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
32
unconditional promise of amnesty. But another rising having occurred
in a different quarter, the king made use of this pretext to put to death
some persons of superior rank, who, though they had, voluntarily or
by compulsion, partaken in the first rebellion, had no concern in the
second, and to let loose military law upon their followers. Nor was his
vengeance confined to those who had evidently been guilty of these
tumults. It is, indeed, unreasonable to deny that there might be, nay,
there probably were, some real conspirators among those who
suffered on the scaffolds of Henry. Yet in the processes against the
Countess of Salisbury, an aged woman, but obnoxious as the
daughter of the Duke of Clarence and mother of Reginald Pole, an
active instrument of the pope in fomenting rebellion,[34] against the abbots of Reading and Glastonbury, and others who were implicated
in charges of treason at this period, we find so much haste, such
neglect of judicial forms, and so blood-thirsty a determination to
obtain convictions, that we are naturally tempted to reckon them
among the victims of revenge or rapacity.
Cromwell. —It was, probably, during these prosecutions that
Cromwell, a man not destitute of liberal qualities, but who is liable to
the one great reproach of having obeyed too implicitly a master
whose commands were crimes, inquired of the judges whether, if
parliament should condemn a man to die for treason without hearing
him, the attainder could ever be disputed. They answered that it was
a dangerous question, and that parliament should rather set an
example to inferior courts for
33
proceeding according to justice. But being pressed to reply by the
king's express commandment, they said that an attainder in
parliament, whether the party had been heard or not in his defence,
could never be reversed in a court of law. No proceedings, it is said,
took place against the person intended, nor is it known who he
was.[35] But men prone to remark all that seems an appropriate retribution of Providence, took notice that he, who had thus solicited
the interpreters of the law to sanction such a violation of natural
justice, was himself its earliest example. In the apparent zenith of
favour, this able and faithful minister, the king's viceregent in his
ecclesiastical supremacy, and recently created Earl of Essex, fell so
suddenly, and so totally without offence, that it has perplexed some
writers to assign the cause. But there seems little doubt that Henry's
dissatisfaction with his fourth wife, Anne of Cleves, whom Cromwell
had recommended, alienated his selfish temper, and inclined his ear
to the whisperings of those courtiers who abhorred the favourite and
his measures. An act attainting him of treason and heresy was
hurried through parliament, without hearing him in his defence.[36] The charges, indeed, at least of the first kind, were so ungrounded, that
had he been permitted to refute them, his condemnation, though not
less certain, might, perhaps, have caused more shame. This
precedent of sentencing men unheard, by means of an act of
attainder, was followed in the case of Dr. Barnes, burned not long
afterwards for heresy.
34
Duke of Norfolk. —The Duke of Norfolk had been, throughout Henry's
reign, one of his most confidential ministers. But as the king
approached his end, an inordinate jealousy of great men, rather than
mere caprice, appears to have prompted the resolution of destroying
the most conspicuous family in England. Norfolk's son, too, the Earl
of Surrey, though long a favourite with the king, possessed more
talents and renown, as well as a more haughty spirit, than was
compatible with his safety. A strong party at court had always been
hostile to the Duke of Norfolk; and his ruin was attributed especially to
the influence of the two Seymours. No accusations could be more
futile than those who sufficed to take away the life of the noblest and
most accomplished man in England. Surrey's treason seems to have
consisted chiefly in quartering the royal arms in his escutcheon; and
this false heraldry, if such it were, must have been considered as
evidence of meditating the king's death. His father ignominiously
confessed the charges against himself, in a vain hope of mercy from
one who knew not what it meant. An act of attainder (for both houses
of parliament were commonly made accessary to the legal murders of
this reign) was passed with much haste, and perhaps irregularly; but
Henry's demise ensuing at the instant, prevented the execution of
Norfolk. Continuing in prison during Edward's reign, he just survived
to be released and restored in blood under Mary.
Anne Boleyn. —Among the victims of this monarch's ferocity, as we
bestow most of our admiration on Sir Thomas More, so we reserve
our greatest pity for Anne Boleyn. Few, very few, have in any age
hesitated to admit her innocence.[37] But her 35
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
36
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
37
the houses of York and Lancaster, when the king's divorce, and the
consequent illegitimacy of his eldest daughter, laid open the
succession to fresh questions. It was needlessly unnatural and unjust
to bastardise the Princess Mary, whose title ought rather to have had
the confirmation of parliament. But Henry, who would have deemed
so moderate a proceeding injurious to his cause in the eyes of
Europe, and a sort of concession to the adversaries of the divorce,
procured an act settling the crown on his children by Anne or any
subsequent wife. Any person disputing the lawfulness of the king's
second marriage might, by the sort of construction that would be put
on this act, become liable to the penalties of treason. In two years
more this very marriage was annulled by sentence; and it would
perhaps have been treasonable to assert the Princess Elizabeth's
legitimacy. The same punishment was enacted against such as
should marry without licence under the great seal, or have a criminal
intercourse with any of the king's children "lawfully born, or otherwise
commonly reputed to be his children, or his sister, aunt, or niece."[41]
Act giving proclamations the force of law. —Henry's two divorces had
created an uncertainty as to the line of succession, which parliament
endeavoured to remove, not by such constitutional provisions in
concurrence with the Crown as might define the course of
inheritance, but by enabling the king, on failure of issue by Jane
Seymour or any other lawful wife, to make over and bequeath the
kingdom to any persons at his pleasure, not even reserving a
preference to the descendants of former sovereigns.[42] By a subsequent statute, the Princesses Mary and Elizabeth were
nominated in the entail, after the king's male issue, subject, however,
to such conditions as he should declare, by non-compliance with
which their right was to cease.[43] This act still left it in his power to limit the remainder at his discretion. In execution of this authority, he
devised the crown, upon failure of issue from his three children, to the
heirs of the body of Mary Duchess of Suffolk, the younger of his two
sisters; postponing at least, if not excluding, the royal family of
Scotland, descended from his elder sister Margaret. In surrendering
the regular laws of the monarchy to one man's caprice, this
parliament became accessary, so far as in it lay, to dispositions which
might eventually have kindled the flames of civil war. But it seemed to
aim at inflicting a still deeper injury on future generations, in enacting
that a king, after he should have
38
attained the age of twenty-four years, might repeal any statutes made
since his accession.[44] Such a provision not only tended to annihilate the authority of a regency, and to expose the kingdom to a sort of
anarchical confusion during its continuance, but seemed to prepare
the way for a more absolute power of abrogating all acts of the
legislature. Three years afterwards it was enacted that proclamations
made by the king and council, under penalty of fine and
imprisonment, should have the force of statutes, so that they should
not be prejudicial to any person's inheritance, offices, liberties, goods,
and chattels, or infringe the established laws. This has been often
noticed as an instance of servile compliance. It is, however, a striking
testimony to the free constitution it infringed, and demonstrates that
the prerogative could not soar to the heights it aimed at, till thus
imped by the perfidious hand of parliament. It is also to be observed,
that the power given to the king's proclamations is considerably
limited.[45]
A government administered with so frequent violations not only of the
chartered privileges of Englishmen, but of those still more sacred
rights which natural law has established, must have been regarded,
one would imagine, with just abhorrence, and earnest longings for a
change. Yet contemporary authorities by no means answer to this
expectation. Some mention Henry after his death in language of
eulogy; and, if we except those whom attachment to the ancient
religion had inspired with hatred towards his memory, very few
appear to have been aware that his name would descend to posterity
among those of the many tyrants and oppressors of innocence,
whom the wrath of Heaven has raised up, and the servility of men
has endured.
39
I do not indeed believe that he had really conciliated his people's
affection. That perfect fear which attended him must have cast out
love. But he had a few qualities that deserve esteem, and several
which a nation is pleased to behold in its sovereign. He wanted, or at
least did not manifest in any eminent degree, one usual vice of
tyrants, dissimulation; his manners were affable, and his temper
generous. Though his schemes of foreign policy were not very
sagacious, and his wars, either with France or Scotland, productive of
no material advantage, they were uniformly successful, and retrieved
the honour of the English name. But the main cause of the reverence
with which our forefathers cherished this king's memory, was the
share he had taken in the Reformation. They saw in him not indeed
the proselyte of their faith, but the subverter of their enemies' power,
the avenging minister of Heaven, by whose giant arm the chain of
superstition had been broken, and the prison gates burst asunder.[46]
Government of Edward VI.'s counsellors. —The ill-assorted body of
counsellors who exercised the functions of regency by Henry's
testament, were sensible that they had not sinews to wield his iron
sceptre, and that some sacrifice must be made to a nation
exasperated as well as overawed by the violent measures of his
reign. In the first session accordingly of Edward's parliament, the new
treasons and felonies which had been created to please his father's
sanguinary disposition, were at once abrogated.[47] The statute of Edward III. became again the standard of high treason, except that
the denial of the king's supremacy was still liable to its penalties. The
same act, which relieves the subject from these terrors, contains also
a repeal of that which had given legislative validity to the king's
proclamations. These
40
provisions appear like an elastic recoil of the constitution after the
extraordinary pressure of that despotic reign. But, however they may
indicate the temper of parliament, we must consider them but as an
unwilling and insincere compliance on the part of the government.
Henry, too arrogant to dissemble with his subjects, had stamped the
law itself with the print of his despotism. The more wily courtiers of
Edward's council deemed it less obnoxious to violate than to new-
mould the constitution. For, although proclamations had no longer the
legal character of statutes, we find several during Edward's reign
enforced by penalty of fine and imprisonment. Many of the
ecclesiastical changes were first established by no other authority,
though afterwards sanctioned by parliament. Rates were thus fixed
for the price of provisions; bad money was cried down, with penalties
on those who should buy it under a certain value, and the melting of
the current coin prohibited on pain of forfeiture.[48] Some of these might possibly have a sanction from precedent, and from the
acknowledged prerogative of the crown in regulating the coin. But no
legal apology can be made for a proclamation in April 1549,
addressed to all justices of the peace, enjoining them to arrest
sowers and tellers abroad of vain and forged tales and lies, and to
commit them to the galleys, there to row in chains as slaves during
the king's pleasure.[49] One would imagine that the late statute had been repealed, as too far restraining the royal power, rather than as
giving it an unconstitutional extension.
Attainder of Lord Seymour. —It soon became evident that, if the new
administration had not fully imbibed the sanguinary spirit of their late
master, they were as little scrupulous in bending the rules of law and
justice to their purpose in cases of
41
treason. The Duke of Somerset, nominated by Henry only as one of
his sixteen executors, obtained almost immediately afterwards a
patent from the young king, who during his minority was certainly not
capable of any valid act, constituting him sole regent under the name
of protector, with the assistance indeed of the rest as his counsellors,
but with the power of adding any others to their number. Conscious of
his own usurpation, it was natural for Somerset to dread the aspiring
views of others; nor was it long before he discovered a rival in his
brother, Lord Seymour of Sudeley, whom, according to the policy of
that age, he thought it necessary to destroy by a bill of attainder.
Seymour was apparently a dangerous and unprincipled man; he had
courted the favour of the young king by small presents of money, and
appears beyond question to have entertained a hope of marrying the
Princess Elizabeth, who had lived much in his house during his short
union with the queen dowager. It was surmised that this lady had
been poisoned to make room for a still nobler consort.[50] But in this there could be no treason; and it is not likely that any evidence was
given which could have brought him within the statute of Edward III.
In this prosecution against Lord Seymour, it was thought expedient to
follow the very worst of Henry's precedents, by not hearing the
accused in his defence. The bill passed through the upper house, the
natural guardian of a peer's life and honour, without one dissenting
voice. The Commons addressed the king that they might hear the
witnesses, and also the accused. It was answered that the king did
not think it necessary for them to hear the latter, but that those who
had given their depositions before the Lords might repeat their
evidence before the lower house. It rather appears that the Commons
did not insist on this any farther; but the bill of attainder was carried
with a few negative voices.[51] How striking a picture it affords of the sixteenth
42
century, to behold the popular and well-natured Duke of Somerset,
more estimable at least than any statesman employed under Edward,
not only promoting this unjust condemnation of his brother, but
signing the warrant under which he was beheaded!
Attainder of Duke of Somerset. —But it was more easy to crush a
single competitor, than to keep in subjection the subtle and daring
spirits trained in Henry's councils, and jealous of the usurpation of an
equal. The protector, attributing his success, as is usual with men in
power, rather to skill than fortune, and confident in the two frailest
supports that a minister can have, the favour of a child and of the
lower people, was stripped of his authority within a few months after
the execution of Lord Seymour, by a confederacy which he had
neither the discretion to prevent, nor the firmness to resist. Though
from this time but a secondary character upon the public stage, he
was so near the throne as to keep alive the suspicions of the Duke of
Northumberland, who, with no ostensible title, had become not less
absolute than himself. It is not improbable that Somerset was
innocent of the charge imputed to him, namely, a conspiracy to
murder some of the privy councillors, which had been erected into
felony by a recent statute; but the evidence, though it may have been
false, does not seem legally insufficient. He demanded on his trial to
be confronted with the witnesses; a favour rarely granted in that age
to state criminals, and which he could not very decently solicit after
causing his brother to be condemned unheard. Three lords, against
whom he was charged to have conspired, sat upon his trial; and it
was thought a sufficient reply to his complaints of this breach of a
known principle, that no challenge could be allowed in the case of a
peer.
From this designing and unscrupulous oligarchy no measure
conducive to liberty and justice could be expected to spring. But
among the Commons there must have been men, although their
names have not descended to us, who, animated by a purer zeal for
these objects, perceived on how precarious a thread the life of every
man was suspended, when the private deposition of one suborned
witness, unconfronted with the prisoner, could suffice to obtain a
conviction in cases of treason. In the worst period of Edward's reign,
we find inserted in a bill creating some new treasons, one of the most
important constitutional provisions which the annals of the Tudor
family afford. It is enacted, that "no person shall be indicted for any
manner of
43
treason, except on the testimony of two lawful witnesses, who shall
be brought in person before the accused at the time of his trial, to
avow and maintain what they have to say against him, unless he shall
willingly confess the charges."[52] This salutary provision was strengthened, not taken away, as some later judges ventured to
assert, by an act in the reign of Mary. In a subsequent part of this
work, I shall find an opportunity for discussing this important branch
of constitutional law.
Violence of Mary's reign. —It seems hardly necessary to mention the
momentary usurpation of Lady Jane Grey, founded on no pretext of
title which could be sustained by any argument. She certainly did not
obtain that degree of actual possession which might have sheltered
her adherents under the statute of Henry VII.; nor did the Duke of
Northumberland allege this excuse on his trial, though he set up one
of a more technical nature, that the great seal was a suffici