Note (back) — Chapter XVI

The devotion paid to the State in Tudor times inevitably made expediency, and not justice or morality, the supreme test of public acts. The dictates of expediency were, indeed, clothed in legal forms, but laws are primarily intended to secure neither justice nor morality, but the interests of the State; and the highest penalty known to the law is inflicted for high treason, a legal and political crime which does not necessarily involve any breach whatever of the code of morals. Traitors are not executed because they are immoral, but because they are dangerous. Never did a more innocent head fall on the scaffold than that of Lady Jane Grey; never was an execution more fully justified by the law. The contrast was almost as flagrant in many a State trial in the reign of Henry VIII.; no king was so careful of law,[1175] but he was not so careful of justice. Therein lay his safety, for the law takes no cognisance of injustice, unless the injustice is also a breach of the law, and Henry rarely, if ever, broke the law. Not only did he keep the law, but he contrived that the nation should always proclaim the legality of his conduct. Acts of attainder, his favourite weapon, are erroneously supposed to have been the method to which he resorted for removing opponents whose conviction he could not obtain by a legal trial. But acts of attainder were, as a rule, supplements to, not substitutes for, trials by jury;[1176] many were passed against the dead, whose goods had already been forfeited to the King as the result of judicial verdicts. Moreover, convictions were always easier to obtain from juries than acts of attainder from Parliament. It was simplicity itself to pack a jury of twelve, and even a jury of peers; but it was a much more serious matter to pack both Houses of Parliament. What then was the meaning and use of acts of attainder? They were acts of indemnity for the King. People might cavil at the verdict of juries; for they were only the decisions of a handful of men; but who should impugn the voice of the whole body politic expressed in its most solemn, complete and legal form? There is no way, said Francis to Henry in 1532, so safe as by Parliament,[1177] and one of Henry's invariable methods was to make the whole nation, so far as he could, his accomplice. For pardons and acts of grace the King was ready to assume the responsibility; but the nation itself must answer for rigorous deeds. And acts of attainder were neither more nor less than deliberate pronouncements, on the part of the people, that it was expedient that one man should die rather than that the whole nation should perish or run any risk of danger.