History of England from the Fall of Wolsey to the Death of Elizabeth. Vol. III

The lords and commons, in accepting the articles, gave especial thanks to his Majesty for the godly pain, study, and travail with which he had laboured to establish them; and they “prayed God that he might long reign to bring his godly enterprise to a full end and perfection;” and that by these means “quiet, unity, and concord might be had in the whole body of the realm for ever.”

On their side they enacted against such persons as should refuse to submit to the resolutions: —

Pains and penalties.

That whoever, by word or writing, denied the first article, should be declared a heretic, and suffer death by burning, without opportunity of abjuration, without protection from sanctuary or benefit of clergy. Whoever spoke or otherwise broke the other five articles, or any one of them, should, for the first offence, forfeit his property; if he offended a second time, or refused to abjure when called to answer, he should suffer death as a felon. All marriages hitherto contracted by priests were declared void. A day was fixed before which their wives were to be sent to their friends, and to retain them after that day was felony. To refuse to go to confession was felony. To refuse to receive the sacrament was felony. On every road on which the free mind of man was moving, the dark sentinel of orthodoxy was stationed with its flaming sword; and in a little time all cowards, all who had adopted the new opinions with motives less pure than that deep zeal and love which alone entitle human beings to constitute themselves champions of God, flinched into their proper nothingness, and left the battle to the brave and the good.

General satisfaction with the measure felt by the higher classes.

The feelings with which the bill was received by the world may be gathered most readily from two letters, – one written by an English nobleman, who may be taken to have represented the sentiments of the upper classes in this country; the other written by Philip Melancthon, speaking in the name of Germany and of English Protestantism struggling to be born.

The signature and the address of the first are lost; but the contents indicate the writer’s rank.469

Unanimity of the temporal peers.

“For news here, I assure you, never prince showed himself so wise a man, so well learned, and so catholic, as the king hath done in this parliament. With my pen I cannot express his marvellous goodness, which is come to such effect that we shall have an act of parliament so spiritual that I think none shall dare to say that in the blessed sacrament of the altar doth remain either bread or wine after the consecration; nor that a priest may have a wife; nor that it is necessary to receive our Maker sub utrâque specie; nor that private masses should not be used as they have been; nor that it is not necessary to have auricular confession. And notwithstanding my Lord Canterbury, my Lord of Ely, my Lord of Salisbury, my Lords of Worcester, Rochester, and St. David’s defended the contrary long time, yet, finally, his Highness confounded them all with God’s learning. York, Durham, Winchester, London, Chichester, Norwich, and Carlisle have shewed themselves honest and well learned men. We of the temporalty have been all of one opinion; and my Lord Chancellor and my Lord Privy Seal as good as we can desire. My Lord of Canterbury and all the bishops have given over their opinions and come in to us, save Salisbury, who yet continueth a lewd fool. Finally, all England hath cause to thank God, and most heartily to rejoice, of the king’s most godly proceedings.”

Spirit of English conservatism.

Protest of Melancthon.

There spoke the conservative Englishman, tenacious of old opinions, believing much in established order, and little in the minds and hearts of living human beings, – believing that all variation from established creeds could only arise from vanity and licentiousness, from the discontent of an ill-regulated understanding.

We turn to Melancthon, and we hear the protest of humanity, the pleading of intellect against institutions, the voice of freedom as opposed to the voice of order – the two spirits “between whose endless jar justice resides.”

The shame of the king and the glory of the martyrs.

The malice of the bishops against the truth.

He reminded the king of the scene described by Thucydides, where the Athenians awoke to their injustice and revoked the decree against Mytilene, and he implored him to reconsider his fatal determination. He was grieved, he said, for those who professed the same doctrines as himself; but he was more grieved for the king, who allowed himself to be the minister of tyranny. For them nothing could happen more glorious than to lose their lives in bearing witness to the truth; but it was dreadful that a prince, who could not plead the excuse of ignorance, should stain his hands with innocent blood. The bishops pretended that they were defending truth; but it was the truth of sophistry, not of God. In England, and through Europe, the defenders of truth were piecing old garments with new cloth, straining to reconcile truth with error, and light with darkness. He was not surprised. It was easy to understand with the reason how such things were; but his feelings recoiled, and pleaded passionately against their hard and cruel hearts. “If that barbarous decree be not repealed,” he said, “the bishops will never cease to rage against the Church of Christ without mercy and without pity; for them the devil useth as instruments and ministers of his fury and malice against Christ – he stirreth them up to kill and destroy the members of Christ. And you, O king! all the godly beseech most humbly that you will not prefer such wicked and cruel oppressions and subtle sophistries before their own just and honest prayers. God recompense you to your great reward if you shall grant those prayers. Christ is going about hungry and thirsty, naked and imprisoned, complaining of the rage and malice of the bishops, and the cruelty of kings and princes. He prays, He supplicates, that the members of his body be not rent in pieces, but that truth may be defended, and the Gospel preached among men; a godly king will hear his words, and obey the voice of his entreaty.”470

The king reads to the Anglicans a lesson of moderation.

The dinner at Lambeth.

The extremes of opinion were thus visible on either side. Between them the government steered their arduous way, under such guidance as conscience and necessity could furnish. To pass a statute was one thing: to enforce the provisions of it was another. The peers and bishops expected to be indulged forthwith in the pleasures of a hot persecution. The king’s first act was to teach them to moderate their ardour. In order to soothe the acrimonies which the debate had kindled, the lords spiritual and temporal were requested to repair to Lambeth to “animate and comfort the archbishop,” and to bury the recollection of all differences by partaking of his hospitality. The history of their visit was, perhaps, diluted through Protestant tradition before it reached the pages of Foxe, and the substance only of the story can be relied upon as true. It is said, however, that on this occasion a conversation arose which displayed broadly the undercurrent of hatred between Cromwell and the peers. One of the party spoke of Wolsey, whom he called “a stubborn and churlish prelate, and one that never could abide any nobleman;” “and that,” he added, “you know well enough, my Lord Cromwell, for he was your master.” Cromwell answered that it was true that he had been Wolsey’s servant, nor did he regret his fortune. “Yet was I never so far in love with him,” he said, “as to have waited upon him to Rome, which you, my lord, were, I believe, prepared to have done.” It was not true, the first speaker said. Cromwell again insisted that it was true, and even mentioned the number of florins which were to have paid him for his services. The other said “he lied in his teeth, and great and high words rose between them.”471

The persecution commences.

The statute is developed into branches.

Five hundred suspected persons imprisoned in a fortnight.

The king’s peace-making prospered little. The impetus of a great victory was not to be arrested by mild persuasions. A commission was appointed by the Catholic leaders to reap the desired fruits. Such of the London citizens as had most distinguished themselves as opponents of reformation in all its forms – those especially who had resisted the introduction of the Bible – formed a court, which held its sittings in the Mercers’ Chapel. They “developed the statute” in what were termed “branches of inference”; they interpreted “speaking against masses” to comprehend “coming seldom to mass.” Those who were slow in holding up their hands “at sacring time,” or who did not strike their breasts with adequate fervour, were held to have denied the sacrament. In the worst temper of the Inquisition they revived the crippled functions of the spiritual courts: they began to inquire again into private conduct, – who went seldom to church – who refused to receive holy bread or holy water – who were frequent readers of the Bible, “with a great many other such branches.”472 “They so sped with their branches” that in a fortnight they had indicted five hundred persons in London alone. In their imprudent fanaticism they forgot all necessary discretion. There was not a man of note or reputation in the City who had so much as spoken a word against Rome, but was under suspicion, or under actual arrest. Latimer and Shaxton were imprisoned, and driven to resign their bishoprics.473 Where witnesses were not to be found, Hall tells us significantly, “that certain of the clergy would procure some, or else they were slandered.” The fury which had been pent up for years, revenge for lost powers and privileges, for humiliations and sufferings, remorse of conscience reproaching them for their perjury in abjuring the Pope, whom they still reverenced, and to whose feet they longed to return, poured out from the reactionary churchmen in a concentrated lava stream of malignity.

The bishops’ zeal is greater than their discretion.

A general pardon is granted once more.

The blindness of their rage defeated their object. The king had not desired articles of peace that worthless bigots might blacken the skies of England with the smoke of martyr-fires. The powers given to the crown by the Act of Proclamations recoiled on those who bestowed them, and by a summary declaration of pardon the bishops’ dungeon doors were thrown open; the prisoners were dismissed;474 and though Cromwell had seemed to yield to them in the House of Lords, their victims, they discovered, would not be permitted to be sacrificed so long as Cromwell was in power.

The Vicar of Stepney, who has denounced authority in violent language, is called on to recant.

He yields an ambiguous obedience.

Not contented with granting an indemnity, Henry set the persecutors an example of the spirit in which to enforce the Six Articles. Next to Barnes and Latimer, the most obnoxious of all the reforming clergy, in high orthodox quarters, was Jerome, Vicar of Stepney. While the parliament was in session this person preached in violent denunciation of their proceedings. He denied their authority to make laws to bind the conscience.475 He had used “opprobrious words” against the members of the House of Commons, calling them “butterflies, fools, and knaves;” and when the Act of Opinions was passed, he was seized by the committee at the Mercers’. We need not ask how he would have been dealt with there; but Henry took the cause out of their hands. He sent for the preacher, and, as Jerome reported afterwards, “so indifferently heard him, so gently used him, so mercifully forgave him, that there was never poor man received like gentleness at any prince’s hand.” The preacher consented to revoke his words in the place where he had used them; and appearing again in the same pulpit, he confessed that he had spoken wrongly. The king had shown him that to restrain the power of the government within the limits which he desired, would create confusion in the commonwealth, and that his declamation against the burgesses had been ill and slanderously spoken. He recanted also other parts of his sermon on questions of doctrine; but he added an explanation of his submission characteristic of the man and of the time. “He was perplexed,” he said, “but not confounded;” “he was compelled to deny himself; but to deny himself was no more but when adversity should come, as loss of goods, infamies, and like trouble, than to deny his own will, and call upon the Lord, saying, Fiat voluntas tua.”476 Catholics and Protestants combined to render the king’s task of ruling them as arduous as it could be made.

The bill, nevertheless, though it might be softened in the execution, was a hard blow on the Reformation, and was bitterly taken. Good came at last out of the evil. The excesses of the moving party required absolutely to be checked; nor could this necessary result be obtained till the bishops for a time had their way uncontrolled; but the dismissal of Latimer from the bench, the loss of the one man in England whose conduct was, perhaps, absolutely straightforward, upright, and untainted with alloy of baser matter, was altogether irreparable.

The king and Prince Edward.

We approach another subject of scarcely less importance than this famous statute, and scarcely less stern. Before we enter upon it we may pause for a moment over one of the few scenes of a softer kind which remain among the records of this iron age. It is but a single picture. Richard Cromwell, writing from the court of some unimportant business which the king had transacted, closes his letter with adding: “This done, his Grace went to the prince, and there hath solaced all the day with much mirth and with dallying with him in his arms a long space, and so holding him in a window to the sight and great comfort of all the people.”477 A saying is recorded of Henry: “Happy those who never saw a king and whom a king never saw.” It is something, though it be but for once, to be admitted behind the shows of royalty, and to know that he, too, the queller of the Pope, the terror of conspirators, the dread lord who was the pilot of England in the sharpest convulsion which as yet had tried her substance, was nevertheless a man like the rest of us, with a human heart and human tenderness.

But to go on with our story.

State of the English criminal law.

Effect of benefit of clergy and privilege of sanctuary.

The English criminal law was in its letter one of the most severe in Europe; in execution it was the most uncertain and irregular. There were no colonies to draw off the criminals, no galley system, as in France and Spain, to absorb them in penal servitude; the country would have laughed to scorn the proposal that it should tax itself to maintain able-bodied men in unemployed imprisonment; and, in the absence of graduated punishments, there was but one step to the gallows from the lash and the branding-iron. But, as ever happens, the extreme character of the penalties for crime prevented the enforcement of them; and benefit of clergy on the one hand, and privilege of sanctuary on the other, reduced to a fraction the already small number of offenders whom juries could be found to convict. In earlier ages the terrors of the Church supplied the place of secular retribution, and excommunication was scarcely looked upon as preferable even to death. But in the corrupt period which preceded the Reformation the consequences were the worst that can be conceived. Spasmodic intervals of extraordinary severity, when twenty thieves, as Sir Thomas More says, might be seen hanging on a single gibbet,478 were followed by periods when justice was, perhaps, scarcely executed at all.479

Reluctance of juries to convict, and of magistrates to sentence.

Rarity of capital convictions apparent in the judges’ reports.

A sanctuary under the walls of Newgate.

Armed interference at assizes.

Difficulty experienced in abridging long recognised privileges.

The state endeavoured to maintain its authority against the immunities of the Church by increasing the harshness of the code. So long as these immunities subsisted, it had no other resource; but judges and, magistrates shrank from inflicting penalties so enormously disproportioned to the offence. They could not easily send a poacher or a vagrant to the gallows while a notorious murderer was lounging in comfort in a neighbouring sanctuary, or having just read a sentence from a book at the bar in arrest of judgment, had been handed over to an apparitor of the nearest archdeacon’s court, and been set at liberty for a few shillings. I have met with many instances of convictions for deer stealing in the correspondence of the reign of Henry VIII.; I have met but one instance where the letter of the law was enforced against the offender, unless the minor crime had been accompanied with manslaughter or armed resistance: the leaders of a gang who had for many years infested Windsor Forest were at last taken and hanged. The vagrancy laws sound terribly severe; but in the reports of the judges on their assize, of which many remain in the State Paper Office, I have not found any one single account of an execution under them. Felons of the worst kind never, perhaps, had easier opportunities. The parish constables were necessarily inefficient as a police; many of them were doubtless shaped after the model of Dogberry; if they bid a man stand and he would not stand, they would let him go, and thank God they were rid of a knave. There was a sanctuary within reach all over England, even under the very walls of Newgate, where escaped prisoners could secure themselves. The scarcely tolerable licence of ordinary times had broken its last bonds during the agitations of the Reformation, and the audacity of the criminal classes had become so great that organized gangs of them assembled at the gaol deliveries and quarter sessions to overawe the authorities. Ambitious or violent knights and noblemen interfered to rescue or protect their own dependents.480 They alone were the guardians of the law, and they at their pleasure could suspend the law; while the habit of admitting plea of clergy, and of respecting the precincts of sanctuary, had sunk so deeply into the practice of the country, that, although parliament might declare such privileges curtailed, yet in many districts custom long continued stronger than law. The constables still respected the boundaries traced by superstition; felons were still “saved by their book;” the English, like the Romans, were a people with whom legislation became strong only when it had stiffened into habit, and had entered slowly and formally into possession of their hearts and understandings.

So many anomalies have at all times existed among English institutions, that the nation has been practised in correcting them; and, even at their worst, the old arrangements may have worked better in reality than under the naked theory might appear to be possible. In a free country each definite instinct or tendency represents itself in the general structure of society. When tendencies, as frequently happens, contradict each other, common sense comes in to the rescue, and, on the whole, justice is done, though at the price of consistency.

But at the period at which this history has now arrived, the evils of the system had obtained a conclusive preponderance. Superstition had become powerless to deter from violence, retaining only the means of preventing the punishment of it.481 I shall proceed to illustrate the actual condition of the criminal administration between the years 1535 and 1540, by specimens, not indeed selected at random, but such as exhibit, in a marked form, a condition of things which may be traced, in greater or less degree, throughout the judicial and magisterial correspondence of the time.

Violent dissolution of the sessions at Taunton and Bridgewater by an armed combination.

In the spring of 1535, the sessions at Taunton and Bridgewater were forcibly dissolved by an insurrection of “wilful persons.” Lord Fitzwarren and a number of other gentlemen narrowly escaped being murdered; and the gang, emboldened by success, sent detachments round the country, thirty of whom, the magistrates of Frome reported as having come thither for a similar purpose. The combination was of so serious a kind, that the posse comitatus of Somersetshire was called out to put it down. Circulars went round among the principal families, warning them all of what had taken place, and arranging plans for mutual action. Sir John Fitzjames came down from London; and at last, by great exertion, the ringleaders were arrested and brought to trial. The least guilty were allowed to earn their pardon by confession. Twelve who attempted to face out their offence were convicted and executed, four of them at Taunton, four at Bridgewater, and four at the village to which they belonged.482

A jury at Chichester refuses to convict a gang of burglars.

In 1536, 7, 8, or 9,483 a series of burglaries had been committed in the town and the neighbourhood of Chichester; and there had been a riot also, connected with the robberies, of sufficient importance to be communicated to the government. The parties chiefly implicated were discovered and taken; the evidence against them was conclusive, and no attempt was made to shake it; but three “froward persons” on the jury, one of whom was the foreman, refused to agree to a verdict. They were themselves, the magistrates were aware, either a part of the gang, or privately in league with them; and the help of the crown was invited for “the reformation of justice.”484 I do not find how this matter ended.

Felons allowed to plead benefit of clergy after the right had been abolished by statute.

Benefit of clergy was taken from felons in 1531-2.485 At least five years later, when Cromwell was privy seal, three men were arraigned at the gaol delivery at Ipswich, “upon three several indictments of several felonies.” They were convicted regularly, and their guilt does not seem to have been doubted; but “every of them prayed their book.” The see of Norwich being vacant at the time, the ecclesiastical jurisdiction was suspended; no “ordinary” was present in court to “hear them read;” the magistrates thereupon “reprieved the said felons, without any judgment upon the said verdict.” The prisoners were remanded to the gaol till the spiritual courts were ready to take charge of them: they were kept carelessly, and escaped.486

Description of a sanctuary at Bewley in Hampshire.

The following extract from a letter written in 1539 will show, better than any general description, the nature of a sanctuary, and the spirit in which the protection was enjoyed. The number of sanctuaries had been limited by act of parliament previous to their final abolition; certain favoured spots were permitted for a time to absorb the villany of the country; and felons who had taken refuge elsewhere, were to be removed into some one of these. Bewley in Hampshire had been condemned to lose its privilege. Richard Layton, the monastic visitor, describes and pleads for it to the privy seal.

Interest expressed by the visitor in thirty-two debtors, felons, and murderers.

“There be sanctuary men here,” he says, “for debt, felony, and murder, thirty-two; many of them aged, some very sick. They have all, within four, wives and children, and dwelling-houses, and ground, whereby they live with their families; which, being all assembled before us, and the king’s pleasure opened to them, they have very lamentably declared that, if they be now sent to other sanctuaries, not only they, but their wives and children also, shall be utterly undone; and therefore have desired us to be mean unto your good lordship that they may remain here for term of their lives, so that none others be received. And because we have certain knowledge that the great number of them, with their wives and children, shall be utterly cast away, their age, impotency, and other things considered, if they be sent to any other place, we have sent this bearer unto you, beseeching your lordship to know the king’s pleasure herein.”487

The nineteenth century believes, and believes with justice, that in its treatment of criminals it has made advances in humanity on the practice of earlier times; but the warmest of living philanthropists would scarcely consider so tenderly, in a correspondence with the home secretary, the domestic comforts of thirty-two debtors, felons, and murderers.