Cromartie Alan. The Constitutionalist Revolution: An Essay on the History of England, 1450-1642 (Ideas in Context)

Подождите немного. Документ загружается.

Commonwealth and common law 89

political,isreally, of course, the fruit of an assumption that the political must

be connected with the state. A world where this assumption was rejected

was a world in which authority was, as it were, secreted by a wide range

of social practices. The obvious subversive potential of such an attitude (a

potential all too obvious to Elizabeth and James) was that the authority of

sub-state bodies might undermine the power of the monarch.

These points have been sketched, not explored, because the prominence

of this way of talking is hardly controversial; the problem lies in guessing

the effect of such ideas on people who habitually invoked them. Here, a

degree of caution seems appropriate. There cannot be much doubt that the

succession of anomalous monarchs from 1547 to 1603 –achild, a Habsburg

by marriage, and a brilliant but indecisive spinster – helped to condi-

tion English attitudes, but Patrick Collinson’s useful phrase ‘monarchical

republic’ has had a certain tendency to misdirect attention. The lecture

in which the phrase was initially coined points, somewhat tentatively, to

Cecil’s capacity to plan for a brief interregnum in the not unlikely event

of Elizabeth’s murder. But it also quite properly stresses that Cecil’s plan

was a response to an anomaly; the later Tudor monarchs were so obviously

strange that the assumptions that they generated were liable to be effaced

by masculine and adult government.

This was a helpful insight, because what really needs to be explained is

less the intermittent prevalence of a republicanising way of talking than

its relation to another trend: the steadily growing imaginative purchase of

the idea of English monarchy. One clue is Cecil’s anxiety, when working

out his interregnum scheme, to embody his plans in a statute that would

give conciliar rule the character of an ‘ordinary power’.

Apreference for

ordinary measures could undermine the crown’s authority, as when the

learned magistrate William Lambarde (1536–1601) ‘[wished] that absolute

power should not be extended where ordinary laws may effect our desires’.

But Lambarde’s sententious addresses to Kentish quarter sessions reveal

some rather complex attitudes. On the one hand, he was conﬁdent that

England’s constitution was a mixture; that the liberties she currentlyenjoyed

had been secured by armed rebellion; and that without the rule of law ‘the

very life and soul of the commonwealth itself cannot long be maintained’.

On the other, he invariably told his listeners that service to law was a

Patrick Collinson, ‘The monarchical republic of Elizabeth I’ in Elizabethan essays (1994).

Ibid., 56.

Paul Slack, From reformation to improvement (Oxford, 1999), 53.

William Lambarde and local government; his Ephemeris and twenty-nine charges to juries and commis-

sions, ed. Conyers Read (Ithaca, NY, 1962), 188, 79, 143.

90 The Constitutionalist Revolution

service to the queen, because (to quote a typical expression) ‘it pleaseth her

highness to use us as the mouth of her laws’.

Whatever else it was, the

classical republican ideal was an ideal of government by ‘laws’; but England

was a country in which every law was royal.

In this king-saturated mental world, one source of respect for the positive

law of the land was the fact that it determined who was monarch. All

three of Henry’s children were placed on the throne by his will, a document

whose power to settle the question rested in turn on a Henrician statute,

the 1544 Succession Act. All three, furthermore, required some legislation

to clarify the terms on which they governed. In Edward’s case, this took

the form of another Henrician statute, a measure that empowered a former

child-monarch who had attained the age of twenty-four to abolish some or

even all the statutes that had been passed in his minority. As this was a power

that could be exercised at any subsequent moment in his reign, the statute

was a signiﬁcant expansion, along the lines of the Act of Proclamations, in

the capacities of English kingship. In 1547, the government found it prudent

to pass a further Act declaring that King Edward’s laws were nonetheless as

valid, in the mean time, as any previous royal legislation.

Over the course of Edward’s reign, his rule became, if anything, more

legalistic in its character. One reasonable hypothesis is that a certain pres-

sure towards regularity was the predictable result of rule by a collective.

Paget maintained, implausibly, that ‘my Lord Protector nor none of the

Privy Council meddle with no private matter whose soever it be, but only

with matters of estate, leaving all other things to their ordinary course of

justice’.

As clerk of the body, he must have known that this was just a

pious aspiration, but its adoption does suggest a shift in norms of conduct.

After the fall of Somerset in 1549 no single person formally inherited his

powers; Northumberland sensibly cloaked his de facto position by calling

himself ‘Lord President of the Council’. In these new circumstances, the

quasi-regal status of the council had the capacity to breed a fairly sharp

distinction between the legal and non-legal spheres. At the start of the

Northumberland regime, Paget drew up an ‘Advice to the king’s council’

including the recommendation ‘that none of the king’s privy council shall

in no wise speak or write for his friend in any matter of justice between

party and party’, on the grounds that ‘the request of a councillor is in

Ibid., 69.

28 Henry VIII c.17; 1 Edward VI c.11.

‘Paget letters’, 49.

Commonwealth and common law 91

a manner a commandment’.

The principle perhaps explains why 1551

is the probable date of a landmark in the history of Star Chamber: the

abandonment by this ‘conciliar’ court of any direct jurisdiction over real

property.

But this emergent regularisation of government conduct was the sort of

thing likely to happen in a minority; similar aspirations were expressed in

the minority of Henry VI.

It could hardly be expected to survive a rea-

sonably strongwilled adult sovereign. When Edward and Northumberland

successfully browbeat the council and the judges into altering the succes-

sion in favour of Lady Jane Grey, they gave a foretaste of the likely shape of

a mature Edwardian regime. It was, at best, an accident that their successful

disregard for statute should in the end have reinforced its power. The same

could be said of some of Mary’s actions. Mary came to the throne in the

ﬁrst place because the vast majority of the English, including a number of

prominent Protestants, rejected her brother’s illegal attempt to disinherit

her. This was not the last occasion in her reign on which she accidentally

encouraged common law, but if her rule had lasted rather longer, it might

have had quite different results.

As many historians have noted, Mary could not abolish her own

Supremacy without employing the same means that her father had used to

create it. Some Protestants indeed maintained that she invalidated her own

writs by failing to style herself the Head of the Church when she was sum-

moning her parliament. Arrangements for including her husband Philip

within the scope of English treason law and for the regulation of his power

in the event of a minority also required that she make use of statute. But

though these facts were not irrelevant to the development of English think-

ing, they had relatively little short-term bearing upon the actual nature of

the country’s government; as in her father’s ﬁnal years, parliament’s theo-

retical position was no guide at all to the practical balance of power. Nor

was the fact that government was organised around a privy council.

Unlike her younger sister, Mary has never been accused of being a sub-

tle woman. Her strict Roman Catholic beliefs were both unpopular and

undisguised, and she had no capacity to dazzle. She also suffered from the

fact that her immediate Catholic adherents – those who had helped to

organise her stand against Jane Grey – lacked the administrative capacity

Elton, Tudor constitution, 98.

J. A. Guy, The court of Star Chamber and its records to the reign of Elizabeth I,Public Record Ofﬁce

Handbook 21 (1985), 57.

Archeion, or a discourse upon the high courts of justice in England, ed. C. H. McIlwain and Paul L.

Ward (Cambridge, MA, 1957), 77–80.

92 The Constitutionalist Revolution

of counsellors inherited from Edward. Given that Englishmen were not

accustomed to government by any kind of woman, let alone a politically

inexperienced spinster, it was a great achievement on her part to force her

council to accept her principal personal policy objective: a marriage with

her cousin Philip of Spain. This achievement was particularly striking as

there is every reason to suppose that even religious conservatives disliked it;

its most formidable opponent was Stephen Gardiner, who was the council’s

leading Catholic.

Her personal success in this battle of wills was only one sign of the

strength of her position. Much has been made of troubles within her parlia-

ments, including the notorious episode in which the Protestant Sir William

Kingston forcibly barred the exit from the Commons in order to secure a

vote he wanted. But the Venetian envoy Michieli, who is our major source

for this event, was in no doubt that England was in our terms an ‘absolutist’

state. In the formal Report on the country that he composed in 1556,he

saw the very principle of privy council rule as being ‘Turkish’; to the mind

of a republican Venetian, it was self-evidently deplorable that any single

person should have the right to choose her own advisers. Though Michieli

did believe that parliament had once been a constraint, in the days when

English rulers were ‘civil and political chiefs, rather than lords and monar-

chs as they now are’, he regarded the modern assembly as a formality.

The

facts on balance justiﬁed this pessimistic judgement.

This is not to deny that the Marian regime provoked some novel

oppositional thinking. Worries about absorption into Philip’s wider empire

were likely to encourage legalistic attitudes, if only because agitation

against Philip (which was not necessarily tinged with Protestantism) almost

inevitably involved appealing to the liberties of England. But Mary was

nonetheless able to establish precedents that a determined queen could

have exploited to undo the Edwardian concessions. During her ﬁrst three

years upon the throne, her government gave scattered indications of

unEdwardian disregard for legal niceties: a non-parliamentary duty on

the import of sweet wine; rough treatment of Protestant bishops;

the

impression of a foreigner that Chancery heard cases after judgement.

But the true measure of her strength and willingness to use it was her

D. Loades, The reign of Mary Tudor: politics, government and religion in England, 1553–58, 2nd edn

(1991), 71.

Calendar of state papers and MSS relating to English affairs existing in the archives of Venice, ed. Rawdon

Brown, 6 vols. (1864–84), vi, part ii, 1052–3.

Norman Jones, Faith by statute: parliament and the settlement of religion 1559 (London, 1982), 103–5.

Tw oItalian accounts of Tudor England, ed. C. V. Malfatti (Barcelona, 1953), 49.

Commonwealth and common law 93

response to the demands of wartime. At the end of the reign, when ﬁght-

ing against France (in the course of the pro-Habsburg war that lost the

country Calais), she made more concentrated use of extra-legal power than

any of the other Tudor monarchs. Her government raised a substantial

Forced Loan that was never to be paid back; it drew up a new Book of

Rates that more than doubled English customs duties; and it showed readi-

ness unique in English history to keep the peace by means of martial

law.

iii

The events of Mary’s reign revealed the strength of the monarch’s position;

the events, or non-events, of her cleverer sister’s created attitudes and

expectations that helped promote a legalistic style of government. This

is not to say, however, that the returning Protestant regime was ever com-

pletely constrained by its legal procedures; when necessary, it could be just

as ruthless as any of its Catholic predecessors. Though Mary regulated the

militia by two elaborate parliamentary statutes, Elizabethan military ofﬁ-

cials routinely imposed non-statutory duties on members of these amateur

armed forces.

After the Northern rising of 1569, more than 600 rebels

were hanged by martial law (a handful of the prosperous received a jury

trial, but only because a conviction was a prerequisite for conﬁscation of

real property).

The very existence of such power was not, as yet, especially controver-

sial. Thus though there were regular complaints about the misuse of the

power of dispensation, the Elizabethans recognised the need for this kind

of discretion. That paradigm case of ‘extraordinary’ power, the Chancellor’s

equitable jurisdiction, appears to have been exercised with caution, but the

conventional theory of his activities continued to resemble Fortescue’s. As

William Lambarde put it, the king must ‘either reserve to himself or refer

to others a certain sovereign and pre-eminent power, by which he may both

supply the want and correct the rigour of that positive or written law’.

It may be that an interest in extraordinary power was actually encouraged

by the tightening grip of ordinary procedures, if only because emphasis on

regularity was likely, in the end, to draw attention to the signiﬁcance of the

Loades, Reign of Mary, 331.

Lindsay Boynton, The Elizabethan militia 1558–1638 (1967), 11.

Memorials of the rebellion of 1569, ed. C. Sharp (1840), 163, 127, 188.

Lambarde, Archeion, 43;Edward Hake, Epieikeia: a dialogue on equity in three parts, ed. D. E. C.

Yale (New Haven, 1953), 139–40.

94 The Constitutionalist Revolution

exceptions.

If ordinary royal power was legal, then occasional irregular

proceedings must be expressions of non-legal power: of what was increas-

ingly frequently referred to as royal absolute prerogative.

Thus Sir Thomas Smith’s De republica Anglorum, the standard descrip-

tion of English institutions as they existed in the 1560s, gave quite a gen-

erous account of what a king or queen could do unaided. The monarch

had ‘absolutely in his power the authority of war and peace’, the power to

make foreign policy, and the right to choose his personal privy council.

In time of war, moreover, he had power of life and death, a power that was

sometimes used ‘before any open war in sudden insurrections and rebel-

lions’. In what was almost certainly a reference to Mary, Smith noted that

this practice was not ‘allowed of by wise and grave men’, but he did not

suggest a mechanism by which an abuse of this type could be prevented.

It would, in other words, be most misleading to imply that anyone

desired a revolution that stripped the queen of extra-legal power. It was,

however, politically important that the regime’s most dedicated servants

took pride in their regard for legal values. At the opening of the parliament

of 1571, the Speaker of the Commons felt able to assert that Elizabeth had

‘given free course to her laws, not sending or requiring the stay of her

justice by her letters or privy seals, as heretofore sometime hath been by

her progenitors used’.

He probably exaggerated somewhat, but there is

evidence to suggest that the boast was not unfounded; if anything was new

in Elizabeth’s reign, it was a willingness to respect judicial independence.

During the 1560s, for example, the judges made some use of habeas corpus

to rescue prisoners of conciliar courts. Moreover, they succeeded, after 1581,

in discouraging the issue of ‘protections’, documents that permitted named

individuals immunity from civil litigation.

Onereason for respecting law was fairly obvious. No follower of Eliza-

beth’s had legitimist beliefs, if only because the queen was Henry’s bastard

(declared so by a Protestant archbishop). Edward and Mary could rely on

other arguments, but the Elizabethan claim depended utterly on Henry’s

will, which in its turn depended on his last succession statute. In con-

sequence, her supporters were committed to the view that the identity

of England’s monarch could be determined by a parliament. In the duke

W. H. Dunham, ‘Regal power and the rule of law: a Tudor paradox’, Journal of British Studies 3

(1964), 53–5.

Sir Thomas Smith, De republica Anglorum, ed. Mary Dewar (Cambridge, 1982), 85.

Smith, De republica, 85–6.

T. E. Hartley (ed.), Proceedings in the parliaments of Elizabeth I, 3 vols. (1981–95), i, 199.

J. H. Baker (ed.), Reports from the lost notebooks of Sir James Dyer, 2 vols., Selden Society 109–10

(1993–4), i, lxxix–lxxxi, lxxxiii–v.

Commonwealth and common law 95

of Norfolk’s treason trial in 1571, the queen’s Solicitor-General was led to

deplore the idea that ‘the judgement of the right of the crown of this realm

is reduced to an universal law, which they call ius gentium, and the discern-

ing thereof exempted from the laws of this realm’.

From 1571 to 1603 it

was high treason to deny the queen’s power ‘with and by the authority of

the parliament of England...tomake laws and statutes of sufﬁcient force

and validity to limit and bind the crown of this realm and the descent,

limitation, inheritance and government thereof ’.

In the ﬁrst decade of Elizabeth’s reign, this view was surprisingly readily

accepted. The brilliant Catholic lawyer Edmund Plowden, a man of rig-

orously papist views, devoted the Christmas vacation of 1566 to writing a

manuscript treatise proving Mary Queen of Scots to be the Queen’s legiti-

mate successor. Although he made some technical objections to the validity

of Henry’s will (an instrument which pointedly ignored the Stuart line), he

voluntarily conceded that the question was something that a statute could

determine.

His argument depended on the notion, which he was later to

expound in printed law reports, that kings have two capacities because they

have two bodies: a ‘body natural’ and a ‘body politic’. Plowden argued that

deﬁciencies in the body natural, such as infancy, or illness, or (in the case

of Mary) alien status could not affect the body politic; Henry VII’s much

more serious defect of having been attainted as a traitor proved not to be a

bar to his accession.

What was revealing about Plowden’s treatise was the unnecessary elab-

oration with which he discussed the whole notion of a body politic. One

sign of the impact of Henry’s Reformation was that a common lawyer

who opposed religious change was nonetheless committed to its central

metaphor. Plowden informed his readers that just as the body natural had

‘members’ (i.e.limbs) of various sorts ‘so hath this body politic for his

subjects who be of divers degrees and sorts be his members and they be

incorporate to him and he to them and they both make a perfect incor-

poration. And the ofﬁce of this body politic of the king is to govern well

and the ofﬁce of the subject is to obey.’

Plowden appears to have been a

little uncertain of the relationship between the body and its members; at

times, he appeared to suggest that the ‘corporation’ of king and subjects

was conceptually distinct from the ‘body politic of the crown’.

But at all

events, the monarch was a creature of the law; a corporation could exist by

W. Cobbett and T. B. Howell, A complete collection of state trials, 32 vols. (1809–26), i, 1016.

Elton, Tudor constitution, 76.

British Library, Harleian MS 849,fo.31v.

Ibid, 16.

Ibid., 2

Ibid., 17.

96 The Constitutionalist Revolution

letters patent or by common law, and the king’s body politic was ‘founded

without letters patent by common law only’.

Moreover, its characteristics

were dictated by its purpose, for ‘other action than good government and

direction the law of the realm doth not ascribe or appoint to the body

politic of the king of this realm’.

Elizabeth thus worked with the cultural grain in building her regime, in

theory, upon respect for England’s legal system. In practice, she may have

been equally constrained by the shared moral attitudes of those through

whom she governed. At the beginning of the reign, the young Elizabeth

surprised observers by choosing to rule her kingdom through a faction:

against the expectations even of Protestants, she dispensed with two thirds

of her predecessor’s council, while all but one of her new councillors were

connected by blood, marriage, or household service to her or her adviser

William Cecil. As Cecil was returning to his previous post as Secretary

of State, the regime looked, if anything, like a revival of Northumber-

land’s. Even the council’s leading Catholic, Lord Treasurer William Paulet,

marquess of Winchester, was originally a Northumberland appoint-

ment. Soon afterwards, this impression was strongly reinforced, because

Elizabeth had the misfortune to fall in love with the future earl of Leicester,

the duke’s charismatic but married second son. Elizabeth thus governed

through a clique with whom she had close personal connections.

If this was a deliberate decision, then it was vindicated by events, because

the establishment that she created allowed her to maintain a grip on govern-

ment policy. The narrowness and coherence of this group did, however, have

some awkward consequences, if only because the perspective of these ser-

vants was often rather different from their sovereign’s. One source of inter-

mittent strain was that her leading followers were relaxed about rebellion.

Virtually all the councillors she initially appointed had played some part

in the Lady Jane Grey usurpation or one of the subsequent plots to unseat

Mary.Inthe course of the reign, they repeatedly supported armed resistance

against the monarchs of France, Spain, and Scotland. This was no doubt the

reason why the respectable Sir Thomas Smith could blandly remark that evil

rule was often followed by rebellion ‘whereof the judgement of the common

people is according to the event [= outcome] and success; of them which be

learned, according to the purpose of the doers and the estate of the time then

present’.

Some Protestants under Mary held the more extreme position that even

‘private subjects’ could commit tyrannicide, but once Elizabeth was on

Ibid., 7.

Ibid., 2.

Smith, De republica, 52.

Commonwealth and common law 97

the throne, this theory was in general indignantly rejected. As archbishop

Matthew Parker pointed out,

If such principles be spread into men’s heads, as they now be framed and referred

to the judgement of the subject, of the tenant, and of the servant, to discuss what

is tyranny and to discern whether his prince, his landlord, his master, is a tyrant, by

his own fancy and collection supposed, what lord of the council shall ride quietly

minded in the streets among desperate beasts?

Parker was worried about theories that vested the right to judge tyrants in

the people; he did not deny the existence of special circumstances in which

rebellion might be laudable. Few of his generation of moderate Protestants

appear to have had a principled objection to a position – such as Calvin’s

own–permitting certain magistrates the right to armed resistance. When

Elizabeth visited Oxford in 1566, the academics staged a disputation on

the theme ‘Whether it may be permitted to a private man to take up arms

against an evil prince’ – a formulation that suggests that individuals with a

‘public’ status had a potentially superior claim.

During this early period, it was in fact the government’s own defenders

who seem to have been most inclined to limit monarchy. Their type of

thinking was of course encouraged by the embarrassment of the Queen’s

gender, an embarrassment that had recently been deepened by Knox’s noto-

rious A ﬁrst blast of the trumpet against the monstrous regiment of women

(1558). It is well known that even John Aylmer’s ofﬁcial response, An har-

borowe for faithful subjects (1559)made tacit concessions to masculine misgiv-

ings. A combination of his classical reading with worries about the dangers

of a woman’s government led Aylmer to the novel view that England’s

constitution was a mixture: ‘the regiment of England’ was ‘not a mere

monarchy...noramereoligarchy, nor democracy’, but a regime ‘the

image whereof, and not the image but the thing indeed, is to be seen

in the parliament house, wherein you shall ﬁnd these three estates: the

king or queen which representeth the monarch; the noblemen which be

the aristocracy; and the burgesses and knights the democracy’. The closest

analogy, he thought, was Sparta. The wisdom of this arrangement led him

to congratulate ‘those that in Henry VIII’s days would not grant him that

his proclamations should have the force of statute’. It followed that the rule

of queens was relatively harmless, ‘for ﬁrst it is not she that ruleth but the

Matthew Parker, Correspondence of Matthew Parker D.D., ed. J. Bruce (Cambridge, 1853), 61.

The progresses and public processions of Queen Elizabeth, ed. John Nichols, 3 vols. (London, 1823), i,

241–3.

98 The Constitutionalist Revolution

laws, the executors whereof be the judges appointed by her, her justices of

the peace and such other ofﬁcers’.

Some of the same anxiety had shaped Sir Thomas Smith’s account in

his famous De republica Anglorum.Smith thought that women should not

rule ‘except it be in such cases as the authority is annexed to the blood and

progeny’. Even then, it was ‘by common intendment understood that such

personages never do lack the counsel of such grave and discreet men as

be able to supply all other defaults’.

Like Aylmer, Smith showed interest

in a mixed constitution that had a certain bias towards aristocracy, that

is, in the sort of arrangements that were realised in England in periods

when parliament was sitting. In what became a standard formulation of

parliamentary omnicompetence, Smith noted that the assembly had the

power of ‘establishing forms of religion’ and that ‘all that ever the people

of Rome might do either in centuriatis comitis or tributis, the same may be

done by the parliament of England, which representeth and hath the power

of the whole realm both the head and the body. For every Englishman is

intended to be there present.’

There is no mystery about Smith’s motives:

if parliament were not, in fact, effectively omnipotent in England, then

Elizabeth was a heretic and bastard, and the rightful queen of England

was Mary Queen of Scots. But the longevity of a regime with such a large

investment in this notion was bound to have some long-term consequences.

In time, Elizabeth’s establishment grew old, rich, and increasingly averse

to further changes, but most of the great crises of the traditional narratives

of the period had something to do with a clash between their values and

those of their inﬂexible employer. Elizabeth’s major political successes – not

marrying, not settling the succession, not altering any part of her religious

settlement – involved her in resisting near-consensus in this group and

its supporters in the House of Commons. Elizabeth’s victory on all these

questions casts the burden of proof on those scholars who are inclined to

emphasise the limits on her power. Her tendency to steer well clear of difﬁ-

cult decisions did, however, have its disadvantages: Elizabethan government

was competent and cheap, but it was never very innovative. Its remarkable

achievement was to ﬁght in several theatres against the greatest European

power without at any moment approaching bankruptcy; its striking lim-

itation was its comprehensive failure to ﬁnd a new way of exploiting the

nation’s resources. The obvious opportunity not taken was that of exploit-

ing Queen Mary’s courageous precedent by a revision of the Book of Rates.

John Aylmer, An harborowe for true and faithful subjects (Strasburg, 1559), sigs. H2v–H4.

Smith, De republica, 64–5.

Ibid., 79.