LJ

The journals of the House of Lords, London 1832–4

LP

Letters and papers, foreign and domestic, of the reign of Henry VIII, ed. J. S. Brewer, James Gairdner and R. H. Brodie, London 1862–1932

SR

The statutes of the realm, ed. Alexander Luders and others, London 1810–28

The statute 4 Henry VIII, c. 2 provoked in 1515 the first crisis between crown and clergy of the reign.Footnote ¹ At issue was whether this statute, enacted in 1512 and now due for renewal, contravened divine law and was therefore invalid. This raised questions concerning the independence of the English Church from the crown, the papacy and the canon and common laws.Footnote ² Accounts of this episode depend upon a single source: a report written by the common lawyer John Caryll.Footnote ³ Caryll was a credible witness: as king's serjeant, he served as royal counsel, in which capacity he was summoned to the parliament, where he attended upon the Lords.Footnote ⁴ According to his report, the controversy originated in February 1515 when the new parliament met at Westminster and the convocation of Canterbury reconvened at St Paul's Cathedral. For the opening of convocation, Abbot Kidderminster of Winchcombe delivered an inflammatory sermon at Paul's Cross, the capital's principal preaching site, next to the cathedral. The abbot's target was the statute of 1512, which – Kidderminster declared – broke God's law and infringed the Church's liberties. Those who had approved the act, the abbot reasoned, deserved the Church's censure. As the Commons contained an unusually high number of men who had sat in the previous parliament, Kidderminster's attack not surprisingly prompted members to complain to the king.Footnote ⁵ Henry viii found a clergyman willing to defend the statute: the provincial of the Franciscan order Henry Standish. In Caryll's view, Dr Standish successfully confuted Kidderminster's arguments at a meeting held at Blackfriars, the Dominican house in London. After the summer recess, leading churchmen, unwilling to accept Standish's trouncing of their position, summoned the friar before convocation to answer articles based on his arguments.Footnote ⁶ Standish appealed to the king, who convened a second disputation at Blackfriars. There the common lawyers accused those who had cited Standish of challenging royal authority. The controversy climaxed in December at Baynard's Castle, where the king, brushing aside the archbishops' protests, asserted his imperial authority over all his subjects, whereupon parliament and convocation were dissolved.

This episode features in most accounts of Church–State relations before the break with Rome.Footnote ⁷ By examining the statute's contents, origins and passage, this article nevertheless seeks to shed a little more light on the context of the dispute. The statute addressed the privileges of benefit of clergy and sanctuary. According to the preamble, the incidence of robbery, murder and other felonies was growing because perpetrators were confident of escaping punishment through the exploitation of these two privileges. The major part of the statute dealt with benefit of clergy.Footnote ⁸ The paradox of benefit of clergy was that the principal beneficiaries were literate laymen. Over the fourteenth and fifteenth centuries, a straightforward reading test had become the sole criterion for claiming the privilege; as a result, a growing proportion of the laity became eligible. Of sixty-eight men who passed the reading test at gaol deliveries on the Home circuit in the first eleven years of Henry viii's reign, only four were described as ‘clericus’.Footnote ⁹ Some intrinsic limits on claiming the privilege existed: women were ineligible as they could never be members of the clergy; bigamists under canon law were likewise barred.Footnote ¹⁰ The privilege could also be restricted by statute. Two petitions presented to parliament in the mid-fifteenth century had proposed limiting the number of times that the privilege could be claimed.Footnote ¹¹ The problem, the proponents had found, was that establishing a prior plea would have depended on the court's choosing to inquire into a claimant's status. A statute enacted in 1490 addressed that difficulty.Footnote ¹² This law established that a layman could only claim the privilege once. Having done so, he was to be branded on the brawn of his left thumb with the letter ‘M’ or ‘T’ (for murderer or thief). The presence of such a mark, being insufficient proof on its own of an earlier plea, was intended to prompt the court to search the records for corroboration.Footnote ¹³

Parliament also restricted the capital crimes for which benefit of clergy could be claimed. High treason appears always to have been non-clergiable, and petty treason became so in 1497; desertion from royal armies was also made ineligible.Footnote ¹⁴ The statute of 1512 expanded considerably the crimes for which benefit of clergy was not available: murder or robbery committed of malice aforethought in holy places, on the king's highway, or at a private dwelling (where householders were put in fear of their lives). The statute probably intended that the jury indictment should specify whether the nature of the offence brought it within the law's scope, and that where a case was initiated by appeal, the justices would inquire into this matter themselves.Footnote ¹⁵ Caryll claimed that as a result of the new legislation ‘many common and horrible murderers and thieves were ousted from their clergy and put in execution, to the great increase and advancement of the public weal of the whole realm, and to the great discomfort and fear of all such common murderers and thieves’.Footnote ¹⁶ As records of assize and gaol delivery proceedings have barely survived from this time, the claim has not been substantiated. Caryll only began riding on circuits as an assize commissioner in 1518, so he may partly have passed on second-hand information.Footnote ¹⁷ In any case, as a supporter of the law, his inclination would have been to exaggerate its impact.

The minor part of the statute concerned the privilege of sanctuary, also a contentious matter.Footnote ¹⁸ In particular, special sanctuaries (where refuge was permanent) were believed to provide safe-havens for criminals to continue their careers beyond the reaches of the law. The judicial bench waged a campaign of attrition whereby sanctuaries' claims came to depend on express royal permission rather than on presumed consent to papal grant or to ancient usage. The issue addressed in the statute, however, was a procedural one. On indictment, defendants could plead forcible removal from sanctuary and ask for readmittance; in some cases, the sanctuary in question was within another jurisdiction, an instance of a so-called ‘foreign plea’.Footnote ¹⁹ Serjeant Kebell had explained in 1497 that ‘by the common law a plea in a criminal action could be removed; for instance, if one were indicted in London for a man's death, the indictee could say that the man was alive in another county’.Footnote ²⁰ The foreign plea was an established common-law fiction that the profession attempted to regulate. Attorneys practising in the central courts may already have taken an oath not to sue ‘any foreign suits unlawfully to hurt any man, but such as shall stand with the order of the law and your conscience’.Footnote ²¹ A spurious foreign plea advantaged the defendant: by requiring new writs to be issued and new jurors to be summoned, it automatically delayed a case and also removed it to a potentially more favourable location.Footnote ²²

Therefore, when a plea of forcible removal from sanctuary was challenged, the issue was decided by an inquest jury of the place where the sanctuary had been claimed rather than where the offence had been committed.Footnote ²³ According to the preamble to the new statute, offenders made foreign pleas in order to remove their cases to another jurisdiction, where they hoped to secure a false verdict through the partiality, intimidation or bribery of the jury. There may have been an additional reason for defendants to plead removal from a ‘foreign’ sanctuary. Where a plea related to the same jurisdiction as the indictment, the defendant was expected to plead to the felony at the same time. Failure had serious consequences, as justices warned individuals: if an inquest jury went on to find against his or her plea of sanctuary, a defendant would be regarded as having failed to plead to the felony; having stood mute, he or she would be subjected to peine forte et dure.Footnote ²⁴ If, however, a defendant alleged that he or she had been removed from sanctuary in another jurisdiction, then he or she did not have to plead to the felony there and then.Footnote ²⁵ This rule provided further grounds for a defendant (who had possibly never taken sanctuary in the first place) to make a spurious foreign plea. The statute accordingly removed this advantage by empowering the jury that would determine the felony also to determine the plea of sanctuary, even when that plea concerned another jurisdiction.

The statutes of 1490 and 1512 therefore introduced significant reforms to the operation of the two privileges. But little is known about their origins. The texts provide no clues: the laws formulaically invoked the royal will in their enacting clauses without elaborating further.Footnote ²⁶ No contemporaneous records – such as draft bills or journals – have survived for Henry vii's third parliament that could illuminate the origins of the former law. It has been noted, however, that Polydore Vergil appears to have attributed authorship of this measure to the king himself.Footnote ²⁷ Vergil made this comment in relation to the respective fates in 1499 of the pretender Ralph Wilford and of the instigator of his deception, a friar named Patrick: the ‘discipulus’ Wilford was hanged, but as a clergyman his ‘magister’ Patrick escaped execution.Footnote ²⁸ In the Vatican manuscript of 1513, the Anglica historia then concluded the pretenders' tales with the end of the better-known Perkin Warbeck; in the printed editions of 1534 onwards, a digression on benefit of clergy intervened. Having described the branding of felons, Vergil remarked, ‘Cuius sane instituti autor fuit ipse rex Henricus in concilio’.Footnote ²⁹ As he preferred the classical word concilium to the barbarism parliamentum, Vergil meant that the practice was instituted by the then-reigning king in his parliament.Footnote ³⁰ Hence Vergil attributed this measure to Henry vii because it was enacted at his parliament. What Vergil's remark does not establish is whether the king assumed greater responsibility for this law than he did for others that passed in his name.

Yet there are general grounds for supposing that the crown sponsored the statutes of 1490 and 1512. Justice was a primary responsibility of kingship. It was, in Edmund Dudley's metaphor, the second root of the tree of commonwealth without which it could never grow: that root ‘must nedes come of our souereigne lord hym self, for the whole auctoritie therof is gyven to hym by god’.Footnote ³¹ The preamble of 1512 expressed the crown's (perhaps reflexive) belief that serious and violent crime was growing. The previous year, a royal proclamation had similarly bemoaned the long-continuing ‘decay and ruin’ of the realm ‘by means of heinous murders, felonies, robberies, riots, unlawful assemblies, and other great and inordinate offenses’.Footnote ³² The crown responded by amending aspects of the legal system that were seen to inhibit the due administration of justice. Older accounts tended to treat the reform of benefit of clergy and sanctuary as deliberate assertions of royal authority over ecclesiastical privilege and, by extension, over the Church.Footnote ³³ Thus a modern, secular sovereignty triumphed over its medieval rivals – divine law, papal decree, immemorial usage and private franchise. More recent accounts have preferred to view these reforms as pragmatic responses to defects in the judicial system.Footnote ³⁴ As a proclamation of c. 1514 explained, ‘by maintenance, corrupt ministers and unfaithful executors of the same, as also by sanctuaries misused, the righteous order of good justice is in such wise daily hindered and abused’.Footnote ³⁵ Although open to such abuse, benefit of clergy and sanctuary remained defensible means of tempering the law's severity. At the break with Rome the crown retained these privileges in modified forms, but increasingly preferred the discretionary mercy of the royal pardon to the less discriminating and barely restrained mercy that they offered.Footnote ³⁶ None the less these reforms inescapably raised points of constitutional principle as well as of legal practice, which the development of the new statute demonstrates.

New sources make it possible to trace the passage of legislation in 1512 in a way that cannot be done for 1490. The daily notes of deliberations in the Lords kept under the direction of Dr John Tayler, the clerk of parliament, have survived.Footnote ³⁷ According to these journals, benefit of clergy was debated in Henry viii's first parliament that convened on 21 January 1510. On Thursday 14 February the Lords received a bill which proposed that ‘robbing thieves’ be denied benefit of clergy unless they could demonstrate their clerical status. Given a first reading the same day, the bill was delivered to the king's serjeant Richard Elyot.Footnote ³⁸ Bills were commonly passed to the legal assistants in attendance on the Lords for revision, so this was presumably the intention here.Footnote ³⁹ Then on Saturday 16 February a bill concerning ‘robbers by night’ was given its third reading, approved and then handed over to the clerk of the crown, William Porter, to be written up.Footnote ⁴⁰ On the next day that parliament sat, Monday 18 February, a bill about ‘robbers and murderers’ was read, approved and thereupon delivered to the Commons by Porter and the attorney-general, John Ernley.Footnote ⁴¹ No more is heard of any bill on this subject before the parliament was dissolved on 23 February.

These three entries described a bill in slightly different terms, so it is possible that more than one proposal has been recorded. More probably, one proposal was described, for in each entry the word ‘spoliantes’ was used. The sequence also suggests that one measure was under consideration: an initial reading, a decision to revise the proposal, agreement of the revised text, engrossment of that text, a final reading and dispatch to the other house. The journal noted simply that the bill was ‘received’. It seems as though the measure was introduced in the Lords, approved there and then sent to the Commons. How the Commons responded cannot be discovered, as no comparable journal exists. The parliament was possibly dissolved before MPs had the chance fully to debate this sensitive subject. Also opaque are the contents of the bill. According to the first entry, the unrevised bill would have denied benefit of clergy to those offenders who could not show their clergy or ordination.Footnote ⁴² As the bill did not pass, the text was not thought worth preserving. How this bill contributed to and also differed from the act passed in the next parliament is therefore not known. The failure to agree the measure, however, may reflect the contentious nature of any proposal that touched on benefit of clergy.

The next parliament convened on 4 February 1512. The journal for this session made no specific reference to any bill addressing benefit of clergy, but it recorded debates on bills that sound like the act that would pass in the second session that winter. On Friday 13 February a bill for the punishment of murderers received its first reading in the Lords.Footnote ⁴³ Next, on Tuesday 17 February, another bill on the same subject, written on paper, was received, read once and left in Porter's possession.Footnote ⁴⁴ On the same day a bill concerning the correction of theft, homicide and other crimes was received, on which no action was recorded.Footnote ⁴⁵ In none of these entries was it explicitly stated whether the bill had been introduced in the Lords or sent up from the Commons; in the case of the second entry, the fact that the bill was received on paper (rather than on parchment) suggests that the Lords was the first house to have sight of it. Then, on Saturday 28 February, a bill for the punishment of murderers was read for a second time, whereupon a committee of five lords (the bishops of Norwich and St David's, the duke of Buckingham, the earl of Essex and Lord Dudley) and the two chief justices was appointed to review its contents.Footnote ⁴⁶ No further action was recorded before the parliament was prorogued on 30 March.

Therefore the journal entries recorded three bills addressing murder. If these bills derived from the proposal of 1510, then the emphasis may have shifted from theft to homicide, but, as none of the texts has survived, this relationship cannot confidently be established. Of the three bills under discussion, the third can most strongly be associated with the law that would pass in the next session, for its categories of ‘furtus’, ‘homicidium’ and ‘maleficium’ resembled the act's opening reference to robberies, murders and felonies. The description of the other two bills, however, matched the title given by the sessional print: ‘An acte of punysshement for Murdur’.Footnote ⁴⁷ As the session went along, the clerks may have modified their descriptions and yet have preserved the essential detail that the proposals concerned murder. Rather than recording three distinct proposals, the journal probably reflected a cumulative process of revision in which newer drafts subsumed older ones. Supporting this suggestion may be a statement relating to the last measure to have been received: according to the journal, this third bill was ‘Inducta pro Meottis’ (introduced by Meottis).Footnote ⁴⁸ My preferred interpretation of ‘Meottis’ is as a reference to the clerk of the king's council John Meautis.Footnote ⁴⁹ If accepted, this identification strengthens the case for the crown's role in drafting and promoting the proposed legislation. Despite such sponsorship, the committee appointed at the end of February does not appear swiftly to have agreed a way forwards. A meeting of minds between as irascible a defender of clerical liberties as Richard Nix and as assertive an exponent of common law's superiority as John Fyneux was perhaps unlikely.Footnote ⁵⁰

On prorogation bills that had not been agreed by both houses were lost, so in the next session the legislative process had to begin anew.Footnote ⁵¹ Nevertheless in the second session of this parliament that met from 4 November to 20 December, the new law was enacted. Unfortunately, the journal for this session was entered in a separate volume that has been lost.Footnote ⁵² Because the proposal was successful, however, the ‘original act’ has survived. As a general rule, an ‘original act’ in its initial state was the text of a proposal agreed by the house where the bill was introduced. It was not ‘original’ in the sense of constituting the earliest version of a proposal, for changes made in the first house were absorbed into the text. The next stage was the reading of a bill in the second house.Footnote ⁵³ Scrutiny was attentive: individual words could be altered, whole clauses struck out and new paragraphs inserted. In some cases, scrappy notes recording how a text should be amended have survived; in most cases, the ‘original acts’ themselves are the sole evidence.Footnote ⁵⁴ Rejected text could be scored through (thus remaining legible) or erased (rendering it illegible). New text could be inserted between the lines of existing text, written over erased text, added (space permitting) at the bottom of the parchment or affixed on a separate slip. Such amendments could only be made with the agreement of both houses.Footnote ⁵⁵ If that was forthcoming, then the bill was presented for royal approval.

Analysis of the ‘original act’ of 1512 therefore reveals what the bill proposed and how it was then modified during its passage.Footnote ⁵⁶ The document is an irregularly cut rectangular parchment that measures approximately 46 cm. along its top, 22 cm. on its left-hand side, 21 cm. on its right-hand side, and 45 cm. along its bottom. Its layout is common to the class of ‘original acts’. At the top left, there is the king's sign manual (‘Henry Rex’) that indicated his agreement; at the top right, there is the clerical dispatching clause that sent the bill to the Lords. The body of the act follows beneath: seventeen lines of text of approximately 39.5 cm. in width by 12 cm. in height. This text was almost all written by a single hand, belonging most likely to one of the chancery clerks attending the Commons. Below this text in the right-hand corner is the formula recording the Lords' assent and also the surname of the man who wrote it, the clerk of the crown William Porter. On the dorse the king's formal assent is recorded: ‘le Roy le vulte’ (the king wills it). Also on the dorse is a heavily faded contemporary title: ‘Consernyng Murders & Roberes’.

Several changes were made to this text once it had been drawn up: some were minor alterations to the wording that seemingly corrected scribal errors, ensured consistency in the text or modified legal terminology. As the courts would have construed such a restrictive law strictly, precision was important.Footnote ⁵⁷ In the list of those resident during a burglary, for instance, the last two letters of the word ‘Chylde’ have been entered over an erasure: perhaps the plural form had been written but was then corrected to the singular in order to be consistent with the rest of the list. This level of detail mattered: the use of the plural ‘servants’ rather than the singular ‘servant’ in a revised version of the law would save one convict's life in 1554.Footnote ⁵⁸ Similarly, the words ‘persone or’ were added through an interlineation in the critical clause that denied ‘suche persone or persones so offendyng’ benefit of clergy. Such small adjustments may indicate the close scrutiny given to the proposal. One clerical error, however, seems to have been overlooked: the scribe wrote ‘Murders ffelones & offenders’ instead of ‘murderers’. This error was copied on to the parliament roll and reproduced in the first sessional print of the statutes of 3 and 4 Henry VIII.Footnote ⁵⁹

The ‘original act’ reveals that the measure was introduced in the Commons. Lay concern about the abuse of clerical privileges, the sizeable number of common lawyers sitting as MPs, and the likelihood of opposition from clergymen in the Lords could each have made the Commons the more attractive of the two houses in which to introduce a bill restricting benefit of clergy and modifying pleas of sanctuary.Footnote ⁶⁰ The introduction of this measure in the lower house suggests that the Lords' journals may have concealed the Commons' role in introducing earlier proposals. By the early Tudor period, it would be inappropriate to view bills originating in the Lords as governmental measures and those originating in the Commons as popular ones, for the crown, corporations and individuals introduced proposals in both houses.Footnote ⁶¹ As first drafted, the ‘original act’ probably represents the bill passed by the Commons; on this assumption, significant changes to the text represent amendments initiated by the Lords. Admittedly, it cannot be proven that this particular bill underwent this conventional legislative process: bill procedure in the early sixteenth century was in flux. If the ‘original act’ was prepared at an earlier point, as is known to have occurred with some other proposals, then changes may include revisions made by the Commons as well as by the Lords.Footnote ⁶²

There were four substantive changes to the text: two related to benefit of clergy, the third to pleas of sanctuary, and the fourth to the act's duration. The first change concerns a key element in the act: who was to be denied benefit of clergy. For the crimes outlined, the proposal enacted that offenders ‘be nott fromhenforthe admytted to hys or theire Clergy, suche as bene withine holy orders only excepte’. Although these precise words would appear in the statute, they were modified after the text of the ‘original act’ had been prepared. In the ‘original act’ 7.8 cm. of text have been erased: after the words ‘suche as bene withine holy orders’ and before the words ‘only excepte’. The erased text cannot be recovered, but can be deduced. It has been noted that the act did not specify what was intended by the phrase ‘holy orders’.Footnote ⁶³ When the statute was revived and extended in 1532, greater clarity then obtained: ‘suche as be wythin Holy Orders that ys to saye of the Orders of Subdeacon or above alonly except’ ran the phrase.Footnote ⁶⁴ A deleted part of the ‘original act’ (to be discussed below) proves that this was indeed the missing text. Therefore, as it was initially drafted, the act would have defined ‘holy orders’ as the ranks of subdeacon, deacon and priest. Those in lower orders (ostiary, lector, exorcist and acolyte) would have been treated in the same way as laymen who committed these capital crimes: in short, they would be denied benefit of clergy.

Canon law made this bipartite division of the clergy. The major orders were sacramental orders, being of divine institution; the minor orders were ecclesiastical orders, being of human institution.Footnote ⁶⁵ The taking of minor orders did not automatically lead to the major ones: recipients could choose thereafter to pursue a career outside the Church and to marry.Footnote ⁶⁶ Nevertheless the proposal to deny benefit of clergy to the minor orders evidently proved controversial. The statute of 1490 had denied a second plea of clergy only to ‘every persone not being within orders’; in other words, it had exempted the minor, as well as the major, orders.Footnote ⁶⁷ The bill under discussion in 1510 seems likewise to have proposed exempting anyone within orders.Footnote ⁶⁸ As approved by the Commons, the new bill now sought unambiguously to strip the minor orders of benefit of clergy for these crimes. Members of the parliament may have contended that laymen were taking minor orders solely in order to enjoy the privilege, a claim that Pope Leo x would concede in 1516.Footnote ⁶⁹ If so, then that practice could have been an unintended consequence of the statutory restriction imposed on literate laymen claiming benefit of clergy in 1490. What passed, though, was an equivocation, whereby the act's scope rested upon construction of the word ‘holy’.Footnote ⁷⁰ The definition may have been removed in order to secure the agreement of the lords spiritual – including Abbot Kidderminster – and thus the assent of the upper house.Footnote ⁷¹ Although differing over the extent of clerical exemption from lay jurisdiction, neither canon law nor English ecclesiastical practice drew any distinction between major and minor orders in this context.Footnote ⁷² When the abbot in his sermon in 1515 insisted that all orders were holy, he was therefore renewing the debate on a contentious aspect of the act's passage through parliament three years earlier.Footnote ⁷³

In the finalised text, the discrete measure addressing pleas of sanctuary immediately followed this exemption for men in holy orders. But in the bill as originally drafted there followed ahead another clause relating to benefit of clergy. This clause has been crossed out rather than erased, so it can be read in its entirety:

The clause followed logically from the exemption for men in holy orders, for it addressed those men to whom benefit of clergy would still be available upon their conviction. In such cases, the ordinary or his deputy (for a secular cleric) or the ‘sovereign’ (the abbot or prior for a regular cleric or mendicant) was required to certify that the claimant was indeed in major orders. If the official failed so to do on the day appointed by the court, then the convict was to be proceeded against as if he were a layman.

The purpose of this clause was probably to curtail delays that could ensue while the court awaited proof of clerical status. The measure may have aimed to inhibit those convicted from spinning out such claims indefinitely. Pleading clergy may sometimes have been a form of foreign plea: in 1513 a Londoner, convicted at Northampton, alleged ordination in the diocese of Carlisle – conveniently far away perhaps.Footnote ⁷⁴ The statute of 1490 contained a section similar to the deleted clause. Under that law, the position of a man within orders had been unaffected: he continued to be handed over to his ordinary without being branded, and could still claim the privilege more than once. The convicted cleric was, however, required to produce written proof of his status on the day given to him by the court; if he failed to do so, ‘than the same persone [was] to lose the benefice of his Clergie as he shall doo that is without orders’.Footnote ⁷⁵ The tenor of the deleted clause was the same, but its implication was spelled out – that judgement would then be given on the convict as a layman. A vital difference in the operation of the measures may explain why the one proved acceptable and the other not. Under the statute of 1490, the consequence of failing to prove clergy (provided it was the first such plea) was branding; under the bill of 1512, the consequence would have been hanging.

Another possible explanation for the deletion of this clause concerned the role of the ordinary. In the early fourteenth century, the ordinary had exercised discretion in deciding whether to grant the privilege; by the early sixteenth century, he was expected to do the court's bidding. The determination of eligibility no longer lay in his power (except where the canonical issue of bigamy was raised): he was merely, in Chief Justice Fyneux's words, an ‘amicus curiae’.Footnote ⁷⁶ Even though they exercised the offices through deputies, bishops and abbots were the ordinaries; perhaps the lords spiritual resisted this formal recognition of their subjection to the common law. By requiring certification on a given day, the proposed clause may also have sought to pressurise ordinaries into satisfying the court punctually. The measure could consequently have denied the privilege to eligible individuals when the official failed to act promptly; in an alarmist scenario, it could have resulted in the execution of clergymen through administrative delay. There were thus several grounds for churchmen to reject this clause.

The third major change relates to the plea of sanctuary. This clause was probably written in the same hand but in a different ink from the first part. It may therefore have been formulated during deliberation in the Commons rather than in the Lords, possibly being added to a prior proposal that dealt only with benefit of clergy. Arguing against this possibility is the preamble's reference to reassurance given to malefactors not only by benefit of clergy but also by ‘pledyng of ffeyned & vntrew fforeine pleys tryable in fforeine Countes’. This clause does not seem to have generated the heated debate that the restriction on benefit of clergy did, for it underwent no subsequent revision. The issue did not feature in Caryll's account of the controversy of 1515. None the less this section also expired in that parliament and was not immediately renewed.Footnote ⁷⁷ More than a decade later the judicial bench began to require defendants pleading a ‘foreign’ sanctuary simultaneously to plead to the felony.Footnote ⁷⁸ Then in 1531 parliament revived this measure independently of the benefit of clergy clauses, without modification, and in perpetuity.Footnote ⁷⁹ This raises the question of why the measure was not revived earlier. Perhaps it too had, in reality, aroused opposition; perhaps it was not a particularly pressing reform and so was soon forgotten; perhaps it was compromised through association with the controversy.

The fourth substantive change to the ‘original act’ is the final phrase: ‘And this acte to indure to the next parliament’. The limited duration of the act has attracted attention because it provoked the controversies of 1515. Some scholars have surmised that the clause was a concession necessary to secure the bill's passage.Footnote ⁸⁰ The ‘original act’ substantiates this point, for the clause was added to the text by a hand different from that which wrote the preceding text. The amendment was therefore probably proposed in the Lords, accepted by the Commons and then added to the ‘original act’. As a result, the act's provisions have been described as ‘experimental’.Footnote ⁸¹ Limiting the duration of an act, however, was the action of a bill's opponents as much as its sceptics. Clauses of limitation were probably recognised already as valuable legislative weapons, for they put the onus of securing an act's continuance on its proponents, without requiring its opponents to campaign for its repeal. Analysis of early Tudor legislation suggests that this tactic was already widely practised; indeed, two other bills were similarly amended in this session.Footnote ⁸² This time limit was thus the third major concession made during the act's passage.

There is, however, a problematic detail about the clause adding the limitation in the ‘original act’. The words and letters ‘to the next parliam’ were written over erased text. Possibly this action was a simple scribal correction, but its position suggests otherwise. Acts of parliament occasionally bore the reverse formula to that in the finalised bill.Footnote ⁸³ Such a clause could stipulate that the act was to endure ‘forever’ or ‘for evermore’.Footnote ⁸⁴ Whether this was the original text here cannot be established; conjecturally, it is possible to envisage scenarios in which this could have occurred. A clause making the act perpetual could have been added at a very late stage to the bill during its passage through the Commons. The Lords could then have rejected this clause and insisted rather on limiting the act's duration, whereupon the offending phrase was erased and the new text written over the top. Arguing against this explanation is the greater likelihood that the issue of a bill's duration would have been raised by its opponents, for acts automatically remained in permanent force unless they explicitly stated otherwise. Therefore this limitation could have originated in objections made in the Lords that were then thrashed out with the Commons, perhaps through meetings of delegates from both houses. A clause making the act perpetual could have been added prematurely, before both houses had accepted it, and then have had to be corrected. Lastly, the crown's role may have been decisive. In 1510 Henry viii had been presented with two bills on the subject of penal statutes, which were identical except that one was to be permanent and the other to last only until the next parliament: the king had vetoed the former and agreed to the latter.Footnote ⁸⁵

The statute 4 Henry VIII, c. 2 was not unusual in having undergone revision during its passage through parliament. But the substantive nature of the amendments probably indicates how contentious the proposal was: a central plank of the bill was fudged, an adjunct clause deleted, and a time limit added. Perhaps a series of heated debates, conducted over several sessions, produced a constricted measure, grudgingly secured. The lords spiritual possibly disagreed among themselves about the bill: for some, it may have seemed a dangerous encroachment on the Church's liberties; for others, one means of entrenching the special character of the priesthood.Footnote ⁸⁶ In any event, the Lords – where the clergy enjoyed a notional majority – eventually approved the modified bill. By 1515 clerical opposition had certainly solidified, probably in the light of lay reaction to the Hunne case, possibly in the light of the Fifth Lateran Council's reaffirmation of clerical immunity, and just conceivably in the light of the large number of offenders already falling within the scope of the act (if Caryll is to be believed).Footnote ⁸⁷ Nevertheless there seems to have been greater opposition to the law from its inception than is usually acknowledged.

Analysis of the bill's passage through parliament, admittedly, cannot recover the breadth or subtlety of contemporary reaction. The bicameral nature of parliament tends to polarise analysis between clergymen in the Lords and laymen in the Commons. The evidence presented here, however, must qualify the notion that the Hunne debacle shattered ‘a happy consensus of opinion’ between the clergy and the laity over the statute's merits.Footnote ⁸⁸ By coincidence, the basis for that assertion is a speech that the clerk of parliament, John Tayler, delivered in June 1514 to convocation in his other role as Speaker of its lower house.Footnote ⁸⁹ A calendar entry seems to have misled scholars into believing that Dr Tayler spoke favourably of the statute.Footnote ⁹⁰ In fact, Tayler criticised ecclesiastical laxity in correcting clerical misconduct because it provided the pretext for enacting such laws. Far from endorsing the measure, Tayler denounced it as an insidious means of undermining the Church's liberties.Footnote ⁹¹ Intense self-criticism did not cause clergymen to accept reform by the lay power; on the contrary, it inspired a renewed insistence on the Church's otherworldliness.Footnote ⁹² Yet to be promoted to the rank of king's serjeant, Caryll presumably did not hear the debates in the parliament of 1512, but the arguments that he recorded in 1515 may have been aired almost as loudly, presented just as starkly, and argued quite as vigorously three years earlier.