Constitutional History of England, Henry VII to George II. Volume 1 of 3
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Title: Constitutional History of England, Henry VII to George II. Volume 1 of 3
Author: Henry Hallam
Release date: May 16, 2012 [eBook #39711]
Language: English
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EVERYMAN'S LIBRARY
EDITED BY ERNEST RHYS
HISTORY
HALLAM'S
CONSTITUTIONAL HISTORY
WITH AN INTRODUCTION BY
PROFESSOR J. H. MORGAN
VOLUME ONE
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EMERGING DARKLY
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THE TRVE EPIC
POEM AND VNIVERSAL
DIVINE SCRIPTVRE.
CARLYLE
CONSTITUTIONAL HISTORY of ENGLAND
HENRY VII TO GEORGE II
BY HENRY HALLAM
VOL I
LONDON: PUBLISHED by J.M.DENT.&.SONS.LTD
AND IN NEW YORK BY E.P.DUTTON & CO
INTRODUCTION
Few historical works have stood the test of time better than Hallam's
_Constitutional History_. It was written nearly a century ago--the first
edition was published in 1827--and at a time when historians were
nothing if not stout party men. The science of history, as we now know
it, was in its infancy; apologetics were preferred to exegesis; the
study of "sources," the editing of texts, the classification of
authorities were almost unknown. History was regarded as the handmaid of
politics, and the duty of the historian was conceived as being, in the
language of Macaulay, the impression of "general truths" upon his
generation as to the art of government and the progress of society. Whig
and Tory, Erastian and High Churchman, debated on the field of history.
The characters of Laud and Cromwell excited as much passion and
recrimination as if they were contemporary politicians. That a history
written in such times, and by a writer who was proud to call himself a
Whig, should still hold its place is not a little remarkable. The reason
for its vitality is to be found in the temperament and training of the
author. Hallam was a lawyer in the sense in which that term is used at
the Bar; that is to say, not so much a seductive advocate as a man
deeply versed in the law, accurate, judicious, and impartial. Macaulay,
who was as much the advocate as Hallam is the judge, described the
_Constitutional History_ as "the most impartial book we ever read," and
the tribute was not undeserved. Hallam is often didactic, but he is
never partisan. Although a Whig he was by no means concerned, like
Macaulay, to prove that the Whigs were never in the wrong, and, as he
shrewdly remarks, in his examination of the tenets of the two great
parties in the eighteenth century: "It is one thing to prefer the Whig
principles, another to justify, as an advocate, the party which bore
that name." No better illustration of his attitude of mind can be found
than the passage in which, treating of the outbreak of hostilities
between Charles I. and the Long Parliament, he sets himself to consider
"whether _a thoroughly upright and enlightened man_ would rather have
listed under the royal or the parliamentary standard." In these days
when, as the distinguished occupant of the chair of Modern History at
Cambridge tells us, "history has nothing to do with morality," Hallam's
grave anxiety to solve this problem may sound quaint and, indeed,
irrelevant; but there is no denying the high purpose, the sincerity, and
the passion for truth which characterise the passage in question. To-day
the historian's conception of truth is purely objective: his aim is to
discover what former generations thought rather than to concern himself
with what we should think of them. The late Lord Acton[1] stood almost
alone among the modern school of historians in insisting that it is the
duty of the historian to uphold "the authority of conscience" and "that
moral standard which the powers of earth and religion itself tend
constantly to depress." It is more fashionable to contend that the moral
standard is relative; that we cannot judge the men of the past by the
ethical rules of the present; that conscience itself is the product of
historical development. It may be questioned whether this scepticism has
not been carried too far. Hallam had no such doubts. For him "the
thoroughly upright and enlightened man" of the seventeenth century was
not intrinsically different from the thoroughly upright and enlightened
man of the nineteenth; the one concession he makes to time is that the
historian is probably in a better, not a worse, position to judge than
the men of whom he writes--if only because he is more detached. He
condemns the obsequiousness of Cranmer, the bigotry of Laud, the
tortuousness of Charles I., the ambition of Strafford, with the same
reprobation as he would have extended to similar obliquities in a
contemporary. Unless we are to exclude conduct altogether from our
consideration and to deny the personal factor in history, we shall find
it hard to say he is wrong. Gardiner, the latest historian of the
Stuarts, does not hesitate to pronounce similar judgments, though he
expresses himself more mildly. Sorel, perhaps the most illustrious of
the modern school of French historians and a scholar who spent his life
among the archives, has not hesitated--in writing on the Partition of
Poland--to speak of the Nemesis which always waits upon such "public
crimes."
Hallam's predilection for moral judgments is the more intelligible if we
remember that his conception of "constitutional" history is somewhat
wider than ours is to-day. He included in it much that would now be
called "political" history. One has only to compare his work with the
latest of our authorities--the posthumous book of F. W. Maitland--to
realise how the term has become specialised. Maitland confines his
treatment to the results of political action as they are represented in
the growth of institutions; with political action itself he is, unlike
Hallam, not concerned. The rise and fall of parties, the issues of
Parliamentary debate, the progress of political speculation interest him
but little and disturb him not at all. But to Hallam these things were
hardly less important than the statute book and the law reports. This
liberal view of his subject is not a thing to be regretted. It enables
the reader to appreciate the large part played in the development of the
English constitution by those "conventions" which are a gloss upon the
law and without which the constitution itself is unintelligible. As
Bagehot has pointed out, the legal powers of the king are as large as
his actual authority is small. In strict legal theory the cabinet is
merely an informal group of ministers of the crown who hold office
during the king's pleasure. In fact and in practice it is a committee of
the House of Commons dependent upon the support of the majority of the
members. The fact is the outcome of a conventional modification of the
theory, and this convention is due to the political changes of the
eighteenth century and the growth of the party system. In the pages of
Hallam these changes receive their due recognition, and without it the
development of the English constitution is unintelligible. It was a
favourite doctrine of Hallam that so far as the law was concerned the
constitution was developed very early and that all that later
generations contributed to it was better administration of the law and a
more vigilant public opinion. He even goes so far as to say in his
chapter in the _Middle Ages_ that he doubts "whether there are any
essential privileges of our countrymen, any fundamental securities
against arbitrary power, so far as they depend upon positive
institutions, which may not be traced to the time of the Plantagenets."
This is something of an anachronism, but it represents a not
unjustifiable reaction against the high prerogative doctrines of writers
of his own day. What Hallam, however, was really concerned to prove was
that constitutional law in this country rests upon the common law--upon
the rules laid down by mediaeval judges as to the right of the subject to
trial by jury, his immunity from arbitrary arrest, his claim not to be
arbitrarily dispossessed of his property, and his right of action
against the servants of the crown when he has suffered wrong. In this
conception Hallam was undoubtedly right, and he urged it at a time when
no one had made it as familiar as it has now become in the classic pages
of Professor Dicey. But Hallam was perfectly well aware that these
securities for the liberty of the subject were often abused, that the
sheriffs who empanelled the jury were often corrupt and the judges who
directed it were not infrequently servile; also that so long as the Star
Chamber existed no jury could venture to give a verdict of "not guilty"
in a prosecution by the crown without running the risk of being heavily
punished. He is not insensible to these abuses and to the length of time
it took to correct them, as the reader of the following pages will
discover for himself, and he attaches due weight to the constitutional
importance of the Act for the Abolition of the Star Chamber. But the
truth of his main contention (as expressed in his chapter on "The
English Constitution" in an earlier work[2]), that what chiefly
distinguished our constitution from that of other countries was the
"security for personal freedom and property" enjoyed by the subject, is
undeniable. It was not so much the possession of representative
institutions as the enjoyment of equal rights at common law that
constituted the Englishman's advantage. Maitland[3] has recently pointed
this out in language almost identical with that of Hallam when he
insists that "Parliaments" or "Estates" were in no way peculiar to
England; every country in Western Europe possessed them in the Middle
Ages, but what those countries did not possess was a great school of law
like the Inns of Court determined to uphold at all costs the claims of
the customary law of the nation against the despotic doctrines of the
civil law of Rome.
Hallam's attitude towards the constitution was that of Burke--he
regarded it with a veneration little short of superstition. He has
expressed himself in his earlier works in words which can hardly fail to
provoke a smile to-day:--
"No unbiassed observer, who derives pleasure from the welfare of his
species, can fail to consider the long and uninterruptedly
increasing prosperity of England as the most beautiful phenomenon in
the history of mankind. Climates more propitious may impart more
largely the mere enjoyments of existence; but in no other region
have the benefits that political institutions can confer been
diffused over so extended a population; nor have any people so well
reconciled the discordant elements of wealth, order, and liberty.
These advantages are surely not owing to the soil of this island,
nor to the latitude in which it is placed; but to the spirit of its
laws, from which, through various means, the characteristic
independence and industriousness of our nation have been derived.
The constitution, therefore, of England must be to inquisitive men
of all countries, far more to ourselves, an object of superior
interest; distinguished especially as it is from all free
governments of powerful nations which history has recorded by its
manifesting, after the lapse of several centuries, not merely no
symptom of irretrievable decay, but a more expansive energy."[4]
If his language seems extravagant, I may remind the reader that there
would have been few in Hallam's day who were prepared to dispute it.
England, almost alone among the states of Europe, had escaped the
infection of the French Revolution. Its constitution had survived the
shock of a movement which, as De Tocqueville has remarked, was as widely
destructive of the old order in Europe as the Reformation itself. The
result was to give the English constitution such a prestige as it had
not enjoyed since the days of Montesquieu. A school of thinkers,
beginning with Guizot and hardly terminating with Gneist, grew up on the
continent who made it their duty to follow Burke's advice and "study the
British constitution" as the last word in political wisdom. Hallam's
complacency may be naive in its expression, but its sentiment is sound,
and Englishmen should be the last to disclaim it. Upon this rock many a
political church has been built; the "law and custom of our Parliament"
have, since he wrote, been studied in every university in Europe and
adopted in almost all the legislatures of the civilised world. Hallam,
like Thucydides, with whom in dignity and sententiousness he may not
unjustly be compared, had a noble pride in the constitution of his
country.
J. H. MORGAN.
FOOTNOTES:
[1] Cf. _Historical Essays and Studies_, vol. ii. p. 505.
[2] _Europe during the Middle Ages_, Chapter VIII. Part 3. I may remind
the reader that Hallam regarded his _Constitutional History_ as a
continuation of this chapter, which sketches the development of the
constitution from the earliest times down to the accession of Henry
VII., the point at which the present work begins.
[3] _English Law at the Renaissance_, p. 27.
[4] _Middle Ages_ (12th ed.), ii. p. 267.
BIBLIOGRAPHY
A View of the State of Europe during the Middle Ages, 1818; 2nd edition,
1819; passed through twelve editions before 1855; revised and corrected,
1868; adapted to the use of students by W. Smith, 1871; edited by A.
Murray, 1872; translated into Italian by G. Carraro and published at
Firenze, 1874; Supplemental Notes to View of the State of Europe, 1848.
The Constitutional History of England from the Accession of Henry VIII.
to Death of George II., 1827; translated into German by F. A. Rueder and
published at Leipzig, 1828; translated into French by M. Guizot and
published in Paris, 1832; passed through eight editions before 1855;
adapted to the use of students by W. Smith, 1872. Edited (with preface
and memoir of his son) Remains in Verse and Prose of A. H. Hallam, 1834,
1863. The Introduction to the Literature of Europe during the 15th,
16th, and 17th Centuries, 1837-1839; 2nd edition, 1843; other editions,
1854, 1855, 1881. Contributed to J. C. Hare's Vindication of Luther
against his recent English assailants (2nd edition, enlarged), 1855.
A Short Life and Criticism of Henry Hallam appears in F. A. M. Mignet's
_Eloges Historiques_, published in Paris in 1864.
TO
HENRY MARQUIS OF LANSDOWNE
IN TOKEN OF HIGH ESTEEM
AND SINCERE REGARD
THIS WORK IS RESPECTFULLY INSCRIBED
BY
THE AUTHOR
CONTENTS
CHAPTER I
ON THE ENGLISH CONSTITUTION FROM HENRY VII. TO MARY
Ancient Government of England--Limitations of Royal
Authority--Difference in the Effective Operation of
these--Sketch of the State of Society and Law--Henry
VII.--Statute for the Security of the Subject under a King
_de facto_--Statute of Fines--Discussion of its Effect and
Motive--Exactions of Money under Henry VII.--Taxes demanded
by Henry VIII.--Illegal Exactions of Wolsey in 1523 and
1525--Acts of Parliament releasing the King from his
Debts--A Benevolence again exacted--Oppressive Treatment of
Reed--Severe and unjust Executions for Treason--Earl of
Warwick--Earl of Suffolk--Duke of Buckingham--New Treasons
created by Statute--Executions of Fisher and More--Cromwell
--Duke of Norfolk--Anne Boleyn--Fresh Statutes enacting the
Penalties of Treason--Act giving Proclamations the Force of
Law--Government of Edward VI.'s Counsellors--Attainder of
Lord Seymour and Duke of Somerset--Violence of Mary's
Reign--The House of Commons recovers part of its independent
Power in these two Reigns--Attempt of the Court to
strengthen itself by creating new Boroughs--Causes of the
High Prerogative of the Tudors--Jurisdiction of the Council
of Star-Chamber--This not the same with the Court erected by
Henry VII.--Influence of the Authority of the Star-Chamber
in enhancing the Royal Power--Tendency of religious Disputes
to the same End Page 7
CHAPTER II
ON THE ENGLISH CHURCH UNDER HENRY VIII., EDWARD VI.,
AND MARY
State of public Opinion as to Religion--Henry VIII.'s
Controversy with Luther--His Divorce from Catherine
--Separation from the Church of Rome--Dissolution
of Monasteries--Progress of the Reformed Doctrine in
England--Its Establishment under Edward--Sketch of the chief
Points of Difference between the two Religions--Opposition
made by Part of the Nation--Cranmer--His Moderation in
introducing Changes not acceptable to the Zealots--Mary
--Persecution under her--Its Effect rather favourable to
Protestantism Page 58
CHAPTER III
ON THE LAWS OF ELIZABETH'S REIGN RESPECTING THE
ROMAN CATHOLICS
Change of Religion on the Queen's Accession--Acts of
Supremacy and Uniformity--Restraint of Roman Catholic
Worship in the first Years of Elizabeth--Statute of
1562--Speech of Lord Montague against it--This Act not fully
enforced--Application of the Emperor in behalf of the
English Catholics--Persecution of this Body in the ensuing
Period--Uncertain Succession of the Crown between the
Families of Scotland and Suffolk--The Queen's Unwillingness
to decide this, or to marry--Imprisonment of Lady Catherine
Grey--Mary Queen of Scotland--Combination in her
Favour--Bull of Pius V.--Statutes for the Queen's
Security--Catholics more rigorously treated--Refugees in the
Netherlands--Their Hostility to the Government--Fresh Laws
against the Catholic Worship--Execution of Campion and
others--Defence of the Queen by Burleigh--Increased Severity
of the Government--Mary--Plot in her Favour--Her
Execution--Remarks upon it--Continued Persecution of Roman
Catholics--General Observations Page 105
CHAPTER IV
ON THE LAWS OF ELIZABETH'S REIGN RESPECTING PROTESTANT
NONCONFORMISTS
Origin of the Differences among the English Protestants
--Religious Inclinations of the Queen--Unwillingness of many
to comply with the established Ceremonies--Conformity
enforced by the Archbishop--Against the Disposition of
others--A more determined Opposition, about 1570, led by
Cartwright--Dangerous Nature of his Tenets--Puritans
supported in the Commons--and in some Measure by the
Council--Prophesyings--Archbishops Grindal and Whitgift
--Conduct of the latter in enforcing Conformity--High
Commission Court--Lord Burleigh averse to Severity--Puritan
Libels--Attempt to set up a Presbyterian System--House of
Commons averse to episcopal Authority--Independents liable
to severe Laws--Hooker's _Ecclesiastical Polity_--Its
Character--Spoliation of Church Revenues--General
Remarks--Letter of Walsingham in Defence of the Queen's
Government Page 162
CHAPTER V
ON THE CIVIL GOVERNMENT OF ELIZABETH
General Remarks--Defective Security of the Subject's
Liberty--Trials for Treason and other Political Offences
unjustly conducted--Illegal Commitments--Remonstrance of
Judges against them--Proclamations unwarranted by
Law--Restrictions on Printing--Martial Law--Loans of Money
not quite voluntary--Character of Lord Burleigh's
Administration--Disposition of the House of Commons
--Addresses concerning the Succession--Difference on this
between the Queen and Commons in 1566--Session of
1571--Influence of the Puritans in Parliament--Speech of Mr.
Wentworth in 1576--The Commons continue to seek Redress of
ecclesiastical Grievances--Also of Monopolies, especially in
the Session of 1601--Influence of the Crown in Parliament
--Debate on Election of non-resident Burgesses--Assertion of
Privileges by Commons--Case of Ferrers, under Henry
VIII.--Other Cases of Privilege--Privilege of determining
Contested Elections claimed by the House--The English
Constitution not admitted to be an absolute
Monarchy--Pretensions of the Crown Page 215
CHAPTER VI
ON THE ENGLISH CONSTITUTION UNDER JAMES I.
Quiet Accession of James--Question of his Title to the
Crown--Legitimacy of the Earl of Hertford's Issue--Early
Unpopularity of the King--Conduct towards the Puritans
--Parliament convoked by an irregular Proclamation--Question
of Fortescue and Goodwin's Election--Shirley's Case of
Privilege--Complaints of Grievances--Commons' Vindication of
themselves--Session of 1605--Union with Scotland
debated--Continual Bickerings between the Crown and
Commons--Impositions on Merchandise without Consent of
Parliament--Remonstrances against these in Session of
1610--Doctrine of King's absolute Power inculcated by
Clergy--Articuli Cleri--Cowell's Interpreter--Renewed
Complaints of the Commons--Negotiation for giving up the
Feudal Revenue--Dissolution of Parliament--Character of
James--Death of Lord Salisbury--Foreign Politics of the
Government--Lord Coke's Alienation from the Court--Illegal
Proclamations--Means resorted to in order to avoid the
Meeting of Parliament--Parliament of 1614--Undertakers--It
is dissolved without passing a single Act--Benevolences
--Prosecution of Peacham--Dispute about the Jurisdiction of
the Court of Chancery--Case of Commendams--Arbitrary
Proceedings in Star-Chamber--Arabella Stuart--Somerset and
Overbury--Sir Walter Raleigh--Parliament of 1621
--Proceedings against Mompesson and Lord Bacon--Violence in
the Case of Floyd--Disagreement between the King and
Commons--Their Dissolution, after a strong Remonstrance
--Marriage-Treaty with Spain--Parliament of 1624
--Impeachment of Middlesex Page 266
CHAPTER VII
ON THE ENGLISH CONSTITUTION FROM THE ACCESSION OF CHARLES I.
TO THE DISSOLUTION OF HIS THIRD PARLIAMENT
Parliament of 1625--Its Dissolution--Another Parliament
called--Prosecution of Buckingham--Arbitrary Proceedings
towards the Earls of Arundel and Bristol--Loan demanded by
the King--Several committed for Refusal to contribute--They
sue for a Habeas Corpus--Arguments on this Question, which
is decided against them--A Parliament called in
1628--Petition of Right--King's Reluctance to grant
it--Tonnage and Poundage disputed--King dissolves
Parliament--Religious Differences--Prosecution of Puritans
by Bancroft--Growth of High-Church Tenets--Differences as to
the Observance of Sunday--Arminian Controversy--State
Catholics under James--Jealousy of the Court's Favour
towards them--Unconstitutional Tenets promulgated by the
High-Church Party--General Remarks Page 347
PREFACE
The origin and progress of the English Constitution, down to the
extinction of the house of Plantagenet, formed a considerable portion of
a work published by me some years since, on the history, and especially
the laws and institutions, of Europe during the period of the middle
ages. It had been my first intention to have prosecuted that undertaking
in a general continuation; and when experience taught me to abandon a
scheme projected early in life with very inadequate views of its
magnitude, I still determined to carry forward the constitutional
history of my own country, as both the most important to ourselves, and,
in many respects, the most congenial to my own studies and habits of
mind.
The title which I have adopted, appears to exclude all matter not
referable to the state of government, or what is loosely denominated the
constitution. I have, therefore, generally abstained from mentioning,
except cursorily, either military or political transactions, which do
not seem to bear on this primary subject. It must, however, be evident,
that the constitutional and general history of England, at some periods,
nearly coincide; and I presume that a few occasional deviations of this
nature will not be deemed unpardonable, especially where they tend, at
least indirectly, to illustrate the main topic of enquiry. Nor will the
reader, perhaps, be of opinion that I have forgotten my theme in those
parts of the following work which relate to the establishment of the
English church, and to the proceedings of the state with respect to
those who have dissented from it; facts certainly belonging to the
history of our constitution, in the large sense of the word, and most
important in their application to modern times, for which all knowledge
of the past is principally valuable. Still less apology can be required
for a slight verbal inconsistency with the title of these volumes in the
addition of two supplemental chapters on Scotland and Ireland. This
indeed I mention less to obviate a criticism, which possibly might not
be suggested, than to express my regret that, on account of their
brevity, if for no other reasons, they are both so disproportionate to
the interest and importance of their subjects.
During the years that, amidst avocations of different kinds, have been
occupied in the composition of this work, several others have been given
to the world, and have attracted considerable attention, relating
particularly to the periods of the Reformation and of the civil wars. It
seems necessary to mention that I have read none of these, till after I
had written such of the following pages as treat of the same subjects.
The three first chapters indeed were finished in 1820, before the
appearance of those publications which have led to so much controversy,
as to the ecclesiastical history of the sixteenth century; and I was
equally unacquainted with Mr. Brodie's _History of the British Empire
from the Accession of Charles I. to the Restoration_, while engaged
myself on that period. I have, however, on a revision of the present
work, availed myself of the valuable labours of recent authors,
especially Dr. Lingard and Mr. Brodie; and in several of my notes I have
sometimes supported myself by their authority, sometimes taken the
liberty to express my dissent; but I have seldom thought it necessary to
make more than a few verbal modifications in my text.
It would, perhaps, not become me to offer any observations on these
contemporaries; but I cannot refrain from bearing testimony to the work
of a distinguished foreigner, M. Guizot, _Histoire de la Revolution
d'Angleterre, depuis l'Avenement de Charles I. jusqu'a la Chute de
Jacques II._, the first volume of which was published in 1826. The
extensive knowledge of M. Guizot, and his remarkable impartiality, have
already been displayed in his collection of memoirs illustrating that
part of English history; and I am much disposed to believe that if the
rest of his present undertaking shall be completed in as satisfactory a
manner as the first volume, he will be entitled to the preference above
any one, perhaps, of our native writers, as a guide through the great
period of the seventeenth century.
In terminating the _Constitutional History of England_ at the accession
of George III., I have been influenced by unwillingness to excite the
prejudices of modern politics, especially those connected with personal
character, which extend back through at least a large portion of that
reign. It is indeed vain to expect that any comprehensive account of the
two preceding centuries can be given without risking the disapprobation
of those parties, religious or political, which originated during that
period; but as I shall hardly incur the imputation of being the blind
zealot of any of these, I have little to fear, in this respect, from the
dispassionate public, whose favour, both in this country and on the
Continent, has been bestowed on my former work, with a liberality less
due to any literary merit it may possess, than to a regard for truth,
which will, I trust, be found equally characteristic of the present.
_June 1827._
ADVERTISEMENT
TO THE
THIRD EDITION
The present edition has been revised, and some use made of recent
publications. The note on the authenticity of the Icon Basilice, at the
end of the second volume of the two former editions, has been withdrawn;
not from the slightest doubt in the author's mind as to the correctness
of its argument; but because a discussion of a point of literary
criticism, as this ought to be considered, seemed rather out of its
place in the _Constitutional History of England_.
_April 1832._
LIST OF AUTHORITIES
_The following Editions have been used for the References in these
Volumes_
_Statutes at Large_, by Ruffhead, except where the late edition of
_Statutes of the Realm_ is expressly quoted.
_State Trials_, by Howell.
Rymer's _Foedera_, London, 20 vols. The paging of this edition is
preserved in the margin of the Hague edition in 10 vols.
_Parliamentary History_, new edition.
Burnet's _History of the Reformation_, 3 vols. folio, 1681.
Strype's _Ecclesiastical Memorials_, _Annals of Reformation_, and Lives
of Archbishops Cranmer, Parker, Grindal, and Whitgift, folio. The paging
of these editions is preserved in those lately published in 8vo.
Hall's _Chronicles of England_.
Holingshed's _Chronicles of England, Scotland, and Ireland_. The edition
in 4to published in 1808.
_Somers Tracts_, by Walter Scott, 13 vols. 4to.
_Harleian Miscellany_, 8 vols. 4to.
Neal's _History of the Puritans_, 2 vols. 4to.
Bacon's Works, by Mallet, 3 vols. folio, 1753.
Kennet's _Complete History of England_, 3 vols. folio, 1719.
Wood's _History of University of Oxford_, by Gutch, 4 vols. 4to.
Lingard's _History of England_, 10 vols. 8vo.
Butler's _Memoirs of English Catholics_, 4 vols. 1819.
Harris's _Lives of James I., Charles I., Cromwell, and Charles II._, 5
vols. 1814.
Clarendon's _History of the Rebellion_, 8 vols. 8vo. Oxford, 1826. It is
to be regretted that the editor has not preserved the paging of the
folio in his margin, which is of great convenience in a book so
frequently referred to; and still more so, that he has not thought the
true text worthy of a better place than the bottom of the page, leaving
to the spurious readings the post of honour.
Clarendon's _Life_, folio.
_Rushworth Abridged_, 6 vols. 8vo. 1703. This edition contains many
additions from works published since the folio edition in 1680.
Whitelock's _Memorials_, 1732.
_Memoirs of Col. Hutchinson_, 4to. 1806.
May's _History of the Parliament_, 4to. 1812.
Baxter's _Life_, folio.
Rapin's _History of England_, 3 vols. folio, 1732.
Burnet's _History of his own Times_, 2 vols. folio. The paging of this
edition is preserved in the margin of that printed at Oxford, 1823,
which is sometimes quoted, and the text of which has always been
followed.
_Life of William Lord Russell_, by Lord John Russell, 4to.
Temple's _Works_, 2 vols. folio, 1720.
Coxe's _Life of Marlborough_, 3 vols. 4to.
Coxe's _Memoirs of Sir Robert Walpole_, 3 vols. 4to.
Robertson's _History of Scotland_, 2 vols. 8vo. 1794.
Laing's _History of Scotland_, 4 vols. 8vo.
Dalrymple's _Annals of Scotland_, 2 vols. 4to.
Leland's _History of Ireland_, 3 vols. 4to.
Spenser's _Account of State of Ireland_, in 8th volume of Todd's edition
of Spenser's works.
These are, I believe, almost all the works quoted in the following
volumes, concerning which any uncertainty could arise from the mode of
reference.
CONSTITUTIONAL HISTORY OF ENGLAND
FROM HENRY VII. TO GEORGE II.
CHAPTER I
ON THE ENGLISH CONSTITUTION FROM HENRY VII. TO MARY
_Ancient government of England._--The government of England, in all
times recorded by history, has been one of those mixed or limited
monarchies which the Celtic and Gothic tribes appear universally to have
established, in preference to the coarse despotism of eastern nations,
to the more artificial tyranny of Rome and Constantinople, or to the
various models of republican polity which were tried upon the coasts of
the Mediterranean Sea. It bore the same general features, it belonged,
as it were, to the same family, as the governments of almost every
European state, though less resembling, perhaps, that of France than any
other. But, in the course of many centuries, the boundaries which
determined the sovereign's prerogative and the people's liberty or power
having seldom been very accurately defined by law, or at least by such
law as was deemed fundamental and unchangeable, the forms and principles
of political regimen in these different nations became more divergent
from each other, according to their peculiar dispositions, the
revolutions they underwent, or the influence of personal character.
England, more fortunate than the rest, had acquired in the fifteenth
century a just reputation for the goodness of her laws and the security
of her citizens from oppression.
This liberty had been the slow fruit of ages, still waiting a happier
season for its perfect ripeness, but already giving proof of the vigour
and industry which had been employed in its culture. I have
endeavoured, in a work of which this may in a certain degree be reckoned
a continuation, to trace the leading events and causes of its progress.
It will be sufficient in this place briefly to point out the principal
circumstances in the polity of England at the accession of Henry VII.
_Limitations of royal authority._--The essential checks upon the royal
authority were five in number.--1. The king could levy no sort of new
tax upon his people, except by the grant of his parliament, consisting
as well of bishops and mitred abbots, or lords spiritual, and of
hereditary peers or temporal lords, who sat and voted promiscuously in
the same chamber, as of representatives from the freeholders of each
county, and from the burgesses of many towns and less considerable
places, forming the lower or commons' house. 2. The previous assent and
authority of the same assembly was necessary for every new law, whether
of a general or temporary nature. 3. No man could be committed to prison
but by a legal warrant specifying his offence; and by an usage nearly
tantamount to constitutional right, he must be speedily brought to trial
by means of regular sessions of gaol-delivery. 4. The fact of guilt or
innocence on a criminal charge was determined in a public court, and in
the county where the offence was alleged to have occurred, by a jury of
twelve men, from whose unanimous verdict no appeal could be made. Civil
rights, so far as they depended on questions of fact, were subject to
the same decision. 5. The officers and servants of the Crown, violating
the personal liberty or other right of the subject, might be sued in an
action for damages, to be assessed by a jury, or, in some cases, were
liable to criminal process; nor could they plead any warrant or command
in their justification, not even the direct order of the king.
These securities, though it would be easy to prove that they were all
recognised in law, differed much in the degree of their effective
operation. It may be said of the first, that it was now completely
established. After a long contention, the kings of England had desisted
for near a hundred years from every attempt to impose taxes without
consent of parliament; and their recent device of demanding
benevolences, or half-compulsory gifts, though very oppressive, and on
that account just abolished by an act of the late usurper, Richard, was
in effect a recognition of the general principle, which it sought to
elude rather than transgress.
The necessary concurrence of the two houses of parliament in
legislation, though it could not be more unequivocally established than
the former, had in earlier times been more free from all attempt or
pretext of encroachment. We know not of any laws that were ever enacted
by our kings without the assent and advice of their great council;
though it is justly doubted, whether the representatives of the ordinary
freeholders, or of the boroughs, had seats and suffrages in that
assembly during seven or eight reigns after the conquest. They were
then, however, ingrafted upon it with plenary legislative authority; and
if the sanction of a statute were required for this fundamental axiom,
we might refer to one in the 15th of Edward II. (1322), which declares
that "the matters to be established for the estate of the king and of
his heirs, and for the estate of the realm and of the people, should be
treated, accorded, and established in parliament, by the king, and by
the assent of the prelates, earls, and barons, and the commonalty of the
realm, according as had been before accustomed."[5]
It may not be impertinent to remark in this place, that the opinion of
such as have fancied the royal prerogative under the houses of
Plantagenet and Tudor to have had no effectual or unquestioned
limitations is decisively refuted by the notorious fact, that no
alteration in the general laws of the realm was ever made, or attempted
to be made, without the consent of parliament. It is not surprising that
the council, in great exigency of money, should sometimes employ force
to extort it from the merchants, or that servile lawyers should be found
to vindicate these encroachments of power. Impositions, like other
arbitrary measures, were particular and temporary, prompted by rapacity,
and endured through compulsion. But if the kings of England had been
supposed to enjoy an absolute authority, we should find some proofs of
it in their exercise of the supreme function of sovereignty, the
enactment of new laws. Yet there is not a single instance from the first
dawn of our constitutional history, where a proclamation, or order of
council, has dictated any change, however trifling, in the code of
private rights, or in the penalties of criminal offences. Was it ever
pretended that the king could empower his subjects to devise their
freeholds, or to levy fines of their entailed lands? Has even the
slightest regulation as to judicial procedure, or any permanent
prohibition, even in fiscal law, been ever enforced without statute?
There was, indeed, a period, later than that of Henry VII., when a
control over the subject's free right of doing all things not unlawful
was usurped by means of proclamations. These, however, were always
temporary, and did not affect to alter the established law. But though
it would be difficult to assert that none of this kind had ever been
issued in rude and irregular times, I have not observed any under the
kings of the Plantagenet name which evidently transgress the boundaries
of their legal prerogative.
The general privileges of the nation were far more secure than those of
private men. Great violence was often used by the various officers of
the Crown, for which no adequate redress could be procured; the courts
of justice were not strong enough, whatever might be their temper, to
chastise such aggressions; juries, through intimidation or ignorance,
returned such verdicts as were desired by the Crown; and, in general,
there was perhaps little effective restraint upon the government, except
in the two articles of levying money and enacting laws.
_State of society and law._--The peers alone, a small body varying from
about fifty to eighty persons, enjoyed the privileges of aristocracy;
which, except that of sitting in parliament, were not very considerable,
far less oppressive. All below them, even their children, were
commoners, and in the eye of the law equal to each other. In the
gradation of ranks, which, if not regally recognised, must still subsist
through the necessary inequalities of birth and wealth, we find the
gentry or principal landholders, many of them distinguished by
knighthood, and all by bearing coat armour, but without any exclusive
privilege; the yeomanry, or small freeholders and farmers, a very
numerous and respectable body, some occupying their own estates, some
those of landlords; the burgesses and inferior inhabitants of trading
towns; and, lastly, the peasantry and labourers. Of these, in earlier
times, a considerable part, though not perhaps so very large a
proportion as is usually taken for granted, had been in the ignominious
state of villenage, incapable of possessing property but at the will of
their lords. They had, however, gradually been raised above this
servitude; many had acquired a stable possession of lands under the name
of copyholders; and the condition of mere villenage was become rare.
The three courts at Westminster--the King's Bench, Common Pleas, and
Exchequer--consisting each of four or five judges, administered justice
to the whole kingdom; the first having an appellant jurisdiction over
the second, and the third being in a great measure confined to causes
affecting the Crown's property. But as all suits relating to land, as
well as some others, and all criminal indictments, could only be
determined, so far as they depended upon oral evidence, by a jury of the
county, it was necessary that justices of assize and gaol-delivery,
being in general the judges of the courts at Westminster, should travel
into each county, commonly twice a year, in order to try issues of fact,
so called in distinction from issues of law, where the suitors,
admitting all essential facts, disputed the rule applicable to them.[6]
By this device, which is as ancient as the reign of Henry II., the
fundamental privilege of trial by jury, and the convenience of private
suitors, as well as accused persons, was made consistent with an uniform
jurisprudence; and though the reference of every legal question, however
insignificant, to the courts above must have been inconvenient and
expensive in a still greater degree than at present, it had doubtless a
powerful tendency to knit together the different parts of England, to
check the influence of feudality and clanship, to make the inhabitants
of distant counties better acquainted with the capital city and more
accustomed to the course of government, and to impair the spirit of
provincial patriotism and animosity. The minor tribunals of each county,
hundred, and manor, respectable for their antiquity and for their effect
in preserving a sense of freedom and justice, had in a great measure,
though not probably so much as in modern times, gone into disuse. In a
few counties there still remained a palatine jurisdiction, exclusive of
the king's courts; but in these the common rules of law and the mode of
trial by jury were preserved. Justices of the peace, appointed out of
the gentlemen of each county, enquired into criminal charges, committed
offenders to prison, and tried them at their quarterly sessions,
according to the same forms as the judges of gaol-delivery. The
chartered towns had their separate jurisdiction under the municipal
magistracy.
The laws against theft were severe, and capital punishments unsparingly
inflicted. Yet they had little effect in repressing acts of violence, to
which a rude and licentious state of manners, and very imperfect
dispositions for preserving the public peace, naturally gave rise. These
were frequently perpetrated or instigated by men of superior wealth and
power, above the control of the mere officers of justice. Meanwhile the
kingdom was increasing in opulence, the English merchants possessed a
large share of the trade of the north; and a woollen manufacture,
established in different parts of the kingdom, had not only enabled the
legislature to restrain the import of cloths, but begun to supply
foreign nations. The population may probably be reckoned, without any
material error, at about three millions, but by no means distributed in
the same proportions as at present; the northern counties, especially
Lancashire and Cumberland, being very ill peopled, and the inhabitants
of London and Westminster not exceeding sixty or seventy thousand.[7]
Such was the political condition of England, when Henry Tudor, the only
living representative of the house of Lancaster, though incapable, by
reason of the illegitimacy of the ancestor who connected him with it, of
asserting a just right of inheritance, became master of the throne by
the defeat and death of his competitor at Bosworth, and by the general
submission of the kingdom. He assumed the royal title immediately after
his victory, and summoned a parliament to recognise or sanction his
possession. The circumstances were by no means such as to offer an
auspicious presage for the future. A subdued party had risen from the
ground, incensed by proscription and elated by success; the late battle
had in effect been a contest between one usurper and another; and
England had little better prospect than a renewal of that desperate and
interminable contention, which the pretences of hereditary right have so
often entailed upon nations.
A parliament called by a conqueror might be presumed to be itself
conquered. Yet this assembly did not display so servile a temper, or so
much of the Lancastrian spirit, as might be expected. It was "ordained
and enacted by the assent of the Lords, and at the request of the
Commons, that the inheritance of the crowns of England and France, and
all dominions appertaining to them, should remain in Henry VII. and the
heirs of his body for ever, and in none other."[8] Words studiously
ambiguous, which, while they avoid the assertion of an hereditary right
that the public voice repelled, were meant to create a parliamentary
title, before which the pretensions of lineal descent were to give way.
They seem to make Henry the stock of a new dynasty. But, lest the
spectre of indefeasible right should stand once more in arms on the tomb
of the house of York, the two houses of parliament showed an earnest
desire for the king's marriage with the daughter of Edward IV., who, if
she should bear only the name of royalty, might transmit an undisputed
inheritance of its prerogatives to her posterity.
_Statute for the security of the subject under a king_ de facto.--This
marriage, and the king's great vigilance in guarding his crown, caused
his reign to pass with considerable reputation, though not without
disturbance. He had to learn by the extraordinary, though transient,
success of two impostors (if the second may with certainty be reckoned
such), that his subjects were still strongly infected with the prejudice
which had once overthrown the family he claimed to represent. Nor could
those who served him be exempt from apprehensions of a change of
dynasty, which might convert them into attainted rebels. The state of
the nobles and gentry had been intolerable during the alternate
proscriptions of Henry VI. and Edward IV. Such apprehensions led to a
very important statute in the eleventh year of this king's reign,
intended, as far as law could furnish a prospective security against the
violence and vengeance of factions, to place the civil duty of
allegiance on a just and reasonable foundation, and indirectly to cut
away the distinction between governments _de jure_ and _de facto_. It
enacts, after reciting that subjects by reason of their allegiance are
bound to serve their prince for the time being against every rebellion
and power raised against him, that "no person attending upon the king
and sovereign lord of this land for the time being, and doing him true
and faithful service, shall be convicted of high treason, by act of
parliament or other process of law, nor suffer any forfeiture or
punishment; but that every act made contrary to this statute should be
void and of no effect."[9] The endeavour to bind future parliaments was
of course nugatory; but the statute remains an unquestionable authority
for the constitutional maxim, that possession of the throne gives a
sufficient title to the subject's allegiance, and justifies his
resistance of those who may pretend to a better right. It was much
resorted to in argument at the time of the revolution, and in the
subsequent period.[10]
It has been usual to speak of this reign as if it formed a great epoch
in our constitution; the king having by his politic measures broken the
power of the barons who had hitherto withstood the prerogative, while
the commons had not yet risen from the humble station which they were
supposed to have occupied. I doubt, however, whether the change was
quite so precisely referable to the time of Henry VII., and whether his
policy has not been somewhat over-rated. In certain respects, his reign
is undoubtedly an aera in our history. It began in revolution and a
change in the line of descent. It nearly coincides, which is more
material, with the commencement of what is termed modern history, as
distinguished from the middle ages, and with the memorable events that
have led us to make that leading distinction, especially the
consolidation of the great European monarchies, among which England took
a conspicuous station. But, relatively to the main subject of our
enquiry, it is not evident that Henry VII. carried the authority of the
Crown much beyond the point at which Edward IV. had left it. The
strength of the nobility had been grievously impaired by the bloodshed
of the civil wars, and the attainders that followed them. From this
cause, or from the general intimidation, we find, as I have observed in
another place, that no laws favourable to public liberty, or remedial
with respect to the aggressions of power, were enacted, or (so far as
appears) even proposed in parliament, during the reign of Edward IV.;
the first, since that of John, to which such a remark can be applied.
The Commons, who had not always been so humble and abject as smatterers
in history are apt to fancy, were by this time much degenerated from the
spirit they had displayed under Edward III. and Richard II. Thus the
founder of the line of Tudor came, not certainly to an absolute, but a
vigorous prerogative, which his cautious dissembling temper and close
attention to business were well calculated to extend.
_Statute of Fines._--The laws of Henry VII. have been highly praised by
Lord Bacon as "deep and not vulgar, not made upon the spur of a
particular occasion for the present, but out of providence for the
future, to make the estate of his people still more and more happy,
after the manner of the legislators in ancient and heroical times." But
when we consider how very few kings or statesmen have displayed this
prospective wisdom and benevolence in legislation, we may hesitate a
little to bestow so rare a praise upon Henry. Like the laws of all
other times, his statutes seem to have had no further aim than to remove
some immediate mischief, or to promote some particular end. One,
however, has been much celebrated as an instance of his sagacious
policy, and as the principal cause of exalting the royal authority upon
the ruins of the aristocracy; I mean, the Statute of Fines (as one
passed in the fourth year of his reign is commonly called), which is
supposed to have given the power of alienating entailed lands. But both
the intention and effect of this seem not to have been justly
apprehended.
In the first place it is remarkable that the statute of Henry VII. is
merely a transcript, with very little variation, from one of Richard
III., which is actually printed in most editions. It was re-enacted, as
we must presume, in order to obviate any doubt, however ill-grounded,
which might hang upon the validity of Richard's laws. Thus vanish at
once into air the deep policy of Henry VII. and his insidious schemes of
leading on a prodigal aristocracy to its ruin. It is surely strange that
those who have extolled this sagacious monarch for breaking the fetters
of landed property (though many of them were lawyers) should never have
observed, that whatever credit might be due for the innovation should
redound to the honour of the unfortunate usurper. But Richard, in truth,
had no leisure for such long-sighted projects of strengthening a throne
for his posterity which he could not preserve for himself. His law, and
that of his successor, had a different object in view.
It would be useless to some readers, and perhaps disgusting to others,
especially in the very outset of this work, to enter upon the history of
the English law as to the power of alienation. But I cannot explain the
present subject without mentioning that, by a statute in the reign of
Edward I, commonly called _de donis conditionalibus_, lands given to a
man and the heirs of his body, with remainder to other persons, or
reversion to the donor, could not be alienated by the possessor for the
time being, either from his own issue, or from those who were to succeed
them. Such lands were also incapable of forfeiture for treason or
felony; and more, perhaps, upon this account than from any more enlarged
principle, these entails were not viewed with favour by the courts of
justice. Several attempts were successfully made to relax their
strictness; and finally, in the reign of Edward IV., it was held by the
judges in the famous case of Taltarum, that a tenant in tail might, by
what is called suffering a common recovery, that is, by means of an
imaginary process of law, divest all those who were to come after him of
their succession, and become owner of the fee simple. Such a decision
was certainly far beyond the sphere of judicial authority. The
legislature, it was probably suspected, would not have consented to
infringe a statute which they reckoned the safeguard of their families.
The law, however, was laid down by the judges; and in those days the
appellant jurisdiction of the House of Lords, by means of which the
aristocracy might have indignantly reversed the insidious decision, had
gone wholly into disuse. It became by degrees a fundamental principle,
that an estate in tail can be barred by a common recovery; nor is it
possible by any legal subtlety to deprive the tenant of this control
over his estate. Schemes were indeed gradually devised, which to a
limited extent have restrained the power of alienation; but these do not
belong to our subject.
The real intention of these statutes of Richard and Henry was not to
give the tenant in tail a greater power over his estate (for it is by no
means clear that the words enable him to bar his issue by levying a
fine; and when a decision to that effect took place long afterwards (19
H. 8), it was with such difference of opinion that it was thought
necessary to confirm the interpretation by a new act of parliament); but
rather, by establishing a short term of prescription, to put a check on
the suits for recovery of lands, which, after times of so much violence
and disturbance, were naturally springing up in the courts. It is the
usual policy of commonwealths to favour possession; and on this
principle the statute enacts, that a fine levied with proclamations in a
public court of justice shall after five years, except in particular
circumstances, be a bar to all claims upon lands. This was its main
scope; the liberty of alienation was neither necessary, nor probably
intended to be given.[11]
_Exactions of Henry VII._--The two first of the Tudors rarely
experienced opposition but when they endeavoured to levy money.
Taxation, in the eyes of their subjects, was so far from being no
tyranny, that it seemed the only species worth a complaint. Henry VII.
obtained from his first parliament a grant of tonnage and poundage
during life, according to several precedents of former reigns. But when
general subsidies were granted, the same people, who would have seen an
innocent man led to prison or the scaffold with little attention, twice
broke out into dangerous rebellions; and as these, however arising from
such immediate discontent, were yet a good deal connected with the
opinion of Henry's usurpation and the claims of a pretender, it was a
necessary policy to avoid too frequent imposition of burdens upon the
poorer classes of the community.[12] He had recourse accordingly to the
system of benevolences, or contributions apparently voluntary, though in
fact extorted from his richer subjects. These having become an
intolerable grievance under Edward IV., were abolished in the only
parliament of Richard III. with strong expressions of indignation. But
in the seventh year of Henry's reign, when, after having with timid and
parsimonious hesitation suffered the marriage of Anne of Brittany with
Charles VIII., he was compelled by the national spirit to make a
demonstration of war, he ventured to try this unfair and
unconstitutional method of obtaining aid, which received afterwards too
much of a parliamentary sanction, by an act enforcing the payment of
arrears of money, which private men had thus been prevailed upon to
promise.[13] The statute indeed of Richard is so expressed as not
clearly to forbid the solicitation of voluntary gifts, which of course
rendered it almost nugatory.
Archbishop Morton is famous for the dilemma which he proposed to
merchants and others, whom he solicited to contribute. He told those who
lived handsomely, that their opulence was manifest by their rate of
expenditure. Those, again, whose course of living was less sumptuous,
must have grown rich by their economy. Either class could well afford
assistance to their sovereign. This piece of logic, unanswerable in the
mouth of a privy councillor, acquired the name of Morton's fork. Henry
doubtless reaped great profit from these indefinite exactions, miscalled
benevolences. But, insatiate of accumulating treasure, he discovered
other methods of extortion, still more odious, and possibly more
lucrative. Many statutes had been enacted in preceding reigns, sometimes
rashly or from temporary motives, sometimes in opposition to prevailing
usages which they could not restrain, of which the pecuniary penalties,
though exceedingly severe, were so little enforced as to have lost their
terror. These his ministers raked out from oblivion; and, prosecuting
such as could afford to endure the law's severity, filled his treasury
with the dishonourable produce of amercements and forfeitures. The
feudal rights became, as indeed they always had been, instrumental to
oppression. The lands of those who died without heirs fell back to the
Crown by escheat. It was the duty of certain officers in every county to
look after its rights. The king's title was to be found by the inquest
of a jury, summoned at the instance of the escheator, and returned into
the exchequer. It then became a matter of record, and could not be
impeached. Hence the escheators taking hasty inquests, or sometimes
falsely pretending them, defeated the right heir of his succession.
Excessive fines were imposed on granting livery to the king's wards on
their majority. Informations for intrusion, criminal indictments,
outlawries on civil process, in short, the whole course of justice,
furnished pretences for exacting money; while a host of dependents on
the court, suborned to play their part as witnesses, or even as jurors,
rendered it hardly possible for the most innocent to escape these
penalties. Empson and Dudley are notorious as the prostitute instruments
of Henry's avarice in the later and more unpopular years of his reign;
but they dearly purchased a brief hour of favour by an ignominious death
and perpetual infamy.[14] The avarice of Henry VII., as it rendered his
government unpopular, which had always been penurious, must be deemed a
drawback from the wisdom ascribed to him; though by his good fortune it
answered the end of invigorating his power. By these fines and
forfeitures he impoverished and intimidated the nobility. The Earl of
Oxford compounded, by the payment of L15,000, for the penalties he had
incurred by keeping retainers in livery; a practice mischievous and
illegal, but too customary to have been punished before this reign. Even
the king's clemency seems to have been influenced by the sordid motive
of selling pardons; and it has been shown, that he made a profit of
every office in his court, and received money for conferring
bishoprics.[15]
It is asserted by early writers, though perhaps only on conjecture, that
he left a sum thus amassed, of no less than L1,800,000 at his decease.
This treasure was soon dissipated by his successor, who had recourse to
the assistance of parliament in the very first year of his reign. The
foreign policy of Henry VIII., far unlike that of his father, was
ambitious and enterprising. No former king had involved himself so
frequently in the labyrinth of continental alliances. And, if it were
necessary to abandon that neutrality which is generally the most
advantageous and laudable course, it is certain that his early
undertakings against France were more consonant to English interests, as
well as more honourable, than the opposite policy, which he pursued
after the battle of Pavia. The campaigns of Henry in France and Scotland
displayed the valour of our English infantry, seldom called into action
for fifty years before, and contributed with other circumstances to
throw a lustre over his reign, which prevented most of his
contemporaries from duly appreciating its character. But they naturally
drew the king into heavy expenses, and, together with his profusion and
love of magnificence, rendered his government very burthensome. At his
accession, however, the rapacity of his father's administration had
excited such universal discontent, that it was found expedient to
conciliate the nation. An act was passed in his first parliament to
correct the abuses that had prevailed in finding the king's title to
lands by escheat.[16] The same parliament repealed a law of the late
reign, enabling justices of assize and of the peace to determine all
offences, except treason and felony, against any statute in force,
without a jury, upon information in the king's name.[17] This serious
innovation had evidently been prompted by the spirit of rapacity, which
probably some honest juries had shown courage enough to withstand. It
was a much less laudable concession to the vindictive temper of an
injured people, seldom unwilling to see bad methods employed in
punishing bad men, that Empson and Dudley, who might perhaps by
stretching the prerogative have incurred the penalties of a misdemeanor,
were put to death on a frivolous charge of high treason.[18]
_Taxes demanded by Henry VIII._--The demands made by Henry VIII. on
parliament were considerable both in frequency and amount.
Notwithstanding the servility of those times, they sometimes attempted
to make a stand against these inroads upon the public purse. Wolsey came
into the House of Commons in 1523, and asked for L800,000, to be raised
by a tax of one-fifth upon lands and goods, in order to prosecute the
war just commenced against France. Sir Thomas More, then speaker, is
said to have urged the House to acquiesce.[19] But the sum demanded was
so much beyond any precedent, that all the independent members opposed a
vigorous resistance. A committee was appointed to remonstrate with the
cardinal, and to set forth the impossibility of raising such a subsidy.
It was alleged that it exceeded all the current coin of the kingdom.
Wolsey, after giving an uncivil answer to the committee, came down again
to the House, on pretence of reasoning with them, but probably with a
hope of carrying his end by intimidation. They received him, at More's
suggestion, with all the train of attendants that usually encircled the
haughtiest subject who had ever been known in England. But they made no
other answer to his harangue than that it was their usage to debate only
among themselves. These debates lasted fifteen or sixteen days. A
considerable part of the Commons appears to have consisted of the king's
household officers, whose influence, with the utmost difficulty,
obtained a grant much inferior to the cardinal's requisition, and
payable by instalments in four years. But Wolsey, greatly dissatisfied
with this imperfect obedience, compelled the people to pay up the whole
subsidy at once.[20]
_Illegal exactions of Wolsey in 1522 and 1525._--No parliament was
assembled for nearly seven years after this time. Wolsey had already
resorted to more arbitrary methods of raising money by loans and
benevolences.[21] The year before this debate in the Commons, he
borrowed twenty thousand pounds of the city of London; yet so
insufficient did that appear for the king's exigencies, that within two
months commissioners were appointed throughout the kingdom to swear
every man to the value of his possessions, requiring a rateable part
according to such declaration. The clergy, it is said, were expected to
contribute a fourth; but I believe that benefices above ten pounds in
yearly value were taxed at one-third. Such unparalleled violations of
the clearest and most important privilege that belonged to Englishmen
excited a general apprehension.[22] Fresh commissioners however were
appointed in 1525, with instructions to demand the sixth part of every
man's substance, payable in money, plate, or jewels, according to the
last valuation.[23] This demand Wolsey made in person to the mayor and
chief citizens of London. They attempted to remonstrate, but were warned
to beware, lest "it might fortune to cost some their heads." Some were
sent to prison for hasty words, to which the smart of injury incited
them. The clergy, from whom, according to usage, a larger measure of
contribution was demanded, stood upon their privilege to grant their
money only in convocation, and denied the right of a king of England to
ask any man's money without authority of parliament. The rich and poor
agreed in cursing the cardinal as the subverter of their laws and
liberties; and said "if men should give their goods by a commission,
then it would be worse than the taxes of France, and England should be
bond, and not free."[24] Nor did their discontent terminate in
complaints. The commissioners met with forcible opposition in several
counties, and a serious insurrection broke out in Suffolk. So menacing a
spirit overawed the proud tempers of Henry and his minister, who found
it necessary not only to pardon all those concerned in these tumults,
but to recede altogether upon some frivolous pretexts from the illegal
exaction, revoking the commissions and remitting all sums demanded under
them. They now resorted to the more specious request of a voluntary
benevolence. This also the citizens of London endeavoured to repel, by
alleging the statute of Richard III. But it was answered that he was an
usurper, whose acts did not oblige a lawful sovereign. It does not
appear whether or not Wolsey was more successful in this new scheme;
but, generally, rich individuals had no remedy but to compound with the
government.
No very material attempt had been made since the reign of Edward III. to
levy a general imposition without consent of parliament, and in the most
remote and irregular times it would be difficult to find a precedent for
so universal and enormous an exaction; since tallages, however
arbitrary, were never paid by the barons or freeholders, nor by their
tenants; and the aids to which they were liable were restricted to
particular cases. If Wolsey therefore could have procured the
acquiescence of the nation under this yoke, there would probably have
been an end of parliaments for all ordinary purposes; though, like the
States General of France, they might still be convoked to give weight
and security to great innovations. We cannot indeed doubt that the
unshackled condition of his friend, though rival, Francis I., afforded
a mortifying contrast to Henry. Even under his tyrannical administration
there was enough to distinguish the king of a people who submitted in
murmuring to violations of their known rights, from one whose subjects
had almost forgotten that they ever possessed any. But the courage and
love of freedom natural to the English commons, speaking in the hoarse
voice of tumult, though very ill supported by their superiors, preserved
us in so great a peril.[25]
_Acts of parliament releasing the king from his debts._--If we justly
regard with detestation the memory of those ministers who have aimed at
subverting the liberties of their country, we shall scarcely approve the
partiality of some modern historians towards Cardinal Wolsey; a
partiality, too, that contradicts the general opinion of his
contemporaries. Haughty beyond comparison, negligent of the duties and
decorums of his station, profuse as well as rapacious, obnoxious alike
to his own order and to the laity, his fall had long been secretly
desired by the nation and contrived by his adversaries. His generosity
and magnificence seem rather to have dazzled succeeding ages than his
own. But, in fact, his best apology is the disposition of his master.
The latter years of Henry's reign were far more tyrannical than those
during which he listened to the counsels of Wolsey; and though this was
principally owing to the peculiar circumstances of the latter period, it
is but equitable to allow some praise to a minister for the mischief
which he may be presumed to have averted. Had a nobler spirit animated
the parliament which met at the era of Wolsey's fall, it might have
prompted his impeachment for gross violations of liberty. But these were
not the offences that had forfeited his prince's favour, or that they
dared bring to justice. They were not absent perhaps from the
recollection of some of those who took a part in prosecuting the fallen
minister. I can discover no better apology for Sir Thomas More's
participation in impeaching Wolsey on articles so frivolous that they
have served to redeem his fame with later times, than his knowledge of
weightier offences against the common weal which could not be alleged,
and especially the commissions of 1525.[26] But in truth this
parliament showed little outward disposition to object any injustice of
such a kind to the cardinal. They professed to take upon themselves to
give a sanction to his proceedings, as if in mockery of their own and
their country's liberties. They passed a statute, the most extraordinary
perhaps of those strange times, wherein "they do, for themselves and all
the whole body of the realm which they represent, freely, liberally, and
absolutely, give and grant unto the king's highness, by authority of
this present parliament, all and every sum and sums of money which to
them and every of them, is, ought, or might be due, by reason of any
money, or any other thing, to his grace at any time heretofore advanced
or paid by way of trust or loan, either upon any letter or letters under
the king's privy seal, general or particular, letter missive, promise
bond, or obligation of repayment, or by any taxation or other assessing,
by virtue of any commission or commissions, or by any other mean or
means, whatever it be, heretofore, passed for that purpose."[27] This
extreme servility and breach of trust naturally excited loud murmurs;
for the debts thus released had been assigned over by many to their own
creditors, and having all the security both of the king's honour and
legal obligation, were reckoned as valid as any other property. It is
said by Hall, that most of this House of Commons held offices under the
Crown. This illaudable precedent was remembered in 1544, when a similar
act passed, releasing to the king all monies borrowed by him since 1542,
with the additional provision, that if he should have already discharged
any of these debts, the party or his heirs should repay his majesty.[28]
_A benevolence again exacted._--Henry had once more recourse, about
1545, to a general exaction, miscalled benevolence. The council's
instructions to the commissioners employed in levying it leave no doubt
as to its compulsory character. They were directed to incite all men to
a loving contribution according to the rates of their substance, as they
were assessed at the last subsidy, calling on no one whose lands were of
less value than 40_s._ or whose chattels were less than L15. It is
intimated that the least which his majesty could reasonably accept would
be twenty pence in the pound, on the yearly value of land, and half that
sum on movable goods. They are to summon but a few to attend at one
time, and to commune with every one apart, "lest some one unreasonable
man, amongst so many, forgetting his duty towards God, his sovereign
lord, and his country, may go about by his malicious frowardness to
silence all the rest, be they never so well disposed." They were to use
"good words and amiable behaviour," to induce men to contribute, and to
dismiss the obedient with thanks. But if any person should withstand
their gentle solicitations, alleging either poverty or some other
pretence which the commissioners should deem unfit to be allowed, then
after failure of persuasions and reproaches for ingratitude, they were
to command his attendance before the privy council, at such time as they
should appoint, to whom they were to certify his behaviour, enjoining
him silence in the meantime, that his evil example might not corrupt the
better disposed.[29]
It is only through the accidental publication of some family papers,
that we have become acquainted with this document, so curiously
illustrative of the government of Henry VIII. From the same authority
may be exhibited a particular specimen of the consequences that awaited
the refusal of this benevolence. One Richard Reed, an alderman of
London, had stood alone, as is said, among his fellow-citizens, in
refusing to contribute. It was deemed expedient not to overlook this
disobedience; and the course adopted in pursuing it is somewhat
remarkable. The English army was then in the field on the Scots border.
Reed was sent down to serve as a soldier at his own charge; and the
general, Sir Ralph Ewer, received intimations to employ him on the
hardest and most perilous duty, and subject him, when in garrison, to
the greatest privations, that he might feel the smart of his folly and
sturdy disobedience. "Finally," the letter concludes, "you must use him
in all things according to the sharpe disciplyne militar of the northern
wars."[30] It is natural to presume that few would expose themselves to
the treatment of this unfortunate citizen; and that the commissioners,
whom we find appointed two years afterwards in every county, to obtain
from the king's subjects as much as they would willingly give, if they
did not always find perfect readiness, had not to complain of many
peremptory denials.[31]
_Severe and unjust executions for treason._--Such was the security that
remained against arbitrary taxation under the two Henries. Were men's
lives better protected from unjust measures, and less at the mercy of a
jealous court? It cannot be necessary to expatiate very much on this
subject in a work that supposes the reader's acquaintance with the
common facts of our history; yet it would leave the picture too
imperfect, were I not to recapitulate the more striking instances of
sanguinary injustice that have cast so deep a shade over the memory of
these princes.
_Earl of Warwick._--The Duke of Clarence, attainted in the reign of his
brother Edward IV., left one son, whom his uncle restored to the title
of Earl of Warwick. This boy, at the accession of Henry VII., being then
about twelve years old, was shut up in the Tower. Fifteen years of
captivity had elapsed, when, if we trust to the common story, having
unfortunately become acquainted with his fellow-prisoner Perkin Warbeck,
he listened to a scheme for their escape, and would probably not have
been averse to second the ambitious views of that young man. But it was
surmised, with as much likelihood as the character of both parties could
give it, that the king had promised Ferdinand of Aragon to remove the
Earl of Warwick out of the way, as the condition of his daughter's
marriage with the Prince of Wales, and the best means of securing their
inheritance. Warwick accordingly was brought to trial for a conspiracy
to overturn the government; which he was induced to confess, in the
hope, as we must conceive, and perhaps with an assurance, of pardon, and
was immediately executed.
_Earl of Suffolk._--The nearest heir to the house of York, after the
queen and her children, and the descendants of the Duke of Clarence,
was a son of Edward IV.'s sister, the Earl of Suffolk, whose elder
brother, the Earl of Lincoln, had joined in the rebellion of Lambert
Simnel, and perished at the battle of Stoke. Suffolk, having killed a
man in an affray, obtained a pardon which the king compelled him to
plead in open court at his arraignment. This laudable impartiality is
said to have given him offence, and provoked his flight into the
Netherlands; whence, being a man of a turbulent disposition, and
partaking in the hatred of his family towards the house of Lancaster, he
engaged in a conspiracy with some persons at home, which caused him to
be attainted of treason. Some time afterwards, the Archduke Philip,
having been shipwrecked on the coast of England, found himself in a sort
of honourable detention at Henry's court. On consenting to his
departure, the king requested him to send over the Earl of Suffolk; and
Philip, though not insensible to the breach of hospitality exacted from
him, was content to satisfy his honour by obtaining a promise that the
prisoner's life should be spared. Henry is said to have reckoned this
engagement merely personal, and to have left as a last injunction to his
successor, that he should carry into effect the sentence against
Suffolk. Though this was an evident violation of the promise in its
spirit, yet Henry VIII., after the lapse of a few years, with no new
pretext, caused him to be executed.
_Duke of Buckingham._--The Duke of Buckingham, representing the ancient
family of Stafford, and hereditary high constable of England, stood the
first in rank and consequence, perhaps in riches, among the nobility.
But being too ambitious and arrogant for the age in which he was born,
he drew on himself the jealousy of the king, and the resentment of
Wolsey. The evidence, on his trial for high treason, was almost entirely
confined to idle and vaunting language, held with servants who betrayed
his confidence, and soothsayers whom he had believed. As we find no
other persons charged as parties with him, it seems manifest that
Buckingham was innocent of any real conspiracy. His condemnation not
only gratified the cardinal's revenge, but answered a very constant
purpose of the Tudor government, that of intimidating the great
families, from whom the preceding dynasty had experienced so much
disquietude.[32]
_New treasons created by statutes._--The execution, however, of Suffolk
was at least not contrary to law; and even Buckingham was attainted on
evidence which, according to the tremendous latitude with which the law
of treason had been construed, a court of justice could not be expected
to disregard. But after the fall of Wolsey, and Henry's breach with the
Roman see, his fierce temper, strengthened by habit and exasperated by
resistance, demanded more constant supplies of blood; and many perished
by sentences which we can hardly prevent ourselves from considering as
illegal, because the statutes to which they might be conformable seem,
from their temporary duration, their violence, and the passiveness of
the parliaments that enacted them, rather like arbitrary invasions of
the law than alterations of it. By an act of 1534, not only an oath was
imposed to maintain the succession in the heirs of the king's second
marriage, in exclusion of the Princess Mary; but it was made high
treason to deny that ecclesiastical supremacy of the Crown, which, till
about two years before, no one had ever ventured to assert. Bishop
Fisher, the most inflexibly honest churchman who filled a high station
in that age, was beheaded for this denial. Sir Thomas More, whose name
can ask no epithet, underwent a similar fate. He had offered to take the
oath to maintain the succession, which, as he justly said, the
legislature was competent to alter; but prudently avoided to give an
opinion as to the supremacy, till Rich, solicitor-general, and
afterwards chancellor, elicited, in a private conversation, some
expressions, which were thought sufficient to bring him within the fangs
of the recent statute. A considerable number of less distinguished
persons, chiefly ecclesiastical, were afterwards executed by virtue of
this law.
The sudden and harsh innovations made by Henry in religion, as to which
every artifice of concealment and delay is required, his destruction of
venerable establishments, his tyranny over the recesses of the
conscience, excited so dangerous a rebellion in the north of England,
that his own general, the Duke of Norfolk, thought it absolutely
necessary to employ measures of conciliation.[33] The insurgents laid
down their arms, on an unconditional promise of amnesty. But another
rising having occurred in a different quarter, the king made use of this
pretext to put to death some persons of superior rank, who, though they
had, voluntarily or by compulsion, partaken in the first rebellion, had
no concern in the second, and to let loose military law upon their
followers. Nor was his vengeance confined to those who had evidently
been guilty of these tumults. It is, indeed, unreasonable to deny that
there might be, nay, there probably were, some real conspirators among
those who suffered on the scaffolds of Henry. Yet in the processes
against the Countess of Salisbury, an aged woman, but obnoxious as the
daughter of the Duke of Clarence and mother of Reginald Pole, an active
instrument of the pope in fomenting rebellion,[34] against the abbots of
Reading and Glastonbury, and others who were implicated in charges of
treason at this period, we find so much haste, such neglect of judicial
forms, and so blood-thirsty a determination to obtain convictions, that
we are naturally tempted to reckon them among the victims of revenge or
rapacity.
_Cromwell._--It was, probably, during these prosecutions that Cromwell,
a man not destitute of liberal qualities, but who is liable to the one
great reproach of having obeyed too implicitly a master whose commands
were crimes, inquired of the judges whether, if parliament should
condemn a man to die for treason without hearing him, the attainder
could ever be disputed. They answered that it was a dangerous question,
and that parliament should rather set an example to inferior courts for
proceeding according to justice. But being pressed to reply by the
king's express commandment, they said that an attainder in parliament,
whether the party had been heard or not in his defence, could never be
reversed in a court of law. No proceedings, it is said, took place
against the person intended, nor is it known who he was.[35] But men
prone to remark all that seems an appropriate retribution of Providence,
took notice that he, who had thus solicited the interpreters of the law
to sanction such a violation of natural justice, was himself its
earliest example. In the apparent zenith of favour, this able and
faithful minister, the king's viceregent in his ecclesiastical
supremacy, and recently created Earl of Essex, fell so suddenly, and so
totally without offence, that it has perplexed some writers to assign
the cause. But there seems little doubt that Henry's dissatisfaction
with his fourth wife, Anne of Cleves, whom Cromwell had recommended,
alienated his selfish temper, and inclined his ear to the whisperings of
those courtiers who abhorred the favourite and his measures. An act
attainting him of treason and heresy was hurried through parliament,
without hearing him in his defence.[36] The charges, indeed, at least of
the first kind, were so ungrounded, that had he been permitted to refute
them, his condemnation, though not less certain, might, perhaps, have
caused more shame. This precedent of sentencing men unheard, by means of
an act of attainder, was followed in the case of Dr. Barnes, burned not
long afterwards for heresy.
_Duke of Norfolk._--The Duke of Norfolk had been, throughout Henry's
reign, one of his most confidential ministers. But as the king
approached his end, an inordinate jealousy of great men, rather than
mere caprice, appears to have prompted the resolution of destroying the
most conspicuous family in England. Norfolk's son, too, the Earl of
Surrey, though long a favourite with the king, possessed more talents
and renown, as well as a more haughty spirit, than was compatible with
his safety. A strong party at court had always been hostile to the Duke
of Norfolk; and his ruin was attributed especially to the influence of
the two Seymours. No accusations could be more futile than those who
sufficed to take away the life of the noblest and most accomplished man
in England. Surrey's treason seems to have consisted chiefly in
quartering the royal arms in his escutcheon; and this false heraldry, if
such it were, must have been considered as evidence of meditating the
king's death. His father ignominiously confessed the charges against
himself, in a vain hope of mercy from one who knew not what it meant. An
act of attainder (for both houses of parliament were commonly made
accessary to the legal murders of this reign) was passed with much
haste, and perhaps irregularly; but Henry's demise ensuing at the
instant, prevented the execution of Norfolk. Continuing in prison during
Edward's reign, he just survived to be released and restored in blood
under Mary.
_Anne Boleyn._--Among the victims of this monarch's ferocity, as we
bestow most of our admiration on Sir Thomas More, so we reserve our
greatest pity for Anne Boleyn. Few, very few, have in any age hesitated
to admit her innocence.[37] But her discretion was by no means
sufficient to preserve her steps on that dizzy height, which she had
ascended with more eager ambition than feminine delicacy could approve.
Henry was probably quick-sighted enough to perceive that he did not
possess her affections; and his own were soon transferred to another
object. Nothing in this detestable reign is worse than her trial. She
was indicted, partly upon the statute of Edward III., which, by a just
though rather technical construction, has been held to extend the guilt
of treason to an adulterous queen as well as to her paramour, and partly
on the recent law for preservation of the succession, which attached the
same penalties to anything done or said in slander of the king's issue.
Her levities in discourse were brought within this strange act by a
still more strange interpretation. Nor was the wounded pride of the king
content with her death. Under the fear, as is most likely, of a more
cruel punishment, which the law affixed to her offence, Anne was induced
to confess a pre-contract with Lord Percy, on which her marriage with
the king was annulled by an ecclesiastical sentence, without awaiting
its certain dissolution by the axe.[38] Henry seems to have thought his
honour too much sullied by the infidelity of a lawful wife. But for
this destiny he was yet reserved. I shall not impute to him as an act of
tyranny the execution of Catherine Howard, since it appears probable
that the licentious habits of that young woman had continued after her
marriage; and though we might not in general applaud the vengeance of a
husband who should put a guilty wife to death, it could not be expected
that Henry VIII. should lose so reasonable an opportunity of shedding
blood.[39] It was after the execution of this fifth wife that the
celebrated law was enacted, whereby any woman whom the king should marry
as a virgin incurred the penalties of treason, if she did not previously
reveal any failings that had disqualified her for the service of
Diana.[40]
_Fresh statutes enacting the penalties of treason._--These parliamentary
attainders, being intended rather as judicial than legislative
proceedings, were violations of reason and justice in the application of
law. But many general enactments of this reign bear the same character
of servility. New political offences were created in every parliament,
against which the severest penalties were denounced. The nation had
scarcely time to rejoice in the termination of those long debates
between the houses of York and Lancaster, when the king's divorce, and
the consequent illegitimacy of his eldest daughter, laid open the
succession to fresh questions. It was needlessly unnatural and unjust to
bastardise the Princess Mary, whose title ought rather to have had the
confirmation of parliament. But Henry, who would have deemed so moderate
a proceeding injurious to his cause in the eyes of Europe, and a sort of
concession to the adversaries of the divorce, procured an act settling
the crown on his children by Anne or any subsequent wife. Any person
disputing the lawfulness of the king's second marriage might, by the
sort of construction that would be put on this act, become liable to the
penalties of treason. In two years more this very marriage was annulled
by sentence; and it would perhaps have been treasonable to assert the
Princess Elizabeth's legitimacy. The same punishment was enacted against
such as should marry without licence under the great seal, or have a
criminal intercourse with any of the king's children "lawfully born, or
otherwise commonly reputed to be his children, or his sister, aunt, or
niece."[41]
_Act giving proclamations the force of law._--Henry's two divorces had
created an uncertainty as to the line of succession, which parliament
endeavoured to remove, not by such constitutional provisions in
concurrence with the Crown as might define the course of inheritance,
but by enabling the king, on failure of issue by Jane Seymour or any
other lawful wife, to make over and bequeath the kingdom to any persons
at his pleasure, not even reserving a preference to the descendants of
former sovereigns.[42] By a subsequent statute, the Princesses Mary and
Elizabeth were nominated in the entail, after the king's male issue,
subject, however, to such conditions as he should declare, by
non-compliance with which their right was to cease.[43] This act still
left it in his power to limit the remainder at his discretion. In
execution of this authority, he devised the crown, upon failure of issue
from his three children, to the heirs of the body of Mary Duchess of
Suffolk, the younger of his two sisters; postponing at least, if not
excluding, the royal family of Scotland, descended from his elder sister
Margaret. In surrendering the regular laws of the monarchy to one man's
caprice, this parliament became accessary, so far as in it lay, to
dispositions which might eventually have kindled the flames of civil
war. But it seemed to aim at inflicting a still deeper injury on future
generations, in enacting that a king, after he should have attained the
age of twenty-four years, might repeal any statutes made since his
accession.[44] Such a provision not only tended to annihilate the
authority of a regency, and to expose the kingdom to a sort of
anarchical confusion during its continuance, but seemed to prepare the
way for a more absolute power of abrogating all acts of the legislature.
Three years afterwards it was enacted that proclamations made by the
king and council, under penalty of fine and imprisonment, should have
the force of statutes, so that they should not be prejudicial to any
person's inheritance, offices, liberties, goods, and chattels, or
infringe the established laws. This has been often noticed as an
instance of servile compliance. It is, however, a striking testimony to
the free constitution it infringed, and demonstrates that the
prerogative could not soar to the heights it aimed at, till thus imped
by the perfidious hand of parliament. It is also to be observed, that
the power given to the king's proclamations is considerably limited.[45]
A government administered with so frequent violations not only of the
chartered privileges of Englishmen, but of those still more sacred
rights which natural law has established, must have been regarded, one
would imagine, with just abhorrence, and earnest longings for a change.
Yet contemporary authorities by no means answer to this expectation.
Some mention Henry after his death in language of eulogy; and, if we
except those whom attachment to the ancient religion had inspired with
hatred towards his memory, very few appear to have been aware that his
name would descend to posterity among those of the many tyrants and
oppressors of innocence, whom the wrath of Heaven has raised up, and the
servility of men has endured. I do not indeed believe that he had
really conciliated his people's affection. That perfect fear which
attended him must have cast out love. But he had a few qualities that
deserve esteem, and several which a nation is pleased to behold in its
sovereign. He wanted, or at least did not manifest in any eminent
degree, one usual vice of tyrants, dissimulation; his manners were
affable, and his temper generous. Though his schemes of foreign policy
were not very sagacious, and his wars, either with France or Scotland,
productive of no material advantage, they were uniformly successful, and
retrieved the honour of the English name. But the main cause of the
reverence with which our forefathers cherished this king's memory, was
the share he had taken in the Reformation. They saw in him not indeed
the proselyte of their faith, but the subverter of their enemies' power,
the avenging minister of Heaven, by whose giant arm the chain of
superstition had been broken, and the prison gates burst asunder.[46]
_Government of Edward VI.'s counsellors._--The ill-assorted body of
counsellors who exercised the functions of regency by Henry's testament,
were sensible that they had not sinews to wield his iron sceptre, and
that some sacrifice must be made to a nation exasperated as well as
overawed by the violent measures of his reign. In the first session
accordingly of Edward's parliament, the new treasons and felonies which
had been created to please his father's sanguinary disposition, were at
once abrogated.[47] The statute of Edward III. became again the standard
of high treason, except that the denial of the king's supremacy was
still liable to its penalties. The same act, which relieves the subject
from these terrors, contains also a repeal of that which had given
legislative validity to the king's proclamations. These provisions
appear like an elastic recoil of the constitution after the
extraordinary pressure of that despotic reign. But, however they may
indicate the temper of parliament, we must consider them but as an
unwilling and insincere compliance on the part of the government. Henry,
too arrogant to dissemble with his subjects, had stamped the law itself
with the print of his despotism. The more wily courtiers of Edward's
council deemed it less obnoxious to violate than to new-mould the
constitution. For, although proclamations had no longer the legal
character of statutes, we find several during Edward's reign enforced by
penalty of fine and imprisonment. Many of the ecclesiastical changes
were first established by no other authority, though afterwards
sanctioned by parliament. Rates were thus fixed for the price of
provisions; bad money was cried down, with penalties on those who should
buy it under a certain value, and the melting of the current coin
prohibited on pain of forfeiture.[48] Some of these might possibly have
a sanction from precedent, and from the acknowledged prerogative of the
crown in regulating the coin. But no legal apology can be made for a
proclamation in April 1549, addressed to all justices of the peace,
enjoining them to arrest sowers and tellers abroad of vain and forged
tales and lies, and to commit them to the galleys, there to row in
chains as slaves during the king's pleasure.[49] One would imagine that
the late statute had been repealed, as too far restraining the royal
power, rather than as giving it an unconstitutional extension.
_Attainder of Lord Seymour._--It soon became evident that, if the new
administration had not fully imbibed the sanguinary spirit of their late
master, they were as little scrupulous in bending the rules of law and
justice to their purpose in cases of treason. The Duke of Somerset,
nominated by Henry only as one of his sixteen executors, obtained almost
immediately afterwards a patent from the young king, who during his
minority was certainly not capable of any valid act, constituting him
sole regent under the name of protector, with the assistance indeed of
the rest as his counsellors, but with the power of adding any others to
their number. Conscious of his own usurpation, it was natural for
Somerset to dread the aspiring views of others; nor was it long before
he discovered a rival in his brother, Lord Seymour of Sudeley, whom,
according to the policy of that age, he thought it necessary to destroy
by a bill of attainder. Seymour was apparently a dangerous and
unprincipled man; he had courted the favour of the young king by small
presents of money, and appears beyond question to have entertained a
hope of marrying the Princess Elizabeth, who had lived much in his house
during his short union with the queen dowager. It was surmised that this
lady had been poisoned to make room for a still nobler consort.[50] But
in this there could be no treason; and it is not likely that any
evidence was given which could have brought him within the statute of
Edward III. In this prosecution against Lord Seymour, it was thought
expedient to follow the very worst of Henry's precedents, by not hearing
the accused in his defence. The bill passed through the upper house, the
natural guardian of a peer's life and honour, without one dissenting
voice. The Commons addressed the king that they might hear the
witnesses, and also the accused. It was answered that the king did not
think it necessary for them to hear the latter, but that those who had
given their depositions before the Lords might repeat their evidence
before the lower house. It rather appears that the Commons did not
insist on this any farther; but the bill of attainder was carried with a
few negative voices.[51] How striking a picture it affords of the
sixteenth century, to behold the popular and well-natured Duke of
Somerset, more estimable at least than any statesman employed under
Edward, not only promoting this unjust condemnation of his brother, but
signing the warrant under which he was beheaded!
_Attainder of Duke of Somerset._--But it was more easy to crush a single
competitor, than to keep in subjection the subtle and daring spirits
trained in Henry's councils, and jealous of the usurpation of an equal.
The protector, attributing his success, as is usual with men in power,
rather to skill than fortune, and confident in the two frailest supports
that a minister can have, the favour of a child and of the lower people,
was stripped of his authority within a few months after the execution of
Lord Seymour, by a confederacy which he had neither the discretion to
prevent, nor the firmness to resist. Though from this time but a
secondary character upon the public stage, he was so near the throne as
to keep alive the suspicions of the Duke of Northumberland, who, with no
ostensible title, had become not less absolute than himself. It is not
improbable that Somerset was innocent of the charge imputed to him,
namely, a conspiracy to murder some of the privy councillors, which had
been erected into felony by a recent statute; but the evidence, though
it may have been false, does not seem legally insufficient. He demanded
on his trial to be confronted with the witnesses; a favour rarely
granted in that age to state criminals, and which he could not very
decently solicit after causing his brother to be condemned unheard.
Three lords, against whom he was charged to have conspired, sat upon his
trial; and it was thought a sufficient reply to his complaints of this
breach of a known principle, that no challenge could be allowed in the
case of a peer.
From this designing and unscrupulous oligarchy no measure conducive to
liberty and justice could be expected to spring. But among the Commons
there must have been men, although their names have not descended to us,
who, animated by a purer zeal for these objects, perceived on how
precarious a thread the life of every man was suspended, when the
private deposition of one suborned witness, unconfronted with the
prisoner, could suffice to obtain a conviction in cases of treason. In
the worst period of Edward's reign, we find inserted in a bill creating
some new treasons, one of the most important constitutional provisions
which the annals of the Tudor family afford. It is enacted, that "no
person shall be indicted for any manner of treason, except on the
testimony of two lawful witnesses, who shall be brought in person before
the accused at the time of his trial, to avow and maintain what they
have to say against him, unless he shall willingly confess the
charges."[52] This salutary provision was strengthened, not taken away,
as some later judges ventured to assert, by an act in the reign of Mary.
In a subsequent part of this work, I shall find an opportunity for
discussing this important branch of constitutional law.
_Violence of Mary's reign._--It seems hardly necessary to mention the
momentary usurpation of Lady Jane Grey, founded on no pretext of title
which could be sustained by any argument. She certainly did not obtain
that degree of actual possession which might have sheltered her
adherents under the statute of Henry VII.; nor did the Duke of
Northumberland allege this excuse on his trial, though he set up one of
a more technical nature, that the great seal was a sufficient protection
for acts done by its authority.[53] The reign that immediately followed
is chiefly remembered as a period of sanguinary persecution; but though
I reserve for the next chapter all mention of ecclesiastical disputes,
some of Mary's proceedings in re-establishing popery belong to the civil
history of our constitution. Impatient, under the existence, for a
moment, of rites and usages which she abhorred, this bigoted woman
anticipated the legal authority which her parliament was ready to
interpose for their abrogation; the Latin liturgy was restored, the
married clergy expelled from their livings, and even many protestant
ministers thrown into prison for no other crime than their religion,
before any change had been made in the established laws.[54] The queen,
in fact, and those around her, acted and felt as a legitimate
government restored after an usurpation, and treated the recent statutes
as null and invalid. But even in matters of temporal government, the
stretches of prerogative were more violent and alarming than during her
brother's reign. It is due indeed to the memory of one who has left so
odious a name, to remark that Mary was conscientiously averse to
encroach upon what she understood to be the privileges of her people. A
wretched book having been written to exalt her prerogative, on the
ridiculous pretence that, as a queen, she was not bound by the laws of
former kings, she showed it to Gardiner, and on his expressing
indignation at the sophism, threw it herself into the fire. An act
passed, however, to settle such questions, which declares the queen to
have all the lawful prerogatives of the Crown.[55] But she was
surrounded by wicked counsellors, renegades of every faith and ministers
of every tyranny. We must, in candour, attribute to their advice her
arbitrary measures, though not her persecution of heresy, which she
counted for virtue. She is said to have extorted loans from the citizens
of London, and others of her subjects.[56] This, indeed, was not more
than had been usual with her predecessors. But we find one clear
instance during her reign of a duty upon foreign cloth, imposed without
assent of parliament; an encroachment unprecedented since the reign of
Richard II. Several proofs might be adduced from records of arbitrary
inquests for offences, and illegal modes of punishment. The torture is,
perhaps, more frequently mentioned in her short reign than in all former
ages of our history put together; and probably from that imitation of
foreign governments, which contributed not a little to deface our
constitution in the sixteenth century, seems deliberately to have been
introduced as part of the process in those dark and uncontrolled
tribunals which investigated offences against the state.[57] A
commission issued in 1557, authorising the persons named in it to
enquire, by any means they could devise, into charges of heresy or
other religious offences, and in some instances to punish the guilty, in
others of a graver nature to remit them to their ordinaries, seems (as
Burnet has well observed) to have been meant as a preliminary step to
bringing in the inquisition. It was at least the germ of the
high-commission court in the next reign.[58] One proclamation, in the
last year of her inauspicious administration, may be deemed a flight of
tyranny beyond her father's example; which, after denouncing the
importation of books filled with heresy and treason from beyond sea,
proceeds to declare that whoever should be found to have such books in
his possession should be reputed and taken for a rebel, and executed
according to martial law.[59] This had been provoked as well by a
violent libel written at Geneva by Goodman, a refugee, exciting the
people to dethrone the queen; as by the recent attempt of one Stafford,
a descendant of the house of Buckingham, who, having landed with a small
force at Scarborough, had vainly hoped that the general disaffection
would enable him to overthrow her government.[60]
_The House of Commons recovers part of its independent power in these
two reigns._--Notwithstanding, however, this apparently uncontrolled
career of power, it is certain that the children of Henry VIII. did not
preserve his almost absolute dominion over parliament. I have only met
with one instance in his reign where the Commons refused to pass a bill
recommended by the Crown. This was in 1532; but so unquestionable were
the legislative rights of parliament, that, although much displeased,
even Henry was forced to yield.[61] We find several instances during the
reign of Edward, and still more in that of Mary, where the Commons
rejected bills sent down from the upper house; and though there was
always a majority of peers for the government, yet the dissent of no
small number is frequently recorded in the former reign. Thus the
Commons not only threw out a bill creating several new treasons, and
substituted one of a more moderate nature, with that memorable clause
for two witnesses to be produced in open court, which I have already
mentioned;[62] but rejected one attainting Tunstal Bishop of Durham for
misprision of treason, and were hardly brought to grant a subsidy.[63]
Their conduct in the two former instances, and probably in the third,
must be attributed to the indignation that was generally felt at the
usurped power of Northumberland, and the untimely fate of Somerset.
Several cases of similar unwillingness to go along with court measures
occurred under Mary. She dissolved, in fact, her two first parliaments
on this account. But the third was far from obsequious, and rejected
several of her favourite bills.[64] Two reasons principally contributed
to this opposition; the one, a fear of entailing upon the country those
numerous exactions of which so many generations had complained, by
reviving the papal supremacy, and more especially of a restoration of
abbey lands; the other, an extreme repugnance to the queen's Spanish
connection.[65] If Mary could have obtained the consent of parliament,
she would have settled the crown on her husband, and sent her sister,
perhaps, to the scaffold.[66]
_Attempt of the court to strengthen itself by creating new
boroughs._--There cannot be a stronger proof of the increased weight of
the Commons during these reigns, than the anxiety of the court to obtain
favourable elections. Many ancient boroughs undoubtedly have at no
period possessed sufficient importance to deserve the elective franchise
on the score of their riches or population; and it is most likely that
some temporary interest or partiality, which cannot now be traced, first
caused a writ to be addressed to them. But there is much reason to
conclude that the counsellors of Edward VI., in erecting new boroughs,
acted upon a deliberate plan of strengthening their influence among the
Commons. Twenty-two boroughs were created or restored in this short
reign; some of them, indeed, places of much consideration, but not less
than seven in Cornwall, and several others that appear to have been
insignificant. Mary added fourteen to the number; and as the same course
was pursued under Elizabeth, we in fact owe a great part of that
irregularity in our popular representation, the advantages or evils of
which we need not here discuss, less to changes wrought by time, than to
deliberate and not very constitutional policy. Nor did the government
scruple a direct and avowed interference with elections. A circular
letter of Edward to all the sheriffs commands them to give notice to the
freeholders, citizens, and burgesses within their respective counties,
"that our pleasure and commandment is, that they shall choose and
appoint, as nigh as they possibly may, men of knowledge and experience
within the counties, cities, and boroughs;" but nevertheless, that where
the privy council should "recommend men of learning and wisdom, in such
case their directions be regarded and followed." Several persons
accordingly were recommended by letters to the sheriffs, and elected as
knights for different shires; all of whom belonged to the court, or were
in places of trust about the king.[67] It appears probable that persons
in office formed at all times a very considerable portion of the House
of Commons. Another circular of Mary before the parliament of 1554,
directing the sheriffs to admonish the electors to choose good catholics
and "inhabitants, as the old laws require," is much less
unconstitutional; but the Earl of Sussex, one of her most active
counsellors, wrote to the gentlemen of Norfolk, and to the burgesses of
Yarmouth, requesting them to reserve their voices for the person he
should name.[68] There is reason to believe that the court, or rather
the imperial ambassador, did homage to the power of the Commons, by
presents of money, in order to procure their support of the unpopular
marriage with Philip;[69] and if Noailles, the ambassador of Henry II.,
did not make use of the same means to thwart the grants of subsidy and
other measures of the administration, he was at least very active in
promising the succour of France, and animating the patriotism of those
unknown leaders of that assembly, who withstood the design of a besotted
woman and her unprincipled counsellors to transfer this kingdom under
the yoke of Spain.[70]
_Causes of the high prerogative of the Tudors._--It appears to be a very
natural enquiry, after beholding the course of administration under the
Tudor line, by what means a government so violent in itself, and so
plainly inconsistent with the acknowledged laws, could be maintained;
and what had become of that English spirit which had not only controlled
such injudicious princes as John and Richard II., but withstood the
first and third Edward in the fulness of their pride and glory. Not,
indeed, that the excesses of prerogative had ever been thoroughly
restrained, or that, if the memorials of earlier ages had been as
carefully preserved as those of the sixteenth century, we might not
possibly find in them equally flagrant instances of oppression; but
still the petitions of parliament and frequent statutes remain on
record, bearing witness to our constitutional law and to the energy that
gave it birth. There had evidently been a retrograde tendency towards
absolute monarchy between the reigns of Henry VI. and Henry VIII. Nor
could this be attributed to the common engine of despotism, a military
force. For, except the yeomen of the guard, fifty in number, and the
common servants of the king's household, there was not, in time of
peace, an armed man receiving pay throughout England.[71] A government
that ruled by intimidation was absolutely destitute of force to
intimidate. Hence risings of the mere commonalty were sometimes highly
dangerous, and lasted much longer than ordinary. A rabble of Cornishmen,
in the reign of Henry VII., headed by a blacksmith, marched up from
their own county to the suburbs of London without resistance. The
insurrections of 1525 in consequence of Wolsey's illegal taxation, those
of the north ten years afterwards, wherein, indeed, some men of higher
quality were engaged, and those which broke out simultaneously in
several counties under Edward VI., excited a well-grounded alarm in the
country; and in the two latter instances were not quelled without much
time and exertion. The reproach of servility and patient acquiescence
under usurped power falls not on the English people, but on its natural
leaders. We have seen, indeed, that the House of Commons now and then
gave signs of an independent spirit, and occasioned more trouble, even
to Henry VIII., than his compliant nobility. They yielded to every
mandate of his imperious will; they bent with every breath of his
capricious humour; they are responsible for the illegal trial, for the
iniquitous attainder, for the sanguinary statute, for the tyranny which
they sanctioned by law, and for that which they permitted to subsist
without law. Nor was this selfish and pusillanimous subserviency more
characteristic of the minions of Henry's favour, the Cromwells, the
Riches, the Pagets, the Russells, and the Powletts, than of the
representatives of ancient and honourable houses, the Norfolks, the
Arundels, and the Shrewsburies. We trace the noble statesmen of those
reigns concurring in all the inconsistencies of their revolutions,
supporting all the religions of Henry, Edward, Mary, and Elizabeth;
adjudging the death of Somerset to gratify Northumberland, and of
Northumberland to redeem their participation in his fault, setting up
the usurpation of Lady Jane, and abandoning her on the first doubt of
success, constant only in the rapacious acquisition of estates and
honours from whatever source, and in adherence to the present power.
_Jurisdiction of the council of star-chamber._--I have noticed in a
former work that illegal and arbitrary jurisdiction exercised by the
council, which, in despite of several positive statutes, continued in a
greater or less degree through all the period of the Plantagenet family,
to deprive the subject, in many criminal charges, of that sacred
privilege, trial by his peers.[72] This usurped jurisdiction, carried
much farther and exercised more vigorously, was the principal grievance
under the Tudors; and the forced submission of our forefathers was
chiefly owing to the terrors of a tribunal, which left them secure from
no infliction but public execution, or actual dispossession of their
freeholds. And, though it was beyond its direct province to pass
sentence on capital charges; yet, by intimidating jurors, it procured
convictions which it was not authorised to pronounce. We are naturally
astonished at the easiness with which verdicts were sometimes given
against persons accused of treason on evidence insufficient to support
the charge in point of law, or in its nature not competent to be
received, or unworthy of belief. But this is explained by the peril that
hung over the jury in case of acquittal. "If," says Sir Thomas Smith, in
his _Treatise on the Commonwealth of England_, "they do pronounce not
guilty upon the prisoner, against whom manifest witness is brought in,
the prisoner escapeth, but the twelve are not only rebuked by the
judges, but also threatened of punishment, and many times commanded to
appear in the star-chamber, or before the privy council, for the matter.
But this threatening chanceth oftener than the execution thereof; and
the twelve answer with most gentle words, they did it according to their
consciences, and pray the judges to be good unto them; they did as they
thought right, and as they accorded all; and so it passeth away for the
most part. Yet I have seen in my time, but not in the reign of the king
now [Elizabeth], that an inquest for pronouncing one not guilty of
treason contrary to such evidence as was brought in, were not only
imprisoned for a space, but a large fine set upon their heads, which
they were fain to pay; another inquest for acquitting another, beside
paying a fine, were put to open ignominy and shame. But these doings
were even then accounted of many for violent, tyrannical, and contrary
to the liberty and custom of the realm of England."[73] One of the
instances to which he alludes was probably that of the jury who
acquitted Sir Nicholas Throckmorton in the second year of Mary. He had
conducted his own defence with singular boldness and dexterity. On
delivering their verdict, the court committed them to prison. Four,
having acknowledged their offence, were soon released; but the rest,
attempting to justify themselves before the council, were sentenced to
pay, some a fine of two thousand pounds, some of one thousand marks; a
part of which seems ultimately to have been remitted.[74]
It is here to be observed that the council of which we have just heard,
or, as Lord Hale denominates it (though rather, I believe, for the sake
of distinction than upon any ancient authority), the king's ordinary
council, was something different from the privy council, with which
several modern writers are apt to confound it; that is, the court of
jurisdiction is to be distinguished from the deliberative body, the
advisers of the Crown. Every privy councillor belonged to the concilium
ordinarium; but the chief justices, and perhaps several others who sat
in the latter (not to mention all temporal and spiritual peers, who, in
the opinion at least of some, had a right of suffrage therein), were not
necessarily of the former body.[75] This cannot be called in question,
without either charging Lord Coke, Lord Hale, and other writers on the
subject, with ignorance of what existed in their own age, or
gratuitously supposing that an entirely novel tribunal sprung up in the
sixteenth century under the name of the star-chamber. It has indeed been
often assumed that a statute enacted early in the reign of Henry VII.
gave the first legal authority to the criminal jurisdiction exercised by
that famous court, which in reality was nothing else but another name
for the ancient concilium regis, of which our records are full, and
whose encroachments so many statutes had endeavoured to repress; a name
derived from the chamber wherein it sat, and which is found in many
precedents before the time of Henry VII., though not so specially
applied to the council of judicature as afterwards.[76] The statute of
this reign has a much more limited operation. I have observed in another
place, that the coercive jurisdiction of the council had great
convenience, in cases where the ordinary course of justice was so much
obstructed by one party, through writs, combinations of maintenance, or
overawing influence, that no inferior court would find its process
obeyed; and that such seem to have been reckoned necessary exceptions
from the statutes which restrain its interference. The act of 3 H. 7,
c. 1 appears intended to place on a lawful and permanent basis the
jurisdiction of the council, or rather a part of the council, over this
peculiar class of offences; and after reciting the combinations
supported by giving liveries, and by indentures or promises, the
partiality of sheriffs in making pannels, and in untrue returns, the
taking of money by juries, the great riots and unlawful assemblies,
which almost annihilated the fair administration of justice, empowers
the chancellor, treasurer, and keeper of the privy seal, or any two of
them, with a bishop and temporal lord of the council, and the chief
justices of king's bench and common pleas, or two other justices in
their absence, to call before them such as offended in the
before-mentioned respects, and to punish them after examination in such
manner as if they had been convicted by course of law. But this statute,
if it renders legal a jurisdiction which had long been exercised with
much advantage, must be allowed to limit the persons in whom it should
reside, and certainly does not convey by any implication more extensive
functions over a different description of misdemeanours. By a later act,
21 H. 8, c. 20, the president of the council is added to the judges of
this court; a decisive proof that it still existed as a tribunal
perfectly distinct from the council itself. But it is not styled by the
name of star-chamber in this, any more than in the preceding statute. It
is very difficult, I believe, to determine at what time the jurisdiction
legally vested in this new court, and still exercised by it forty years
afterwards, fell silently into the hands of the body of the council, and
was extended by them so far beyond the boundaries assigned by law, under
the appellation of the court of star-chamber. Sir Thomas Smith, writing
in the early part of Elizabeth's reign, while he does not advert to the
former court, speaks of the jurisdiction of the latter as fully
established, and ascribes the whole praise (and to a certain degree it
was matter of praise) to Cardinal Wolsey.
The celebrated statute of 31 H. 8, c. 8, which gives the king's
proclamations, to a certain extent, the force of acts of parliament,
enacts that offenders convicted of breaking such proclamations before
certain persons enumerated therein (being apparently the usual officers
of the privy council, together with some bishops and judges), "in the
star-chamber or elsewhere," shall suffer such penalties of fine and
imprisonment as they shall adjudge. "It is the effect of this court,"
Smith says, "to bridle such stout noblemen or gentlemen which would
offer wrong by force to any manner of men, and cannot be content to
demand or defend the right by order of the law. It began long before,
but took augmentation and authority at that time that Cardinal Wolsey,
Archbishop of York, was chancellor of England, who of some was thought
to have first devised that court, because that he, after some
intermission, by negligence of time, augmented the authority of it,[77]
which was at that time marvellous necessary to do to repress the
insolency of the noblemen and gentlemen in the north parts of England,
who being far from the king and the seat of justice, made almost, as it
were, an ordinary war among themselves, and made their force their law,
binding themselves, with their tenants and servants, to do or revenge an
injury one against another as they listed. This thing seemed not
supportable to the noble prince Henry VIII.; and sending for them one
after another to his court, to answer before the persons before named,
after they had remonstrance showed them of their evil demeanour, and
been well disciplined, as well by words as by _fleeting_ [confinement in
the Fleet prison] a while, and thereby their pride and courage somewhat
assuaged, they began to range themselves in order, and to understand
that they had a prince who would rule his subjects by his law and
obedience. Since that time, this court has been in more estimation, and
is continued to this day in manner as I have said before."[78] But as
the court erected by the statute of Henry VII. appears to have been in
activity as late as the fall of Cardinal Wolsey, and exercised its
jurisdiction over precisely that class of offences which Smith here
describes, it may perhaps be more likely that it did not wholly merge in
the general body of the council till the minority of Edward, when that
oligarchy became almost independent and supreme. It is obvious that
most, if not all, of the judges in the court held under that statute
were members of the council; so that it might in a certain sense be
considered as a committee from that body, who had long before been wont
to interfere with the punishment of similar misdemeanours. And the
distinction was so soon forgotten, that the judges of the king's bench
in the 13th of Elizabeth cite a case from the year-book of 8 H. 7 as
"concerning the star-chamber," which related to the limited court
erected by the statute.[79]
In this half-barbarous state of manners we certainly discover an
apology, as well as motive, for the council's interference; for it is
rather a servile worshipping of names than a rational love of liberty,
to prefer the forms of trial to the attainment of justice, or to fancy
that verdicts obtained by violence or corruption are at all less
iniquitous than the violent or corrupt sentences of a court. But there
were many cases wherein neither the necessity of circumstances, nor the
legal sanction of any statute, could excuse the jurisdiction habitually
exercised by the court of star-chamber. Lord Bacon takes occasion from
the act of Henry VII. to descant on the sage and noble institution, as
he terms it, of that court, whose walls had been so often witnesses to
the degradation of his own mind. It took cognisance principally, he
tells us, of four kinds of causes, "forces, frauds, crimes various of
stellionate, and the inchoations or middle acts towards crimes capital
or heinous, not actually committed or perpetrated."[80] Sir Thomas Smith
uses expressions less indefinite than these last; and specifies
scandalous reports of persons in power, and seditious news, as offences
which they were accustomed to punish. We shall find abundant proofs of
this department of their functions in the succeeding reigns. But this
was in violation of many ancient laws, and not in the least supported by
that of Henry VII.[81]
_Influence of the authority of the star-chamber in enhancing the royal
power._--A tribunal so vigilant and severe as that of the star-chamber,
proceeding by modes of interrogatory unknown to the common law, and
possessing a discretionary power of fine and imprisonment, was easily
able to quell any private opposition or contumacy. We have seen how the
council dealt with those who refused to lend money by way of
benevolence, and with the juries who found verdicts that they
disapproved. Those that did not yield obedience to their proclamations
were not likely to fare better. I know not whether menaces were used
towards members of the Commons who took part against the Crown; but it
would not be unreasonable to believe it, or at least that a man of
moderate courage would scarcely care to expose himself to the resentment
which the council might indulge after a dissolution. A knight was sent
to the Tower by Mary, for his conduct in parliament;[82] and Henry VIII.
is reported, not perhaps on very certain authority, to have talked of
cutting off the heads of refractory commoners.
In the persevering struggles of earlier parliaments against Edward III.,
Richard II., and Henry IV., it is a very probable conjecture, that many
considerable peers acted in union with, and encouraged the efforts of,
the Commons. But in the period now before us, the nobility were
precisely the class most deficient in that constitutional spirit, which
was far from being extinct in those below them. They knew what havoc had
been made among their fathers, by multiplied attainders during the
rivalry of the two Roses. They had seen terrible examples of the danger
of giving umbrage to a jealous court, in the fate of Lord Stanley and
the Duke of Buckingham, both condemned on slight evidence of treacherous
friends and servants, from whom no man could be secure. Though rigour
and cruelty tend frequently to overturn the government of feeble
princes, it is unfortunately too true that, steadily employed and
combined with vigilance and courage, they are often the safest policy of
despotism. A single suspicion in the dark bosom of Henry VII., a single
cloud of wayward humour in his son, would have been sufficient to send
the proudest peer of England to the dungeon and the scaffold. Thus a
life of eminent services in the field, and of unceasing compliance in
council, could not rescue the Duke of Norfolk from the effects of a
dislike which we cannot even explain. Nor were the nobles of this age
more held in subjection by terror than by the still baser influence of
gain. Our law of forfeiture was well devised to stimulate, as well as
to deter; and Henry VIII., better pleased to slaughter the prey than to
gorge himself with the carcass, distributed the spoils it brought him
among those who had helped in the chase. The dissolution of monasteries
opened a more abundant source of munificence; every courtier, every
peer, looked for an increase of wealth from grants of ecclesiastical
estates, and naturally thought that the king's favour would most readily
be gained by an implicit conformity to his will. Nothing however seems
more to have sustained the arbitrary rule of Henry VIII. than the
jealousy of the two religious parties formed in his time, and who, for
all the latter years of his life, were maintaining a doubtful and
emulous contest for his favour. But this religious contest, and the
ultimate establishment of the Reformation, are events far too important,
even in a constitutional history, to be treated in a cursory manner; and
as, in order to avoid transitions, I have purposely kept them out of
sight in the present chapter, they will form the proper subject of the
next.
FOOTNOTES:
[5] This statute is not even alluded to in Ruffhead's edition, and has
been very little noticed by writers on our law or history. It is printed
in the late edition, published by authority, and is brought forward in
the First Report of the Lords' Committee, on the dignity of a Peer
(1819), p. 282. Nothing can be more evident than that it not only
establishes by a legislative declaration the present constitution of
parliament, but recognises it as already standing upon a custom of some
length of time.
[6] The pleadings, as they are called, or written allegations of both
parties, which form the basis of a judicial enquiry, commence with the
_declaration_, wherein the plaintiff states, either specially, or in
some established form, according to the nature of the case, that he has
a debt to demand from or an injury to be redressed by, the defendant.
The latter, in return, puts in his _plea_; which, if it amount to a
denial of the facts alleged in the declaration, must _conclude to the
country_, that is, must refer the whole matter to a jury. But if it
contain an admission of the fact, along with a legal justification of
it, it is said to _conclude to the court_; the effect of which is to
make it necessary for the plaintiff to reply; in which _replication_ he
may deny the facts pleaded in justification, and conclude to the
country; or allege some new matter in explanation, to show that they do
not meet all the circumstances, concluding to the court. Either party
also may demur, that is, deny that, although true and complete as a
statement of facts, the declaration or plea is sufficient according to
law to found or repel the plaintiff's suit. In the last case it becomes
an issue in law, and is determined by the judges without the
intervention of a jury; it being a principle, that by demurring, the
party acknowledges the truth of all matters alleged on the pleadings.
But in whatever stage of the proceedings either of the litigants
concludes to the country (which he is obliged to do, whenever the
question can be deduced to a disputed fact), a jury must be impanelled
to decide it by their verdict. These pleadings, together with what is
called the _postea_, that is, an indorsement by the clerk of the court
wherein the trial has been, reciting that _afterwards_ the cause was so
tried, and such a verdict returned, with the subsequent entry of the
judgment itself, form the record.
This is merely intended to explain the phrase in the text, which common
readers might not clearly understand. The theory of special pleading, as
it is generally called, could not be further elucidated without
lengthening this note beyond all bounds. But it all rests upon the
ancient maxim: "De facto respondent juratores, de jure judices." Perhaps
it may be well to add one observation--that in many forms of action, and
those of most frequent occurrence in modern times, it is not required to
state the legal justification on the pleadings, but to give it in
evidence on the general issue; that is, upon a bare plea of denial. In
this case the whole matter is actually in the power of the jury. But
they are generally bound in conscience to defer, as to the operation of
any rule of law, to what is laid down on that head by the judge; and
when they disregard his directions, it is usual to annul the verdict,
and grant a new trial. There seem to be some disadvantages in the
annihilation, as it may be called, of written pleadings, by their
reduction to an unmeaning form, which has prevailed in three such
important and extensive forms of action, as _ejectment_, _general_
_assumpsit_, and _trover_; both as it throws too much power into the
hands of the jury, and as it almost nullifies the appellant
jurisdiction, which can only be exercised where some error is apparent
on the face of the record. But great practical convenience, and almost
necessity, has generally been alleged as far more than a compensation
for these evils.
[7] The population for 1485 is estimated by comparing a sort of census
in 1378, when the inhabitants of the realm seem to have amounted to
about 2,300,000, with one still more loose under Elizabeth in 1588,
which would give about 4,400,000; making some allowance for the more
rapid increase in the latter period. Three millions at the accession of
Henry VII. is probably not too low an estimate.
[8] _Rot. Parl._ vi. 270. But the pope's bull of dispensation for the
king's marriage speaks of the realm of England as "jure haereditario ad
te legitimum in illo praedecessorum tuorum successorem pertinens." Rymer,
xii. 294. And all Henry's own instruments claim an hereditary right, of
which many proofs appear in Rymer.
[9] Stat. 11 H. 7, c. 1.
[10] Blackstone (vol. iv. c. 6) has some rather perplexed reasoning on
this statute, leaning a little towards the _de jure_ doctrine, and at
best confounding _moral_ with _legal_ obligations. In the latter sense,
whoever attends to the preamble of the act will see that Hawkins, whose
opinion Blackstone calls in question, is right; and that he is himself
wrong in pretending that "the statute of Henry VII. does by no means
command any opposition to a king _de jure_, but excuses the obedience
paid to a king _de facto_."
[11] For these observations on the statute of Fines, I am principally
indebted to Reeves's _History of the English Law_ (iv. 133), a work,
especially in the latter volumes, of great research and judgment; a
continuation of which, in the same spirit, and with the same qualities
(besides some others that are rather too much wanting in it), would be a
valuable accession not only to the lawyer's, but philosopher's library.
That entails had been defeated by means of a common recovery before the
statute, had been remarked by former writers, and is indeed obvious; but
the subject was never put in so clear a light as by Mr. Reeves.
The principle of breaking down the statute _de donis_ was so little
established, or consistently acted upon, in this reign, that in 11 H. 7
the judges held that the donor of an estate-tail might restrain the
tenant from suffering a recovery. _Id._ p. 159, from the year-book.
[12] It is said by the biographer of Sir Thomas More, that parliament
refused the king a subsidy in 1502, which he demanded on account of the
marriage of his daughter Margaret, at the advice of More, then but
twenty-two years old. "Forthwith Mr. Tyler, one of the privy chamber,
that was then present, resorted to the king, declaring that a beardless
boy, called More, had done more harm than all the rest, for by his means
all the purpose is dashed." This of course displeased Henry, who would
not, however, he says, "infringe the ancient liberties of that house,
which would have been odiously taken." Wordsworth's _Eccles. Biography_,
ii. 66. This story is also told by Roper.
[13] Stat. 11 H. 7, c. 10. Bacon says the benevolence was granted by act
of parliament, which Hume shows to be a mistake. The preamble of 11 H. 7
recites it to have been "granted by divers of your subjects severally;"
and contains a provision, that no heir shall be charged on account of
his ancestor's promise.
[14] Hall, 502.
[15] Turner's _History of England_, iii. 628, from a MS. document. A
vast number of persons paid fines for their share in the western
rebellion of 1497, from L200 down to 20_s._ Hall, 486. Ellis's _Letters
illustrative of English History_, i. 38.
[16] 1 H. 8, c. 8.
[17] 2 H. 7, c. 3. Rep. 1 H. 8, c. 6.
[18] They were convicted by a jury, and afterwards attainted by
parliament, but not executed for more than a year after the king's
accession. If we may believe Holingshed, the council at Henry VIII.'s
accession made restitution to some who had been wronged by the extortion
of the late reign;--a singular contrast to their subsequent proceedings!
This, indeed, had been enjoined by Henry VII.'s will. But he had
excepted from this restitution "what had been done by the course and
order of our laws;" which, as Mr. Astle observes, was the common mode of
his oppressions.
[19] Lord Hubert inserts an acute speech, which he seems to ascribe to
More, arguing more acquaintance with sound principles of political
economy than was usual in the supposed speaker's age, or even in that of
the writer. But it is more probable that this is of his own invention.
He has taken a similar liberty on another occasion, throwing his own
broad notions of religion into an imaginary speech of some unnamed
member of the Commons, though manifestly unsuited to the character of
the times. That More gave satisfaction to Wolsey by his conduct in the
chair appears by a letter of the latter to the king, in State Papers,
temp. H. 8, 1630, p. 124.
[20] Roper's _Life of More_; Hall, 656, 672. This chronicler, who wrote
under Edward VI., is our best witness for the events of Henry's reign.
Grafton is so literally a copyist from him, that it was a great mistake
to republish this part of his chronicle in the late expensive, and
therefore incomplete, collection; since he adds no one word, and omits
only a few ebullitions of protestant zeal which he seems to have
considered too warm. Holingshed, though valuable, is later than Hall.
Wolsey, the latter observes, gave offence to the Commons, by descanting
on the wealth and luxury of the nation, "as though he had repined or
disclaimed that any man should fare well, or be well clothed, but
himself."
But the most authentic memorial of what passed on this occasion has been
preserved in a letter from a member of the Commons to the Earl of Surrey
(soon after Duke of Norfolk), at that time the king's lieutenant in the
north.
"Please it your good Lordships to understand, that sithence the
beginning of the Parliament, there hath been the greatest and sorest
hold in the Lower House for the payment of two shillings of the pound,
that ever was seen, I think, in any parliament. This matter hath been
debated, and beaten fifteen or sixteen days together. The highest
necessity alledged on the King's behalf to us, that ever was heard of;
and, on the contrary, the highest poverty confessed, as well by knights,
esquires, and gentlemen of every quarter, as by the commoners, citizens,
and burgesses. There hath been such hold that the House was like to have
been dissevered; that is to say, the knights being of the King's
council, the King's servants and gentlemen of the one party; which in so
long time were spoken with, and made to see, yea, it may fortune,
contrary to their heart, will, and conscience. Thus hanging this matter,
yesterday the more part being the King's servants, gentlemen, were there
assembled; and so they, being the more part, willed and gave to the King
two shillings of the pound of goods or lands, the best to be taken for
the King. All lands to pay two shillings of the pound for the laity, to
the highest. The goods to pay two shillings of the pound, for twenty
pound upward; and from forty shillings of goods, to twenty pound, to pay
sixteen pence of the pound; and under forty shillings, every person to
pay eight pence. This to be paid in two years. I have heard no man in my
life that can remember that ever there was given to any one of the
King's ancestors half so much at one graunt. Nor, I think, there was
never such a president seen before this time. I beseeke Almighty God, it
may be well and peaceably levied, and surely payd unto the King's grace,
without grudge, and especially without loosing the good will and true
hearts of his subjects, which I reckon a far greater treasure for the
King than gold and silver. And the gentlemen that must take pains to
levy this money among the King's subjects, I think, shall have no little
business about the same." Strype's _Eccles. Memorials_, vol. i. p. 49.
This is also printed in Ellis's _Letters illustrative of English
History_, i. 220.
[21] I may notice here a mistake of Mr. Hume and Dr. Lingard. They
assert Henry to have received tonnage and poundage several years before
it was vested in him by the legislature. But it was granted by his first
parliament, stat. 1 H. 8, c. 20, as will be found even in Ruffhead's
table of contents, though not in the body of his volume; and the act is
of course printed at length in the great edition of the statutes. That
which probably by its title gave rise to the error, 6 H. 8, c. 13, has a
different object.
[22] Hall, 645. This chronicler says the laity were assessed at a tenth
part. But this was only so of the smaller estates, namely, from L20 to
L300; for from L300 to L1000 the contribution demanded was twenty marks
for each L100, and for an estate of L1000, two hundred marks, and so in
proportion upwards. MS. Instructions to Commissioners, penes auctorem.
This was, "upon sufficient promise and assurance, to be repaid unto them
upon such grants and contributions as shall be given and granted to his
grace at his next parliament."--_Ib._ "And they shall practise by all
the means to them possible that such sums as shall be so granted by the
way of loan, be forthwith levied and paid, or the most part, or at the
least the moiety thereof, the same to be paid in as brief time after as
they can possibly persuade and induce them unto; showing unto them that,
for the sure payment thereof, they shall have writings delivered unto
them under the king's privy seal by such person or persons as shall be
deputed by the king to receive the said loan, after the form of a minute
to be shown unto them by the said commissioners, the tenor whereof is
thus: We, Henry VIII., by the grace of God, King of England and of
France, Defender of Faith, and Lord of Ireland, promise by these
presents truly to content and repay unto our trusty and well-beloved
subject A. B. the sum of ----, which he hath lovingly advanced unto us
by way of loan, for defence of our realm, and maintenance of our wars
against France and Scotland; In witness whereof we have caused our privy
seal hereunto to be set and annexed the ---- day of ----, the fourteenth
year of our reign."--_Ib._ The rate fixed on the clergy I collect by
analogy, from that imposed in 1525, which I find in another manuscript
letter.
[23] A letter in my possession from the Duke of Norfolk to Wolsey,
without the date of the year, relates, I believe, to this commission of
1525, rather than that of 1522; it being dated on the 10th April, which
appears from the contents to have been before Easter; whereas Easter did
not fall beyond that day in 1523 or 1524, but did so in 1525; and the
first commission, being of the 14th year of the king's reign, must have
sat later than Easter 1522. He informs the cardinal, that from twenty
pounds upward there were not twenty in the county of Norfolk who had not
consented. "So that I see great likelihood that this grant shall be much
more than the loan was." It was done, however, very reluctantly, as he
confesses; "assuring your grace that they have not granted the same
without shedding of many salt tears, only for doubt how to find money to
content the king's highness." The resistance went further than the duke
thought fit to suppose; for in a very short time the insurrection of the
common people took place in Suffolk. In another letter from him and the
Duke of Suffolk to the cardinal they treat this rather lightly, and seem
to object to the remission of the contribution.
This commission issued soon after the news of the battle of Pavia
arrived. The pretext was the king's intention to lead an army into
France. Warham wrote more freely than the Duke of Norfolk as to the
popular discontent, in a letter to Wolsey, dated April 5. "It hath been
showed me in a secret manner of my friends, the people sore grudgeth and
murmureth, and speaketh cursedly among themselves, as far as they dare,
saying that they shall never have rest of payments as long as some
liveth, and that they had better die than to be thus continually
handled, reckoning themselves, their children, and wives, as despoulit,
and not greatly caring what they do, or what becomes of them.... Further
I am informed, that there is a grudge newly now resuscitate, and revived
in the minds of the people; for the loan is not repaid to them upon the
first receipt of the grant of parliament, as it was promised them by the
commissioners, showing them the king's grace's instructions, containing
the same, signed with his grace's own hand in summer, that they fear not
to speak, that they be continually beguiled, and no promise is kept unto
them; and thereupon some of them suppose that if this gift and grant be
once levied, albeit the king's grace go not beyond the sea, yet nothing
shall be restored again, albeit they be showed the contrary. And
generally it is reported unto me, that for the most part every man saith
he will be contented if the king's grace have as much as he can spare,
but verily many say they be not able to do as they be required. And many
denieth not but they will give the king's grace according to their
power, but they will not anywise give at other men's appointments, which
knoweth not their needs.... I have heard say, moreover, that when the
people be commanded to make fires and tokens of joy for the taking of
the French king, divers of them have spoken that they have more cause to
weep than to rejoice thereat. And divers, as it hath been showed me
secretly, have wished openly that the French king were at his liberty
again, so as there were a good peace, and the king should not attempt to
win France; the winning whereof should be more chargeful to England than
profitable, and the keeping thereof much more chargeful than the
winning. Also it hath been told me secretly that divers have recounted
and repeated what infinite sums of money the king's grace hath spent
already in invading France, once in his own royal person, and two other
sundry times by his several noble captains, and little or nothing in
comparison of his costs hath prevailed; insomuch that the king's grace
at this hour hath not one foot of land more in France than his most
noble father had, which lacked no riches or wisdom to win the kingdom of
France, if he had thought it expedient." The archbishop goes on to
observe, rather oddly, that "he would that the time had suffered that
this practising with the people for so great sums might have been spared
till the cuckow time and the hot weather (at which time mad brains be
wont to be most busy) had been overpassed."
Warham dwells, in another letter, on the great difficulty the clergy had
in making so large a payment as was required of them, and their
unwillingness to be sworn as to the value of their goods. The archbishop
seems to have thought it passing strange that people would be so
wrongheaded about their money. "I have been," he says, "in this shire
twenty years and above, and as yet I have not seen men but would be
conformable to reason, and would be induced to good order, till this
time; and what shall cause them now to fall into these wilful and
indiscreet ways, I cannot tell, except poverty and decay of substance be
the cause of it."
[24] Hall, 696. These expressions, and numberless others might be found,
show the fallacy of Hume's hasty assertion, that the writers of the
sixteenth century do not speak of their own government as more free than
that of France.
[25] Hall, 699.
[26] The word impeachment is not very accurately applicable to these
proceedings against Wolsey; since the articles were first presented to
the Upper House, and sent down to the Commons, where Cromwell so ably
defended his fallen master that nothing was done upon them. "Upon this
honest beginning," says Lord Herbert, "Cromwell obtained his first
reputation." I am disposed to conjecture from Cromwell's character and
that of the House of Commons, as well as from some passages of Henry's
subsequent behaviour towards the cardinal, that it was not the king's
intention to follow up this prosecution, at least for the present. This
also I find to be Dr. Lingard's opinion.
[27] _Rot. Parl._ vi. 164; Burnet, Appendix, No. 31. "When this release
of the loan," says Hall, "was known to the commons of the realm, Lord!
so they grudged and spake ill of the whole parliament; for almost every
man counted it his debt, and reckoned surely of the payment of the same,
and therefore some made their wills of the same, and some other did set
it over to other for debt; and so many men had loss by it, which caused
them sore to murmur, but there was no remedy."--P. 767.
[28] Stat. 35 H. 8, c. 12. I find in a manuscript, which seems to have
been copied from an original in the exchequer, that the monies thus
received by way of loan in 1543 amounted to L110,147 15_s._ 8_d._ There
was also a sum called _devotion money_, amounting only to L1,093 8_s._
3_d._, levied in 1544, "of the devotion of his highnesse's subjects for
_Defence of Christendom against the Turk_."
[29] Lodge's _Illustrations of British History_, i. 711; Strype's
_Eccles. Memorials_, Appendix, n. 119. The sums raised from different
counties for this benevolence afford a sort of criterion of their
relative opulence. Somerset gave L6807; Kent L6471; Suffolk L4512;
Norfolk L4046; Devon L4527; Essex L5051; but Lancaster only L660; and
Cumberland, L574. The whole produced L119,581 7_s._ 6_d._ besides
arrears. In Haynes's _State Papers_, p. 54, we find a curious minute of
Secretary Paget, containing reasons why it was better to get the money
wanted by means of a benevolence than through parliament. But he does
not hint at any difficulty of obtaining a parliamentary grant.
[30] Lodge, p. 80. Lord Herbert mentions this story, and observes, that
Reed having been taken by the Scots, was compelled to pay much more for
his ransom than the benevolence required of him.
[31] Rhymer, xv. 84. These commissions bearing date 5th January 1546.
[32] Hall, 622. Hume, who is favourable to Wolsey, says, "There is no
reason to think the sentence against Buckingham unjust." But no one who
reads the trial will find any evidence to satisfy a reasonable mind; and
Hume himself soon after adds, that his crime proceeded more from
indiscretion than deliberate malice. In fact, the condemnation of this
great noble was owing to Wolsey's resentment, acting on the savage
temper of Henry.
[33] Several letters that passed between the council and Duke of Norfolk
(_Hardwicke State Papers_, i. 28, etc.) tend to confirm what some
historians have hinted, that he was suspected of leaning too favourably
towards the rebels. The king was most unwilling to grant a free pardon.
Norfolk is told, "If you could, by any good means or possible dexterity,
reserve a very few persons for punishments, you should assuredly
administer the greatest pleasure to his highness that could be imagined,
and much in the same advance your own honour."--P. 32. He must have
thought himself in danger from some of these letters, which indicate the
king's distrust of him. He had recommended the employment of men of high
rank as lords of the marches, instead of the rather inferior persons
whom the king had lately chosen. This called down on him rather a warm
reprimand (p. 39); for it was the natural policy of a despotic court to
restrain the ascendency of great families; nor were there wanting very
good reasons for this, even if the public weal had been the sole object
of Henry's council. See also, for the subject of this note, the State
Papers and MSS., H. 8, 1830, p. 518 _et alibi_. They contain a good deal
of interesting matter as to the northern rebellion, which gave Henry a
pretext for great severities towards the monasteries in that part of
England.
[34] Pole, at his own solicitation, was appointed legate to the Low
Countries in 1537, with the sole object of keeping alive the flame of
the northern rebellion, and exciting foreign powers as well as the
English nation to restore religion by force, if not to dethrone Henry.
It is difficult not to suspect that he was influenced by ambitious views
in a proceeding so treasonable, and so little in conformity with his
polished manners and temperate life. Philips, his able and artful
biographer, both proves and glories in the treason. _Life of Pole_,
sect. 3.
[35] Coke's 4th Institute, 37. It is, however, said by Lord Herbert and
others, that the Countess of Salisbury and the Marchioness of Exeter
were not heard in their defence. The acts of attainder against them were
certainly hurried through parliament; but whether without hearing the
parties, does not appear.
[36] Burnet observes, that Cranmer was absent the first day the bill was
read, 17th June 1540; and by his silence leaves the reader to infer that
he was so likewise on 19th June, when it was read a second and third
time. But this, I fear, cannot be asserted. He is marked in the journal
as present on the latter day; and there is the following entry; "Hodie
lecta est pro secundo et tertio, billa attincturae Thomae Comitis Essex,
et communi omnium procerum tunc praesentium concessu nemine discrepante,
expedita est." And at the close of the session, we find a still more
remarkable testimony to the unanimity of parliament, in the following
words: "Hoc animadvertendum est, quod in hac sessione cum proceres
darent suffragia, et dicerent sententias super actibus praedictis, ea
erat concordia et sententiarum conformitas, ut singuli iis et eorum
singulis assenserint, nemine discrepante. Thomas de Soulemont, Cleric.
Parliamentorum." As far therefore as entries on the journals are
evidence, Cranmer was placed in the painful and humiliating predicament
of voting for the death of his innocent friend. He had gone as far as he
dared in writing a letter to Henry, which might be construed into an
apology for Cromwell, though it was full as much so for himself.
[37] Burnet has taken much pains with the subject, and set her innocence
in a very clear light (i. 197 and iii. 114). See also Strype, i. 280,
and Ellis's _Letters_, ii. 52. But Anne had all the failings of a vain,
weak woman, raised suddenly to greatness. She behaved with unamiable
vindictiveness towards Wolsey, and perhaps (but this worst charge is not
fully authenticated) exasperated the king against More. A remarkable
passage in Cavendish's _Life of Wolsey_, p. 103, edit. 1667, strongly
displays her indiscretion.
A late writer, whose acuteness and industry would raise him to a very
respectable place among our historians, if he could have repressed the
inveterate partiality of his profession, has used every oblique artifice
to lead his readers into a belief of Anne Boleyn's guilt, while he
affects to hold the balance, and state both sides of the question
without determining it. Thus he repeats what he must have known to be
the strange and extravagant lies of Sanders about her birth; without
vouching for them indeed, but without any reprobation of their absurd
malignity. Lingard's _Hist. of England_, vi. 153 (8vo. edit). Thus he
intimates that "the records of her trial and conviction have perished,
perhaps by the hands of those who respected her memory" (p. 316);
though, had he read Burnet with any care, he would have found that they
were seen by that historian, and surely have not perished since by any
unfair means; not to mention that the record of a trial contains nothing
from which a party's guilt or innocence can be inferred. Thus he says
that those who were executed on the same charge with the queen, neither
admitted nor denied the offence, for which they suffered; though the
best informed writers assert that Norris constantly declared the queen's
innocence and his own.
Dr. Lingard can hardly be thought serious, when he takes credit to
himself, in the commencement of a note at the end of the same volume,
for not "rendering his book more interesting, by representing her as an
innocent and injured woman, falling a victim to the intrigues of a
religious faction." He well knows that he could not have done so,
without contradicting the tenor of his entire work, without ceasing, as
it were, to be himself. All the rest of this note is a pretended
balancing of evidence, in the style of a judge who can hardly bear to
put for a moment the possibility of a prisoner's innocence.
I regret very much to be compelled, in this edition, to add the name of
Mr. Sharon Turner to those who have countenanced the supposition of Anne
Boleyn's guilt. But Mr. Turner, a most worthy and painstaking man, to
whose earlier writings our literature is much indebted, has, in his
history of Henry VIII., gone upon the strange principle of exalting that
tyrant's reputation at the expense of every one of his victims, to
whatever party they may have belonged. _Odit damnatos._ Perhaps he is
the first, and will be the last, who has defended the attainder of Sir
Thomas More. A verdict of a jury, an assertion of a statesman, a recital
of an act of parliament, are, with him, satisfactory proofs of the most
improbable accusations against the most blameless character.
[38] The lords pronounced a singular sentence, that she should be burned
or beheaded at the king's pleasure. Burnet says the judges complained of
this as unprecedented. Perhaps in strictness the king's right to _alter_
a sentence is questionable, or rather would be so, if a few precedents
were out of the way. In high treason committed by a man, the beheading
was part of the sentence, and the king only remitted the more cruel
preliminaries. Women, till 1791, were condemned to be burned. But the
two queens of Henry, the Countess of Salisbury, Lady Rochford, Lady Jane
Grey, and, in later times, Mrs. Lisle, were beheaded. Poor Mrs. Gaunt
was not thought noble enough to be rescued from the fire. In felony,
where beheading is no part of the sentence, it has been substituted by
the king's warrant in the cases of the Duke of Somerset and Lord Audley.
I know not why the latter obtained this favour; for it had been refused
to Lord Stourton, hanged for murder under Mary, as it was afterwards to
Earl Ferrers.
[39] It is often difficult to understand the grounds of a parliamentary
attainder, for which any kind of evidence was thought sufficient; and
the strongest proofs against Catherine Howard undoubtedly related to her
behaviour before marriage, which could be no legal crime. But some of
the depositions extend further.
Dr. Lingard has made a curious observation on this case. "A plot was
woven by the industry of the reformers, which brought the young queen to
the scaffold, and weakened the ascendency of the reigning party."--P.
407. This is a very strange assertion; for he proceeds to admit her
ante-nuptial guilt, which indeed she is well known to have confessed,
and does not give the slightest proof of any plot. Yet he adds, speaking
of the queen and Lady Rochford: "I fear [_i.e._ wish to insinuate] both
were sacrificed to the manes of Anne Boleyn."
[40] Stat. 26 H. 8, c. 13.
It may be here observed, that the act attainting Catherine Howard of
treason proceeds to declare that the king's assent to bills by
commission under the great seal is as valid as if he were personally
present; any custom or use to the contrary notwithstanding. 33 H. 8, c.
21. This may be presumed therefore to be the earliest instance of the
king's passing bills in this manner.
[41] 22 H. 8, c. 18.
[42] 28 H. 8, c. 7.
[43] 35 H. 8, c. 1.
[44] 28 H. 8, c. 17.
[45] 31 H. 8, c. 8; Burnet, i. 263, explains the origin of this act.
Great exceptions had been taken to some of the king's ecclesiastical
proclamations, which altered laws, and laid taxes on spiritual persons.
He justly observes that the restrictions contained in it gave great
power to the judges, who had the power of expounding in their hands. The
preamble is full as offensive as the body of the act; reciting the
contempt and disobedience of the king's proclamations by some "who did
not consider _what a king by his royal power might do_, which if it
continued would tend to the disobedience of the laws of God, and the
dishonour of the king's majesty, who might full ill bear it," etc. See
this act at length in the great edition of the statutes. There was one
singular provision; the clause protecting all persons, as mentioned, in
their inheritance or other property, proceeds, "nor shall by virtue of
the said act suffer any pains of death." But an exception is afterwards
made for "such persons which shall offend against any proclamation to be
made by the king's highness, his heirs or successors, for or concerning
any kind of heresies against Christian doctrine." Thus it seems that the
king claimed a power to declare heresy by proclamation, under penalty of
death.
[46] Gray has finely glanced at this bright point of Henry's character,
in that beautiful stanza where he has made the founders of Cambridge
pass before our eyes, like shadows over a magic glass:
"the majestic lord,
Who broke the bonds of Rome."
In a poet, this was a fair employment of his art; but the partiality of
Burnet towards Henry VIII. is less warrantable; and he should have
blushed to excuse, by absurd and unworthy sophistry, the punishment of
those who refused to swear to the king's supremacy. P. 351.
After all, Henry was every whit as good a king and man as Francis I.,
whom there are still some, on the other side of the Channel, servile
enough to extol; not in the least more tyrannical and sanguinary, and of
better faith towards his neighbours.
[47] 1 Edw. 6, c. 12. By this act it is provided that a lord of
parliament shall have the benefit of clergy though he cannot read. Sect.
14. Yet one can hardly believe, that this provision was necessary at so
late an aera.
[48] 2 Strype, 147, 341, 491.
[49] _Id._ 149. Dr. Lingard has remarked an important change in the
coronation ceremony of Edward VI. Formerly, the king had taken an oath
to preserve the liberties of the realm, and especially those granted by
Edward the Confessor, etc., before the people were asked whether they
would consent to have him as their king. See the form observed at
Richard the Second's coronation in Rymer, vii. 158. But at Edward's
coronation, the archbishop presented the king to the people, as rightful
and undoubted inheritor by the laws of God and man to the royal dignity
and crown imperial of this realm, etc., and asked if they would serve
him and assent to his coronation, as by their duty of allegiance they
were bound to do. All this was before the oath. 2 Burnet, Appendix, p.
93.
Few will pretend that the coronation, or the coronation oath, were
essential to the legal succession of the crown, or the exercise of its
prerogatives. But this alteration in the form is a curious proof of the
solicitude displayed by the Tudors, as it was much more by the next
family, to suppress every recollection that could make their sovereignty
appear to be of popular origin.
[50] Haynes's state papers contain many curious proofs of the incipient
amour between Lord Seymour and Elizabeth, and show much indecent
familiarity on one side, with a little childish coquetry on the other.
These documents also rather tend to confirm the story of our elder
historians, which I have found attested by foreign writers of that age
(though Burnet has thrown doubts upon it), that some differences between
the queen-dowager and the Duchess of Somerset aggravated at least those
of their husbands. P. 61, 69. It is alleged with absurd exaggeration, in
the articles against Lord Seymour, that, had the former proved
immediately with child after her marriage with him, it might have passed
for the king's. This marriage, however, did not take place before June,
Henry having died in January. Ellis's _Letters_, ii. 150.
[51] Journals, Feb. 27, March 4, 1548-9. From these I am led to doubt
whether the commons actually heard witnesses against Seymour, which
Burnet and Strype have taken for granted.
[52] Stat. 5 and 6 Edw. VI., c. 11, s. 12.
[53] Burnet, ii. 243. An act was made to confirm deeds of private
persons, dated during Jane's ten days, concerning which some doubt had
arisen. 1 Mary, sess. 2, c. 4. It is said in this statute, "her
highness's most lawful possession was for a time disturbed and
disquieted by traiterous rebellion and usurpation."
It appears that the young king's original intention was to establish a
modified Salic law, excluding females from the crown, but not their male
heirs. In a writing drawn by himself, and entitled "My Device for the
Succession," it is entailed on the heirs male of the lady queen, if she
have any before his death; then to the _Lady Jane and her heirs male_;
then to the heirs male of Lady Katharine; and in every instance, except
Jane, excluding the female herself. Strype's _Cranmer_, Append. 164. A
late author, on consulting the original MS., in the king's handwriting,
found that it had been at first written, "the Lady Jane's heirs male,"
but that the words "and her" had been interlined. Nares's _Memoirs of
Lord Burghley_, i. 451. Mr. Nares does not seem to doubt but that this
was done by Edward himself: the change, however, is remarkable, and
should probably be ascribed to Northumberland's influence.
[54] Burnet, Strype, iii. 50, 53; Carte, 290. I doubt whether we have
anything in our history more like conquest than the administration of
1553. The queen, in the month only of October, presented to 256 livings,
restoring all those turned out under the acts of uniformity. Yet the
deprivation of the bishops might be justified probably by the terms of
the commission they had taken out in Edward's reign, to hold their sees
during the king's pleasure, for which was afterwards substituted "during
good behaviour." Burnet, App. 257; Collier, 218.
[55] Burnet, ii. 278; Stat. 1 Mary, sess. 3, c. 1. Dr. Lingard rather
strangely tells this story on the authority of Father Persons, whom his
readers probably do not esteem quite as much as he does. If he had
attended to Burnet, he would have found a more sufficient voucher.
[56] Carte, 330.
[57] Haynes, 195; Burnet, ii. Appendix, 256, iii. 243.
[58] Burnet, ii. 347. Collier, ii. 404, and Lingard, vii. 266 (who, by
the way, confounds this commission with something different two years
earlier) will not hear of this allusion to the inquisition. But Burnet
has said nothing that is not perfectly just.
[59] Strype, iii. 459.
[60] See Stafford's proclamation from Scarborough Castle, Strype, iii.
Appendix, No. 71. It contains no allusion to religion, both parties
being weary of Mary's Spanish counsels. The important letters of
Noailles, the French ambassador, to which Carte had access, and which
have since been printed, have afforded information to Dr. Lingard, and
with those of the imperial ambassador, Renard, which I have not had an
opportunity of seeing, throw much light on this reign. They certainly
appear to justify the restraint put on Elizabeth, who, if not herself
privy to the conspiracies planned in her behalf (which is, however, very
probable), was at least too dangerous to be left at liberty. Noailles
intrigued with the malcontents, and instigated the rebellion of Wyatt,
of which Dr. Lingard gives a very interesting account. Carte, indeed,
differs from him in many of these circumstances, though writing from the
same source, and particularly denies that Noailles gave any
encouragement to Wyatt. It is, however, evident from the tenor of his
despatches that he had gone great lengths in fomenting the discontent,
and was evidently desirous of the success of the insurrection (iii. 36,
43, etc.). This critical state of the government may furnish the usual
excuse for its rigour. But its unpopularity was brought on by Mary's
breach of her word as to religion, and still more by her obstinacy in
forming her union with Philip against the general voice of the nation,
and the opposition of Gardiner; who, however, after her resolution was
taken, became its strenuous supporter in public. For the detestation in
which the queen was held, see the letters of Noailles, _passim_; but
with some degree of allowance for his own antipathy to her.
[61] Burnet, i. 117. The king refused his assent to a bill which had
passed both houses, but apparently not of a political nature. _Lords'
Journals_, p. 162.
[62] Burnet, 190.
[63] _Id._ 195, 215. This was the parliament, in order to secure
favourable elections for which the council had written letters to the
sheriffs. These do not appear to have availed so much as they might
hope.
[64] Carte, 311, 322; Noailles, v. 252. He says that she committed some
knights to the Tower for their language in the house. _Id._ 247. Burnet,
p. 324, mentions the same.
[65] Burnet, 322; Carte, 296. Noailles says, that a third part of the
Commons in Mary's first parliament was hostile to the repeal of Edward's
laws about religion, and that the debates lasted a week. ii. 247. The
journals do not mention any division; though it is said in Strype, iii.
204, that one member, Sir Ralph Bagnal, refused to concur in the act
abolishing the supremacy. The queen, however, in her letter to Cardinal
Pole, says of this repeal: "Quod non sine contentione, disputatione
acri, et summo labore fidelium factum est." Lingard, Carte, Philips's
_Life of Pole_. Noailles speaks repeatedly of the strength of the
protestant party, and of the enmity which the English nation, as he
expresses it, bore to the pope. But the aversion to the marriage with
Philip, and dread of falling under the yoke of Spain, was common to both
religions, with the exception of a few mere bigots to the church of
Rome.
[66] Noailles, vol. 5, _passim_.
[67] Strype, ii. 394.
[68] Strype, iii. 155; Burnet, ii. 228.
[69] Burnet, ii. 262, 277.
[70] Noailles, v. 190. Of the truth of this plot there can be no
rational ground to doubt; even Dr. Lingard has nothing to advance
against it but the assertion of Mary's counsellors, the Pagets and
Arundels, the most worthless of mankind. We are, in fact, greatly
indebted to Noailles for his spirited activity, which contributed, in a
high degree, to secure both the protestant religion and the national
independence of our ancestors.
[71] Henry VII. first established a band of fifty archers to wait on
him. Henry VIII. had fifty horse-guards, each with an archer, demilance
and couteiller, like the gendarmerie of France; but on account,
probably, of the expense it occasioned, their equipment being too
magnificent, this soon was given up.
[72] _View of Middle Ages_, ch. 8. I must here acknowledge, that I did
not make the requisite distinction between the concilium secretum, or
privy council of state, and the concilium ordinarium, as Lord Hale calls
it, which alone exercised jurisdiction.
[73] _Commonwealth of England_, book 3, c. 1. The statute 26 H. 8, c. 4
enacts, that if a jury in Wales acquit a felon, contrary to good and
pregnant evidence, or otherwise misbehave themselves, the judge may bind
them to appear before the president and council of the Welsh marches.
The partiality of Welsh jurors was notorious in that age; and the
reproach has not quite ceased.
[74] _State Trials_, i. 901; Strype, ii. 120. In a letter to the Duke of
Norfolk (_Hardwicke Papers_, i. 46) at the time of the Yorkshire
rebellion in 1536, he is directed to question the jury who had acquitted
a particular person, in order to discover their motive. Norfolk seems to
have objected to this for a good reason, "least the fear thereof might
trouble others in the like case." But it may not be uncandid to ascribe
this rather to a leaning towards the insurgents than a constitutional
principle.
[75] _Hale's Jurisdiction of the Lords' House_, p. 5. Coke, 4th Inst.
65, where we have the following passage: "So this court [the court of
star-chamber, as the concilium was then called] being holden coram rege
et concilio, it is, or may be, compounded of three several councils;
that is to say, of the lords and others of his majesty's privy council,
always judges without appointment, as before it appeareth. 2. The judges
of either bench and barons of the exchequer are of the king's council,
for matters of law, etc., and the two chief justices, or in their
absence other two justices, are standing judges of this court. 3. The
lords of parliament are properly de magno concilio regis; but neither
those, not being of the king's privy council, nor any of the rest of the
judges or barons of the exchequer are standing judges of the court." But
Hudson, in his _Treatise of the Court of Star-chamber_, written about
the end of James's reign, inclines to think that all peers had a right
of sitting in the court of star-chamber; there being several instances
where some who were not of the council of state were present and gave
judgment, as in the case of Mr. Davison, "and how they were complete
judges unsworn, if not by their native right, I cannot comprehend; for
surely the calling of them in that case was not made legitimate by any
act of parliament; neither without their right were they more apt to be
judges than any other inferior persons in the kingdom; and yet I doubt
not but it resteth in the king's pleasure to restrain any man from that
table, as well as he may any of his council from the board."
_Collectanea Juridica_, ii. p. 24. He says also, that it was demurrable
for a bill to pray process against the defendant, to appear before the
king and his privy council. _Ibid._
[76] The privy council sometimes met in the star-chamber, and made
orders. See one in 18 H. 6, Harl. MSS. Catalogue, N. 1878, fol. 20. So
the statute, 21 H. 8, c. 16, recites a decree _by the king's council in
his star-chamber_, that no alien artificer shall keep more than two
alien servants, and other matters of the same kind. This could no way
belong to the court of star-chamber, which was a judicial tribunal.
It should be remarked, though not to our immediate purpose, that this
decree was supposed to require an act of parliament for its
confirmation; so far was the government of Henry VIII. from arrogating a
legislative power in matters of private right.
[77] Lord Hale thinks that the jurisdiction of the council was gradually
"brought into great disuse, though there remain some straggling
footsteps of their proceedings till near 3 H. 7."--P. 38. "The continual
complaints of the commons against the proceedings before the council in
causes civil or criminal, although they did not always attain their
concession, yet brought a disreputation upon the proceedings of the
council, as contrary to Magna Charta and the known laws."--P. 39. He
seems to admit afterwards, however, that many instances of proceedings
before them in criminal causes might be added to those mentioned by Lord
Coke. P. 43.
The paucity of records about the time of Edward IV. renders the negative
argument rather weak; but, from the expression of Sir Thomas Smith in
the text, it may perhaps be inferred that the council had intermitted in
a considerable degree, though not absolutely disused, their exercise of
jurisdiction for some time before the accession of the house of Tudor.
Mr. Brodie, in his _History of the British Empire under Charles I._, i.
158, has treated at considerable length, and with much acuteness, this
subject of the antiquity of the star-chamber. I do not coincide in all
his positions; but the only one very important, is that wherein we fully
agree, that its jurisdiction was chiefly usurped, as well as tyrannical.
I will here observe that this part of our ancient constitutional history
is likely to be elucidated by a friend of my own, who has already given
evidence to the world of his singular competence for such an
undertaking, and who unites, with all the learning and diligence of
Spelman, Prynne, and Madox, an acuteness and vivacity of intellect which
none of those writers possessed.
[78] _Commonwealth of England_, book 3, c. 4. We find Sir Robert
Sheffield in 1517 "put into the Tower again for the complaint he made to
the king of my lord cardinal." Lodge's _Illustrations_, i. p. 27. See
also Hall, p. 585, for Wolsey's strictness in punishing the "lords,
knights, and men of all sorts, for riots, bearing, and maintenance."
[79] Plowden's _Commentaries,_ 393. In the year-book itself, 8 H. 7, pl.
ult. the word star-chamber is not used. It is held in this case, that
the chancellor, treasurer, and privy-seal were the only judges, and the
rest but assistants. Coke, 4 Inst. 62, denies this to be law; but on no
better grounds than that the practice of the star-chamber, that is, of a
different tribunal, was not such.
[80] _Hist. of Henry VII._ in Bacon's works, ii. p. 290.
[81] The result of what has been said in the last pages may be summed up
in a few propositions. 1. The court erected by the statute of 3 Henry
VII. was not the court of star-chamber. 2. This court by the statute
subsisted in full force till beyond the middle of Henry VIII.'s reign,
but not long afterwards went into disuse. 3. The court of star-chamber
was the old concilium ordinarium, against whose jurisdiction many
statutes had been enacted from the time of Edward III. 4. No part of the
jurisdiction exercised by the star-chamber could be maintained on the
authority of the statute of Henry VII.
[82] Burnet, ii. 324.
CHAPTER II
ON THE ENGLISH CHURCH UNDER HENRY VIII., EDWARD VI., AND MARY
REFORMATION. _State of public opinion as to religion._--No revolution
has ever been more gradually prepared than that which separated almost
one-half of Europe from the communion of the Roman see; nor were Luther
and Zuingle any more than occasional instruments of that change which,
had they never existed, would at no great distance of time have been
effected under the names of some other reformers. At the beginning of
the sixteenth century, the learned doubtfully and with caution, the
ignorant with zeal and eagerness, were tending to depart from the faith
and rites which authority prescribed. But probably not even Germany was
so far advanced on this course as England. Almost a hundred and fifty
years before Luther, nearly the same doctrines as he taught had been
maintained by Wicliffe, whose disciples, usually called Lollards, lasted
as a numerous, though obscure and proscribed sect, till, aided by the
confluence of foreign streams, they swelled into the protestant church
of England. We hear indeed little of them during some part of the
fifteenth century; for they generally shunned persecution; and it is
chiefly through records of persecution that we learn the existence of
heretics. But immediately before the name of Luther was known, they seem
to have become more numerous, or to have attracted more attention; since
several persons were burned for heresy, and others abjured their errors,
in the first years of Henry VIII.'s reign. Some of these (as usual among
ignorant men engaging in religious speculations) are charged with very
absurd notions; but it is not so material to observe their particular
tenets as the general fact, that an inquisitive and sectarian spirit had
begun to prevail.
Those who took little interest in theological questions, or who retained
an attachment to the faith in which they had been educated, were in
general not less offended than the Lollards themselves with the
inordinate opulence and encroaching temper of the clergy. It had been
for two or three centuries the policy of our lawyers to restrain these
within some bounds. No ecclesiastical privilege had occasioned such
dispute, or proved so mischievous, as the immunity of all tonsured
persons from civil punishment for crimes. It was a material improvement
in the law under Henry VI. that, instead of being instantly claimed by
the bishop on their arrest for any criminal charge, they were compelled
to plead their privilege at their arraignment, or after conviction.
Henry VII. carried this much farther, by enacting that clerks convicted
of felony should be burned in the hand. And in 1513 (4 H. 8), the
benefit of clergy was entirely taken away from murderers and highway
robbers. An exemption was still made for priests, deacons, and
subdeacons. But this was not sufficient to satisfy the church, who had
been accustomed to shield under the mantle of her immunity a vast number
of persons in the lower degrees of orders, or without any orders at all;
and had owed no small part of her influence to those who derived so
important a benefit from her protection. Hence, besides violent language
in preaching against this statute, the convocation attacked one Doctor
Standish, who had denied the divine right of clerks to their exemption
from temporal jurisdiction. The temporal courts naturally defended
Standish; and the parliament addressed the king to support him against
the malice of his persecutors. Henry, after a full debate between the
opposite parties in his presence, thought his prerogative concerned in
taking the same side; and the clergy sustained a mortifying defeat.
About the same time, a citizen of London named Hun, having been confined
on a charge of heresy in the bishop's prison, was found hanged in his
chamber; and though this was asserted to be his own act, yet the
bishop's chancellor was indicted for the murder on such vehement
presumptions, that he would infallibly have been convicted, had the
attorney-general thought fit to proceed in the trial. This occurring at
the same time with the affair of Standish, furnished each party with an
argument; for the clergy maintained that they should have no chance of
justice in a temporal court; one of the bishops declaring, that the
London juries were so prejudiced against the church, that they would
find Abel guilty of the murder of Cain. Such an admission is of more
consequence than whether Hun died by his own hands, or those of a
clergyman; and the story is chiefly worth remembering, as it illustrates
the popular disposition towards those who had once been the objects of
reverence.[83]
_Henry VIII.'s controversy with Luther._--Such was the temper of England
when Martin Luther threw down his gauntlet of defiance against the
ancient hierarchy of the catholic church. But, ripe as a great portion
of the people might be to applaud the efforts of this reformer, they
were viewed with no approbation by their sovereign. Henry had acquired a
fair portion of theological learning, and on reading one of Luther's
treatises, was not only shocked at its tenets, but undertook to confute
them in a formal answer.[84] Kings who divest themselves of their robes
to mingle among polemical writers, have not perhaps a claim to much
deference from strangers; and Luther, intoxicated with arrogance, and
deeming himself a more prominent individual among the human species than
any monarch, treated Henry, in replying to his book, with the rudeness
that characterised his temper. A few years afterwards, indeed, he
thought proper to write a letter of apology for the language he had held
towards the king; but this letter, a strange medley of abjectness and
impertinence, excited only contempt in Henry, and was published by him
with a severe commentary.[85] Whatever apprehension therefore for the
future might be grounded on the humour of the nation, no king in Europe
appeared so steadfast in his allegiance to Rome as Henry VIII. at the
moment when a storm sprang up that broke the chain for ever.
_His divorce from Catherine._--It is certain that Henry's marriage with
his brother's widow was unsupported by any precedent and that, although
the pope's dispensation might pass for a cure of all defects, it had
been originally considered by many persons in a very different light
from those unions which are merely prohibited by the canons. He himself,
on coming to the age of fourteen, entered a protest against the marriage
which had been celebrated more than two years before, and declared his
intention not to confirm it; an act which must naturally be ascribed to
his father.[86] It is true that in this very instrument we find no
mention of the impediment on the score of affinity; yet it is hard to
suggest any other objection, and possibly a common form had been adopted
in drawing up the protest. He did not cohabit with Catherine during his
father's lifetime. Upon his own accession, he was remarried to her; and
it does not appear manifest at what time his scruples began, nor whether
they preceded his passion for Anne Boleyn.[87] This, however, seems the
more probable supposition; yet there can be little doubt, that weariness
of Catherine's person, a woman considerably older than himself and
unlikely to bear more children, had a far greater effect on his
conscience than the study of Thomas Aquinas or any other theologian. It
by no means follows from hence that, according to the casuistry of the
catholic church and the principles of the canon law, the merits of that
famous process were so much against Henry, as out of dislike to him and
pity for his queen we are apt to imagine, and as the writers of that
persuasion have subsequently assumed.
It would be unnecessary to repeat, what is told by so many historians,
the vacillating and evasive behaviour of Clement VII., the assurances he
gave the king, and the arts with which he receded from them, the
unfinished trial in England before his delegates, Campegio and Wolsey,
the opinions obtained from foreign universities in the king's favour,
not always without a little bribery,[88] and those of the same import at
home, not given without a little intimidation, or the tedious
continuance of the process after its adjournment to Rome. More than five
years had elapsed from the first application to the pope, before Henry,
though by nature the most uncontrollable of mankind, though irritated by
perpetual chicanery and breach of promise, though stimulated by
impatient love, presumed to set at nought the jurisdiction to which he
had submitted, by a marriage with Anne. Even this was a furtive step;
and it was not till compelled by the consequences that he avowed her as
his wife, and was finally divorced from Catherine by a sentence of
nullity, which would more decently, no doubt, have preceded his second
marriage.[89] But, determined as his mind had become, it was plainly
impossible for Clement to have conciliated him by anything short of a
decision, which he could not utter without the loss of the emperor's
favour and the ruin of his own family's interests in Italy. And even for
less selfish reasons, it was an extremely embarrassing measure for the
pope, in the critical circumstances of that age, to set aside a
dispensation granted by his predecessor; knowing that, however erroneous
allegations of fact contained therein might serve for an outward
pretext, yet the principle on which the divorce was commonly supported
in Europe, went generally to restrain the dispensing power of the holy
see. Hence it may seem very doubtful whether the treaty which was
afterwards partially renewed through the mediation of Francis I., during
his interview with the pope at Nice about the end of 1533, would have
led to a restoration of amity through the only possible means; when we
consider the weight of the imperial party in the conclave, the discredit
that so notorious a submission would have thrown on the church, and,
above all, the precarious condition of the Medici at Florence in case of
a rupture with Charles V. It was more probably the aim of Clement to
delude Henry once more by his promises; but this was prevented by the
more violent measure into which the cardinals forced him, of a
definitive sentence in favour of Catherine, whom the king was required
under pain of excommunication to take back as his wife. This sentence of
the 23rd of March 1534, proved a declaration of interminable war; and
the king, who, in consequence of the hopes held out to him by Francis,
had already despatched an envoy to Rome with his submission to what the
pope should decide, now resolved to break off all intercourse for ever,
and trust to his own prerogative and power over his subjects for
securing the succession to the crown in the line which he designed. It
was doubtless a regard to this consideration that put him upon his last
overtures for an amicable settlement with the court of Rome.[90]
But long before this final cessation of intercourse with that court,
Henry had entered upon a course of measures which would have opposed
fresh obstacles to a renewal of the connection. He had found a great
part of his subjects in a disposition to go beyond all he could wish in
sustaining his quarrel, not, in this instance, from mere terror, but
because a jealousy of ecclesiastical power, and of the Roman court, had
long been a sort of national sentiment in England. The pope's avocation
of the process to Rome, by which his duplicity and alienation from the
king's side was made evident, and the disgrace of Wolsey, took place in
the summer of 1529. The parliament which met soon afterwards was
continued through several sessions (an unusual circumstance), till it
completed the separation of this kingdom from the supremacy of Rome. In
the progress of ecclesiastical usurpation, the papal and episcopal
powers had lent mutual support to each other; both consequently were
involved in the same odium, and had become the object of restrictions in
a similar spirit. Warm attacks were made on the clergy by speeches in
the Commons, which Bishop Fisher severely reprehended in the upper
house. This provoked the Commons to send a complaint to the king by
their speaker, demanding reparation; and Fisher explained away the words
that had given offence. An act passed to limit the fees on probates of
wills, a mode of ecclesiastical extortion much complained of, and upon
mortuaries.[91] The next proceeding was of a far more serious nature.
It was pretended, that Wolsey's exercise of authority as papal legate
contravened a statute of Richard II., and that both himself and the
whole body of the clergy, by their submission to him, had incurred the
penalties of a praemunire, that is, the forfeiture of their movable
estate, besides imprisonment at discretion. These old statutes in
restraint of the papal jurisdiction had been so little regarded, and so
many legates had acted in England without objection, that Henry's
prosecution of the church on this occasion was extremely harsh and
unfair. The clergy, however, now felt themselves to be the weaker party.
In convocation they implored the king's clemency, and obtained it by
paying a large sum of money. In their petition he was styled the
protector and supreme head of the church and clergy of England. Many of
that body were staggered at the unexpected introduction of a title that
seemed to strike at the supremacy they had always acknowledged in the
Roman see. And in the end it passed only with a very suspicious
qualification, "so far as is permitted by the law of Christ." Henry had
previously given the pope several intimations that he could proceed in
his divorce without him. For, besides a strong remonstrance by letter
from the temporal peers as well as bishops against the procrastination
of sentence in so just a suit, the opinions of English and foreign
universities had been laid before both houses of parliament and of
convocation, and the divorce approved without difficulty in the former,
and by a great majority in the latter. These proceedings took place in
the first months of 1531, while the king's ambassadors at Rome were
still pressing for a favourable sentence, though with diminished hopes.
Next year the annates, or first fruits of benefices, a constant source
of discord between the nations of Europe, and their spiritual chief,
were taken away by act of parliament, but with a remarkable condition,
that if the pope would either abolish the payment of annates, or reduce
them to a moderate burthen, the king might declare before next session,
by letters patent, whether this act, or any part of it, should be
observed. It was accordingly confirmed by letters patent more than a
year after it received the royal assent.
It is difficult for us to determine whether the pope, by conceding to
Henry the great object of his solicitude, could in this stage have not
only arrested the progress of the schism, but recovered his former
ascendency over the English church and kingdom. But probably he could
not have done so in its full extent. Sir Thomas More, who had rather
complied than concurred with the proceedings for a divorce, though his
acceptance of the great seal on Wolsey's disgrace would have been
inconsistent with his character, had he been altogether opposed in
conscience to the king's measures, now thought it necessary to resign,
when the papal authority was steadily, though gradually, assailed.[92]
In the next session an act was passed to take away all appeals to Rome
from ecclesiastical courts; which annihilated at one stroke the
jurisdiction built on long usage and on the authority of the false
decretals. This law rendered the king's second marriage, which had
preceded it, secure from being annulled by the papal court. Henry,
however, still advanced, very cautiously, and on the death of Warham,
Archbishop of Canterbury, not long before this time, applied to Rome for
the usual bulls in behalf of Cranmer, whom he nominated to the vacant
see. These were the last bulls obtained, and probably the last instance
of any exercise of the papal supremacy in this reign. An act followed in
the next session, that bishops elected by their chapter on a royal
recommendation, should be consecrated, and archbishops receive the pall,
without suing for the pope's bulls. All dispensations and licences
hitherto granted by that court were set aside by another statute, and
the power of issuing them in lawful cases transferred to the Archbishop
of Canterbury. The king is in this act recited to be the supreme head of
the church of England, as the clergy had two years before acknowledged
in convocation. But this title was not formally declared by parliament
to appertain to the Crown till the ensuing session of parliament.[93]
_Separation from the Church of Rome._--By these means was the church of
England altogether emancipated from the superiority of that of Rome. For
as to the pope's merely spiritual primacy and authority in matters of
faith, which are, or at least were, defended by catholics of the
Gallican or Cisalpine school on quite different grounds from his
jurisdiction or his legislatorial power in points of discipline, they
seem to have attracted little peculiar attention at the time, and to
have dropped off as a dead branch, when the axe had lopped the fibres
that gave it nourishment. Like other momentous revolutions, this divided
the judgment and feelings of the nation. In the previous affair of
Catherine's divorce, generous minds were more influenced by the rigour
and indignity of her treatment than by the king's inclinations, or the
venal opinions of foreign doctors in law. Bellay, Bishop of Bayonne, the
French ambassador at London, wrote home in 1528, that a revolt was
apprehended from the general unpopularity of the divorce.[94] Much
difficulty was found in procuring the judgments of Oxford and Cambridge
against the marriage; which was effected in the former case, as is said,
by excluding the masters of arts, the younger and less worldly part of
the university, from their right of suffrage. Even so late as 1532, in
the pliant House of Commons, a member had the boldness to move an
address to the king, that he would take back his wife. And this temper
of the people seems to have been the great inducement with Henry to
postpone any sentence by a domestic jurisdiction, so long as a chance of
the pope's sanction remained.
The aversion entertained by a large part of the community, and
especially of the clerical order, towards the divorce, was not perhaps
so generally founded upon motives of justice and compassion, as on the
obvious tendency which its prosecution latterly manifested to bring
about a separation from Rome. Though the principal Lutherans of Germany
were far less favourably disposed to the king in their opinions on this
subject than the catholic theologians, holding that the prohibition of
marrying a brother's widow in the Levitical law was not bin
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