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 pa.s.s 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 n.o.bleman;" "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]

[Sidenote: The persecution commences.]

[Sidenote: The statute is developed into branches.]

[Sidenote: 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 ma.s.ses" to comprehend "coming seldom to ma.s.s." Those who were slow in holding up their hands "at sacring time," or who did not strike their b.r.e.a.s.t.s 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.

[Sidenote: The bishops' zeal is greater than their discretion.]

[Sidenote: 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.

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

[Sidenote: 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 "b.u.t.terflies, fools, and knaves;" and when the Act of Opinions was pa.s.sed, 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.

[Sidenote: 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 s.p.a.ce, 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.

[Sidenote: State of the English criminal law.]

[Sidenote: 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]

[Sidenote: Reluctance of juries to convict, and of magistrates to sentence.]

[Sidenote: Rarity of capital convictions apparent in the judges'

reports.]

[Sidenote: A sanctuary under the walls of Newgate.]

[Sidenote: Armed interference at a.s.sizes.]

[Sidenote: 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 a.s.size, 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 G.o.d 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 cla.s.ses had become so great that organized gangs of them a.s.sembled at the gaol deliveries and quarter sessions to overawe the authorities. Ambitious or violent knights and n.o.blemen 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 superst.i.tion; 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 inst.i.tutions, 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. Superst.i.tion had become powerless to deter from violence, retaining only the means of preventing the punishment of it.[481] I shall proceed to ill.u.s.trate 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.

[Sidenote: 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 princ.i.p.al 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]

[Sidenote: 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.

[Sidenote: 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]

[Sidenote: 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.

[Sidenote: 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 a.s.sembled 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.

[Sidenote: Rowland Lee, Lord Warden of the Welsh Marches.]

[Sidenote: Transitional condition of the Welsh people.]

[Sidenote: False attempts at independence on the Border.]

But the most detailed accounts of the lawlessness which had spread in the wilder districts of the country are to be found in the reports of the remarkable Rowland Lee, Bishop of Lichfield and Coventry, Lord Warden of the Welsh Marches, the last survivor of the old martial prelates, fitter for harness than for bishops' robes, for a court of justice than a court of theology; more at home at the head of his troopers, chasing cattle-stealers in the gorges of Llangollen, than hunting heretics to the stake, or chasing formulas in the arduous defiles of controversy. Three volumes are extant of Rowland Lee's letters.[488] They relate almost wholly to the details of his administration on either side of the frontier line from Chester to the mouth of the Wye. The Welsh counties were but freshly organized under the English system. The Welsh customs had but just been superseded by the English common law. The race whose ancient hardihood the castles of Conway, Carnarvon, and Beaumaris remain to commemorate, whom only those stern towers, with their sterner garrisons, could awe into subjection, maintained a shadow of their independence in a wild lawlessness of character. But the sense of subjection had been soothed by the proud consciousness that they had bestowed a dynasty upon England; that a blood descendant of Cadwallader was seated on the throne of the Edwards.

They had ceased to maintain, like the Irish, a feeling of national hostility. They were suffering now from the intermediate disorders which intervene when a smaller race is merging in a stronger and a larger; when traditional customs are falling into desuetude, and the laws designed to take their place have not yet grown actively into operation. Many of the Welsh gentlemen lived peacefully by honest industry; others, especially along the Border, preferred the character of Highland chieftains, and from their mountain fastnesses levied black rent on the English counties. Surrounded with the sentiment of pseudo-heroism, they revelled in the conceit of imaginary freedom; and with their bards and pedigrees, and traditions of Glendower and Prince Llewellyn, they disguised from themselves and others the plain prose truth, that they were but thieves and rogues.

These were the men whom Rowland Lee was sent to tame into civility,--these, and their English neighbours, who, from close proximity and from acquired habits of retaliation for their own injuries, had caught the infection of a similar spirit.

[Sidenote: Council of the Welsh Marches.]

[Sidenote: Cheshire juries return verdicts.]

[Sidenote: Necessity for a discipline and for a suspension of the common law.]

From his many letters I must content myself with taking such extracts as bear most immediately on the working of the criminal law, and ill.u.s.trate the extreme difficulty of punishing even the worst villanies. To strengthen the bishop's hands, a Council of the Marches had been established in 1534, with powers similar to those which were given subsequently to the Council of York.

In August, 1537, Lee wrote to Cromwell, "These shall be to advertise you that where of late I sent unto your lordship a bill of such murders and manslaughters as were done in Cheshire which would not be found until this council set the same forward for condign punishment of the offenders, and although at the late a.s.sizes a great number of bills both for murders and riots were put into the great inquest, and good evidence given upon the same--yet, contrary to their duties to our sovereign lord and their oath, neglecting the course and ministration of justice, they have found murders to be manslaughters, and riots to be misbehaviours.

The council could do no less but see the same redressed. We have called the said inquest before us, and committed them to ward for their lightness in the premises. And for as much as I think that suit will be made unto your lordship of my straitness and hard dealing herein, if your lordship will have that country in as good order and stay as we have set other parts, there must be punishment done, or else they will continue in their boldness as they have used heretofore. If your lordship will that I shall deal remissively herein, upon the advertis.e.m.e.nt of your lordship's mind by your letters, I shall gladly follow the same. Or else, if your lordship do mind reformation of the premises, write unto me a sharp letter to see justice ministered, and to punish such as shall be thought offenders according to this council's discretion for their misbehaviours by fines, strait imprisonment, and otherwise. For if we should do nothing but as the common law will, these things so far out of order will never be redressed."