Constitutional History of England, Vol 1 of 3

h the Celtic and Gothic tribes appear universally to have established, in preference to the coarse despotism of eastern nations, to the more artif

prerogative and the people's liberty or power having seldom been very accurately defined by law, or at least by such law as was deemed fundamental and unchangeable, the forms and principles of political regimen in these different nations became more divergent from each other, acco

ad been employed in its culture. I have endeavoured, in a work of which this may in a certain degree be reckoned a continuation, to trace the leading events and c

s' house. 2. The previous assent and authority of the same assembly was necessary for every new law, whether of a general or temporary nature. 3. No man could be committed to prison but by a legal warrant specifying his offence; and by an usage nearly tantamount to constitutional right, he must be speedily brought to trial by means of regular sessions of gaol-delivery. 4. The fact of guilt or innocence on a criminal charge was determined in a public court, and in the county where the offence was alleged to hav

. After a long contention, the kings of England had desisted for near a hundred years from every attempt to impose taxes without consent of parliament; and their recent device of demanding benevolences, or half-com

ed, whether the representatives of the ordinary freeholders, or of the boroughs, had seats and suffrages in that assembly during seven or eight reigns after the conquest. They were then, however, ingrafted upon it with plenary legislative authority; and if the sanction of a statute were required for this fundamental axiom, we might refer to one in the 15th of Edw

r and temporary, prompted by rapacity, and endured through compulsion. But if the kings of England had been supposed to enjoy an absolute authority, we should find some proofs of it in their exercise of the supreme function of sovereignty, the enactment of new laws. Yet there is not a single instance from the first dawn of our constitutional history, where a proclamation, or order of council, has dictated any change, however trifling, in the code of private rights, or in the penalties of criminal offences. Was it ever pretended that the king could empower his subjects to devise their freeholds, or to levy fines of their entailed lands? Has even

could be procured; the courts of justice were not strong enough, whatever might be their temper, to chastise such aggressions; juries, through intimidation or ignorance, returned such

inequalities of birth and wealth, we find the gentry or principal landholders, many of them distinguished by knighthood, and all by bearing coat armour, but without any exclusive privilege; the yeomanry, or small freeholders and farmers, a very numerous and respectable body, some occupying their own estates, some those of landlords; the burgesses and inferior inhabitants of trading towns; and, lastly, the peasantry and labourers.

g all essential facts, disputed the rule applicable to them.[6] By this device, which is as ancient as the reign of Henry II., the fundamental privilege of trial by jury, and the convenience of private suitors, as well as accused persons, was made consistent with an uniform jurisprudence; and though the reference of every legal question, however insignificant, to the courts above must have been inconvenient and expensive in a still greater degree than at present, it had doubtless a powerful tendency to knit together the different parts of England, to check the influence of feudality and clanship, to make the inhabitants of distant counties better acquainted with the capital city and more accustomed to the course of government, and to impair the spirit of provinc

and power, above the control of the mere officers of justice. Meanwhile the kingdom was increasing in opulence, the English merchants possessed a large share of the trade of the north; and a woollen manufacture, established in different parts of the kingdom, had not only enabled the legislature to restrain the import of cloths, but begun to supply f

ompetitor at Bosworth, and by the general submission of the kingdom. He assumed the royal title immediately after his victory, and summoned a parliament to recognise or sanction his possession. The circumstances were by no means such as to offer an auspicious presage for the future. A subdued party had risen from

aining to them, should remain in Henry VII. and the heirs of his body for ever, and in none other."[8] Words studiously ambiguous, which, while they avoid the assertion of an hereditary right that the public voice repelled, were meant to create a parliamentary title, before which the pretensions of lineal descent were to give way. They seem to make Henry the stock

ing the alternate proscriptions of Henry VI. and Edward IV. Such apprehensions led to a very important statute in the eleventh year of this king's reign, intended, as far as law could furnish a prospective security against the violence and vengeance of factions, to place the civil duty of allegiance on a just and reasonable foundation, and indirectly to cut away the distinction between governments de jure and de facto. It enacts, after reciting that subjects by reason of their allegiance are bound to serve their prince for the time being against every rebellion and power raised against him, that "no person attending upon the king and sovereign lord of this land fo

is termed modern history, as distinguished from the middle ages, and with the memorable events that have led us to make that leading distinction, especially the consolidation of the great European monarchies, among which England took a conspicuous station. But, relatively to the main subject of our enquiry, it is not evident that Henry VII. carried the authority of the Crown much beyond the point at which Edward IV. had left it. The strength of the nobility had been grievously impaired by the bloodshed of the civil wars, and the attainders that followed them. From this cause, or from the general intimidation, we find, as I have observed in another place, that

ew kings or statesmen have displayed this prospective wisdom and benevolence in legislation, we may hesitate a little to bestow so rare a praise upon Henry. Like the laws of all other times, his statutes seem to have had no further aim than to remove some immediate mischief, or to promote some particular end. One, however, has been much celebrated as an instance of

s laws. Thus vanish at once into air the deep policy of Henry VII. and his insidious schemes of leading on a prodigal aristocracy to its ruin. It is surely strange that those who have extolled this sagacious monarch for breaking the fetters of landed property (though many of them were lawyers) should never have observed, that

upon this account than from any more enlarged principle, these entails were not viewed with favour by the courts of justice. Several attempts were successfully made to relax their strictness; and finally, in the reign of Edward IV., it was held by the judges in the famous case of Taltarum, that a tenant in tail might, by what is called suffering a common recovery, that is, by means of an imaginary process of law, divest all those who were to come after him of their succession, and become owner of the fee simple. Such a decision was certainly far beyond the sphere of judicial authority. The legislature, it was probably suspected, would not have consen

t was thought necessary to confirm the interpretation by a new act of parliament); but rather, by establishing a short term of prescription, to put a check on the suits for recovery of lands, which, after times of so much violence and disturbance, were naturally springing up in the courts. It is the usual policy of commonwealths to

arising from such immediate discontent, were yet a good deal connected with the opinion of Henry's usurpation and the claims of a pretender, it was a necessary policy to avoid too frequent imposition of burdens upon the poorer classes of the community.[12] He had recourse accordingly to the system of benevolences, or contributions apparently voluntary, though in fact extorted from his richer subjects. These having become an intolerable grievance under Edward IV., were abolished in the only parliament of Richard III. with strong expressions of indignation. But in the seventh year of Henry's reign

ng such as could afford to endure the law's severity, filled his treasury with the dishonourable produce of amercements and forfeitures. The feudal rights became, as indeed they always had been, instrumental to oppression. The lands of those who died without heirs fell back to the Crown by escheat. It was the duty of certain officers in every county to look after its rights. The king's title was to be found by the inquest of a jury, summoned at the instance of the escheator, and returned into the exchequer. It then became a matter of record, and could not be impeached. Hence the escheators taking hasty inquests, or sometimes falsely pretending them, defeated the right heir of his succession. Excessive fines were imposed on granting livery to the king's wards on their majority. Informations for intrusion, criminal indictments, outlawries on civil process, in short, the whole course of justice, furnished pretences for exacting money; while a host of dependents on the court, suborned to play their part as witnesses, or even as jurors, rende

sued after the battle of Pavia. The campaigns of Henry in France and Scotland displayed the valour of our English infantry, seldom called into action for fifty years before, and contributed with other circumstances to throw a lustre over his reign, which prevented most of his contemporaries from duly appreciating its character. But they naturally drew the king into heavy expenses, and, together with his profusion and love of magnificence, rendered his government very burthensome. At his accession, however, the rapacity of his father's administration had excited such universal discontent, that it was found expedient to conciliate the nation. An act was passed in his first parliament to correct the abuses that had prevailed in finding the king's

any precedent, that all the independent members opposed a vigorous resistance. A committee was appointed to remonstrate with the cardinal, and to set forth the impossibility of raising such a subsidy. It was alleged that it exceeded all the current coin of the kingdom. Wolsey, after giving an uncivil answer to the committee, came down again to the House, on pretence of reasoning with them, but probably with a hope of carrying his end by intimidation. They received him, at More's suggestion, with all the train of attendants that usually encircled the haughtiest

th instructions to demand the sixth part of every man's substance, payable in money, plate, or jewels, according to the last valuation.[23] This demand Wolsey made in person to the mayor and chief citizens of London. They attempted to remonstrate, but were warned to beware, lest "it might fortune to cost some their heads." Some were sent to prison for hasty words, to which the smart of injury incited them. The clergy, from whom, according to usage, a larger measure of contribution was demanded, stood upon their privilege to grant their money only in convocation, and denied the right of a king of England to ask any man's money without authority of parliament. The rich and poor agreed in cursing the cardinal as the subverter of their laws and liberties; and said "if men should give their goods by a commission, then it would be worse than the taxes of France, and England should be bond, and not f

r cases. If Wolsey therefore could have procured the acquiescence of the nation under this yoke, there would probably have been an end of parliaments for all ordinary purposes; though, like the States General of France, they might still be convoked to give weight and security to great innovations. We cannot indeed doubt that the unshackled condition of his friend, though rival, Francis I., afforded a mortifying contrast to H

might have prompted his impeachment for gross violations of liberty. But these were not the offences that had forfeited his prince's favour, or that they dared bring to justice. They were not absent perhaps from the recollection of some of those who took a part in prosecuting the fallen minister. I can discover no better apology for Sir Thomas More's participation in impeaching Wolsey on articles so frivolous that they have served to redeem his fame with later times, than his knowledge of weightier offences against the common weal which could not be alleged, and especially the commissions of 1525.[26] But in truth this parliament showed little outward disposition to object any injustice of such a kind to the cardinal. They professed to take upon themselves to give a sanction to his proceedings, as if in mockery of their own and their country's liberties. They passed a statute, the most extraordinary perhaps of those strange times, wherein "they do, for themselves and all the whole body of the realm which they represent, freely, liberally, and absolutely, give and grant unto the king's highness, by authority of this present parliament, all and every

majesty could reasonably accept would be twenty pence in the pound, on the yearly value of land, and half that sum on movable goods. They are to summon but a few to attend at one time, and to commune with every one apart, "lest some one unreasonable man, amongst so many, forgetting his duty towards God, his sovereign lord, and his country, may go about by his malicious frowardness to silence all the rest, be they never so well disposed." They were to use "good words and amiable behaviour," to induce men to contribut

ok this disobedience; and the course adopted in pursuing it is somewhat remarkable. The English army was then in the field on the Scots border. Reed was sent down to serve as a soldier at his own charge; and the general, Sir Ralph Ewer, received intimations to employ him on the hardest and most perilous duty, and subject him, when in garrison, to the greatest privations, that he might feel the smart of his folly and sturdy disobedience. "Finally," the letter conclu

less at the mercy of a jealous court? It cannot be necessary to expatiate very much on this subject in a work that supposes the reader's acquaintance with the common facts of our history;

y become acquainted with his fellow-prisoner Perkin Warbeck, he listened to a scheme for their escape, and would probably not have been averse to second the ambitious views of that young man. But it was surmised, with as much likelihood as the character of both parties could give it, that the king had promised Ferdinand of Aragon to remove the Earl of Warwick

ovoked his flight into the Netherlands; whence, being a man of a turbulent disposition, and partaking in the hatred of his family towards the house of Lancaster, he engaged in a conspiracy with some persons at home, which caused him to be attainted of treason. Some time afterwards, the Archduke Philip, having been shipwrecked on the coast of England, found himself in a sort of honourable detention at Henry's court. On consenting to his departure, the king requested him to send over the Earl of Suffolk; and Phili

e jealousy of the king, and the resentment of Wolsey. The evidence, on his trial for high treason, was almost entirely confined to idle and vaunting language, held with servants who betrayed his confidence, and soothsayers whom he had believed. As we find no other persons charged as parties with him, i

h they might be conformable seem, from their temporary duration, their violence, and the passiveness of the parliaments that enacted them, rather like arbitrary invasions of the law than alterations of it. By an act of 1534, not only an oath was imposed to maintain the succession in the heirs of the king's second marriage, in exclusion of the Princess Mary; but it was made high treason to deny that ecclesiastical supremacy of the Crown, which, till about two years before, no one had ever ventured to assert. Bishop Fisher, the most inflexibly honest churchman who filled a high station in that age, was

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 pro

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'

y. 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

e guilt of treason to an adulterous queen as well as to her paramour, and partly on the recent law for preservation of the succession, which attached the same penalties to anything done or said in slander of the king's issue. Her levities in discourse were brought within this strange act by a still more strange interpretation. Nor was the wounded pride of the king content with her death. Under the fear, as is most likely, of a more cruel punishment, which the law affixed to her offence, Anne was induced to confess a pre-contract with Lord Percy, on which her marriage with the king was annulled by an ecclesiastical sentence, without awaiting its certain dissolution by the axe.[38] Henry seems to have thought his honour too much sullied by the

orce, 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'

ution 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 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

to posterity among those of the many tyrants and oppressors of innocence, whom the wrath of Heaven has raised up, and the servility of men has endured. I do not indeed believe that he had really conciliated his people's affection. That perfect fear which attended him must have cast out love. But he had a few qualities that deserve esteem, and several which a nation is pleased to behold in its sovereign. He wanted, or at least did not manifest in any eminent degree, one usual vice of tyrants, dissimulation; his manners were affable, and his temper generous. Though his schem

proclamations. These 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 parliam

ley, 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 thr

nfederacy 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 th

e 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 treason, except on the testimony of two lawful witnesses, who shall be brought in p

olent and alarming than during her brother's reign. It is due indeed to the memory of one who has left so odious a name, to remark that Mary was conscientiously averse to encroach upon what she understood to be the privileges of her people. A wretched book having been written to exalt her prerogative, on the ridiculous pretence that, as a queen, she was not bound by the laws of former kings, she showed it to Gardiner, and on his expressing indignation at the sophism, threw it herself into the fire. An act passed, however, to settle such questions, which declares the queen to have all the lawful prerogatives of the Crown.[55] But she was surrounded by wicked counsellors, renegades of every faith and ministers of every tyranny. We must, in candour, attribute to their advice her arbitrary measures, though not her persecution of heresy, which she counted for virtue. She is said to have extorted loans from the citizens of London, and others of her subjects.[56] This, indeed, was not more than had been usual with her predecessors. But we find one clear instance during her reign of a duty upon foreign cloth, imposed without assent of parliament; an encroachment unprecedented since the reign of Richard II. Several proofs might be adduced from records of arbitrary inquests for offences, and illegal modes of punishment. The torture is, perhaps, more frequently mentioned in her short reign than in all former ages of our history put together; and probably from that imitation

majority of peers for the government, yet the dissent of no small number is frequently recorded in the former reign. Thus the Commons not only threw out a bill creating several new treasons, and substituted one of a more moderate nature, with that memorable clause for two witnesses to be produced in open court, which I have already mentioned;[62] but rejected one attainting Tunstal Bishop of Durham for misprision of treason, and were hardly brought to grant a subsidy.[63] Their conduct in the two former instances, and probably in the third, must be attributed to the indignation that was generally felt at the usurped power of Northumberland, and the untimely fate of Somerset. Several cases of simila

in our popular representation, the advantages or evils of which we need not here discuss, less to changes wrought by time, than to deliberate and not very constitutional policy. Nor did the government scruple a direct and avowed interference with elections. A circular letter of Edward to all the sheriffs commands them to give notice to the freeholders, citizens, and burgesses within their respective counties, "that our pleasure and commandment is, that they shall choose and appoint, as nigh as they possibly may, men of knowledge and experience within the counties, cities, and boroughs;" but nevertheless, that where the privy council should "recommend men of learning and wisdom, in such case their directions be regarded and followed." Several persons accordingly were recommended by letters to the sheriffs, and elected as knights for different shires; all of whom belonged to the court, or were in places of trust about the king.[67] It appears probable that persons in office formed at all times a very considerable portion of the House of C

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 destitute 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

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 pronounce 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 passeth away for the most part. Yet I have seen in my time, but not in the reign of the king now [Elizabeth], that an i

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 class 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 assemblies, 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 justic

at time marvellous necessary to do to repress the insolency of the noblemen 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 noble 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 assuaged, 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 t

s, 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 noble institution, as he terms it, of that court, whose walls had been so often witnesses to the degradation of his own mind. It took cognisance principally, he tells us, of four kinds of causes, "forces, frauds, crimes various of stellionate, and the inchoations or midd

lt 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 i

tely 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 nobles 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 carcass, distributed the spoils it brought him among those who had helped in the chase. The dis