by Haynes, Alan
The king went no further than a retreat from the idea of a state trial for treason, which was hardly likely to please her ladyship, even if her husband thus escaped her brother’s fate. When Montagu, Mordaunt and Stourton had been dealt with, the government could not leave the earl in a judicial limbo, and hence on 26 June he was tried in star chamber for three complaints that seem to have been admitted. There was a charge of seeking to lead English Catholics and secure toleration for them. Another of having written letters during his detention that were disrespectful of the king’s service. And perhaps the most serious charge of all was that Thomas Percy had been permitted to join the select company of the king’s gentlemen pensioners without taking the oath of supremacy – neither the earl nor his deputy had tendered the oath. As Coke described matters he no doubt induced a shiver – Thomas Percy had been daily in the king’s presence with a halberd in his hand ‘a thing most dangerous for such a person’. This was Coke’s last effort as attorney-general and the public humiliation of a great man made fine sport for the spectators. There was intense public interest again, although the size of the star chamber did not allow all to enter who sought admission.
Coke was saturated in the details of the government case and so thoroughly rehearsed in these trials that there can have been no doubt that Northumberland would be found guilty. He had for some time been a figure at court whose presence created a certain unease by his inclination to sarcasm and his open sneers at the Scots who had come south with James. The earl had a haughty unyieldingness that caused offence and in the special circumstances of a trial all the advantage lay with the monarch. There was even the problem for Northumberland of his deafness and stutter, which under pressure may have become exaggerated and so veiled what he needed to say clearly. The judges reached a consensus on the appropriate punishment after Dorothy Percy’s uncle, Lord Knollys, had suggested the sum of £20,000 as a fine. This was upped to £30,000 – the largest ever demanded of an Englishman to that date – and the earl lost his place on the privy council, his office as captain of the gentlemen pensioners and was imprisoned at the king’s pleasure.3 Zorzi Giustinian took the view of many that the earl fully deserved the judgment. ‘The proofs of his complicity in the plot are overwhelming, and he was saved’, wrote the ambassador to the Doge on 12 July, ‘only by the grace of the king.’4 It was all a great shock to the earl who had expected to be acquitted ‘but when he saw the case going against him he became so alarmed that he returned unsatisfactory answers, and such as were not expected from a man of his prudence and intelligence.’ It was also a terrible and humiliating blow to Lady Percy, whose spirited lobbying gained her a fearsome reputation. Even the notably patient Salisbury could flinch with irritation at being constantly challenged by her ‘sour dealing’.
The earl was evidently taken aback at the trial by the Crown’s delineation of Thomas Percy’s actions, which he now heard fully outlined for the first time. Many other people in the Catholic community also found the whole matter of the plot, its public exposure and subsequent trials profoundly unsettling. The notoriety of it was such that every aspect was treated with the utmost seriousness, testing administrative networks and procedures almost to their limits. What was so disturbing for the government was that there was not just one locus for the threat as there had been with the Essex revolt, nor just one quite clear cluster of dissidents. They were continually finding second and third tiers of accomplices and friendly aides who feared for their own safety, and yet risked all to shelter fugitives. When Robert Winter and Stephen Littleton were at last taken as they prepared to flee abroad, they emerged from the hitherto safe house of Littleton’s cousin in Hagley (Worcestershire) where they had mingled freely with his large household of at least ten tenants. So not only were the two wanted men imprisoned but Humphrey Littleton and three other Hagley citizens were imprisoned as well. Only the former was spared while he prepared a written deposition detailing a Jesuit underground network and accusing five more people. There were local trials all over the West Midlands: Henry Morgan and Stephen Littleton were executed at Stafford; John Winter died at Red Hill near Worcester, with Humphrey Littleton (Perkes and his man Barford were executed at the same time).
Revulsion and angry disillusionment, reinforced by the details published with government authority after the trials, led not a few to spurn the church that had recently won them. Having adopted Catholicism ‘by trust of a priest’ the playwright Ben Jonson now sought pardon for his recusancy from the Bishop of London on 20 April 1606. In the time of distress some felt the tempest threatening to blow them off their feet and into prison, and it is possible to consider in some detail one example that must stand for many. Sir Henry James (knighted in 1603 since recusancy had never prevented it), completed the civic and church formalities for submission and conformity with a remarkable alacrity. It took ten days – 24 May to 6 June – to carry out all the complicated requirements. To obtain the official ecclesiastical recognition of his conformity, his case was heard in the consistory court of the Bishop of London on 31 May, probably at Old St Paul’s. His offence was that over the previous three months he had refused to attend the services in St Sepulcre, his parish church, or any substitute. Sir Henry made his declaration to the court that he had been a recusant, but had changed his mind and now sought to be absolved from his excommunication. Two witnesses for him signed a certificate attesting to his conformity a week before when on Saturday and Sunday he had gone to Westminster Abbey and St Paul’s for a high-profile reconciliation. To the presiding official he presented a letter of support from the curate of St Sepulcre’s who attested ‘that he found him a gentleman very willing to join with the Church of England in holy service to God and to be hereafter obediently comfortable to the laws of God and his prince.’ James promised his future obedience under oath and having done so was promptly absolved and restored to the communion of the English church. Still, evidence of his attendance at a service in St Sepulcre’s was required and he went the following day having alerted the incumbent of his intention so that he could obtain from him a signed certificate of attendance.
This item was handed to the church court by midday, but the business was not yet completed. There followed an interview with the bishop who had to give Sir Henry the signed and sealed certificate of conformity required for discharge at the exchequer. This was handed over on Sunday afternoon, probably at the bishop’s town house in St Paul’s churchyard. Sir Henry was now ready to face the exchequer and he took Monday to gather himself before his presentation on Tuesday 3 June to the revenue court at Westminster Hall. There he asked for a discharge of his modest outstanding debt of £100 and the ending of all penalties for recusancy which he had now abjured. The certificate of the bishop was read out and Sir Henry ended his petition with the claim that by virtue of Statute 28 Elizabeth, c. 1, his proven conformity entitled him to a full discharge. His plea was then supported by Coke himself, who must have savoured such an event as the ripe consequence of his own work against the confessional dissidents. The barons of the exchequer accepted these submissions and gave Sir Henry his discharge after a hectic few days. The authorities were satisfied, but in an ironic reversal Sir Henry found his family very much more unwilling to accept such a change. His wife, Lady Dorcas, offered most spirited opposition despite his hectoring and bluster, a situation that only grew worse when their children sided with her. As a ‘battered’ wife she quit the family home in Kent and looked for refuge with her Protestant elder sister, Lady Alice Carew, who could not approve of Catholicism, but responding to unhappiness offered protection and money. Lady Dorcas fretted about the children, especially her youngest daughters, Martha, Aurea and Catherine, whom their father placed as boarders with a London schoolmistress before they shifted again to be united with their mother. Happily the family rift did mend by November 1607, and then began the gradual decay of Sir Henry’s new found Protestantism. By 1611, when he and Lady Dorcas were living in the family town house in Turnmill Street they were b
oth charged and convicted of recusancy. A case where the family that prayed together, stayed together.5
The maladroitness of the gunpowder plotters, their discovery and the trials naturally disposed Parliament to an even more unyielding implementation of anti-Catholic policy. Early in 1606 new laws regarding priests and their followers were considered and James himself told the departing Nicolò Molin: ‘I shall, most certainly, be obliged to stain my hands with their blood, though sorely against my will.’ Yet Salisbury noted that his own colleagues in the House of Lords, as well as the king, wanted a more merciful policy than the House of Commons. When Parliament rose for the summer in June 1606, the new penal code had become law. Two Acts against recusants sharpened the old legislation and added new provisions, so the nigh-on manic desire of Sir Henry James to ditch his old allegiance becomes understandable. The justification of the government for this tightening on recusancy coincided with the moment when Venice was excommunicated by the papacy, a move that reinforced the view in London that civil obedience and loyalty to Rome were incompatible. One of the leading figures in Venetian political and religious life was Father Paolo Sarpi, soon to be Theological Counsellor to the Serene Republic, a man of influence, with Protestant contacts all over Europe. One of the Englishmen with whom he had had many exchanges was Sir Edwin Sandys whom he helped with the writing of Europae Speculum, a ‘temperate but penetrating analysis of the influence of the Church of Rome in Europe’. It was Sandys and Sir Charles Perkins who moved a Cecilian amendment in Parliament to prevent the archdukes from recruiting to their armies, although the Somerset House treaty (1604) allowed them to do this. Salisbury could stifle recruitment in England but as he knew very well from his sources Ireland was a different matter. The unruliness of the Irish was a source of real concern to London, as was their continued recruitment by the archdukes. Sir Arthur Chichester, viceroy of Ireland, noted the increasing numbers of ‘loose men of this nation’ flocking to the Spanish Netherlands. In June 1606 the Irish regiment under Colonel Henry O’Neill (son of the Earl of Tyrone) was already reported to be between 1,000 and 1,200, and by the time of the second anniversary of the gunpowder plot, Edmondes put the figure at between 1,600 and 1,700 men. He was also irked by the strength of clerical influence within both the Irish and English infantries of the archdukes, and it seems to have been enough to trigger the block on recruiting. The ambassador noted with dismay that promotion and good commands within these regiments largely depended on being obsequious to Father Baldwin, Hugh Owen and others of their clique, that is to say Jesuits and priests, the very sort of men the two Acts of Parliament against recusancy held responsible for the instigation and encouragement of the gunpowder plot.
An Act for the better discovery and repressing of Popish Recusants (3 Jac. I, cc. 4 and 5, Statutes of the Realm IV, 1071–82), reiterated the old regime of Elizabethan fines and restrictions and introduced a sacramental test and a new oath known as the Oath of Allegiance.6 According to James it was ‘ordained for making difference between the civilly obedient Papists and the perverse disciples of the Powder Treason’. In the matter of fines a convicted recusant who had conformed for a year had to take communion annually or be liable (£60 for a refusal). In a sense this was a device to see if someone like Sir Henry James was actually a conforming crypto-papist, but there was another tougher provision, a fine of £10 per month was to be exacted from all persons keeping servants who absented themselves from church. The statute forbidding recusants to go more than five miles from their homes was confirmed and they were now prohibited from practising at the Bar, acting as attorneys or physicians, ‘from executing trusts committed to them as executors of a will or acting as guardians of minors’ (often a lucrative enterprise for the unscrupulous). Of central interest to James was the oath of allegiance, which required clusters of citizens like recusants, non-communicants and transients to acknowledge him as their lawful sovereign, and to deny that the Pope had any power to depose him, authorize invasions by foreign princes of his dominions, or free his subjects from their allegiance. The theory of the Divine Right of Kings so passionately upheld by James was a very important item in the struggle for national rights against the papacy, and these new statutes were props for this over-arching notion. The struggle for freedom from papal interference was still going on across Europe, and the Roman controversialists who had given up their hopes of converting James still disputed his claim to the throne. Father Persons, as it has been shown, was just such a papalist.
The oath was to be taken without equivocation or mental reservation, and no one, not even the Pope, had any power to grant absolution from it. If a recusant refused to take the oath when it was tendered to him by a bishop or two justices of the peace, he/she was to be gaoled and held there without bail until the next court session. Refusal to take the oath then incurred the penalty of praemunire: deprivation of all civil rights; loss of all property, and perpetual imprisonment.* That those who were punished for refusing to submit to these laws could not in James’s opinion be considered as suffering ‘for conscience in matter of religion’ was made clear a decade later in his speech to the judges in star chamber. There was the usual gratuitous protest that he was loath to hang a priest only for religion’s sake and saying mass; ‘but if he refuse the oath of allegiance which (let the Pope and all the devils in Hell say what they will) . . . is merely civil, those that so refuse the oath and are polypragmatic recusants I leave them to the law; it is no persecution but good justice.’ As James had said, the point of the legislation was to make a distinction between Catholics with quiet dispositions who were good subjects, and those who thought (and might even act) along the lines of the plotters. The oath formula, approved by Parliament and with royal sanction was positioned within a framework of over seventy articles. It was designed to achieve multiple objectives and evidently one aim was the application of a veneer of legality to the plundering of private Catholic wealth. How much still there was of that has already been outlined in various individual cases.
To go after such wealth was not simply greedy opportunism – although it was also that. The parlous state of royal finances was always a profound concern to James’s ministers. Whatever his protestations they were too often at variance with his actions for a buoyant reserve. James was both unwilling and unable to check his liberality – kingship required an open purse, and in the first four years of his reign he distributed £68,000 in gifts, £30,000 in pensions, and debts to the Crown of £174,000 had been pardoned. Between 1603 and 1612 James also managed to spend £185,000 on jewels.7 Not surprising then that all monetary sources had to be squeezed and that Catholics figured prominently on the list. Among those who suffered were Anne Vaux and her nephew, Lord Vaux. She was ‘called to the sessions at Newgate and there for refusing that oath, was condemned in a praemunire, to lose all her goods and lands during her life, and to perpetual imprisonment.’ In March 1612, John Chamberlain wrote to Carleton that Lord Vaux was lately committed to the Fleet by the privy council for following her example. What happened was that in May he was condemned and imprisoned in King’s Bench and only the entreaties of influential friends brought a diminution of his punishment, so that by October he had been pardoned of the praemunire and delivered to the custody of the Dean of Westminster ‘to see what good may be done with him’. Efforts to influence Lord Vaux did not in fact succeed until February 1626. Long before that it was Salisbury who deliberately yoked the need of the state for money to the danger of the Church from the recusants. He took an active part in pushing through the oath legislation and was probably not above mild massaging of threats to his own person for political ends. The result was a fiscal triumph because in a unique sign of loyalty in time of peace Parliament granted James three subsidies and six fifteenths.
* A papal nuncio to Spain in the 1580s had called praemunire ‘bestial’. It was among laws in England ‘most prejudicial to the apostolic authority’ and he longed to see it abolished, ‘when by God’s grace we get the upper hand.’
ELEVEN
‘Sharp Additions’
The Oath of Allegiance was very cannily drafted and at least one historian who probed its recesses thought it ‘a masterpiece of political wizardry’.1 The ingenuity of its phrasing suggests collaboration between the king, the earls of Salisbury and Northampton and Archbishop Bancroft. The Secretary of State had by that time achieved a rare regard (popularity would be too strong a word) among the public that was manifested in the great concourse of people who attended him as he made his way to be installed as a Knight of the Garter. Sir Henry Neville attributed this swell to Salisbury’s ‘constant dealings in matters of religion . . .’ and since admission to the oldest and most prestigious chivalric order was within the monarch’s gift, it is certain that James was now well pleased with his chief minister. On advice (Perkins may have helped with the wording) Salisbury and those about him had devised an oath wherein ‘the supremacy of the king would be practically acknowledged and the connection of the English Catholics with the Papacy dissolved’. It will be remembered that the popes in the Middle Ages had been granted by common consent a certain authority over civil rulers and that under special conditions this included the right of deposition.2 With only a few exceptions theologians of the early seventeenth century recognized the legitimacy of these rights. Even so, there was no unanimity on their origin and limits or the advisability of using them. The Appellants’ ‘Protestation of Allegiance’ (1603) had been condemned by the theological faculty of Louvain precisely because it expressed a denial of the indirect powers of the Pope in temporal matters. No Catholic could deny a doctrine so widely taught; to swear the oath would be to go way beyond this.
