Chapter I: On the English Constitution From Henry VII. to Mary (3)

[20] Roper's _Life of More_; Hall, 656, 672. This chronicler, who wrote under Edward VI., is our best witness for the events of Henry's reign. Grafton is so literally a copyist from him, that it was a great mistake to republish this part of his chronicle in the late expensive, and therefore incomplete, collection; since he adds no one word, and omits only a few ebullitions of protestant zeal which he seems to have considered too warm. Holingshed, though valuable, is later than Hall. Wolsey, the latter observes, gave offence to the Commons, by descanting on the wealth and luxury of the nation, "as though he had repined or disclaimed that any man should fare well, or be well clothed, but himself."

But the most authentic memorial of what passed on this occasion has been preserved in a letter from a member of the Commons to the Earl of Surrey (soon after Duke of Norfolk), at that time the king's lieutenant in the north.

"Please it your good Lordships to understand, that sithence the beginning of the Parliament, there hath been the greatest and sorest hold in the Lower House for the payment of two shillings of the pound, that ever was seen, I think, in any parliament. This matter hath been debated, and beaten fifteen or sixteen days together. The highest necessity alledged on the King's behalf to us, that ever was heard of; and, on the contrary, the highest poverty confessed, as well by knights, esquires, and gentlemen of every quarter, as by the commoners, citizens, and burgesses. There hath been such hold that the House was like to have been dissevered; that is to say, the knights being of the King's council, the King's servants and gentlemen of the one party; which in so long time were spoken with, and made to see, yea, it may fortune, contrary to their heart, will, and conscience. Thus hanging this matter, yesterday the more part being the King's servants, gentlemen, were there assembled; and so they, being the more part, willed and gave to the King two shillings of the pound of goods or lands, the best to be taken for the King. All lands to pay two shillings of the pound for the laity, to the highest. The goods to pay two shillings of the pound, for twenty pound upward; and from forty shillings of goods, to twenty pound, to pay sixteen pence of the pound; and under forty shillings, every person to pay eight pence. This to be paid in two years. I have heard no man in my life that can remember that ever there was given to any one of the King's ancestors half so much at one graunt. Nor, I think, there was never such a president seen before this time. I beseeke Almighty God, it may be well and peaceably levied, and surely payd unto the King's grace, without grudge, and especially without loosing the good will and true hearts of his subjects, which I reckon a far greater treasure for the King than gold and silver. And the gentlemen that must take pains to levy this money among the King's subjects, I think, shall have no little business about the same." Strype's _Eccles. Memorials_, vol. i. p. 49. This is also printed in Ellis's _Letters illustrative of English History_, i. 220.

[21] I may notice here a mistake of Mr. Hume and Dr. Lingard. They assert Henry to have received tonnage and poundage several years before it was vested in him by the legislature. But it was granted by his first parliament, stat. 1 H. 8, c. 20, as will be found even in Ruffhead's table of contents, though not in the body of his volume; and the act is of course printed at length in the great edition of the statutes. That which probably by its title gave rise to the error, 6 H. 8, c. 13, has a different object.

[22] Hall, 645. This chronicler says the laity were assessed at a tenth part. But this was only so of the smaller estates, namely, from L20 to L300; for from L300 to L1000 the contribution demanded was twenty marks for each L100, and for an estate of L1000, two hundred marks, and so in proportion upwards. MS. Instructions to Commissioners, penes auctorem. This was, "upon sufficient promise and assurance, to be repaid unto them upon such grants and contributions as shall be given and granted to his grace at his next parliament."--_Ib._ "And they shall practise by all the means to them possible that such sums as shall be so granted by the way of loan, be forthwith levied and paid, or the most part, or at the least the moiety thereof, the same to be paid in as brief time after as they can possibly persuade and induce them unto; showing unto them that, for the sure payment thereof, they shall have writings delivered unto them under the king's privy seal by such person or persons as shall be deputed by the king to receive the said loan, after the form of a minute to be shown unto them by the said commissioners, the tenor whereof is thus: We, Henry VIII., by the grace of God, King of England and of France, Defender of Faith, and Lord of Ireland, promise by these presents truly to content and repay unto our trusty and well-beloved subject A. B. the sum of ----, which he hath lovingly advanced unto us by way of loan, for defence of our realm, and maintenance of our wars against France and Scotland; In witness whereof we have caused our privy seal hereunto to be set and annexed the ---- day of ----, the fourteenth year of our reign."--_Ib._ The rate fixed on the clergy I collect by analogy, from that imposed in 1525, which I find in another manuscript letter.

[23] A letter in my possession from the Duke of Norfolk to Wolsey, without the date of the year, relates, I believe, to this commission of 1525, rather than that of 1522; it being dated on the 10th April, which appears from the contents to have been before Easter; whereas Easter did not fall beyond that day in 1523 or 1524, but did so in 1525; and the first commission, being of the 14th year of the king's reign, must have sat later than Easter 1522. He informs the cardinal, that from twenty pounds upward there were not twenty in the county of Norfolk who had not consented. "So that I see great likelihood that this grant shall be much more than the loan was." It was done, however, very reluctantly, as he confesses; "assuring your grace that they have not granted the same without shedding of many salt tears, only for doubt how to find money to content the king's highness." The resistance went further than the duke thought fit to suppose; for in a very short time the insurrection of the common people took place in Suffolk. In another letter from him and the Duke of Suffolk to the cardinal they treat this rather lightly, and seem to object to the remission of the contribution.

This commission issued soon after the news of the battle of Pavia arrived. The pretext was the king's intention to lead an army into France. Warham wrote more freely than the Duke of Norfolk as to the popular discontent, in a letter to Wolsey, dated April 5. "It hath been showed me in a secret manner of my friends, the people sore grudgeth and murmureth, and speaketh cursedly among themselves, as far as they dare, saying that they shall never have rest of payments as long as some liveth, and that they had better die than to be thus continually handled, reckoning themselves, their children, and wives, as despoulit, and not greatly caring what they do, or what becomes of them.... Further I am informed, that there is a grudge newly now resuscitate, and revived in the minds of the people; for the loan is not repaid to them upon the first receipt of the grant of parliament, as it was promised them by the commissioners, showing them the king's grace's instructions, containing the same, signed with his grace's own hand in summer, that they fear not to speak, that they be continually beguiled, and no promise is kept unto them; and thereupon some of them suppose that if this gift and grant be once levied, albeit the king's grace go not beyond the sea, yet nothing shall be restored again, albeit they be showed the contrary. And generally it is reported unto me, that for the most part every man saith he will be contented if the king's grace have as much as he can spare, but verily many say they be not able to do as they be required. And many denieth not but they will give the king's grace according to their power, but they will not anywise give at other men's appointments, which knoweth not their needs.... I have heard say, moreover, that when the people be commanded to make fires and tokens of joy for the taking of the French king, divers of them have spoken that they have more cause to weep than to rejoice thereat. And divers, as it hath been showed me secretly, have wished openly that the French king were at his liberty again, so as there were a good peace, and the king should not attempt to win France; the winning whereof should be more chargeful to England than profitable, and the keeping thereof much more chargeful than the winning. Also it hath been told me secretly that divers have recounted and repeated what infinite sums of money the king's grace hath spent already in invading France, once in his own royal person, and two other sundry times by his several noble captains, and little or nothing in comparison of his costs hath prevailed; insomuch that the king's grace at this hour hath not one foot of land more in France than his most noble father had, which lacked no riches or wisdom to win the kingdom of France, if he had thought it expedient." The archbishop goes on to observe, rather oddly, that "he would that the time had suffered that this practising with the people for so great sums might have been spared till the cuckow time and the hot weather (at which time mad brains be wont to be most busy) had been overpassed."

Warham dwells, in another letter, on the great difficulty the clergy had in making so large a payment as was required of them, and their unwillingness to be sworn as to the value of their goods. The archbishop seems to have thought it passing strange that people would be so wrongheaded about their money. "I have been," he says, "in this shire twenty years and above, and as yet I have not seen men but would be conformable to reason, and would be induced to good order, till this time; and what shall cause them now to fall into these wilful and indiscreet ways, I cannot tell, except poverty and decay of substance be the cause of it."

[24] Hall, 696. These expressions, and numberless others might be found, show the fallacy of Hume's hasty assertion, that the writers of the sixteenth century do not speak of their own government as more free than that of France.

[25] Hall, 699.

[26] The word impeachment is not very accurately applicable to these proceedings against Wolsey; since the articles were first presented to the Upper House, and sent down to the Commons, where Cromwell so ably defended his fallen master that nothing was done upon them. "Upon this honest beginning," says Lord Herbert, "Cromwell obtained his first reputation." I am disposed to conjecture from Cromwell's character and that of the House of Commons, as well as from some passages of Henry's subsequent behaviour towards the cardinal, that it was not the king's intention to follow up this prosecution, at least for the present. This also I find to be Dr. Lingard's opinion.

[27] _Rot. Parl._ vi. 164; Burnet, Appendix, No. 31. "When this release of the loan," says Hall, "was known to the commons of the realm, Lord! so they grudged and spake ill of the whole parliament; for almost every man counted it his debt, and reckoned surely of the payment of the same, and therefore some made their wills of the same, and some other did set it over to other for debt; and so many men had loss by it, which caused them sore to murmur, but there was no remedy."--P. 767.

[28] Stat. 35 H. 8, c. 12. I find in a manuscript, which seems to have been copied from an original in the exchequer, that the monies thus received by way of loan in 1543 amounted to L110,147 15_s._ 8_d._ There was also a sum called _devotion money_, amounting only to L1,093 8_s._ 3_d._, levied in 1544, "of the devotion of his highnesse's subjects for _Defence of Christendom against the Turk_."

[29] Lodge's _Illustrations of British History_, i. 711; Strype's _Eccles. Memorials_, Appendix, n. 119. The sums raised from different counties for this benevolence afford a sort of criterion of their relative opulence. Somerset gave L6807; Kent L6471; Suffolk L4512; Norfolk L4046; Devon L4527; Essex L5051; but Lancaster only L660; and Cumberland, L574. The whole produced L119,581 7_s._ 6_d._ besides arrears. In Haynes's _State Papers_, p. 54, we find a curious minute of Secretary Paget, containing reasons why it was better to get the money wanted by means of a benevolence than through parliament. But he does not hint at any difficulty of obtaining a parliamentary grant.

[30] Lodge, p. 80. Lord Herbert mentions this story, and observes, that Reed having been taken by the Scots, was compelled to pay much more for his ransom than the benevolence required of him.

[31] Rhymer, xv. 84. These commissions bearing date 5th January 1546.

[32] Hall, 622. Hume, who is favourable to Wolsey, says, "There is no reason to think the sentence against Buckingham unjust." But no one who reads the trial will find any evidence to satisfy a reasonable mind; and Hume himself soon after adds, that his crime proceeded more from indiscretion than deliberate malice. In fact, the condemnation of this great noble was owing to Wolsey's resentment, acting on the savage temper of Henry.

[33] Several letters that passed between the council and Duke of Norfolk (_Hardwicke State Papers_, i. 28, etc.) tend to confirm what some historians have hinted, that he was suspected of leaning too favourably towards the rebels. The king was most unwilling to grant a free pardon. Norfolk is told, "If you could, by any good means or possible dexterity, reserve a very few persons for punishments, you should assuredly administer the greatest pleasure to his highness that could be imagined, and much in the same advance your own honour."--P. 32. He must have thought himself in danger from some of these letters, which indicate the king's distrust of him. He had recommended the employment of men of high rank as lords of the marches, instead of the rather inferior persons whom the king had lately chosen. This called down on him rather a warm reprimand (p. 39); for it was the natural policy of a despotic court to restrain the ascendency of great families; nor were there wanting very good reasons for this, even if the public weal had been the sole object of Henry's council. See also, for the subject of this note, the State Papers and MSS., H. 8, 1830, p. 518 _et alibi_. They contain a good deal of interesting matter as to the northern rebellion, which gave Henry a pretext for great severities towards the monasteries in that part of England.

[34] Pole, at his own solicitation, was appointed legate to the Low Countries in 1537, with the sole object of keeping alive the flame of the northern rebellion, and exciting foreign powers as well as the English nation to restore religion by force, if not to dethrone Henry. It is difficult not to suspect that he was influenced by ambitious views in a proceeding so treasonable, and so little in conformity with his polished manners and temperate life. Philips, his able and artful biographer, both proves and glories in the treason. _Life of Pole_, sect. 3.

[35] Coke's 4th Institute, 37. It is, however, said by Lord Herbert and others, that the Countess of Salisbury and the Marchioness of Exeter were not heard in their defence. The acts of attainder against them were certainly hurried through parliament; but whether without hearing the parties, does not appear.

[36] Burnet observes, that Cranmer was absent the first day the bill was read, 17th June 1540; and by his silence leaves the reader to infer that he was so likewise on 19th June, when it was read a second and third time. But this, I fear, cannot be asserted. He is marked in the journal as present on the latter day; and there is the following entry; "Hodie lecta est pro secundo et tertio, billa attincturae Thomae Comitis Essex, et communi omnium procerum tunc praesentium concessu nemine discrepante, expedita est." And at the close of the session, we find a still more remarkable testimony to the unanimity of parliament, in the following words: "Hoc animadvertendum est, quod in hac sessione cum proceres darent suffragia, et dicerent sententias super actibus praedictis, ea erat concordia et sententiarum conformitas, ut singuli iis et eorum singulis assenserint, nemine discrepante. Thomas de Soulemont, Cleric. Parliamentorum." As far therefore as entries on the journals are evidence, Cranmer was placed in the painful and humiliating predicament of voting for the death of his innocent friend. He had gone as far as he dared in writing a letter to Henry, which might be construed into an apology for Cromwell, though it was full as much so for himself.

[37] Burnet has taken much pains with the subject, and set her innocence in a very clear light (i. 197 and iii. 114). See also Strype, i. 280, and Ellis's _Letters_, ii. 52. But Anne had all the failings of a vain, weak woman, raised suddenly to greatness. She behaved with unamiable vindictiveness towards Wolsey, and perhaps (but this worst charge is not fully authenticated) exasperated the king against More. A remarkable passage in Cavendish's _Life of Wolsey_, p. 103, edit. 1667, strongly displays her indiscretion.

A late writer, whose acuteness and industry would raise him to a very respectable place among our historians, if he could have repressed the inveterate partiality of his profession, has used every oblique artifice to lead his readers into a belief of Anne Boleyn's guilt, while he affects to hold the balance, and state both sides of the question without determining it. Thus he repeats what he must have known to be the strange and extravagant lies of Sanders about her birth; without vouching for them indeed, but without any reprobation of their absurd malignity. Lingard's _Hist. of England_, vi. 153 (8vo. edit). Thus he intimates that "the records of her trial and conviction have perished, perhaps by the hands of those who respected her memory" (p. 316); though, had he read Burnet with any care, he would have found that they were seen by that historian, and surely have not perished since by any unfair means; not to mention that the record of a trial contains nothing from which a party's guilt or innocence can be inferred. Thus he says that those who were executed on the same charge with the queen, neither admitted nor denied the offence, for which they suffered; though the best informed writers assert that Norris constantly declared the queen's innocence and his own.

Dr. Lingard can hardly be thought serious, when he takes credit to himself, in the commencement of a note at the end of the same volume, for not "rendering his book more interesting, by representing her as an innocent and injured woman, falling a victim to the intrigues of a religious faction." He well knows that he could not have done so, without contradicting the tenor of his entire work, without ceasing, as it were, to be himself. All the rest of this note is a pretended balancing of evidence, in the style of a judge who can hardly bear to put for a moment the possibility of a prisoner's innocence.

I regret very much to be compelled, in this edition, to add the name of Mr. Sharon Turner to those who have countenanced the supposition of Anne Boleyn's guilt. But Mr. Turner, a most worthy and painstaking man, to whose earlier writings our literature is much indebted, has, in his history of Henry VIII., gone upon the strange principle of exalting that tyrant's reputation at the expense of every one of his victims, to whatever party they may have belonged. _Odit damnatos._ Perhaps he is the first, and will be the last, who has defended the attainder of Sir Thomas More. A verdict of a jury, an assertion of a statesman, a recital of an act of parliament, are, with him, satisfactory proofs of the most improbable accusations against the most blameless character.

[38] The lords pronounced a singular sentence, that she should be burned or beheaded at the king's pleasure. Burnet says the judges complained of this as unprecedented. Perhaps in strictness the king's right to _alter_ a sentence is questionable, or rather would be so, if a few precedents were out of the way. In high treason committed by a man, the beheading was part of the sentence, and the king only remitted the more cruel preliminaries. Women, till 1791, were condemned to be burned. But the two queens of Henry, the Countess of Salisbury, Lady Rochford, Lady Jane Grey, and, in later times, Mrs. Lisle, were beheaded. Poor Mrs. Gaunt was not thought noble enough to be rescued from the fire. In felony, where beheading is no part of the sentence, it has been substituted by the king's warrant in the cases of the Duke of Somerset and Lord Audley. I know not why the latter obtained this favour; for it had been refused to Lord Stourton, hanged for murder under Mary, as it was afterwards to Earl Ferrers.

[39] It is often difficult to understand the grounds of a parliamentary attainder, for which any kind of evidence was thought sufficient; and the strongest proofs against Catherine Howard undoubtedly related to her behaviour before marriage, which could be no legal crime. But some of the depositions extend further.

Dr. Lingard has made a curious observation on this case. "A plot was woven by the industry of the reformers, which brought the young queen to the scaffold, and weakened the ascendency of the reigning party."--P. 407. This is a very strange assertion; for he proceeds to admit her ante-nuptial guilt, which indeed she is well known to have confessed, and does not give the slightest proof of any plot. Yet he adds, speaking of the queen and Lady Rochford: "I fear [_i.e._ wish to insinuate] both were sacrificed to the manes of Anne Boleyn."

[40] Stat. 26 H. 8, c. 13.

It may be here observed, that the act attainting Catherine Howard of treason proceeds to declare that the king's assent to bills by commission under the great seal is as valid as if he were personally present; any custom or use to the contrary notwithstanding. 33 H. 8, c. 21. This may be presumed therefore to be the earliest instance of the king's passing bills in this manner.

[41] 22 H. 8, c. 18.

[42] 28 H. 8, c. 7.

[43] 35 H. 8, c. 1.

[44] 28 H. 8, c. 17.

[45] 31 H. 8, c. 8; Burnet, i. 263, explains the origin of this act. Great exceptions had been taken to some of the king's ecclesiastical proclamations, which altered laws, and laid taxes on spiritual persons. He justly observes that the restrictions contained in it gave great power to the judges, who had the power of expounding in their hands. The preamble is full as offensive as the body of the act; reciting the contempt and disobedience of the king's proclamations by some "who did not consider _what a king by his royal power might do_, which if it continued would tend to the disobedience of the laws of God, and the dishonour of the king's majesty, who might full ill bear it," etc. See this act at length in the great edition of the statutes. There was one singular provision; the clause protecting all persons, as mentioned, in their inheritance or other property, proceeds, "nor shall by virtue of the said act suffer any pains of death." But an exception is afterwards made for "such persons which shall offend against any proclamation to be made by the king's highness, his heirs or successors, for or concerning any kind of heresies against Christian doctrine." Thus it seems that the king claimed a power to declare heresy by proclamation, under penalty of death.

[46] Gray has finely glanced at this bright point of Henry's character, in that beautiful stanza where he has made the founders of Cambridge pass before our eyes, like shadows over a magic glass:

"the majestic lord,
Who broke the bonds of Rome."

In a poet, this was a fair employment of his art; but the partiality of Burnet towards Henry VIII. is less warrantable; and he should have blushed to excuse, by absurd and unworthy sophistry, the punishment of those who refused to swear to the king's supremacy. P. 351.

After all, Henry was every whit as good a king and man as Francis I., whom there are still some, on the other side of the Channel, servile enough to extol; not in the least more tyrannical and sanguinary, and of better faith towards his neighbours.

[47] 1 Edw. 6, c. 12. By this act it is provided that a lord of parliament shall have the benefit of clergy though he cannot read. Sect. 14. Yet one can hardly believe, that this provision was necessary at so late an aera.

[48] 2 Strype, 147, 341, 491.

[49] _Id._ 149. Dr. Lingard has remarked an important change in the coronation ceremony of Edward VI. Formerly, the king had taken an oath to preserve the liberties of the realm, and especially those granted by Edward the Confessor, etc., before the people were asked whether they would consent to have him as their king. See the form observed at Richard the Second's coronation in Rymer, vii. 158. But at Edward's coronation, the archbishop presented the king to the people, as rightful and undoubted inheritor by the laws of God and man to the royal dignity and crown imperial of this realm, etc., and asked if they would serve him and assent to his coronation, as by their duty of allegiance they were bound to do. All this was before the oath. 2 Burnet, Appendix, p. 93.

Few will pretend that the coronation, or the coronation oath, were essential to the legal succession of the crown, or the exercise of its prerogatives. But this alteration in the form is a curious proof of the solicitude displayed by the Tudors, as it was much more by the next family, to suppress every recollection that could make their sovereignty appear to be of popular origin.

[50] Haynes's state papers contain many curious proofs of the incipient amour between Lord Seymour and Elizabeth, and show much indecent familiarity on one side, with a little childish coquetry on the other. These documents also rather tend to confirm the story of our elder historians, which I have found attested by foreign writers of that age (though Burnet has thrown doubts upon it), that some differences between the queen-dowager and the Duchess of Somerset aggravated at least those of their husbands. P. 61, 69. It is alleged with absurd exaggeration, in the articles against Lord Seymour, that, had the former proved immediately with child after her marriage with him, it might have passed for the king's. This marriage, however, did not take place before June, Henry having died in January. Ellis's _Letters_, ii. 150.

[51] Journals, Feb. 27, March 4, 1548-9. From these I am led to doubt whether the commons actually heard witnesses against Seymour, which Burnet and Strype have taken for granted.

[52] Stat. 5 and 6 Edw. VI., c. 11, s. 12.

[53] Burnet, ii. 243. An act was made to confirm deeds of private persons, dated during Jane's ten days, concerning which some doubt had arisen. 1 Mary, sess. 2, c. 4. It is said in this statute, "her highness's most lawful possession was for a time disturbed and disquieted by traiterous rebellion and usurpation."

It appears that the young king's original intention was to establish a modified Salic law, excluding females from the crown, but not their male heirs. In a writing drawn by himself, and entitled "My Device for the Succession," it is entailed on the heirs male of the lady queen, if she have any before his death; then to the _Lady Jane and her heirs male_; then to the heirs male of Lady Katharine; and in every instance, except Jane, excluding the female herself. Strype's _Cranmer_, Append. 164. A late author, on consulting the original MS., in the king's handwriting, found that it had been at first written, "the Lady Jane's heirs male," but that the words "and her" had been interlined. Nares's _Memoirs of Lord Burghley_, i. 451. Mr. Nares does not seem to doubt but that this was done by Edward himself: the change, however, is remarkable, and should probably be ascribed to Northumberland's influence.

[54] Burnet, Strype, iii. 50, 53; Carte, 290. I doubt whether we have anything in our history more like conquest than the administration of 1553. The queen, in the month only of October, presented to 256 livings, restoring all those turned out under the acts of uniformity. Yet the deprivation of the bishops might be justified probably by the terms of the commission they had taken out in Edward's reign, to hold their sees during the king's pleasure, for which was afterwards substituted "during good behaviour." Burnet, App. 257; Collier, 218.

[55] Burnet, ii. 278; Stat. 1 Mary, sess. 3, c. 1. Dr. Lingard rather strangely tells this story on the authority of Father Persons, whom his readers probably do not esteem quite as much as he does. If he had attended to Burnet, he would have found a more sufficient voucher.

[56] Carte, 330.

[57] Haynes, 195; Burnet, ii. Appendix, 256, iii. 243.

[58] Burnet, ii. 347. Collier, ii. 404, and Lingard, vii. 266 (who, by the way, confounds this commission with something different two years earlier) will not hear of this allusion to the inquisition. But Burnet has said nothing that is not perfectly just.

[59] Strype, iii. 459.

[60] See Stafford's proclamation from Scarborough Castle, Strype, iii. Appendix, No. 71. It contains no allusion to religion, both parties being weary of Mary's Spanish counsels. The important letters of Noailles, the French ambassador, to which Carte had access, and which have since been printed, have afforded information to Dr. Lingard, and with those of the imperial ambassador, Renard, which I have not had an opportunity of seeing, throw much light on this reign. They certainly appear to justify the restraint put on Elizabeth, who, if not herself privy to the conspiracies planned in her behalf (which is, however, very probable), was at least too dangerous to be left at liberty. Noailles intrigued with the malcontents, and instigated the rebellion of Wyatt, of which Dr. Lingard gives a very interesting account. Carte, indeed, differs from him in many of these circumstances, though writing from the same source, and particularly denies that Noailles gave any encouragement to Wyatt. It is, however, evident from the tenor of his despatches that he had gone great lengths in fomenting the discontent, and was evidently desirous of the success of the insurrection (iii. 36, 43, etc.). This critical state of the government may furnish the usual excuse for its rigour. But its unpopularity was brought on by Mary's breach of her word as to religion, and still more by her obstinacy in forming her union with Philip against the general voice of the nation, and the opposition of Gardiner; who, however, after her resolution was taken, became its strenuous supporter in public. For the detestation in which the queen was held, see the letters of Noailles, _passim_; but with some degree of allowance for his own antipathy to her.

[61] Burnet, i. 117. The king refused his assent to a bill which had passed both houses, but apparently not of a political nature. _Lords' Journals_, p. 162.

[62] Burnet, 190.

[63] _Id._ 195, 215. This was the parliament, in order to secure favourable elections for which the council had written letters to the sheriffs. These do not appear to have availed so much as they might hope.

[64] Carte, 311, 322; Noailles, v. 252. He says that she committed some knights to the Tower for their language in the house. _Id._ 247. Burnet, p. 324, mentions the same.

[65] Burnet, 322; Carte, 296. Noailles says, that a third part of the Commons in Mary's first parliament was hostile to the repeal of Edward's laws about religion, and that the debates lasted a week. ii. 247. The journals do not mention any division; though it is said in Strype, iii. 204, that one member, Sir Ralph Bagnal, refused to concur in the act abolishing the supremacy. The queen, however, in her letter to Cardinal Pole, says of this repeal: "Quod non sine contentione, disputatione acri, et summo labore fidelium factum est." Lingard, Carte, Philips's _Life of Pole_. Noailles speaks repeatedly of the strength of the protestant party, and of the enmity which the English nation, as he expresses it, bore to the pope. But the aversion to the marriage with Philip, and dread of falling under the yoke of Spain, was common to both religions, with the exception of a few mere bigots to the church of Rome.

[66] Noailles, vol. 5, _passim_.

[67] Strype, ii. 394.

[68] Strype, iii. 155; Burnet, ii. 228.

[69] Burnet, ii. 262, 277.

[70] Noailles, v. 190. Of the truth of this plot there can be no rational ground to doubt; even Dr. Lingard has nothing to advance against it but the assertion of Mary's counsellors, the Pagets and Arundels, the most worthless of mankind. We are, in fact, greatly indebted to Noailles for his spirited activity, which contributed, in a high degree, to secure both the protestant religion and the national independence of our ancestors.

[71] Henry VII. first established a band of fifty archers to wait on him. Henry VIII. had fifty horse-guards, each with an archer, demilance and couteiller, like the gendarmerie of France; but on account, probably, of the expense it occasioned, their equipment being too magnificent, this soon was given up.

[72] _View of Middle Ages_, ch. 8. I must here acknowledge, that I did not make the requisite distinction between the concilium secretum, or privy council of state, and the concilium ordinarium, as Lord Hale calls it, which alone exercised jurisdiction.

[73] _Commonwealth of England_, book 3, c. 1. The statute 26 H. 8, c. 4 enacts, that if a jury in Wales acquit a felon, contrary to good and pregnant evidence, or otherwise misbehave themselves, the judge may bind them to appear before the president and council of the Welsh marches. The partiality of Welsh jurors was notorious in that age; and the reproach has not quite ceased.

[74] _State Trials_, i. 901; Strype, ii. 120. In a letter to the Duke of Norfolk (_Hardwicke Papers_, i. 46) at the time of the Yorkshire rebellion in 1536, he is directed to question the jury who had acquitted a particular person, in order to discover their motive. Norfolk seems to have objected to this for a good reason, "least the fear thereof might trouble others in the like case." But it may not be uncandid to ascribe this rather to a leaning towards the insurgents than a constitutional principle.

[75] _Hale's Jurisdiction of the Lords' House_, p. 5. Coke, 4th Inst. 65, where we have the following passage: "So this court [the court of star-chamber, as the concilium was then called] being holden coram rege et concilio, it is, or may be, compounded of three several councils; that is to say, of the lords and others of his majesty's privy council, always judges without appointment, as before it appeareth. 2. The judges of either bench and barons of the exchequer are of the king's council, for matters of law, etc., and the two chief justices, or in their absence other two justices, are standing judges of this court. 3. The lords of parliament are properly de magno concilio regis; but neither those, not being of the king's privy council, nor any of the rest of the judges or barons of the exchequer are standing judges of the court." But Hudson, in his _Treatise of the Court of Star-chamber_, written about the end of James's reign, inclines to think that all peers had a right of sitting in the court of star-chamber; there being several instances where some who were not of the council of state were present and gave judgment, as in the case of Mr. Davison, "and how they were complete judges unsworn, if not by their native right, I cannot comprehend; for surely the calling of them in that case was not made legitimate by any act of parliament; neither without their right were they more apt to be judges than any other inferior persons in the kingdom; and yet I doubt not but it resteth in the king's pleasure to restrain any man from that table, as well as he may any of his council from the board." _Collectanea Juridica_, ii. p. 24. He says also, that it was demurrable for a bill to pray process against the defendant, to appear before the king and his privy council. _Ibid._

[76] The privy council sometimes met in the star-chamber, and made orders. See one in 18 H. 6, Harl. MSS. Catalogue, N. 1878, fol. 20. So the statute, 21 H. 8, c. 16, recites a decree _by the king's council in his star-chamber_, that no alien artificer shall keep more than two alien servants, and other matters of the same kind. This could no way belong to the court of star-chamber, which was a judicial tribunal.

It should be remarked, though not to our immediate purpose, that this decree was supposed to require an act of parliament for its confirmation; so far was the government of Henry VIII. from arrogating a legislative power in matters of private right.

[77] Lord Hale thinks that the jurisdiction of the council was gradually "brought into great disuse, though there remain some straggling footsteps of their proceedings till near 3 H. 7."--P. 38. "The continual complaints of the commons against the proceedings before the council in causes civil or criminal, although they did not always attain their concession, yet brought a disreputation upon the proceedings of the council, as contrary to Magna Charta and the known laws."--P. 39. He seems to admit afterwards, however, that many instances of proceedings before them in criminal causes might be added to those mentioned by Lord Coke. P. 43.

The paucity of records about the time of Edward IV. renders the negative argument rather weak; but, from the expression of Sir Thomas Smith in the text, it may perhaps be inferred that the council had intermitted in a considerable degree, though not absolutely disused, their exercise of jurisdiction for some time before the accession of the house of Tudor.

Mr. Brodie, in his _History of the British Empire under Charles I._, i. 158, has treated at considerable length, and with much acuteness, this subject of the antiquity of the star-chamber. I do not coincide in all his positions; but the only one very important, is that wherein we fully agree, that its jurisdiction was chiefly usurped, as well as tyrannical.

I will here observe that this part of our ancient constitutional history is likely to be elucidated by a friend of my own, who has already given evidence to the world of his singular competence for such an undertaking, and who unites, with all the learning and diligence of Spelman, Prynne, and Madox, an acuteness and vivacity of intellect which none of those writers possessed.

[78] _Commonwealth of England_, book 3, c. 4. We find Sir Robert Sheffield in 1517 "put into the Tower again for the complaint he made to the king of my lord cardinal." Lodge's _Illustrations_, i. p. 27. See also Hall, p. 585, for Wolsey's strictness in punishing the "lords, knights, and men of all sorts, for riots, bearing, and maintenance."

[79] Plowden's _Commentaries,_ 393. In the year-book itself, 8 H. 7, pl. ult. the word star-chamber is not used. It is held in this case, that the chancellor, treasurer, and privy-seal were the only judges, and the rest but assistants. Coke, 4 Inst. 62, denies this to be law; but on no better grounds than that the practice of the star-chamber, that is, of a different tribunal, was not such.

[80] _Hist. of Henry VII._ in Bacon's works, ii. p. 290.

[81] The result of what has been said in the last pages may be summed up in a few propositions. 1. The court erected by the statute of 3 Henry VII. was not the court of star-chamber. 2. This court by the statute subsisted in full force till beyond the middle of Henry VIII.'s reign, but not long afterwards went into disuse. 3. The court of star-chamber was the old concilium ordinarium, against whose jurisdiction many statutes had been enacted from the time of Edward III. 4. No part of the jurisdiction exercised by the star-chamber could be maintained on the authority of the statute of Henry VII.

[82] Burnet, ii. 324.