The History of England Volume III. David Hume
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sensible that they owed every thing to his protection, were willing to support his power, though at the expence of justice and national privileges. These seem the chief causes which at this time bestowed on the crown so considerable an addition of prerogative, and rendered the present reign a kind of epoch in the English constitution.
His laws.
This prince, though he exalted his prerogative above law, is celebrated by his historian for many good laws, which he made be enacted for the government of his subjects. Several considerable regulations, indeed, are found among the statutes of this reign, both with regard to the police of the kingdom, and its commerce: But the former are generally contrived with much better judgment than the latter. The more simple ideas of order and equity are sufficient to guide a legistator in every thing that regards the internal administration of justice: But the principles of commerce are much more complicated, and require long experience and deep reflection to be well understood in any state. The real consequence of a law or practice is there often contrary to first appearances. No wonder, that, during the reign of Henry VII. these matters were frequently mistaken; and it may safely be affirmed, that even in the age of lord Bacon, very imperfect and erroneous ideas were formed on that subject.
Early in Henry’s reign, the authority of the Star Chamber, which was before founded on common law, and ancient practice, was in some cases confirmed by act of parliament:NOTE [B] Lord Bacon extols the utility of this court; but men began, even during the age of that historian, to feel that so arbitrary a jurisdiction was incompatible with liberty; and in proportion as the spirit of independance still rose higher in the nation, the aversion to it encreased, till it was entirely abolished by act of parliament in the reign of Charles I. a little before the commencement of the civil wars.
Laws were passed in this reign, ordaining the king’s suit for murder to be carried on within a year and day.a Formerly, it did not usually commence till after; and as the friends of the person murdered, often, in the interval, compounded matters with the criminal, the crime frequently passed unpunished. Suits were given to the poor in forma pauperis, as it is called: That is, without paying dues for the writs, or any fees to the council:b A good law at all times, especially in that age, when the people laboured under the oppression of the great; but a law difficult to be carried into execution. A law was made against carrying off any woman by force.c The benefit of clergy was abridged;d and the criminal, on the first offence, was ordered to be burned in the hand with a letter denoting his crime; after which he was punished capitally for any new offence. Sheriffs were no longer allowed to fine any person, without previously summoning him before their court.e It is strange, that such a practice should ever have prevailed. Attaint of juries was granted in cases which exceeded forty pounds value.f A law which has an appearance of equity, but which was afterwards found inconvenient. Actions popular were not allowed to be eluded by fraud or covin. If any servant of the king’s conspired against the life of the steward, treasurer, or comptroller of the king’s household, this design, though not followed by any overt act, was made liable to the punishment of felony.g This statute was enacted for the security of archbishop Morton, who found himself exposed to the enmity of great numbers.
There scarcely passed any session during this reign without some statute against engaging retainers, and giving them badges or liveries;h a practice, by which they were, in a manner, inlisted under some great lord, and were kept in readiness to assist him in all wars, insurrections, riots, violences, and even in bearing evidence for him in courts of justice.i This disorder, which had prevailed during many reigns, when the law could give little protection to the subject, was then deeply rooted in England; and it required all the vigilance and rigour of Henry to extirpate it. There is a story of his severity against this abuse; and it seems to merit praise, though it is commonly cited as an instance of his avarice and rapacity. The earl of Oxford, his favourite general, in whom he always placed great and deserved confidence, having splendidly entertained him at his castle of Heningham, was desirous of making a parade of his magnificence at the departure of his royal guest; and ordered all his retainers, with their liveries and badges, to be drawn up in two lines, that their appearance might be the more gallant and splendid. “My lord,” said the king, “I have heard much of your hospitality; but the truth far exceeds the report. These handsome gentlemen and yeomen, whom I see on both sides of me, are, no doubt, your menial servants. The earl smiled, and confessed that his fortune was too narrow for such magnificence. “They are most of them,” subjoined he, “my retainers, who are come to do me service at this time, when they know I am honoured with your majesty’s presence.” The king started a little, and said, “By my faith, my lord, I thank you for your good cheer, but I must not allow my laws to be broken in my sight. My attorney must speak with you.” Oxford is said to have payed no less than fifteen thousand marks, as a composition for his offence.
The encrease of the arts, more effectually than all the severities of law, put an end to this pernicious practice. The nobility, instead of vying with each other, in the number and boldness of their retainers, acquired by degrees a more civilized species of emulation, and endeavoured to excel in the splendour and elegance of their equipage, houses, and tables. The common people, no longer maintained in vicious idleness by their superiors, were obliged to learn some calling or industry, and became useful both to themselves and to others. And it must be acknowledged, in spite of those who declaim so violently against refinement in the arts, or what they are pleased to call luxury, that, as much as an industrious tradesman is both a better man and a better citizen than one of those idle retainers, who formerly depended on the great families; so much is the life of a modern nobleman more laudable than that of an ancient baron.NOTE [C]
But the most important law in its consequences, which was enacted during the reign of Henry, was that by which the nobility and gentry acquired a power of breaking the ancient entails, and of alienating their estates.l By means of this law, joined to the beginning luxury and refinements of the age, the great fortunes of the barons were gradually dissipated, and the property of the commons encreased in England. It is probable, that Henry foresaw and intended this consequence, because the constant scheme of his policy consisted in depressing the great, and exalting churchmen, lawyers, and men of new families, who were more dependant on him.
This king’s love of money naturally led him to encourage commerce, which encreased his customs; but, if we may judge by most of the laws enacted during his reign, trade and industry were rather hurt than promoted by the care and attention given to them. Severe laws were made against taking interest for money, which was then denominated usury.m Even the profits of exchange were prohibited, as favouring of usury,n which the superstition of the age zealously proscribed. All evasive contracts, by which profits could be made from the loan of money, were also carefully guarded against.o It is needless to observe how unreasonable and iniquitous these laws, how impossible to be executed, and how hurtful to trade, if they could take place. We may observe, however, to the praise of this king, that sometimes, in order to promote commerce, he lent to merchants sums of money, without interest; when he knew, that their stock was not sufficient for those enterprizes, which they had in view. p
Laws were made against the exportation of money, plate, or bullion:q A precaution, which serves to no other purpose than to make more be exported. But so far was the anxiety on this head carried, that merchants alien, who imported commodities into the kingdom, were obliged to invest, in English commodities, all the money acquired by their sales, in order to prevent their conveying it away in a clandestine manner.r
It was prohibited to export horses; as if that exportation did not encourage the breed, and render them more plentiful in the kingdom.s In order to promote archery no bows were to be sold at a higher price than six shillings and four-pence,t reducing money to the denomination of our time. The only effect of this regulation must be either that the people would be supplied with bad bows or none at all. Prices were also affixed to woollen cloth,u to caps and hats:w And the wages of labourers were regulated by law.x It is evident, that these matters ought always to be left free, and be entrusted to the common course of business and commerce. To some it may appear surprising, that the price of a yard of scarlet cloth should be limited to six and twenty shillings, money of our