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Parliamentary Attainder in the Reign of Henry VIII

Published online by Cambridge University Press:  11 February 2009

Stanford E. Lehmberg
Stanford E. Lehmberg
Affiliation:
University of Minnesota
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Extract

‘Attainder’, A. F. Pollard once wrote, was ‘the characteristic instrument of Tudor policy’, and ‘acts of attainder [the’ favourite weapon’ of Henry VIII. Unfortunately Pollard did little more than throw out these striking phrases; he never made a systematic study of parliamentary attainder under die second Tudor. The use of attainder in die fifteenth century has been subjected to recent scholarly scrutiny, and certain bills from die period of Thomas Cromwell's ascendancy have been discussed by Professor Elton. But a careful examination of attainder under Henry VIII is still lacking. Since his reign marks die heyday of attainder by statute, such an inquiry is clearly important.

Type
Articles
Information
The Historical Journal , Volume 18 , Issue 4 , December 1975 , pp. 675 - 702
Copyright
Copyright © Cambridge University Press 1975

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References

1 Pollard, A. F., Henry VIII (London, 1905), pp. 29, 350.Google Scholar

2 Lander, J. R., ‘Attainder and Forfeiture, 1453 to 1509’, The Historical Journal iv (1961), 119–51CrossRefGoogle Scholar; Bellamy, J. G., The Law of Treason in England in the Later Middle Ages (Cambridge, 1970), pp. 177–205.CrossRefGoogle Scholar

3 Elton, G. R., Policy and Police (Cambridge, 1972), pp. 263, 270, 275, 308, 402, 419–22.Google Scholar

4 29 Henry, VI, c. 1, in Statutes of the Realm (hereafter cited as S.R.), 11, 357–8.Google Scholar

5 Rotuli Parliamentorum (hereafter cited as Rot. Parl.), V, 224. A subsequent act, 31 Henry VI, c. 1 (ibid. p. 265; S.R., 11, 360–1) declared all of Cade's acts and indictments void (he had held a court which condemned Lord Say and two commoners) and added that blood could not be ‘defiled or corrupted, but by the Authority of … parliament clearly declared’. 6 Rot. Parl., V, 265; cf. Bellamy, pp. 195–6.

7 Lander, p. 149.

8 E.g. 3 Henry VII, no. 15 (John Earl of Lincoln and other adherents of Simnel); 11 Henry VII, no. 38 (Viscount Lovell), no. 39 (Stanley et al.); 19 Henry VII, no. 21 (John Tuchet Lord Audley and others assisting Warbeck). Rot. Parl., vi, 397, 502–3, 544.

9 E.g. 3 Henry VII, no. 27 (Rot Parl., vi, 402).

10 11 Henry VII, no. 39 (Rot. Parl., vi, 503).

11 Bellamy, pp. 192–3.

12 3 Henry VII, no. 27 (Rot. Parl., vi, 402). In 1491 John Hayes was attainted of misprision for concealing a treasonous letter which he had received from John Taylor in Rouen (7 Henry VII, c. 22, in S.R., 11, 566). Guy Fawkes and his confederates were attainted of treason by parliament in 1606: 3 James I, c. 2.

13 The attainders of George Duke of Clarence in 1477 (Rot. Parl., v, 193) and Stanley et al. in 1495 (ibid, vi, 503).

14 Possibly it was originally intended to proceed against Empson and Dudley, the only casualties of 1509, by stature: the Lords ‘Journal refers to a ‘Billa concernens Dudley et Empson, et eorum la Atteynt et Convictionem in Parliamento’. But the first bill, whatever it actually said, did not pass. It was rewritten, and emerged as a measure to protect the holders of uses where Empson and Dudley had been among the feoffees. The men are referred to as being already ‘atteynted of high treason after the course of the Comen Law’ and parliament did nothing to ratify or amplify those judgements (Lords' Journal, I, 7–8; 1 Henry VIII, c. 15). (Unless otherwise noted, all acts of Henry VIII's reign are to be found in S.R.; the numbering of statutes in S.R. will be followed here, although the original acts and enrollments are often in a different order.) In 1512 Dudley's attainder was reversed by parliament on the petition of Edward Guildford, who held the wardship of Dudley's son John, and an act was passed for one Elizabeth Marten, whose lands in Surrey had been wrongfully entered by Dudley and hence wrongfully confiscated by the king (3 Henry VIII, cc. 19, 21). During the next session Empson's attainder was reversed as well, on the petition of his son and heir (4 Henry VIII, c. 15). Wolsey, like Empson and Dudley, was dealt with by the courts, although Henry at one time thought of using parliament against him; as in rheir case, however, parliament did pass a bill saving the rights of use-holders where the Cardinal had been among the feoffees (21 Henry VIII, c. 25).

15 Cf. Hall, Edward, Hall's Chronicle (London, 1809), pp. 622–4; D.N.B.Google Scholar

16 14 & 15 Henry VIII, c. 20. Cf. Lehmberg, , ‘Early Tudor Parliamentary Procedure: Provisos in the Legislation of the Reformation Parliament’, E.H.R., LXXV (1970), 1–11.CrossRefGoogle Scholar

17 E.g. Sir Edward Neville, Sir Ralph Ellerker, Sir Nicholas Carew, Sir William Fitzwilliam, Sir Andrew Windsor, Sir William Parr, Sir Thomas Boleyn.

18 These are the provisos for the earls of Worcester and Devonshire, Gilbert Talbot, Sir William Fitzwilliam, Sir Edward Darrell and Sir William Compton, sees. 14, 25, 37, 43, 51, 53, 58 in S.R.

19 14 & 15 Henry VIII, c. 22. The act notes that Wolsey was instrumental in mediating this Settlement.

20 14 & 15 Henry VIII, c. 23. He was not restored in blood until 1547, when he was elected to the commons in Edward VI's first parliament and secured an act of restitution. Still not recognized as duke of Buckingham, he was made first Baron Stafford of the new creation. 1 Edward VI, c. 18, original act, House of Lords Record Office (hereafter cited as H.L.R.O.); not printed or numbered in S.R.

21 14 & 15 Henry VIII, cc. 24–26, 30, 31, 33.

23 Henry VIII, c. 34; Letters and Papers of the Reign of Henry VIII (hereafter cited as L.P.), v, 563. Edgecumb's wife had previously been married to Griffith's father and still enjoyed a jointure. There is also a separate proviso for the widow of Griffith's grandfather.

23 L.P., v, 724.

24 Ibid. 657.

25 Ibid, iv, 6709 (7); v, 657.

26 27 Henry VIII, c. 59.

27 25 Henry VIII, c. 34. There is further information about this bizarre incident in Hall, p. 815. Eventually Wolf and his wife were hanged in chains ‘upon Thomas at low wafer mark’ and thus presumably executed by drowning, : L.P., VII, 384. A felony attainder (of Charles Carew) is included in a later act, 32 Henry VIII, c. 60.Google Scholar

28 25 Henry VIII, c. 12.

29 The Parliament roll, however, describes the act as a ‘billa’, not a petition. It received the assent ‘Le Roy le veult’. C. 65/142, no. 31, P.R.O.

30 Bellamy, pp. 216–24. Rhys ap Griffith, if the charges against him in the King's Bench were the real basis of his attainder, might more appropriately have been attainted of misprision than high treason.

31 See Lehmberg, , The Reformation Parliament, 1529–1536 (Cambridge, 1970), pp. 194–6, for a fuller account of events in parliament and for more evidence of Cromwell's involvement in drafting the act.Google Scholar

32 26 Henry VIII, c. 23. The act begins by citing the king's grants and other favours shown More, despite which Sir Thomas ‘hath onkyndly and ingratly servyd’ the king. Elton speculates that this phraseology is a sign that Henry personally promoted the act (Policy and Police, p. 402).

33 25 Henry VIII, c. 22; Lords' Journal, 1, 82Google Scholar; Lehmberg, , Reformation Parliament, pp. 199, 203–6.Google Scholar

34 26 Henry VIII, c. 2.

35 [Hall, Richard], The Life of Fisher (London, 1921), pp. 85–6.Google Scholar

36 26 Henry VIII, c. 22.

37 More's trial has recently been re-examined in Elton, , Policy and Police, pp. 402–19.Google Scholar

38 27 Henry VIII, c. 58.

39 32 Henry VIII, c. 58; cf. L.P., xiv, ii, 359; xv, 438–9, 450, 598 (a remembrance in which Cromwell speaks of having the bill drawn up), 1004, 1008 (for evidence that the government sought a second witness); Elton, , Policy and Police, pp. 169, 308.Google Scholar

40 26 Henry VIII, c. 25.

41 Lansdowne MS 159, fols. 36–7, B.M. Cf. Elton, , ‘Parliamentary Drafts’, 1529–1540’, Bulletin of the Institute of Historical Research, xxv (1952), 120.Google Scholar

42 28 Henry VIII, c. 18. The other uncles were Oliver and Walter Fitzgerald. All are said, in an interlinear addition to the original act (H.L.R.O.), to be prisoners in the Tower at the time of Parliament's sitting. The executions took place at Tyburn on 3 Feb. 1537; the D.N.B. comments that they ‘reflected the utmost discredit on the government, three of [the uncles] being wholly free from participation in the rebellion’.

43 31 Henry VIII, c. 15. There are two copies of the original act at H.L.R.O., the second evidently a fair copy although both are on parchment. The first copy is written on two membranes, seemingly in two different hands. There is a copy in Petyt's Parliamentary Collections, Lansdowne MS 515, fols. 34–43, B.M.; Lansdowne MS 2, fol. 6, is a list of the names of persons attainted by the act. There is a summary in L.P., xiv, i, 867 (15). The bill originally named Thomas Branceter but was altered by agreement of the two Houses when his Christian name was discovered to be Robert (Lords' Journal, 1, 109).Google Scholar

44 Lords' Journal, 1, 107; L.P., xiv, i, 980, a letter to Lord Lisle from John Worth, who had his information from Sir George Speke. Probably Cromwell or another councillor had displayed the tunic in the Commons, where Speke saw it.Google Scholar

45 Although the original act (H.L.R.O.) has the ‘Soit fait’ assent written on it, the Parliament Roll (C.65/147, no. 15, P.R.O.) calls the act a bill and gives the assent ‘Le Roy leveult’.

46 L.P., xiv, i, 989, 1237.Google Scholar

47 32 Henry VIII, c. 59, cf. L.P., XII, ii, 1122Google Scholar, 1151; xv, 598, 615, 747; xvi, i, 554; Paul, John E., Catherine of Aragon and Her Friends (London, 1966), pp. 226–31.Google Scholar

48 32 Henry VIII, c. 61. The French ambassador had heard that Hungerford forced himself on his own daughter (Kaulek, Jean, ed., Correspondence diplomatique de MM. de Castillon et de Marillac [Paris, 1885], p. 207). Whatever his sexual aberrations really were, Hungerford treated his wife abominably, imprisoning her under unbelievably awful conditions while he sought a divorce. She offered to tell Cromwell ‘manye strange rheings’ if he would take an interest in her plight; rather than continue her ‘wrechyd lyff ’ with Hungerford she ‘had lever distroye my selff or begg my lyvyng from dore to dore’ (Cottonian MS Titus B. I, fos. 396–7, B.M.). The final paper issued by Cromwell as vicegerent is a commission directing William Petre and Thomas Bennet to proceed in determining the matter of this divorce (Additional MS 48,022, fo. 96, B.M.).Google Scholar

49 Cottonian MS Caligula E. IV, fos. 34–5, B.M. On Butolph and Philpot see the massive depositions and interrogations calendared in L.P., xv, 487–9, 495, 507, 537, 539, 547, 552.Google Scholar

50 Kaulek, p. 183.

51 Foxe, John, Acts and Monuments, ed. Cattley, S. R. (London, 1838), v, 505.Google Scholar

52 For the charges against Grey see L.P., xv, 830; xvi, 304.Google Scholar

53 Lords' Journal, 1, 158–60; 32 Henry VIII, c. 60.Google Scholar

54 As we shall see, heresy is mentioned in the bill againsr Cromwell, but indictment for treason would have been sufficient and he was executed as a traitor.

55 Foxe, v, 438; Hall, p. 480; cf. Kaulek, pp. 208–9. Hungerford was killed with Cromwell at Tower Hill on 28 July. Heron, Gynnyng, Philpot, Brindeholme and Home were drawn from the Tower to Tyburn and there hanged and quartered on 4 August. Charles Carew was hanged with them but was apparently spared the attendant horrors because of his social standing. See Kaulek, p. 210; L.P., xv, 953Google Scholar; Wriothesley, Charles, A Chronicle of England (London: Camden Soc., new ser., vol. xi, 1875), 1, 121Google Scholar. Bird probably died with this group as well. The French ambassador included Lawrence Cook's name in the list, but he was evidently confused; Cook was pardoned in October (Kaulek, p. 208; L.P., xv, 593)Google Scholar. Damplip too escaped execution for the time being. He was finally killed in 1544 (Foxe, v, 522). Lisle remained in the Tower until 1542, when he was pardoned, but he ‘tooke suche immoderate joy thereof, that his hart being oppressed therewith he died the night following through too much rejoising’. His wife ‘fell distraught of mind, and so continued many years after’ (Holinshed, Raphael, Holinshed's Chronicle [London, 1808], III, 824Google Scholar; Foxe, v, 515–6). In 1541 Grey was convicted in a trial at King's Bench and immediately thereafter executed (L.P., xvi, 77, 304, 932, 941).Google Scholar

56 L.P., xvi, 119, 140, 446, 448–9, 535, 981, 1139; Kaulek, pp. 256–7; 33 Henry VIII, c. 40. This act was nor enrolled and has not been printed. The original act is at H.L.R.O. The bill is brief and quite specific as to the charges; it is not a petition.Google Scholar

57 28 Henry VIII, c. 24; Lords' Journal, 1, 101Google Scholar; L.P., xic, 147, 293–4. Chapuys believed that intercourse had noc occurred and wrote that Lady Margaret ought to have been pardoned even had her immorality been grosser, considering the examples of lascivious behaviour daily set beforeGoogle Scholar her eyes.

58 Lords' Journal, I, 143Google Scholar; see Elton, , ‘Thomas Cromwell's Decline and Fall’, Cambridge Hist. Jour, x (1951), 175–7.Google Scholar

59 According to Lords' Journal, 1, 149, the commons returned the original lords' bill to the upper house. Unfortunately it does not survive.Google Scholar

60 It is not printed in S.R. but may be found in Burnet, Gilbert, History of the Reformation (ed. Pocock), iv, 415–32. Burnet took his text from the Parliament Roll (P.R.O.) rather than the original act, but the differences are not significant.Google Scholar

61 The parliament roll for 1540 is unique in referring to all the attainder acts of that year as petitions, not bills; all were given the assent ‘Soit fait comme il est desire’. C. 65/148, nos. 56–60, P.R.O.

62 Miscellaneous Writings and Letters of Thomas Cranmer (Parker Soc, 1846), p. 401Google Scholar; Lords' Journal, 1, 145–6.Google Scholar

63 That is to say, she was executed without an order from parliament, and there was no separate act of attainder against her. The 1536 act of succession (28 Henry VIII, c. 7) did contain a section giving parliamentary sanction to the attainder of Anne and her accomplices.

64 See Smith, Lacey Baldwin, A Tudor Tragedy (London, 1961), pp. 178–202.Google Scholar

65 Lords' Journal, 1, 165Google Scholar; translation taken from The Parliamentary or Constitutional History of England (London, 1751), III, 176Google Scholar. There are two manuscript journals for this session, the second being the version printed in Lords' Journal. The first has the same summary of Audley's speech but breaks off even sooner, perhaps an indication that the two scribes had been told to delete matter but not exactly where to stop writing, MS Journal, 1, 430, H.L.R.O.Google Scholar

66 Lords' Journal, 1, 171.Google Scholar

67 Ibid. pp. 172–6; MS Journal, 1, 453, 524.Google Scholar

68 33 Henry VIII, c. 21. The act was not enrolled but is printed in S.R. The original act is preserved in a separate case at H.L.R.O.; it still bears the commission for assent and an excellent impression of the Great Seal. The same letters patent declared assent to 33 Henry VIII, c. 20, an act making possible process against persons who ‘after their confessions or convictions of treason, shall happen to fall mad or lunatike’. The purpose of this bill has never been explained fully. Evidently there was fear that Catherine or some of her associates might escape punishment because of real or feigned insanity. Lady Rochford was distraught during her imprisonment, so the act may have been directed against her.

69 It was not: Catherine and Lady Rochford were executed on Monday, 13 Feb.

70 It was not necessary to try Surrey before a jury of peers because his was only a courtesy title; he had never been summoned to the house of lords.

71 Lords' Journal, 1, 284–91. The original act survives at H.L.R.O. (it is not signed by the king or by stamp) together with the commission and the attached impression of the fine classical Great Seal used during Henry's last years. Although the act was thus fully valid there is no notice of it in S.R. The commission for giving assent is printed in Parliamentary or Constitutional History, III, 21m.Google Scholar

72 1 Henry VIII, c. 19; 3 Henry VIII, c. 17; 4 Henry VIII, cc. 9, 14. 5 Henry VIII, c. 15 is another restoration relating to Lord Audley's attainder.

73 3 Henry VIII, c. 20 and 4 Henry VIII, c. 16.

74 5 Henry VIII, c. 12. Margaret's husband, Sir Richard Pole, had died in 1505.

75 6 Henry VIII, c. 22.

76 5 Henry VIII, c. 13.

77 6 Henry VIII, c. 21. Technically this act revoked 1 Henry VI, c. 2 and confirmed 21 Richard II, c. 12, thus nullifying 11 Richard II, c. 2. See D.N.B. sub Sir Robert de Bealknap (d. 1400?).

78 31 Henry VIII, c. 22, original act. H.L.R.O. The senior Norris had been found guilty by the courts, not parliament. An act of 1536 (28 Henry VIII, c. 52) had given relief to those who enjoyed the use of lands held by Rochford, Weston, Norris, Brereton and Smeaton.

79 34 & 35 Henry VIII, c. 32, original act (no. 36), H.L.R.O.

80 3 Henry VIII, c. 17, sees. 6–22 as printed in S.R.

81 1 Henry VIII, c. 19; 3 Henry VIII, c. 19.

82 4 Henry VIII, cc. 10, 11, 12.

83 At the foot of this original act is written ‘William Seynt John ’, no doubt an indication that the petition was referred to Sir William Paulet, Lord St. John, and that he was the one who actually drafted the limiting clauses.

84 An ‘act of authority’ passed in 1523 (14 & 15 Henry VIII, c. 21) gave the king power to reverse attainders enacted between 1483 and 1523 by letters patent, without consulting parliament. In fact most attainders of this period had already been reversed by legislation, and it does not appear that Henry actually utilised the power. Nevertheless the act is hedged about with 40 sections of provisos saving the rights of persons who had acquired forfeited properties.

85 The number of individuals attainted was actually a bit lower, since Kildare, More, Fisher, Fetherston, Abell and Powell were attainted twice. It is of course impossible to count Kildare's unnamed accomplices. If Cromwell is accounted a heretic as well as a traitor the number attainted for heresy would be four.

86 As we have seen some of these acts reversed judicial rather than parliamentary attainder.

87 SirCoke, Edward, The Fourth Part of the Institutes of the Laws of England, pp. 37–8Google Scholar. Elizabethan parliaments evidently feared the misuse of attainder; a petition of 1563 predicted ‘daily interchange of attainders and treasons’ should Elizabeth die without designating a successor. Neale, J. E., Elizabeth I and Her Parliaments, 1559–1581 (London, 1953), p. 106.Google Scholar

88 2 & 3 Edward VI, c. 17 (Sir William Sharington), c. 18 (Sir Thomas Seymour).

89 1 Mary, st. 2, c. 6 (Northumberland et al.); attainder of the duke of Suffolk, 1555 (not given a number in S.R.).

90 13 Elizabeth, c. 16 (Westmorland, Northumberland et al.); 28 & 29 Elizabeth, c. 1 (Paget, Babington, Throckmorton et al.). There had been prior judicial action in both cases.

91 16 Charles I, c. 38. The interrelationship between attainder and impeachment is worth pointing out. Attainder flourished under Henry VIII while impeachment lay in abeyance; under the Stuarts impeachment was revived and attainder virtually forgotten. One reason for the change is surely the fact that Tudor actions against unpopular ministers began with the government, or with factions in it; by the seventeenth century the initiative had passed to parliament. Cf. Berger, Raoul, Impeachment: The Constitutional Problems (Cambridge, Mass., 1973), pp. 27–30Google Scholar. John Hatsell, commenting on Cromwell's attainder, observed that impeachment would have been the proper procedure, ‘but the impatient and overbearing spirit of the sovereign, and that arbitrary power, which Henry VIII from a variety of concurring circumstances, was enabled to exercise against every part of the constitution, rendered the summary proceeding by Bill of Attainder the more eligible for his purposes’ (Precedents of Proceedings in the House of Commons [London, 1818], iv, 97).Google Scholar

92 Bills of attainder were passed by a number of state legislatures in America during the Revolution; this led to the clauses in the American Constitution which prohibit bills of attainder from being enacted at either the federal or state level. These prohibitions (art. 1, sec. 9; art. 3, sec. 3), which include ex post facto legislation generally, attracted little debate in the constitutional convention and no adverse votes. Cf. Dumbauld, Edward, The Constitution of the United States (Norman, Oklahoma, 1964), pp. 194–7Google Scholar; Brant, Irving, The Bill of Rights (New York, 1967), pp. 37. 42.Google Scholar