Medieval Law and the Foundations of the State

(Elliott) #1

(it might be ‘the state of Christendom’ or of ‘Christ’s church’, as well as
of ‘any country, city or town’: pp. 34, 38, 40) is what ‘policy and
wisdom’ seek to establish. The ways in which England falls short of that
‘perfect state’ include: the enclosure of tillage for sheep-runs, depopula-
tion, and the decay of crafts; the idleness of workers, and the excess of
beggars, household servants, ignorant and unprofitable clergy and
‘abbey-lubbers’; the ill-education, uncivil customs, and self-indulgence
of the lords who should lead; and the poor and dirty buildings
which compare so badly with those of France (48 ff., 63–6, 82–7). The
remedies, Starkey makes Pole say, lie in statutes, which should for
instance: encourage men to procreate ‘after a civil order and politic
fashion’ by taxing bachelors, rewarding those who produce five children
or more, and relaxing the law of chastity imposed on the clergy (this ‘a
great let to the increase of Christian people’); ban the importation of
merchandise, which damages English industry, and the export of the
wool needed to make cloth; appoint officers to censor ‘vain trades’,
control the entry to crafts, and keep the towns clean; re-enforce the
statute of apparel and ordinances against drunken craftsmen; ensure
that only those ‘of elect wits’ become priests or lawyers; follow the
Flemish way of helping the impotent poor—but not sturdy beggars, ‘if
we will make a perfect state’; subsidize fine buildings; and lure gentle-
men from their country rudeness to the ‘civil life and humanity’ of the
towns (95 ff., 114 ff.).^29
The monasteries should be turned over to schools to educate the
nobility in government, a proposal Lupset greets as a ‘noble institution’,
which will advance Christian charity more than ‘our monks have done
in great process of time, in their solitary life which hath brought forth


... little profit to the public state’ (124–6). The clergy must be educated
in virtue as well as learning, and the universities reformed because the
confused order of studies in them means that ‘we have few great learned
men in our country’. In particular English law needs detailed reform, if
the ideal solution of its replacement by the ‘public discipline’ of civil
(i.e. Roman) law is rejected: succession to land by primogeniture and
entail is unfair to younger children, and the overlord’s right to the
wardship and marriage of minor heirs is no inducement to their proper
bringing-up; hungry lawyers spin out law-suits endlessly, and the
appealing of cases from the shire sessions to the London courts must be
curtailed; procedure in treason trials is unjust; and it would be better to
sentence thieves to hard labour for the community than to execute them
(126–31).


State and sovereignty 309

(^29) Cf. G. R. Elton, ‘Reform by Statute: Thomas Starkey’s Dialogueand Thomas Cromwell’s
Policy’, Proceedings of the British Academy, 54 (1968), 165–88: repr. in Elton’s Studies in
Tudor and Stuart Politics and Government, ii (Cambridge UP, 1974).

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