Appendix CASE ONE - Collection Point® | The Total Digital Asset ...

138 Legal History in the Making
brevium from William Cecil for an annual payment of £240; in spite of this
tax on his income, Lennard died a wealthy man. 41 Because their income
rose and fell with the number of litigants requiring the step in the legal
process that lay in their control, these officials viewed with great distaste
any proposal that eliminated 'their' step in the process. To put the matter
specifically, the institution of a default judgement would put out of business
those who issued capias and distringas writs and those who controlled the steps
leading to outlawry. Moreover, because these petty officials had purchased
their offices from the high judicial officers who controlled them, these great
men also had much to lose if the steps of mesne process were accelerated. All
through the seventeenth century, therefore, one finds sober warnings against
any alteration in the course of common law. The loudest proponents of this
argument were of course those who held positions in the judicial bureaucracy
and who stood to lose from any change that made their offices inessential to
litigants.
The argument also found sympathetic ears far from Westminster. Not just
judicial officials, but powerful aristocrats, courtiers and petty office holders
throughout the land held on such terms. One must recall that the modern
English 'fee' derives from the word used to designate the grant of a fief.
Medieval and early modern governments were perennially short of cash, a
difficulty exacerbated by the long struggles between crown and parliament
in the seventeenth century. Under such conditions, it was much easier to
pay official salaries through the indirect taxation of the office-and-fee system
than through direct taxation, the approval of which would require resolving
the differences between king and Commons. Late medieval and early modern
England was therefore shot through with sinecures and posts. 42 With so many
people, so much of government dependent on the rights to payments that
derived from the holding of offices, even those far removed from law would
hesitate to support a principle that, if extended to them, would eliminate their
livelihoods and might even threaten the political order.
There were countercurrents. G.E. Aylmer's elaborate studies of seventeenth-century
office holders identified three sources: patronage, patrimony
and purchase. 43 In the first two influence in high places secured a position for
the holder. In the last the transaction involved simple sale of the office by the
person holding the power of appointment. One must not draw too sharp a
distinction between the three methods; patrons expected a show of gratitude
« C.W. Brooks, op. cit. n.12, 230-31.
42 Consider, for example, the Fox family, whom J.A. Sharpe describes as 'mere gentry, who had
progressed steadily since the restoration through office holding [until] Henry Fox, the first Lord
Holland, secured the Paymastership in 1757', Early Modern England: A Social History, 1550-1670
(1987), 157-58.
43 G.E. Aylmer, 'Office Holding as a Factor in English History, 1625-1642', History, xliv (1959),
228; G.E. Aylmer, The King's Servants: The Civil Service of Charles I, 1625-1642 (1961, rev. ed.,
1974); G.E. Aylmer, The State's Servants: The Civil Service of the English Republic, 1649-1660
(1973).