CHAPTER I

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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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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]