Constitutional History of England Volume I Part 3

_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 pet.i.tions of parliament and frequent statutes remain on record, bearing witness to our const.i.tutional 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 dest.i.tute 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 n.o.bility. 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 n.o.ble 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 partic.i.p.ation 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 princ.i.p.al 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 pa.s.s sentence on capital charges; yet, by intimidating jurors, it procured convictions which it was not authorised to p.r.o.nounce. 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 p.r.o.nounce 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 pa.s.seth 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 p.r.o.nouncing one not guilty of treason contrary to such evidence as was brought in, were not only imprisoned for a s.p.a.ce, 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 c.o.ke, 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 a.s.sumed 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 cla.s.s 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 a.s.semblies, 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 a.s.signed 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 n.o.blemen 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 n.o.blemen 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 n.o.ble 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 a.s.suaged, 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 cla.s.s 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 wors.h.i.+pping 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 circ.u.mstances, 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 n.o.ble inst.i.tution, as he terms it, of that court, whose walls had been so often witnesses to the degradation of his own mind. It took cognisance princ.i.p.ally, 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 n.o.bility were precisely the cla.s.s most deficient in that const.i.tutional 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 n.o.bles 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 carca.s.s, 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 const.i.tutional 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 const.i.tution 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 circ.u.mstances, 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 indors.e.m.e.nt 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_ _a.s.sumpsit_, 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 princ.i.p.ally 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. doc.u.ment. A vast number of persons paid fines for their share in the western rebellion of 1497, from 200 down to 20_s._ Hall, 486. Ellis's _Letters ill.u.s.trative 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 rest.i.tution 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 rest.i.tution "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 pa.s.sed 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 Lords.h.i.+ps 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 s.h.i.+llings 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 a.s.sembled; and so they, being the more part, willed and gave to the King two s.h.i.+llings of the pound of goods or lands, the best to be taken for the King. All lands to pay two s.h.i.+llings of the pound for the laity, to the highest. The goods to pay two s.h.i.+llings of the pound, for twenty pound upward; and from forty s.h.i.+llings of goods, to twenty pound, to pay sixteen pence of the pound; and under forty s.h.i.+llings, 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 G.o.d, 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 ill.u.s.trative of English History_, i. 220.

[21] I may notice here a mistake of Mr. Hume and Dr. Lingard. They a.s.sert 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 t.i.tle gave rise to the error, 6 H. 8, c. 13, has a different object.

[22] Hall, 645. This chronicler says the laity were a.s.sessed at a tenth part. But this was only so of the smaller estates, namely, from 20 to 300; for from 300 to 1000 the contribution demanded was twenty marks for each 100, and for an estate of 1000, two hundred marks, and so in proportion upwards. MS. Instructions to Commissioners, penes auctorem.

This was, "upon sufficient promise and a.s.surance, 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 G.o.d, 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 a.n.a.logy, from that imposed in 1525, which I find in another ma.n.u.script 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; "a.s.suring 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 n.o.ble 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 n.o.ble 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 overpa.s.sed."

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 pa.s.sing strange that people would be so wrongheaded about their money. "I have been," he says, "in this s.h.i.+re 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 a.s.sertion, 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 pa.s.sages 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 ma.n.u.script, 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 110,147 15_s._ 8_d._ There was also a sum called _devotion money_, amounting only to 1,093 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 _Ill.u.s.trations 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 6807; Kent 6471; Suffolk 4512; Norfolk 4046; Devon 4527; Ess.e.x 5051; but Lancaster only 660; and c.u.mberland, 574. The whole produced 119,581 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 n.o.ble was owing to Wolsey's resentment, acting on the savage temper of Henry.