Henry VIII Part 28

[Footnote 904: _Ibid._, vii., App. 13.]

[Footnote 905: _Ibid._, vii., 171; _cf._ XII., ii., 952.]

[Footnote 906: This commission was not appointed till 1551: see the present writer's _Cranmer_, pp.

280-4.]

[Footnote 907: 25 Henry VIII., c. 19. The first suggestion appears to have been "to give the Archbishop of Canterbury the seal of Chancery, and pa.s.s bulls, dispensations and other provisions under it" (_L. and P._, vii., 14; _cf._ vii., 57); his t.i.tle was changed from _Apostolicae Sedis legatus_ to _Metropolita.n.u.s_ (_ibid._, vii., 1555).]

Another act provided that charges of heresy must be supported by two lay witnesses, and that indictments for that offence could only be made by lay authorities. This, like the rest of Henry's anti-ecclesiastical legislation, was based on popular clamour. On the 5th of March the whole House of Commons, with the Speaker at their head, had waited on the King at York Place and expatiated for three hours on the oppressiveness of clerical jurisdiction. At length it was agreed that eight temporal peers, eight representatives of the Lower House and sixteen bishops "should discuss the matter and the King be umpire"[908]--a repet.i.tion of the plan of 1529 and a very exact reflection of Henry's methods and of the Church-and-State situation during the Reformation Parliament.

[Footnote 908: _L. and P._, vii., 304, 393, 399; the provision about two witnesses was in 1547 extended to treason.]

The final act of the session, which ended on 30th March, was a (p. 321) const.i.tutional innovation of the utmost importance. From the earliest ages the succession to the crown had in theory been determined, first by election, and then by hereditary right. In practice it had often been decided by the barbarous arbitrament of war. For right is vague, it may be disputed, and there was endless variety of opinion as to the proper claimant to the throne if Henry should die. So vague right was to be replaced by definite law, which could not be disputed, but which, unlike right, could easily be changed. The succession was no longer to be regulated by an unalterable principle, but by the popular (or royal) will expressed in Acts of Parliament.[909] The first of a long series of Acts of Succession was now pa.s.sed to vest the succession to the crown in the heirs of the King by Anne Boleyn; clauses were added declaring that persons who impugned that marriage by writing, printing, or other deed were guilty of treason, and those who impugned it by words, of misprision. The Government proposal that both cla.s.ses of offenders should be held guilty of treason was modified by the House of Commons.[910]

[Footnote 909: The succession to the crown was one of the last matters affected by the process of subst.i.tuting written law for unwritten right which began with the laws of Ethelbert of Kent. There had of course been _ex post facto_ acts recognising that the crown was vested in the successful compet.i.tor.]

[Footnote 910: _L. and P._, vii., 51.]

On 23rd March, a week before the prorogation of Parliament, and seven years after the divorce case had first begun, Clement gave sentence at Rome p.r.o.nouncing valid the marriage between Catherine and Henry.[911]

The decision produced not a ripple on the surface of English affairs; Henry, writes Chapuys, took no account of it and was making as (p. 322) good cheer as ever.[912] There was no reason why he should not.

While the imperialist mob at Rome after its kind paraded the streets in crowds, shouting "Imperio et Espagne," and firing _feux-de-joie_ over the news, the imperialist agent was writing to Charles that the judgment would not be of much profit, except for the Emperor's honour and the Queen's justification, and was congratulating his master that he was not bound to execute the sentence.[913] Flemings were tearing down the papal censures from the doors of their churches,[914] and Charles was as convinced as ever of the necessity of Henry's friends.h.i.+p. He proposed to the Pope that some one should be sent from Rome to join Chapuys in "trying to move the King from his error"; and Clement could only reply that "he thought the emba.s.sy would have no effect on the King, but that nothing would be lost by it, and it would be a good compliment!"[915] Henry, however was less likely to be influenced by compliments, good or bad, than by the circ.u.mstance that neither Pope nor Emperor was in a position to employ any ruder persuasive. There was none so poor as to reverence a Pope, and, when Clement died six months later, the Roman populace broke into the chamber where he lay and stabbed his corpse; they were with difficulty prevented from dragging it in degradation through the streets.[916]

Such was the respect paid to the Supreme Pontiff in the Holy City, and deference to his sentence was not to be expected in more distant parts.

[Footnote 911: _Ibid._, vii., 362.]

[Footnote 912: _L. and P._, vii., 469.]

[Footnote 913: _Ibid._, vii., 368.]

[Footnote 914: _Ibid._, vii., 184.]

[Footnote 915: _Ibid._, vii., 804.]

[Footnote 916: _Ibid._, vii., 1262.]

Henry's political education was now complete; the events of the last five years had proved to him the truth of the a.s.sertion, with (p. 323) which he had started, that the Pope might do what he liked at Rome, but that he also could do what he liked in England, so long as he avoided the active hostility of the majority of his lay subjects. The Church had, by its actions, shown him that it was powerless; the Pope had proved the impotence of his spiritual weapons; and the Emperor had admitted that he was both unable and unwilling to interfere. Henry had realised the extent of his power, and the opening of his eyes had an evil effect upon his character. Nothing makes men or Governments so careless or so arbitrary as the knowledge that there will be no effective opposition to their desires. Henry, at least, never grew careless; his watchful eye was always wide open. His ear was always strained to catch the faintest rumbling of a coming storm, and his subtle intellect was ever on the alert to take advantage of every turn in the diplomatic game. He was always efficient, and he took good care that his ministers should be so as well. But he grew very arbitrary; the knowledge that he could do so much became with him an irresistible reason for doing it. Despotic power is twice cursed; it debases the ruler and degrades the subject; and Henry's progress to despotism may be connected with the rise of Thomas Cromwell, who looked to the Great Turk as a model for Christian princes.[917] Cromwell became secretary in May, 1534; in that month Henry's security was enhanced by the (p. 324) definitive peace with Scotland,[918] and he set to work to enforce his authority with the weapons which Parliament had placed in his hands. Elizabeth Barton, and her accomplices, two Friars Observants, two monks, and one secular priest, all attainted of treason by Act of Parliament, were sent to the block.[919] Commissioners were sent round, as Parliament had ordained, to enforce the oath of succession throughout the land.[920] A general refusal would have stopped Henry's career, but the general consent left Henry free to deal as he liked with the exceptions. Fisher and More were sent to the Tower. They were willing to swear to the succession, regarding that as a matter within the competence of Parliament, but they refused to take the oath required by the commissioners;[921] it contained, they alleged, a repudiation of the Pope not justified by the terms of the statute. Two cartloads of friars followed them to the Tower in June, and the Order of Observants, in whose church at Greenwich Henry had been baptised and married, and of whom in his earlier years he had written in terms of warm admiration, was suppressed altogether.[922]

[Footnote 917: "The Lord Cromwell," says Bishop Gardiner, "had once put in the King our late sovereign lord's head, to take upon him to have his will and pleasure regarded for a law; for that, he said, was to be a very King," and he quoted the _quod principi placuit_ of Roman civil law.

Gardiner replied to the King that "to make the laws his will was more sure and quiet" and "agreeable with the nature of your people". Henry preferred Gardiner's advice (Foxe, ed. Townsend, vi., 46).]

[Footnote 918: _L. and P._, vii., 483, 647.]

[Footnote 919: _Ibid._, vii., 522.]

[Footnote 920: _Ibid._, vii., 665.]

[Footnote 921: _Ibid._, vii., 499.]

[Footnote 922: _Ibid._, vii., 841, 856. The order had been particularly active in opposition to the divorce (_ibid._, iv., 6156; v., 266.)]

In November Parliament[923] reinforced the Act of Succession by laying down the precise terms of the oath, and providing that a certificate of refusal signed by two commissioners was as effective as the indictment of twelve jurors. Other acts empowered the King to repeal by royal proclamation certain statutes regulating imports and exports.

The first-fruits and tenths, of which the Pope had been already (p. 325) deprived, were now conferred on the King as a fitting ecclesiastical endowment for the Supreme Head of the Church. That t.i.tle, granted him four years before by both Convocations, was confirmed by Act of Parliament; its object was to enable the King as Supreme Head to effect the "increase of virtue in Christ's Religion within this Realm of England, and to repress and extirp all Errors, Heresies and other Enormities, and Abuses heretofore used in the same". The Defender of the Faith was to be armed with more than a delegate power; he was to be supreme in himself, the champion not of the Faith of any one else, but of his own; and the qualifying clause, "as far as the law of Christ allows," was omitted. His orthodoxy must be above suspicion, or at least beyond the reach of open cavil in England. So new treasons were enacted, and any one who called the King a heretic, schismatic, tyrant, infidel, or usurper, was rendered liable to the heaviest penalty which the law could inflict. As an earnest of the royal and parliamentary desire for an increase of virtue in religion, an act was concurrently pa.s.sed providing for the creation of a number of suffragan bishops.[924]

[Footnote 923: _Ibid._, vii., 1377.]

[Footnote 924: These were not actually created till 1540; the way in which Henry VIII. sought statutory authority for every conceivable thing is very extraordinary. There seems no reason why he could not have created these bishoprics without parliamentary authority.]

Henry was now Pope in England with powers no Pope had possessed.[925]

The Reformation is variously regarded as the liberation of the (p. 326) English Church from the Roman yoke it had long impatiently borne, as its subjection to an Erastian yoke which it was henceforth, with more or less patience, long to bear, or as a comparatively unimportant a.s.sertion of a supremacy which Kings of England had always enjoyed.

The Church is the same Church, we are told, before and after the change; if anything, it was Protestant before the Reformation, and Catholic after. It is, of course, the same Church. A man may be described as the same man before and after death, and the business of a coroner's jury is to establish the ident.i.ty; but it does not ignore the vital difference. Even Saul and Paul were the same man. And the ident.i.ty of the Church before and after the legislation of Henry VIII.

covers a considerable number of not unimportant changes. It does not, however, seem strictly accurate to say that Henry either liberated or enslaved the Church. Rather, he subst.i.tuted one form of despotism for another, a sole for a dual control; the change, complained a reformer, was merely a _translatio imperii_.[926] The democratic movement within the Church had died away, like the democratic movements in national and munic.i.p.al politics, before the end of the fifteenth century. It was never merry with the Church,[927] complained a Catholic in 1533, since the time when bishops were wont to be chosen by the Holy Ghost and by their Chapters.

[Footnote 925: With limitations, of course. Henry's was only a _potestas jurisdictionis_ not a _potestas ordinis_ (see Makower, _Const. Hist. of the Church of England_, and the present writer's _Cranmer_, pp. 83, 84, 95, 232, 233). Cranmer acknowledged in the King also a _potestatem ordinis_, just as Cromwell would have made him the sole legislator in temporal affairs; Henry's unrivalled capacity for judging what he could and could not do saved him from adopting either suggestion.]

[Footnote 926: _L. and P._, XIV., ii., p. 141.]

[Footnote 927: _Ibid._, vi., 797 [2]; a Venetian declared that Huguenotism was "due to the abolition of the election of the clergy" (Armstrong, _Wars of Religion_, p. 11).]

Since then the Church had been governed by a partners.h.i.+p between King and Pope, without much regard for the votes of the shareholders. It was not Henry who first deprived them of influence; neither did (p. 327) he restore it. What he did was to eject his foreign partner, appropriate his share of the profits, and put his part of the business into the hands of a manager. First-fruits and tenths were described as an intolerable burden; but they were not abolished; they were merely transferred from the Pope to the King. Bishops became royal nominees, pure and simple, instead of the joint nominees of King and Pope. The supreme appellate jurisdiction in ecclesiastical causes was taken away from Rome, but it was not granted the English Church to which in truth it had never belonged.[928] Chancery, and not the Archbishop's Court, was made the final resort for ecclesiastical appeals. The authority, divided erstwhile between two, was concentrated in the hands of one; and that one was thus placed in a far different position from that which either had held before.

[Footnote 928: For one year, indeed, Cranmer remained _legatus natus_, and by a strange anomaly exercised a jurisdiction the source of which had been cut off. Stokesley objected to Cranmer's use of that style in order to escape a visitation of his see, and Gardiner thought it an infringement of the royal prerogative. It was abolished in the following year.]

The change was a.n.a.logous to that in Republican Rome from two consuls to one dictator. In both cases the dictators.h.i.+p was due to exceptional circ.u.mstances. There had long been a demand for reform in the Church in England as well as elsewhere, but the Church was powerless to reform itself. The dual control was in effect, as dual controls often are, a practical anarchy. The condition of the Church before the Reformation may be compared with that of France before the Revolution.

In purely spiritual matters the Pope was supreme: the conciliar movement of the fifteenth century had failed. The Pope had (p. 328) gathered all powers to himself, in much the same way as the French monarch in the eighteenth century had done; and the result was the same, a formal despotism and a real anarchy. Pope and Monarch were crushed by the weight of their own authority; they could not reform, even when they wanted to. From 1500 to 1530 almost every scheme, peaceful or bellicose, started in Europe was based on the plea that its ultimate aim was the reform of the Church; and so it would have continued, _vox et praeterea nihil_, had not the Church been galvanised into action by the loss of half its inheritance.

In England the change from a dual to a sole control at once made that control effective, and reform became possible. But it was a reform imposed on the Church from without and by means of the exceptional powers bestowed on the Supreme Head. Hence the burden of modern clerical criticism of the Reformation. Objection is raised not so much to the things that were done, as to the means by which they were brought to pa.s.s, to the fact that the Church was forcibly reformed by the State, and not freed from the trammels of Rome, and then left to work out its own salvation. But such a solution occurred to few at that time; the best and the worst of Henry's opponents opposed him on the ground that he was divorcing the Church in England from the Church universal. Their objection was to what was done more than to the way in which it was done; and Sir Thomas More would have fought the Reformation quite as strenuously had it been effected by the Convocations of Canterbury and York. On the other side there was equally little thought of a Reformation by clerical hands. Henry (p. 329) and Cromwell carried on and developed the tradition of the Emperor Frederick II. and Peter de Vinea,[929] of Philippe le Bel and Pierre Dubois, of Lewis the Bavarian and Marsiglio of Padua[930] who maintained the supremacy of the temporal over the spiritual power and a.s.serted that the clergy wielded no jurisdiction and only bore the keys of heaven in the capacity of turnkeys.[931] It was a question of the national State against the universal Church. The idea of a National Church was a later development, the result and not the cause of the Reformation.

[Footnote 929: The comparison has been drawn by Huillard-Breholles in his _Vie et Correspondence de Pierre de la Vigne_, Paris, 1865.]

[Footnote 930: Marsiglio's _Defensor Pacis_ was a favourite book with Cromwell who lent a printer 20 to bring out an English edition of it in 1535 (see the present writer in _D.N.B., s.v._ Marshall, William). Marshall distributed twenty-four copies among the monks of Charterhouse to show them how the Christian commonwealth had been "unjustly molested, vexed and troubled by the spiritual and ecclesiastical tyrant". See also Maitland, _English Law and the Renaissance_, pp. 14, 60, 61.]

[Footnote 931: _Defensor Pacis_, ii., 6.]

Henry's dictators.h.i.+p was also temporary in character. His supremacy over the Church was royal, and not parliamentary. It was he, and not Parliament, who had been invested with a semi-ecclesiastical nature.

In one capacity he was head of the State, in another, head of the Church. Parliament and Convocation were co-ordinate one with another, and subordinate both to the King. The Tudors, and especially Elizabeth, vehemently denied to their Parliaments any share in their ecclesiastical powers. Their supremacy over the Church was their own, and, as a really effective control, it died with them. As the authority of the Crown declined, its secular powers were seized by Parliament; (p. 330) its ecclesiastical powers fell into abeyance between Parliament and Convocation. Neither has been able to vindicate an exclusive claim to the inheritance; and the result of this dual claim to control has been a state of helplessness, similar in some respects to that from which the Church was rescued by the violent methods of Henry VIII.[932]

[Footnote 932: A much neglected but very important const.i.tutional question is whether the King _qua_ Supreme Head of the Church was limited by the same statute and common law restrictions as he was _qua_ temporal sovereign. Gardiner raised the question in a most interesting letter to Protector Somerset in 1547 (Foxe, vi., 42). It had been provided, as Lord Chancellor Audley told Gardiner, that no spiritual law and no exercise of the royal supremacy should abate the common law or Acts of Parliament; but within the ecclesiastical sphere there were no limits on the King's authority. The Popes had not been fettered, _habent omnia jura in suo scrinio_; and their jurisdiction in England had been transferred whole and entire to the King. Henry was in fact an absolute monarch in the Church, a const.i.tutional monarch in the State; he could reform the Church by injunction when he could not reform the State by proclamation. There was naturally a tendency to confuse the two capacities not merely in the King's mind but in his opponents'; and some of the objections to the Stuarts' dispensing practice, which was exercised chiefly in the ecclesiastical sphere, seem due to this confusion. Parliament in fact, as soon as the Tudors were gone, began to apply common law and statute law limitations to the Crown's ecclesiastical prerogative.]

CHAPTER XIII. (p. 331)

THE CRISIS.

Henry's t.i.tle as Supreme Head of the Church was incorporated in the royal style by letters patent of 15th January, 1535,[933] and that year was mainly employed in compelling its recognition by all sorts and conditions of men. In April, Houghton, the Prior of the Charterhouse, a monk of Sion, and the Vicar of Isleworth, were the first victims offered to the Supreme Head. But the machinery supplied by Parliament was barely sufficient to bring the penalties of the statute to bear on the two most ill.u.s.trious of Henry's opponents, Fisher and More. Both had been attainted of misprision of treason by Acts of Parliament in the previous autumn; but those penalties extended no further than to lifelong imprisonment and forfeiture of goods. Their lives could only be exacted by proving that they had maliciously attempted to deprive Henry of his t.i.tle of Supreme Head;[934] their opportunities in the Tower for compa.s.sing that end were limited; and it is possible (p. 332) that they would not have been further molested, but for the thoughtlessness of Clement's successor, Paul III. Impotent to effect anything against the King, the Pope did his best to sting Henry to fury by creating Fisher a cardinal on 20th May. He afterwards explained that he meant no harm, but the harm was done, and it involved Fisher's friend and ally, Sir Thomas More. Henry declared that he would send the new cardinal's head to Rome for the hat; and he immediately despatched commissioners to the Tower to inform Fisher and More that, unless they acknowledged the royal supremacy, they would be put to death as traitors.[935] Fisher apparently denied the King's supremacy, More refused to answer; he was, however, entrapped during a conversation with the Solicitor-General, Rich, into an admission that Englishmen could not be bound to acknowledge a supremacy over the Church in which other countries did not concur. In neither case was it clear that they came within the clutches of the law. Fisher, indeed, had really been guilty of treason. More than once he had urged Chapuys to press upon Charles the invasion of England, a fact unknown, perhaps, to the English Government.[936] The evidence it had (p. 333) collected was, however, considered sufficient by the juries which tried the prisoners; Fisher went to the scaffold on 22nd June, and More on 6th July. Condemned justly or not by the law, both sought their death in a quarrel which is as old as the hills and will last till the crack of doom. Where shall we place the limits of conscience, and where those of the national will? Is conscience a luxury which only a king may enjoy in peace? Fisher and More refused to accommodate theirs to Acts of Parliament, but neither believed conscience to be the supreme tribunal.[937] More admitted that in temporal matters his conscience was bound by the laws of England; in spiritual matters the conscience of all was bound by the will of Christendom; and on that ground both Fisher and he rejected the plea of conscience when urged by heretics condemned to the flames. The dispute, indeed, pa.s.ses the wit of man to decide. If conscience must reign supreme, all government is a _pis aller_, and in anarchy the true millennium must be found. If conscience is deposed, man sinks to the level of the lower creation.

Human society can only be based on compromise, and compromise itself is a matter of conscience. Fisher and More protested by their death against a principle which they had practised in life; both they and the heretics whom they persecuted proclaimed, as Antigone had done thousands of years before,[938] that they could not obey laws (p. 334) which they could not believe G.o.d had made.