Constitutional History of England Volume I Part 2

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 a.s.size 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 clans.h.i.+p, 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 munic.i.p.al 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 Lancas.h.i.+re and c.u.mberland, 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 a.s.serting a just right of inheritance, became master of the throne by the defeat and death of his compet.i.tor at Bosworth, and by the general submission of the kingdom. He a.s.sumed the royal t.i.tle immediately after his victory, and summoned a parliament to recognise or sanction his possession. The circ.u.mstances 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 a.s.sembly 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 a.s.sent 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 a.s.sertion of an hereditary right that the public voice repelled, were meant to create a parliamentary t.i.tle, 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 pa.s.s 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 n.o.bles 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 const.i.tutional maxim, that possession of the throne gives a sufficient t.i.tle 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 const.i.tution; 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 n.o.bility 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 princ.i.p.al cause of exalting the royal authority upon the ruins of the aristocracy; I mean, the Statute of Fines (as one pa.s.sed 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 establis.h.i.+ng 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 circ.u.mstances, 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 cla.s.ses 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 unconst.i.tutional 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 cla.s.s could well afford a.s.sistance 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 acc.u.mulating 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 t.i.tle 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 prost.i.tute 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 n.o.bility. The Earl of Oxford compounded, by the payment of 15,000, 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 a.s.serted by early writers, though perhaps only on conjecture, that he left a sum thus ama.s.sed, of no less than 1,800,000 at his decease.

This treasure was soon dissipated by his successor, who had recourse to the a.s.sistance 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 circ.u.mstances to throw a l.u.s.tre 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 pa.s.sed in his first parliament to correct the abuses that had prevailed in finding the king's t.i.tle to lands by escheat.[16] The same parliament repealed a law of the late reign, enabling justices of a.s.size 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 punis.h.i.+ng 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 800,000, 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 a.s.sembled 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 hoa.r.s.e 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 princ.i.p.ally owing to the peculiar circ.u.mstances 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 n.o.bler 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 partic.i.p.ation 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 pa.s.sed 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 a.s.sessing, by virtue of any commission or commissions, or by any other mean or means, whatever it be, heretofore, pa.s.sed for that purpose."[27] This extreme servility and breach of trust naturally excited loud murmurs; for the debts thus released had been a.s.signed 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 pa.s.sed, 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 a.s.sessed at the last subsidy, calling on no one whose lands were of less value than 40_s._ or whose chattels were less than 15. 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 G.o.d, 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 ingrat.i.tude, 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 doc.u.ment, so curiously ill.u.s.trative 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 st.u.r.dy 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 t.i.tle 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 a.s.surance, 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 s.h.i.+pwrecked 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 n.o.bility.

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 lat.i.tude 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 pa.s.siveness 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 a.s.sert. 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 Glas...o...b..ry, 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 dest.i.tute 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 p.r.o.ne 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 Ess.e.x, fell so suddenly, and so totally without offence, that it has perplexed some writers to a.s.sign 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 n.o.blest 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 pa.s.sed 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 b.a.s.t.a.r.dise the Princess Mary, whose t.i.tle 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 a.s.sert 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 const.i.tutional 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 d.u.c.h.ess 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 const.i.tution 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 superst.i.tion had been broken, and the prison gates burst asunder.[46]

_Government of Edward VI.'s counsellors._--The ill-a.s.sorted 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 const.i.tution 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 const.i.tution. 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 unconst.i.tutional 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, const.i.tuting him sole regent under the name of protector, with the a.s.sistance 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 n.o.bler 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 pa.s.sed 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 compet.i.tor, 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 t.i.tle, 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 const.i.tutional 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 a.s.sert, 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 const.i.tutional law.

_Violence of Mary's reign._--It seems hardly necessary to mention the momentary usurpation of Lady Jane Grey, founded on no pretext of t.i.tle 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-establis.h.i.+ng popery belong to the civil history of our const.i.tution. Impatient, under the existence, for a moment, of rites and usages which she abhorred, this bigoted woman antic.i.p.ated 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 pa.s.sed, 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 a.s.sent 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 const.i.tution 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 viol