Constitutional History of England, Henry VII to George II (Vol. 1-3). Hallam Henry

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СКАЧАТЬ href="#ulink_cb9cb815-b184-5c66-a731-8f307464dd4d">65. Burnet, 322; Carte, 296. Noailles says, that a third part of the Commons in Mary's first parliament was hostile to the repeal of Edward's laws about religion, and that the debates lasted a week. ii. 247. The journals do not mention any division; though it is said in Strype, iii. 204, that one member, Sir Ralph Bagnal, refused to concur in the act abolishing the supremacy. The queen, however, in her letter to Cardinal Pole, says of this repeal: "Quod non sine contentione, disputatione acri, et summo labore fidelium factum est." Lingard, Carte, Philips's Life of Pole. Noailles speaks repeatedly of the strength of the protestant party, and of the enmity which the English nation, as he expresses it, bore to the pope. But the aversion to the marriage with Philip, and dread of falling under the yoke of Spain, was common to both religions, with the exception of a few mere bigots to the church of Rome.

66. Noailles, vol. 5, passim.

67. Strype, ii. 394.

68. Strype, iii. 155; Burnet, ii. 228.

69. Burnet, ii. 262, 277.

70. Noailles, v. 190. Of the truth of this plot there can be no rational ground to doubt; even Dr. Lingard has nothing to advance against it but the assertion of Mary's counsellors, the Pagets and Arundels, the most worthless of mankind. We are, in fact, greatly indebted to Noailles for his spirited activity, which contributed, in a high degree, to secure both the protestant religion and the national independence of our ancestors.

71. Henry VII. first established a band of fifty archers to wait on him. Henry VIII. had fifty horse-guards, each with an archer, demilance and couteiller, like the gendarmerie of France; but on account, probably, of the expense it occasioned, their equipment being too magnificent, this soon was given up.

72. View of Middle Ages, ch. 8. I must here acknowledge, that I did not make the requisite distinction between the concilium secretum, or privy council of state, and the concilium ordinarium, as Lord Hale calls it, which alone exercised jurisdiction.

73. Commonwealth of England, book 3, c. 1. The statute 26 H. 8, c. 4 enacts, that if a jury in Wales acquit a felon, contrary to good and pregnant evidence, or otherwise misbehave themselves, the judge may bind them to appear before the president and council of the Welsh marches. The partiality of Welsh jurors was notorious in that age; and the reproach has not quite ceased.

74. State Trials, i. 901; Strype, ii. 120. In a letter to the Duke of Norfolk (Hardwicke Papers, i. 46) at the time of the Yorkshire rebellion in 1536, he is directed to question the jury who had acquitted a particular person, in order to discover their motive. Norfolk seems to have objected to this for a good reason, "least the fear thereof might trouble others in the like case." But it may not be uncandid to ascribe this rather to a leaning towards the insurgents than a constitutional principle.

75. Hale's Jurisdiction of the Lords' House, p. 5. Coke, 4th Inst. 65, where we have the following passage: "So this court [the court of star-chamber, as the concilium was then called] being holden coram rege et concilio, it is, or may be, compounded of three several councils; that is to say, of the lords and others of his majesty's privy council, always judges without appointment, as before it appeareth. 2. The judges of either bench and barons of the exchequer are of the king's council, for matters of law, etc., and the two chief justices, or in their absence other two justices, are standing judges of this court. 3. The lords of parliament are properly de magno concilio regis; but neither those, not being of the king's privy council, nor any of the rest of the judges or barons of the exchequer are standing judges of the court." But Hudson, in his Treatise of the Court of Star-chamber, written about the end of James's reign, inclines to think that all peers had a right of sitting in the court of star-chamber; there being several instances where some who were not of the council of state were present and gave judgment, as in the case of Mr. Davison, "and how they were complete judges unsworn, if not by their native right, I cannot comprehend; for surely the calling of them in that case was not made legitimate by any act of parliament; neither without their right were they more apt to be judges than any other inferior persons in the kingdom; and yet I doubt not but it resteth in the king's pleasure to restrain any man from that table, as well as he may any of his council from the board." Collectanea Juridica, ii. p. 24. He says also, that it was demurrable for a bill to pray process against the defendant, to appear before the king and his privy council. Ibid.

76. The privy council sometimes met in the star-chamber, and made orders. See one in 18 H. 6, Harl. MSS. Catalogue, N. 1878, fol. 20. So the statute, 21 H. 8, c. 16, recites a decree by the king's council in his star-chamber, that no alien artificer shall keep more than two alien servants, and other matters of the same kind. This could no way belong to the court of star-chamber, which was a judicial tribunal.

      It should be remarked, though not to our immediate purpose, that this decree was supposed to require an act of parliament for its confirmation; so far was the government of Henry VIII. from arrogating a legislative power in matters of private right.

77. Lord Hale thinks that the jurisdiction of the council was gradually "brought into great disuse, though there remain some straggling footsteps of their proceedings till near 3 H. 7."—P. 38. "The continual complaints of the commons against the proceedings before the council in causes civil or criminal, although they did not always attain their concession, yet brought a disreputation upon the proceedings of the council, as contrary to Magna Charta and the known laws."—P. 39. He seems to admit afterwards, however, that many instances of proceedings before them in criminal causes might be added to those mentioned by Lord Coke. P. 43.

      The paucity of records about the time of Edward IV. renders the negative argument rather weak; but, from the expression of Sir Thomas Smith in the text, it may perhaps be inferred that the council had intermitted in a considerable degree, though not absolutely disused, their exercise of jurisdiction for some time before the accession of the house of Tudor.

      Mr. Brodie, in his History of the British Empire under Charles I., i. 158, has treated at considerable length, and with much acuteness, this subject of the antiquity of the star-chamber. I do not coincide in all his positions; but the only one very important, is that wherein we fully agree, that its jurisdiction was chiefly usurped, as well as tyrannical.

      I will here observe that this part of our ancient constitutional history is likely to be elucidated by a friend of my own, who has already given evidence to the world of his singular competence for such an undertaking, and who unites, with all the learning and diligence of Spelman, Prynne, and Madox, an acuteness and vivacity of intellect which none of those writers possessed.

78. Commonwealth of England, book 3, c. 4. We find Sir Robert Sheffield in 1517 "put into the Tower again for the complaint he made to the king of my lord cardinal." Lodge's Illustrations, i. p. 27. See also Hall, p. 585, for Wolsey's strictness in punishing the "lords, knights, and men of all sorts, for riots, bearing, and maintenance.

79. Plowden's Commentaries, 393. СКАЧАТЬ