boroughs._--There cannot be a stronger proof of the increased weight of
the Commons during these reigns, than the anxiety of the court to obtain
favourable elections. Many ancient boroughs undoubtedly have at no
period possessed sufficient importance to deserve the elective franchise
on the score of their riches or population; and it is most likely that
some temporary interest or partiality, which cannot now be traced, first
caused a writ to be addressed to them. But there is much reason to
conclude that the counsellors of Edward VI., in erecting new boroughs,
acted upon a deliberate plan of strengthening their influence among the
Commons. Twenty-two boroughs were created or restored in this short
reign; some of them, indeed, places of much consideration, but not less
than seven in Cornwall, and several others that appear to have been
insignificant. Mary added fourteen to the number; and as the same course
was pursued under Elizabeth, we in fact owe a great part of that
irregularity in our popular representation, the advantages or evils of
which we need not here discuss, less to changes wrought by time, than to
deliberate and not very constitutional policy. Nor did the government
scruple a direct and avowed interference with elections. A circular
letter of Edward to all the sheriffs commands them to give notice to the
freeholders, citizens, and burgesses within their respective counties,
"that our pleasure and commandment is, that they shall choose and
appoint, as nigh as they possibly may, men of knowledge and experience
within the counties, cities, and boroughs;" but nevertheless, that where
the privy council should "recommend men of learning and wisdom, in such
case their directions be regarded and followed." Several persons
accordingly were recommended by letters to the sheriffs, and elected as
knights for different shires; all of whom belonged to the court, or were
in places of trust about the king.[67] It appears probable that persons
in office formed at all times a very considerable portion of the House
of Commons. Another circular of Mary before the parliament of 1554,
directing the sheriffs to admonish the electors to choose good catholics
and "inhabitants, as the old laws require," is much less
unconstitutional; but the Earl of Sussex, one of her most active
counsellors, wrote to the gentlemen of Norfolk, and to the burgesses of
Yarmouth, requesting them to reserve their voices for the person he
should name.[68] There is reason to believe that the court, or rather
the imperial ambassador, did homage to the power of the Commons, by
presents of money, in order to procure their support of the unpopular
marriage with Philip;[69] and if Noailles, the ambassador of Henry II.,
did not make use of the same means to thwart the grants of subsidy and
other measures of the administration, he was at least very active in
promising the succour of France, and animating the patriotism of those
unknown leaders of that assembly, who withstood the design of a besotted
woman and her unprincipled counsellors to transfer this kingdom under
the yoke of Spain.[70]
_Causes of the high prerogative of the Tudors._--It appears to be a very
natural enquiry, after beholding the course of administration under the
Tudor line, by what means a government so violent in itself, and so
plainly inconsistent with the acknowledged laws, could be maintained;
and what had become of that English spirit which had not only controlled
such injudicious princes as John and Richard II., but withstood the
first and third Edward in the fulness of their pride and glory. Not,
indeed, that the excesses of prerogative had ever been thoroughly
restrained, or that, if the memorials of earlier ages had been as
carefully preserved as those of the sixteenth century, we might not
possibly find in them equally flagrant instances of oppression; but
still the petitions of parliament and frequent statutes remain on
record, bearing witness to our constitutional law and to the energy that
gave it birth. There had evidently been a retrograde tendency towards
absolute monarchy between the reigns of Henry VI. and Henry VIII. Nor
could this be attributed to the common engine of despotism, a military
force. For, except the yeomen of the guard, fifty in number, and the
common servants of the king's household, there was not, in time of
peace, an armed man receiving pay throughout England.[71] A government
that ruled by intimidation was absolutely destitute of force to
intimidate. Hence risings of the mere commonalty were sometimes highly
dangerous, and lasted much longer than ordinary. A rabble of Cornishmen,
in the reign of Henry VII., headed by a blacksmith, marched up from
their own county to the suburbs of London without resistance. The
insurrections of 1525 in consequence of Wolsey's illegal taxation, those
of the north ten years afterwards, wherein, indeed, some men of higher
quality were engaged, and those which broke out simultaneously in
several counties under Edward VI., excited a well-grounded alarm in the
country; and in the two latter instances were not quelled without much
time and exertion. The reproach of servility and patient acquiescence
under usurped power falls not on the English people, but on its natural
leaders. We have seen, indeed, that the House of Commons now and then
gave signs of an independent spirit, and occasioned more trouble, even
to Henry VIII., than his compliant nobility. They yielded to every
mandate of his imperious will; they bent with every breath of his
capricious humour; they are responsible for the illegal trial, for the
iniquitous attainder, for the sanguinary statute, for the tyranny which
they sanctioned by law, and for that which they permitted to subsist
without law. Nor was this selfish and pusillanimous subserviency more
characteristic of the minions of Henry's favour, the Cromwells, the
Riches, the Pagets, the Russells, and the Powletts, than of the
representatives of ancient and honourable houses, the Norfolks, the
Arundels, and the Shrewsburies. We trace the noble statesmen of those
reigns concurring in all the inconsistencies of their revolutions,
supporting all the religions of Henry, Edward, Mary, and Elizabeth;
adjudging the death of Somerset to gratify Northumberland, and of
Northumberland to redeem their participation in his fault, setting up
the usurpation of Lady Jane, and abandoning her on the first doubt of
success, constant only in the rapacious acquisition of estates and
honours from whatever source, and in adherence to the present power.
_Jurisdiction of the council of star-chamber._--I have noticed in a
former work that illegal and arbitrary jurisdiction exercised by the
council, which, in despite of several positive statutes, continued in a
greater or less degree through all the period of the Plantagenet family,
to deprive the subject, in many criminal charges, of that sacred
privilege, trial by his peers.[72] This usurped jurisdiction, carried
much farther and exercised more vigorously, was the principal grievance
under the Tudors; and the forced submission of our forefathers was
chiefly owing to the terrors of a tribunal, which left them secure from
no infliction but public execution, or actual dispossession of their
freeholds. And, though it was beyond its direct province to pass
sentence on capital charges; yet, by intimidating jurors, it procured
convictions which it was not authorised to pronounce. We are naturally
astonished at the easiness with which verdicts were sometimes given
against persons accused of treason on evidence insufficient to support
the charge in point of law, or in its nature not competent to be
received, or unworthy of belief. But this is explained by the peril that
hung over the jury in case of acquittal. "If," says Sir Thomas Smith, in
his _Treatise on the Commonwealth of England_, "they do pronounce not
guilty upon the prisoner, against whom manifest witness is brought in,
the prisoner escapeth, but the twelve are not only rebuked by the
judges, but also threatened of punishment, and many times commanded to
appear in the star-chamber, or before the privy council, for the matter.
But this threatening chanceth oftener than the execution thereof; and
the twelve answer with most gentle words, they did it according to their
consciences, and pray the judges to be good unto them; they did as they
thought right, and as they accorded all; and so it passeth away for the
most part. Yet I have seen in my time, but not in the reign of the king
now [Elizabeth], that an inquest for pronouncing one not guilty of
treason contrary to such evidence as was brought in, were not only
imprisoned for a space, but a large fine set upon their heads, which
they were fain to pay; another inquest for acquitting another, beside
paying a fine, were put to open ignominy and shame. But these doings
were even then accounted of many for violent, tyrannical, and contrary
to the liberty and custom of the realm of England."[73] One of the
instances to which he alludes was probably that of the jury who
acquitted Sir Nicholas Throckmorton in the second year of Mary. He had
conducted his own defence with singular boldness and dexterity. On
delivering their verdict, the court committed them to prison. Four,
having acknowledged their offence, were soon released; but the rest,
attempting to justify themselves before the council, were sentenced to
pay, some a fine of two thousand pounds, some of one thousand marks; a
part of which seems ultimately to have been remitted.[74]
It is here to be observed that the council of which we have just heard,
or, as Lord Hale denominates it (though rather, I believe, for the sake
of distinction than upon any ancient authority), the king's ordinary
council, was something different from the privy council, with which
several modern writers are apt to confound it; that is, the court of
jurisdiction is to be distinguished from the deliberative body, the
advisers of the Crown. Every privy councillor belonged to the concilium
ordinarium; but the chief justices, and perhaps several others who sat
in the latter (not to mention all temporal and spiritual peers, who, in
the opinion at least of some, had a right of suffrage therein), were not
necessarily of the former body.[75] This cannot be called in question,
without either charging Lord Coke, Lord Hale, and other writers on the
subject, with ignorance of what existed in their own age, or
gratuitously supposing that an entirely novel tribunal sprung up in the
sixteenth century under the name of the star-chamber. It has indeed been
often assumed that a statute enacted early in the reign of Henry VII.
gave the first legal authority to the criminal jurisdiction exercised by
that famous court, which in reality was nothing else but another name
for the ancient concilium regis, of which our records are full, and
whose encroachments so many statutes had endeavoured to repress; a name
derived from the chamber wherein it sat, and which is found in many
precedents before the time of Henry VII., though not so specially
applied to the council of judicature as afterwards.[76] The statute of
this reign has a much more limited operation. I have observed in another
place, that the coercive jurisdiction of the council had great
convenience, in cases where the ordinary course of justice was so much
obstructed by one party, through writs, combinations of maintenance, or
overawing influence, that no inferior court would find its process
obeyed; and that such seem to have been reckoned necessary exceptions
from the statutes which restrain its interference. The act of 3 H. 7,
c. 1 appears intended to place on a lawful and permanent basis the
jurisdiction of the council, or rather a part of the council, over this
peculiar class of offences; and after reciting the combinations
supported by giving liveries, and by indentures or promises, the
partiality of sheriffs in making pannels, and in untrue returns, the
taking of money by juries, the great riots and unlawful assemblies,
which almost annihilated the fair administration of justice, empowers
the chancellor, treasurer, and keeper of the privy seal, or any two of
them, with a bishop and temporal lord of the council, and the chief
justices of king's bench and common pleas, or two other justices in
their absence, to call before them such as offended in the
before-mentioned respects, and to punish them after examination in such
manner as if they had been convicted by course of law. But this statute,
if it renders legal a jurisdiction which had long been exercised with
much advantage, must be allowed to limit the persons in whom it should
reside, and certainly does not convey by any implication more extensive
functions over a different description of misdemeanours. By a later act,
21 H. 8, c. 20, the president of the council is added to the judges of
this court; a decisive proof that it still existed as a tribunal
perfectly distinct from the council itself. But it is not styled by the
name of star-chamber in this, any more than in the preceding statute. It
is very difficult, I believe, to determine at what time the jurisdiction
legally vested in this new court, and still exercised by it forty years
afterwards, fell silently into the hands of the body of the council, and
was extended by them so far beyond the boundaries assigned by law, under
the appellation of the court of star-chamber. Sir Thomas Smith, writing
in the early part of Elizabeth's reign, while he does not advert to the
former court, speaks of the jurisdiction of the latter as fully
established, and ascribes the whole praise (and to a certain degree it
was matter of praise) to Cardinal Wolsey.
The celebrated statute of 31 H. 8, c. 8, which gives the king's
proclamations, to a certain extent, the force of acts of parliament,
enacts that offenders convicted of breaking such proclamations before
certain persons enumerated therein (being apparently the usual officers
of the privy council, together with some bishops and judges), "in the
star-chamber or elsewhere," shall suffer such penalties of fine and
imprisonment as they shall adjudge. "It is the effect of this court,"
Smith says, "to bridle such stout noblemen or gentlemen which would
offer wrong by force to any manner of men, and cannot be content to
demand or defend the right by order of the law. It began long before,
but took augmentation and authority at that time that Cardinal Wolsey,
Archbishop of York, was chancellor of England, who of some was thought
to have first devised that court, because that he, after some
intermission, by negligence of time, augmented the authority of it,[77]
which was at that time marvellous necessary to do to repress the
insolency of the noblemen and gentlemen in the north parts of England,
who being far from the king and the seat of justice, made almost, as it
were, an ordinary war among themselves, and made their force their law,
binding themselves, with their tenants and servants, to do or revenge an
injury one against another as they listed. This thing seemed not
supportable to the noble prince Henry VIII.; and sending for them one
after another to his court, to answer before the persons before named,
after they had remonstrance showed them of their evil demeanour, and
been well disciplined, as well by words as by _fleeting_ [confinement in
the Fleet prison] a while, and thereby their pride and courage somewhat
assuaged, they began to range themselves in order, and to understand
that they had a prince who would rule his subjects by his law and
obedience. Since that time, this court has been in more estimation, and
is continued to this day in manner as I have said before."[78] But as
the court erected by the statute of Henry VII. appears to have been in
activity as late as the fall of Cardinal Wolsey, and exercised its
jurisdiction over precisely that class of offences which Smith here
describes, it may perhaps be more likely that it did not wholly merge in
the general body of the council till the minority of Edward, when that
oligarchy became almost independent and supreme. It is obvious that
most, if not all, of the judges in the court held under that statute
were members of the council; so that it might in a certain sense be
considered as a committee from that body, who had long before been wont
to interfere with the punishment of similar misdemeanours. And the
distinction was so soon forgotten, that the judges of the king's bench
in the 13th of Elizabeth cite a case from the year-book of 8 H. 7 as
"concerning the star-chamber," which related to the limited court
erected by the statute.[79]
In this half-barbarous state of manners we certainly discover an
apology, as well as motive, for the council's interference; for it is
rather a servile worshipping of names than a rational love of liberty,
to prefer the forms of trial to the attainment of justice, or to fancy
that verdicts obtained by violence or corruption are at all less
iniquitous than the violent or corrupt sentences of a court. But there
were many cases wherein neither the necessity of circumstances, nor the
legal sanction of any statute, could excuse the jurisdiction habitually
exercised by the court of star-chamber. Lord Bacon takes occasion from
the act of Henry VII. to descant on the sage and noble institution, as
he terms it, of that court, whose walls had been so often witnesses to
the degradation of his own mind. It took cognisance principally, he
tells us, of four kinds of causes, "forces, frauds, crimes various of
stellionate, and the inchoations or middle acts towards crimes capital
or heinous, not actually committed or perpetrated."[80] Sir Thomas Smith
uses expressions less indefinite than these last; and specifies
scandalous reports of persons in power, and seditious news, as offences
which they were accustomed to punish. We shall find abundant proofs of
this department of their functions in the succeeding reigns. But this
was in violation of many ancient laws, and not in the least supported by
that of Henry VII.[81]
_Influence of the authority of the star-chamber in enhancing the royal
power._--A tribunal so vigilant and severe as that of the star-chamber,
proceeding by modes of interrogatory unknown to the common law, and
possessing a discretionary power of fine and imprisonment, was easily
able to quell any private opposition or contumacy. We have seen how the
council dealt with those who refused to lend money by way of
benevolence, and with the juries who found verdicts that they
disapproved. Those that did not yield obedience to their proclamations
were not likely to fare better. I know not whether menaces were used
towards members of the Commons who took part against the Crown; but it
would not be unreasonable to believe it, or at least that a man of
moderate courage would scarcely care to expose himself to the resentment
which the council might indulge after a dissolution. A knight was sent
to the Tower by Mary, for his conduct in parliament;[82] and Henry VIII.
is reported, not perhaps on very certain authority, to have talked of
cutting off the heads of refractory commoners.
In the persevering struggles of earlier parliaments against Edward III.,
Richard II., and Henry IV., it is a very probable conjecture, that many
considerable peers acted in union with, and encouraged the efforts of,
the Commons. But in the period now before us, the nobility were
precisely the class most deficient in that constitutional spirit, which
was far from being extinct in those below them. They knew what havoc had
been made among their fathers, by multiplied attainders during the
rivalry of the two Roses. They had seen terrible examples of the danger
of giving umbrage to a jealous court, in the fate of Lord Stanley and
the Duke of Buckingham, both condemned on slight evidence of treacherous
friends and servants, from whom no man could be secure. Though rigour
and cruelty tend frequently to overturn the government of feeble
princes, it is unfortunately too true that, steadily employed and
combined with vigilance and courage, they are often the safest policy of
despotism. A single suspicion in the dark bosom of Henry VII., a single
cloud of wayward humour in his son, would have been sufficient to send
the proudest peer of England to the dungeon and the scaffold. Thus a
life of eminent services in the field, and of unceasing compliance in
council, could not rescue the Duke of Norfolk from the effects of a
dislike which we cannot even explain. Nor were the nobles of this age
more held in subjection by terror than by the still baser influence of
gain. Our law of forfeiture was well devised to stimulate, as well as
to deter; and Henry VIII., better pleased to slaughter the prey than to
gorge himself with the carcass, distributed the spoils it brought him
among those who had helped in the chase. The dissolution of monasteries
opened a more abundant source of munificence; every courtier, every
peer, looked for an increase of wealth from grants of ecclesiastical
estates, and naturally thought that the king's favour would most readily
be gained by an implicit conformity to his will. Nothing however seems
more to have sustained the arbitrary rule of Henry VIII. than the
jealousy of the two religious parties formed in his time, and who, for
all the latter years of his life, were maintaining a doubtful and
emulous contest for his favour. But this religious contest, and the
ultimate establishment of the Reformation, are events far too important,
even in a constitutional history, to be treated in a cursory manner; and
as, in order to avoid transitions, I have purposely kept them out of
sight in the present chapter, they will form the proper subject of the
next.
FOOTNOTES:
[5] This statute is not even alluded to in Ruffhead's edition, and has
been very little noticed by writers on our law or history. It is printed
in the late edition, published by authority, and is brought forward in
the First Report of the Lords' Committee, on the dignity of a Peer
(1819), p. 282. Nothing can be more evident than that it not only
establishes by a legislative declaration the present constitution of
parliament, but recognises it as already standing upon a custom of some
length of time.
[6] The pleadings, as they are called, or written allegations of both
parties, which form the basis of a judicial enquiry, commence with the
_declaration_, wherein the plaintiff states, either specially, or in
some established form, according to the nature of the case, that he has
a debt to demand from or an injury to be redressed by, the defendant.
The latter, in return, puts in his _plea_; which, if it amount to a
denial of the facts alleged in the declaration, must _conclude to the
country_, that is, must refer the whole matter to a jury. But if it
contain an admission of the fact, along with a legal justification of
it, it is said to _conclude to the court_; the effect of which is to
make it necessary for the plaintiff to reply; in which _replication_ he
may deny the facts pleaded in justification, and conclude to the
country; or allege some new matter in explanation, to show that they do
not meet all the circumstances, concluding to the court. Either party
also may demur, that is, deny that, although true and complete as a
statement of facts, the declaration or plea is sufficient according to
law to found or repel the plaintiff's suit. In the last case it becomes
an issue in law, and is determined by the judges without the
intervention of a jury; it being a principle, that by demurring, the
party acknowledges the truth of all matters alleged on the pleadings.
But in whatever stage of the proceedings either of the litigants
concludes to the country (which he is obliged to do, whenever the
question can be deduced to a disputed fact), a jury must be impanelled
to decide it by their verdict. These pleadings, together with what is
called the _postea_, that is, an indorsement by the clerk of the court
wherein the trial has been, reciting that _afterwards_ the cause was so
tried, and such a verdict returned, with the subsequent entry of the
judgment itself, form the record.
This is merely intended to explain the phrase in the text, which common
readers might not clearly understand. The theory of special pleading, as
it is generally called, could not be further elucidated without
lengthening this note beyond all bounds. But it all rests upon the
ancient maxim: "De facto respondent juratores, de jure judices." Perhaps
it may be well to add one observation--that in many forms of action, and
those of most frequent occurrence in modern times, it is not required to
state the legal justification on the pleadings, but to give it in
evidence on the general issue; that is, upon a bare plea of denial. In
this case the whole matter is actually in the power of the jury. But
they are generally bound in conscience to defer, as to the operation of
any rule of law, to what is laid down on that head by the judge; and
when they disregard his directions, it is usual to annul the verdict,
and grant a new trial. There seem to be some disadvantages in the
annihilation, as it may be called, of written pleadings, by their
reduction to an unmeaning form, which has prevailed in three such
important and extensive forms of action, as _ejectment_, _general_
_assumpsit_, and _trover_; both as it throws too much power into the
hands of the jury, and as it almost nullifies the appellant
jurisdiction, which can only be exercised where some error is apparent
on the face of the record. But great practical convenience, and almost
necessity, has generally been alleged as far more than a compensation
for these evils.
[7] The population for 1485 is estimated by comparing a sort of census
in 1378, when the inhabitants of the realm seem to have amounted to
about 2,300,000, with one still more loose under Elizabeth in 1588,
which would give about 4,400,000; making some allowance for the more
rapid increase in the latter period. Three millions at the accession of
Henry VII. is probably not too low an estimate.
[8] _Rot. Parl._ vi. 270. But the pope's bull of dispensation for the
king's marriage speaks of the realm of England as "jure haereditario ad
te legitimum in illo praedecessorum tuorum successorem pertinens." Rymer,
xii. 294. And all Henry's own instruments claim an hereditary right, of
which many proofs appear in Rymer.
[9] Stat. 11 H. 7, c. 1.
[10] Blackstone (vol. iv. c. 6) has some rather perplexed reasoning on
this statute, leaning a little towards the _de jure_ doctrine, and at
best confounding _moral_ with _legal_ obligations. In the latter sense,
whoever attends to the preamble of the act will see that Hawkins, whose
opinion Blackstone calls in question, is right; and that he is himself
wrong in pretending that "the statute of Henry VII. does by no means
command any opposition to a king _de jure_, but excuses the obedience
paid to a king _de facto_."
[11] For these observations on the statute of Fines, I am principally
indebted to Reeves's _History of the English Law_ (iv. 133), a work,
especially in the latter volumes, of great research and judgment; a
continuation of which, in the same spirit, and with the same qualities
(besides some others that are rather too much wanting in it), would be a
valuable accession not only to the lawyer's, but philosopher's library.
That entails had been defeated by means of a common recovery before the
statute, had been remarked by former writers, and is indeed obvious; but
the subject was never put in so clear a light as by Mr. Reeves.
The principle of breaking down the statute _de donis_ was so little
established, or consistently acted upon, in this reign, that in 11 H. 7
the judges held that the donor of an estate-tail might restrain the
tenant from suffering a recovery. _Id._ p. 159, from the year-book.
[12] It is said by the biographer of Sir Thomas More, that parliament
refused the king a subsidy in 1502, which he demanded on account of the
marriage of his daughter Margaret, at the advice of More, then but
twenty-two years old. "Forthwith Mr. Tyler, one of the privy chamber,
that was then present, resorted to the king, declaring that a beardless
boy, called More, had done more harm than all the rest, for by his means
all the purpose is dashed." This of course displeased Henry, who would
not, however, he says, "infringe the ancient liberties of that house,
which would have been odiously taken." Wordsworth's _Eccles. Biography_,
ii. 66. This story is also told by Roper.
[13] Stat. 11 H. 7, c. 10. Bacon says the benevolence was granted by act
of parliament, which Hume shows to be a mistake. The preamble of 11 H. 7
recites it to have been "granted by divers of your subjects severally;"
and contains a provision, that no heir shall be charged on account of
his ancestor's promise.
[14] Hall, 502.
[15] Turner's _History of England_, iii. 628, from a MS. document. A
vast number of persons paid fines for their share in the western
rebellion of 1497, from L200 down to 20_s._ Hall, 486. Ellis's _Letters
illustrative of English History_, i. 38.
[16] 1 H. 8, c. 8.
[17] 2 H. 7, c. 3. Rep. 1 H. 8, c. 6.
[18] They were convicted by a jury, and afterwards attainted by
parliament, but not executed for more than a year after the king's
accession. If we may believe Holingshed, the council at Henry VIII.'s
accession made restitution to some who had been wronged by the extortion
of the late reign;--a singular contrast to their subsequent proceedings!
This, indeed, had been enjoined by Henry VII.'s will. But he had
excepted from this restitution "what had been done by the course and
order of our laws;" which, as Mr. Astle observes, was the common mode of
his oppressions.
[19] Lord Hubert inserts an acute speech, which he seems to ascribe to
More, arguing more acquaintance with sound principles of political
economy than was usual in the supposed speaker's age, or even in that of
the writer. But it is more probable that this is of his own invention.
He has taken a similar liberty on another occasion, throwing his own
broad notions of religion into an imaginary speech of some unnamed
member of the Commons, though manifestly unsuited to the character of
the times. That More gave satisfaction to Wolsey by his conduct in the
chair appears by a letter of the latter to the king, in State Papers,
temp. H. 8, 1630, p. 124.
[20] Roper's _Life of More_; Hall, 656, 672. This chronicler, who wrote
under Edward VI., is our best witness for the events of Henry's reign.
Grafton is so literally a copyist from him, that it was a great mistake
to republish this part of his chronicle in the late expensive, and
therefore incomplete, collection; since he adds no one word, and omits
only a few ebullitions of protestant zeal which he seems to have
considered too warm. Holingshed, though valuable, is later than Hall.
Wolsey, the latter observes, gave offence to the Commons, by descanting
on the wealth and luxury of the nation, "as though he had repined or
disclaimed that any man should fare well, or be well clothed, but
himself."
But the most authentic memorial of what passed on this occasion has been
preserved in a letter from a member of the Commons to the Earl of Surrey
(soon after Duke of Norfolk), at that time the king's lieutenant in the
north.
"Please it your good Lordships to understand, that sithence the
beginning of the Parliament, there hath been the greatest and sorest
hold in the Lower House for the payment of two shillings of the pound,
that ever was seen, I think, in any parliament. This matter hath been
debated, and beaten fifteen or sixteen days together. The highest
necessity alledged on the King's behalf to us, that ever was heard of;
and, on the contrary, the highest poverty confessed, as well by knights,
esquires, and gentlemen of every quarter, as by the commoners, citizens,
and burgesses. There hath been such hold that the House was like to have
been dissevered; that is to say, the knights being of the King's
council, the King's servants and gentlemen of the one party; which in so
long time were spoken with, and made to see, yea, it may fortune,
contrary to their heart, will, and conscience. Thus hanging this matter,
yesterday the more part being the King's servants, gentlemen, were there
assembled; and so they, being the more part, willed and gave to the King
two shillings of the pound of goods or lands, the best to be taken for
the King. All lands to pay two shillings of the pound for the laity, to
the highest. The goods to pay two shillings of the pound, for twenty
pound upward; and from forty shillings of goods, to twenty pound, to pay
sixteen pence of the pound; and under forty shillings, every person to
pay eight pence. This to be paid in two years. I have heard no man in my
life that can remember that ever there was given to any one of the
King's ancestors half so much at one graunt. Nor, I think, there was
never such a president seen before this time. I beseeke Almighty God, it
may be well and peaceably levied, and surely payd unto the King's grace,
without grudge, and especially without loosing the good will and true
hearts of his subjects, which I reckon a far greater treasure for the
King than gold and silver. And the gentlemen that must take pains to
levy this money among the King's subjects, I think, shall have no little
business about the same." Strype's _Eccles. Memorials_, vol. i. p. 49.
This is also printed in Ellis's _Letters illustrative of English
History_, i. 220.
[21] I may notice here a mistake of Mr. Hume and Dr. Lingard. They
assert Henry to have received tonnage and poundage several years before
it was vested in him by the legislature. But it was granted by his first
parliament, stat. 1 H. 8, c. 20, as will be found even in Ruffhead's
table of contents, though not in the body of his volume; and the act is
of course printed at length in the great edition of the statutes. That
which probably by its title gave rise to the error, 6 H. 8, c. 13, has a
different object.
[22] Hall, 645. This chronicler says the laity were assessed at a tenth
part. But this was only so of the smaller estates, namely, from L20 to
L300; for from L300 to L1000 the contribution demanded was twenty marks
for each L100, and for an estate of L1000, two hundred marks, and so in
proportion upwards. MS. Instructions to Commissioners, penes auctorem.
This was, "upon sufficient promise and assurance, to be repaid unto them
upon such grants and contributions as shall be given and granted to his
grace at his next parliament."--_Ib._ "And they shall practise by all
the means to them possible that such sums as shall be so granted by the
way of loan, be forthwith levied and paid, or the most part, or at the
least the moiety thereof, the same to be paid in as brief time after as
they can possibly persuade and induce them unto; showing unto them that,
for the sure payment thereof, they shall have writings delivered unto
them under the king's privy seal by such person or persons as shall be
deputed by the king to receive the said loan, after the form of a minute
to be shown unto them by the said commissioners, the tenor whereof is
thus: We, Henry VIII., by the grace of God, King of England and of
France, Defender of Faith, and Lord of Ireland, promise by these
presents truly to content and repay unto our trusty and well-beloved
subject A. B. the sum of ----, which he hath lovingly advanced unto us
by way of loan, for defence of our realm, and maintenance of our wars
against France and Scotland; In witness whereof we have caused our privy
seal hereunto to be set and annexed the ---- day of ----, the fourteenth
year of our reign."--_Ib._ The rate fixed on the clergy I collect by
analogy, from that imposed in 1525, which I find in another manuscript
letter.
[23] A letter in my possession from the Duke of Norfolk to Wolsey,
without the date of the year, relates, I believe, to this commission of
1525, rather than that of 1522; it being dated on the 10th April, which
appears from the contents to have been before Easter; whereas Easter did
not fall beyond that day in 1523 or 1524, but did so in 1525; and the
first commission, being of the 14th year of the king's reign, must have
sat later than Easter 1522. He informs the cardinal, that from twenty
pounds upward there were not twenty in the county of Norfolk who had not
consented. "So that I see great likelihood that this grant shall be much
more than the loan was." It was done, however, very reluctantly, as he
confesses; "assuring your grace that they have not granted the same
without shedding of many salt tears, only for doubt how to find money to
content the king's highness." The resistance went further than the duke
thought fit to suppose; for in a very short time the insurrection of the
common people took place in Suffolk. In another letter from him and the
Duke of Suffolk to the cardinal they treat this rather lightly, and seem
to object to the remission of the contribution.
This commission issued soon after the news of the battle of Pavia
arrived. The pretext was the king's intention to lead an army into
France. Warham wrote more freely than the Duke of Norfolk as to the
popular discontent, in a letter to Wolsey, dated April 5. "It hath been
showed me in a secret manner of my friends, the people sore grudgeth and
murmureth, and speaketh cursedly among themselves, as far as they dare,
saying that they shall never have rest of payments as long as some
liveth, and that they had better die than to be thus continually
handled, reckoning themselves, their children, and wives, as despoulit,
and not greatly caring what they do, or what becomes of them.... Further
I am informed, that there is a grudge newly now resuscitate, and revived
in the minds of the people; for the loan is not repaid to them upon the
first receipt of the grant of parliament, as it was promised them by the
commissioners, showing them the king's grace's instructions, containing
the same, signed with his grace's own hand in summer, that they fear not
to speak, that they be continually beguiled, and no promise is kept unto
them; and thereupon some of them suppose that if this gift and grant be
once levied, albeit the king's grace go not beyond the sea, yet nothing
shall be restored again, albeit they be showed the contrary. And
generally it is reported unto me, that for the most part every man saith
he will be contented if the king's grace have as much as he can spare,
but verily many say they be not able to do as they be required. And many
denieth not but they will give the king's grace according to their
power, but they will not anywise give at other men's appointments, which
knoweth not their needs.... I have heard say, moreover, that when the
people be commanded to make fires and tokens of joy for the taking of
the French king, divers of them have spoken that they have more cause to
weep than to rejoice thereat. And divers, as it hath been showed me
secretly, have wished openly that the French king were at his liberty
again, so as there were a good peace, and the king should not attempt to
win France; the winning whereof should be more chargeful to England than
profitable, and the keeping thereof much more chargeful than the
winning. Also it hath been told me secretly that divers have recounted
and repeated what infinite sums of money the king's grace hath spent
already in invading France, once in his own royal person, and two other
sundry times by his several noble captains, and little or nothing in
comparison of his costs hath prevailed; insomuch that the king's grace
at this hour hath not one foot of land more in France than his most
noble father had, which lacked no riches or wisdom to win the kingdom of
France, if he had thought it expedient." The archbishop goes on to
observe, rather oddly, that "he would that the time had suffered that
this practising with the people for so great sums might have been spared
till the cuckow time and the hot weather (at which time mad brains be
wont to be most busy) had been overpassed."
Warham dwells, in another letter, on the great difficulty the clergy had
in making so large a payment as was required of them, and their
unwillingness to be sworn as to the value of their goods. The archbishop
seems to have thought it passing strange that people would be so
wrongheaded about their money. "I have been," he says, "in this shire
twenty years and above, and as yet I have not seen men but would be
conformable to reason, and would be induced to good order, till this
time; and what shall cause them now to fall into these wilful and
indiscreet ways, I cannot tell, except poverty and decay of substance be
the cause of it."
[24] Hall, 696. These expressions, and numberless others might be found,
show the fallacy of Hume's hasty assertion, that the writers of the
sixteenth century do not speak of their own government as more free than
that of France.
[25] Hall, 699.
[26] The word impeachment is not very accurately applicable to these
proceedings against Wolsey; since the articles were first presented to
the Upper House, and sent down to the Commons, where Cromwell so ably
defended his fallen master that nothing was done upon them. "Upon this
honest beginning," says Lord Herbert, "Cromwell obtained his first
reputation." I am disposed to conjecture from Cromwell's character and
that of the House of Commons, as well as from some passages of Henry's
subsequent behaviour towards the cardinal, that it was not the king's
intention to follow up this prosecution, at least for the present. This
also I find to be Dr. Lingard's opinion.
[27] _Rot. Parl._ vi. 164; Burnet, Appendix, No. 31. "When this release
of the loan," says Hall, "was known to the commons of the realm, Lord!
so they grudged and spake ill of the whole parliament; for almost every
man counted it his debt, and reckoned surely of the payment of the same,
and therefore some made their wills of the same, and some other did set
it over to other for debt; and so many men had loss by it, which caused
them sore to murmur, but there was no remedy."--P. 767.
[28] Stat. 35 H. 8, c. 12. I find in a manuscript, which seems to have
been copied from an original in the exchequer, that the monies thus
received by way of loan in 1543 amounted to L110,147 15_s._ 8_d._ There
was also a sum called _devotion money_, amounting only to L1,093 8_s._
3_d._, levied in 1544, "of the devotion of his highnesse's subjects for
_Defence of Christendom against the Turk_."
[29] Lodge's _Illustrations of British History_, i. 711; Strype's
_Eccles. Memorials_, Appendix, n. 119. The sums raised from different
counties for this benevolence afford a sort of criterion of their
relative opulence. Somerset gave L6807; Kent L6471; Suffolk L4512;
Norfolk L4046; Devon L4527; Essex L5051; but Lancaster only L660; and
Cumberland, L574. The whole produced L119,581 7_s._ 6_d._ besides
arrears. In Haynes's _State Papers_, p. 54, we find a curious minute of
Secretary Paget, containing reasons why it was better to get the money
wanted by means of a benevolence than through parliament. But he does
not hint at any difficulty of obtaining a parliamentary grant.
[30] Lodge, p. 80. Lord Herbert mentions this story, and observes, that
Reed having been taken by the Scots, was compelled to pay much more for
his ransom than the benevolence required of him.
[31] Rhymer, xv. 84. These commissions bearing date 5th January 1546.
[32] Hall, 622. Hume, who is favourable to Wolsey, says, "There is no
reason to think the sentence against Buckingham unjust." But no one who
reads the trial will find any evidence to satisfy a reasonable mind; and
Hume himself soon after adds, that his crime proceeded more from
indiscretion than deliberate malice. In fact, the condemnation of this
great noble was owing to Wolsey's resentment, acting on the savage
temper of Henry.
[33] Several letters that passed between the council and Duke of Norfolk
(_Hardwicke State Papers_, i. 28, etc.) tend to confirm what some
historians have hinted, that he was suspected of leaning too favourably
towards the rebels. The king was most unwilling to grant a free pardon.
Norfolk is told, "If you could, by any good means or possible dexterity,
reserve a very few persons for punishments, you should assuredly
administer the greatest pleasure to his highness that could be imagined,
and much in the same advance your own honour."--P. 32. He must have
thought himself in danger from some of these letters, which indicate the
king's distrust of him. He had recommended the employment of men of high
rank as lords of the marches, instead of the rather inferior persons
whom the king had lately chosen. This called down on him rather a warm
reprimand (p. 39); for it was the natural policy of a despotic court to
restrain the ascendency of great families; nor were there wanting very
good reasons for this, even if the public weal had been the sole object
of Henry's council. See also, for the subject of this note, the State
Papers and MSS., H. 8, 1830, p. 518 _et alibi_. They contain a good deal
of interesting matter as to the northern rebellion, which gave Henry a
pretext for great severities towards the monasteries in that part of
England.
[34] Pole, at his own solicitation, was appointed legate to the Low
Countries in 1537, with the sole object of keeping alive the flame of
the northern rebellion, and exciting foreign powers as well as the
English nation to restore religion by force, if not to dethrone Henry.
It is difficult not to suspect that he was influenced by ambitious views
in a proceeding so treasonable, and so little in conformity with his
polished manners and temperate life. Philips, his able and artful
biographer, both proves and glories in the treason. _Life of Pole_,
sect. 3.
[35] Coke's 4th Institute, 37. It is, however, said by Lord Herbert and
others, that the Countess of Salisbury and the Marchioness of Exeter
were not heard in their defence. The acts of attainder against them were
certainly hurried through parliament; but whether without hearing the
parties, does not appear.
[36] Burnet observes, that Cranmer was absent the first day the bill was
read, 17th June 1540; and by his silence leaves the reader to infer that
he was so likewise on 19th June, when it was read a second and third
time. But this, I fear, cannot be asserted. He is marked in the journal
as present on the latter day; and there is the following entry; "Hodie
lecta est pro secundo et tertio, billa attincturae Thomae Comitis Essex,
et communi omnium procerum tunc praesentium concessu nemine discrepante,
expedita est." And at the close of the session, we find a still more
remarkable testimony to the unanimity of parliament, in the following
words: "Hoc animadvertendum est, quod in hac sessione cum proceres
darent suffragia, et dicerent sententias super actibus praedictis, ea
erat concordia et sententiarum conformitas, ut singuli iis et eorum
singulis assenserint, nemine discrepante. Thomas de Soulemont, Cleric.
Parliamentorum." As far therefore as entries on the journals are
evidence, Cranmer was placed in the painful and humiliating predicament
of voting for the death of his innocent friend. He had gone as far as he
dared in writing a letter to Henry, which might be construed into an
apology for Cromwell, though it was full as much so for himself.
[37] Burnet has taken much pains with the subject, and set her innocence
in a very clear light (i. 197 and iii. 114). See also Strype, i. 280,
and Ellis's _Letters_, ii. 52. But Anne had all the failings of a vain,
weak woman, raised suddenly to greatness. She behaved with unamiable
vindictiveness towards Wolsey, and perhaps (but this worst charge is not
fully authenticated) exasperated the king against More. A remarkable
passage in Cavendish's _Life of Wolsey_, p. 103, edit. 1667, strongly
displays her indiscretion.
A late writer, whose acuteness and industry would raise him to a very
respectable place among our historians, if he could have repressed the
inveterate partiality of his profession, has used every oblique artifice
to lead his readers into a belief of Anne Boleyn's guilt, while he
affects to hold the balance, and state both sides of the question
without determining it. Thus he repeats what he must have known to be
the strange and extravagant lies of Sanders about her birth; without
vouching for them indeed, but without any reprobation of their absurd
malignity. Lingard's _Hist. of England_, vi. 153 (8vo. edit). Thus he
intimates that "the records of her trial and conviction have perished,
perhaps by the hands of those who respected her memory" (p. 316);
though, had he read Burnet with any care, he would have found that they
were seen by that historian, and surely have not perished since by any
unfair means; not to mention that the record of a trial contains nothing
from which a party's guilt or innocence can be inferred. Thus he says
that those who were executed on the same charge with the queen, neither
admitted nor denied the offence, for which they suffered; though the
best informed writers assert that Norris constantly declared the queen's
innocence and his own.
Dr. Lingard can hardly be thought serious, when he takes credit to
himself, in the commencement of a note at the end of the same volume,
for not "rendering his book more interesting, by representing her as an
innocent and injured woman, falling a victim to the intrigues of a
religious faction." He well knows that he could not have done so,
without contradicting the tenor of his entire work, without ceasing, as
it were, to be himself. All the rest of this note is a pretended
balancing of evidence, in the style of a judge who can hardly bear to
put for a moment the possibility of a prisoner's innocence.
I regret very much to be compelled, in this edition, to add the name of
Mr. Sharon Turner to those who have countenanced the supposition of Anne
Boleyn's guilt. But Mr. Turner, a most worthy and painstaking man, to
whose earlier writings our literature is much indebted, has, in his
history of Henry VIII., gone upon the strange principle of exalting that
tyrant's reputation at the expense of every one of his victims, to
whatever party they may have belonged. _Odit damnatos._ Perhaps he is
the first, and will be the last, who has defended the attainder of Sir
Thomas More. A verdict of a jury, an assertion of a statesman, a recital
of an act of parliament, are, with him, satisfactory proofs of the most
improbable accusations against the most blameless character.
[38] The lords pronounced a singular sentence, that she should be burned
or beheaded at the king's pleasure. Burnet says the judges complained of
this as unprecedented. Perhaps in strictness the king's right to _alter_
a sentence is questionable, or rather would be so, if a few precedents
were out of the way. In high treason committed by a man, the beheading
was part of the sentence, and the king only remitted the more cruel
preliminaries. Women, till 1791, were condemned to be burned. But the
two queens of Henry, the Countess of Salisbury, Lady Rochford, Lady Jane
Grey, and, in later times, Mrs. Lisle, were beheaded. Poor Mrs. Gaunt
was not thought noble enough to be rescued from the fire. In felony,
where beheading is no part of the sentence, it has been substituted by
the king's warrant in the cases of the Duke of Somerset and Lord Audley.
I know not why the latter obtained this favour; for it had been refused
to Lord Stourton, hanged for murder under Mary, as it was afterwards to
Earl Ferrers.
[39] It is often difficult to understand the grounds of a parliamentary
attainder, for which any kind of evidence was thought sufficient; and
the strongest proofs against Catherine Howard undoubtedly related to her
behaviour before marriage, which could be no legal crime. But some of
the depositions extend further.
Dr. Lingard has made a curious observation on this case. "A plot was
woven by the industry of the reformers, which brought the young queen to
the scaffold, and weakened the ascendency of the reigning party."--P.
407. This is a very strange assertion; for he proceeds to admit her
ante-nuptial guilt, which indeed she is well known to have confessed,
and does not give the slightest proof of any plot. Yet he adds, speaking
of the queen and Lady Rochford: "I fear [_i.e._ wish to insinuate] both
were sacrificed to the manes of Anne Boleyn."
[40] Stat. 26 H. 8, c. 13.
It may be here observed, that the act attainting Catherine Howard of
treason proceeds to declare that the king's assent to bills by
commission under the great seal is as valid as if he were personally
present; any custom or use to the contrary notwithstanding. 33 H. 8, c.
21. This may be presumed therefore to be the earliest instance of the
king's passing bills in this manner.
[41] 22 H. 8, c. 18.
[42] 28 H. 8, c. 7.
[43] 35 H. 8, c. 1.
[44] 28 H. 8, c. 17.
[45] 31 H. 8, c. 8; Burnet, i. 263, explains the origin of this act.
Great exceptions had been taken to some of the king's ecclesiastical
proclamations, which altered laws, and laid taxes on spiritual persons.
He justly observes that the restrictions contained in it gave great
power to the judges, who had the power of expounding in their hands. The
preamble is full as offensive as the body of the act; reciting the
contempt and disobedience of the king's proclamations by some "who did
not consider _what a king by his royal power might do_, which if it
continued would tend to the disobedience of the laws of God, and the
dishonour of the king's majesty, who might full ill bear it," etc. See
this act at length in the great edition of the statutes. There was one
singular provision; the clause protecting all persons, as mentioned, in
their inheritance or other property, proceeds, "nor shall by virtue of
the said act suffer any pains of death." But an exception is afterwards
made for "such persons which shall offend against any proclamation to be
made by the king's highness, his heirs or successors, for or concerning
any kind of heresies against Christian doctrine." Thus it seems that the
king claimed a power to declare heresy by proclamation, under penalty of
death.
[46] Gray has finely glanced at this bright point of Henry's character,
in that beautiful stanza where he has made the founders of Cambridge
pass before our eyes, like shadows over a magic glass:
"the majestic lord,
Who broke the bonds of Rome."
In a poet, this was a fair employment of his art; but the partiality of
Burnet towards Henry VIII. is less warrantable; and he should have
blushed to excuse, by absurd and unworthy sophistry, the punishment of
those who refused to swear to the king's supremacy. P. 351.
After all, Henry was every whit as good a king and man as Francis I.,
whom there are still some, on the other side of the Channel, servile
enough to extol; not in the least more tyrannical and sanguinary, and of
better faith towards his neighbours.
[47] 1 Edw. 6, c. 12. By this act it is provided that a lord of
parliament shall have the benefit of clergy though he cannot read. Sect.
14. Yet one can hardly believe, that this provision was necessary at so
late an aera.
[48] 2 Strype, 147, 341, 491.
[49] _Id._ 149. Dr. Lingard has remarked an important change in the
coronation ceremony of Edward VI. Formerly, the king had taken an oath
to preserve the liberties of the realm, and especially those granted by
Edward the Confessor, etc., before the people were asked whether they
would consent to have him as their king. See the form observed at
Richard the Second's coronation in Rymer, vii. 158. But at Edward's
coronation, the archbishop presented the king to the people, as rightful
and undoubted inheritor by the laws of God and man to the royal dignity
and crown imperial of this realm, etc., and asked if they would serve
him and assent to his coronation, as by their duty of allegiance they
were bound to do. All this was before the oath. 2 Burnet, Appendix, p.
93.
Few will pretend that the coronation, or the coronation oath, were
essential to the legal succession of the crown, or the exercise of its
prerogatives. But this alteration in the form is a curious proof of the
solicitude displayed by the Tudors, as it was much more by the next
family, to suppress every recollection that could make their sovereignty
appear to be of popular origin.
[50] Haynes's state papers contain many curious proofs of the incipient
amour between Lord Seymour and Elizabeth, and show much indecent
familiarity on one side, with a little childish coquetry on the other.
These documents also rather tend to confirm the story of our elder
historians, which I have found attested by foreign writers of that age
(though Burnet has thrown doubts upon it), that some differences between
the queen-dowager and the Duchess of Somerset aggravated at least those
of their husbands. P. 61, 69. It is alleged with absurd exaggeration, in
the articles against Lord Seymour, that, had the former proved
immediately with child after her marriage with him, it might have passed
for the king's. This marriage, however, did not take place before June,
Henry having died in January. Ellis's _Letters_, ii. 150.
[51] Journals, Feb. 27, March 4, 1548-9. From these I am led to doubt
whether the commons actually heard witnesses against Seymour, which
Burnet and Strype have taken for granted.
[52] Stat. 5 and 6 Edw. VI., c. 11, s. 12.
[53] Burnet, ii. 243. An act was made to confirm deeds of private
persons, dated during Jane's ten days, concerning which some doubt had
arisen. 1 Mary, sess. 2, c. 4. It is said in this statute, "her
highness's most lawful possession was for a time disturbed and
disquieted by traiterous rebellion and usurpation."
It appears that the young king's original intention was to establish a
modified Salic law, excluding females from the crown, but not their male
heirs. In a writing drawn by himself, and entitled "My Device for the
Succession," it is entailed on the heirs male of the lady queen, if she
have any before his death; then to the _Lady Jane and her heirs male_;
then to the heirs male of Lady Katharine; and in every instance, except
Jane, excluding the female herself. Strype's _Cranmer_, Append. 164. A
late author, on consulting the original MS., in the king's handwriting,
found that it had been at first written, "the Lady Jane's heirs male,"
but that the words "and her" had been interlined. Nares's _Memoirs of
Lord Burghley_, i. 451. Mr. Nares does not seem to doubt but that this
was done by Edward himself: the change, however, is remarkable, and
should probably be ascribed to Northumberland's influence.
[54] Burnet, Strype, iii. 50, 53; Carte, 290. I doubt whether we have
anything in our history more like conquest than the administration of
1553. The queen, in the month only of October, presented to 256 livings,
restoring all those turned out under the acts of uniformity. Yet the
deprivation of the bishops might be justified probably by the terms of
the commission they had taken out in Edward's reign, to hold their sees
during the king's pleasure, for which was afterwards substituted "during
good behaviour." Burnet, App. 257; Collier, 218.
[55] Burnet, ii. 278; Stat. 1 Mary, sess. 3, c. 1. Dr. Lingard rather
strangely tells this story on the authority of Father Persons, whom his
readers probably do not esteem quite as much as he does. If he had
attended to Burnet, he would have found a more sufficient voucher.
[56] Carte, 330.
[57] Haynes, 195; Burnet, ii. Appendix, 256, iii. 243.
[58] Burnet, ii. 347. Collier, ii. 404, and Lingard, vii. 266 (who, by
the way, confounds this commission with something different two years
earlier) will not hear of this allusion to the inquisition. But Burnet
has said nothing that is not perfectly just.
[59] Strype, iii. 459.
[60] See Stafford's proclamation from Scarborough Castle, Strype, iii.
Appendix, No. 71. It contains no allusion to religion, both parties
being weary of Mary's Spanish counsels. The important letters of
Noailles, the French ambassador, to which Carte had access, and which
have since been printed, have afforded information to Dr. Lingard, and
with those of the imperial ambassador, Renard, which I have not had an
opportunity of seeing, throw much light on this reign. They certainly
appear to justify the restraint put on Elizabeth, who, if not herself
privy to the conspiracies planned in her behalf (which is, however, very
probable), was at least too dangerous to be left at liberty. Noailles
intrigued with the malcontents, and instigated the rebellion of Wyatt,
of which Dr. Lingard gives a very interesting account. Carte, indeed,
differs from him in many of these circumstances, though writing from the
same source, and particularly denies that Noailles gave any
encouragement to Wyatt. It is, however, evident from the tenor of his
despatches that he had gone great lengths in fomenting the discontent,
and was evidently desirous of the success of the insurrection (iii. 36,
43, etc.). This critical state of the government may furnish the usual
excuse for its rigour. But its unpopularity was brought on by Mary's
breach of her word as to religion, and still more by her obstinacy in
forming her union with Philip against the general voice of the nation,
and the opposition of Gardiner; who, however, after her resolution was
taken, became its strenuous supporter in public. For the detestation in
which the queen was held, see the letters of Noailles, _passim_; but
with some degree of allowance for his own antipathy to her.
[61] Burnet, i. 117. The king refused his assent to a bill which had
passed both houses, but apparently not of a political nature. _Lords'
Journals_, p. 162.
[62] Burnet, 190.
[63] _Id._ 195, 215. This was the parliament, in order to secure
favourable elections for which the council had written letters to the
sheriffs. These do not appear to have availed so much as they might
hope.
[64] Carte, 311, 322; Noailles, v. 252. He says that she committed some
knights to the Tower for their language in the house. _Id._ 247. Burnet,
p. 324, mentions the same.
[65] Burnet, 322; Carte, 296. Noailles says, that a third part of the
Commons in Mary's first parliament was hostile to the repeal of Edward's
laws about religion, and that the debates lasted a week. ii. 247. The
journals do not mention any division; though it is said in Strype, iii.
204, that one member, Sir Ralph Bagnal, refused to concur in the act
abolishing the supremacy. The queen, however, in her letter to Cardinal
Pole, says of this repeal: "Quod non sine contentione, disputatione
acri, et summo labore fidelium factum est." Lingard, Carte, Philips's
_Life of Pole_. Noailles speaks repeatedly of the strength of the
protestant party, and of the enmity which the English nation, as he
expresses it, bore to the pope. But the aversion to the marriage with
Philip, and dread of falling under the yoke of Spain, was common to both
religions, with the exception of a few mere bigots to the church of
Rome.
[66] Noailles, vol. 5, _passim_.
[67] Strype, ii. 394.
[68] Strype, iii. 155; Burnet, ii. 228.
[69] Burnet, ii. 262, 277.
[70] Noailles, v. 190. Of the truth of this plot there can be no
rational ground to doubt; even Dr. Lingard has nothing to advance
against it but the assertion of Mary's counsellors, the Pagets and
Arundels, the most worthless of mankind. We are, in fact, greatly
indebted to Noailles for his spirited activity, which contributed, in a
high degree, to secure both the protestant religion and the national
independence of our ancestors.
[71] Henry VII. first established a band of fifty archers to wait on
him. Henry VIII. had fifty horse-guards, each with an archer, demilance
and couteiller, like the gendarmerie of France; but on account,
probably, of the expense it occasioned, their equipment being too
magnificent, this soon was given up.
[72] _View of Middle Ages_, ch. 8. I must here acknowledge, that I did
not make the requisite distinction between the concilium secretum, or
privy council of state, and the concilium ordinarium, as Lord Hale calls
it, which alone exercised jurisdiction.
[73] _Commonwealth of England_, book 3, c. 1. The statute 26 H. 8, c. 4
enacts, that if a jury in Wales acquit a felon, contrary to good and
pregnant evidence, or otherwise misbehave themselves, the judge may bind
them to appear before the president and council of the Welsh marches.
The partiality of Welsh jurors was notorious in that age; and the
reproach has not quite ceased.
[74] _State Trials_, i. 901; Strype, ii. 120. In a letter to the Duke of
Norfolk (_Hardwicke Papers_, i. 46) at the time of the Yorkshire
rebellion in 1536, he is directed to question the jury who had acquitted
a particular person, in order to discover their motive. Norfolk seems to
have objected to this for a good reason, "least the fear thereof might
trouble others in the like case." But it may not be uncandid to ascribe
this rather to a leaning towards the insurgents than a constitutional
principle.
[75] _Hale's Jurisdiction of the Lords' House_, p. 5. Coke, 4th Inst.
65, where we have the following passage: "So this court [the court of
star-chamber, as the concilium was then called] being holden coram rege
et concilio, it is, or may be, compounded of three several councils;
that is to say, of the lords and others of his majesty's privy council,
always judges without appointment, as before it appeareth. 2. The judges
of either bench and barons of the exchequer are of the king's council,
for matters of law, etc., and the two chief justices, or in their
absence other two justices, are standing judges of this court. 3. The
lords of parliament are properly de magno concilio regis; but neither
those, not being of the king's privy council, nor any of the rest of the
judges or barons of the exchequer are standing judges of the court." But
Hudson, in his _Treatise of the Court of Star-chamber_, written about
the end of James's reign, inclines to think that all peers had a right
of sitting in the court of star-chamber; there being several instances
where some who were not of the council of state were present and gave
judgment, as in the case of Mr. Davison, "and how they were complete
judges unsworn, if not by their native right, I cannot comprehend; for
surely the calling of them in that case was not made legitimate by any
act of parliament; neither without their right were they more apt to be
judges than any other inferior persons in the kingdom; and yet I doubt
not but it resteth in the king's pleasure to restrain any man from that
table, as well as he may any of his council from the board."
_Collectanea Juridica_, ii. p. 24. He says also, that it was demurrable
for a bill to pray process against the defendant, to appear before the
king and his privy council. _Ibid._
[76] The privy council sometimes met in the star-chamber, and made
orders. See one in 18 H. 6, Harl. MSS. Catalogue, N. 1878, fol. 20. So
the statute, 21 H. 8, c. 16, recites a decree _by the king's council in
his star-chamber_, that no alien artificer shall keep more than two
alien servants, and other matters of the same kind. This could no way
belong to the court of star-chamber, which was a judicial tribunal.
It should be remarked, though not to our immediate purpose, that this
decree was supposed to require an act of parliament for its
confirmation; so far was the government of Henry VIII. from arrogating a
legislative power in matters of private right.
[77] Lord Hale thinks that the jurisdiction of the council was gradually
"brought into great disuse, though there remain some straggling
footsteps of their proceedings till near 3 H. 7."--P. 38. "The continual
complaints of the commons against the proceedings before the council in
causes civil or criminal, although they did not always attain their
concession, yet brought a disreputation upon the proceedings of the
council, as contrary to Magna Charta and the known laws."--P. 39. He
seems to admit afterwards, however, that many instances of proceedings
before them in criminal causes might be added to those mentioned by Lord
Coke. P. 43.
The paucity of records about the time of Edward IV. renders the negative
argument rather weak; but, from the expression of Sir Thomas Smith in
the text, it may perhaps be inferred that the council had intermitted in
a considerable degree, though not absolutely disused, their exercise of
jurisdiction for some time before the accession of the house of Tudor.
Mr. Brodie, in his _History of the British Empire under Charles I._, i.
158, has treated at considerable length, and with much acuteness, this
subject of the antiquity of the star-chamber. I do not coincide in all
his positions; but the only one very important, is that wherein we fully
agree, that its jurisdiction was chiefly usurped, as well as tyrannical.
I will here observe that this part of our ancient constitutional history
is likely to be elucidated by a friend of my own, who has already given
evidence to the world of his singular competence for such an
undertaking, and who unites, with all the learning and diligence of
Spelman, Prynne, and Madox, an acuteness and vivacity of intellect which
none of those writers possessed.
[78] _Commonwealth of England_, book 3, c. 4. We find Sir Robert
Sheffield in 1517 "put into the Tower again for the complaint he made to
the king of my lord cardinal." Lodge's _Illustrations_, i. p. 27. See
also Hall, p. 585, for Wolsey's strictness in punishing the "lords,
knights, and men of all sorts, for riots, bearing, and maintenance."
[79] Plowden's _Commentaries,_ 393. In the year-book itself, 8 H. 7, pl.
ult. the word star-chamber is not used. It is held in this case, that
the chancellor, treasurer, and privy-seal were the only judges, and the
rest but assistants. Coke, 4 Inst. 62, denies this to be law; but on no
better grounds than that the practice of the star-chamber, that is, of a
different tribunal, was not such.
[80] _Hist. of Henry VII._ in Bacon's works, ii. p. 290.
[81] The result of what has been said in the last pages may be summed up
in a few propositions. 1. The court erected by the statute of 3 Henry
VII. was not the court of star-chamber. 2. This court by the statute
subsisted in full force till beyond the middle of Henry VIII.'s reign,
but not long afterwards went into disuse. 3. The court of star-chamber
was the old concilium ordinarium, against whose jurisdiction many
statutes had been enacted from the time of Edward III. 4. No part of the
jurisdiction exercised by the star-chamber could be maintained on the
authority of the statute of Henry VII.
[82] Burnet, ii. 324.