Our Legal Heritage Part 70

In the 1540s, Ambroise Pare from France, a barber-surgeon who was the son of a servant, was an army surgeon. Wounds at this time were treated with boiling oil and spurting vessels were closed by being seared with a red-hot iron. After he ran out of boiling oil, he observed that the soldiers without this treatment were healing better than those with this treatment. So he advocated ceasing the practice of cauterizing wounds.

He also began tying arteries with cord to stop their bleeding after amputation many other surgical techniques.

In Switzerland, Theophrastus Paracelsus, an astrologer and alchemist who later became a physician, did not believe that humor imbalance caused disease nor in treatment by bloodletting or purging. He believed that there were external causes of disease, e.g. toxic matter in food, contagion, defective physical or mental const.i.tution, cosmic influences differing with climate and country, or affliction sent Providence. He urged that wounds be kept clean rather than given poultices. In 1530, he pioneered the application of chemistry to physiology, pathology, and the treatment of disease by starting clinical diagnosis and treatment of disease by highly specific medicines, instead of by cure-alls. For instance, he used alkalis to treat disease, such as gout, indicated by certain substances in the urine, which also started urinalysis. He perceived that syphilis was caused by contagion and used mercury to cure it. He found curative powers also in opium, sulphur, iron, and a.r.s.enic.

Opium was made by drying and cooking the capsule of the poppy and was one of the few really effective early drugs. Paracelsus urged alchemists to try to prepare drugs from minerals for the relief of suffering. He claimed to acquire knowledge of cures through spiritual contacts to occult wisdom. He believed that a human being has an invisible body as well as a visible one and that it is closely attuned to imagination and the spiritual aspect of an individual. He noticed that one's att.i.tudes and emotions, such as anger, could affect one's health. He sometimes used suggestion and signs to help a patient form mental images, which translated into cures. He saw insanity as illness instead of possession by evil spirits.

Students were beginning to read for the bar by their own study of the newly available printed texts, treatises, and collections of statute law and of cases, instead of listening in court and talking with attorneys.

In 1523, Anthony Fitzherbert wrote "Boke of Husbandry", which set forth the most current methods of arable farming, giving details of tools and equipment, advice on capital outlay, methods of manuring, draining, ploughing, and rick-building. It was used by many constantly, and was often carried around in the pocket. This began a new way to disseminate new methods in agriculture. He also wrote a "Boke of Surveying", which relied on the perch rod and compa.s.s dial, and gave instruction on how to set down the results of a survey. In 1533, Gemma Frisius laid down the principles of topographical survey by triangulation. This improved the quality of surveys and produced accurate plots.

Geoffrey Chaucer's "Canterbury Tales" was a popular book. Through Chaucer, London English became a national standard and the notion of "correct p.r.o.nunciation" came into being.The discoveries and adventures of Amerigo Vespucci, a Portuguese explorer, were widely read. The North and South American continents were named for him.

London merchant guilds began to be identified mainly with hospitality and benevolence instead of being trading organizations. Twelve great companies dominated city politics and effectively chose the mayor and aldermen. They were, in order of precedence, Mercers, Grocers, Drapers, Fishmongers, Goldsmiths, Skinners, Tailors, Haberdashers, Ironmongers, Salters, Vintners, and the Clothworkers (composed from leading fullers and shearmen). The leading men of these guilds were generally aldermen and the guilds acted like munic.i.p.al committees of trade and manufactures. Then they superintended the trade and manufactures of London much like a government department. They were called Livery Companies and categorized their members.h.i.+ps in three grades: mere members.h.i.+p, livery members.h.i.+p, and placement on the governing body.

Livery members were distinguished by having the clothing of the brotherhood [its livery] and all privileges, and proprietary and munic.i.p.al rights, in the fullest degree. They generally had a right to a place at the Company banquets. They were invited by the governing body, as a matter of favor, to other entertainments. These liverymen were usually those who had bought members.h.i.+p and paid higher fees because they were richer. Their pensions were larger than those of mere members.

Those with mere members.h.i.+p were freemen who had only the simple freedom of the trade. The masters were usually householders. The journeymen, yeomanry, bachelors were simple freemen. Most of these companies had almshouses attached to their halls for the impoverished, disabled, and elderly members and their widows and children. For instance, many members of the Goldsmiths had been blinded by the fire and smoke of quicksilver and some members had been rendered crazed and infirm by working in that trade. The freedom and rights of citizens.h.i.+p of the city could only be obtained through members.h.i.+p in a livery company.

A lesser guild, the Leathersellers, absorbed the Glovers, Pursers, and Pouchmakers, some of whom became wage earners of the Leathersellers. But others of these craftsmen remained independent. The Whittawyers, who treated horse, deer, and sheep hides with alum and oil, had become wage earners for the Skinners.

Londoners went to the fields outside the city for recreation and games.

When farmers enclosed some suburban common fields in 1514, a crowd of young men marched out to them and, crying "shovels and spades", uprooted the hedges and filled in the ditches, thus reclaiming the land for their traditional games. The last major riot in London was aroused by a speaker on May Day in 1517 when a thousand disorderly young men, mostly apprentices, defied the curfew and looted shops and houses of aliens. A duke with two thousand soldiers put it down in mid-afternoon, after which the king executed fifteen of the rioters.

Many English migrated to London. There were ambitious young men and women hopeful of betterment through employment, apprentices.h.i.+p, higher wages, or successful marriage. On the other hand, there were subsistence migrants forced to leave their homes for food, work, or somewhere to live. There was much social mobility. For instance, between 1551 and 1553, of 881 persons admitted as freemen of London, 46 were the sons of gentlemen, 136 the sons of yeomen, and 289 the sons of farm workers.

London grew in population about twice as fast as the nation.

There are 26 wards of London as of 1550. This is the number for the next four centuries. Each ward has an alderman, a clerk, and a chief constable. There are also in each ward about 100 to 300 elected officials including p.r.i.c.kers, benchers, blackbootmen, fewellers [keepers of greyhounds], scribes, a halter-cutter, introducers, upperspeakers, under speakers, butlers, porters, inquestmen, scavengers, constables, watchmen, a beadle, jurymen, and common councilmen. The wardmote had inquest jurisdiction over immorality or bad behavior such as vagrancy, delinquency, illegitimacy, and disputes. This contributed greatly to social stability. In 1546, Henry ordered the London brothels closed. A small gaol was established in the Clink district of Southwark, giving the name "clink" to any small gaol. London ordinances required journeymen to work from 6 a.m. to 6 p.m. in winter, with a total of 90 minutes breaks for breakfast, dinner, and an afternoon drink, for 7d. In the summer they had to work for two hours longer for 8d. At its peak in the 1540s the court employed about 200 gentlemen, which was about half the peerage and one-fifth of the greater gentry. Henry issued a proclamation ordering n.o.blemen and gentlemen in London not employed by the court to return to their country homes to perform their service to the king.

Though there was much agreement on the faults of the church and the need to reform it, there were many disagreements on what philosophy of life should take the place of church teachings. The humanist Thomas More was a university trained intellectual. His book "Utopia", idealized an imaginary society living according to the principles of natural virtue.

In it, everything is owned in common and there is no need for money. All believe that there is a G.o.d who created the world and all good things and who guides men, and that the soul is immortal. But otherwise people choose their religious beliefs and their priests. From this perspective, the practices of other Christians, scholastic theologians, priests and monks, superst.i.tion, and ritual looked absurd. More encouraged a religious revival. Aristotle's position that virtuous men would rule best is successfully debated against Plato's position that intellectuals and philosophers would be the ideal rulers.

More believed the new humanistic studies should be brought to women as well as to men. He had tutors teach all his children Latin, Greek, logic, theology, philosophy, mathematics, and astronomy from an early age. His eldest daughter Margaret became a recognized scholar and translated his treatise on the lord's prayer. Other high cla.s.s women became highly educated. They voiced their opinions on religious matters.

In the 1530s, the d.u.c.h.ess of Suffolk spoke out for reform of the clergy and against images, relics, shrines, pilgrimages, and services in Latin.

She and the countess of Suss.e.x supported ministers and established seminaries for the spread of the reformed faith.

More pled for proportion between punishment and crime. He urged that theft no longer be punished by death because this only encouraged the thief to murder his victim to eliminate evidence of the theft. He opined that the purpose of punishment was to reform offenders. He advocated justice for the poor to the standard of justice received by the rich.

Erasmus, a former monk, visited the nation for a couple of years and argued that reason should prevail over religious belief. He wrote the book "In Praise of Folly", which noted man's elaborate pains in misdirected efforts to gain the wrong thing. For instance, it questioned what man would stick his head into the halter of marriage if he first weighed the inconveniences of that life? Or what woman would ever embrace her husband if she foresaw or considered the dangers of childbirth and the drudgery of motherhood? Childhood and senility are the most pleasant stages of life because ignorance is bliss. Old age forgetfulness washes away the cares of the mind. A foolish and doting old man is freed from the miseries that torment the wise and has the chief joy of life: garrulousness. The seekers of wisdom are the farthest from happiness; they forget the human station to which they were born and use their arts as engines with which to attack nature. The least unhappy are those who approximate the naiveness of the beasts and who never attempt what is beyond men. As an example, is anyone happier than a moron or fool? Their cheerful confusion of the mind frees the spirit from care and gives it many-sided delights. Fools are free from the fear of death and from the pangs of conscience. They are not filled with vain worries and hopes. They are not troubled by the thousand cares to which this life is subject. They experience no shame, fear, ambition, envy, or love. In a world where men are mostly at odds, all agree in their att.i.tude towards these innocents. They are sought after and sheltered; everyone permits them to do and say what they wish with impunity.

However, the usual opinion is that nothing is more lamentable than madness. The Christian religion has some kins.h.i.+p with folly, while it has none at all with wisdom. For proof of this, notice that children, old people, women, and fools take more delight than anyone else in holy and religious things, led no doubt solely by instinct. Next, notice that the founders of religion have prized simplicity and have been the bitterest foes of learning. Finally, no people act more foolishly than those who have been truly possessed with Christian piety. They give away whatever is theirs; they overlook injuries, allow themselves to be cheated, make no distinction between friends and enemies, shun pleasure, and feast on hunger, vigils, tears, labors, and scorn. They disdain life, and utterly prefer death. In short, they have become altogether indifferent to ordinary interests, as if their souls lived elsewhere and not in their bodies. What is this, if not to be mad? The life of Christians is run over with nonsense. They make elaborate funeral arrangements, with candles, mourners, singers, and pallbearers. They must think that their sight will be returned to them after they are dead, or that their corpses will fall ashamed at not being buried grandly. Christian theologians, in order to prove a point, will pluck four or five words out from different places, even falsifying the sense of them if necessary, and disregard the fact that their context was relevant or even contradicted their points. They do this with such brazen skill that our attorneys are often jealous of them.

Attorney Christopher St. German wrote the legal treatise "Doctor and Student", in which he deems the law of natural reason to be supreme and eternal. The law of G.o.d and the law of man, as enunciated by the church and royalty, merely supplement the law of natural reason and may change from time to time. Examples of the law of reason are: It is good to be loved. Evil is to be avoided. Do onto others as you would have them do unto you. Do nothing against the truth. Live peacefully with others.

Justice is to be done to every man. No one is to wrong another. A trespa.s.ser should be punished. From these is deduced that a man should love his benefactor. It is lawful to put away force with force. It is lawful for every man to defend himself and his goods against an unlawful power.

Like his father, Henry VIII dominated Parliament. He used this power to reform the church of England in the 1530's. The Protestant reformation cause, started in Germany in 1517 by Martin Luther posting his thesis, had become identified with Henry's efforts to have his marriage of eighteen years to the virtuous Catherine annulled so he could marry a much younger woman: Anne and have a son. The end of his six successive wives was: annulled, beheaded, died; annulled, beheaded, survived. Henry VIII was egotistical, arrogant, and self- indulgent. This nature allowed him to declare himself the head of the church of England instead of the pope.

Henry used and then discarded officers of state. One such was Thomas Wolsey, the son of a town grazier [one who pastures cattle and rears them for market] and butcher, who was another supporter of cla.s.sical learning. He rose through the church, the gateway to advancement in a diversity of occupations of clergy such as secretary, librarian, teacher, attorney, doctor, author, civil servant, diplomat, and statesman. He was a court priest when he aligned himself with Henry, both of whom wanted power and glory and dressed extravagantly. But he was brilliant and more of a strategist than Henry. Wolsey called himself a reformer and started a purge of criminals, vagrants and prost.i.tutes within London, bringing many before the council. But most of his reforming plans were not brought to fruition, but ended after his campaign resulted in more power for himself. Wolsey rose to be Chancellor to the King and also Archbishop of York. As the representative of the pope for England, he exercised almost full papal authority there. But he controlled the church in England in the King's interest. He was second only to the King and he strengthened the crown by consolidating power and income that had been scattered among n.o.bles and officeholders. He also came to control the many courts. Wolsey centralized the church in England and dissolved the smaller monasteries, the proceeds of which he used to build colleges at Oxford and his home town. He was an impartial and respected justice. When Wolsey was not able to convince the pope to give Henry an annulment of his marriage, Henry dismissed him and took his property, shortly after which Wolsey died on his way to be imprisoned in the Tower to be tried for treason.

Thomas. Cromwell, a top royal official, was a self-taught attorney, arbitrator, merchant, and accountant. He was the son of a clothworker/blacksmith/brewer/innkeeper, Like Wolsey, he was a natural orator. He drafted and had pa.s.sed legislation that created a new church of England. He had all men swear an oath to the terms of the succession statute. Thomas More, the successor Chancelllor to Wolsey, was known for his honesty and was a highly respected man. More did not yield to Henry's bullying for support for his statute declaring the succession to be vested in the children of his second marriage, and his statute declaring himself the supreme head of the church of England, instead of the pope. He did not expressly deny this supremacy statute, so was not guilty of treason under its terms. But silence did not save him. He was attainted for treason on specious grounds and beheaded. His conviction rested on the testimony of one perjured witness, who misquoted More as saying that Parliament did not have the power to require a.s.sent to the supremacy statute because it was repugnant to the common law of Christendom.

Henry ruled with an iron fist. In 1536, he issued a proclamation that "any rioters or those in an unlawful a.s.sembly shall return to their houses" or "we will proceed against them with all our royal force and destroy them and their wives and children." In 1538, he proclaimed that anyone hurting or maiming an officer while trying to make an arrest "shall lose and forfeit all their lands, goods, and chattel" and shall suffer perpetual imprisonment. Moreover, if one murdered such an officer, he would suffer death without privilege of sanctuary or of clergy. In 1540, he proclaimed that there would be no shooting by handgun except on a shooting range. Henry had Parliament pa.s.s bills of attainder against many people. For the first time, harsh treatment of prisoners in the Tower, such as placement in dungeons with little food, no bed, and no change of clothes, became almost a matter of policy.

Through his host of spies, Cromwell heard what men said to their closest friends. Words idly spoken were distorted into treasonable utterances.

Fear spread through the people. Silence was a person's only possibility of safety.

Cromwell developed a technique for the management of the House of Commons which lasted for generations. He promulgated books in defense of royal spiritual authority, which argued that canon law was not divine but merely human and that clerical authority had no foundation in the Bible. A reformed English Bible was put in all parish churches.

Reformers were licensed to preach. Cromwell ordered sermons to be said which proclaimed the supremacy of the King. He inst.i.tuted registers to record baptisms, marriages, and burials in every county, for the purpose of reducing disputes over descent and inheritance. He dissolved all the lesser monasteries. When Cromwell procured a foreign wife for Henry whom Henry found unattractive, he was attainted and executed.

Henry now reconstructed his council to have a fixed members.h.i.+p, an official hierarchy based on rank, a secretariat, an official record, and formal powers to summon individuals before it by legal process. Because it met in the King's Privy Lodgings, it was called the "Privy Council".

It met daily instead of just during the terms of the Westminster courts from late autumn to early summer. It communicated with the king through intermediaries, of whom the most important was the King's Secretary.

Because it was a court council, part of it traveled with the king, while the other part conducted London business. When Henry went to war in France, part of the council went with him, and part of it stayed to attend the Queen Regent.