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I. The Law of Treason in the Early Reformation

Published online by Cambridge University Press:  11 February 2009

G. R. Elton
G. R. Elton
Affiliation:
Clare College, Cambridge
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Extract

On the eve of the Henrician Reformation, the law of treason was markedly less well developed than one might suppose. Over a century of dynastic war, party violence, and the vigorous extermination of opponents had left strikingly little deposit in the law which was still essentially defined by the famous act of 1352, the first, and to this day the basic, treason statute. Minor attempts to vary the law may here be ignored, and the only serious alteration—the act of 1397 which omitted the demand for an ‘overt deed’—was repealed in 1399. The reasons for what might at first sight seem a surprising reluctance to extend the grasp of the treason law are not obscure. For one thing, most of the so-called traitors of the later fifteenth century were men who had had the misfortune to fight on the losing side in a civil war. Their treason grew out of the see-saw of politics and was committed in open war. They were therefore commonly amenable (if not already killed in battle) to the summary procedure of treason trials under the law of arms and did not come within the purview of the law of England at all. This method of dealing with the vanquished had one disadvantage: conviction by a constable's or marshal's court did not involve forfeiture of lands. The Crown therefore had recourse to the authority of the high court of parliament, and acts of attainder followed each turn of the wheel in the civil wars.

Type
Articles
Information
The Historical Journal , Volume 11 , Issue 2 , June 1968 , pp. 211 - 236
Copyright
Copyright © Cambridge University Press 1968

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References

1 25 Edward III, st. 5, c. 2; printed in Chrimes, S. B. and Brown, A. L. (eds.), Select Documents of English Constitutional History 1307–1485 (London, 1961), pp. 76 f.Google Scholar

2 Keen, M. H., ‘Treason Trials under the Law of Arms’, T[ransactions of the] R[oyal] Historical] S[ociety], 5th ser., XII (1961), 85 ff.Google Scholar

3 Squibb, G. D., The High Court of Chivalry (Oxford, 1959), p. 25.Google Scholar

4 Below, p. 232. It has been denied (e.g. Holdsworth, W. S., History of English Law, III, 292–3)Google Scholar that the medieval law knew a doctrine of constructive treasons; since it is clear that interpretation of the statute by the judges could mean precisely that, the significance of this lack is not clear.

5 Harcourt, L. W. Vernon, His Grace the Steward and Trial by Peers (London, 1907), pp. 414 f.: the commission appointing a constable and marshal for the trial of Lord Audeley.Google Scholar

6 Ibid. pp. 429 ff.

7 27 Henry VIII, c. 2.

8 The history of the 1534 statute was analysed by Thornley, Isobel D., ‘The Treason Legislation of Henry VIII', TRHS, 3rd ser., XI (1917), 87 ff.Google Scholar However, that article is mistaken in quite a few particulars, a fact which makes another detailed examination necessary here. Above all, Miss Thornley was quite wrong in supposing that all the corrections on the various drafts were in the hand of Thomas Cromwell. The larger part is in that of Thomas Audley. While the two hands have certain similarities, the differences are clear enough; doubts may be set at rest by comparing Audley's draft of an additional clause (Public Record Office, SP 1/65, fo. 95) with Cromwell's transcript of it (ibid. fo. 94). I have throughout modernized the spelling of the manuscripts listed.

9 SP I/65, fos. 87V-89 (A1 in Miss Thornley's numbering, minus the last folios which belong to her A2).

10 Cf. my remarks on these stages in the political Reformation in ‘King or Minister?’, History, N.S., xxxix (1954), 221 ff.Google Scholar My views of this have been attacked by Harriss, G. L. and Williams, P. H., ‘A Revolution in Tudor History?', Past and Present, xxv (1963), esp. pp. 18 ff.;Google Scholar and cf. my reply, ibid, xxix (1964), 26 ff.

11 DNB.

12 TRHS (1917), p. 92.

13 State Papers of Henry VIII, I, 381.Google Scholar

14 This order proves that P.R.O., SP 1/65, fo. 89V, attached to the first draft in Letters and Papers of Henry VIII [LF], and so accepted by Miss Thornley, really belongs to the second stage of drafting.

15 These drafts are P.R.O., SP 1/243, fos. 149–50 (LP Add. 1480), which was unknown to Miss Thornley; and SP 1/65, fos. 92–5 (Miss Thornley's A2). The difficulty of putting them in order arises from such facts as that the former looks to be earlier, e.g. because in the clause which contained a specific date (at this stage, 6 February 1532) it has only ‘from henceforth', as though at the time of writing the session in which it has to be introduced remained uncertain; on the other hand, some corrections made in the latter appear in the text of the former.

16 P.R.O., SP i/65;, fo. 89V.

17 Ibid. fos. 90V-91.

18 The enabling act of 1523 (14 & 15 Henry VIII, c. 21: Stat. Realm, III, 259)Google Scholar, which authorized the king to repeal attainders by letters patent, extended only to attainders passed between 1484 and the end of the current parliament.

19 P.R.O., SP 2/Q, fos. 103–9 (Miss Thornley's A3).

20 That this was at the time a not uncommon method of preparing statutes is shown by the survival of the form in some enacted legislation, e.g. the act for the court of augmentations (27 Henry VIII, c. 27) and the 1543 statute of Wales (34 & 35 Henry VIII, c. 26)

21 P.R.O., E 36/143, fos. 21, 21 v (LP vi, 299).

22 TRHS (1917), p. 100. Miss Thornley treated all the surviving drafts as though they had been discussed and amended in parliament. Quite apart from the internal evidence provided by the kind of corrections made, this is in itself highly improbable. The drafts have very large spaces between lines (i.e. are evidently prepared for major revision), whereas there is some evidence that when ready for parliament bills were copied out fair without such spacing—as indeed one would expect (Elton, G.R., ‘Parliamentary Drafts, 1529–40', Bull. Inst. Hist. Research, xxv, 1592, 117 ff.: esp. pp. 120 f.).Google Scholar Moreover, there is good reason to think that at any rate by the later sixteenth century, and by the laws of probability even before then, im paper bills in parliament were kept there, so that the presence of these drafts in the State Papers (i.e. Cromwell's archives) supports the view that they were never in parliament. Giving evidence before Select Committees in the early nineteenth century, certain officers of the house showed that they possessed papers, including the early stages of bills, ‘from the earliest times”, though this may in practice have meant not earlier than the reign of Elizabeth; petitions were preserved from 1607 onwards. They suggested that those masses of papers might be otherwise disposed of, and their wish was granted in the fire which destroyed the old Houses of Parliament (H.C. Accounts and Papers, 1823, IV, 97–8; 1828, IV, 495–6; 1831–2, v, 266–7).Google Scholar

23 Hall, Edward, Chronicle (ed. 1809), pp. 784 ff.;Google ScholarElton, G. R., ‘The Commons’ Supplication against the Ordinaries', Eng. Hist. Rev. LXVI (1951), 507 ff.;CrossRefGoogle Scholar J. P. Cooper,’ The Supplication against the Ordinaries reconsidered', ibid, LXXII (1957), 616 ff.; Kelly, M.J., ‘The Submission of the Clergy', TRHS, 5th ser., xv (1965), 97 ff.Google Scholar who argues that the history of the Supplication reveals less planning and more confusion, and consequently even more demands on ministers’ time, than I have supposed.

24 Thornley, , TRHS (1917), pp. 93 f.Google Scholar

25 Cf. e.g. Knowles, D., The Religious Orders in England (Cambridge, 1959), in, 182 ff.Google Scholar

26 LP VII, 48. These memoranda should probably be dated a little earlier than the date of January 1534 assigned by LP.

27 25 Henry VIII, c. 12 (Stat. Realm, III, 446–51).Google Scholar

28 Section 2 of the act provided that it should be proclaimed in full in every part of the realm.

29 British Museum, Tit. B. i, fo. 161 (LP vi, 1381).

30 BM, Tit. B. i, fo. 425 (LP VII, 51). Taking one of the points out of context, Pollard (Henry VIII, London, 1905, p. 263, n. 1)Google Scholar supposed that the report referred to parliamentary discussions of the 1534 treason act; and though Miss Thornley (TRHS (1917), p. 103, n. 1)Google Scholar and Pickthorn, K. W. M. (Early Tudor Government, Cambridge, 1934, 11, 236, n. 3)Google Scholar correctly ascribed the event to the succession act, they too thought that the argument occurred in the commons. The full note can leave no doubt that Cromwell was reporting a discussion that took place while the bill was being prepared.

31 I.e. the scriptural justification of the king's divorce.

32 The act of appeals (24 Henry VIII, c. 12); the acts for Queen Anne's jointure and declaring Catherine to be but princess dowager (25 Henry VIII, cc. 25, 28).

33 Here Cromwell was guilty of a significant slip. He first wrote ‘ word’ and had to substitute ‘deed’.

84 25 Henry VIII, c. 22 (Stat. Realm, III, 471 ff.);Google Scholar also printed in Documents Illustrative of English Church History, ed. Gee, H. and Hardy, W. J. (London, 1896), 232 ff.Google Scholar

35 The form of the oath was given in an act of the next session, 26 Henry VIII, c. 2 (Stat. Realm, III, 492 f.;Google Scholar Gee and Hardy, , op. cit. 244 ff.,Google Scholar who miscall it the second succession act).

36 28 Henry VIII, c. 7 (Stat. Realm, III, 655 ff.).Google Scholar

37 P.R.O., SP 1/83, fo. 38 (LP VII, 406).

38 P.R.O., SP 1/77, fo. 203 (LP VI, 790(i)).

39 Ellis, H., Original Letters, i, II, 42–4.Google Scholar

40 P.R.O., SP 2/O, fo. 321 (LP VI, 1492).

41 P.R.O., SP 1/84, fos. III-12 (LP VII, 754).

42 P.R.O., SP 1/82, fo. 151 (LP VII, 140). He claimed that he had been merely trying to quieten down his accuser who was in a fury, but he virtually admitted the words as reported though he maintained that he had not mentioned the king or council specifically—only unspecified promoters of ‘sinister living’ and ‘naughty living’.

43 Deputy Keeper's Reports, VII, App. II, 284.Google Scholar

44 P.R.O., SP 1/84, fo. 213 (LP VII, 840, 2).

45 Catherine, Anne, and the ‘French Queen’ (Henry's sister Mary, widow of Louis XII of France).

46 P.R.O., SP 1/84, fos. 130 and 165 (LP VII, 779, 796); Norfolk Record Society, XVI, part 2, p. 215.Google Scholar

47 P.R.O., SP 1/82, fos. 235–6; 116, fo. 171; 135, fo. 141 (LP VII, 261; xii, i, 537, 11, 142).

48 P.R.O., SP 1/76, fo. 230 (LP VI, 634; the date in LP—1533—is wrong).

49 In 1549 there died one Alice Shelby, widow, of the same parish (Index to Wills preserved in the Probate Registry at Canterbury, ed. Plomer, H. R., Kent Records, 1920, p. 430)Google Scholar. If, as is quite possible, she was Gervase's widow, this still does not tell how or when he died, but the fact that she had something to leave suggests that her husband had not forfeited all his possessions.

50 P.R.O., SP 1/85, fo. 46 (LP VII, 953).

51 P.R.O., SP 1/83, fo. 96 (LP VII, 497).

52 P.R.O., KB 9/529/39; SP 1/83, fo. 59 (misdated by LP VIII, 678 into 1534).

53 P.R.O., SP 1/84, fo. 97; 94, fo. 3 (LP VII, 828; VHI, 1001); LP x, 597 (36).

54 P.R.O., SP 49/4, fos. 48–50 (LP VII, 847).

55 P.R.O., SP 2/0, fo. 321 (LP VI, 1492).

56 26 Henry VIII, c. 13 (Stat. Realm, III, 508 ff.);Google Scholar printed in full in Gee and Hardy, op. cit. 247 ff., and in part in Elton, G. R., The Tudor Constitution (Cambridge, 1960), pp. 61 ff.Google Scholar

57 P.R.O., SP 1/65, fos. 97–103; SP 2/Q, fos. 90–6 (Miss Thornley's B1 and B2).

58 Fisher, H. A. L., Political History of England, v (1485–1547), 346;Google ScholarPickthorn, , op. cit. 11, 249 f.Google Scholar

59 B.M., Cleo. E. vi, fo. 165 (LP VIII, 858).

60 Official Return of Members of Parliament (1878), I, 369.Google Scholar

61 P.R.O., SP 1/93, fo. 52 (LP VIII, 856): men should come to the Tower ‘thick and thriff’; it had never been ‘heard of before that words should be high treason’.

62 The Life of Fisher, transcribed by Bayne, R., E.E.T.S., extra series, CXVII (1921), 102.Google Scholar

63 The original act (Record Office, House of Lords) bears the correct formula: ‘Soit baille aux Communes. A cest bille les Communes sont assentz.’

64 Russell, C., ‘The Theory of Treason in the Trial of Strafford’, EHR, LXXX (1965), 30 ff.CrossRefGoogle Scholar

65 TRHS (1917), 105.Google Scholar

66 Ibid, III, n. 1.

67 Cf. my discussion of ‘Henry VIII's Act of Proclamation’, EHR, LXXV (1960), 208 ff.CrossRefGoogle Scholar

68 See my remarks in Tudor Constitution, pp. 233 f.

69 TRHS (1917), 107 ff.;Google ScholarThornley, , ‘Treason by Words in the 15th Century', EHR, XXXII (1917), 556 ff.CrossRefGoogle Scholar

70 Historical Collections of a London Citizen, ed. Gairdner, J. (Camden Society, N.S., XVII, 1876), 196.Google Scholar I owe this reference to Dr. J. W. McKenna.

71 Elton, , Tudor Constitution, p. 61.Google Scholar

72 Rezneck, S., ‘Constructive Treason by Words in the 15th Century', AmHR, XXXIII (1928), 544 ff.Google Scholar Rezneck wished to deny the existence of ‘constructive treasons’ left over by the side of the 1352 statute and argue that what appears to be judicial discretion in accepting proofs of treason not mentioned in the act amounted to no more than a characteristic use of the power of interpretation applied to the act. Even if this somewhat metaphysical point be true, it does not, of course, affect the fact that on occasions before 1534, and without explicit statutory sanction, words were quite often treated as equivalent to overt deeds in trials of treason.

73 Thornley, I. D., ‘The Destruction of Sanctuary', Tudor Studies … presented to A. F. Pollard (London, 1924), pp. 182 ff.Google Scholar

74 25 Henry VIII, c. 11.

76 LP VI, 742; VIII, 48.

76 P.R.O., KB 9/541/85–6; KB 27/1112, Rex, rot. 9. Both Mainwaring and Cholmley are described as Londoners, but the quarrel originated in Cheshire. Ralph Mainwaring of Cheshire was indicted there but ultimately acquitted at his trial.

77 32 Henry VIII, c. 12

78 LP XV, 438.

79 Cf. Thornley, , TRHS (1917), pp. 118 f.Google Scholar

80 28 Henry VIII, c. 10 (Stat. Realm, III, 663 ff.).Google Scholar

81 The only other treason created in this period concerned those who by fleeing the country hoped to escape punishment for breaches of proclamations (31 Henry VIII, c. 8, sect. 7: Stat. Realm, III, 726 ff.;Google Scholar printed in Tudor Royal Proclamations, ed. Hughes, P. L. and Larkin, J. F., New Haven, 1964, I, 545 ff.).Google Scholar No case is known.

82 SP 2/Q, fo. 105. In the very first draft, Audley had inserted the words ‘thereof lawfully convict’, only to strike them out again.

83 Cf. e.g. Powicke, F. M., in Magna Carta Commemoration Essays, ed. Maiden, H. E. (London, 1917), esp. pp. 119 f.Google Scholar

84 Chrimes, and Brown, , op. cit. 77: ‘et de ceo provablement soit atteint’.Google Scholar