The Rule of the Tudors 1485 - 1603

                               JUSTICE

As Anne Boleyn was taken to the Tower, she asked: 'Shall I die without justice?' Assured that 'the poorest subject the King hath, had justice', she laughed. She was tried before judge and jury, condemned and executed, according to the laws of England. Yet since the jury was packed with men hostile to her and servile to the King, the guilty verdict was inescapable, even though she was, surely, innocent. On a book of hours associated with her, a contemporary wrote beside an illumination of Christ before Caiaphas 'even so will you be accused by false witnesses'. The courtiers who laid odds of ten to one that Anne's brother, Lord Rochford, would be freed, because no evidence was brought against him, lost their bets. The law has always had limitations as an instrument of justice. At the trials of those in high places, political necessity might exert a more compelling claim than impartial justice; and to the poor the law might bring more suffering than benefit. But the cause of injustice in England was not so much imperfect law as the perversions which separated the theory of law from its practice: the corruption and weakness of juries, the partiality of sheriffs and justices of the peace, and even the demands made by kings who were sworn by their coronation oath to uphold the law.
In the Tower in 1541, charged with treason, Sir Thomas Wyatt wrote a defence of himself and a vindication of the laws of England. Under threat of death, he needed to believe that his king forced no man's conscience; 'he will but his laws with mercy'. He reminded his own judges that when Lord Dacre had been acquitted by his peers in 1534, no royal reprisals had followed. Yet Henry was a king who, as Supreme Head of the Church of England, did force consciences. He chose to pardon Wyatt, but he might as easily not have done. Laws were believed to be consonant with divine justice, and this king saw himself, and was seen by loyal subjects, as divinely appointed. Henry came to deny any legal constraints upon his kingship: 'of our absolute power we be above the laws'. For those who feared a Tudor despotism Henry's emendations to the Bishops' Book, his formulary of faith of 1537, would have been alarming. The text stating that kings might only coerce and kill subjects according to 'the just order of their laws', the King changed to allow that only 'inferior rulers', the King's agents, were so constrained. There were dangers that the King might use the rule of the law without tempering it by conscience or justice. A chief justice of the King's Bench warned that 'sometime extremum jus is summa injuria'; extreme justice could be extreme injustice. Wolsey counselled the judges to advise the King that a lawful right might not always accord with justice: 'although this be the law, yet this is conscience'. Henry was a king whose instinct was not always to temper the law. Attainder, public and parliamentary condemnation for treason, was used by Henry VIII, as by his father, as a means of political proscription. It was through Parliament and by statute that Henry extended his legal competence, creating new treasons of frightening latitude, and novel punishments. A convicted poisoner would now be boiled alive (although this penalty was only inflicted once, against the man who tried, and failed, to poison Bishop Fisher); sodomites would be punished by death, as in Levitical law. The Royal Supremacy and the new Treason Act of 1534 had given the King alarming new powers over conscience. Catherine Howard warned her lover never to reveal in confession the things that had 'passed betwixt her and him', for 'surely, the King, being Supreme Head of the Church, should have knowledge of it'. Yet the reign of terror which so many feared did not follow. In the years 1532-40, 883 people of England, Wales and Calais came within the compass of the treason laws. Three hundred and eight of them were executed. Yet, of these, 287 had been in open rebellion against the Crown, undeniably guilty of treason. This was hardly a massacre of the innocents.
One man died who had surely never committed treason: Sir Thomas More. When More refused to swear the oath of succession, and resolved never to 'dispute kings' titles nor popes' titles', he had found, in silence, the perfect defence, for the Treason Act could only punish express denial. To die on the scaffold, if by silence he could avoid it, would be suicide: this was what More meant when he called the act a 'two-edged sword' by which a man put either his body or soul in peril. More kept silent, while no one, especially the King, doubted that More's silence marked his utter disavowal of the King's proceedings. Yet in the Tower, in conversation with Sir Richard Rich, the Solicitor-General, on 12 June 1535, More in lawyerly 'putting of cases' breached his silence upon the Supremacy. So Rich alleged, and it was upon Rich's evidence, which More insisted was perjured, that More was convicted at his trial. On 6 July, the eve of his own saint, Doubting Thomas, More went to the block. The King had desired his death, but the proper legal forms were observed.