¹ Public and private acts together. If one counts public acts only (accepting the distinction in Statutes at Large) the decline under Elizabeth and the early Stuarts is still more pronounced. ‘Averages’ then are: Henry VII, 5; Henry VIII, 11; Edward, 19; Mary, 16; Elizabeth, 6; James I, 6; Charles I, 3; Charles II, 9; James II, 7; William, 26. For the early years of the period, however, the distinction is probably invalid. At no time is it a clear guide to the subject-matter of acts.

² The ‘average’ for the first half of Elizabeth's reign is the same as for the second.

³ In the five-year periods 1934–8 and 1949–53 the annual average of general acts of parliament was practically the same, respectively sixty-one and sixty-five. But we know that there was far more government in the later period than in the earlier.

⁴ See Appendix, p. 130, below, for yearly figures counted from P[ublic] R[ecord] O[ffice] Lists and Indexes, XXVII. I have to thank members of the staff of the Record Office for help without which it would have been impossible to do this work expeditiously.

⁵ See Appendix, p. 130 below. There are MS. indexes at the P.R.O., not contemporary; the indexes for 1585–1623 are printed in Index Library (1890). The docket books before 1585 were lost by fire. Those after 1585 are described by F. M. G. Evans, The Principal Secretary of State (Manchester, 1923), especially p. 199: ‘Grants of land, both in England and Ireland, pardons of every kind, forfeitures, passports, royal assents to episcopal appointments, leases of woods and estates, allowances, promotions, patents, and royal letters of every kind were sealed and registered in the signet office, but the records [i.e. the docket books] make no distinction between those documents that were letters-missive and those which merely passed under the signet in their passage through the seals.’

⁶ See Appendix, p. 130 below. The count is from the printed A[cts of the] P[rivy] C[ouncil] until they end early in Charles I's reign, thereafter from the MS. originals.

⁷ Morris, C., Political Thought in England: Tyndale to Hooker (London, 1953)Google Scholar, quotes some of Aylmer's most notable sentences. He was answering Knox. F. D. Wormuth discusses the idea of mixed monarchy in The Origins of Modern Constitutionalism (New York, 1949)Google Scholar.

⁸ The speech is printed at some length in Tanner, J. R., Constitutional Documents of the Reign of James I (Cambridge, 1930), 259 ff.Google Scholar Gough, J. W., Fundamental Law [in English Constitutional History] (Oxford, 1955), 60, suggests that Whitelocke ‘may well not have been understood’, but this is hard to believe. There is nothing difficult to understand in the idea of a supreme law-making parliament in a mixed monarchy. Yet it is true that other speakers did not follow himGoogle Scholar.

⁹ A Vindication of the Treatise of Monarchy (London, 1643), 15. Professor McIlwain discussed Hunton in Politica, 1934.

¹⁰ Coke is cited and discussed in Gough's Fundamental Law, ch. 3. Gough suggests that when Coke said the common law would control acts of parliament and sometimes judge them to be utterly void, he meant only that it could interpret them strictly, so strictly as sometimes to nullify them; and that this view was traditional. Yet it seems clear from Gough's account that he pushed interpretation further than was usual, certainly further than some lawyers thought proper. Neither Professor T. F. T. Plucknett nor S. B. Chrimes has found similar sentiments in earlier centuries.

¹¹ Hunton illustrates the plausibility of mixed monarchy but he does not succeed in proving that England was a mixed monarchy. His complete system is laid out in A Treatise of Monarchy (London, 1643). To prove that England was a mixed monarchy, he had to distinguish, among a wide range of possible constitutions, between three similar-looking types of monarchy: (a) an absolute monarchy in which the prince has voluntarily engaged himself to govern by an express rule and law; (b) a limited monarchy in which the prince is bound to govern by an express rule and law; (c) a limited monarchy in which the rule and law by which the prince is bound to govern provides that the government shall be jointly in king, lords and commons. England was (c). This is a mixed monarchy, the others are simple monarchies. (‘Every mixed monarchy is limited, but it is not necessary that every limited should be mixed’, p. 17.) Hunton's statements on how to recognize these types in practice were bound to be inconclusive. To distinguish (c) from (6) he has to show that the powers of parliament are not derived from the king, but indigenous; for if they were derived the monarchy would be simple He cannot do it.

¹² A navigation act would have offended the Dutch whose alliance was at that moment vital. It could perhaps have been less easily enforced than a patent. If enforced, it would have been less flexible. exceptions and modifications were more easily made under government by patent than under government by act of parliament.

¹³ My attention was drawn to the practices of informers by an unpublished paper by Mr M. W. Beresford. Henry VII's upholstery act simply confiscated the deceitful article, but 5 & 6 Edward VI, c. 23, which virtually repeated it, awarded half to the informer.

¹⁴ Tanner, J. R., Tudor Constitutional Documents (Cambridge, 1930), 574Google Scholar, 576. In the same sense note the words of a judge in the Court of Exchequer in 1656 on the patent of the London soapmakers (cit. , Price, English Patents of Monopoly, New York, 1906, 127) ‘I know very well that common and vulgar judgments run high against all such patents and condemn them before they understand them, as being contrary to the liberty of the subject and the freedom of trade, but they that consider them better are not so hasty in their censures, for certainly upon a serious consideration, all such patents and by-laws as tend most to the well regulating and ordering of trades and the better management of them, so that the benefits of them may be derived to the greater part of the people, though with a prejudice to some particular persons, have always been allowed by the law, but patents which tend to the engrossing of trade, merchandise and manufacture, though never so small, into one or a few hands only, have always been held unreasonable and unwarrantable.’ Wherefore he concluded that the patent was goodGoogle Scholar.

¹⁵ Maitland, F. W., The Constitutional History of England (Cambridge, 1908), 298.Google Scholar

¹⁶ Cit. Gough, Fundamental Law, 38n.

¹⁷ A.P.C. 1616–1617, 58, 131. The commission of sewers is discussed as an example of administrative law by L. L. Jaffe and E. G. Henderson, ‘Judicial Review and the Rule of Law: Historical Origins’, Law Quarterly Review, LXXII, 345ff.