keenly interested in legal problems, and not ashamed to confess that he does not know the answer to all the questions that he raises. The book looks more like the work of one of the clerks of the royal court than like that of the chief justiciar, who, during the last years of Henry's reign, can have had little time for writing a legal treatise. ”

“ The first material news he heard in London, was that the king had granted indulgence to the dissenters, and had empowered certain gentlemen to give out licenses: the price of one for a single person was ten pounds; but if several joined, sixteen pounds; and eight persons might join in taking out one license.
Not many dissenters took out these licenses; but the disposition of the court being sufficiently understood, many began to meet publicly. About the end of February, Mr. Henry wrote to his father, that Mr. ”

“ It is doubtful if the great ancient codes contained much new law, for it would have been a rash act for a lawgiver to presume to innovate upon the immemorial customs of the race. But with the growth of a more highly developed society and the advance of civilization new sources of law made their appearance. Legislation, says Sir Henry Maine, is one of the three agencies by which law is brought into harmony with society, the other two being legal fiction and equity. ”

“ After a long and painful illness he died at his home at Duddingston, near Edinburgh, on 12 March 1904. Law was married on 15 April 1880 to Wilhelmina Frederica, daughter of Captain Allen of Errol, Perthshire, by his wife Lady Henrietta Dundas, and left one son, Duncan, and five daughters.
Law's main historical interests lay in the sixteenth century, and specially in its religious and ecclesiastical aspects. In his treatment of contending religious forces he shows remarkable freedom from partisanship, and everything that he wrote was based on all the accessible sources relative to his subject. ”

“ Our conduct in matters outside the domain of positive law, in a social club, for instance, is governed by it. In desperate emergencies, as at Cape Sabine, we unflinchingly exact the forfeiture of life itself from the man who will not conform to it. By its light, as by a beacon, our courts steer in construing constitutions and statutes, and in modifying the traditions of the common law to meet changed conditions. ”

“ English case-law is sometimes spoken of as unwritten, and there are some English theorists who assure us that if a code of English jurisprudence were prepared we should be turning unwritten law into written—conversion, as they insist, if not of doubtful policy, at all events of the greatest seriousness. Now, it is quite true that there was once a period at which the English common law might reasonably have been termed unwritten. ”

“ The doctrines and institutions which may be attributed to it are the material of some of the most violent controversies debated in our time, as will be seen when it is stated that the theory of Natural Law is the source of almost all the special ideas as to law, politics, and society which France during the last hundred years has been the instrument of diffusing over the western world. The part played by jurists in French history, and the sphere of jural conceptions in French thought, have always been remarkably large. ”

“ While his fellow-tyrants abroad were everywhere overthrowing free institutions, Henry was in all things showing them the deepest outward respect. Throughout his reign he took care to do nothing except in outward and regular legal form, nothing for which he could not shelter himself under the sanction either of precedent or of written Law. In itself, this perversion of Law, this clothing of wrong with the garb of right, is really worse—at all events it is more corrupting—than deeds of open violence against which men are tempted openly to revolt. ”

“ The supreme authority in England was the law; and the king no more possessed, or claimed a power of controlling the judgment of the bishops or their ministers, than he could interfere with the jurisdiction of the judges of the bench. All persons in authority, whether in church or state, held their offices thenceforth by similar tenure; but the rule of the proceedings in each remained alike the law of the land, which Henry had no more thought of superseding by his own will than the most constitutional of modern princes. ”

“ Henry made a bill be drawn to moderate, not remedy altogether, this abuse; he was contented, that every man should have the liberty of disposing in this manner of the half of his land; and he told the parliament in plain terms, “if they would not take a reasonable thing when it was offered, he would search out the extremity of the law ”

“ Few national societies have had their jurisprudence menaced by this peculiar danger of precocious maturity and untimely disintegration. It is certainly doubtful whether the Romans were ever seriously threatened by it, but at any rate they had adequate protection in their theory of Natural Law. For the Natural Law of the jurisconsults was distinctly conceived by them as a system which ought gradually to absorb civil laws, without superseding them so long as they remained unrepealed. ”

“ Here they appeal to one of the communes notitiæ—to a settled and acknowledged maxim in the law of nature, that if men's commands and God's interfere God's commands must take place. It is a rule in the common law of England that if any statute be made contrary to the law of God it is null and void. ”

“ Having settled these matters, which he did on his own authority, Henry summoned a Parliament to grant him supplies, and to increase those supplies by bill of attainder against all those who had been engaged in the late conspiracy. To prevent similar risings, he demanded that the law should be rigorously put in force against the practice of maintenance. This maintenance was the association of numbers of persons under a particular chief or nobleman, whose badge or livery they wore, and to whom they were bound by oath to support him in his private quarrels against other noblemen. ”

“ Law later emigrated to Canada and married there a lady of the Silverthorn family and lived there till he went to Nauvoo. Wilson Law never lived in Canada. William Law was the youngest of five brothers, and he is the only surviving one."
I have tried hard to verify Judge Law's opinion about his father by asking lots of people in Shullsburgh and on the train. I heard nothing but "Oh, Dr. Law is a fine old gentleman; the most popular man we have round here." Mr. Sheaby, who keeps the hotel, in which I spent two days, said: "Dr. Law is a good, fine old man, honest and very kind to the people. ”

“ But Henry says that all his objections cannot last much longer because he is nearly 90 years of age after all, and Nature must take its course sooner or later.
So Dorothy says what a fool I am to waste my time on Henry, when I might manage to meet Henry's father and the whole thing would be over in a few months and I would practically own the state of Pennsylvania. But I do not think I ought to take Dorothy's advise because Henry's father is watched like a hawk and Henry himself is his Power of Attorney, so no good could really come of it after all. ”

“ Thomas rested his case not on the customary law of the land, but on the code of Rome; to English tradition he opposed the Italian lawyers. Henry, on his part, declared that the Constitutions were drawn up by the common witness of bishops, earls, barons, and wise men; that they were, in fact, part of a system actually in operation, and which had been administered by Thomas himself when he was chancellor. It was certainly a startling novelty to have the customs of the realm drawn up in a written code to which men were required to swear obedience ”

“ We must not, however, detain the reader any longer in a dull court of law, for we find ourselves served, in imagination, with a writ of Habeas Corpus, commanding us to bring him up for the purpose of inquiring by what right we hold him in the disagreeable duress of dry legal detail.
In returning to Henry, we find him offering to act as mediator between Charles of France and the Duke of Bretagne, when, like every meddler in the disputes of others, he is unable to emerge from the position in which he has placed himself without that nasal tweak which is the due reward of impertinence. ”

“ The governing bodies of the richer towns were winning the right to exercise absolute jurisdiction over the burghers within their own walls. The Forest courts were held by royal officers, who were themselves exempt from all jurisdiction save that of the king. And under one plea or another all men in the State were liable for certain causes to be brought under the jurisdiction of the newly established Church courts. This system of conflicting laws was an endless source of perplexity. ”

“ It would soon be seen that the separation of the Law of Persons from that of Things has no meaning in the infancy of law, that the rules belonging to the two departments are inextricably mingled together, and that the distinctions of the later jurists are appropriate only to the later jurisprudence. From what has been said in the earlier portions of this treatise, it will be gathered that there is a strong à priori improbability of our obtaining any clue to the early history of property, if we confine our notice to the proprietary rights of individuals. ”

“ Of the much-debated Divorce, Henry said: “The law of every man’s conscience be but a private Court, yet it is the highest and supreme Court for judgment or justice.” As the most unjust wars have often produced the greatest heroisms, so the vilest causes have often produced the profoundest utterances. ”

“ The people at large groaned under the heavy burden of fines and penalties and charges for the maintenance of an unaccustomed justice. When in the visitations of 1168 the judges had to collect, besides the ordinary dues, an "aid" for the marriage of the king's eldest daughter, the unhappy tax-payers, recognizing in their misery no distinctions, attributed all their sufferings to the new reform, and saw in their king not a ruler who desired righteous judgment, but one who only thirsted after gain. ”

“ Whoever reflects upon this subject, however, will be likely to reserve his opinion till he has compared land as a subject of absolute property with other things. Here George and his opponents start from the same point. They, not less strenuously than he, insist that property in material things is sacred because founded upon a natural right which the positive laws may recognize, protect, and secure, but which they do not create, and cannot rightfully impair or take away. ”

“ The king became the fountain of law in a way till then unknown. The later jealousy of the royal power which grew up with the advance of industrial activity, with the growth of public opinion and of its means of expressing itself, with the development of national experience and national self-dependence, had no place in Henry's days, and had indeed no reason for existence. The strife for the abolition of privileges which in the nineteenth century was waged by the people was in the twelfth century waged by the Crown. ”