Constitutional History of England, Henry VII to George II. Volume 1 of 3

by Henry Hallam

It is here to be observed that the council of which we have just heard, or, as Lord Hale denominates it (though rather, I believe, for the sake of distinction than upon any ancient authority), the king's ordinary council, was something different from the privy council, with which several modern writers are apt to confound it; that is, the court of jurisdiction is to be distinguished from the deliberative body, the advisers of the Crown. Every privy councillor belonged to the concilium ordinarium; but the chief justices, and perhaps several others who sat in the latter (not to mention all temporal and spiritual peers, who, in the opinion at least of some, had a right of suffrage therein), were not necessarily of the former body.[75] This cannot be called in question, without either charging Lord Coke, Lord Hale, and other writers on the subject, with ignorance of what existed in their own age, or gratuitously supposing that an entirely novel tribunal sprung up in the sixteenth century under the name of the star-chamber. It has indeed been often assumed that a statute enacted early in the reign of Henry VII. gave the first legal authority to the criminal jurisdiction exercised by that famous court, which in reality was nothing else but another name for the ancient concilium regis, of which our records are full, and whose encroachments so many statutes had endeavoured to repress; a name derived from the chamber wherein it sat, and which is found in many precedents before the time of Henry VII., though not so specially applied to the council of judicature as afterwards.[76] The statute of this reign has a much more limited operation. I have observed in another place, that the coercive jurisdiction of the council had great convenience, in cases where the ordinary course of justice was so much obstructed by one party, through writs, combinations of maintenance, or overawing influence, that no inferior court would find its process obeyed; and that such seem to have been reckoned necessary exceptions from the statutes which restrain its interference. The act of 3 H. 7, c. 1 appears intended to place on a lawful and permanent basis the jurisdiction of the council, or rather a part of the council, over this peculiar 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 justices in their absence, to call before them such as offended in the before-mentioned respects, and to punish them after examination in such manner as if they had been convicted by course of law. But this statute, if it renders legal a jurisdiction which had long been exercised with much advantage, must be allowed to limit the persons in whom it should reside, and certainly does not convey by any implication more extensive functions over a different description of misdemeanours. By a later act, 21 H. 8, c. 20, the president of the council is added to the judges of this court; a decisive proof that it still existed as a tribunal perfectly distinct from the council itself. But it is not styled by the name of star-chamber in this, any more than in the preceding statute. It is very difficult, I believe, to determine at what time the jurisdiction legally vested in this new court, and still exercised by it forty years afterwards, fell silently into the hands of the body of the council, and was extended by them so far beyond the boundaries assigned by law, under the appellation of the court of star-chamber. Sir Thomas Smith, writing in the early part of Elizabeth's reign, while he does not advert to the former court, speaks of the jurisdiction of the latter as fully established, and ascribes the whole praise (and to a certain degree it was matter of praise) to Cardinal Wolsey.

The celebrated statute of 31 H. 8, c. 8, which gives the king's proclamations, to a certain extent, the force of acts of parliament, enacts that offenders convicted of breaking such proclamations before certain persons enumerated therein (being apparently the usual officers of the privy council, together with some bishops and judges), "in the star-chamber or elsewhere," shall suffer such penalties of fine and imprisonment as they shall adjudge. "It is the effect of this court," Smith says, "to bridle such stout noblemen or gentlemen which would offer wrong by force to any manner of men, and cannot be content to demand or defend the right by order of the law. It began long before, but took augmentation and authority at that time that Cardinal Wolsey, Archbishop of York, was chancellor of England, who of some was thought to have first devised that court, because that he, after some intermission, by negligence of time, augmented the authority of it,[77] which was at that time marvellous necessary to do to repress the insolency of the 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 this day in manner as I have said before."[78] But as the court erected by the statute of Henry VII. appears to have been in activity as late as the fall of Cardinal Wolsey, and exercised its jurisdiction over precisely that class of offences which Smith here describes, it may perhaps be more likely that it did not wholly merge in the general body of the council till the minority of Edward, when that oligarchy became almost independent and supreme. It is obvious that most, if not all, of the judges in the court held under that statute were members of the council; so that it might in a certain sense be considered as a committee from that body, who had long before been wont to interfere with the punishment of similar misdemeanours. And the distinction was so soon forgotten, that the judges of the king's bench in the 13th of Elizabeth cite a case from the year-book of 8 H. 7 as "concerning the star-chamber," which related to the limited court erected by the statute.[79]

In this half-barbarous state of manners we certainly discover an apology, as well as motive, for the council's interference; for it is rather a servile worshipping of names than a rational love of liberty, to prefer the forms of trial to the attainment of justice, or to fancy that verdicts obtained by violence or corruption are at all less iniquitous than the violent or corrupt sentences of a court. But there were many cases wherein neither the necessity of circumstances, 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 middle acts towards crimes capital or heinous, not actually committed or perpetrated."[80] Sir Thomas Smith uses expressions less indefinite than these last; and specifies scandalous reports of persons in power, and seditious news, as offences which they were accustomed to punish. We shall find abundant proofs of this department of their functions in the succeeding reigns. But this was in violation of many ancient laws, and not in the least supported by that of Henry VII.[81]

Influence of the authority of the star-chamber in enhancing the royal power.—A tribunal so vigilant and severe as that of the star-chamber, proceeding by modes of interrogatory unknown to the common law, and possessing a discretionary power of fine and imprisonment, was easily able to quell any private opposition or contumacy. We have seen how the council dealt with those who refused to lend money by way of benevolence, and with the juries who found verdicts that they disapproved. Those that did not yield obedience to their proclamations were not likely to fare better. I know not whether menaces were used towards members of the Commons who took part against the Crown; but it would not be unreasonable to believe it, or at least that a man of moderate courage would scarcely care to expose himself to the resentment which the council might indulge after a dissolution. A knight was sent to the Tower by Mary, for his conduct in parliament;[82] and Henry VIII. is reported, not perhaps on very certain authority, to have talked of cutting off the heads of refractory commoners.

In the persevering struggles of earlier parliaments against Edward III., Richard II., and Henry IV., it is a very probable conjecture, that many considerable peers acted in union with, and encouraged the efforts of, the Commons. But in the period now before us, the nobility were precisely the class most deficient in that constitutional spirit, which was far from being extinct in those below them. They knew what havoc had been made among their fathers, by multiplied attainders during the rivalry of the two Roses. They had seen terrible examples of the danger of giving umbrage to a jealous court, in the fate of Lord Stanley and the Duke of Buckingham, both condemned on slight evidence of treacherous friends and servants, from whom no man could be secure. Though rigour and cruelty tend frequently to overturn the government of feeble princes, it is unfortunately too true that, steadily employed and combined with vigilance and courage, they are often the safest policy of despotism. A single suspicion in the dark bosom of Henry VII., a single cloud of wayward humour in his son, would have been sufficient to send the proudest peer of England to the dungeon and the scaffold. Thus a life of eminent services in the field, and of unceasing compliance in council, could not rescue the Duke of Norfolk from the effects of a dislike which we cannot even explain. Nor were the 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 dissolution of monasteries opened a more abundant source of munificence; every courtier, every peer, looked for an increase of wealth from grants of ecclesiastical estates, and naturally thought that the king's favour would most readily be gained by an implicit conformity to his will. Nothing however seems more to have sustained the arbitrary rule of Henry VIII. than the jealousy of the two religious parties formed in his time, and who, for all the latter years of his life, were maintaining a doubtful and emulous contest for his favour. But this religious contest, and the ultimate establishment of the Reformation, are events far too important, even in a constitutional history, to be treated in a cursory manner; and as, in order to avoid transitions, I have purposely kept them out of sight in the present chapter, they will form the proper subject of the next.

CHAPTER II

ON THE ENGLISH CHURCH UNDER HENRY VIII., EDWARD VI., AND MARY

Reformation. State of public opinion as to religion.—No revolution has ever been more gradually prepared than that which separated almost one-half of Europe from the communion of the Roman see; nor were Luther and Zuingle any more than occasional instruments of that change which, had they never existed, would at no great distance of time have been effected under the names of some other reformers. At the beginning of the sixteenth century, the learned doubtfully and with caution, the ignorant with zeal and eagerness, were tending to depart from the faith and rites which authority prescribed. But probably not even Germany was so far advanced on this course as England. Almost a hundred and fifty years before Luther, nearly the same doctrines as he taught had been maintained by Wicliffe, whose disciples, usually called Lollards, lasted as a numerous, though obscure and proscribed sect, till, aided by the confluence of foreign streams, they swelled into the protestant church of England. We hear indeed little of them during some part of the fifteenth century; for they generally shunned persecution; and it is chiefly through records of persecution that we learn the existence of heretics. But immediately before the name of Luther was known, they seem to have become more numerous, or to have attracted more attention; since several persons were burned for heresy, and others abjured their errors, in the first years of Henry VIII.'s reign. Some of these (as usual among ignorant men engaging in religious speculations) are charged with very absurd notions; but it is not so material to observe their particular tenets as the general fact, that an inquisitive and sectarian spirit had begun to prevail.

Those who took little interest in theological questions, or who retained an attachment to the faith in which they had been educated, were in general not less offended than the Lollards themselves with the inordinate opulence and encroaching temper of the clergy. It had been for two or three centuries the policy of our lawyers to restrain these within some bounds. No ecclesiastical privilege had occasioned such dispute, or proved so mischievous, as the immunity of all tonsured persons from civil punishment for crimes. It was a material improvement in the law under Henry VI. that, instead of being instantly claimed by the bishop on their arrest for any criminal charge, they were compelled to plead their privilege at their arraignment, or after conviction. Henry VII. carried this much farther, by enacting that clerks convicted of felony should be burned in the hand. And in 1513 (4 H. 8), the benefit of clergy was entirely taken away from murderers and highway robbers. An exemption was still made for priests, deacons, and subdeacons. But this was not sufficient to satisfy the church, who had been accustomed to shield under the mantle of her immunity a vast number of persons in the lower degrees of orders, or without any orders at all; and had owed no small part of her influence to those who derived so important a benefit from her protection. Hence, besides violent language in preaching against this statute, the convocation attacked one Doctor Standish, who had denied the divine right of clerks to their exemption from temporal jurisdiction. The temporal courts naturally defended Standish; and the parliament addressed the king to support him against the malice of his persecutors. Henry, after a full debate between the opposite parties in his presence, thought his prerogative concerned in taking the same side; and the clergy sustained a mortifying defeat. About the same time, a citizen of London named Hun, having been confined on a charge of heresy in the bishop's prison, was found hanged in his chamber; and though this was asserted to be his own act, yet the bishop's chancellor was indicted for the murder on such vehement presumptions, that he would infallibly have been convicted, had the attorney-general thought fit to proceed in the trial. This occurring at the same time with the affair of Standish, furnished each party with an argument; for the clergy maintained that they should have no chance of justice in a temporal court; one of the bishops declaring, that the London juries were so prejudiced against the church, that they would find Abel guilty of the murder of Cain. Such an admission is of more consequence than whether Hun died by his own hands, or those of a clergyman; and the story is chiefly worth remembering, as it illustrates the popular disposition towards those who had once been the objects of reverence.[83]