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This publication
in a convenient and user-friendly format of fifteen essays written
by Professor Guy over the past quarter century is to be welcomed.
Since most of the work is fairly readily available elsewhere, the
usefulness of the volume lies less in its function as a work of
reference (though it is nice to have for that reason) than in the
opportunity it provides to consider Guy's contribution to Tudor
and Stuart history to date, and to ponder what he thinks are some
of the most important general themes in the political history of
the period between the early sixteenth century and the outbreak
of civil war in 1642.
The first half of the volume reflects Guy's
early interest in Cardinal Thomas Wolsey's role as Henry VIIIs leading
councillor and presiding judge in the courts of Star Chamber and
Chancery during the 1520s. The questions are mostly, though not
exclusively, informed by debates current in the late 1960s and early
1970s, primarily those between Guy's postgraduate supervisor, Sir
Geoffrey Elton, and Professor J. J. Scarisbrick about the relative
importance of the King, Wolsey, and Thomas Cromwell, in the major
developments of the period - the evolution of the privy council,
the break from Rome, and the pursuit of agendas of social reform.
Vigorously argued, all of these essays reflect the relentless and
virtuoso employment of archival sources that is a signature of Guy's
work, a point illustrated by, for example, his use of late sixteenth
and early seventeenth-century manuscripts (including a number in
the Ellesmere collection at the Huntington Library in California)
to reconstruct the archive of Star Chamber in Wolsey's time.
Although the views put forward have no doubt
failed to satisfy every participant in the close textual controversy
that sometimes characterises Henrician history, they are, taken
as whole, balanced and plausible. If his interpretation of Wolsey
as judge sometimes takes too little account of contemporary opinion
at the time, and consequently seems hard-put to explain adequately
why the Cardinal had by the early seventeenth century come to be
seen as a symbol of all that could be objectionable about conciliar
justice administered by a cleric, Guy's study of the legal career
of Wolsey's successor, Thomas More, which is also reflected in these
papers, does show that there was little difference in the case loads
over which the two presided. As against Scarisbrick, moreover, Guy
demonstrates how Wolsey's reforming rhetoric was a hostage to his
need to raise money for the expensive foreign policy he directed,
and it is hard to disagree with the conclusion of the fine paper
on 'Wolsey and the Parliament of 1523', that the cardinal was 'both
good and bad'. At the same time, Guy argues convincingly that the
emergence of the privy council during the course of the 1530s was
the continuation of a process of differentiation of the larger king's
council that had been to some degree anticipated by Wolsey in the
1520s, and was subsequently as much a consequence of the ever-growing
pressure of business as the product of the bureaucratic genius that
Elton attributed to Cromwell.
Indeed, unlike Elton, who saw the minister
as the hand that manipulated the throne, or writers such as Eric
Ives, who stress the role of faction in giving direction to the
politics, Guy argues that by the 1530s Henry VIII was both his own
master and fully cognisant of the possibilities for monarchical
power that could be read into some of the intellectual positions
that were used to justify the breach from Rome necessitated by his
love affair with Anne Boleyn. Although the evidence is too complex
to make for certainty, Guy suggests that Henry saw very early (maybe
as early as 1515) that threatening the clergy with the offence of
praemunire, and arguments for the royal supremacy over the church,
potentially gave the crown a jurisdictional omnicompetence that
could imbue the king with a form of sovereignty similar to that
enjoyed by Roman emperors (Chapter VII, p. 496). In any case, the
important point, which is not all that different from the view expressed
by F. W. Maitland in his acute writings on the Tudor period, is
that the break from Rome injected the language of 'imperial kingship'
into the various strands of political thinking that had been inherited
from the later middle ages, a high view of descending royal authority
that was still alive and well when Charles I sat on the throne in
the early seventeenth century. According to Guy, however, it is
no less crucial that this aspect of Tudor political thought co-existed
with another, which stressed participation and the supremacy of
the king in parliament, that remained important because it appealed
to laymen such as the common lawyers, who might well be confessional
conservatives, but who were none the less willing to use parliamentary
statute to break the jurisdictional autonomy of the spiritual courts
in order to bring them under the control of the secular common law.
For Guy, the key to this second insight is Christopher St German,
the most influential legal writer of the Henrician period, whose
polemical encounters with Sir Thomas More constitute the middle
chapters of the collection, and whose position influences much of
what Guy has to say in the remaining papers.
St German was the author of Doctor and Student
(1523), the most important technical work on the law of equity and
the function of the court of Chancery produced during the early
modern period, but in A Treatise concerning the Division between
the Spirituality and Temporality, a tract re-published five times
between 1533 and 1537, he also attacked the procedures the church
courts employed, especially in connection with the punishment of
heresy. Furthermore, Guy shows that during the 1530s St German proposed
a programme of parliamentary reform (including law reform and a
scheme for helping the poor) that was far more revolutionary than
anything put forward by Thomas Cromwell, but which stressed the
power of the king in parliament, rather than the king alone, over
both the temporal and secular spheres. The details of St German's
career are largely limited to what can be deduced from his books,
but Guy points out that his polemical works were published by Berthelet,
the king's printer, and his parliamentary drafts reached the state
papers. His thought was obviously useful to the government in the
context of the passage of the 'Reformation' statutes. Hence Guy
argues plausibly that Henry's reluctant decision to silence More
by having him executed was driven largely by Sir Thomas's determination
to reply in print to the works of St German.
In the end St German, who died in 1540,
was perhaps too much of a free radical to have very much influence
on the actual implementation of policy in the 1530s, but in essays
written in the later 1980s and early 1990s, Guy depicted his brand
of parliamentary legalism, reinforced by William Marshall's translation
of Marsiglio of Padua's Defensor Pacis, as one the strands that
made up what he usefully describes as the 'polyglot' language of
political thought in the Henrician period. In addition, these later
papers take the subject a step further by addressing the works of
Sir Thomas Elyot and Thomas Starkey, and elaborating from a reading
of them the view that there was also another powerful stream of
Tudor thought that drew on the classics, and in particular Cicero,
to stress the importance of council, both inside and outside of
parliament, as a way of assuring good governance. Thus while Elton
hailed the creation of the privy council as the foundation of modern
bureaucratic state, Guy reminds us that it also triggered a set
concerns about what happens when kings allowed themselves to be
dominated by private, 'chamber' counsellors who were all too likely
to put their personal interests before those of the commonwealth
as a whole. This was a problem that the fifteenth-century judge,
Sir John Fortescue had thought it important to address during the
Wars of the Roses, and it was a question raised by the leaders of
the Pilgrimage of Grace who protested against the direction of royal
policy in the 1530s.
Guy's work on Tudor political thought is
open to the criticism that it is based largely on a handful of figures,
including some, like Starkey, whose works may not have been all
that widely known at the time, and he has thus far made only limited
attempts to trace the spread or the reception of the ideas he describes
either in print or in public discourse. On the other hand, his discussion
of political thought in terms of different modes or models, which
reflected 'ascending' as well as 'descending' concepts of authority
is extremely useful. It goes some way towards explaining the conflicting
or self-contradictory political values often found in the sources.
While it would be excellent to have fresh archival studies of institutions
such as the Elizabethan Star Chamber to match Guy's own study of
the 'Cardinal's court', the emphasis on ideas points towards fresh
approaches to Tudor history that may enable us to better understand
the period on its own terms while liberating it from the hackneyed
dialectics of Eltonian orthodoxy and subsequent revisionism. No
less important, Guy's view of English political development eschews
any model of progressive linear development across the later sixteenth
and seventeenth centuries, and in a brief but incisive preface to
this collection, as well as in the concluding paragraphs of several
of the later pieces, he suggests that problems raised by the break
from Rome in the 1530s - the relationship between the ecclesiastical
jurisdictions and the common law, that between crown and counsel
inside and outside of parliament, that between royal authority answerable
only to God and that created by law - remained of central importance
right down to the outbreak of civil war in the 1640s. In his view
the opposition of the Long Parliament to the ecclesiastical canons
of 1640, and the printed exchanges over the Nineteen Propositions
in early 1642 are best seen as particularly acute manifestations
of a set of questions about the location of authority in the English
state that were embedded in the ambiguities of the Act of Appeals,
a parliamentary statute which proclaimed that England was an empire
and that the king was the supreme head of the clergy as well as
the laity.
Inevitably in a collection of this kind,
it is left largely to the reader to fill in the details between
these climactic episodes in the political history of early modern
England, but the insight itself is a valuable one, and in two of
the essays that are set outside the Henrician period Professor Guy
suggests how it might be done. In a lengthy paper on 'The Elizabethan
establishment and the ecclesiastical polity', he asserts that until
the 1590s, the personalities and complexion of the Queen's regime
made it possible for all of the strands in Tudor political thought
to co-exist in relative harmony. But when the Presbyterian leader
Thomas Cartwright combined non-conformity with the propagation of
'Polybian "mixed" polity' as the ideal form of constitution
in church and state, there was a powerful reaction from the second-generation
of Elizabethan governors, most notably Archbishop Whitgift, one
that was unsuccessfully resisted by older and more 'liberal' counsellors
such as Burghley. Non-conformists were brought before the ecclesiastical
court of High Commission where they were also obliged, on pain of
imprisonment, to take the oath ex officio, which required them to
truthfully answer questions put to them before charges had been
declared. Such procedures had been criticised by St German in the
1530s, and in the reign of Elizabeth a group of puritan lawyers,
including the Essex MP James Morice and the clerk of the crown,
Robert Beale, launched a further onslaught against them by compiling
evidence, publishing tracts, acting as legal advisors to those brought
before the courts, and putting forward bills in parliament. The
general trust of the puritan legal position was that ex officio
procedures were contrary to the rules of due process in canon and
civil law, as well as those of common law as laid down in chapter
29 of Magna Carta. Morice, for example, did not fail to make an
analogy between such procedures and the practices of the Spanish
Inquisition, but the bishops, supported by the writings of Richard
Cosin, stressed their practical necessity as a means of countering
sedition and defended them by 'announcing the thesis that canon
law was constitutionally independent of common law and claim[ing]
that the church formed a societas separate from the civil state'
(XIII, 148).
Taking this debate as an illustration of
the break-down of the Elizabethan 'mixed polity', Guy argues both
that the common law judges were weakly compliant in allowing the
churchman their victory, and that the 1590s marked the start of
a high road to the jure divino policies of Laud that were such a
divisive feature in the years leading to outbreak of the Civil War.
Inspired by the passionate rhetoric of Beale and Morice, Guy might
be accused of drawing the ideological lines more clearly than contemporaries,
faced by religious controversy and a long period of war, would have
been able to do, but if anything, in this paper he may uncharacteristically
have failed to develop the implications as far as they can go. He
could, for instance, have pointed out that the most authoritative
report of the critical test case of the deprived minister, Robert
Caudry, was published in 1604 by Sir Edward Coke, and in this report
Coke gives a notable history lesson that aimed to demonstrate to
his fellow subjects the ancient subordination of the ecclesiastical
jurisdiction to that of the king, king in parliament and the common
law in a manner that is highly reminiscent of the views of James
Morice (who had acted as legal counsel for Caudry). Furthermore,
as the older works of R. G. Usher and Stuart Babbage show in great
detail, controversy between the common law judges and the bishops
over the relationship between the common law and the ecclesiastical
courts was an important feature of the politics and political thought
of the reign of James I that has been unduly neglected in most modern
historiography of the period. In fact, this reviewer would go so
far as to suggest that the concept of the 'ancient constitution',
which is so often used and abused in discussions of Coke's thought,
should be seen very largely as the offspring of these disputes.
Having said that, in 'The Origins of the
Petition of Right [of 1628] Reconsidered', the final essay in this
collection, and also the one that has probably been most widely
quoted by other historians, Professor Guy does show how questions
about the relationship between king, law, and parliament, which
he would trace back to the 1530s, remained prominent in early Stuart
politics. Focusing on the parliamentary reaction to the decision
by the King's Bench judges to refuse bail to the Five Knights who
were imprisoned by order of Charles I for objecting to the Forced
Loan of 1626-27, Guy argues that the agitation leading to the passage
of the Petition of Right was caused primarily by John Selden's allegation
that Attorney General Heath, on orders from the king, intended to
enrol a form of judgment in the court record that would have made
a binding precedent in favour of the royal prerogative even though
the judges themselves expressly forbade him from doing so. Mark
Kishlansky has recently questioned this aspect of Guy's contention
in great detail, and at a more general level, while Guy suggested
that the lawyers in parliament were attempting employ Magna Carta
and the concept of due process of law in order to defend the subject
against a further extension of the arbitrary power by the crown,
Kishlansky sees them participating in a short-term campaign against
the Duke of Buckingham that led by accident to an innovative encroachment
on the rights of the crown and the ability of the king to govern
in a difficult situation. (1)
Kishlansky may just have the better of the
argument in terms of his refutation of any felonious intent on the
part of Sir Robert Heath to alter the court record, but the evidence
is complex and to some degree inconclusive. Given the circumstances
of the period, which included the dismissal of Chief Justice Randle
Crew for refusing to endorse the legality of the loan itself, Guy
may, even if for the wrong reasons, more accurately capture the
political atmosphere. In any case there is certainly something to
be said for following the lead of Guy's preface and seeing this
episode as another instance in the on-going Tudor and Stuart struggle
between 'ascending' and 'descending' conceptions of political authority.
The fact that these essays makes us think
hard about particular personalities and events, while at the same
time offering an overall vision of the high politics of the century
between the break from Rome and the outbreak of the civil war, is
proof enough of their value.
November 2001
Note: 1. M. Kishlansky,
'Tyranny denied: Charles I, Attorney General Heath, and the Five
Knights' Case', Historical Journal,
xlii (1999), 53-83. |