1509-1547. Words do not constitute an overt act, they remain only in idea. Nothing renders the crime of high treason more arbitrary, HENRY VIII. than declaring people guilty of it for indiscreet speeches. Words do not constitute an overt act; they remain only in idea. They generally, when considered by themselves, have no determinate signification: for this depends on the tone in which they are uttered. It often happens that, in repeating the same words, they have not the same meaning; this meaning depends on their connexion with other things; and sometimes more is expressed by silence, than by any discourse whatsoever. As there can be nothing so equivocal and ambiguous as all this, how is it possible to convert it into a crime of high treason? Wherever this law is established, there is an end, not only of liberty, but even of its very shadow 13. But in this reign, even words to the disparagement of the king, queen, or royal issue, were subjected to the penalty of high treason; and so little care was taken in framing these rigorous statutes, that they contain obvious contradictions 14, insomuch that, had they been strictly executed, every man, without exception, must have fallen under the penalty of treason. By one statute 15, for instance, it was declared treason to assert the validity of the king's marriage, either with Catherine of Arragon or. Anne Boleyn. By another 16, it was treason to say anything to the disparagement or slander of the Princesses Mary and Elizabeth, and to call them spurious, would have been construed to their slander. Nor would even silence, with regard to these points, have saved a person from such penalties: for, by the former. statute, whoever refused to answer upon oath to any point contained in that act, became liable to the pains of treason. The king needed only propose to any one a question, with regard to the legality of either of his first marriages: if the person were silent, he was a traitor by law; if he answered either in the negative or in the affirmative, he was no less a traitor. So monstrous were the inconsistencies which arose from the furious passions of the king, and the slavish submission of his parliaments, that it is hard to say whether these 13 1 Mont. B. XII. c. 12. Modestin. leg. 7, in § ad leg. Jul. maj. 14 Stat. 25 Henry VIII. c. 22; 26 Henry VIII. c. 13; 28 Henry VIII. c. 18; 32 Henry VIII. c. 25; 33 Henry VIII. c. 21. 15 28 Henry VIII. c. 7. 4 Hume, 269. 16 Stat. 35 Henry VIII. c. 1. Words to the disparagement of made treason. the royal family, Difficult to deter mine, whether Henry VIII. precipitancy, or were owing to his to a formed design of tyranny. HENRY VIII. contradictions were owing to Henry's precipitancy, or to a 1509-1547. formed design of tyranny. late the line of succession. Henry VIII. cm- In consequence of the uncertainty in the line of succession, powered to regu- the king was empowered by parliament, on failure of issue by Jane Seymour, or any other lawful wife, to make over and bequeath the kingdom to any person at his pleasure, not even reserving a preference to the descendants of former sovereigns". Devise of the crown. The king enabled to repeal all before he was twenty-four By a subsequent statute, the princesses Mary and Elizabeth were nominated in the entail, after the king's male issue, subject, however, to such conditions as he should declare, by non-compliance with which, their right was to cease 18. The king then 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, if not excluding, the royal family of Scotland, descended from his elder sister, Margaret. Another measure was adopted, as mischievous in principle, enactments made as those which regarded the succession to the throne, by which any king could repeal, by letters patent, all parliamentary enactments made before he was twenty-four years of age1; so that, in a long minority, anarchy had every prospect in acquiring the ascendant. years of age. The Six Articles. Proclamations of the force of laws. 4. Servility of Parliament. The parliament, after passing the "Six Articles'," by which they assigned their religious liberties, proceeded in the same spirit to surrender their civil, and to cause a total subversion of the constitution. They gave to the king's proclamation the same force as to a statute, and framed this law as if it were only declaratory, and intended to explain the natural extent of royal authority. It recites, "That the king had formerly set forth several proclamations the king to have which froward persons had wilfully contemned, not considering what a king by his royal power may do; that this licence might encourage offenders, not only to disobey the laws of Almighty God, but also to dishonour the king's most royal majesty, who may full ill bear it; that sudden emergencies 17 Stat. 28 Henry VIII. c. 7. 1 Hallam, Const. Hist. 46, 47. 1509-1547. often occur, which require speedy remedies, and cannot await HENRY VIII. the slow assembling and deliberations of parliament; and that, though the king was empowered, by his authority, derived from God, to consult the public good on these occasions, yet the opposition of refractory subjects might push him to extremity and violence. For these reasons, the parliament, that they might remove all occasion of doubt, ascertained by a statute this prerogative of the crown, and enabled his majesty, with the advice of his council, to set forth proclamations, enjoining obedience under whatever pains and penalties he should think proper. And these proclamations were to have the force of perpetual laws." The parliament facilitated the execution of this law, by Formation of a authorising the appointment of nine privy councillors, with new court of juspowers to punish all transgressors of such proclamations". The total abolition of juries in criminal cases, as well as of all parliaments, seemed, if the king had so pleased, the necessary consequence of this enormous law. He might issue a proclamation, enjoining the execution of any penal statute, and afterwards try the criminals, not for breach of the statute, but for disobedience to his proclamation*. The mode in which criminal prosecutions was conducted, can only be designated as, infamous. The accused, under the influence of threats or future favour, was interrogated until he had made some unguarded confession. It was then submitted to the grand inquest, and if the charge was substantiated to their satisfaction, the essential question that was ultimately submitted to the petit jury was, which of the two were more worthy of credit, the prisoner who maintained his innocence, or the grand inquest which had pronounced his guilt. The prisoner on his trial could not insist on the production of his accusers, in order to cross-examine them; neither could he claim the aid of counsel to repel the partial observations of the crown lawyers. tice. Mode in which criminal proseconducted. cutions were Another mode of criminal process was by bill of attainder, Bill of attainder. under which, instead of a public trial, a bill was introduced into parliament, accompanied with evidence to support its allegations, which, if satisfactory to the partial judgment of 2 Stat. 31 Henry VIII. c. 8. 3 Stat. 34 Henry VIII. c. 23. 4 Hume, 196. Lord Mountjoy entered a protest against this law, which, according to Burnet, is the only protest entered against any public bill during this reign. 52 Reeves, 268-459; 4 Ibid. 491-505. 4 Lingard, 365, 366. HENRY VIII. the legislature, the prisoner was executed, without having had an opportunity to vindicate his innocence. 1509-1547. King acknowledged the su preme head of the church. Royal proclamation to have, not law, but the au The prostitute spirit of the parliament is anew exemplified in Stat. 37 Henry VIII., c. 17, in which they recognise the king to have always been, by the word of God, supreme head of the church of England; and acknowledge that archbishops, bishops, and other ecclesiastical persons, have no manner of jurisdiction but by the royal mandate. To him alone, say they, and such persons as he shall appoint, full power and authority is given from above to hear and determine all manner of causes ecclesiastical, and to correct all manner of heresies, errors, vices, and sins whatsoever. No allusion is made of the concurrence of a convocation, nor only the force of even of a parliament. The royal proclamations are in effect thority of revela acknowledged to have, not only the force of law, but the authority of revelation; so that the king could regulate the actions of men, control their words, and even direct their inward sentiments and opinions. tion. The parliament served the king, and a shield. No monarch ever wielded the sceptre with such careless as an instrument indifference to the liberties of his country as did Henry VIII., nor would the people have permitted him to commit with impunity, the violences of which he was guilty, had not a parliament served him as an instrument and a shield. Revolution in England can only be effected through the House of Commons. Exemption from arrest on civil process. Case of Ferrers. With what far-seeing sagacity was Montesquieu endued, and how deep was his insight into the spirit of our country and its institutions, when he foretold that, England's destruction could only come, when her legislative government was more corrupt than her executive! And how wisely have we been forewarned by Burke, that a revolution in England could only be effected through the House of Commons. 5. Privilege of Parliament. Notwithstanding this age of obedience, the commons were enabled to acquire the right of "exemption from arrest on civil process during the session;" for under the Plantagenet dynasty, this privilege was claimed by a writ of privilege out of chancery, or by a special act of parliament. In 1543, a member of the name of Ferrers was arrested on his way to the house; the commons sent their sergeant to demand his release from the gaolers and sheriffs of London; 6 4 Hume, 251, 252. 1509-1547. Declaration by the king, that all acts and pro cesses coming out of inferior courts must cease, and give place to the court of parlia and upon their refusal to release Ferrers, they compelled them, HENRY VIII. and the plaintiff who had issued the writ, to appear at the bar of the house, and forthwith committed them to prison; the king, in the presence of the judges, unequivocally recognising this unprecedented assertion of privilege, by the commons', by the following declaration. "And further, we be informed by our judges, that we at no time stand so highly in our estate royal, as in the time of parliament; wherein we as head, and ment. you as members, are conjoined and knit together into one body. politic; so as whatsoever offence or injury (during that time) is offered to the meanest member of the house, is to be judged as done against our person and the whole court of parliament; which prerogative of the court is so great, (as our learned counsel informeth us,) as all acts and processes coming out of any other inferior courts, must, for the time, cease and give place to the highest." 6. Administration of Justice. The Reformation much contributed to the equitable administration of justice, because, previously thereto, although the church could not herself inflict civil punishment, yet, the civil magistrate was not permitted to try the offences of her members, and lay criminals were protected in the churches and sanctuaries. clergy, and of These abuses received a corrective, in consequence of the Privilege of privilege of clergy being abolished for the crimes of petty sanctuaries, treason, murder, and felony, to all under the degree of a sub- abolished, deacon'. No sanctuaries were recognised in cases of high treason, murder, felony, rapes, burglary, and petty treason'. These laws were absolutely requisite; for such was the state of lawless society, during this reign, that 72,000 criminals were executed for theft and robbery3; notwithstanding, which the priesthood publicly branded these statutes, "as contrary to the law of God, and to the liberties of the holy church; and that all who had assented had incurred the censures of the church'." 1 Crompton, Jurid. Courts. 8. 3 Hollingshed, 824. 1 Hatsel's Precedents, 53. 36 Henry VIII. fol. 61. Dyer, 275. 1 Hallam's Const. Hist. 366. * 1 Hatsell, 57. Crompt. Jurid. Courts, fol. 9, 10. 1 Stat. 4 Henry VIII. c. 2; 23 Henry VIII. c. 1. 2 Stat. 22 Henry VIII. c. 14; 26 Henry VIII. c. 13; 32 Henry VIII. 3 4 Hume, 275. c. 12. 1 Burnet, Hist. Ref. 21, et seq.; vide etiam 1 Strype's Eccl. Mem. 129. Halle, 1880. |