Cromwell’s statesmanship is less obvious in his handling of foreign policy than in his dealings with Parliament, where he was responsible for a genuine revolution. As we have seen, he first sat in the House of Commons in 1523, and his ironic comment on the proceedings there led many generations of historians to believe that he held that institution in contempt. However this was no pompous or weighty judgement, but a humorous observation born of a practical man’s exasperation with the long-windedness of his colleagues, and perhaps of frustration that the potentialities of Parliament were so little realised in that somewhat abortive session.36 In 1529, at the crisis of his career, he deliberately chose to enter the House again, not with the intention of evading his enemies, but with a view to relaunching himself in public life. As he told George Cavendish later, ‘he once adventured to put in his foot where he trusted shortly to be better regarded before all was done’.37 As well as talking out the Bill of Attainder against Wolsey, he threw himself into the committee work of the House, and soon attracted a disproportionate share, because of the reluctance of other members to serve. By 1531, when he was in the royal service but not yet conspicuous, reports of his activity were spreading far and wide. Lists of things to be done dating from this time and corrected drafts of Bills survive among his papers. Entries in the Lords Journals show him bearing Bills from the Lower House on numerous occasions, indicative of his active involvement with the relevant committee, and observations in the letters of his contemporaries confirm the same impression. It would be an exaggeration to claim that this was evidence of statesmanship, but it does show him to have been an active and well thought of parliamentary politician.38 Above all he had grasped the fact that Parliament was the highest source of law in the land. The common law was customary in origin, and derived its authority from ancient prescription. For centuries the only method of amending or adding to the law had been by judicial interpretation, but by 1485 it had been accepted that Parliament, as the representative institution of the realm, also had that right. Statute, therefore, which represented the consent of the king, Lords and Commons, was a true vehicle of legislation. The Acts of Provisors and Praemunire had established the fact that its power extended to those border lands between ecclesiastical and secular jurisdiction which were in dispute between the two, and that ecclesiastical property fell within the remit of the king’s laws.39 Statute was also the only method of approving royal taxation because it was an ancient maxim quod omnes tetigit, ad omnibus approbetur (that which touches all must be approved by all), and the commons were the principal taxpayers. It was generally accepted, however, that statute could not touch the spirituality, nor legislate on matters of the faith, such as the authority of the papacy. It was that boundary which Cromwell, using the undefined legislative power of Parliament, planned to cross, and did so with the Act in Restraint of Appeals.
However, it was not only the Church which felt his enthusiasm for legislation. Henry convened eight sessions in as many years while Cromwell was his chief minister, and those sessions saw the passage of 333 Acts, of which about 200 bear the unmistakable marks of his influence. This compares with 200 acts, of which 148 can be deemed public, during the twenty-two years of Henry VII’s reign, and 444 during the forty-five years of Elizabeth.40 There is no doubt that Cromwell preferred statute to any other form of lawmaking, basing royal proclamations on statute whenever possible. In 1535 for example, when Parliament was not sitting, he had an urgent need to prohibit the export of coin, and consulted the judges, who dug out an Act of the reign of Richard II which served his purpose. In spite of a judicial opinion to the effect that proclamations were ‘of as good effect as any law made by Parliament’, Cromwell was not reassured.41 He enacted the new ordinances for Calais in 1535 and in 1539 caused the famous Act of Proclamations to be passed. In spite of superficial appearances, this Act was not intended to give proclamations the force of law, but only to improve their implementation, stating that the king and his council ‘may set forth at all times by authority of this act his proclamations’. It was a general empowering Act, and as such subject to repeal, a fate which befell it in 1547.42 Neither the passing of the Act nor its repeal had any noticeable effect upon the use of proclamations as executive instruments, which reached a peak under the minority government of Edward VI as conducted by Protector Somerset (1547–49). That Cromwell did not trust the interpretative power of the judges is evident from his care to include treason by words in the Act of 1534, because constructive treasons had been drawn out of the Act of 1352 in the course of the fifteenth century.43 This statute also provided legal safeguards for the king’s unprecedented position as head of the Church, declaring that
if any person or persons … do maliciously wish, will or desire by words or writing, or by craft imagine, invent, practise or attempt any bodily harm to be done to or committed to the king’s most royal person, the queen’s or their heirs apparent, or to deprive them or any of them of the dignity, title or name of their royal estate, or slanderously and maliciously publish and pronounce by express writing or words, that the king our sovereign lord should be heretic, schismatic, tyrant, infidel or usurper of the crown…
that then such person or persons ‘being lawfully convicted’ were guilty of high treason.44 That this form of words was Cromwell’s work can be demonstrated from the drafts surviving among his papers, but he did not invent the concept of treason by words, which had been applied by the judges, and indeed by Henry VII’s council.
He could perfectly well have derived this opinion from his own observations as a practising lawyer, but there is evidence of a more intellectual or philosophical approach, because he was closely associated with Thomas Starkey and William Marshall. When Starkey published his Exhortation to the People in 1535, he went out of his way to stress the English via media between the two extremes of popery and Protestantism, a position for which he was much criticised, but not by his patron. Cromwell had insisted on this line being taken before the author set pen to paper, and found it eventually insufficiently stressed. Starkey apologised to him because ‘this mean is not put out at large which you require’, which demonstrates that he was writing to a brief, and that the secretary, far from being the revolutionary radical of popular legend, was rather the originator of the Anglican middle way.45 Whether this represented his own opinion, or was a compromise forced on him by the king’s persistent conservatism, remains an open question but it was a position which he adopted with apparent enthusiasm. Starkey derived some of his ideas from Marsilius of Padua, that fourteenth-century opponent of papal pretensions whose constitutionalist propaganda suited Cromwell’s agenda admirably. So much so that he commissioned William Marshall to produce a translation of the Defensor Pacis, which was Marsilius’s main work.46 Not only did he provide Marshall with the money necessary for him to undertake the work, he also urged Starkey to try the Italian’s ideas out on Reginald Pole, which he did without the slightest success. In his response Pole did not mention Marsilius, but he did quote Cromwell to the effect that it was monstrous that one kingdom should have two heads, which was an idea derived from the Defensor, so the message was getting through – only to be rejected. Marsilius was also an Aristotelian, and it is possible that some of the secretary’s enthusiasm for the Greek sage originated from that source. There are also other indications that Cromwell’s thought was influenced by the Italian, because Marsilius held that the state is autonomous and the church subject to it, which was the foundation doctrine of the Royal Supremacy, and an indication that he had read Defensor Pacis long before 1535.47 Marsilius also maintained that the essential characteristic of the sovereign state was its ability to legislate, a function which he attributed to the legislator humanus, which Marshall’s translation rendered as Parliament. He maintained that only the positive law was relevant to human affairs, an idea which Cromwell was swift to endorse from his practical experience, and which has been interpreted as due to the influence of Machiavelli. However, it seems more likely that the aut
hor of The Prince took it from his fourteenth-century predecessor. Whichever way we look at it, it seems that Cromwell as a theorist depended heavily on Marsilius of Padua.48
There were, however, problems with the Defensor Pacis, which had been based on observations of the Italian city states of his day, and which could not simply be transferred to Tudor England. In the course of translation Marshall made various amendments, which mar the accuracy of his transcript, but which were required by his patron for obvious reasons. Marsilius’s preference had been for an elected head of state, but that would never do in a hereditary monarchy, and the necessary adjustment had to be made. He omitted altogether the references to the community as a whole correcting and controlling the ruler and glossed the legislator humanus to mean Parliament, whose consent was necessary for the making of new law, although it might not have originated it. ‘In all this long tale,’ he noted at one point, ‘he speaketh not of the rascal multitude but of the parliament’,49 and he introduced the word into the text in a manner highly reprehensible in a translator, but significant for the purposes of Cromwell’s propaganda. What he did not do, however was to remove the element of consent to legislation, or seek to transfer the rights of the legislator to the single person of the prince. The right to make law therefore continued to be vested in the community as a whole and no attempt was made to doctor Marsilius’s teaching in the interest of any absolutist theory, which is a fair indication that Cromwell did not subscribe to any such view.50 Apart from Marshall’s translation, the best clue to his political thinking lies in the preambles to his Acts, and particularly the Act in Restraint of Appeals, which emphasises, not the power of Parliament to make the king Supreme Head of the Church, but the fact that he always had been such by virtue of ‘divers sundry old authentic histories and chronicles’. England was an empire ‘governed by one supreme head and king’ whose authority both the spirituality and the temporality recognised under God.51 The idea that the king was an emperor because he had no superior on earth was not new; it had been voiced as early as the thirteenth century by the canonist Alan. What was new was the application of that idea to a country, the creation in effect of a national sovereign state. This had first appeared in Cromwell’s corrections to a draft of the Supplication against the Ordinaries in 1529, although not used in the eventual document, and the idea that all kings were emperors within their own dominions had been developed in the fourteenth century against the claims of the Holy Roman Emperor.52 However, apart from Marsilius, no one had used it to justify a denial of the papal authority, and in no public instrument had it been used so bluntly and so fully as in the Act in Restraint of Appeals. That was the extent of Cromwell’s originality, and the sovereignty of his state lay in the High Court of Parliament, not in the king. As he put it in the Act of Dispensations of 1534,
In all and every such laws human made within this realm … your royal majesty and your lords spiritual and temporal and commons representing the whole state of your realm in this your most high Court of Parliament, have full power and authority … the said laws … to abrogate, annul, amplify or diminish…53
In terms of political philosophy this is a statement of limited or constitutional monarchy, and was so seen and accepted by the king. It was also a statement of the division between the legislature and the executive, because in the exercise of the latter the king’s will remained supreme, which is why Cromwell’s papers are so full of memoranda ‘to know the king’s pleasure’ about everything from decisions in foreign policy to the exercise of patronage.54
It was the responsibility of the executive to enforce the laws, and in this respect the secretary acted very much as his master’s agent, but there too he showed originality and imagination. Like Wolsey he devoted much time and energy to making the king’s laws more effective, but whereas the cardinal had relied on councils to achieve that end, Cromwell preferred to change structures. The problem created by the Marches of Wales was a long-standing one because in earlier centuries the monarchy had sought to guard against the wild Welsh by creating a series of semi-autonomous lordships wherein the enforcement of the king’s laws was delegated to the franchise holder.55 The king’s writ did not run, and the law in use was a mixture of the English common law and Welsh custom. Edward IV had created a Council in the Marches for the purpose of governing the lands of the Crown and the Prince of Wales, and supervising the administration of the other lordships, but it had not really worked in respect of the franchises. There were liberties in other parts of England, notably the Duchy of Lancaster and the bishopric of Durham, but the main problem was in Wales. Although they had been originally created by the Crown, by the reign of Henry VII these liberties were perceived as being held by prescriptive right (‘time out of mind’) and there was no obvious way of getting rid of them. Occasionally one escheated to the Crown, or came by other means. The Earldom of March came with the accession of Edward IV, and the Duchy of Lancaster with that of Henry IV, but in both cases the structure of franchisal administration was left untouched.56 Some of these liberties carried only partial immunities, like the bishopric of Ely, or were granted by royal charter, like the City of London. In these latter cases, the charters could be revoked, in which case the rights of self-government would disappear. This was often threatened and occasionally carried out when a corporate town had caused sufficient offence. Altogether it was a messy, decentralised system, and offended Cromwell’s tidy administrative mind as well as obstructing the smooth enforcement of the king’s laws. He resolved to bring it to an end, using the enhanced powers of Parliament for that purpose.
There was a precedent because the liberty of Tynedale had been merged into the county of Northumberland by statute in 1495, but nothing on the scale of the Franchises Act of 1536 had ever been attempted before. Starting with the straightforward explanation that the ‘ancient prerogatives and authorities of justice appertaining to the imperial crown of this realm have been severed and taken from the same by sundry gifts of the king’s most noble progenitors’ it then proceeded by the authority of Parliament to redress the same.57 The right to pardon treasons and felonies in any part of the realm, ‘Wales or the marches of the same’, was reserved to the king and his successors; and the creation of Justices of the Peace and of Gaol Delivery was only to be made by royal commission under the Privy Seal. All writs were to run in the king’s name only, and the remaining privileges of the franchise holders were withdrawn, effectively abolishing the franchises. The Bishop of Durham and the Archbishop of York were compensated by being created ex officio Justices of the Peace, the first in respect of the county palatine and the latter of the liberty of Hexham.58 At the same time, although not by the same Act, Wales was reorganised, the old Marcher lordships being converted into the counties of Denbigh, Montgomery, Radnor, Brecknock and Monmouth. The old counties of the principality and the South West were also granted commissions of the peace and parliamentary representation on the same line as the English shires. The English common law was to run uniformly throughout Wales. Although this meant relegating the Welsh law to the commote courts, and effectively putting the bards out of business, these changes were on the whole, as we have seen, welcomed by the Welsh gentry.59 Above all, they finally put the Welsh on the same level as their English counterparts and removed the stigma which went back to the Glyndŵr revolt in the early fifteenth century.
At the same time, in the aftermath of the Pilgrimage of Grace, Cromwell reconstructed the Council of the North. Its remit was changed and it was made more directly dependent upon the king’s council in London. In this his task was eased by the death of the royal lieutenant, the Duke of Richmond, in July 1536, and the withdrawal of the Duke of Norfolk after the completion of his task in the following year. As a result of these moves, England was more centralised by 1540 than it had ever been, and this was not only conducive to the king’s honour, it represented Cromwell’s vision of the state. It also completed the House of Commons, adding twenty-nine seats from Wales, two from Chester,
following the abolition of the liberty, and two from Calais.60 Only county Durham remained unrepresented until the following century, except by its bishop in the House of Lords. Parliament’s own authority was additionally augmented by the Franchises Act, which extended its jurisdiction into an area hitherto occupied only by the king’s prerogative, a move of which Henry obviously approved.
Thomas Cromwell: Servant to Henry VIII Page 23
