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THE
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THE
کہتے کیا رشت
CONSTITUTIONAL HISTORY
OF
ENGLAND
FROM
THE ACCESSION OF HENRY VII.
то
THE DEATH OF GEORGE II.
BY HENRY HALLAM.
THIRD EDITION.
IN THREE VOLUMES.
VOL. I.
LONDON:
JOHN MURRAY, ALBEMARLE-STREET,
MDCCCXXXII.
1832
ΤΟ
HENRY MARQUIS OF LANSDOWNE,
IN TOKEN OF HIGH ESTEEM
AND SINCERE REGARD,
THIS WORK IS RESPECTFULLY INSCRIBED
BY
THE AUTHOR.
A 4
PREFACE.
THE origin and progress of the English
Constitution, down to the extinction of the
house of Plantagenet, formed a considerable
portion of a work published by me some years
since, on the history, and especially the laws
and institutions, of Europe during the period
of the middle ages. It had been my first in-
tention to have prosecuted that undertaking
in a general continuation; and when expe-
rience taught me to abandon a scheme pro-
jected early in life with very inadequate views
of its magnitude, I still determined to carry
forward the constitutional history of my own
country, as both the most important to our-
selves, and, in many respects, the most con-
genial to my own studies and habits of mind.
viii
PREFACE.
The title which I have adopted, appears to
exclude all matter not referrible to the state
of government, or what is loosely denominated
the constitution. I have, therefore, generally
abstained from mentioning, except cursorily,
either military or political transactions, which
do not seem to bear on this primary subject.
It must, however, be evident, that the con-
stitutional and general history of England, at
and I presume
some periods, nearly coincide; and I
that a few occasional deviations of this nature
will not be deemed unpardonable, especially
where they tend, at least indirectly, to illus-
trate the main topic of enquiry. Nor will
the reader, perhaps, be of opinion that I have
forgotten my theme in those parts of the fol-
lowing work which relate to the establishment
of the English church, and to the proceedings
of the state with respect to those who have
dissented from it; facts certainly belonging
to the history of our constitution, in the large
sense of the word, and most important in their
application to modern times, for which all
knowledge of the past is principally valuable.
PREFACE.
ix
Still less apology can be required for a slight
verbal inconsistency with the title of these
volumes in the addition of two supplemental
chapters on Scotland and Ireland. This in-
deed I mention less to obviate a criticism,
which possibly might not be suggested, than
to express my regret that, on account of their
brevity, if for no other reasons, they are both
so disproportionate to the interest and im-
portance of their subjects.
During the years that, amidst avocations of
different kinds, have been occupied in the
composition of this work, several others have
been given to the world, and have attracted
considerable attention, relating particularly to
the periods of the Reformation and of the civil
wars. It seems necessary to mention that I
have read none of these, till after I had written
such of the following pages as treat of the
same subjects. The three first chapters in-
deed were finished in 1820, before the appear-
ance of those publications which have led to
so much controversy, as to the ecclesiastical
history of the sixteenth century; and I was
پونڈ
PREFACE.
J
66
I
equally unacquainted with Mr. Brodie's
History of the British Empire from the
Accession of Charles I. to the Restoration,"
while engaged myself on that period.
have, however, on a revision of the present
work, availed myself of the valuable labours
of recent authors, especially Dr. Lingard and
Mr. Brodie; and in several of my notes I
have sometimes supported myself by their
authority, sometimes taken the liberty to ex-
press my dissent; but I have seldom thought
it necessary to make more than a few verbal
modifications in my text.
66
It would, perhaps, not become me to offer
any observations on these contemporaries;
but I cannot refrain from bearing testimony
to the work of a distinguished foreigner, M.
Guizot, “ Histoire de la Revolution d'Angle-
terre, depuis l'Avenement de Charles I. jus-
qu'à la Chute de Jacques II.," the first
volume of which was published in 1826.
The extensive knowledge of M. Guizot, and
his remarkable impartiality, have already been
displayed in his collection of memoirs illus-
PREFACE.
xi
trating that part of English history; and I
am much disposed to believe that if the rest
of his present undertaking shall be completed
in as satisfactory a manner as the first volume,
he will be entitled to the preference above
any one, perhaps, of our native writers, as a
guide through the great period of the seven-
teenth century.
In terminating the Constitutional History
of England at the accession of George III.,
I have been influenced by unwillingness to
excite the prejudices of modern politics, espe-
cially those connected with personal character,
which extend back through at least a large
portion of that reign. It is indeed vain to ex-
pect that any comprehensive account of the
two preceding centuries can be given without
risking the disapprobation of those parties,
religious or political, which originated during
that period; but as I shall hardly incur the
imputation of being the blind zealot of any
of these, I have little to fear, in this respect,
from the dispassionate public, whose favour,
both in this country and on the Continent,
xii
PREFACE.
has been bestowed on my former work, with
a liberality less due to any literary merit it
may possess, than to a regard for truth, which
will, I trust, be found equally characteristic
of the present.
June, 1827.
ADVERTISEMENT
TO THE
THIRD EDITION.
THE present edition has been revised, and
some use made of recent publications. The
note on the authenticity of the Icon Basilice,
at the end of the second volume of the two
former editions, has been withdrawn; not
from the slightest doubt in the author's mind
as to the correctness of its argument; but
because a discussion of a point of literary
criticism, as this ought to be considered,
seemed rather out of its place in the Con-
stitutional History of England.
April, 1832.
The following Editions have been used for the References in these
Volumes.
STATUTES at Large, by Ruffhead, except where the late edition
of Statutes of the Realm is expressly quoted.
State Trials, by Howell.
Rymer's Fœdera, London, 20 vols.
The paging of this edition is preserved in the margin of the
Hague edition in 10 vols.
Parliamentary History, new edition.
Burnet's History of the Reformation, 3 vols. folio, 1681.
Strype's Ecclesiastical Memorials, Annals of Reformation, and
Lives of Archbishops Cranmer, Parker, Grindal, and Whit-
gift, folio.
The paging of these editions is preserved in those lately
published in 8vo.
Hall's Chronicles of England.
Holingshed's Chronicles of England, Scotland, and Ireland.
The edition in 4to. published in 1808.
Somers Tracts, by Walter Scott, 13 vols. 4to.
Harleian Miscellany, 8 vols. 4to.
Neal's History of the Puritans, 2 vols. 4to.
Bacon's Works, by Mallet, 3 vols. folio, 1753.
Kennet's Complete History of England, 3 vols. folio, 1719.
Wood's History of University of Oxford, by Gutch, 4 vols. 4to.
Lingard's History of England, 10 vols. 8vo.
Butler's Memoirs of English Catholics, 4 vols. 1819.
Harris's Lives of James I., Charles I., Cromwell, and Charles II.,
5 vols. 1814.
Clarendon's History of the Rebellion, 8 vols. 8vo. Oxf. 1826.
It is to be regretted, that the editor has not preserved the
paging of the folio in his margin, which is of great con-
venience in a book so frequently referred to; and still
more so, that he has not thought the true text worthy
of a better place than the bottom of the page, leaving
to the spurious readings the post of honour.
Clarendon's Life, fol.
Rushworth Abridged, 6 vols. 8vo. 1703.
This edition contains many additions from works published
since the folio edition in 1680.
VOL. I.
a
xviii
Whitelock's Memorials, 1732.
Memoirs of Col. Hutchinson, 4to. 1806.
May's History of the Parliament, 4to. 1812.
Baxter's Life, fol.
Rapin's History of England, 3 vols. fol. 1732.
Burnet's History of his own Times, 2 vols. fol.
The paging of this edition is preserved in the margin of that
printed at Oxford, 1823, which is sometimes quoted,
and the text of which has always been followed.
Life of William Lord Russell, by Lord John Russell, 4to.
Temple's Works, 2 vols. fol. 1720.
Coxe's Life of Marlborough, 3 vols. 4to.
Coxe's Memoirs of Sir Robert Walpole, 3 vols. 4to.
Robertson's History of Scotland, 2 vols. 8vo. 1794.
Laing's History of Scotland, 4 vols. 8vo.
Dalrymple's Annals of Scotland, 2 vols. 4to.
Leland's History of Ireland, 3 vols. 4to.
Spenser's Account of State of Ireland, in 8th volume of Todd's
edition of Spenser's works.
These are, I believe, almost all the works quoted in the following
volumes, concerning which any uncertainty could arise from
the mode of reference.
CONTENTS
OF
VOLUME I.
CHAPTER I.
ON THE ENGLISH CONSTITUTION FROM HENRY VII. TO MARY.
J
ANCIENT Government of England - Limitations of Royal Au-
thority Difference in the effective Operation of these -
Sketch of the State of Society and Law Henry VII.-
Statute for the Security of the Subject under a King de facto
Statute of Fines Discussion of its Effect and Motive
Exactions of Money under Henry VII.- Taxes demanded
by Henry VIII. Illegal Exactions of Wolsey in 1523 and
1525 Acts of Parliament releasing the King from his
Debts — A Benevolence again exacted — Oppressive Treat-
ment of Reed - Severe and unjust Executions for Treason
Earl of Warwick Earl of Suffolk - Duke of Buckingham
New Treasons created by Statute Executions of Fisher
and More Cromwell
Cromwell Duke of Norfolk Anne Boleyn
Fresh Statutes enacting the Penalties of Treason
giving Proclamations the Force of Law Government of
Edward VI.'s Counsellors Attainder of Lord Seymour and
Duke of Somerset - Violence of Mary's Reign -- The House
of Commons recovers Part of its independent Power in these
two Reigns Attempt of the Court to strengthen itself by
creating new Boroughs Causes of the High Prerogative of
the Tudors Jurisdiction of the Council of Star-Chamber-
This not the same with the Court erected by Henry VII.
Influence of the Authority of the Star-Chamber in en-
hancing the Royal Power Tendency of religio
Tendency of religious Disputesses
to the same End
Page 1
Act
A 2
XX
CONTENTS.
CHAPTER II.
ON THE ENGLISH CHURCH UNDER HENRY VIII., EDWARD VI.,
AND MARY.
State of public Opinion as to Religion - Henry VIII.'s Contro-
versy with Luther His Divorce from Catherine Sepa-
ration from the Church of Rome Dissolution of Monasteries
Progress of the Reformed Doctrine in England Its Esta-
blishment under Edward - Sketch of the chief Points of
Difference between the two Religions Opposition made by
Part of the Nation Cranmer His Moderation in intro-
ducing Changes not acceptable to the Zealots Mary -
Persecution under her Its Effect rather favourable to Pro-
testantism
C
Page 77
CHAPTER III.
ON THE LAWS OF ELIZABETH'S REIGN RESPECTING THE
ROMAN CATHOLICS.
Change of Religion on the Queen's Accession Acts of Supre-
macy and Uniformity - Restraint of Roman Catholic Worship
in the first Years of Elizabeth Statute of 1562 — Speech
of Lord Montague against it-This Act not fully enforced
-Application of the Emperor in behalf of the English Ca-
tholics Persecution of this Body in the ensuing Period
Uncertain Succession of the Crown between the Families of
Scotland and Suffolk The Queen's Unwillingness to decide
this, or to marry-Imprisonment of Lady Catherine Grey
Mary Queen of Scotland - Combination in her Favour
Bull of Pius V. - Statutes for the Queen's Security - Catho-
lics more rigorously treated-Refugees in the Netherlands
- Their Hostility to the Government Fresh Laws against
the Catholic Worship Execution of Campion and others
Defence of the Queen by Burleigh - Increased Severity of
the Government Mary — Plot in her Favour Her Exe-
cution— Remarks upon it—Continued Persecution of Roman
Catholics General Observations
147
CONTENTS.
xxi
CHAPTER IV.
ON THE LAWS OF ELIZABETH'S REIGN RESPECTING PRO-
TESTANT NON-CONFORMISTS.
Origin of the Differences among the English Protestants Re-
ligious Inclinations of the Queen - Unwillingness of many to
comply with the established Ceremonies Conformity en-
forced by the Archbishop Against the Disposition of others.
A more determined Opposition, about 1570, led by Cart-
wright - Dangerous Nature of his Tenets - Puritans sup-
ported in the Commons - and in some Measure by the
Council Prophesyings Archbishops Grindal and Whitgift
-Conduct of the latter in enforcing Conformity - High
Commission Court - Lord Burleigh averse to Severity -
Puritan Libels — Attempt to set up a Presbyterian System
House of Commons averse to episcopal Authority Inde-
pendents liable to severe Laws - Hooker's Ecclesiastical
Polity Its Character Spoliation of Church Revenues
General Remarks Letter of Walsingham in Defence of the
Queen's Government
Page 231
CHAPTER V.
ON THE CIVIL GOVERNMENT OF ELIZABETH.
General Remarks - Defective Security of the Subject's Liberty
-Trials for Treason and other political Offences unjustly con-
ducted Illegal Commitments Remonstrance of Judges
against them Proclamations unwarranted by Law Re-
strictions on Printing — Martial Law Loans of Money not
quite voluntary - Character of Lord Burleigh's Adminis-
tration Disposition of the House of Commons Addresses
concerning the Succession Difference on this between the
Queen and Commons in 1566 — Session of 1571 - Influence
of the Puritans in Parliament Speech of Mr. Wentworth
in 1576 - The Commons continue to seek Redress of eccle-
siastical Grievances Also of Monopolies, especially in the
Session of 1601 — Influence of the Crown in Parliament
xxii
CONTENTS.
Debate on Election of non-resident Burgesses Assertion of
Privileges by Commons-Case of Ferrers, under Henry VIII.
- Other Cases of Privilege Privilege of determining con-
tested Elections claimed by the House
The English Con-
stitution not admitted to be an absolute Monarchy Preten-
sions of the Crown
Page 310
CHAPTER VI.
ON THE ENGLISH CONSTITUTION UNDER JAMES I.
Quiet Accession of James
Question of his Title to the Crown
S
Par-
-Legitimacy of the Earl of Hertford's Issue-Early Unpo-
pularity of the King - Conduct towards the Puritans
liament convoked by an irregular Proclamation Question of
Fortescue and Goodwin's Election Shirley's Case of Privi-
lege Complaints of Grievances Commons' Vindication of
themselves Session of 1605 — Union with Scotland debated
Continual Bickerings between the Crown and Commons-
Impositions on Merchandize without Consent of Parliament
Remonstrances against these in Session of 1610
of King's absolute Power inculcated by Clergy - Articuli
Cleri - Cowell's Interpreter Renewed Complaints of the
Commons Negotiation for giving up the feudal Revenue
Dissolution of Parliament Character of James
Lord Salisbury-Foreign Politics of the Government - Lord
Coke's Alienation from the Court Illegal Proclamations
Means resorted to in order to avoid the Meeting of Parliament
Doctrine
Death of
Parliament of 1614- Undertakers It is dissolved with-
out passing a single Act Benevolences Prosecution of
Peacham Dispute about the Jurisdiction of the Court of
Chancery - Case of Commendams — Arbitrary Proceedings in
Star Chamber Arabella Stuart Somerset and Overbury
Sir Walter Raleigh - Parliament of 1621 - Proceedings
against Mompesson and Lord Bacon Violence in the Case
of Floyd Disagreement between the King and Commons -
Their Dissolution, after a strong Remonstrance Marriage-
Treaty with Spain Parliament of 1624-Impeachment of
Middlesex
M
388
CONTENTS.
xxiii
ON THE ENGLISH
CHAPTER VII.
CONSTITUTION
FROM THE ACCESSION OF
CHARLES I. TO THE DISSOLUTION OF HIS THIRD PARLIA-
MENT.
!
Parliament of 1625 — Its Dissolution Another Parliament
called - Prosecution of Buckingham - Arbitrary Proceed-
ings towards the Earls of Arundel and Bristol · Loan de-
manded by the King - Several committed for Refusal to con-
tribute -- They sue for a Habeas Corpus Arguments on
this Question, which is decided against them A Parliament
called in 1628- Petition of Right - King's Reluctance to
grant it Tonnage and Poundage disputed King dissolves.
Parliament Religious Differences Prosecution of Puri-
tans by Bancroft Growth of High-Church Tenets - Dif-
ferences as to the Observance of Sunday — Arminian Con-
troversy State of Catholics under James — Jealousy of the
Court's Favour towards them— Unconstitutional Tenets pro-
mulgated by the High-Church Party - General Remarks
Page 511
T
THE
CONSTITUTIONAL HISTORY
OF
ENGLAND
FROM
HENRY VII. TO GEORGE II.
CHAPTER I.
ON THE ENGLISH CONSTITUTION FROM HENRY VII.
TO MARY.
Earl of
Ancient Government of England Limitations of Royal Authority
Difference in the effective Operation of these Sketch of the State of
Society and Law Henry VII.- Statute for the Security of the
Subject under a King de facto Statute of Fines Discussion of its
Effect and Motive · Exactions of Money under Henry VII. — Taxes
demanded by Henry VIII. Illegal Exactions of Wolsey in 1523 and
1525 Acts of Parliament releasing the King from his Debts A
Benevolence again exacted Oppressive Treatment of Reed Severe
and unjust Executions for Treason · Earl of Warwick
Suffolk Duke of Buckingham New Treasons created by Statute
Executions of Fisher and More Cromwell - Duke of Norfolk
Anne Boleyn Fresh Statutes enacting the Penalties of Treason
Act giving Proclamations the Force of Law- Government of Ed-
ward VI's Counsellors Attainder of Lord Seymour and Duke of
Somerset Violence of Mary's Reign - The House of Commons
recovers Part of its independent Power in these two Reigns
of the Court to strengthen itself by creating new Boroughs
VOL. I.
B
Attempt
Causes of
¦
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
I.
TO
MARY.
Ancient
govern-
ment of
the High Prerogative of the Tudors Jurisdiction of the Council of
Star-Chamber
A
This not the same with the Court erected by Henry VII.
- Influence of the Authority of the Star-Chamber in enhancing the Royal
Power Tendency of religious Disputes to the same End.
THE government of England, in all times recorded
by history, has been one of those mixed or limited
HEN. VII. monarchies which the Celtic and Gothic tribes
appear universally to have established, in prefer-
ence to the coarse despotism of eastern nations, to
the more artificial tyranny of Rome and Constan-
England. tinople, or to the various models of republican
polity which were tried upon the coasts of the Me-
diterranean Sea. It bore the same general features,
it belonged, as it were, to the same family, as the
governments of almost every European state, though
less resembling, perhaps, that of France than any
other. But, in the course of many centuries, the
boundaries which determined the sovereign's pre-
rogative and the people's liberty or power having
seldom been very accurately defined by law, or at
least by such law as was deemed fundamental and
unchangeable, the forms and principles of political
regimen in these different nations became more di-
vergent from each other, according to their peculiar
dispositions, the revolutions they underwent, or the
influence of personal character. England, more for-
tunate than the rest, had acquired in the fifteenth
century a just reputation for the goodness of her laws
and the security of her citizens from oppression.
This liberty had been the slow fruit of ages, still
waiting a happier season for its perfect ripeness,
but already giving proof of the vigour and indus-
try which had been employed in its culture. I have
endeavoured, in a work of which this may in a
:
FROM HENRY VII. TO GEORGE II.
3
CHAP.
I.
certain degree be reckoned a continuation, to trace
the leading events and causes of its progress. It
will be sufficient in this place briefly to point out HEN. VII.
the principal circumstances in the polity of Eng-
land at the accession of Henry VII.
TO
MARY.
of royal
The essential checks upon the royal authority Limitations
were five in number. — 1. The king could levy no authority.
sort of new tax upon his people, except by the
grant of his parliament, consisting as well of bishops
and mitred abbots, or lords spiritual, and of here-
ditary peers or temporal lords, who sat and voted
promiscuously in the same chamber, as of repre-
sentatives from the freeholders of each county,
and from the burgesses of many towns and less
considerable places, forming the lower or com-
mons' house. 2. The previous assent and autho-
rity of the same assembly was necessary for every
new law, whether of a general or temporary nature.
3. No man could be committed to prison but by a
legal warrant specifying his offence; and by an
usage nearly tantamount to constitutional right,
he must be speedily brought to trial by means of
regular sessions of gaol-delivery. 4. The fact of
guilt or innocence on a criminal charge was de-
termined in a public court, and in the county
where the offence was alleged to have occurred,
by a jury of twelve men, from whose unanimous
verdict no appeal could be made. Civil rights, so
far as they depended on questions of fact, were
subject to the same decision. 5. The officers and
servants of the crown, violating the personal liberty
or other right of the subject, might be sued in an
action for damages, to be assessed by a jury, or,
in some cases, were liable to criminal process; nor
B 2
4
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
I.
HEN. VII.
TO
MARY.
in the ef-
fective ope-
ration of
these.
could they plead any warrant or command in their
justification, not even the direct order of the king.
These securities, though it would be easy to
prove that they were all recognised in law, dif-
Difference fered much in the degree of their effective opera-
tion. It may be said of the first, that it was now
completely established. After a long contention,
the kings of England had desisted for near a hun-
dred years from every attempt to impose taxes
without consent of parliament; and their recent
device of demanding benevolences, or half-com-
pulsory gifts, though very oppressive, and on that
account just abolished by an act of the late usurper,
Richard, was in effect a recognition of the general
principle, which it sought to elude rather than
transgress.
The necessary concurrence of the two houses
of parliament in legislation, though it could not
be more unequivocally established than the for-
mer, had in earlier times been more free from all
attempt or pretext of encroachment. We know
not of any laws that were ever enacted by our
kings without the assent and advice of their great
council; though it is justly doubted, whether the
representatives of the ordinary freeholders, or of
the boroughs, had seats and suffrages in that as-
sembly during seven or eight reigns after the con-
quest. They were then, however, ingrafted upon
it with plenary legislative authority; and if the
sanction of a statute were required for this funda-
mental axiom, we might refer to one in the 15th of
Edward II. (1322), which declares that "the mat-
ters to be established for the estate of the king and
of his heirs, and for the estate of the realm and
FROM HENRY VII. TO GEORGE 11.
5
I.
of the people, should be treated, accorded, and CHAP.
established in parliament, by the king, and by the
assent of the prelates, earls, and barons, and the HEN. VII.
commonalty of the realm, according as had been
before accustomed.” *
-
It may not be impertinent to remark in this
place, that the opinion of such as have fancied
the royal prerogative under the houses of Planta-
genet and Tudor to have had no effectual or un-
questioned limitations is decisively refuted by the
notorious fact, that no alteration in the general
laws of the realm was ever made, or attempted to
be made, without the consent of parliament. It is
not surprising that the council, in great exigency
of money, should sometimes employ force to ex-
tort it from the merchants, or that servile lawyers
should be found to vindicate these encroachments
of power. Impositions, like other arbitrary mea-
sures, were particular and temporary, prompted by
rapacity, and endured through compulsion. But if
the kings of England had been supposed to enjoy
an absolute authority, we should find some proofs
of it in their exercise of the supreme function of
sovereignty, the enactment of new laws. Yet there
is not a single instance from the first dawn of our
constitutional history, where a proclamation, or
order of council, has dictated any change, however
trifling, in the code of private rights, or in the
* This statute is not even al-
luded to in Ruffhead's edition, and
has been very little noticed by
writers on our law or history. It
is printed in the late edition, pub-
lished by authority, and is brought
forward in the First Report of the
Lords' Committee, on the dignity
pe-
of a Peer (1819), p. 282. Nothing
can be more evident than that it
not only establishes by a legisla-
tive declaration the present con-
stitution of parliament, but recog-
nises it as already standing upon
a custom of some length of
time.
ΤΟ
MARY.
B 3
6
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
I.
ΤΟ
MARY.
nalties of criminal offences. Was it ever pretended
that the king could empower his subjects to devise
HEN. VII. their freeholds, or to levy fines of their entailed
lands? Has even the slightest regulation as to
judicial procedure, or any permanent prohibition,
even in fiscal law, been ever enforced without sta-
tute? There was, indeed, a period, later than that
of Henry VII., when a control over the subject's
free right of doing all things not unlawful was
usurped by means of proclamations. These, how-
ever, were always temporary, and did not affect to
alter the established law. But though it would be
difficult to assert that none of this kind had ever
been issued in rude and irregular times, I have not
observed any under the kings of the Plantagenet
name which evidently transgress the boundaries of
their legal prerogative.
State of
law.
The general privileges of the nation were far
more secure than those of private men. Great
violence was often used by the various officers of
the crown, for which no adequate redress could
be procured; the courts of justice were not strong
enough, whatever might be their temper, to chas-
tise such aggressions; juries, through intimidation
or ignorance, returned such verdicts as were de-
sired by the crown; and, in general, there was
perhaps little effective restraint upon the govern-
ment, except in the two articles of levying money
and enacting laws.
The peers alone, a small body varying from
society and about fifty to eighty persons, enjoyed the privi-
leges of aristocracy; which, except that of sitting
in parliament, were not very considerable, far less
oppressive. All below them, even their children,
FROM HENRY VII. TO GEORGE II.
7
CHAP.
I.
ΤΟ
MARY.
were commoners, and in the eye of the law equal
to each other. In the gradation of ranks, which,
if not regally recognised, must still subsist through HEN. VII.
the necessary inequalities of birth and wealth, we
find the gentry or principal landholders, many of
them distinguished by knighthood, and all by
bearing coat armour, but without any exclusive
privilege; the yeomanry, or small freeholders and
farmers, a very numerous and respectable body,
some occupying their own estates, some those of
landlords; the burgesses and inferior inhabitants
of trading towns; and, lastly, the peasantry and)
labourers. Of these, in earlier times, a consider-
able part, though not perhaps so very large a pro-
portion as is usually taken for granted, had been
in the ignominious state of villenage, incapable of
possessing property but at the will of their lords.
They had, however, gradually been raised above
this servitude; many had acquired a stable pos-
session of lands under the name of copyholders;
and the condition of mere villenage was become
rare.
The three courts at Westminster - the King's
Bench, Common Pleas, and Exchequer-consisting
each of four or five judges, administered justice
to the whole kingdom; the first having an appel-
lant jurisdiction over the second, and the third
being in a great measure confined to causes affect-
ing the crown's property. But as all suits relating
to land, as well as some others, and all criminal
indictments, could only be determined, so far as
they depended upon oral evidence, by a jury of
the county, it was necessary that justices of assize
and gaol-delivery, being in general the judges of
B 4
8
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
I.
the courts at Westminster, should travel into each
county, commonly twice a year, in order to try
HEN. VII. issues of fact, so called in distinction from issues
of law, where the suitors, admitting all essential
facts, disputed the rule applicable to them.* By
TO
MARY.
*The pleadings, as they are
called, or written allegations of
both parties, which form the basis
of a judicial enquiry, commence
with the declaration, wherein the
plaintiff states, either specially, or
in some established form, accord-
ing to the nature of the case, that
he has a debt to demand from,
or an injury to be redressed by,
the defendant. The latter, in re-
turn, puts in his plea; which, if it
amount to a denial of the facts al-
leged in the declaration, must con-
clude to the country, that is, must
refer the whole matter to a jury.
But if it contain an admission of
the fact, along with a legal justi-
fication of it, it is said to conclude
to the court; the effect of which is
to make necessary for the plain-
tiff to reply; in which replication he
may deny the facts pleaded in jus-
tification, and conclude to the
country; or allege some new mat-
ter in explanation, to show that
they do not meet all the circum-
stances, concluding to the court.
Either party also may demur, that
is, deny that, although true and
complete as a statement of facts,
the declaration or plea is sufficient
according to law to found or repel
the plaintiff's suit. In the last
In the last
case it becomes an issue in law, and
is determined by thejudges without
the intervention of a jury; it being
a principle, that by demurring, the
party acknowledges the truth of
all matters alleged on the plead-
ings. But in whatever stage of the
proceedings either of the litigants
concludes to the country (which
he is obliged to do, whenever the
question can be reduced to a dis-
puted fact), a jury must be impan-
nelled to decide it by their verdict.
These pleadings, together with
what is called the postea, that is,
an indorsement by the clerk of the
court wherein the trial has been,
reciting that afterwards the cause
was so tried, and such a verdict
returned, with the subsequent en-
try of the judgment itself, form
the record.
This is merely intended to ex-
plain the phrase in the text, which
common readers might not clearly
understand. The theory of special
pleading, as it is generally called,
could not be further elucidated
without lengthening this note be-
yond all bounds.
yond all bounds. But it all rests
"De
upon the ancient maxim:
facto respondent juratores, de jure
judices." Perhaps it may be well
to add one observation that in
many forms of action, and those of
most frequent occurrence in mo-
dern times, it is not required to
state the legal justification on the
pleadings, but to give it in evidence
on the general issue; that is, upon
a bare plea of denial. In this case
the whole matter is actually in the
power of the jury. But they are
generally bound in conscience to
defer, as to the operation of any
rule of law, to what is laid down
on that head by the judge; and
when they disregard his directions,
it is usual to annul the verdict, and
grant a new trial. There seem to
be some disadvantages in the anni-
hilation, as it may be called, of
written pleadings, by their reduc-
tion to an unmeaning form, which
has prevailed in three such import-
ant and extensive forms of action,
as ejectment, general assumpsit,
and trover; both as it throws too
1954-1189
FROM HENRY VII. TO GEORGE II.
I.
ΤΟ
MARY.
9

this device, which is as ancient as the reign of CHAP.
Henry II., the fundamental privilege of trial by
jury, and the convenience of private suitors, as HEN. VII.
well as accused persons, was made consistent with
an uniform jurisprudence; and though the refer-
ence of every legal question, however insignificant,
to the courts above must have been inconvenient
and expensive in a still greater degree than at
present, it had doubtless a powerful tendency to
knit together the different parts of England, to
check the influence of feudality and clanship, to
make the inhabitants of distant counties better
acquainted with the capital city and more accus-
tomed to the course of government, and to impair
the spirit of provincial patriotism and animosity.
The minor tribunals of each county, hundred,
and manor, respectable for their antiquity and
for their effect in preserving a sense of freedom
and justice, had in a great measure, though not
probably so much as in modern times, gone into
disuse. In a few counties there still remained a pa-
latine jurisdiction, exclusive of the king's courts;
but in these the common rules of law and the
mode of trial by jury were preserved. Justices of
the peace, appointed out of the gentlemen of each
county, enquired into criminal charges, committed
offenders to prison, and tried them at their quar,
terly sessions, according to the same forms as the
judges of gaol-delivery. The chartered towns had
much power into the hands of the
jury, and as it almost nullifies the
appellant jurisdiction, which can
only be exercised where some error
is apparent on the face of the re-
cord. But great practical conve-
nience, and almost necessity, has
generally been alleged as far more
than a compensation for these evils.
10
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. their separate jurisdiction under the municipal
I.
HEN. VII.
то
MARY.
magistracy.
The laws against theft were severe, and capital
punishments unsparingly inflicted. Yet they had
little effect in repressing acts of violence, to which
a rude and licentious state of manners, and very
imperfect dispositions for preserving the public
peace, naturally gave rise. These were frequently
perpetrated or instigated by men of superior
wealth and power, above the control of the mere
officers of justice. Meanwhile the kingdom was
increasing in opulence, the English merchants
possessed a large share of the trade of the north;
and a woollen manufacture, established in different
parts of the kingdom, had not only enabled the
legislature to restrain the import of cloths, but
begun to supply foreign nations. The population
may probably be reckoned, without any material
error, at about three millions, but by no means
distributed in the same proportions as at present;
the northern counties, especially Lancashire and
Cumberland, being very ill peopled, and the inha-
bitants of London and Westminster not exceeding
sixty or seventy thousand.*
Such was the political condition of England,
when Henry Tudor, the only living representative
of the house of Lancaster, though incapable, by
reason of the illegitimacy of the ancestor who
* The population for 1485 is
estimated by comparing a sort of
census in 1378, when the inhabit-
ants of the realm seem to have
amounted to about 2,300,000,
with one still more loose under
Elizabeth in 1588, which would
give about 4,400,000; making some
allowance for the more rapid in-
crease in the latter period. Three
millions at the accession of
Henry VII. is probably not too
low an estimate.
FROM HENRY VII. TO GEORGE II.
11
I.
TO
MARY.
connected him with it, of asserting a just right of CHAP.
inheritance, became master of the throne by the
defeat and death of his competitor at Bosworth, HEN. VII.
and by the general submission of the kingdom. He
assumed the royal title immediately after his vic- Henry VII.
tory, and summoned a parliament to recognise or
sanction his possession. The circumstances were
by no means such as to offer an auspicious presage
for the future. A subdued party had risen from
the ground, incensed by proscription and elated
by success; the late battle had in effect been a
contest between one usurper and another; and
England had little better prospect than a renewal
of that desperate and interminable contention,
which the pretences of hereditary right have so
often entailed upon nations.
A parliament called by a conqueror might be
presumed to be itself conquered. Yet this assem-
bly did not display so servile a temper, or so much
of the Lancastrian spirit, as might be expected.
It was "ordained and enacted by the assent of the
lords, and at the request of the commons, that the
inheritance of the crowns of England and France,
and all dominions appertaining to them, should re-
main in Henry VII. and the heirs of his body for
ever, and in none other."* Words studiously am-
biguous, which, while they avoid the assertion of
an hereditary right that the public voice repelled,
were meant to create a parliamentary title, before
which the pretensions of lineal descent were to,
Rot. Parl. vi. 270. But the
pope's bull of dispensation for the
king's marriage speaks of the realm
of England as "jure hæreditario
ad te legitimum in illo prædeces-
nens.'
>>
sorum tuorum successorem perti-
Rymer, xii. 294. And all
Henry's own instruments claim an
hereditary right, of which many
proofs appear in Rymer.
12
THE CONSTITUTIONAL HISTORY OF ENGLAND
I.
CHAP. give way. They seem to make Henry the stock
of a new dynasty. But, lest the spectre of inde-
HEN. VII. feasible right should stand once more in arms on
ΤΟ
MARY.
Statute for
of the sub-
ject under
a king de
facto.
the tomb of the house of York, the two houses of
parliament showed an earnest desire for the king's
marriage with the daughter of Edward IV., who,
if she should bear only the name of royalty, might
transmit an undisputed inheritance of its preroga-
tives to her posterity.
This marriage, and the king's great vigilance in
the security guarding his crown, caused his reign to pass with
considerable reputation, though not without dis-
turbance. He had to learn by the extraordinary,
though transient, success of two impostors, (if the
second may with certainty be reckoned such,) that
his subjects were still strongly infected with the
prejudice which had once overthrown the family
he claimed to represent. Nor could those who
served him be exempt from apprehensions of a
change of dynasty, which might convert them into
attainted rebels. The state of the nobles and gentry
had been intolerable during the alternate proscrip-
tions of Henry VI. and Edward IV. Such appre-
hensions led to a very important statute in the
eleventh year of this king's reign, intended, as far
as law could furnish a prospective security against
the violence and vengeance of factions, to place the
civil duty of allegiance on a just and reasonable
foundation, and indirectly to cut away the distinc-
tion between governments de jure and de facto.
It enacts, after reciting that subjects by reason of
their allegiance are bound to serve their prince for
the time being against every rebellion and power
raised against him, that "no person attending upon
¿
1
FROM HENRY VII. TO GEORGE II.
13
CHAP.
I.
ΤΟ
MARY.
the king and sovereign lord of this land for the
time being, and doing him true and faithful ser-
vice, shall be convicted of high treason, by act of HEN. VII.
parliament or other process of law, nor suffer any
forfeiture or punishment; but that every act made
contrary to this statute should be void and of no
effect." *
The endeavour to bind future parlia-
ments was of course nugatory; but the statute re-
remains an unquestionable authority for the consti-
tutional maxim, that possession of the throne gives
a sufficient title to the subject's allegiance, and
justifies his resistance of those who may pretend to
a better right. It was much resorted to in argu-
ment at the time of the revolution, and in the sub-
sequent period. †
It has been usual to speak of this reign as if it
formed a great epoch in our constitution; the king
having by his politic measures broken the power
of the barons who had hitherto withstood the
pre-
rogative, while the commons had not yet risen from
the humble station which they were supposed to
have occupied. I doubt, however, whether the
change was quite so precisely referable to the time
of Henry VII., and whether his policy has not
been somewhat over-rated. In certain respects,
his reign is undoubtedly an æra in our history. It
began in revolution and a change in the line of
* Stat. 11 H. 7. c. 1.
+ Blackstone (vol. iv. c. 6.) has
some rather perplexed reasoning
on this statute, leaning a little to-
wards the de jure doctrine, and at
best confounding moral with legal
obligations. In the latter sense,
whoever attends to the preamble
of the act will see that Hawkins,
whose opinion Blackstone calls in
question, is right; and that he
himself wrong in pretending that
"the statute of Henry VII. does
by no means command any oppo-
sition to a king de jure, but excuses
the obedience paid to a king de
facto."
14
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
I.
ΤΟ
MARY.
descent. It nearly coincides, which is more ma-
terial, with the commencement of what is termed
HEN. VII. modern history, as distinguished from the middle
ages, and with the memorable events that have led
us to make that leading distinction, especially the
consolidation of the great European monarchies,
among which England took a conspicuous station.
But, relatively to the main subject of our enquiry,
it is not evident that Henry VII. carried the au-
thority of the crown much beyond the point at
which Edward IV. had left it. The strength of
the nobility had been grievously impaired by the
bloodshed of the civil wars, and the attainders
that followed them. From this cause, or from the
general intimidation, we find, as I have observed
in another place, that no laws favourable to public
liberty, or remedial with respect to the aggressions ·
of power, were enacted, or (so far as appears) even
proposed in parliament, during the reign of Edward
IV.; the first, since that of John, to which such a
remark can be applied. The commons, who had not
always been so humble and abject as smatterers in
history are apt to fancy, were by this time much de-
generated from the spirit they had displayed under
Edward III. and Richard II. Thus the founder
of the line of Tudor came, not certainly to an
absolute, but a vigorous prerogative, which his
cautious dissembling temper and close attention to
business were well calculated to extend.
Statute of
Fines.
The laws of Henry VII. have been highly praised
by lord Bacon as "deep and not vulgar, not made
upon the spur of a particular occasion for the pre-
sent, but out of providence for the future, to make
the estate of his people still more and more happy,
13*
FROM HENRY VII. TO GEORGE 11.
15
CHAP.
I.
TO
MARY.
after the manner of the legislators in ancient and
heroical times." But when we consider how very
few kings or statesmen have displayed this pro- HEN. VII.
spective wisdom and benevolence in legislation,
we may hesitate a little to bestow so rare a praise
upon Henry. Like the laws of all other times, his
statutes seem to have had no further aim than to
remove some immediate mischief, or to promote
some particular end. One, however, has been
much celebrated as an instance of his sagacious
policy, and as the principal cause of exalting the
royal authority upon the ruins of the aristocracy;
I mean, the statute of Fines, (as one passed in the
fourth year of his reign is commonly called,) which
is supposed to have given the power of alienating
entailed lands. But both the intention and effect
of this seem not to have been justly apprehended.
of its effect
1483-85
In the first place it is remarkable that the sta- Discussion
tute of Henry VII. is merely a transcript, with and mo-
very little variation, from one of Richard III., tive.
which is actually printed in most editions.
It was
re-enacted, as we must presume, in order to ob-
viate any doubt, however ill-grounded, which might
hang upon the validity of Richard's laws. Thus
vanish at once into air the deep policy of Henry
VII., and his insidious schemes of leading on a
prodigal aristocracy to its ruin. It is surely strange
that those who have extolled this sagacious mon-
arch for breaking the fetters of landed property,
(though many of them were lawyers,) should never
have observed, that whatever credit might be due
for the innovation should redound to the honour
of the unfortunate usurper. But Richard, in truth,
had no leisure for such long-sighted projects of
16
THE CONSTITUTIONAL HISTORY OF ENGLAND
}
I.
CHAP. strengthening a throne for his posterity which he
could not preserve for himself. His law, and that
of his successor, had a different object in view.
ΤΟ
HEN. VII.
MARY.
It would be useless to some readers, and perhaps
disgusting to others, especially in the very outset
of this work, to enter upon the history of the En-
glish law as to the power of alienation. But I can-
not explain the present subject without mention-
ing that, by a statute in the reign of Edward I.,/2
commonly called de donis conditionalibus, lands
given to a man and the heirs of his body, with re-
mainder to other persons, or reversion to the donor,
could not be alienated by the possessor for the time
being, either from his own issue, or from those
who were to succeed them. Such lands were also
incapable of forfeiture for treason or felony; and
more, perhaps, upon this account than from any
more enlarged principle, these entails were not
viewed with favour by the courts of justice. Se-
veral attempts were successfully made to relax
their strictness; and finally, in the reign of Edward
13412 IV., it was held by the judges in the famous case
413 of Taltarum, that a tenant in tail might, by what
is called suffering a common recovery, that is, by
means of an imaginary process of law, divest all
those who were to come after him of their succes-
sion, and become owner of the fee simple. Such
a decision was certainly far beyond the sphere of
judicial authority. The legislature, it was proba-
bly suspected, would not have consented to infringe
a statute which they reckoned the safeguard of
their families. The law, however, was laid down
by the judges; and in those days the appellant
jurisdiction of the House of Lords, by means of
FROM HENRY VII. TO GEORGE II.
17
·
I.
HEN. VII.
TO
MARY.
which the aristocracy might have indignantly re- CHAP.
versed the insidious decision, had gone wholly into
disuse. It became by degrees a fundamental prin-
ciple, that an estate in tail can be barred by a
common recovery; nor is it possible by any legal
subtlety to deprive the tenant of this control over
his estate. Schemes were indeed gradually devised,
which to a limited extent have restrained the power
of alienation; but these do not belong to our
subject.
The real intention of these statutes of Richard
and Henry was not to give the tenant in tail a
greater power over his estate; (for it is by no
means clear that the words enable him to bar his
issue by levying a fine; and when a decision to
that effect took place long afterwards (19 H. 8.),
it was with such difference of opinion that it was
thought necessary to confirm the interpretation by
a new act of parliament;) but rather, by establish-
ing a short term of prescription, to put a check on
the suits for recovery of lands, which, after times
of so much violence and disturbance, were natu-
rally springing up in the courts. It is the usual
policy of commonwealths to favour possession; and
on this principle the statute enacts, that a fine le-
vied with proclamations in a public court of justice
shall after five years, except in particular circum-
stances, be a bar to all claims upon lands. This
was its main scope; the liberty of alienation was
neither necessary, nor probably intended to be
given.
*
* For these observations on the
statute of Fines, I am principally
indebted to Reeves's History of the
VOL. I.
C
English Law (iv. 133.), a work,
especially in the latter volumes,
of great research and judgment;
1
18
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
I.
то
MARY.
of Henry
VII.
The two first of the Tudors rarely experienced
opposition but when they endeavoured to levy
HEN. VII. money. Taxation, in the eyes of their subjects,
was so far from being no tyranny, that it seemed
Exactions the only species worth a complaint. Henry VII.
obtained from his first parliament a grant of tọn-
nage and poundage during life, according to se-
veral precedent's of former reigns. But when ge-
neral subsidies were granted, the same people, who
would have seen an innocent man led to prison or
the scaffold with little attention, twice broke out
into dangerous rebellions; and as these, however
arising from such immediate discontent, were yet
a good deal connected with the opinion of Henry's
usurpation and the claims of a pretender, it was
a necessary policy to avoid too frequent imposi-
tion of burdens upon the poorer classes of the
community. * He had recourse accordingly to the
system of benevolences, or contributions appa-
rently voluntary, though in fact extorted from his
a continuation of which, in the
same spirit, and with the same
qualities (besides some others that
are rather too much wanting in
it), would be a valuable accession
not only to the lawyer's, but phi-
losopher's library. That entails
had been defeated by means of a
common recovery before the sta-
tute, had been remarked by former
writers, and is indeed obvious; but
the subject was never put in so
clear a light as by Mr. Reeves.
The principle of breaking down
the statute de donis was so little
established, or consistently acted
upon, in this reign, that in 11 H. 7.
the judges held that the donor of
an estate-tail might restrain the
tenant from suffering a recovery.
Id. p. 159. from the year-book.
* It is said by the biographer of
sir Thomas More, that parliament
refused the king a subsidy in 1502,
which he demanded on account of
the marriage of his daughter Mar-
garet, at the advice of More, then
but twenty-two years old. "Forth-
with Mr. Tyler, one of the privy
chamber, that was then present,
resorted to the king, declaring that
a beardless boy, called More, had
done more harm than all the rest,
for by his means all the purpose
is dashed." This of course dis-
pleased Henry, who would not,
however, he says, infringe the
ancient liberties of that house,
which would have been odiously
taken." Wordsworth's Eccles. Bio-
graphy, ii. 66. This story is also
told by Roper.
(C
FROM HENRY VII. TO GEORGE II.
19
I.
ΤΟ
MARY.
richer subjects. These having become an into- CHAP.
lerable grievance under Edward IV., were abo-
lished in the only parliament of Richard III. with HEN. VII.
strong expressions of indignation. But in the
seventh year of Henry's reign, when, after having
with timid and parsimonious hesitation suffered the
marriage of Anne of Britanny with Charles VIII.,
he was compelled by the national spirit to make a
demonstration of war, he ventured to try this un-
fair and unconstitutional method of obtaining aid,
which received afterwards too much of a parlia-
mentary sanction, by an act enforcing the pay-
ment of arrears of money, which private men had
thus been prevailed upon to promise.
* The sta-
tute indeed of Richard is so expressed as not clearly
to forbid the solicitation of voluntary gifts, which
of course rendered it almost nugatory.
Archbishop Morton is famous for the dilemma-
which he proposed to merchants and others, whom
he solicited to contribute. He told those who
lived handsomely, that their opulence was mani-
fest by their rate of expenditure. Those, agiil,
whose course of living was less sumptuous, must
have grown rich by their economy. Either class
could well afford assistance to their sovereign. This
piece of logic, unanswerable in the mouth of a
privy councillor, acquired the name of Morton's
fork. Henry doubtless reaped great profit from
these indefinite exactions, miscalled benevolences.
* Stat. 11 H. 7. c. 10. Bacon
says the benevolence was granted
by act of parliament, which Hume
shows to be a mistake. The pre-
amble of 11 H. 7. recites it to have
been "granted by divers of your
subjects severally;" and contains
a provision, that no heir shall be
charged on account of his ances-
tor's promise.
c
2
20
THE CONSTITUTIONAL HISTORY OF ENGLAND
I.
ΤΟ
MARY.
CHAP. But, insatiate of accumulating treasure, he disco-
vered other methods of extortion, still more odious,
HEN. VII. and possibly more lucrative. Many statutes had
been enacted in preceding reigns, sometimes rashly
or from temporary motives, sometimes in opposi-
tion to prevailing usages which they could not re-
strain, of which the pecuniary penalties, though
exceedingly severe, were so little enforced as to
have lost their terror. These his ministers raked
out from oblivion; and, prosecuting such as could
afford to endure the law's severity, filled his trea-
sury with the dishonourable produce of amerce-
ments and forfeitures. The feudal rights became,
as indeed they always had been, instrumental to
oppression. The lands of those who died without
heirs fell back to the crown by escheat. It was
the duty of certain officers in every county to look
after its rights. The king's title was to be found
by the inquest of a jury, summoned at the instance
of the escheator, and returned into the exchequer.
It then became a matter of record, and could not
be ir" eached. Hence the escheators taking hasty
✓ inquests, or sometimes falsely pretending them, de-
feated the right heir of his succession. Excessive
fines were imposed on granting livery to the king's
wards on their majority. Informations for intru-
sion, criminal indictments, outlawries on civil pro-
cess, in short, the whole course of justice, fur-
nished pretences for exacting money; while a host
of dependents on the court, suborned to play their
part as witnesses, or even as jurors, rendered it
hardly possible for the most innocent to escape
these penalties. Empson and Dudley are notorious
as the prostitute instruments of Henry's avarice
V
A
FROM HENRY VII. TO GEORGE II.
21
*
in the later and more unpopular years of his reign;
but they dearly purchased a brief hour of favour
by an ignominious death and perpetual infamy.
The avarice of Henry VII., as it rendered his go-
vernment unpopular, which had always been pe-
nurious, must be deemed a drawback from the
wisdom ascribed to him; though by his good for-
tune it answered the end of invigorating his power.
By these fines and forfeitures he impoverished
and intimidated the nobility. The earl of Oxford
compounded, by the payment of 15,000 pounds,
for the penalties he had incurred by keeping
retainers in livery; a practice mischievous and
illegal, but too customary to have been punished
before this reign. Even the king's clemency seems
to have been influenced by the sordid motive of
selling pardons; and it has been shown, that he×
made a profit of every office in his court, and re-
ceived money for conferring bishoprics.tx
It is asserted by early writers, though perhaps
only on conjecture, that he left a sum thus amassed,
of no less than 1,800,000 pounds at his decease.
This treasure was soon dissipated by his successor,
who had recourse to the assistance of parliament
in the very first year of his reign. The foreign ×
policy of Henry VIII., far unlike that of his father,
was ambitious and enterprising. No former king
had involved himself so frequently in the labyrinth
of continental alliances. And, if it were neces-
sary to abandon that neutrality which is generally
* Hall, 502.
A
+ Turner's History of England,
iii. 628. from a MS. document.
vast number of persons paid fines
for their share in the western re-
bellion of 1497, from £200 down
to 20s. Hall, 486. Ellis's Letters
illustrative of English History,
i. 38.
CHAP.
I.
HEN. VII.
ΤΟ
MARY.
c 3
22
THE CONSTITUTIONAL HISTORY OF ENGLAND
ΤΟ
MARY.
CHAP. the most advantageous and laudable course, it is
I. certain that his early undertakings against France
HEN. VII. were more consonant to English interests, as well
as more honourable, than the opposite policy,
which he pursued after the battle of Pavia. The
campaigns of Henry in France and Scotland dis-
played the valour of our English infantry, seldom
called into action for fifty years before, and con-
tributed with other circumstances to throw a lustre.
over his reign, which prevented most of his con-
temporaries from duly appreciating its character.
But they naturally drew the king into heavy ex-
penses, and, together with his profusion and love
of magnificence, rendered his government very
burthensome. At his accession, however, the ra-
pacity of his father's administration had excited
such universal discontent, that it was found expe-
dient to conciliate the nation. An act was passed
in his first parliament to correct the abuses that
had prevailed in finding the king's title to lands
by escheat.* The same parliament repealed a law
of the late reign, enabling justices of assize and
of the peace to determine all offences, except
treason and felony, against any statute in force,
without a jury, upon information in the king's
name.t This serious innovation had evidently
been prompted by the spirit of rapacity, which
probably some honest juries had shown courage
enough to withstand. It was a much less laud-
able concession to the vindictive temper of an in-
jured people, seldom unwilling to see bad methods
employed in punishing bad men, that Empson and
* 1 H. 8. c. 8.
+11 H. 7. c. 3. Rep. 1 H. 8. c. 6.
FROM HENRY VII. TO GEORGE II.
23
CHAP.
I.
Dudley, who might perhaps by stretching the pre-
rogative have incurred the penalties of a misde-
meanor, were put to death on a frivolous charge HEN. VII.
of high treason.*
amount.
The demands made by Henry VIII. on parlia-
ment were considerable both in frequency and
Notwithstanding the servility of those
times, they sometimes attempted to make a stand
against these inroads upon the public purse. Wol-y
sey came into the House of Commons in 1523,
and asked for 800,000l., to be raised by a tax of
one-fifth upon lands and goods, in order to prose-
cute the war just commenced against France. Sir
Thomas More, then speaker, is said to have urged
the House to acquiescc.† But the sum demanded
was so much beyond any precedent, that all the
independent members opposed a vigorous resist-
ance. A committee was appointed to remonstrate
with the cardinal, and to set forth the impossibility
of raising such a subsidy. It was alleged that it
exceeded all the current coin of the kingdom.
* They were convicted by a jury,
and afterwards attainted by par-
liament, but not executed for more
than a year after the king's acces-
sion. If we may believe Holing-
shed, the council at Henry VIII.'s
accession made restitution to some
who had been wronged by the ex-
tortion of the late reign;- a sin-
gular contrast to their subsequent
proceedings! This, indeed, had
been enjoined by Henry VII.'s
will. But he had excepted from
this restitution "what had been
done by the course and order of
our laws;" which, as Mr. Astle ob-
serves, was the common mode of
his oppressions.
speech, which he seems to ascribe
to More, arguing more acquaint-
ance with sound principles of poli-
tical economy, than was usual in
the supposed speaker's age, or
even in that of the writer. But it
is more probable that this is of his
own invention. He has taken a
similar liberty on another occasion,
throwing his own broad notions of
religion into an imaginary speech
of some unnamed member of the
Commons, though manifestly un-
suited to the character of the times.
That More gave satisfaction to
Wolsey by his conduct in the chair,
appears by a letter of the latter to
the king, in State Papers, temp.
H. 8. 1630, p. 124.
+ Lord Hubert inserts an acute
TO
MARY.
Taxes de-
manded
by Henry
VIII.
C 4.
24
THE CONSTITUTIONAL HISTORY OF ENGLAND
TO
MARY.
CHAP. Wolsey, after giving an uncivil answer to the com-
I. mittee, came down again to the House, on pre-
HEN. VII. tence of reasoning with them, but probably with
a hope of carrying his end by intimidation. They
received him, at More's suggestion, with all the
train of attendants that usually encircled the haugh-
tiest subject who had ever been known in Eng-
land. But they made no other answer to his ha-
rangue, than that it was their usage to debate only
among themselves. These debates lasted fifteen
or sixteen days. A considerable part of the Com-
mons appears to have consisted of the king's house-
hold officers, whose influence, with the utmost
difficulty, obtained a grant much inferior to the
cardinal's requisition, and payable by instalments
in four years.
But Wolsey, greatly dissatisfied
with this imperfect obedience, compelled the peo-
ple to pay up the whole subsidy at once.*
*Roper's Life of More. Hall,
656, 672. This chronicler, who
wrote under Edward VI., is our
best witness for the events of Hen-
ry's reign. Grafton is so literally
a copyist from him, that it was a
great mistake to republish this
part of his chronicle in the late
expensive, and therefore incom-
plete, collection; since he adds no
one word, and omits only a few
ebullitions of Protestant zeal which
he seems to have considered too
warm. Holingshed, though valu-
able, is later than Hall. Wolsey,
the latter observes, gave offence to
the Commons, by descanting on
the wealth and luxury of the na-
tion, "
as though he had repined
or disclaimed that any man should
fare well, or be well clothed, but
himself."
But the most authentic memo-
rial of what passed on this occasion
has been preserved in a letter from
a member of the Commons to the
earl of Surrey (soon after duke of
Norfolk), at that time the king's
lieutenant in the north.
"Please it your good Lordships
to understand, that sithence the
beginning of the Parliament, there
hath been the greatest and sorest
hold in the Lower House for the
payment of two shillings of the
pound, that ever was seen, I think,
in any parliament. This matter
hath been debated, and beaten
fifteen or sixteen days together.
The highest necessity alledged on
the King's behalf to us, that ever
was heard of; and, on the con-
trary, the highest poverty con-
fessed, as well by knights, esquires,
and gentlemen of every quarter, as
by the commoners, citizens, and
burgesses. There hath been such
hold that the House was like to
FROM HENRY VII. TO GEORGE II.
25
I.
ΤΟ
MARY.
Illegal ex-
Wolsey in
1525.
actious of
1522 and
No parliament was assembled for nearly seven CHAP.
years after this time. Wolsey had already resorted
to more arbitrary methods of raising money by HEN. VII.
loans and benevolences. * The year before this
debate in the Commons, he borrowed twenty thou-
sand pounds of the city of London; yet so insuffi-
cient did that appear for the king's exigencies, that
within two months commissioners were appointed
throughout the kingdom to swear every man to
the value of his possessions, requiring a rateable
part according to such declaration. The clergy,
it is said, were expected to contribute a fourth;
but I believe that benefices above ten pounds
have been dissevered; that is to
say, the knights being of the King's
council, the King's servants and
gentlemen of the one party; which
in so long time were spoken with,
and made to see, yea, it may for-
tune, contrary to their heart, will,
and conscience. Thus hanging
this matter, yesterday the more
part being the King's servants,
gentlemen, were there assembled;
and so they, being the more part,
willed and gave to the King two
shillings of the pound of goods or
lands, the best to be taken for the
King. All lands to pay two shil-
lings of the pound for the laity, to
the highest. The goods to pay
two shillings of the pound, for
twenty pound upward; and from
forty shillings of goods, to twenty
pound, to pay sixteen pence of the
pound; and under forty shillings,
every person to pay eight pence.
This to be paid in two years.
have heard no man in my life that
can remember that ever there was
given to any one of the King's an-
cestors half so much at one graunt.
Nor, I think, there was never such
a president seen before this time.
I beseeke Almighty God, it may
I
be well and peaceably levied, and
surely payd unto the King's grace,
without grudge, and especially
without loosing the good will and
true hearts of his subjects, which
I reckon a far greater treasure for
the King than gold and silver. And
the gentlemen that must take
pains to levy this money among
the King's subjects, I think, shall
have no little business about the
same." Strype's Eccles. Memo-
rials, vol. i. p. 49. This is also
printed in Ellis's Letters illustra-
tive of English History, i. 220.
* I may notice here a mistake
of Mr. Hume and Dr. Lingard.
They assert Henry to have received
tonnage and poundage several
years before it was vested in him
by the legislature. But it was
granted by his first parliament,
stat. IH. 8. c. 20. as will be found
even in Ruffhead's table of con-
tents, though not in the body of
his volume; and the act is of
course printed at length in the
great edition of the statutes. That
which probably by its title gave
rise to the error, 6 H. 8. c. 13. has
a different object.
26
THE CONTSITUTIONAL HISTORY OF ENGLAND
I.
CHAP. in yearly value were taxed at one-third. Such
unparalleled violations of the clearest and most
HEN. VII. important privilege that belonged to Englishmen
Fresh commis-
excited a general apprehension. *
ΤΟ
MARY.
sioners however were appointed in 1525, with
instructions to demand the sixth part of every
man's substance, payable in money, plate, or jewels,
according to the last valuation. † This demand
nes auctorem.
rr
* Hall, 645. This chronicler
says, the laity were assessed at a
tenth part. But this was only so
of the smaller estates, namely,
from £20 to £300; for from £300
to £1000, the contribution de-
manded was twenty marks for
each £100, and for an estate of
£1000, two hundred marks, and
so in proportion upwards. MS.
Instructions to Commissioners, pe-
This was,
upon
sufficient promise and assurance,
to be repaid unto them upon such
grants and contributions as shall
be given and granted to his grace
at his next parliament." Ib. "And
they shall practise by all the means
to them possible that such sums
as shall be so granted by the way
of loan, be forthwith levied and
paid, or the most part, or at the
least the moiety thereof, the same
to be paid in as brief time after as
they can possibly persuade and in-
duce them unto; showing unto
them that, for the sure payment
thereof, they shall have writings
delivered unto them under the
king's privy seal by such person
or persons as shall be deputed by
the king to receive the said loan,
after the form of a minute to be
shown unto them by the said com-
missioners, the tenor whereof is
thus: We, Henry VIII., by the
grace of God, King of England and
of France, Defender of Faith, and
Lord of Ireland, promise by these
presents truly to content and repay
unto our trusty and well-beloved
subject A. B. the sum of
which he hath lovingly advanced
unto us by way of loan, for defence
of our realm, and maintenance of
our wars against France and Scot-
land; In witness whereof we have
caused our privy seal hereunto to
be set and annexed the day
of the fourteenth year of our
reign." Ib. The rate fixed on
the clergy I collect by analogy,
from that imposed in 1525, which
I find in another manuscript letter.
A letter in my possession from
the duke of Norfolk to Wolsey,
without the date of the year, re-
lates, I believe, to this commission
of 1525, rather than that of 1522;
it being dated on the 10th April,
which appears from the contents
to have been before Easter; where-
as Easter did not fall beyond that
day in 1523 or 1524, but did so in
1525; and the first commission,
being of the 14th year of the king's
reign, must have sat later than
Easter 1522. He informs the car-
dinal, that from twenty pounds up-
ward there were not twenty in the
county of Norfolk who had not
"So that I see great
consented.
likelihood that this grant shall be
much more than the loan was."
It was done however very reluct
antly, as he confesses; "assuring
your grace that they have not
granted the same without shedding
of many salt tears, only for doubt
how to find money to content the
king's highness." The resistance
went further than the duke thought
FROM HENRY VII. TO GEORGE II.
27
Wolsey made in person to the mayor and chief CHAP.
citizens of London. They attempted to remon-
fit to suppose; for in a very short
time the insurrection of the com-
mon people took place in Suffolk.
In another letter from him and
the duke of Suffolk to the cardinal
they treat this rather lightly, and
seem to object to the remission of
the contribution.
This commission issued soon
after the news of the battle of Pa-
via arrived. The pretext was the
king's intention to lead an army
into France. Warham wrote more
freely than the duke of Norfolk as
to the popular discontent, in a let-
ter to Wolsey, dated April 5. It
hath been showed me in a secret
manner of my friends, the people
sore grudgeth and murmureth,
and speaketh cursedly among them-
selves, as far as they dare, saying
that they shall never have rest of
payments as long as some liveth,
and that they had better die than
to be thus continually handled,
reckoning themselves, their chil-
dren, and wives, as despoulit, and
not greatly caring what they do, or
what becomes of them.*** Fur-
ther I am informed, that there is
a grudge newly now resuscitate,
and revived in the minds of the
people; for the loan is not repaid to
them upon the first receipt of the
grant of parliament, as it was pro-
mised them by the commissioners,
showing them the king's grace's
instructions, containing the same,
signed with his grace's own hand
in summer, that they fear not to
speak, that they be continually
beguiled, and no promise is kept
unto them; and thereupon some
of them suppose that if this gift
and grant be once levied, albeit
the king's grace go not beyond the
sea, yet nothing shall be restored
again, albeit they be showed the
contrary. And generally it is re-
ported unto me, that for the most
part every man saith he will be
contented if the king's grace have
as much as he can spare, but ve-
rily many say they be not able to
do as they be required. And many
denieth not but they will give the
king's grace according to their
power, but they will not anywise
give at other men's appointments,
which knoweth not their needs.
**** I have heard say more-
over that when the people be com-
manded to make fires and tokens
of joy for the taking of the French
king, divers of them have spoken
that they have more cause to weep
than to rejoice thereat. And divers,
as it hath been showed me secretly,
have wished openly that the French
king were at his liberty again, so
as there were a good peace, and the
king should not attempt to win
France; the winning whereof
should be more chargeful to Eng-
land than profitable, and the keep-
ing thereof much more chargeful
than the winning. Also it hath
been told me secretly that divers
have recounted and repeated what
infinite sums of money the king's
grace hath spent already in in-
vading of France, once in his own
royal person, and two other sundry
times by his several noble captains,
and little or nothing in comparison
of his costs hath prevailed; inso-
much that the king's grace at this
hour hath not one foot of land
more in France than his most noble
father had, which lacked no riches
or wisdom to win the kingdom of
France, if he had thought it expe-
dient.' The archbishop goes on
to observe, rather oddly, that "he
would that the time had suffered
that this practising with the people
for so great sums might have been
spared till the cuckow time and
the hot weather (at which time
mad brains be wont to be most
busy) had been overpassed."
Warham dwells, in another let-
I.
HEN. VII.
TO
MARY.
28 f
THE CONSTITUTIONAL HISTORY OF ENGLAND
TO
MARY.
CHAP. strate, but were warned to beware, lest "it might
I. fortune to cost some their heads." Some were
HEN. VII. sent to prison for hasty words, to which the smart
Яof injury excited them. The clergy, from whom,
according to usage, a larger measure of contribu-
tion was demanded, stood upon their privilege to
grant their money only in convocation, and de-
nied the right of a king of England to ask any
man's money without authority of parliament.
The rich and poor agreed in cursing the cardinal
as the subverter of their laws and liberties; and
said "if men should give their goods by a com-
mission, then it would be worse than the taxes
of France, and England should be bond, and not
free." Nor did their discontent terminate in
complaints. The commissioners met with for-
cible opposition in several counties, and a serious
insurrection broke out in Suffolk. So menacing a
spirit overawed the proud tempers of Henry and
his minister, who found it necessary not only to
pardon all those concerned in these tumults, but
to recede altogether upon some frivolous pretexts
from the illegal exaction, revoking the commis-
sions and remitting all sums demanded under
them. They now resorted to the more specious
*
ter, on the great difficulty the
clergy had in making so large a
payment as was required of them,
and their unwillingness to be sworn
as to the value of their goods. The
archbishop seems to have thought it
passing strange that people would
be so wrongheaded about their
money. "I have been,” he says,
"in this shire twenty years and
above, and as yet I have not seen
men but would be conformable to
reason, and would be induced to
good order, till this time; and what
shall cause them now to fall into
these wilful and indiscreet ways,
I cannot tell, except poverty and
decay of substance be the cause
of it."
* Hall, 696. These expressions,
and numberless others might be
found, show the fallacy of Hume's
hasty assertion, that the writers of
the sixteenth century do not speak
of their own government as more
free than that of France.
FROM HENRY VII. TO GEORGE II.
29
*
I.
TO
. MARY.
request of a voluntary benevolence. This also the CHAP.
citizens of London endeavoured to repel, by alleg-
ing the statute of Richard III. But it was answered, HEN. VII.
that he was an usurper, whose acts did not oblige
a lawful sovereign. It does not appear whether or
not Wolsey was more successful in this new scheme;
but, generally, rich individuals had no remedy but ←
to compound with the government.
sey
No very material attempt had been made since
the reign of Edward III. to levy a general imposi-
tion without consent of parliament, and in the most
remote and irregular times it would be difficult to
find a precedent for so universal and enormous an
exaction; since tallages, however arbitrary, were
never paid by the barons or freeholders, nor by
their tenants; and the aids to which they were
liable were restricted to particular cases. If Wol-
therefore could have procured the acquiescence
of the nation under this yoke, there would proba-
bly have been an end of parliaments for all ordi-
nary purposes; though, like the States General of
France, they might still be convoked to give weight
and security to great innovations. We cannot in-
deed doubt that the unshackled condition of his
friend, though rival, Francis I., afforded a mortify-
ing contrast to Henry. Even under his tyrannical
administration there was enough to distinguish the
king of a people who submitted in murmuring to
violations of their known rights, from one whose
subjects had almost forgotten that they ever pos-
sessed any.
But the courage and love of freedom
natural to the English commons, speaking in the
hoarse voice of tumult, though very ill supported
30
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. by their superiors, preserved us in so great a
I.
HEN. VII.
TO
MARY.
liament re-
leasing the
king from
his debts.
peril.
*
J
If we justly regard with detestation the memory
of those ministers who have aimed at subverting
Acts of par- the liberties of their country, we shall scarcely
approve the partiality of some modern historians.
towards cardinal Wolsey; a partiality, too, that
contradicts the general opinion of his contempo-
raries. Haughty beyond comparison, negligent of
the duties and decorums of his station, profuse as
well as rapacious, obnoxious alike to his own order
and to the laity, his fall had long been secretly
desired by the nation and contrived by his adver-
saries. His generosity and magnificence seem
rather to have dazzled succeeding ages than his
own. But, in fact, his best apology is the dis-
† position of his master. The latter years of Henry's
reign were far more tyrannical than those during
which he listened to the counsels of Wolsey; and
though this was principally owing to the peculiar
circumstances of the latter period, it is but equit-
able to allow some praise to a minister for the
mischief which he may be presumed to have
averted. Had a nobler spirit animated the par-
liament which met at the era of Wolsey's fall, it
might have prompted his impeachment for gross
violations of liberty. But these were not the
offences that had forfeited his prince's favour, or
that they dared bring to justice. They were not
absent perhaps from the recollection of some of
those who took a part in prosecuting the fallen
* Hall, 699
FROM HENRY VII. TO GEORGE II.
V.
minister. I can discover no better apology for sir× CHAP.
Thomas More's participation in impeaching Wol-
*
-
I.
TO
MARY.
sey on articles so frivolous that they have served HEN. VII.
to redeem his fame with later times, than his know-
ledge of weightier offences against the common
weal which could not be alleged, and especially
the commissions of 1525. But in truth this
parliament showed little outward disposition to
object any injustice of such a kind to the car-
dinal. They professed to take upon themselves
to give a sanction to his proceedings, as if in
mockery of their own and their country's liber-
ties. They passed a statute, the most extraor-
dinary perhaps of those strange times, wherein
they do, for themselves and all the whole body
of the realm which they represent, freely, libe-
rally, and absolutely, give and grant unto the
king's highness, by authority of this present par-
liament, all and every sum and sums of money
which to them and every of them, is, ought, or
might be due, by reason of any money, or any
other thing, to his Grace at any time heretofore
advanced or paid by way of trust or loan, either
upon any letter or letters under the king's privy
seal, general or particular, letter missive, promise
bond, or obligation of repayment, or by any tax-
* The word impeachment is not
very accurately applicable to these
proceedings against Wolsey; since
the articles were first presented to
the Upper House, and sent down to
the Commons, where Cromwell so
ably defended his fallen master
that nothing was done upon them.
Upon this honest beginning,"
says lord Herbert, "Cromwell ob-
tained his first reputation." I am
CC
disposed to conjecture from Crom-
well's character and that of the
House of Commons, as well as from
some passages of Henry's subse-
quent behaviour towards the car-
dinal, that it was not the king's
intention to follow up this prose-
cution, at least for the present.
This also I find to be Dr. Lingard's
opinion.

THE CONSTITUTIONAL HISTORY OF ENGLAND
I.
TO
MARY.
CHAP. ation or other assessing, by virtue of any commis.
sion or commissions, or by any other mean or
HEN. VII. means, whatever it be, heretofore passed for that
purpose.” *
This extreme servility and breach of
trust naturally excited loud murmurs; for the debts
thus released had been assigned over by many
to their own creditors, and having all the security
both of the king's honour and legal obligation,
were reckoned as valid as any other property. It
is said by Hall, that most of this House of Com.
mons held offices under the Crown. This illaud.
able precedent was remembered in 1544, when a
similar act passed, releasing to the king all monies
borrowed by him since 1542, with the additional
provision, that if he should have already discharged
any of these debts, the party or his heirs should
repay his Majesty. †
A benevo-
lence again
exacted.
t
Henry had once more recourse, about 1545, to
a general exaction, miscalled benevolence. The
council's instructions to the commissioners em-
ployed in levying it leave no doubt as to its com-
pulsory character. They were directed to incite
Xall men to a loving contribution according to the
rates of their substance, as they were assessed at
the last subsidy, calling on no one whose lands
* Rot. Parl. vi. 164. Burnet,
"When this
Appendix, No. 31.
release of the loan," says Hall,
was known to the commons of
the realm, Lord! so they grudged
and spake ill of the whole par-
liament; for almost every man
counted it his debt, and reckoned
surely of the payment of the same,
and therefore some made their
wills of the same, and some other
did set it over to other for debt;
and so many men had loss by it,
which caused them sore to mur-
mur, but there was no remedy."
P.767.
+ Stat. 35 H.8. c. 12. I find
in a manuscript, which seems to
have been copied from an original
in the exchequer, that the monies
thus received by way of loan in
1543 amounted to £110,147 15s.
8d. There was also a sum called
devotion money, amounting only to
£1093 8s. 3d., levied in 1544, "of
the devotion of his highnesse's
subjects for Defence of Christendom
against the Turk."
FROM HENRY VII. TO GEORGE II.
33
CHAP.
I.
HEN. VII.
were of less value than 40s. or whose chattels
were less than £15. It is intimated that the least
which his majesty could reasonably accept would
be twenty pence in the pound, on the yearly
value of land, and half that sum on moveable
goods. They are to summon but a few to attend at
one time, and to commune with every one apart,
"lest some one unreasonable man, amongst so
many, forgetting his duty towards God, his sove-
reign lord, and his country, may go about by his
malicious frowardness to silence all the rest, be
they never so well disposed." They were to use X
"good words and amiable behaviour," to induce
men to contribute, and to dismiss the obedient
with thanks. But if any person should withstand
their gentle solicitations, alleging either poverty
or some other pretence which the commissioners
should deem unfit to be allowed, then after failure
of persuasions and reproaches for ingratitude, they
were to command his attendance before the privy
council, at such time as they should appoint, to
whom they were to certify his behaviour, enjoin-
ing him silence in the mean time, that his evil
example might not corrupt the better disposed.*
It is only through the accidental publication
of some family papers, that we have become ac-
* Lodge's Illustrations of British
History, i. 711. Strype's Eccles.
Memorials, Appendix, n. 119. The
sums raised from different counties
for this benevolence afford a sort
of criterion of their relative opu-
lence. Somerset gave £6807;
Kent 6471; Suffolk £4512;
Norfolk, £4046; Devon, £4527;
Essex, £5051; but Lancaster only
£660; and Cumberland, £574.
VOL. I.
The whole produced £119,581.
7s. 6d. besides arrears. In Haynes's
State Papers, p. 54. we find a cu-
rious minute of secretary Paget,
containing reasons why it was bet-
ter to get the money wanted by
means of a benevolence, than
through parliament. But he does
not hint at any difficulty of ob-
taining a parliamentary grant.
D
то
MARY.
34
THE CONSTITUTIONAL HISTORY OF ENGLAND
I.
CHAP. quainted with this document, so curiously illus-
trative of the government of Henry VIII. From
HEN. VII. the same authority may be exhibited a particular
MARY. specimen of the consequences that awaited the
Oppressive refusal of this benevolence. One Richard Reed,
TO
treatment
of Reed.
an alderman of London, had stood alone, as is
said, among his fellow-citizens, in refusing to con-
tribute. It was deemed expedient not to overlook
this disobedience; and the course adopted in pur-
suing it is somewhat remarkable. The English
army was then in the field on the Scots border.
Reed was sent down to serve as a soldier at his
own charge; and the general, Sir Ralph Ewer,
received intimations to employ him on the hardest
and most perilous duty, and subject him, when
in garrison, to the greatest privations, that he
might feel the smart of his folly and sturdy dis-
obedience. “Finally," the letter concludes, "you
must use him in all things according to the sharpe
disciplyne militar of the northern wars." * It is
natural to presume that few would expose them-
selves to the treatment of this unfortunate citizen;
and that the commissioners, whom we find ap-
pointed two years afterwards in every county, to
obtain from the king's subjects as much as they
would willingly give, if they did not always find
perfect readiness, had not to complain of many
peremptory denials. †
Severe and Such was the security that remained against
cutions for arbitrary taxation under the two Henries.
unjust exe-
treason.
1
* Lodge, p. 80. Lord Herbert
mentions this story, and observes,
that Reed having been taken by
the Scots, was compelled to pay
Were
much more for his ransom than
the benevolence required of him.
+ Rymer, xv. 84. These com-
missions bearing date 5th Jan. 1546.
FROM HENRY VII. TO GEORGE II.
35
CHAP.
1.
ΤΟ
MARY,
men's lives better protected from unjust measures,
and less at the mercy of a jealous court? It can-
not be necessary to expatiate very much on this HEN. VII.
subject in a work that supposes the reader's ac-
quaintance with the common facts of our history;
yet it would leave the picture too imperfect, were
I not to recapitulate the more striking instances
of sanguinary injustice, that have cast so deep a
shade over the memory of these princes.
Warwick.
4
The Duke of Clarence, attainted in the reign of Earl of
his brother Edward IV., left one son, whom his
uncle restored to the title of earl of Warwick.
This boy, at the accession of Henry VII., being
then about twelve years old, was shut up in the
Tower. Fifteen years of captivity had elapsed,
when, if we trust to the common story, having
unfortunately become acquainted with his fellow-
prisoner Perkin Warbeck, he listened to a scheme
for their escape, and would probably not have
been averse to second the ambitious views of that
young man. But it was surmised, with as much
likelihood as the character of both parties could
give it, that the king had promised Ferdinand of
Aragon to remove the earl of Warwick out of the
way, as the condition of his daughter's marriage
with the prince of Wales, and the best means of
securing their inheritance. Warwick accordingly
was brought to trial for a conspiracy to overturn
the government; which he was induced to confess,
in the hope, as we must conceive, and perhaps with
an assurance, of pardon, and was immediately
executed.
The nearest heir to the house of York, after the Earl of
queen and her children, and the descendants of
Suffolk.
D 2
36
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
I.
ΤΟ
MARY.
the duke of Clarence, was a son of Edward IV.'s
sister, the earl of Suffolk, whose elder brother, the
HEN. VII. earl of Lincoln, had joined in the rebellion of
Lambert Simnel, and perished at the battle of
Stoke. Suffolk, having killed a man in an affray,
obtained a pardon which the king compelled him
to plead in open court at his arraignment. This
laudable impartiality is said to have given him
offence, and provoked his flight into the Nether-
lands; whence, being a man of a turbulent dis-
position, and partaking in the hatred of his family
towards the house of Lancaster, he engaged in a
conspiracy with some persons at home, which
caused him to be attainted of treason. Some time
afterwards, the archduke Philip, having been ship-
wrecked on the coast of England, found himself
in a sort of honourable detention at Henry's court.
On consenting to his departure, the king requested
him to send over the earl of Suffolk; and Philip,
though not insensible to the breach of hospitality
exacted from him, was content to satisfy his honour
by obtaining a promise that the prisoner's life
should be spared. Henry is said to have reckoned
this engagement merely personal, and to have left
as a last injunction to his successor, that he should
carry into effect the sentence against Suffolk.
Though this was an evident violation of the
promise in its spirit, yet Henry VIII., after the
lapse of a few years, with no new pretext, caused
him to be executed.
Duke of
Bucking-
ham.
The duke of Buckingham, representing the an-
cient family of Stafford, and hereditary high con-
stable of England, stood the first in rank and con-
sequence, perhaps in riches, among the nobility.
FROM HENRY VII. TO GEORGE II.
37
CHAP.
I.
ΤΟ
MARY.
But being too ambitious and arrogant for the age
in which he was born, he drew on himself the
jealousy of the king, and the resentment of Wolsey. HEN. VII.
The evidence, on his trial for high treason, was
almost entirely confined to idle and vaunting
language, held with servants who betrayed his
confidence, and soothsayers whom he had believed.
As we find no other persons charged as parties
with him, it seems manifest that Buckingham was
innocent of any real conspiracy. His condemnation
not only gratified the cardinal's revenge, but
answered a very constant purpose of the Tudor
government, that of intimidating the great families,
from whom the preceding dynasty had experienced
so much disquietude.*
sons creat-
The execution, however, of Suffolk was at least New trea-
not contrary to law; and even Buckingham was ed by sta-
attainted on evidence which, according to the tutes.
tremendous latitude with which the law of treason
had been construed, a court of justice could not
be expected to disregard. But after the fall of
Wolsey, and Henry's breach with the Roman see,
his fierce temper, strengthened by habit and ex-
asperated by resistance, demanded more constant
supplies of blood; and many perished by sentences
which we can hardly prevent ourselves from con-
sidering as illegal, because the statutes to which
they might be conformable seem, from their tem-
porary duration, their violence, and the passiveness

* Hall, 622. Hume, who is fa-
vourable to Wolsey, says, "There
is no reason to think the sentence
against Buckingham unjust." But
no one who reads the trial will
find any evidence to satisfy a rea-
sonable mind; and Hume himself
soon after adds, that his crime
proceeded more from indiscretion
than deliberate malice. In fact,
the condemnation of this great
noble was owing to Wolsey's re-
sentment, acting on the savage
temper of Henry.
D
3
38
THE CONSTITUTIONAL HISTORY OF ENGLAND
:
I.
HEN. VII.
TO
MARY.
of Fisher
and More.
CHAP. of the parliaments that enacted them, rather like
arbitrary invasions of the law than alterations of it.
XBy an act of 1534, not only an oath was imposed
to maintain the succession in the heirs of the king's
second marriage, in exclusion of the princess Mary;
but it was made high treason to deny that eccle-
siastical supremacy of the crown, which, till about
two years before, no one had ever ventured to
Executions assert. Bishop Fisher, the most inflexibly honest
churchman who filled a high station in that age,
was beheaded for this denial. Sir Thomas More,
whose name can ask no epithet, underwent a simi-
lar fate. He had offered to take the oath to main-
tain the succession, which, as he justly said, the
legislature was competent to alter; but prudently
avoided to give an opinion as to the supremacy, till
Rich, solicitor-general, and afterwards chancellor,
elicited, in a private conversation, some expressions,
which were thought sufficient to bring him within
the fangs of the recent statute. A considerable
number of less distinguished persons, chiefly eccle-
siastical, were afterwards executed by virtue of this
law.
The' sudden and harsh innovations made by
Henry in religion, as to which every artifice of
concealment and delay is required, his destruction
of venerable establishments, his tyranny over the
recesses of the conscience, excited so dangerous
a rebellion in the north of England, that his own
general, the duke of Norfolk, thought it absolutely
necessary to employ measures of conciliation.*
* Several letters that passed be-
tween the council and duke of
Norfolk,(Hardwicke State Papers,
i. 28, &c.) tend to confirm what
some historians have hinted, that
he was suspected of leaning too
favourably towards the rebels. The
king was most unwilling to grant
FROM HENRY VII. TO GEORGE II.
39
CHAP.
I.
TO
MARY.
The insurgents laid down their arms, on an un-
conditional promise of amnesty. But another
rising having occurred in a different quarter, the HEN. VII.
king made use of this pretext to put to death some
persons of superior rank, who, though they had,
voluntarily or by compulsion, partaken in the first
rebellion, had no concern in the second, and to let
loose military law upon their followers. Nor was
his vengeance confined to those who had evidently
been guilty of these tumults. It is, indeed, un-
reasonable to deny that there might be, nay,
there probably were, some real conspirators among
those who suffered on the scaffolds of Henry. Yet
in the processes against the countess of Salisbury,
an aged woman, but obnoxious as the daughter of
the duke of Clarence and mother of Reginald Pole,
an active instrument of the pope in fomenting re-
bellion *, against the abbots of Reading and Glas-
a free pardon. Norfolk is told,
"If you could, by any good means
or possible dexterity, reserve avery
few persons for punishments, you
should assuredly administer the
greatest pleasure to his highness
that could be imagined, and much
in the same advance your own
honour."-P. 32. He must have
thought himself in danger from
some of these letters, which indi-
cate the king's distrust of him. He
had recommended the employment
of men of high rank as lords of the
marches, instead of the rather in-
ferior persons whom the king had
lately chosen. This called down
on him rather a warm reprimand
(p.39.); for it was the natural
policy of a despotic court to re-
strain the ascendency of great fa-
milies; nor were there wanting
very good reasons for this, even if
the public weal had been the sole
object of Henry's council. See
also, for the 'subject of this note,
the State Papers and MSS., H. 8.
1830, p. 518. et alibi. They con-
tain a good deal of interesting
matter as to the northern rebellion,
which gave Henry a pretext for
great severities towards the monas-
teries in that part of England.
* Pole, at his own solicitation,
was appointed legate to the Low
Countries in 1537, with the sole
object of keeping alive the flame
of the northern rebellion, and ex-
citing foreign powers as well as the
English nation, to restore religion
by force, if not to dethrone Henry.
It is difficult not to suspect that he
was influenced by ambitious views
in a proceeding so treasonable, and
so little in conformity with his po-
lished manners and temperate life.
Philips, his able and artful bio-
grapher, both proves and glories in
the treason. Life of Pole, sect. 3.
D 4
40
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. tonbury, and others who were implicated in charges
I.
ΤΟ
of treason at this period, we find so much haste,
¡HEN. VII. such neglect of judicial forms, and so blood-thirsty
a determination to obtain convictions, that we are
naturally tempted to reckon them among the vic-
tims of revenge or rapacity.
MARY,
Cromwell.
It was, probably, during these prosecutions that
Cromwell, a man not destitute of liberal qualities,
but who is liable to the one great reproach of
having obeyed too implicitly a master whose com-
mands were crimes, inquired of the judges whether,
if parliament should condemn a man to die for
treason without hearing him, the attainder could
ever be disputed. They answered that it was a
dangerous question, and that parliament should
rather set an example to inferior courts for pro-
ceeding according to justice. But being pressed
to reply by the king's express commandment, they
said that an attainder in parliament, whether the
party had been heard or not in his defence, could
never be reversed in a court of law. No proceed-
ings, it is said, took place against the person in-
tended, nor is it known who he was.
But men
prone to remark all that seems an appropriate
retribution of Providence, took notice that he,
who had thus solicited the interpreters of the law
to sanction such a violation of natural justice, was
himself its earliest example. In the apparent
zenith of favour, this able and faithful minister,
the king's vicegerent in his ecclesiastical supre-
* Coke's 4th Institute, 37. It
is however said by lord Herbert
and others, that the countess of
Salisbury and the marchioness of
Exeter were not heard in their
*
defence. The acts of attainder
against them were certainly hur-
ried through parliament; but whe-
ther without hearing the parties,
does not appear.
FROM HENRY VII. TO GEORGE II.
41
macy, and recently created earl of Essex, fell soX CHAP.
suddenly, and so totally without offence, that it
I.
TO
has perplexed some writers to assign the cause. HEN. VII.
But there seems little doubt that Henry's dissatis-X MARY.
faction with his fourth wife, Anne of Cleves, whom
Cromwell had recommended, alienated his selfish
temper, and inclined his ear to the whisperings of
those courtiers who abhorred the favourite and
his measures. An act attainting him of treasonX
and heresy was hurried through parliament, with-
out hearing him in his defence.*
The charges,
indeed, at least of the first kind, were so un-
grounded, that had he been permitted to refute
them, his condemnation, though not less certain,
might, perhaps, have caused more shame. This
precedent of sentencing men unheard, by means
of an act of attainder, was followed in the case of
Dr. Barnes, burned not long afterwards for heresy.
The duke of Norfolk had been, throughout Duke of
Henry's reign, one of his most confidential mini-
sters. But as the king approached his end, an in-
ordinate jealousy of great men, rather than mere
* Burnet observes, that Cran-
mer was absent the first day the
bill was read, 17th June, 1540;
and by his silence leaves the reader
to infer that he was so likewise on
19th June, when it was read a se-
cond and third time. But this, I
fear, cannot be asserted. He is
marked in the journal as present
on the latter day; and there is the
following entry: "Hodie lecta est
pro secundo et tertio, billa attinc-
turæ Thomæ Comitis Essex, et
communi omnium procerum tunc
præsentium concessu nemine dis-
crepante, expedita est." And at
the close of the session, we find a
still more remarkable testimony to
the unanimity of parliament, in the
in
following words: "Hoc animad-
vertendum est, quod in hâc sessione
cum proceres darent suffragia, et
dicerent sententias super actibus.
prædictis, ea erat concordia et sen-
tentiarum conformitas, ut singuli
iis et eorum singulis assenserint,
nemine discrepante. Thomas de
Soulemont, Cleric. Parliamento-
rum." As far therefore as entries
on the journals are evidence, Cran-
mer was placed in the painful and
humiliating predicament of voting
for the death of his innocent friend.
He had gone as far as he dared in
writing a letter to Henry, which
might be construed into an apo-
logy for Cromwell, though it was
full as much so for himself.
Norfolk,
42
THE CONSTITUTIONAL HISTORY OF ENGLAND
I.
ΤΟ
CHAP. caprice, appears to have prompted the resolution
of destroying the most conspicuous family in Eng-
HEN. VII. land. Norfolk's son, too, the earl of Surrey, though
MARY. long a favourite with the king, possessed more
talents and renown, as well as a more haughty
spirit, than was compatible with his safety. A
\strong party at court had always been hostile to
the duke of Norfolk; and his ruin was attributed
especially to the influence of the two Seymours.
No accusations could be more futile than those
which sufficed to take away the life of the noblest
and most accomplished man in England. Surrey's
treason seems to have consisted chiefly in quarter-
ing the royal arms in his escutcheon; and this false
heraldry, if such it were, must have been con-
sidered as evidence of meditating the king's
death. His father ignominiously confessed the
charges against himself, in a vain hope of mercy
from one who knew not what it meant. An act of
attainder (for both houses of parliament were com-
monly made accessary to the legal murders of this
reign) was passed with much haste, and perhaps
irregularly; but Henry's demise ensuing at the
instant, prevented the execution of Norfolk. Con-
Xtinuing in prison during Edward's reign, he just
Anne
Boleyn.
survived to be released and restored in blood under
Mary.
Among the victims of this monarch's ferocity,
as we bestow most of our admiration on sir Tho-
mas More, so we reserve our greatest pity for Anne
Boleyn. Few, very few, have in any age hesitated
to admit her innocence. But her discretion was
* Burnet has taken much pains
with the subject, and set her in-
nocence in a very clear light:
*
i. 197. & iii. 114. See also Strype,
i. 280. and Ellis's Letters, ii. 52.
But Anne had all the failings of a
FROM HENRY VII. TO GEORGE II.
43
I.
by no means sufficient to preserve her steps on that CHAP.
dizzy height, which she had ascended with more
eager ambition than feminine delicacy could ap-
prove. Henry was probably quick-sighted enough
to perceive that he did not possess her affections;
vain, weak woman, raised suddenly
to greatness. She behaved with
unamiable vindictiveness towards
Wolsey, and perhaps (but this
worst charge is not fully authenti-
cated) exasperated the king against
More. A remarkable passage in
Cavendish's Life of Wolsey, p.
103. edit. 1667, strongly displays
her indiscretion.
A late writer, whose acuteness
and industry would raise him to a
very respectable place among our
historians, if he could have re-
pressed the inveterate partiality of
his profession, has used every ob-
lique artifice to lead his readers
into a belief of Anne Boleyn's
guilt, while he affects to hold the
balance, and state both sides of the
question without determining it.
Thus he repeats what he must have
known to be the strange and ex-
travagant lies of Sanders about her
birth; without vouching for them
indeed, but without any reproba-
tion of their absurd malignity.
Lingard's Hist. of England, vi. 153.
(8vo. edit.) Thus he intimates
that "the records of her trial and
conviction have perished, perhaps
by the hands of those who re-
spected her memory," p. 316. ;
though, had he read Burnet with
any care, he would have found
that they were seen by that his-
torian, and surely have not perish-
ed since by any unfair means; not
to mention that the record of a
trial contains nothing from which
a party's guilt or innocence can be
inferred. Thus he says that those
who were executed on the same
charge with the queen, neither ad-
mitted nor denied the offence for
which they suffered; though the
best informed writers assert that
Norris constantly declared the
queen's innocence and his own.
Dr. Lingard can hardly be
thought serious, when he takes
credit to himself, in the commence-
ment of a note at the end of the
same volume, for not "rendering
his book more interesting, by re-
presenting her as an innocent and
injured woman, falling a victim to
the intrigues of a religious faction."
He well knows that he could not
have done so, without contradict-
ing the tenor of his entire work,
without ceasing, as it were, to be
himself. All the rest of this note
is a pretended balancing of evi-
dence, in the style of a judge who
can hardly bear to put for a mo-
ment the possibility of a prisoner's
innocence.
I regret very much to be com-
pelled, in this edition, to add the
name of Mr. Sharon Turner to
those who have countenanced the
supposition of Anne Boleyn's guilt.
But Mr. Turner, a most worthy
and pains-taking man, to whose
earlier writings our literature is
much indebted, has, in his history
of Henry VIII., gone upon the
strange principle of exalting that
tyrant's reputation at the expense
of every one of his victims, to
whatever party they may have be-
longed. Odit damnatos. Perhaps
he is the first, and will be the last,
who has defended the attainder of
sir Thomas More. A verdict of a
jury, an assertion of a statesman,
a recital of an act of parliament,
are, with him, satisfactory proofs of
the most improbable accusations
against the most blameless cha-
racter.
HEN. VII.
MARY.
TO
44
THE CONSTITUTIONAL HISTORY OF ENGLAND
I.
ΤΟ
MARY.
CHAP. and his own were soon transferred to another
object. Nothing in this detestable reign is worse
HEN. VII. than her trial. She was indicted, partly upon the
statute of Edward III., which, by a just though
rather technical construction, has been held to ex-
tend the guilt of treason to an adulterous queen as
well as to her paramour, and partly on the recent
law for preservation of the succession, which at-
tached the same penalties to any thing done or
said in slander of the king's issue. Her levities in
discourse were brought within this strange act by
a still more strange interpretation. Nor was the
wounded pride of the king content with her death.
Under the fear, as is most likely, of a more cruel
punishment, which the law affixed to her offence,
Anne was induced to confess a pre-contract with
lord Percy, on which her marriage with the king
was annulled by an ecclesiastical sentence, without
awaiting its certain dissolution by the axe.* Henry
seems to have thought his honour too much sul-
lied by the infidelity of a lawful wife. But for
this destiny he was yet reserved. I shall not im-
pute to him as an act of tyranny the execution of
* The lords pronounced a sin-
gular sentence, that she should be
burned or beheaded at the king's
pleasure. Burnet says, the judges
complained of this as unprece-
dented. Perhaps in strictness the
king's right to aller a sentence is
questionable, or rather would be
so, if a few precedents were out of
the way.
In high treason com-
mitted by a man, the beheading
was part of the sentence, and the
king only remitted the more crucl
preliminaries. Women, till 1791,
were condemned to be burned.
But the two queens of Henry, the
countess of Salisbury, lady Roch-
ford, lady Jane Grey, and, in later
times, Mrs. Lisle, were behead-
ed. Poor Mrs. Gaunt was not
thought noble enough to be rescued
from the fire. In felony, where be-
heading is no part of the sentence,
it has been substituted by the king's
warrant in the cases of the duke of
Somerset and lord Audley. I know
not why the latter obtained this
favour; for it had been refused to
lord Stourton, hanged for murder
under Mary, as it was afterwards
to earl Ferrers.
FROM HENRY VII. TO GEORGE II.
4.5
I.
ΤΟ
MARY.
Catherine Howard, since it appears probable that CHAP.
the licentious habits of that young woman had
continued after her marriage; and though we HEN. VII.
might not in general applaud the vengeance of
a husband who should put a guilty wife to death,
it could not be expected that Henry VIII. should
lose so reasonable an opportunity of shedding
blood.* It was after the execution of this fifth
wife that the celebrated law was enacted, whereby
any woman whom the king should marry as a vir-
gin incurred the penalties of treason, if she did
not previously reveal any failings that had disqua-
lified her for the service of Diana.t
tutes enact-
treason.
These parliamentary attainders, being intended Fresh sta-
rather as judicial than legislative proceedings, were ing the pe-
violations of reason and justice in the application nalties of
of law. But many general enactments of this reign
bear the same character of servility. New poli-
tical offences were created in every parliament,
against which the severest penalties were de-
nounced. The nation had scarcely time to rejoice
*It is often difficult to under-
stand the grounds of a parliament-
ary attainder, for which any kind
of evidence was thought sufficient;
and the strongest proofs against
Catherine Howard undoubtedly
related to her behaviour before
marriage, which could be no legal
crime. But some of the deposi-
tions extend further.
Dr. Lingard has made a cu-
rious observation on this case.
"A plot was woven by the indus-
try of the reformers, which brought
the young queen to the scaffold,
and weakened the ascendency of
the reigning party." p. 407. This
is a very strange assertion; for he
proceeds to admit her ante-nuptial
guilt, which indeed she is well
known to have confessed, and does
not give the slightest proof of any
plot. Yet he adds, speaking of the
queen and lady Rochford: "I fear
[i. e. wish to insinuate] both were
sacrificed to the manes of Anne
Boleyn."
+ Stat. 26 H. 8. c. 13.
It may be here observed, that
the act attainting Catherine How-
ard of treason proceeds to declare
that the king's assent to bills by
commission under the great seal
is as valid as if he were personally
present; any custom or use to the
contrary notwithstanding. 33 H.
8. c. 21. This may be presumed
therefore to be the earliest instance
of the king's passing bills in this
manner.
46
THE CONSTITUTIONAL HISTORY OF ENGLAND
I.
TO
MARY.
CHAP. in the termination of those long debates between
the houses of York and Lancaster, when the king's
HEN. VII. divorce, and the consequent illegitimacy of his
eldest daughter, laid open the succession to fresh
questions. It was needlessly unnatural and unjust
to bastardize the princess Mary, whose title ought
rather to have had the confirmation of parliament.
But Henry, who would have deemed so moderate
a proceeding injurious to his cause in the eyes of
Europe, and a sort of concession to the adversa-
ries of the divorce, procured an act settling the
crown on his children by Anne or any subsequent
wife. Any person disputing the lawfulness of the
king's second marriage might, by the sort of con-
struction that would be put on this act, become
liable to the penalties of treason.
In two years
proclama-
tions the
force of
law.
more this very marriage was annulled by sentence;
and it would perhaps have been treasonable to assert
the princess Elizabeth's legitimacy. The same
punishment was enacted against such as should
marry without license under the great seal, or
have a criminal intercourse with any of the king's
children" lawfully born, or otherwise commonly
reputed to be his children, or his sister, aunt, or
niece." *
Act giving Henry's two divorces had created an uncertainty
as to the line of succession, which parliament en-
deavoured to remove, not by such constitutional
provisions in concurrence with the crown as might
define the course of inheritance, but by enabling
the king, on failure of issue by Jane Seymour or
any other lawful wife, to make over and bequeath ·
the kingdom to any persons at his pleasure, not
* 28 H. 8. c. 18.
1
FROM HENRY VII. TO GEORGE II.
47
I.
TO
MARY.
even reserving a preference to the descendants of CHAP.
former sovereigns.* By a subsequent statute, the
princesses Mary and Elizabeth were nominated in HEN. VII.
the entail, after the king's male issue, subject, how-
ever, to such conditions as he should declare,
by non-compliance with which their right was to
cease. This act still left it in his power to limit
the remainder at his discretion. In execution of
this authority, he devised the crown, upon failure
of issue from his three children, to the heirs of
the body of Mary duchess of Suffolk, the younger
of his two sisters; postponing at least, if not ex-
cluding, the royal family of Scotland, descended
from his elder sister Margaret. In surrendering
the regular laws of the monarchy to one man's
caprice, this parliament became accessary, so far
as in it lay, to dispositions which might eventually
have kindled the flames of civil war. But it
seemed to aim at inflicting a still deeper injury
on future generations, in enacting that a king,
after he should have attained the age of twenty-
four years, might repeal any statutes made since
his accession. Such a provision not only tended
to annihilate the authority of a regency, and to
expose the kingdom to a sort of anarchical con-
fusion during its continuance, but seemed to pre-
pare the way for a more absolute power of abro-
gating all acts of the legislature.
Three years
afterwards it was enacted that proclamations made
by the king and council, under penalty of fine and
imprisonment, should have the force of statutes,
so that they should not be prejudicial to any per-
son's inheritance, offices, liberties, goods, and chat-
+ 35 H. 8. c. 1. ‡ 28 H. 8. c. 17.
* 28 H. 8. c. 7.
48
THE CONSTITUTIONAL HISTORY OF ENGLAND
I.
ΤΟ
MARY.
CHAP. tels, or infringe the established laws. This has
been often noticed as an instance of servile com-
HEN. VII. pliance. It is, however, a striking testimony to
the free constitution it infringed, and demonstrates
that the prerogative could not soar to the heights
it aimed at, till thus imped by the perfidious hand
of parliament. It is also to be observed, that the
power given to the king's proclamations is consi-
derably limited.*
t
A government administered with so frequent
violations not only of the chartered privileges of
Englishmen, but of those still more sacred rights
which natural law has established, must have
been regarded, one would imagine, with just ab
horrence, and earnest longings for a change. Yet
contemporary authorities by no means answer to
this expectation. Some mention Henry after his
death in language of eulogy; and, if we except
those whom attachment to the ancient religion had
inspired with hatred towards his memory, very few
appear to have been aware that his name would
sons.
* 31 H. 8. c. 8. Burnet, i. 263.
explains the origin of this act.
Great exceptions had been taken
to some of the king's ecclesiastical
proclamations, which altered laws,
and laid taxes on spiritual per-
He justly observes that the
restrictions contained in it gave
great power to the judges, who had
the power of expounding in their
hands. The preamble is full as
offensive as the body of the act;
reciting the contempt and dis-
obedience of the king's proclama-
tions by some "who did not con-
sider what a king by his royal
power might do, which if it con-
tinued would tend to the disobe-
dience of the laws of God, and the
dishonour of the king's majesty,
CC
who might full ill bear it," &c.
See this act at length in the great
edition of the statutes. There was
one singular provision: the clause
protecting all persons, as men-
tioned, in their inheritance or other
property, proceeds, nor shall by
virtue of the said act suffer any
pains of death." But an excep-
tion is afterwards made for "such
persons which shall offend against
any proclamation to be made by
the king's highness, his heirs or
successors, for or concerning any
kind of heresies against Christian
doctrine." Thus it seems that the
king claimed a power to declare
heresy by proclamation, under pe-
nalty of death.

FROM HENRY VII. TO GEorge 11.
TO,
MARY.
descend to posterity among those of the many CH
tyrants and oppressors of innocence, whom the
wrath of Heaven has raised up, and the servility HEN. VII.
of men has endured. I do not indeed believe that
he had really conciliated his people's affection.
That perfect fear which attended him must have
cast out love. But he had a few qualities that de-
serve esteem, and several which a nation is pleased
to behold in its sovereign. He wanted, or at least
did not manifest in any eminent degree, one usual
vice of tyrants, dissimulation; his manners were
affable, and his temper generous. Though his
schemes of foreign policy were not very sagacious,
and his wars, either with France or Scotland, pro-
ductive of no material advantage, they were uni-X
formly successful, and retrieved the honour of the
English name. But the main cause of the rever- X
ence with which our forefathers cherished this
king's memory, was the share he had taken in the
Reformation. They saw in him not indeed the
proselyte of their faith, but the subverter of their
enemies' power, the avenging minister of Heaven,
by whose giant arm the chain of superstition had
been broken, and the prison gates burst asunder. *
The ill-assorted body of counsellors who exercised ment of Ed-
* Gray has finely glanced at this
bright point of Henry's character,
in that beautiful stanza where he
has made the founders of Cam-
bridge pass before our eyes, like
shadows over a magic glass :
the majestic lord,
Who broke the bonds of Rome.
In a poet, this was a fair em-
ployment of his art; but the par-
tiality of Burnet towards Henry
VIII. is less warrantable; and he
VOL. I.
E
should have blushed to excuse, by
absurd and unworthy sophistry,
the punishment of those who re-
fused to swear to the king's su-
premacy, p. 351.
After all, Henry was every whit
as good a king and man as Francis
I., whom there are still some, on
the other side of the Channel, ser-
vile enough to extol; not in the
least more tyrannical and san-
guinary, and of better faith to-
wards his neighbours.
Govern-
ward VI.'s
counsellors.
!


THE CONSTITUTIONAL HISTORY OF ENGLAND
ΤΟ
MARY.
AP. the functions of regency by Henry's testament,
were sensible that they had not sinews to wield
HEN. VII. his iron sceptre, and that some sacrifice must be
made to a nation exasperated as well as overawed
X by the violent measures of his reign. In the first
session accordingly of Edward's parliament, the
new treasons and felonies which had been created
to please his father's sanguinary disposition, were
Xat once abrogated.* The statute of Edward III.
became again the standard of high treason, except
that the denial of the king's supremacy was still
liable to its penalties. The same act, which re-
lieves the subject from these terrors, contains also
a repeal of that which had given legislative va
lidity to the king's proclamations. These provi
sions appear like an elastic recoil of the consti-
tution after the extraordinary pressure of that
despotic reign. But, however they may indicate the
temper of parliament, we must consider them but
as an unwilling and insincere compliance on the
part of the government. Henry, too arrogant to
dissemble with his subjects, had stamped the law
itself with the print of his despotism. The more
wily courtiers of Edward's council deemed it less
obnoxious to violate than to new-mould the con-
Astitution. For, although proclamations had no
longer the legal character of statutes, we find se-
veral during Edward's reign enforced by penalty
of fine and imprisonment. Many of the eccle-
siastical changes were first established by no other
authority, though afterwards sanctioned by par-


* 1 Edw. 6. c. 12. By this act
it is provided that a lord of parlia
ment shall have the benefit of clergy
though he cannot read. Sect. 14.
Yet one can hardly believe, that
this provision was necessary at so
late an æra.
FROM HENRY VII. TO GEORGE II.
51
I.
TO
MARY.
liament. Rates were thus fixed for the price of CHAP.
provisions; bad money was cried down, with pe-
nalties on those who should buy it under a certain HEN. VII.
value, and the melting of the current coin prohi-
bited on pain of forfeiture. * Some of these might
possibly have a sanction from precedent, and from
the acknowledged prerogative of the crown in
regulating the coin. But no legal apology can be
made for a proclamation in April, 1549, addressed
to all justices of the peace, enjoining them to
arrest sowers and tellers abroad of vain and forged
tales and lies, and to commit them to the galleys,
there to row in chains as slaves during the king's
pleasure. One would imagine that the late sta-
tute had been repealed, as too far restraining the
royal power, rather than as giving it an unconsti-
tutional extension.
It soon became evident that, if the new admi-
nistration had not fully imbibed the sanguinary
spirit of their late master, they were as little scru-x
pulous in bending the rules of law and justice to
their purpose in cases of treason.
* 2 Strype, 147. 341. 491.
The duke of
&c., and asked if they would serve
him and assent to his coronation,
as by their duty of allegiance they
were bound to do. All this was
before the oath. 2 Burnet, Ap-
pendix, p. 93.
↑ Id. 149. Dr. Lingard has re-
marked an important change in the
coronation ceremony of Edward
VI. Formerly, the king had taken
an oath to preserve the liberties
of the realm, and especially those
granted by Edward the Confessor,
&c., before the people were asked
whether they would consent to
have him as their king. See the
form observed at Richard the Se-
cond's coronation in Rymer, vii.
158. But at Edward's coronation,
the archbishop presented the king
to the people, as rightful and un-
doubted inheritor by the laws of
God and man to the royal dignity
and crown imperial of this realmn,
Few will pretend that the co-
ronation, or the coronation oath,
were essential to the legal succes-
sion of the crown, or the exercise
of its prerogatives. But this alter-
ation in the form is a curious proof
of the solicitude displayed by the
Tudors, as it was much more by
the next family, to suppress every
recollection that could make their
sovereignty appear to be of
lar origin.
popu-
you
Attainder
of lord Sey-
mour,
1
1
E 2
52
THE CONSTITUTIONAL HISTORY OF ENGLAND
I.
TO
CHAP. Somerset, nominated by Henry only as one of his
sixteen executors, obtained almost immediately
HEN. VII. afterwards a patent from the young king, who
MARY. during his minority was certainly not capable of
any valid act, constituting him sole regent under
the name of protector, with the assistance indeed
of the rest as his counsellors, but with the power
of adding any others to their number. Conscious
of his own usurpation, it was natural for Somerset
to dread the aspiring views of others; nor was it
long before he discovered a rival in his brother,
lord Seymour of Sudeley, whom, according to the
policy of that age, he thought it necessary to de-
stroy by a bill of attainder. Seymour was appa-
rently a dangerous and unprincipled man; he had
courted the favour of the young king by small pre-
sents of money, and appears beyond question to
have entertained a hope of marrying the princess
Elizabeth, who had lived much in his house during
his short union with the queen dowager. It was
surmised that this lady had been poisoned to make
room for a still nobler consort.* But in this there
could be no treason; and it is not likely that any
evidence was given which could have brought him
within the statute of Edward III. In this prosecu-
Haynes's state papers contain
many curious proofs of the inci-
pient amour between lord Seymour
and Elizabeth, and show much in-
decent familiarity on one side, with
a little childish coquetry on the
other. These documents also ra-
ther tend to confirm the story of
ur clder historians, which I have
found attested by foreign writers
of that age (though Burnet has
thrown doubts upon it), that some
differences between the queen-dow-
ager and the duchess of Somerset
aggravated at least those of their
husbands. P. 61. 69. It is al
leged with absurd exaggeration,
in the articles against lord Sey-
mour, that, had the former proved
immediately with child after her
marriage with him, it might have
This mar-
passed for the king's.
riage, however, did not take place
before June, Henry having died in
January. Ellis's Letters, ii. 150.
FROM HENRY VII, TO GEORGE II.
53
XСHАР.
I.
TO
MARY.
tion against lord Seymour, it was thought expedient CHAP.
to follow the very worst of Henry's precedents,
by not hearing the accused in his defence. The HEN. VII.
bill passed through the upper house, the natural
guardian of a peer's life and honour, without one
dissenting voice. The commons addressed the
king that they might hear the witnesses, and also
the accused. It was answered, that the king did
not think it necessary for them to hear the latter,
but that those who had given their depositions be-
fore the lords might repeat their evidence before
the lower house. It rather appears that the com-
mons did not insist on this any farther; but the
bill of attainder was carried with a few negative
voices.* How striking a picture it affords of the
sixteenth century, to behold the popular and well-
natured duke of Somerset, more estimable at least
than any statesman employed under Edward, not
only promoting this unjust condemnation of his
brother, but signing the warrant under which he
was beheaded!
of duke of
But it was more easy to crush a single compe- Attainder
titor, than to keep in subjection the subtle and Somerset.
daring spirits trained in Henry's councils, and
jealous of the usurpation of an equal. The pro- X
tector, attributing his success, as is usual with men
in power, rather to skill than fortune, and con-
fident in the two frailest supports that a minister
can have, the favour of a child and of the lower
people, was stripped of his authority within a few
months after the execution of lord Seymour, by a
* Journals, Feb. 27. March 4.
1548-9. From these I am led to
doubt whether the commons ac-
tually heard witnesses against Sey-
mour, which Burnet and Strype
have taken for granted.
!
1
E
3
54
CHAP.
I.
ΤΟ
MARY.
THE CONSTITUTIONAL HISTORY OF ENGLAND
confederacy which he had neither the discretion
to prevent, nor the firmness to resist.
Though
HEN. VII. from this time but a secondary character upon
the public stage, he was so near the throne as to
keep alive the suspicions of the duke of Northum
berland, who, with no ostensible title, had be
come not less absolute than himself. It is not
improbable that Somerset was innocent of the
charge imputed to him, namely, a conspiracy to
murder some of the privy-councillors, which had
been erected into felony by a recent statute; but
the evidence, though it may have been false, does
Xnot seem legally insufficient. He demanded on
his trial to be confronted with the witnesses ; a
favour rarely granted in that age to state crimi-
nals, and which he could not very decently solicit
after causing his brother to be condemned unheard.
Three lords, against whom he was charged to have
conspired, sat upon his trial; and it was thought
a sufficient reply to his complaints of this breach
of a known principle, that no challenge could be
allowed in the case of a peer.
From this designing and unscrupulous oligarchy
no measure conducive to liberty and justice could
be expected to spring. But among the commons
there must have been men, although their names
have not descended to us, who, animated by a
purer zeal for these objects, perceived on how
precarious a thread the life of every man was sus
pended, when the private deposition of one sub-
orned witness, unconfronted with the prisoner,
could suffice to obtain a conviction in cases of
treason. In the worst period of Edward's reign,
we find inserted in a bill creating some new trea-
H
:
:
1
FROM HENRY VII. TO GEORGE II.
55
CHAP.
I.
ΤΟ
MARY.
sons, one of the most important constitutional
provisions which the annals of the Tudor family
afford. It is enacted, that "no person shall be HEN. VII.
indicted for any manner of treason, except on the
testimony of two lawful witnesses, who shall be
brought in person before the accused at the time
of his trial, to avow and maintain what they have
to say against him, unless he shall willingly con-
fess the charges."* This salutary provision was
strengthened, not taken away, as some later judges
ventured to assert, by an act in the reign of Mary.
In a subsequent part of this work, I shall find an
opportunity for discussing this important branch
of constitutional law.

reign.
It seems hardly necessary to mention the mo- Violence of
mentary usurpation of lady Jane Grey, founded Mary's
on no pretext of title which could be sustained
by any argument. She certainly did not obtain
that degree of actual possession which might have
sheltered her adherents under the statute of Henry
VII.; nor did the duke of Northumberland allege
this excuse on his trial, though he set up one of
a more technical nature, that the great seal was a
sufficient protection for acts done by its authority.t
* Stat. 5 and 6 Edw. VI. c. 11.
s. 12.
+ Burnet, ii. 243. An act was
made to confirm deeds of private
persons, dated during Jane's ten
days, concerning which some doubt
had arisen. 1 Mary, sess. 2. c. 4.
It is said in this statute, "her
highness's most lawful possession
was for a time disturbed and dis-
quieted by traiterous rebellion and
usurpation."
It appears that the young king's
original intention was to establish
a modified Salic law, excluding fe-
males from the crown, but not their
male heirs. In a writing drawn by
himself, and entitled “ My Device
for the Succession," it is entailed
on the heirs male of the lady queen,
if she have any before his death;
then to the lady Jane and her heirs
male; then to the heirs male of
lady Katharine; and in every in-
stance, except Jane, excluding the
female herself. Strype's Cranmer,
Append. 164.
A late author, on
consulting the original MS., in
the king's hand-writing, found that
it had been at first written,
"the
E
4
56
THE CONSTITUTIONAL HISTORY OF ENGLAND
TO
MARY.
X
CHAP. The reign that immediately followed is chiefly re-
I. membered as a period of sanguinary persecution;
HEN. VII. but though I reserve for the next chapter all men-
tion of ecclesiastical disputes, some of Mary's pro-
ceedings in re-establishing popery belong to the
civil history of our constitution. Impatient, under
the existence, for a moment, of rites and usages
which she abhorred, this bigoted woman antici-
pated the legal authority which her parliament.
was ready to interpose for their abrogation; the
XLatin liturgy was restored, the married clergy ex-
pelled from their livings, and even many protestant
ministers thrown into prison for no other crime
than their religion, before any change had been
made in the established laws.* The queen, in
fact, and those around her, acted and felt as a
legitimate government restored after an usurpa-
tion, and treated the recent statutes as null and
invalid. But even in matters of temporal vern-
ment, the stretches of prerogative were more vio-
lent and alarming than during her brother's reign.
It is due indeed to the memory of newho has
Aleft so odious a name, to remark that Mary was
conscientiously averse to encroach upon what she
understood to be the privileges of her people. A
lady Jane's heirs male," but that
the words "and her" had been
interlined. Nares's Memoirs of
Lord Burghley, i. 451. Mr. Nares
does not seem to doubt but that
this was done by Edward himself:
the change, however, is remarkable,
and should probably be ascribed
to Northumberland's influence.
* Burnet, Strype, iii. 50, 53.
Carte, 290. I doubt whether we
have any thing in our history more
like conquest than the administra-
tion of 1553.
tion of 1553. The queen, in the
month only of October, presented
to 256 livings, restoring all those
turned out under the acts of uni-
formity. Yet the deprivation of
the bishops might be justified pro-
bably by the terms of the commis-
sion they had taken out in Ed-
ward's reign, to hold their sees
during the king's pleasure, for
which was afterwards substituted
CC
during good behaviour." Bur-
net, App. 257. Collier, 218.
FROM HENRY VII. TO GEORGE II.
57
CHAP.
I.
ΤΟ
MARY.
wretched book having been written to exalt her
prerogative, on the ridiculous pretence that, as a
queen, she was not bound by the laws of former HEN. VII.
kings, she showed it to Gardiner, and on his ex-
pressing indignation at the sophism, threw it her-
self into the fire. An act passed, however, to settle
such questions, which declares the queen to have
all the lawful prerogatives of the crown.* But
she was surrounded by wicked counsellors, rene-
gades of every faith and ministers of every tyranny.
We must, in candour, attribute to their advice hert
arbitrary measures, though not her persecution of
heresy, which she counted for virtue. She is said
to have extorted loans from the citizens of London,
and others of her subjects. This, indeed, was not
more than had been usual with her predecessors.
But we find one clear instance during her reign×
of a duty upon foreign cloth, imposed without
assent parliament; an encroachment unpre-
cedented since the reign of Richard II. Several
proofs might be adduced from records of arbi-
trary inquest for offences, and illegal modes of
punishment. The torture is, perhaps, more fre- X
quently mentioned in her short reign than in all
former ages of our history put together; and
and pro-
bably from that imitation of foreign governments,
which contributed not a little to deface our con-
stitution in the sixteenth century, seems deli-
berately to have been introduced as part of the
process in those dark and uncontrolled tribunals
* Burnet, ii. 278. Stat. 1 Mary,
: sess. 3. c. 1. Dr. Lingard rather
strangely tells this story on the
authority of father Persons, whom
his readers probably do not csteem
quite as much as he does. If he had
attended to Burnet, he would have
found a more sufficient voucher.
+ Carte, 330.
58
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
I.
ΤΟ
MARY.
A
which investigated offences against the state. *
commission issued in 1557, authorising the persons
HEN. VII. named in it to enquire, by any means they could
devise, into charges of heresy or other religious
offences, and in some instances to punish the
guilty, in others of a graver nature to remit them
to their ordinaries, seems (as Burnet has well ob
served) to have been meant as a preliminary step
to bringing in the inquisition. It was at least the
germ of the high-commission court in the next
x reign. One proclamation, in the last year of
her inauspicious administration, may be deemed a
flight of tyranny beyond her father's example;,
which, after denouncing the importation of books
filled with heresy and treason from beyond sea,
proceeds to declare that whoever should be found
to have such books in his possession should be re-
puted and taken for a rebel, and executed accord
ing to martial law.‡ This had been provoked as
well by a violent libel written at Geneva by Good
man, a refugee, exciting the people to dethrone
the queen; as by the recent attempt of one Staf
ford, a descendant of the house of Buckingham,
who, having landed with a small force at Scarbo
rough, had vainly hoped that the general disaffec
tion would enable him to overthrow her govern
ment. S
* Haynes, 195. Burnet, ii. Ap-
pendix, 256. iii. 243.
+ Burnet, ii. 347. Collier, ii.
404. and Lingard, vii. 266. (who,
by the way, confounds this com-
mission with something different
two years earlier) will not hear of
this allusion to the inquisition.
But Burnet has said nothing that
is not perfectly just.
Strype, iii. 459.
See Stafford's proclamation
from Scarborough castle, Strype,
It con.
ii. Appendix, No. 71.
tains no allusion to religion, both
parties being weary of Mary's
Spanish counsels. The important
letters of Noailles, the French
ambassador, to which Carte had
access, and which have since been
·
FROM HENRY VII. TO GEORGE II.
59
CHAP.
I.
ΤΟ
recovers
part of its
independent
power in
these two
Notwithstanding, however, this apparently un-
controlled career of power, it is certain that the
children of Henry VIII. did not preserve his HEN. VII.
almost absolute dominion over parliament. I have MARY.
only met with one instance in his reign where The house
the commons refused to pass, a bill recommended of commons
by the crown. This was in 1532; but so unques-
tionable were the legislative rights of parliament,
that, although much displeased, even Henry was reigns.
forced to yield.* We find several instances during ✩
the reign of Edward, and still more in that of
Mary, where the commons rejected bills sent
down from the upper house; and though there
was always a majority of peers for the govern-
ment, yet the dissent of no small number is fre-
quently recorded in the former reign. Thus the
commons not only threw out a bill creating several
new treasons, and substituted one of a more mo-
printed, have afforded information
to Dr. Lingard, and with those
of the imperial ambassador, Re-
nard, which I have not had an
opportunity of seeing, throw much
light on this reign. They certainly
appear to justify the restraint put
on Elizabeth, who, if not herself
privy to the conspiracies planned
in her behalf (which is, however,
very probable), was at least too
dangerous to be left at liberty.
Noailles intrigued with the mal-
contents, and instigated the re-
bellion of Wyatt, of which Dr.
Lingard gives a very interesting ac-
count. Carte, indeed, differs from
him in many of these circum-
stances, though writing from the
same source, and particularly de-
nics that Noailles gave any en-
couragement to Wyatt. It is, how
ever, evident from the tenor of his
despatches that he had gone great
lengths in fomenting the discon-
tent, and was evidently desirous
of the success of the insurrection.
iii. 36. 43, &c. This critical state
of the government may furnish
the usual excuse for its rigour.
But its unpopularity was brought
on by Mary's breach of her word
as to religion, and still more by
her obstinacy in forming her union
with Philip against the general
voice of the nation, and the op-
position of Gardiner; who, how-
ever, after her resolution was taken,
became its strenuous supporter in
public. For the detestation in
which the queen was held, see the
letters of Noailles, passim; but
with some degree of allowance for
his own antipathy to her.
子
​* Burnet, i. 117. The king re-
fused his assent to a bill which
had passed both houses, but ap-
parently not of a political nature.
Lords' Journals, p. 162.
1
60
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
I.
HEN. VII.
ΤΟ
MARY.
derate nature, with that memorable clause for two
witnesses to be produced in open court, which
I have already mentioned; but rejected one at
tainting Tunstal bishop of Durham for misprision
of treason, and were hardly brought to grant a
* subsidy. Their conduct in the two former in-
stances, and probably in the third, must be attri
buted to the indignation that was generally felt at
the usurped power of Northumberland, and the
untimely fate of Somerset. Several cases of similar
unwillingness to go along with court measures
occurred under Mary. She dissolved, in fact, her
two first parliaments on this account. But the
third was far from obsequious, and rejected several
of her favourite bills. Two reasons principally
contributed to this opposition; the one, a fear of
entailing upon the country those numerous exac
tions of which so many generations had complained,
by reviving the papal supremacy, and more espe
cially of a restoration of abbey lands; the other,
an extreme repugnance to the queen's Spanish
connection. If Mary could have obtained the
consent of parliament, she would have settled the
X
X
* Burnet, 190.
+ Id. 195. 215. This was the
parliament, in order to secure fa-
vourable elections for which the
council had written letters to the
sheriffs. These do not appear to
have availed so much as they might
hope.
Carte, 311. 322. Noailles,
v. 252. He says that she com-
mitted some knights to the Tower
for their language in the house.
Id. 247. Burnet, p. 324. men-
tions the same.
§ Burnet, 322. Carte, 296.
Noailles says, that a third part of
the commons in Mary's first par-
liament was hostile to the repeal
of Edward's laws about religion,
and that the debates lasted a week.
ii. 247. The journals do not men-
tion any division; though it is said
in Strype, iii. 204., that one mem-
ber, sir Ralph Bagnal, refused to
concur in the act abolishing the
supremacy. The queen, however,
in her letter to cardinal Pole, says
of this repeal:
quod non sine
contentione, disputatione acri, et
summo labore fidelium factum
est." Lingard, Carte, Philips's
Life of Pole. Noailles speaks re-
peatedly of the strength of the
protestant party, and of the enmity
which the English nation, as he
expresses it, bore to the pope.
CC
FROM HENRY VII. TO GEORGE II.
61
crown on her husband, and sent her sister, perhaps, CHAP.
to the scaffold.*~/
commons.
I.
ΤΟ
MARY.
Attempt of
strengthen
itself by
the court to
There cannot be a stronger proof of the increased HEN. VII.
weight of the commons during these reigns, than
the anxiety of the court to obtain favourable elec-
tions. Many ancient boroughs undoubtedly have
at no period possessed sufficient importance to de-
creating
serve the elective franchise on the score of their new bo-
riches or population; and it is most likely that roughs.
some temporary interest or partiality, which can-
not now be traced, first caused a writ to be ad-
dressed to them. But there is much reason to
conclude that the counsellors of Edward VI., in
erecting new boroughs, acted upon a deliberate
plan of strengthening their influence among the
Twenty-two boroughs were created
or restored in this short reign; some of them, in-
deed, places of much consideration, but not less
than seven in Cornwall, and several others that
appear to have been insignificant. Mary added
fourteen to the number; and as the same course
was pursued under Elizabeth, we in fact owe a
great part of that irregularity in our popular re-
presentation, the advantages or evils of which we
need not here discuss, less to changes wrought by
time, than to deliberate and not very constitutional
policy. Nor did the government scruple a direct
and avowed interference with elections. A circu-
lar letter of Edward to all the sheriffs commands
them to give notice to the freeholders, citizens,
and burgesses within their respective counties,

But the aversion to the marriage
with Philip, and dread of falling
nder the yoke of Spain, was com-
mon to both religions, with the
exception of a few mere bigots to
the church of Rome.
* Noailles, vol. 5. passim.
62
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
I.
"that our pleasure and commandment is, that
they shall choose and appoint, as nigh as they
HEN. VII. possibly may, men of knowledge and experience
TO
MARY.
within the counties, cities, and boroughs;" but
nevertheless, that where the privy council should
"recommend men of learning and wisdom, in
such case their directions be regarded and fol
lowed." Several persons accordingly were recom.
mended by letters to the sheriffs, and elected as
knights for different shires; all of whom belonged
to the court, or were in places of trust about the
king.* It appears probable that persons in office
formed at all times a very considerable portion of
the house of commons. Another circular of Mary
before the parliament of 1554, directing the she
riffs to admonish the electors to choose good·
catholics and "inhabitants, as the old laws re
quire," is much less unconstitutional; but the earl
of Sussex, one of her most active counsellors,
wrote to the gentlemen of Norfolk, and to the
burgesses of Yarmouth, requesting them to reserve
their voices for the person he should name.†
There is reason to believe that the court, or rather
the imperial ambassador, did homage to the power
of the commons, by presents of money, in order
to procure their support of the unpopular marriage
with Philip; and if Noailles, the ambassador of
Henry II., did not make use of the same means to
thwart the grants of subsidy and other measures
of the administration, he was at least very active
in promising the succour of France, and animating
the patriotism of those unknown leaders of that
* Strype, ii. 394.
† Id. iii. 155. Burnet, ii. 228.
Burnet, ii. 262, 277.
·
:
A
[
63
FROM HENRY VII. TO GEORGE II.
I.
assembly, who withstood the design of a besotted CHAP.
woman and her unprincipled counsellors to transfer
this kingdom under the yoke of Spain.*
HEN. VII.
TO
MARY.
Causes of
the high
of the
prerogative
Tudors.
It appears to be a very natural enquiry, after
beholding the course of administration under the
Tudor line, by what means a government so violent
in itself, and so plainly inconsistent with the ac-
knowledged laws, could be maintained; and what
had become of that English spirit which had not
only controlled such injudicious princes as John
and Richard II., but withstood the first and third
Edward in the fulness of their pride and glory.
Not, indeed, that the excesses of prerogative had
ever been thoroughly restrained, or that, if the
memorials of earlier ages had been as carefully
preserved as those of the sixteenth century, we
might not possibly find in them equally flagrant
instances of oppression; but still the petitions of
parliament and frequent statutes remain on record,
bearing witness to our constitutional law and to
the energy that gave it birth. There had evidently
been a retrograde tendency towards absolute
monarchy between the reigns of Henry VI. and
Henry VIII. Nor could this be attributed to the
common engine of despotism, a military force.
For, except the yeomen of the guard, fifty in
number, and the common servants of the king's
household, there was not, in time of peace, an
armed man receiving pay throughout England.* y

*Noailles, v. 190. Of the truth
of this plot there can be no rational
ground to doubt; even Dr. Lingard
has nothing to advance against it
but the assertion of Mary's coun-
sellors, the Pagets and Arundels,
the most worthless of mankind.
We are, in fact, greatly indebted
to Noailles for his spirited activity,
which contributed, in a high de-
gree, to secure both the protestant
religion and the national independ-
ence of our ancestors.
* Henry VII. first established
:
64
THE CONSTITUTIONAL HISTORY OF ENGLAND
*
CHAP.
I.
TO
MARY.
A government that ruled by intimidation was ab.
solutely destitute of force to intimidate. Hence
HEN. VII. risings of the mere commonalty were sometimes
highly dangerous, and lasted much longer than
ordinary. A rabble of Cornishmen, in the reign
of Henry VII., headed by a blacksmith, marched
up from their own county to the suburbs of London
without resistance. The insurrections of 1525 in
consequence of Wolsey's illegal taxation, those of
the north ten years afterwards, wherein, indeed,
some men of higher quality were engaged, and
those which broke out simultaneously in several
counties under Edward VI., excited a well.
grounded alarm in the country; and in the two
latter instances were not quelled without much
time and exertion. The reproach of servility and
patient acquiescence under usurped power falls
not on the English people, but on its natural
leaders. We have seen, indeed, that the house of
commons now and then gave signs of an inde
pendent spirit, and occasioned more trouble, even
to Henry VIII., than his compliant nobility. They
yielded to every mandate of his imperious will;
they bent with every breath of his capricious
humour; they are responsible for the illegal trial,
for the iniquitous attainder, for the sanguinary
statute, for the tyranny which they sanctioned by
law, and for that which they permitted to subsist
without law. Nor was this selfish and pusillanimous
subserviency more characteristic of the minions of
a band of fifty archers to wait on
him. Henry VIII. had fifty horse-
guards, each with an archer, de-
milance, and couteiller, like the
gendarmerie of France; but on
account, probably, of the expense
it occasioned, their equipment be
ing too magnificent, this soon was
given up.
FROM HENRY VII. TO GEORGE II.
65
CHAP.
I.
ΤΟ
MARY.
Henry's favour, the Cromwells, the Riches, the
Pagets, the Russells, and the Powletts, than of the
representatives of ancient and honourable houses, HEN. VII.
the Norfolks, the Arundels, and the Shrewsburies.
We trace the noble statesmen of those reigns con-
curring in all the inconsistencies of their revo-
lutions, supporting all the religions of Henry,
Edward, Mary, and Elizabeth; adjudging the
death of Somerset to gratify Northumberland, and
of Northumberland to redeem their participation
in his fault, setting up the usurpation of lady Jane,
and abandoning her on the first doubt of success,
constant only in the rapacious acquisition of estates
and honours from whatever source, and in adher-
ence to the present power.
I have noticed in a former work that illegal
and arbitrary jurisdiction exercised by the council,
which, in despite of several positive statutes, con-
tinued in a greater or less degree through all the
period of the Plantagenet family, to deprive the
subject, in many criminal charges, of that sacred
privilege, trial by his peers.* This usurped juris-
diction, carried much farther and exercised more
vigorously, was the principal grievance under the
Tudors; and the forced submission of our fore-
fathers was chiefly owing to the terrors of a tri-
bunal, which left them secure from no infliction
but public execution, or actual dispossession of
their freeholds. And, though it was beyond its
direct province to pass sentence on capital charges;
* View of Middle Ages, ch. 8. I
must here acknowledge, that I did
not make the requisite distinction
between the concilium secretum,
VOL. I.
F
or privy council of state, and the
concilium ordinarium, as lord
Hale calls it, which alone exer-
cised jurisdiction.
Jurisdic-
council of
tion of the
star-cham-

ber.
66
THE CONSTITUTIONAL HISTORY OF ENGLAND
I.
TO
MARY.
CHAP. yet, by intimidating jurors, it procured convictions
which it was not authorised to pronounce. We
HIEN. VII. are naturally astonished at the easiness with which
verdicts were sometimes given against persons ac-
cused of treason on evidence insufficient to sup
port the charge in point of law, or in its nature
not competent to be received, or unworthy of be
lief. But this is explained by the peril that hung
over the jury in case of acquittal. "If," says sir
Thomas Smith, in his Treatise on the Common-
wealth of England, "they do pronounce not guilty
upon the prisoner, against whom manifest witness
is brought in, the prisoner escapeth, but the twelve
are not only rebuked by the judges, but also
threatened of punishment, and many times com
manded to appear in the star-chamber, or before
the privy council, for the matter. But this threaten
ing chanceth oftener than the execution thereof;
and the twelve answer with most gentle words,
they did it according to their consciences, and
pray the judges to be good unto them; they did
as they thought right, and as they accorded all;
and so it passeth away for the most part. Yet I
have seen in my time, but not in the reign of the
king now, [Elizabeth,] that an inquest for pro-
nouncing one not guilty of treason contrary to such
evidence as was brought in, were not only impri-
soned for a space, but a large fine set upon their
heads, which they were fain to pay; another in-
quest for acquitting another, beside paying a fine,
were put to open ignominy and shame. But these
doings were even then accounted of many for
violent, tyrannical, and contrary to the liberty and
1
FROM HENRY VII. TO GEORGE II.
67
*
CHAP.
I.
ΤΟ
MARY.
custom of the realm of England." One of the
instances to which he alludes was probably that of
the jury who acquitted sir Nicholas Throckmorton HEN. VII.
in the second year of Mary. He had conducted
his own defence with singular boldness and dex-
terity. On delivering their verdict, the court com.;
mitted them to prison. Four, having acknowledged
their offence, were soon released; but the rest, at-
tempting to justify themselves before the council,
were sentenced to pay, some a fine of two thou-
sand pounds, some of one thousand marks; a part
of which seems ultimately to have been remitted. †
the same
with the
court erect-
ed by Hen-
ry VII.
It is here to be observed that the council of This not
which we have just heard, or, as lord Hale de-
nominates it (though rather, I believe, for the sake
of distinction than upon any ancient authority),
the king's ordinary council, was something dif
ferent from the privy council, with which several
modern writers are apt to confound it; that is, the
court of jurisdiction is to be distinguished from
the deliberative body, the advisers of the crown.
Every privy councillor belonged to the concilium
ordinarium; but the chief justices, and perhaps
several others who sat in the latter, (not to men-
* Commonwealth of England,
book 3. c. 1. The statute 26 H. 8.
c. 4. enacts, that if a jury in
Wales acquit a felon, contrary to
good and pregnant evidence, or
otherwise misbehave themselves,
the judge may bind them to ap-
pear before the president and coun-
cil of the Welsh marches. The
partiality of Welsh jurors was
notorious in that age; and the
reproach has not quite ceased.
Norfolk (Hardwicke Papers, i. 46.)
at the time of the Yorkshire rebel-
lion in 1536, he is directed to
question the jury who had acquit-
ted a particular person, in order
to discover their motive. Norfolk
seems to have objected to this for
a good reason, "least the fear
thereof might trouble others in
the like case." But it may not be
uncandid to ascribe this rather to
a leaning towards the insurgents
than a constitutional principle.
+ State Trials, i. 901. Strype,
ii. 120. In a letter to the duke of
F 2
68
THE CONSTITUTIONAL HISTORY OF ENGLAND
I.
CHAP. tion all temporal and spiritual peers, who, in the
opinion at least of some, had a right of suffrage
HEN. VII. therein,) were not necessarily of the former body.*
ΤΟ
MARY.
This cannot be called in question, without either
charging lord Coke, lord Hale, and other writers
on the subject, with ignorance of what existed in
their own age, or gratuitously supposing that an
entirely novel tribunal sprung up in the sixteenth
century under the name of the star-chamber. It
has indeed been often assumed that a statute
enacted early in the reign of Henry VII. gave the
first legal authority to the criminal jurisdiction ex-
ercised by that famous court, which in reality was
nothing else but another name for the ancient
concilium regis, of which our records are full, and
whose encroachments so many statutes had en
* Hale's Jurisdiction of the
Lords' House, p. 5. Coke, 4th
Inst. 65., where we have the fol-
lowing passage: - "So this court,
[the court of star-chamber, as the
concilium was then called,] being
holden coram rege et concilio, it is,
or may be, compounded of three
several councils; that is to say, of
the lords and others of his ma-
jesty's privy council, always judges
without appointment, as before it
appeareth. 2. The judges of either
bench and barons of the exchequer
are of the king's council, for mat-
ters of law, &c. and the two chief
justices, or in their absence other
two justices, are standing judges
of this court. 3. The lords of par-
liament are properly de magno con-
cilio regis; but neither those, not
being of the king's privy council,
nor any of the rest of the judges or
barons of the exchequer are stand-
ing judges of the court." But Hud-
son, in his Treatise of the Court
of Star-chamber, written about the
end of James's reign, inclines to
think that all peers had a right of
sitting in the court of star-chan
ber; there being several instances
where some who were not of the
council of state were present and
gave judgment, as in the case of
Mr. Davison, "and how they were
complete judges unsworn, if not
by their native right, I cannot
comprehend; for surely the call
ing of them in that case was not
made legitimate by any act of
parliament; neither without ther
right were they more apt to be
judges than any other inferior
persons in the kingdom; and yet
I doubt not but it resteth in the
king's pleasure to restrain any man
from that table, as well as he may
any of his council from the board."
Collectanea Juridica, ii. p. 24. He
says also, that it was demurrable
for a bill to pray process against
the defendant, to appear before
the king and his privy council.
Ibid.
FROM HENRY VII. TO GEORGE II.
69
4
I.
deavoured to repress; a name derived from the CHAP.
chamber wherein it sat, and which is found in
many precedents before the time of Henry VII., HEN. VII.
though not so specially applied to the council of
judicature as afterwards. * The statute of this
reign has a much more limited operation. I have
observed in another place, that the coercive juris-
diction of the council had great convenience, in
cases where the ordinary course of justice was so
much obstructed by one party, through writs, com-
binations of maintenance, or overawing influence,
that no inferior court would find its process obey-
ed;
and that such seem to have been reckoned ne-
cessary exceptions from the statutes which restrain
its interference. The act of 3 H. 7. c. 1. appears
intended to place on a lawful and permanent basis
the jurisdiction of the council, or rather a part of
the council, over this peculiar class of offences;
and after reciting the combinations supported by
giving liveries, and by indentures or promises, the
partiality of sheriffs in making pannels, and in un-
true returns, the taking of money by juries, the
great riots and unlawful assemblies, which almost
annihilated the fair administration of justice, em-
powers the chancellor, treasurer, and keeper of the
privy seal, or any two of them, with a bishop and
* The privy council sometimes
et in the star-chamber, and made
orders. See one in 18 H. 6. Harl.
MSS. Catalogue, N. 1878. fol. 20.
So the statute, 21 H, 8. c. 16., re-
ites a decree by the king's council
his star-chamber, that no alien
tificer shall keep more than two
dien servants, and other matters
of the same kind. This could no
ay belong to the court of star-
chamber, which was a judicial
tribunal.
It should be remarked, though
not to our immediate purpose, that
this decree was supposed to require
an act of parliament for its con-
firmation; so far was the govern-
ment of Henry VIII. from arro-
gating a legislative power in mat-
ters of private right.
ΤΟ
MARY.

F 3
70
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. temporal lord of the council, and the chief justices
I.
ΤΟ
MARY.
of king's bench and common pleas, or two other
HEN. VII. justices in their absence, to call before them such
as offended in the before-mentioned respects, and
to punish them after examination in such manner
as if they had been convicted by course of law.
But this statute, if it renders legal a jurisdiction
which had long been exercised with much advan
tage, must be allowed to limit the persons in whom
it should reside, and certainly does not convey by
any implication more extensive functions over
a different description of misdemeanors. By a
later act, 21 H. 8. c. 20., the president of the coun
cil is added to the judges of this court; a decisive
proof that it still existed as a tribunal perfectly
distinct from the council itself. But it is not
styled by the name of star-chamber in this, any
more than in the preceding statute.
It is very
difficult, I believe, to determine at what time the
jurisdiction legally vested in this new court, and
still exercised by it forty years afterwards, fell
silently into the hands of the body of the council,
and was extended by them so far beyond the
boundaries assigned by law, under the appellation
of the court of star-chamber. Sir Thomas Smith,
writing in the early part of Elizabeth's reign, while
he does not advert to the former court, speaks of
the jurisdiction of the latter as fully established,
and ascribes the whole praise (and to a certain de
gree it was matter of praise) to cardinal Wolsey.
The celebrated statute of 31 H. 8. c. 8.,
which
gives the king's proclamations, to a certain extent,
the force of acts of parliament, enacts that of
fenders convicted of breaking such proclamations
FROM HENRY VII. TO GEORGE II.
71
I.
ΤΟ
MARY.
before certain persons enumerated therein, (being CHAP.
apparently the usual officers of the privy council,
together with some bishops and judges,) " in the HEN. VII.
star-chamber or elsewhere," shall suffer such pe-
nalties of fine and imprisonment as they shall ad-
judge. "It is the effect of this court," Smith
says, "to bridle such stout noblemen or gentlemen
which would offer wrong by force to any manner
of men, and cannot be content to demand or de-
fend the right by order of the law. It began long
before, but took augmentation and authority at
that time that cardinal Wolsey, archbishop of York,
was chancellor of England, who of some was
thought to have first devised that court, because
that he, after some intermission, by negligence of
time, augmented the authority of it *, which was
* Lord Hale thinks that the
jurisdiction of the council was
gradually "brought into great dis-
use, though there remain some
straggling footsteps of their pro-
ceedings till near 3 H. 7." p. 38.
"The continual complaints of the
commons against the proceedings
before the council in causes civil
or criminal, although they did not
always attain their concession, yet
brought a disreputation upon the
proceedings of the council, as con-
trary to Magna Charta and the
known laws." p. 39. He seems to
admit afterwards, however, that
many instances of proceedings be-
fore them in criminal causes might
be added to those mentioned by
lord Coke, p. 43.
The paucity of records about
the time of Edward IV. renders
the negative argument rather weak;
but, from the expression of sir
Thomas Smith in the text, it may
perhaps be inferred that the coun-
cil had intermitted in a consider-
able degree, though not absolutely
disused, their exercise of jurisdic-
tion for some time before the ac-
cession of the house of Tudor.
Mr. Brodie, in his History of
the British Empire under Charles
I., i. 158., has treated at consider-
able length, and with much acute-
ness, this subject of the antiquity
of the star-chamber. I do not co-
incide in all his positions; but the
only one very important, is that
wherein we fully agree, that its
jurisdiction was chiefly usurped,
as well as tyrannical.
I will here observe that this
part of our ancient constitutional
history is likely to be elucidated
by a friend of my own, who has
already given evidence to the world
of his singular competence for such
an undertaking, and who unites,
with all the learning and diligence
of Spelman, Prynne, and Madox,
an acuteness and vivacity of intel-
lect which none of those writers
possessed.
F 4
72
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
I.
ΤΟ
MARY.
at that time marvellous necessary to do to repress
the insolency of the noblemen and gentlemen in
HEN. VII. the north parts of England, who being far from
the king and the seat of justice, made almost, as
it were, an ordinary war among themselves, and
made their force their law, binding themselves,
with their tenants and servants, to do or revenge
an injury one against another as they listed. This
thing seemed not supportable to the noble prince
Henry VIII.; and sending for them one after an-
other to his court, to answer before the persons
before named, after they had remonstrance showed
them of their evil demeanour, and been well dis-
ciplined, as well by words as by fleeting [confine-
ment in the Fleet prison] a while, and thereby
their pride and courage somewhat assuaged, they
began to range themselves in order, and to un-
derstand that they had a prince who would rule
his subjects by his law and obedience. Since that
time, this court has been in more estimation, and
is continued to this day in manner as I have said
before." * But as the court erected by the sta
tute of Henry VII. appears to have been in ac
tivity as late as the fall of cardinal Wolsey, and
exercised its jurisdiction over precisely that class
of offences which Smith here describes, it may
perhaps be more likely that it did not wholly merge
in the general body of the council till the minority
of Edward, when that oligarchy became almost
Commonwealth of England,
book 3. c. 4. We find sir Robert
Sheffield in 1517 "put into the
Tower again for the complaint he
made to the king of my lord car-
dinal." Lodge's Illustrations, i.
p. 27. See also Hall, p. 585. for
Wolsey's strictness in punishing
the " lords, knights, and men of
all sorts, for riots, bearing, and
maintenance."
:
FROM HENRY VII. TO GEORGE II.
73
I.
ΤΟ
MARY.
independent and supreme. It is obvious that most, CHAP.
if not all, of the judges in the court held under
that statute were members of the council; so that HEN. VII.
it might in a certain sense be considered as a com-
mittee from that body, who had long before been
wont to interfere with the punishment of similar
misdemeanors. And the distinction was so soon
forgotten, that the judges of the king's bench in
the 13th of Elizabeth cite a case from the year-
book of 8 H. 7. as "concerning the star-cham-
ber," which related to the limited court erected
by the statute.*
In this half-barbarous state of manners we cer-
tainly discover an apology, as well as motive, for
the council's interference; for it is rather a servile
worshipping of names than a rational love of li-
berty, to prefer the forms of trial to the attain-
ment of justice, or to fancy that verdicts obtained
by violence or corruption are at all less iniquitous
than the violent or corrupt sentences of a court.
But there were many cases wherein neither the
necessity of circumstances, nor the legal sanction
of any statute, could excuse the jurisdiction ha-
bitually exercised by the court of star-chamber.
Lord Bacon takes occasion from the act of Henry
VII. to descant on the sage and noble institution,
as he terms it, of that court, whose walls had been
so often witnesses to the degradation of his own
mind. It took cognizance principally, he tells us,
* Plowden's Commentaries, 393.
In the year-book itself, 8 H. 7.
pl. ult. the word star-chamber is
not used. It is held in this case,
that the chancellor, treasurer, and
privy-seal were the only judges,
and the rest but assistants. Coke,
4 Inst. 62., denies this to be law;
but on no better grounds than that
the practice of the star-chamber,
that is, of a different tribunal, was
not such.
74
THE CONSTITUTIONAL HISTORY OF ENGLAND
I.
TO
CHAP. of four kinds of causes, "forces, frauds, crimes
various of stellionate, and the inchoations or
HEN. VII. middle acts towards crimes capital or heinous, not
MARY. actually committed or perpetrated."* Sir Thomas
Smith uses expressions less indefinite than these
last; and specifies scandalous reports of persons in
power, and seditious news, as offences which they
were accustomed to punish. We shall find abund
ant proofs of this department of their functions
in the succeeding reigns. But this was in viola
tion of many ancient laws, and not in the least
supported by that of Henry VII. †
Influence of
the autho-
star-cham-
ber in en-
hancing
the royal
power.
A tribunal so vigilant and severe as that of the
rity of the star-chamber, proceeding by modes of interroga
tory unknown to the common law, and possessing
a discretionary power of fine and imprisonment,
was easily able to quell any private opposition
or contumacy. We have seen how the council
dealt with those who refused to lend money by
way of benevolence, and with the juries who found
verdicts that they disapproved. Those that did
not yield obedience to their proclamations were
not likely to fare better. I know not whether
menaces were used towards members of the com-
mons who took part against the crown; but it
would not be unreasonable to believe it, or at least
* Hist. of Henry VII. in Bacon's wards went into disuse. 3. The
works, ii. p. 290.
The result of what has been
said in the last pages may be sum-
med up in a few propositions. 1.
The court erected by the statute
of 3 Henry VII. was not the court
of star-chamber. 2. This court by
the statute subsisted in full force
till beyond the middle of Henry
VIII.'s reign, but not long after-
court of star-chamber was the
old concilium ordinarium, against
whose jurisdiction many statutes
had been enacted from the time of
Edward III. 4. No part of the
jurisdiction exercised by the star-
chamber could be maintained on
the authority of the statute of
Henry VII.
I
=
FROM HENRY VII. TO GEORGE II.
75
1
1
5
I.
TO
MARY.
that a man of moderate courage would scarcely CHAP.
care to expose himself to the resentment which
the council might indulge after a dissolution. A HEN. VII.
knight was sent to the Tower by Mary, for his
conduct in parliament *; and Henry VIII. is re-
ported, not perhaps on very certain authority, to
have talked of cutting off the heads of refractory
commoners.
In the persevering struggles of earlier parlia-
ments against Edward III., Richard II., and Henry
IV., it is a very probable conjecture, that many
considerable peers acted in union with, and en-
couraged the efforts of, the commons. But in the
period now before us, the nobility were precisely
the class most deficient in that constitutional spi-
rit, which was far from being extinct in those be-
low them. They knew what havoc had been made
among their fathers, by multiplied attainders dur-
ing the rivalry of the two Roses. They had seen
terrible examples of the danger of giving um-
brage to a jealous court, in the fate of lord Stanley
and the duke of Buckingham, both condemned on
slight evidence of treacherous friends and servants,
from whom no man could be secure. Though
rigour and cruelty tend frequently to overturn
the government of feeble princes, it is unfortu-
nately too true that, steadily employed and com-
bined with vigilance and courage, they are often
the safest policy of despotism. A single suspicion
in the dark bosom of Henry VII., a single cloud
of wayward humour in his son, would have been
sufficient to send the proudest peer of England to
the dungeon and the scaffold. Thus a life of emi-
* Burnet, ii. 324.
1
t
2
>
76
THE CONSTITUTIONAL HISTORY OF ENGLAND
}
I.
ΤΟ
MARY.
CHAP. nent services in the field, and of unceasing com-
pliance in council, could not rescue the duke of
HEN. VII. Norfolk from the effects of a dislike which we can-
not even explain. Nor were the nobles of this
age more held in subjection by terror than by the
still baser influence of gain. Our law of forfeiture
was well devised to stimulate, as well as to deter;
and Henry VIII., better pleased to slaughter the
prey than to gorge himself with the carcass, dis-
tributed the spoils it brought him among those
who had helped in the chase. The dissolution of
monasteries opened a more abundant source of
munificence; every courtier, every peer, looked
for an increase of wealth from grants of ecclesi-
astical estates, and naturally thought that the
king's favour would most readily be gained by an
Tendency implicit conformity to his will. Nothing however
seems more to have sustained the arbitrary rule of
of religious
disputes to
the same
end.
Henry VIII. than the jealousy of the two religious
parties formed in his time, and who, for all the
latter years of his life, were maintaining a doubt-
ful and emulous contest for his favour. But this
religious contest, and the ultimate establishment
of the Reformation, are events far too important,
even in a constitutional history, to be treated in a
cursory manner; and as, in order to avoid transi-
tions, I have purposely kept them out of sight in
the present chapter, they will form the proper sub-
ject of the next.
FROM HENRY VII. TO GEORGE II.
77
CHAPTER II.
ON THE ENGLISH CHURCH UNDER HENRY VIII.,
EDWARD VI., AND MARY.
State of public Opinion as to Religion Henry VIII's Controversy
with Luther His Divorce from Catherine Separation from the
Church of Rome Dissolution of Monasteries Progress of the
reformed Doctrine in England Its Establishment under Edward
Sketch of the chief Points of Difference between the two Religions
Cranmer
- Opposition made by Part of the Nation
deration in introducing Changes not acceptable to the Zealots
Mary Persecution under her Its Effect rather favourable to
---
Protestantism.
His Mo-
oc-
CHAP.
II.
Reforma-
tion.
State of
public opi-
nion as to
No revolution has ever been more gradually pre-
pared than that which separated almost one half
of Europe from the communion of the Roman see;
nor were Luther and Zuingle any more than
casional instruments of that change which, had
they never existed, would at no great distance of religion.
time have been effected under the names of some
other reformers. At the
At the beginning of the six-
teenth century, the learned doubtfully and with
caution, the ignorant with zeal and eagerness, were
tending to depart from the faith and rites which
authority prescribed. But probably not even Ger-
many was so far advanced on this course as Eng-
land. Almost a hundred and fifty years before
Luther, nearly the same doctrines as he taught
had been maintained by Wicliffe, whose disciples,
usually called Lollards, lasted as a numerous,
though obscure and proscribed sect, till, aided by
{
78
CHAP.
II.
Reforma-
tion.
f
THE CONSTITUTIONAL HISTORY OF ENGLAND
the confluence of foreign streams, they swelled
into the protestant church of England. We hear
indeed little of them during some part of the fif
teenth century; for they generally shunned per-
secution; and it is chiefly through records of per-
secution that we learn the existence of heretics.
But immediately before the name of Luther was
known, they seem to have become more numerous,
or to have attracted more attention; since several
persons were burned for heresy, and others ab
jured their errors, in the first years of Henry
VIII.'s reign. Some of these (as usual among ig
norant men engaging in religious speculations) are
charged with very absurd notions; but it is not so
material to observe their particular tenets as the
general fact, that an inquisitive and sectarian spirit
had begun to prevail.
Those who took little interest in theological
questions, or who retained an attachment to the
faith in which they had been educated, were in
general not less offended than the Lollards them.
selves with the inordinate opulence and encroach-
ing temper of the clergy. It had been for two
or three centuries the policy of our lawyers to
restrain these within some bounds. No ecclesi-
astical privilege had occasioned such dispute, or
proved so mischievous, as the immunity of all ton-
sured persons from civil punishment for crimes.
It was a material improvement in the law under
Henry VI. that, instead of being instantly claimed
by the bishop on their arrest for any criminal
charge, they were compelled to plead their
privilege at their arraignment, or after convic
tion. Henry VII. carried this much farther, by
፡
:
FROM HENRY VII. TO GEORGE II.
79
tion.
II.
enacting that clerks convicted of felony should be CHAP.
burned in the hand. And in 1513, (4 H. 8.) the
benefit of clergy was entirely taken away from Reforma-
murderers and highway robbers. An exemption
was still made for priests, deacons, and subdeacons.
But this was not sufficient to satisfy the church,
who had been accustomed to shield under the
mantle of her immunity a vast number of persons
in the lower degrees of orders, or without any
orders at all; and had owed no small part of her
influence to those who derived so important a be-
nefit from her protection. Hence, besides violent
language in preaching against this statute, the
convocation attacked one doctor Standish, who
had denied the divine right of clerks to their ex-
emption from temporal jurisdiction. The tempo-
ral courts naturally defended Standish; and the
parliament addressed the king to support him
against the malice of his persecutors. Henry,
after a full debate between the opposite parties in
his presence, thought his prerogative concerned
in taking the same side; and the clergy sustained
a mortifying defeat. About the same time, a citi-
zen of London named Hun, having been con-
fined on a charge of heresy in the bishop's prison,
was found hanged in his chamber; and though
this was asserted to be his own act, yet the bishop's
chancellor was indicted for the murder on such
vehement presumptions, that he would infallibly
have been convicted, had the attorney-general
thought fit to proceed in the trial. This occurring
at the same time with the affair of Standish, fur-
nished each party with an argument; for the clergy
maintained that they should have no chance of

80
THE CONSTITUTIONAL HISTORY OF ENGLAND
tion.
II.
CHAP. justice in a temporal court; one of the bishops de
claring, that the London juries were so prejudiced
Reforma against the church, that they would find Abel
guilty of the murder of Cain. Such an admission
is of more consequence than whether Hun died by
his own hands, or those of a clergyman; and the
story is chiefly worth remembering, as it illustrates
the popular disposition towards those who had
once been the objects of reverence.*
Henry
VIII.'s
controversy
with Lu-
ther.
Such was the temper of England when Martin
Luther threw down his gauntlet of defiance against
the ancient hierarchy of the Catholic church. But,
ripe as a great portion of the people might be to
applaud the efforts of this reformer, they were
viewed with no approbation by their sovereign.
Henry had acquired a fair portion of theological
learning, and on reading one of Luther's treatises,
was not only shocked at its tenets, but undertook
to confute them in a formal answer.† Kings who
divest themselves of their robes to mingle among
polemical writers, have not perhaps a claim to
much deference from strangers; and Luther, in
Burnet. Reeves's History of
the Law, iv. p. 308. The contem-
porary authority is Keilwey's Re-
ports. Collier disbelieves the mur-
der of Hun on the authority of sir
Thomas More; but he was surely
a prejudiced apologist of the clergy,
and this historian is hardly less so.
An entry on the journals, 7 H.8.,
drawn of course by some ecclesias-
tic, particularly complains of Stan-
dish as the author of periculosissi-
mæ seditiones inter clericam et
secularem potestatem.
+ Burnet is confident that the
answer to Luther was not written
by Henry, (vol. iii. 171.) and
others have been of the same opi
nion. The king, however, his
answer to Luther's apologetical
letter, where this was insinuated,
declares it to be his own. From
Henry's general character and
proneness to theological disputa-
tion, it may be inferred that he
had at least a considerable share
in the work, though probably with
the assistance of some who had
more command of the Latin lan-
guage. Burnet mentions in an
other place, that he had seen a
copy of the Necessary Erudition
of a Christian Man, full of inter-
lineations by the king.
FROM HENRY VII. TO GEORGE II.
81
CHAP.
II.
toxicated with arrogance, and deeming himself a
more prominent individual among the human spe-
cies than any monarch, treated Henry, in replying Reforma-
to his book, with the rudeness that characterised tion.
his temper. A few years afterwards, indeed, he
thought proper to write a letter of apology for the
language he had held towards the king; but this
letter, a strange medley of abjectness and imper-
tinence, excited only contempt in Henry, and was
published by him with a severe commentary.*
Whatever apprehension therefore for the future
might be grounded on the humour of the nation,
no king in Europe appeared so steadfast in his al-
legiance to Rome as Henry VIII. at the moment
when a storm sprang up that broke the chain for
ever.
It is certain that Henry's marriage with his bro-
ther's widow was unsupported by any precedent,
and that, although the pope's dispensation might
pass for a cure of all defects, it had been origin-
* Epist. Lutheri ad Henricum
regem missa, &c. Lond. 1526.
The letter bears date at Witten-
berg, Sept. 1. 1525. It had no
relation, therefore, to Henry's
quarrel with the Pope, though
probably Luther imagined that
the king was becoming more fa-
vourably disposed. After saying
that he had written against the
king" stultus ac præceps," which
was true, he adds, "invitantibus
is qui majestati tuæ parum fave-
bant," which was surely a pretence;
since who, at Wittenberg, in 1521,
could have any motive to wish
that Henry should be so scurri-
ously treated? He then bursts out
nto the most absurd attack on
Wolscy
"illud monstrum et pub-
cum odium Dei et hominum,
Cardinalis Eboracensis, pestis illa
VOL. I.
G
regni tui." This was a singular
style to adopt in writing to a king,
whom he affected to propitiate
Wolsey being nearer than any man
to Henry's heart. Thence, re-
lapsing into his tone of abase-
ment, he says,
ment, he says, " ita ut vehementer
nunc pudefactus, metuam oculos
passus sim levitate istâ me moveri
coram majestate tuâ levare, qui
in talem tantumque regem per
malignos istos operarios; præser-
tim cum sim fox et vermis, quem
solo contemptu oportuit victum aut
neglectum esse," &c. Among the
said and wrote, I know not one
many strange things which Luther
more extravagant than this letter,
which almost justifies the suppo-
sition that there was a vein of in-
sanity in his very remarkable cha-
racter.
His divorce
from Cathe-
rine.
82
THE CONSTITUTIONAL HISTORY OF ENGLAND
II.
Reforma-
tion.
CHAP. ally considered by many persons in a very differ
ent light from those unions which are merely pro-
hibited by the canons. He himself, on coming to
the age of fourteen, entered a protest against the
marriage which had been celebrated more than
two years before, and declared his intention not
to confirm it; an act which must naturally be
ascribed to his father.* It is true that in this
very instrument we find no mention of the impe-
diment on the score of affinity; yet it is hard to
suggest any other objection, and possibly a com-
mon form had been adopted in drawing up the
protest. He did not cohabit with Catherine dur-
ing his father's lifetime. Upon his own accession,
he was remarried to her; and it does not appear
manifest at what time his scruples began, nor whe
ther they preceded his passion for Anne Boleyn.t
This however seems the more probable supposi
tion; yet there can be little doubt, that weariness
of Catherine's person, a woman considerably older
than himself and unlikely to bear more children,
had a far greater effect on his conscience than the
study of Thomas Aquinas or any other theologian.
It by no means follows from hence that, accord
ing to the casuistry of the Catholic church and the
* Collier, vol. ii. Appendix, No. 2.
In the Hardwicke Papers, i. 13.
we have an account of the ce-
remonial of the first marriage of
Henry with Catherine in 1503. It
is remarkable that a person was
appointed to object publicly in
Latin to the marriage, as unlaw-
ful, for reasons he should there
exhibit; "whereunto Mr. Doctor
Barnes shall reply, and declare
solemnly, also in Latin, the said
marriage to be good and effectual
in
in the law of Christ's church, by
virtue of a dispensation, which he
shall have then to be openly read."
There seems to be something
this of the tortuous policy of
Henry VII.; but it shows that the
marriage had given offence to scru
pulous minds.
† See Burnet, Lingard, Turner,
and the letters lately printed in
State Papers, temp. Henry VIII
pp. 194. 196.
FROM HENRY VII. TO GEORGE II.
83
•
II.
principles of the canon law, the merits of that fa- CHAP.
mous process were so much against Henry, as out
of dislike to him and pity for his queen we are apt Reforma-
to imagine, and as the writers of that persuasion
have subsequently assumed.
It would be unnecessary to repeat, what is told
by so many historians, the vacillating and evasive
behaviour of Clement VII., the assurances he gave
the king, and the arts with which he receded from
them, the unfinished trial in England before his
delegates, Campegio and Wolsey, the opinions
obtained from foreign universities in the king's
favour, not always without a little bribery *, and
those of the same import at home, not given with-
out a little intimidation, or the tedious continuance
of the process after its adjournment to Rome. More
than five years had elapsed from the first applica-
tion to the pope, before Henry, though by nature
the most uncontrollable of mankind, though irri-
tated by perpetual chicanery and breach of
pro-
mise, though stimulated by impatient love, pre-
sumed to set at nought the jurisdiction to which
he had submitted, by a marriage with Anne. Even
this was a furtive step; and it was not till compelled
by the consequences that he avowed her as his
* Burnet wishes to disprove the
bribery of these foreign doctors.
But there are strong presumptions
that some opinions were got by
money (Coller, ii. 58.); and the
greatest difficulty was found, where
corruption perhaps had least in-
fluence, in the Sorbonne. Burnet
himself proves that some of the
cardinals were bribed by the king's
ambassador, both in 1528 and
1532. Vol. i. Append. pp. 30. 110.
See, too, Strype, i. Append. No. 40.
The same writer will not allow
that Henry menaced the univer-
sity of Oxford in case of non-com-
pliance; yet there are three letters
of his to them, a tenth part of
which, considering the nature of
the writer, was enough to terrify
his readers. Vol. iii. Append. p. 25.
These probably Burnet did not
know when he published his first
volume.
tion.

G 2
84
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
II.
Reforma-
tion.
wife, and was finally divorced from Catherine by
a sentence of nullity, which would more decently,
no doubt, have preceded his second marriage. *
But, determined as his mind had become, it was
plainly impossible for Clement to have conciliated
him by any thing short of a decision, which he
could not utter without the loss of the emperor's
favour and the ruin of his own family's interests
in Italy. And even for less selfish reasons, it was
an extremely embarrassing measure for the pope,
in the critical circumstances of that age, to set
aside a dispensation granted by his predecessor;
knowing that, however some erroneous allegations
of fact contained therein might serve for an out
ward pretext, yet the principle on which the divorce
was commonly supported in Europe, went generally
to restrain the dispensing power of the holy see
Hence it may seem very doubtful whether the

* The king's marriage is related
by the earlier historians to have
taken place Nov. 14. 1532. Burnet
however is convinced by a letter of
Cranmer, who, he says, could not
be mistaken, though he was not
apprised of the fact till some time
afterwards, that it was not solem-
nised till about the 25th of Janu-
ary (vol. iii. p. 70.). This letter
has since been published in the
Archæologia, vol. xviii., and in
Ellis's Letters, ii. 34. Elizabeth
was born September 7. 1533; for
though Burnet, on the authority,
he says, of Cranmer, places her
birth on Sept. 14., the former date
is decisively confirmed by letters
in Harl. MSS. 283. 22., and 787. 1.
(both set down incorrectly in the
catalogue.) If a late historian
therefore had contented himself
with commenting on these dates
and the clandestine nature of the
marriage, he would not have gone
It may
beyond the limits of that character
of an advocate for one party which
he has chosen to assume.
not be unlikely, though by no
means evident, that Anne's pru
dence, though, as Fuller says of her,
“she was cunning in her chastity,"
was surprised at the end of this
long courtship. I think a prurient
curiosity about such obsolete scan-
dal very unworthy of history. But
when this author asserts Henry to
have cohabited with her for three
years, and repeatedly calls her his
mistress, when he attributes Hen
ry's patience with the pope's chi
"the infecundity of
canery to
Anne," and all this on no other
authority than a letter of the
French ambassador, which amounts
hardly to evidence of a transient
rumour, we cannot but complain
of a great deficiency in historical
candour.
FROM HENRY VII. TO GEORGE II.
85
CHAP.
tion.
II.
treaty which was afterwards partially renewed
through the mediation of Francis I., during his
interview with the pope at Nice about the end of Reforma-
1533, would have led to a restoration of amity
through the only possible means; when we con-
sider the weight of the imperial party in the con-
clave, the discredit that so notorious a submission
would have thrown on the church, and, above all,
the precarious condition of the Medici at Florence
in case of a rupture with Charles V. It was more
propably the aim of Clement to delude Henry once
more by his promises; but this was prevented by
the more violent measure into which the cardi-
nals forced him, of a definitive sentence in favour
of Catherine, whom the king was required under
pain of excommunication to take back as his wife.
This sentence of the 23d of March, 1534, proved
a declaration of interminable war; and the king,
who, in consequence of the hopes held out to him
by Francis, had already despatched an envoy to
Rome with his submission to what the pope should
decide, now resolved to break off all intercourse
for ever, and trust to his own prerogative and
power over his subjects for securing the succession
to the crown in the line which he designed. It
was doubtless a regard to this consideration that
put him upon his last overtures for an amicable
settlement with the court of Rome.*
* The principal authority on
the story of Henry's divorce from
Catherine is Burnct, in the first
and third volumes of his History
of the Reformation; the latter cor-
recting the former from additional
documents. Strype, in his Ec-
clesiastical Memorials, adds some
particulars not contained in Bur-
net, especially as to the negotia-
tions with the pope in 1528; and
a very little may be gleaned from
Collier, Carte, and other writers.
There are few parts of history, on
the whole, that have been better
elucidated. One exception perhaps
may yet be made. The beautiful
and affecting story of Catherine's
G 3
86
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
tion.
II.
But long before this final cessation of intercourse
with that court, Henry had entered upon a course
Reforma- of measures which would have opposed fresh ob-
stacles to a renewal of the connection. He had
found a great part of his subjects in a disposition
to go beyond all he could wish in sustaining his
quarrel, not, in this instance, from mere terror,
but because a jealousy of ecclesiastical power,
and of the Roman court, had long been a sort of
national sentiment in England. The pope's avoca-
tion of the process to Rome, by which his duplicity
and alienation from the king's side was made evi-
dent, and the disgrace of Wolsey, took place in the
summer of 1529. The parliament which met soon
afterwards was continued through several sessions
(an unusual circumstance), till it completed the
behaviour before the legates at
Dunstable is told by Cavendish
and Hall, from whom later histo-
rians have copied it. Burnet, how-
ever, in his third volume, p. 46.,
disputes its truth, and on what
should seem conclusive authority,
that of the original register, whence
it appears that the queen never
came into court but once, June 18.
1529, to read a paper protesting
against the jurisdiction, and that
the king never entered it. Carte
accordingly treated the story as a
fabrication. Hume of course did
not choose to omit so interesting
a circumstance; but Dr. Lingard
has pointed out a letter of the
king, which Burnet himself had
printed, vol. i. Append. 78., men-
tioning the queen's presence as
well as his own, on June 21., and
greatly corroborating the popular
account. To say the truth, there
is no small difficulty in choosing
between two authorities so consi-
derable, if they cannot be recon-
ciled, which seems impossible: but,
upon the whole, the preference is
due to Henry's letter, dated June
23., as he could not be mistaken,
and had no motive to mistate.
This is not altogether immate-
rial; for Catherine's appeal to Hen-
ry, de integritate corporis usque
ad secundas nuptias servatâ, with-
out reply on his part, is an im-
portant circumstance as to that
part of the question. It is how-
ever certain, that, whether on this
occasion or not, she did constantly
declare this; and the evidence ad-
duced to prove the contrary is very
defective, especially as opposed to
the assertion of so virtuous a wo
man. Dr. Lingard says that all
the favourable answers which the
king obtained from foreign univer
sities went upon the supposition
that the former marriage had been
consummated, and were of no avail
unless that could be proved. See
a letter of Wolsey to the king,
July 1. 1527, printed in State Pa-
pers, temp. Henry VIII. p. 194;.
whence it appears that the queen
had been consistent in her denial.
FROM HENRY VII. TO GEORGE II.
87
tion.
II.
separation of this kingdom from the supremacy of CHAP.
Rome. In the progress of ecclesiastical usurpation,
the papal and episcopal powers had lent mutual Reforma-
support to each other; both consequently were
involved in the same odium, and had become the
object of restrictions in a similar spirit. Warm
attacks were made on the clergy by speeches in
the commons, which bishop Fisher severely repre-
hended in the upper house. This provoked the
commons to send a complaint to the king by their
speaker, demanding reparation; and Fisher ex-
plained away the words that had given offence.
An act passed to limit the fees on probates of
wilis, a mode of ecclesiastical extortion much
complained of, and upon mortuaries.* The next
proceeding was of a far more serious nature. It
was pretended, that Wolsey's exercise of authority
as papal legate contravened a statute of Richard II.,
and that both himself and the whole body of the
clergy, by their submission to him, had incurred
the penalties of a præmunire, that is, the forfeiture
of their movable estate, besides imprisonment at
discretion. These old statutes in restraint of the
papal jurisdiction had been so little regarded, and
so many legates had acted in England without
objection, that Henry's prosecution of the church
on this occasion was extremely harsh and unfair.
The clergy however now felt themselves to be the
weaker party. In convocation they implored the
king's clemency, and obtained it by paying a large
sum of money. In their petition he was styled
* Stat. 21 Hen. 8. cc. 5, 6.
Strype, i. 73. Burnet, 83. It
cost a thousand marks to prove sir
William Compton's will in 1528.
These exactions had been much
augmented by Wolsey, who inter-
fered, as legate, with the preroga-
tive court.
G
4
88
THE CONSTITUTIONAL HISTORY OF ENGLAND
tion.
II.
CHAP. the protector and supreme head of the church
and clergy of England. Many of that body were
Reforma staggered at the unexpected introduction of a title
that seemed to strike at the supremacy they had al-
ways acknowledged in the Roman see. And in the
end it passed only with a very suspicious qualifica-
tion, "so far as is permitted by the law of Christ."
Henry had previously given the pope several inti-
mations that he could proceed in his divorce with
out him. For, besides a strong remonstrance by
letter from the temporal peers as well as bishops
against the procrastination of sentence in so just
a suit, the opinions of English and foreign uni-
versities had been laid before both houses of
parliament and of convocation, and the divorce
approved without difficulty in the former, and by
a great majority in the latter. These proceedings
took place in the first months of 1531, while the
king's ambassadors at Rome were still pressing for
a favourable sentence, though with diminished
hopes. Next year the annates, or first fruits of
benefices, a constant source of discord between
the nations of Europe, and their spiritual chief,
were taken away by act of parliament, but with a
remarkable condition, that if the pope would either
abolish the payment of annates, or reduce them to
a moderate burthen, the king might declare before
the next session, by letters patent, whether this
act, or any part of it, should be observed. It was
accordingly confirmed by letters patent more than
a year after it received the royal assent.
It is difficult for us to determine whether the
pope, by conceding to Henry the great object of
his solicitude, could in this stage have not only
arrested the progress of the schism, but recovered
L
FROM HENRY VII. TO GEORGE II.
89
CHAP.
II.
his former ascendency over the English church
and kingdom. But probably he could not have
done so in its full extent. Sir Thomas More, who Reforma-
had rather complied than concurred with the pro- tion.
ceedings for a divorce, though his acceptance of
the great seal on Wolsey's disgrace would have
been inconsistent with his character, had he been
altogether opposed in conscience to the king's
measures, now thought it necessary to resign,
when the papal authority was steadily, though
gradually, assailed.* In the next session an act
was passed to take away all appeals to Rome from
ecclesiastical courts; which annihilated at one
stroke the jurisdiction built on long usage and on
the authority of the false decretals. This law ren-
dered the king's second marriage, which had pre-
ceded it, secure from being annulled by the papal
court. Henry, however, still advanced, very cau-
tiously, and on the death of Warham, archbishop
of Canterbury, not long before this time, applied
* It is hard to say what were
More's original sentiments about
the divorce. In a letter to Crom-
well (Strype, i. 183. and App. No.
49. Burnet, App. p. 280.) he
speaks of himself as always doubt-
ful. But, if his disposition had
not been rather favourable to the
king, would he have been offered,
or have accepted, the great seal?
We do not indeed find his name
in the letter of remonstrance to the
pope, signed by the nobility and
chief commoners in 1530, which
Wolsey, though then in disgrace,
very willingly subscribed. But in
March, 1531, he went down to the
house of commons, attended by se-
veral lords, to declare the king's
Scruples about his marriage, and
to lay before them the opinions of
universities. In this he perhaps
thought himself acting ministe-
rially. But there can be no doubt
that he always considered the di-
vorce as a matter wholly of the
pope's competence, and which no
other party could take out of his
hands, though he had gone along
cheerfully, as Burnet says, with
the prosecution against the clergy,
and wished to cut off the illegal
jurisdiction of the Roman see. The
king did not look upon him as
hostile; for even so late as 1532,
Dr. Bennet, the envoy at Rome,
proposed to the pope that the cause
should be tried by four commis-
sioners, of whom the king should
name one, either sir Thomas
More or Stokesly, bishop of Lon-
don. Burnet, i. 126.

90
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
II.
Reforma-
tion.
+
Separation
from the
Rome.
to Rome for the usual bulls in behalf of Cranmer,
whom he nominated to the vacant see.
These
were the last bulls obtained, and probably the last
instance of any exercise of the papal supremacy
in this reign. An act followed in the next session,
that bishops elected by their chapter on a royal
recommendation should be consecrated, and arch-
bishops receive the pall, without suing for the
pope's bulls.
All dispensations and licenses hi
therto granted by that court were set aside by
another statute, and the power of issuing them in
lawful cases transferred to the archbishop of Can-
terbury. The king is in this act recited to be the
supreme head of the church of England, as the
clergy had two years before acknowledged in con-
vocation. But this title was not formally declared
by parliament to appertain to the crown till the
ensuing session of parliament.*
By these means was the church of England alto-
church of gether emancipated from the superiority of that
of Rome. For as to the pope's merely spiritual
primacy and authority in matters of faith, which
are, or at least were, defended by catholics of the
Gallican or Cisalpine school on quite different
grounds from his jurisdiction or his legislatorial
power in points of discipline, they seem to have
* Dr. Lingard has pointed out,
as Burnet had done less distinctly,
that the bill abrogating the papal
supremacy was brought into the
commons in the beginning of
March, and received the royal as-
sent on the 30th; whereas the de-
termination of the conclave at
Rome against the divorce was on
the 23d; so that the latter could
not have been the cause of this
final rupture. Clement VII. might
have been outwitted in his turn
by the king, if, after pronouncing
a decree in favour of the divorce,
he had found it too late to regain
his jurisdiction in England. On
the other hand, so flexible were
the parliaments of this reign, that,
if Henry had made terms with the
pope, the supremacy might have
revived again as easily as it had
been extinguished.
FROM HENRY VII. TO GEORGE II.
91
II.
attracted little peculiar attention at the time, and CHAP.
to have dropped off as a dead branch, when the
axe had lopped the fibres that gave it nourishment. Reforma-
Like other momentous revolutions, this divided tion.
the judgment and feelings of the nation. In the
previous affair of Catherine's divorce, generous
minds were more influenced by the rigour and
indignity of her treatment than by the king's in-
clinations, or the venal opinions of foreign doctors
in law. Bellay, bishop of Bayonne, the French
ambassador at London, wrote home in 1528, that
a revolt was apprehended from the general un-
popularity of the divorce.* Much difficulty was
found in procuring the judgments of Oxford and
Cambridge against the marriage; which was ef
fected in the former case, as is said, by excluding
the masters of arts, the younger and less worldly
part of the university, from their right of suffrage.
Even so late as 1532, in the pliant house of com-
mons, a member had the boldness to move an
address to the king, that he would take back his
wife. And this temper of the people seems to
have been the great inducement with Henry to
postpone any sentence by a domestic jurisdiction,
so long as a chance of the pope's sanction re-
mained.
The aversion entertained by a large part of the
community, and especially of the clerical order,
towards the divorce, was not perhaps so gene-
rally founded upon motives of justice and com-
passion, as on the obvious tendency which its
prosecution latterly manifested to bring about a
* Burnet, iii. 44.; and App. 24.

92
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
tion.
II.
separation from Rome. Though the principal
Lutherans of Germany were far less favourably
Reforma- disposed to the king in their opinions on this sub.
ject than the catholic theologians, holding that
the prohibition of marrying a brother's widow in
the Levitical law was not binding on Christians,
or at least that the marriage ought not to be an
nulled after so many years' continuance *; yet in
England the interests of Anne Boleyn and of the
She
Reformation were considered as the same.
was herself strongly suspected of an inclination to
the new tenets; and her friend Cranmer had been
the most active person both in promoting the di
vorce, and the recognition of the king's supremacy.
The latter was, as I imagine, by no means unac
ceptable to the nobility and gentry, who saw in it
* Conf. Burnet, i. 94. and App.
No. 35. Strype, i. 230. Sleidan,
Hist. de la Réformation, par Cou-
rayer, 1. 10. The notions of these
divines, as here stated, are not
very consistent or intelligible. The
Swiss reformers were in favour of
the divorce, though they advised
that the princess Mary should not
be declared illegitimate. Luther
seems to have inclined towards
compromising the difference by
the marriage of a secondary wife.
Lingard, p. 172. Melancthon,
this writer says, was of the same
opinion. Burnet indeed denies
this; but it is rendered not im-
probable by the well-authenti-
cated fact that these divines, to-
gether with Bucer, signed a per-
mission to the landgrave of Hesse
to take a wife or concubine, on
account of the drunkenness and
disagreeable person of his land-
gravine. Bossuet, Hist. des Var.
des Egl. Protest. vol. i., where the
instrument is published. Clement
VII., however, recommended the
king to marry immediately, and
then prosecute his suit for a d
vorce, which it would be easier le
him to obtain in such circu
stances.
January,
p. 27.)
period,
This was as early
1528. (Burnet, i. App
But at a much late
September, 1530, he e
pressly suggested the expedient e
allowing the king to retain the
wives. Though the letter of C
sali, the king's ambassador &
Rome, containing this propositio
was not found by Burnet, it
quoted at length by an authe
of unquestionable veracity, lo
Herbert. Henry had himself, &
one time, favoured this schem
according to Burnet, who does no
however, produce any authority
the instructions to that effect s
to have been given to Brian a
Vannes, despatched to Rome
the end of 1528. But at the ti
when the pope made this propos
the king had become exasperate
against Catherine, and little
clined to treat either her or
holy see with any respect.
.
93
FROM HENRY VII. TO GEORGE II.
the only effectual method of cutting off the papal CHAP.
exactions that had so long impoverished the realm;
tion.
II.
nor yet to the citizens of London, and other large Reforma-
towns, who, with the same dislike of the Roman
court, had begun to acquire some taste for the
protestant doctrine. But the common people, es-
pecially in remote counties, had been used to an
implicit reverence for the holy see, and had suf-
fered comparatively little by its impositions. They
looked up also to their own teachers as guides in
faith; and the main body of the clergy was cer-
tainly very reluctant to tear themselves, at the
pleasure of a disappointed monarch, in the most
dangerous crisis of religion, from the bosom of
catholic unity. They complied indeed with all
the measures of government far more than men of
rigid conscience could have endured to do; but
many who wanted the courage of More and Fisher,
were not far removed from their way of thinking. †
This repugnance to so great an alteration showed
itself, above all, in the monastic orders, some of
whom by wealth, hospitality, and long-established
dignity, others by activity in preaching and con-
fessing, enjoyed a very considerable influence over
the poorer class. But they had to deal with a
Sovereign, whose policy as well as temper dictated
* Strype, i. 151. et alibi.
† Strype, passim. Tunstal, Gar-
diner, and Bonner wrote in favour
the royal supremacy; all of
them, no doubt, insincerely. The
first of these has escaped severe
ensure by the mildness of his
eneral character, but was full as
uch a temporiser as Cranmer.
But the history of this period has
been written with such undisguised
partiality by Burnet and Strype on
the one hand, and lately by Dr.
Lingard on the other, that it is
almost amusing to find the most
opposite conclusions and general
results from nearly the same pre-
mises. Collier, though with many
considered, the fairest of our ec-
prejudices of his own, is, all things
clesiastical writers as to this reign.
94
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
II.
Reforma-
tion.
Dissolution
of monas-
teries.
that he had no safety but in advancing; and their
disaffection to his government, while it overwhelmed
them in ruin, produced a second grand innovation
in the ecclesiastical polity of England.
The enormous, and in a great measure ill-gotten,
opulence of the regular clergy had long since ex
cited jealousy in every part of Europe. Though
the statutes of mortmain under Edward I. and
Edward III. had put some obstacle to its increase,
yet as these were eluded by licenses of alienation,
a larger proportion of landed wealth was constantly
accumulating in hands which lost nothing that they
had grasped.* A writer much inclined to par
tiality towards the monasteries says that they held
not one fifth part of the kingdom; no insignificant
patrimony! He adds, what may probably be true,
that through granting easy leases, they did not
enjoy more than one tenth in value. † These vast
possessions were very unequally distributed among
four or five hundred monasteries. Some abbots, as
those of Reading, Glastonbury, and Battle, lived
in princely splendour, and were in every sense the
spiritual peers and magnats of the realm. In other
foundations, the revenues did little more than af
ford a subsistence for the monks, and defray the
needful expenses. As they were in general ex-
empted from episcopal visitation, and intrusted
with the care of their own discipline, such abuses
had gradually prevailed and gained strength by
connivance, as we may naturally expect in cor
* Burnet, 188. For the me-
thods by which the regulars ac-
quired wealth, fair and unfair, I
may be allowed to refer to the
View of the Middle Ages, ch. 7.,
or rather to the sources from which
the sketch there given was derived.
+ Harmer's Specimens of Errors
in Burnet.
FROM HENRY VII. TO GEORGE II.
95
tion,
II.
porate bodies of men leading almost of necessity CHAP.
useless and indolent lives, and in whom very in-
distinct views of moral obligations were combined Reforma-
with a great facility of violating them. The vices
that for many ages had been supposed to haunt
the monasteries, had certainly not left their pre-
cincts in that of Henry VIII. Wolsey, as papal
legate, at the instigation of Fox, bishop of Here-
ford, a favourer of the Reformation, commenced
a visitation of the professed as well as secular
clergy in 1523, in consequence of the general com-
plaint against their manners.* This great minister,
though not perhaps very rigid as to the morality
of the church, was the first who set an example
of reforming monastic foundations in the most
efficacious manner, by converting their revenues
to different purposes.
Full of anxious zeal for
promoting education, the noblest part of his cha-
racter, he obtained bulls from Rome suppressing
many convents (among which was that of St.
Frideswide at Oxford), in order to erect and en-
dow a new college in that university, his favourite
work, which after his fall was more completely
established by the name of Christ Church. A
few more were afterwards extinguished through
his instigation; and thus the prejudice against in-
terference with this species of property was some-
what worn off, and men's minds gradually prepared
for the sweeping confiscations of Cromwell. The
king indeed was abundantly willing to replenish

*
Strype, i. Append. 19.
+ Burnet. Strypc. Wolsey al-
ged as the ground for this sup-
pression, the great wickedness that
prevailed therein. Strype says the
number was twenty; but Collier,
ii. 19., reckons them at forty.
96
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
II.
Reforma-
tion.
his exchequer by violent means, and to avenge
himself on those who gainsayed his supremacy;
but it was this able statesman who, prompted both
by the natural appetite of ministers for the sub-
ject's money and by a secret partiality towards the
Reformation, devised and carried on with com
plete success, if not with the utmost prudence, a
measure of no inconsiderable hazard and difficulty.
For such it surely was, under a system of govern-
ment which rested so much on antiquity, and in
spite of the peculiar sacredness which the English
attach to all freehold property, to annihilate so
many prescriptive baronial tenures, the possessors
whereof composed more than a third part of the
house of lords, and to subject so many estates
which the law had rendered inalienable, to maxims
of escheat and forfeiture that had never been held
applicable to their tenure. But for this purpose
it was necessary, by exposing the gross corrup
tions of monasteries, both to intimidate the re-
gular clergy, and to excite popular indignation -
against them. It is not to be doubted that in the
visitation of these foundations under the direction
of Cromwell, as lord vicegerent of the king's ec
clesiastical supremacy, many things were done in
an arbitrary manner, and much was unfairly re
presented. Yet the reports of these visitors are
so minute and specific that it is rather a prepos
*
* Collier, though not implicitly
to be trusted, tells some hard
truths, and charges Cromwell with
receiving bribes from several ab-
boys, in order to spare them,
p. 159. This is repeated by Lin-
gard, on the authority of some
Cottonian manuscripts. Even Bur-
net speaks of the violent proceed
ings of a doctor Loudon towards
the monasteries. This man was
of infamous character, and became
afterwards a conspirator against
Cranmer, and a persecutor of pro-
testants.
FROM HENRY VII. TO GEORGE II.
97
tion.
terous degree of incredulity to reject their testi- CHAP.
mony, whenever it bears hard on the regulars. It II.
is always to be remembered that the vices to which Reforma-
they bear witness, are not only probable from the
nature of such foundations, but are imputed to
them by the most respectable writers of preceding
ages. Nor do I find that the reports of this visit-
ation were impeached for general falsehood in
that age, whatever exaggeration there might be
in particular cases. And surely the commend-
ation bestowed on some religious houses as pure and
unexceptionable, may afford a presumption that
the censure of others was not an indiscriminate
prejudging of their merits.*
The dread of these visitors soon induced a num-
ber of abbots to make surrenders to the king; a
step of very questionable legality. But in the
next session the smaller convents, whose revenues
were less than £200 a year, were suppressed by
act of parliament, to the number of three hundred
and seventy-six, and their estates vested in the

* Burnet, 190. Strype, i. ch.
35; see especially p. 257. Ellis's
Letters, ii. 71. We should be on
our guard against the Romanizing
high-church men, such as Collier,
and the whole class of antiquaries,
Wood, Hearne, Drake, Browne,
Willis, &c. &c., who are, with
hardly an exception, partial to the
monastic orders, and sometimes
carce keep on the mask of pro-
testantism. No one fact can be
better supported by current opi-
ion, and that general testimony
hich carries conviction, than the
elaxed and vicious state of those
foundations for many ages before
heir fall. Ecclesiastical writers
had not then learned, as they have
VOL. I.
since, the trick of suppressing what
might excite odium against their
church, but speak out boldly and
bitterly. Thus we find in Wil-
kins, iii. 630, a bull of Innocent
VIII. for the reform of monas-
teries in England, charging many
of them with dissoluteness of
life. And this is followed by a
severe monition from archbishop
Morton to the abbot of St. AÏ-
ban's, imputing all kinds of
scandalous vices to him and his
monks. Those who reject at once
the reports of Henry's visitors will
do well to consider this. See also
Fosbrooke's British Monachism,
passim.
H
98
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
II.
crown.
tion.
This summary spoliation led to the great
It was, in
northern rebellion soon afterwards.
Reforma fact, not merely to wound the people's strongest
impressions of religion, and especially those con-
nected with their departed friends, for whose souls
prayers were offered in the monasteries, but to de-
prive the indigent, in many places, of succour,
and the better rank of hospitable reception. This
of course was experienced in a far greater degree
at the dissolution of the larger monasteries, which
took place in 1540. But, Henry having entirely
subdued the rebellion, and being now exceedingly
dreaded by both the religious parties, this measure
produced no open resistance; though there seems
to have been less pretext for it on the score of im
morality and neglect of discipline than was found
for abolishing the smaller convents.*
These great
foundations were all surrendered; a few excepted,
which, against every principle of received law,
were held to fall by the attainder of their abbots
for high treason. Parliament had only to confirm
the king's title arising out of these surrenders and
forfeitures. Some historians assert the monks to
have been turned adrift with a small sum of money.
But it rather appears that. they generally received
*The preamble of 27 H. 8. c.
28, which gives the smaller mo-
nasteries to the king, after reciting
that "manifest sin, vicious, car-
nal, and abominable living, is
daily used and committed com-
monly in such little and small ab-
beys, priories, and other religious
houses of monks, canons, and nuns,
where the congregation of such re-
ligious persons is under the num-
ber of twelve persons," bestows
praise on many of the greater
foundations, and certainly does not
intimate that their fate was so near
at hand. Nor is any misconduct
alleged or insinuated against the
greater monasteries in the act 31
H. 8. c. 13, that abolishes them;
which is rather more remarkable,
as in some instances the religious
had been induced to confess their
evil lives and ill deserts. Burnet,
236.
:
L
כן
FROM HENRY VII. TO GEORrge ii.
99
pensions not inadequate, and which are said to CHAP.
have been pretty faithfully paid.*
These how-
tion.
II.
ever were voluntary gifts on the part of the crown. Reforma.
For the parliament which dissolved the monastic
foundations, while it took abundant care to pre-
serve any rights of property which private persons
might enjoy over the estates thus escheated to the
crown, vouchsafed not a word towards securing
the slightest compensation to the dispossessed
owners.
The fall of the mitred abbots changed the
pro-
portions of the two estates which constitute the
upper house of parliament. Though the number
of abbots and priors to whom writs of summons
were directed varied considerably in different par-
liaments, they always, joined to the twenty-one
bishops, preponderated over the temporal peers.t
that hard fare to which they ought
by their rules to have been con-
fined in the convents. The whole
revenues were not to be shared
among them as private property.
It cannot of course be denied that
the compulsory change of life was
to many a severe and an unmerited
hardship; but no great revolution,
and the Reformation as little as
any, could be achieved without
much private suffering.

* Id. ibid. and Append. p. 151.
Collier, 167. The pensions to the
superiors of the dissolved greater
monasteries, says a writer not likely
to spare Henry's government, ap-
pear to have varied from £266 to
6 per annum. The priors of
cells received generally £13. A
few, whose services had merited
the distinction, obtained £20. To
the other monks were allotted pen-
sions of six, four, or two pounds,
with a small sum to each at his
departure, to provide for his im-
mediate wants. The pensions to
uns averaged about £4. Lingard,
He admits that these
ere ten times their present value
money; and surely they were
ot unreasonably small. Com-
are them with those, generally
djustly thought munificent,
hich this country bestows on her
terans of Chelsea and Green-
ch. The monks had no right
expect more than the means of
341.
+ The abbots sat till the end of
the first session of Henry's sixth
parliament, the act extinguishing
them not having passed till the
last day. In the next session they
do not appear, the writ of sum-
mons not being supposed to give
them personal seats. There are
indeed so many parallel instances
among spiritual lords, and the prin-
ciple is so obvious, that it would
not be worth noticing, but for a
strange doubt said to be thrown
out by some legal authorities, near
H 2

100
THE CONSTITUTIONAL HISTORY OF ENGLAND
+
II.
Reforma-
tion.
CHAP. It was no longer possible for the prelacy to offer
an efficacious opposition to the reformation they
abhorred. Their own baronial tenure, their high
dignity as legislative counsellors of the land, re
mained; but, one branch as ancient and venerable
as their own thus lopped off, the spiritual aristo
cracy was reduced to play a very secondary part
in the councils of the nation. Nor could the pro.
testant religion have easily been established by
legal methods under Edward and Elizabeth with
out this previous destruction of the monasteries
Those who, professing an attachment to that reli
gion, have swollen the clamour of its adversaries
against the dissolution of foundations that existed
only for the sake of a different faith and worship,
seem to me not very consistent or enlightened rea
soners. In some, the love of antiquity produces
a sort of fanciful illusion; and the very sight of
those buildings, so magnificent in their prosperous
hour, so beautiful even in their present ruin, be
gets a sympathy for those who founded and inha
bited them. In many, the violent courses of con
fiscation and attainder which accompanied this
great revolution excite so just an indignation, that
they either forget to ask whether the end might
not have been reached by more laudable means
or condemn that end itself either as sacrilege,
at least as an atrocious violation of the rights
property. Others again, who acknowledge th
the monastic discipline cannot be reconciled wit
the beginning of George III.'s reign,
in the case of Pearce, bishop of
Rochester, whether, after resigning
his see, he would not retain his
in co
seat as a lord of parliament;
sequence of which his resignatio
was not accepted.
01
Of
FROM HENRY VII. TO GEORGE II.
101
tion.
II.
the modern system of religion, or with public CHAP.
utility, lament only that these ample endowments
were not bestowed upon ecclesiastical corpora- Reforma-
tions, freed from the monkish cowl, but still be-
longing to that spiritual profession to whose use
they were originally consecrated. And it was a
very natural theme of complaint at the time, that
such abundant revenues as might have sustained
the dignity of the crown and supplied the means
of public defence without burthening the sub-
ject, had served little other purpose than that of
swelling the fortunes of rapacious courtiers, and
had left the king as necessitous and craving as
before.
Notwithstanding these various censures, I must
own myself of opinion, both that the abolition
of monastic institutions might have been con-
ducted in a manner consonant to justice as well
as policy, and that Henry's profuse alienation
of the abbey lands, however illaudable in its
motive, has proved upon the whole more bene-
ficial to England than any other disposition would
have turned out. I cannot, until some broad
principle is made more obvious than it ever has
yet been, do such violence to all common notions
on the subject, as to attach an equal inviolabi-
ity to private and corporate property. The law
of hereditary succession, as ancient and universal
s that of property itself, the law of testament-
ry disposition, the complement of the former, so
ong established in most countries as to seem a
atural right, have invested the individual pos-
essor of the soil with such a fictitious immor-
ality, such anticipated enjoyment, as it were, of

L
H 3
102
THE CONSTITUTIONAL HISTORY OF ENGLAND
II.
Reforma-
tion.
CHAP. futurity, that his perpetual ownership could not
be limited to the term of his own existence, with
out what he would justly feel as a real deprivation
of property. Nor are the expectancies of children,
or other probable heirs, less real possessions, which
it is a hardship, if not an absolute injury, to de
feat. Yet even this hereditary claim is set aside
by the laws of forfeiture, which have almost every
where prevailed. But in estates held, as we call
it, in mortmain, there is no intercommunity, no
natural privity of interest, between the present
possessor and those who may succeed him; and as
the former cannot have any pretext for complaint,
if, his own rights being preserved, the legislature
should alter the course of transmission after his
decease, so neither is any hardship sustained by
others, unless their succession has been already
designated or rendered probable. Corporate pro-
perty therefore appears to stand on a very different
footing from that of private individuals; and while
all infringements of the established privileges of
the latter are to be sedulously avoided, and held
justifiable only by the strongest motives of public
expediency, we cannot but admit the full right of
the legislature to new mould and regulate the
former in all that does not involve existing interests
upon far slighter reasons of convenience. If Henry
had been content with prohibiting the profession
of religious persons for the future, and had gradu
ally diverted their revenues instead of violently
confiscating them, no protestant could have found
it easy to censure his policy.
It is indeed impossible to feel too much indig
nation at the spirit in which these proceedings

FROM HENRY VII. TO GEORGE II.
103
CHAP.
tion.
II.
were conducted. Besides the hardship sustained
by so many persons turned loose upon society for
whose occupations they were unfit, the indiscri- Reforma-
minate destruction of convents produced several
public mischiefs. The visitors themselves strongly
interceded for the nunnery of Godstow, as irre-
proachably managed, and an excellent place of
education; and no doubt some other foundations.
should have been preserved for the same reason.
Latimer, who could not have a prejudice on that
side, begged earnestly that the priory of Malvern
might be spared, for the maintenance of preach-
ing and hospitality. It was urged for Hexham
abbey that, there not being a house for many miles
in that part of England, the country would be in
danger of going to waste.* And the total want
of inns in many parts of the kingdom must have
rendered the loss of these hospitable places of re-
ception a serious grievance. These and probably
other reasons ought to have checked the destroy-
ing spirit of reform in its career, and suggested to
Henry's counsellors that a few years would not
be ill consumed in contriving new methods of at-
taining the beneficial effects which monastic in-
stitutions had not failed to produce, and in pre-
paring the people's minds for so important an
innovation.
The suppression of monasteries poured in an in-
stant such a torrent of wealth upon the crown, as
has seldom been equalled in any country by the
confiscations following a subdued rebellion. The
clear yearly value was rated at £131,607; but was
*Burnet, i. Append. 96.
H 4
104
THE CONSTITUTIONAL HISTORY OF ENGLAND
II.
Reforma-
tion.
CHAP. in reality, if we believe Burnet, ten times as great;
the courtiers undervaluing those estates, in order
to obtain grants or sales of them more easily. It
is certain, however, that Burnet's supposition errs
extravagantly on the other side.* The moveables
of the smaller monasteries alone were reckoned at
£100,000; and, as the rents of these were less
than a fourth of the whole, we may calculate the
aggregate value of moveable wealth in the same
proportion. All this was enough to dazzle a more
prudent mind than that of Henry, and to inspire
those sanguine dreams of inexhaustible affluence
with which private men are so often filled by sudden
prosperity.
The monastic rule of life being thus abrogated,
as neither conformable to pure religion nor to po-
licy, it is to be considered, to what uses these im-
mense endowments ought to have been applied.
There are some, perhaps, who may be of opinion
that the original founders of monasteries, or those
who had afterwards bestowed lands on them, hav-
ing annexed to their grants an implied condition
of the continuance of certain devotional services,
and especially of prayers for the repose of their
* P. 268. Dr. Lingard, on the
authority of Nasmith's edition of
Tanner's Notitia Monastica, puts
the annual revenue of all the mo-
nastic houses at £142,914. This
would only be one twentieth part
of the rental of the kingdom, if
Hume were right in estimating that
at three millions. But this is cer-
tainly by much too high. The
author of Harmer's Observations
on Burnet, as I have mentioned
above, says the monks will be
found not to have possessed above
one fifth of the kingdom, and in
value, by reason of their long
leases, not one tenth. But on this
supposition, the crown's gain was
enormous.
According to a valuation in
Speed's Catalogue of Religious
Houses, apud Collier, Append.
p. 34, sixteen mitred abbots had re-
venues above £1000 per annum.
St. Peter's, Westminster, was the
richest, and valued at £3977, Glas-
tonbury at £3508, St. Alban's at
£2510, &c.
FROM HENRY VII. TO GEORGE II.
105

any
II.
souls, it were but equitable that, if the legislature CHAP.
rendered the performance of this condition im-
possible, their heirs should re-enter upon the lands Reforma-
that would not have been alienated from them on tion.
other account. But, without adverting to the
difficulty in many cases of ascertaining the lawful
heir, it might be answered that the donors had
absolutely divested themselves of all interest in
their grants, and that it was more consonant to
the analogy of law to treat these estates as escheats
or vacant possessions, devolving to the sovereign,
than to imagine a right of reversion that no party
had ever contemplated. There was indeed a class
of persons, very different from the founders of
monasteries, to whom restitution was due. A large
proportion of conventual revenues arose out of
parochial tithes, diverted from the legitimate object
of maintaining the incumbent to swell the pomp
of some remote abbot. These impropriations were
in no one instance, I believe, restored to the
parochial clergy, and have passed either into the
hands of laymen, or of bishops and other eccle-
siastical persons, who were frequently compelled
by the Tudor princes to take them in exchange
for lands.* It was not in the spirit of Henry's
policy, or in that of the times, to preserve much
of these revenues to the church, though he had
designed to allot 18,000l. a year for eighteen new
* An act entitling the queen to
take into her hands, on the avoid-
made (1 Eliz. c.19). This bill passed
ance of any bishopric, so much of 104 to 90, and was ill taken by
on a division in the commons by
the lands belonging to it as should
eual in value to the impro- themselves reduced to live on the
some of the bishops, who saw
priate rectories, &c. within the lawful subsistence of the parochial
ame, belonging to the crown, and clergy. Strype's Annals, i. 68.
to give the latter in exchange, was
97.
106
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
II.
Reforma-
tion.
sees, of which he only erected six with far inferior
endowments. Nor was he much better inclined
to husband them for public exigencies, although
more than sufficient to make the crown independ-
ent of parliamentary aid. It may perhaps be
reckoned a providential circumstance, that his
thoughtless humour should have rejected the ob
vious means of establishing an uncontrollable de
spotism, by rendering unnecessary the only exer-
tion of power which his subjects were likely to
withstand. Henry VII. would probably have fol-
lowed a very different course. Large sums, how-
ever, are said to have been expended in the repair
of highways, and in fortifying ports in the Chan-
nel.*
But the greater part was dissipated in pro-
fuse grants to the courtiers, who frequently con-
trived to veil their acquisitions under cover of a
purchase from the crown. It has been surmised
that Cromwell, in his desire to promote the Re-
formation, advised the king to make this partition
of abbey lands among the nobles and gentry, either
by grant, or by sale on easy terms, that, being
thus bound by the sure ties of private interest,
they might always oppose any return towards the
dominion of Rome. † In Mary's reign accordingly
her parliament, so obsequious in all matters of re
* Burnet, 268. 339. In Strype,
i. 211, we have a paper drawn up
by Cromwell for the king's inspec-
tion, setting forth what might be
done with the revenues of the
lesser monasteries. Among a few
other particulars are the following:
"His grace may furnish 200
gentlemen to attend on his person;
every one of them to have 100
marks yearly-20,000 marks. His
highness may assign to the yearly
reparation of highways in sundry
parts, or the doing of other good
deeds for the commonwealth, 5000
marks." In such scant proportion
did the claims of public utility
come after those of selfish pomp,
or rather perhaps, looking
attentively, of cunning corrup
tion.
† Burnet, i. 223.
FROM HENRY VII. TO GEORGE II.
107
tion.
II.
ligion, adhered with a firm grasp to the possession CHAP.
of church lands; nor could the papal supremacy
be re-established until a sanction was given to their Reforma-
enjoyment. And we may ascribe part of the zeal
of the same class in bringing back and preserving
the reformed church under Elizabeth to a similar
motive; not that these gentlemen were hypocri-
tical pretenders to a belief they did not entertain,
but that, according to the general laws of human
nature, they gave a readier reception to truths which
made their estates more secure.
But, if the participation of so many persons in
the spoils of ecclesiastical property gave stability
to the new religion, by pledging them to its sup-
port, it was also of no slight advantage to our civil
constitution, strengthening, and as it were infusing
new blood into the territorial aristocracy, who were
to withstand the enormous prerogative of the crown.
For if it be true, as surely it is, that wealth is power,
the distribution of so large a portion of the kingdom
among the nobles and gentry, the elevation of so
many new families, and the increased opulence
of the more ancient, must have sensibly affected
their weight in the balance. Those families in-
deed, within or without the bounds of the peerage,
which are now deemed the most considerable, will
be found, with no great number of exceptions, to
have first become conspicuous under the Tudor
line of kings; and, if we could trace the titles of
their estates, to have acquired no small portion of
them, mediately or immediately, from monastic or
her ecclesiastical foundations. And better it has
been that these revenues should thus from age to
age have been expended in liberal hospitality, in
108
THE CONSTITUTIONAL HISTORY OF ENGLAND
1
}
II.
Reforma-
CHAP. discerning charity, in the promotion of industry
and cultivation, in the active duties or even generous
amusements of life, than in maintaining a host of
ignorant and inactive monks, in deceiving the po-
pulace by superstitious pageantry, or in the encou
ragement of idleness and mendicity.*
tion.
1
A very ungrounded prejudice had long obtained
currency, and, notwithstanding the contradiction it
has experienced in our more accurate age, seems
still not eradicated, that the alms of monasteries
maintained the indigent throughout the kingdom,
and that the system of parochial relief, now so much
the topic of complaint, was rendered necessary by
* It is a favourite theory with
many who regret the absolute se-
cularization of conventual estates,
that they might have been rendered
useful to learning and religion by
being bestowed on chapters and
colleges. Thomas Whitaker has
sketched a pretty scheme for the
abbey of Whalley, wherein, be-
sides certain opulent prebendaries,
he would provide for schoolmasters
and physicians. I suppose this is
considered an adherence to the
donor's intention, and no sort of
violation of property; somewhat
on the principle called cy près,
adopted by the court of chancery
in cases of charitable bequests; ac-
cording to which, that tribunal, if
it holds the testator's intention
unfit to be executed, carries the
bequest into effect by doing what
it presumes to come next in his
wishes, though sometimes very far
from them. It might be difficult
indeed to prove that a Norman
baron, who, not quite easy about
his future prospects, took comfort
in his last hours from the antici-
pation of daily masses for his soul,
would have been better satisfied
that his lands should maintain a
grammar-school, than that they
should escheat to the crown. But
to wave this, and to revert to the
principle of public utility, it may
possibly be true that, in one in-
stance, such as Whalley, a more
beneficial disposition could have
been made in favour of a college
than by granting away the lands.
But the question is, whether all,
or even a great part, of the monas-
tic estates could have been kept in
mortmain with advantage. We
may easily argue that the Der-
wentwater property, applied as it
has been, has done the state more
service, than if it had gone to
maintain a race of Ratcliffes, and
been squandered at White's or
Newmarket. But does it follow
that the kingdom would be the
more prosperous, if all the estates
of the peerage were diverted to
similar endowments? And can
we seriously believe that, if such
a plan had been adopted at the
suppression of monasteries, either
religion or learning would have
been the better for such an i
dation of prebendaries and school-
masters?
FROM HENRY VII. TO GEORGE II.
109
CHAP.
tion.
II.
the dissolution of those beneficent foundations.
There can be no doubt that many of the impotent
poor derived support from their charity. But the Reforma-
blind eleemosynary spirit inculcated by the Romish
church is notoriously the cause, not the cure, of
beggary and wretchedness. The monastic found-
ations, scattered in different counties, but by no
means at regular distances, could never answer
the end of local and limited succour, meted out
in just proportion to the demands of poverty.
Their gates might indeed be open to those who
knocked at them for alms, and came in search of
streams that must always be too scanty for a thirsty
multitude. Nothing could have a stronger tend-
ency to promote that vagabond mendicity, which
unceasing and very severe statutes were enacted to
repress. It was and must always continue a hard
problem, to discover the means of rescuing those
whom labour cannot maintain from the last extre-
mities of helpless suffering. The regular clergy
were in all respects ill fitted for this great office
of humanity. Even while the monasteries were
yet standing, the scheme of a provision for the
poor had been adopted by the legislature, by
means of regular collections, which in the course
of a long series of statutes, ending in the 43d of
Elizabeth, were almost insensibly converted into
compulsory assessments.*
* The first act for the relief of
the impotent poor passed in 1535
(27 H. 8. c. 25.). By this statute
no alms were allowed to be given
to beggars, on pain of forfeiting
ten times the value; but a col-
lection was to be made in every
parish. The compulsory contri-
It is by no means pro-
butions, properly speaking, began
in 1572 (14 Eliz. c. 5.). But by an
earlier statute, 1 Edward 6. c. 3.,
the bishop was empowered to pro-
ceed in his court against such as
should refuse to contribute, or dis-
suade others from doing so.
110
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. bable that, however some in particular districts
II. may have had to lament the cessation of hospi
Reforma- tality in the convents, the poor in general were
tion.
placed in a worse condition by their dissolution;
nor are we to forget that the class to whom the
abbey lands have fallen have been distinguished
at all times, and never more than in the first cen-
tury after that transference of property, for their
charity and munificence.
These two great political measures, the separa-
tion from the Roman see, and the suppression of
monasteries, so broke the vast power of the English
clergy, and humbled their spirit, that they became
the most abject of Henry's vassals, and dared not
offer any steady opposition to his caprice, even
when it led him to make innovations in the essen-
tial parts of their religion. It is certain that a
large majority of that order would gladly have
retained their allegiance to Rome, and that they
viewed with horror the downfall of the monasteries.
In rending away so much that had been incorpo-
rated with the public faith, Henry seemed to pre-
pare the road for the still more radical changes of
the reformers. These, a numerous and increasing
sect, exulted by turns in the innovations he pro-
mulgated, lamented their dilatoriness and imper
fection, or trembled at the re-action of his bigotry
against themselves. Trained in the school of theo
logical controversy, and drawing from those bitter
waters fresh aliment for his sanguinary and impe-
rious temper, he displayed the impartiality of his
intolerance by alternately persecuting the two
conflicting parties. We all have read how three
persons convicted of disputing his supremacy,
and
FROM HENRY VII. TO GEORGE II.
111
CHAP.
tion.
II.
three deniers of transubstantiation, were drawn on
the same hurdle to execution. But the doctrinal
system adopted by Henry in the latter years of his Reforma-
reign, varying indeed in some measure from time.
to time, was about equally removed from popish
and protestant orthodoxy. The corporal presence
of Christ in the consecrated elements was a tenet
which no one might dispute without incurring the
penalty of death by fire; and the king had a ca-
pricious partiality to the Romish practice in those
very points where a great many real catholics on
the Continent were earnest for its alteration, the
communion of the laity by bread alone, and the
celibacy of the clergy. But in several other re-
spects he was wrought upon by Cranmer to draw
pretty near to the Lutheran creed, and to permit
such explications to be given in the books set
forth by his authority, the Institution, and the
Erudition, of a Christian Man, as, if they did not
absolutely proscribe most of the ancient opinions,
threw at best much doubt upon them, and gave
intimations which the people, now become atten-
tive to these questions, were acute enough to
interpret.*
It was natural to suspect, from the previous
temper of the nation, that the revolutionary spirit
which blazed out in Germany should spread ra-
pidly over England. The enemies of ancient su-
perstition at home, by frequent communication
* The Institution was printed in
1537; the Erudition, according to
Burnet, in 1540; but in Collier
nd Strype's opinion, not till 1543.
hey are both artfully drawn, pro-
ably in the main by Cranmer,
ut not without the interference
of some less favourable to the new
doctrine, and under the eye of the
king himself. Collier, 137. 189.
The doctrinal variations in these
two summaries of royal faith are
by no means inconsiderable.
Progress of
formed
the re-
doctrine in
England.
112
THE CONSTITUTIONAL HISTORY OF ENGLAND
tion.
II.
CHAP. with the Lutheran and Swiss reformers, acquired
not only more enlivening confidence, but a surer
Reforma- and more definite system of belief. Books printed
in Germany or in the Flemish provinces, where at
first the administration connived at the new re-
ligion, were imported and read with that eager
ness and delight which always compensate the
risk of forbidden studies.* Wolsey, who had no
turn towards persecution, contented himself with
ordering heretical writings to be burned, and
strictly prohibiting their importation. But to with-
stand the course of popular opinion is always like
a combat against the elements in commotion; nor
is it likely that a government far more steady and
unanimous than that of Henry VIII. could have
effectually prevented the diffusion of protestantism.
And the severe punishment of many zealous re-
formers, in the subsequent part of this reign,
tended, beyond a doubt, to excite a favourable
prejudice for men whose manifest sincerity, piety,
and constancy in suffering, were as good pledges
for the truth of their doctrine, as the people had
been always taught to esteem the same qualities in
the legends of the early martyrs. Nor were Henry's
persecutions conducted upon the only rational
principle, that of the inquisition, which judges
from the analogy of medicine, that a deadly poison
cannot be extirpated but by the speedy and radi
cal excision of the diseased part; but falling
ร
* Strype, i. 165. A statute en-
acted in 1534 (25 H. 8. c. 15.),
after reciting that "at this day
there be within this realm a great
number cunning and expert in
printing, and as able to execute
the said craft as any stranger,"
proceeds to forbid the sale of
bound books imported from the
Continent. A terrible blow was
thus levelled both against general
literature and the reformed re
ligion; but, like many other bad
laws, produced very little effect.
FROM HENRY VII. TO GEORGE II.
113
CHAP.
II.
only upon a few of a more eager and officious
zeal, left a well-grounded opinion among the rest,
that by some degree of temporising prudence they Reforma-
might escape molestation till a season of liberty
should arrive.
One of the books originally included in the list
of proscription among the writings of Luther and
the foreign Protestants, was a translation of the
New Testament into English by Tindal, printed
at Antwerp in 1526. A complete version of the
Bile, partly by Tindal, and partly by Coverdale,
appeared, perhaps at Hamburgh, in 1535; a second
edition, under the name of Matthews, following in
1537; and as Cranmer's influence over the king
became greater, and his aversion to the Roman
church more inveterate, so material a change was
made in the ecclesiastical policy of this reign, as
to direct the Scriptures in this translation (but with
corrections in many places) to be set up in parish
churches, and permit them to be publicly sold.*
* The accounts of early editions
of the English Bible in Burnet,
Collier, Strype, and an essay by
Johnson in Watson's Theological
Tracts, vol. iii., are erroneous or de-
fective. A letter of Strype in Har-
leian MSS. 3782., which has been
printed, is better; but the most
complete enumeration is in Cot-
ton's list of editions, 1821. The
dispersion of the Scriptures, with
full liberty to read them, was
greatly due to Cromwell, as is
shown by Burnet. Even after his
fall, a proclamation, dated May 6.
1542, referring to the king's for-
mer injunctions for the same pur-
pose, directs a large Bible to be set
up in every parish church. But,
next year, the duke of Norfolk and
Gardiner prevailing over Cranmer,
VOL. I.
I
Henry retraced a part of his steps;
and the act 34 H. 8. c. 1. forbids
the sale of Tindal's "false trans-
lation," and the reading of the
Bible in churches, or by yeomen,
women, and other incapable per-
sons. The popish bishops, well
aware how much turned on this
general liberty of reading the
Scriptures, did all in their power
to discredit the new version. Gar-
diner made a list of about one
hundred words which he thought
unfit to be translated, and which,
in case of an authorised version
(whereof the clergy in convocation
had reluctantly admitted the ex-
pediency), ought, in his opinion, to
be left in Latin. Tindal's trans-
lation may, I apprehend, be reck-
oned the basis of that now in use,
tion.
114
THE CONSTITUTIONAL HISTORY OF ENGLAND
tion.
II.
CHAP. This measure had a strong tendency to promote
the Reformation, especially among those who were
Reforma- capable of reading; not surely that the contro-
verted doctrines of the Romish church are so
indisputably erroneous as to bear no sort of ex-
amination, but because such a promulgation of the
Scriptures at that particular time seemed both
tacitly to admit the chief point of contest, that
they were the exclusive standard of Christian
faith, and to lead the people to interpret them
with that sort of prejudice which a jury would
feel in considering evidence that one party in a
cause had attempted to suppress; a danger which
those who wish to restrain the course of free dis-
cussion without very sure means of success will
in all ages do well to reflect upon.
The great change of religious opinions was not
so much effected by reasoning on points of theo-
logical controversy, upon which some are apt to
fancy it turned, as on a persuasion that fraud and
corruption pervaded the established church. The
pretended miracles, which had so long held the
understanding in captivity, were wisely exposed
to ridicule and indignation by the government.
but has undergone several correc-
tions before the last. It has been
a matter of dispute whether it
were made from the original lan-
guages or from the Vulgate. He-
brew and even Greek were very
little known in England at that
time.
The edition of 1537, called Mat-
thews's Bible, printed by Grafton,
contains marginal notes reflecting
on the corruptions of popery.
These it was thought expedient
to suppress in that of 1539, com-
monly called Cranmer's Bible, as
having been revised by him, and
in later editions. In all these edi-
tions of Henry's reign, though the
version is properly Tindal's, there
are, as I am informed, consider-
able variations and amendments..
Thus, in Cranmer's Bible, the
word ecclesia is always rendered
congregation, instead of church;
either as the primary meaning, or,
more probably, to point out that
the laity had a share in the go-
vernment of a Christian society.
t
FROM HENRY VII. TO GEORGE II.
115
CHAP.
tion.
II.
blishment
under
Edward.
Plays and interludes were represented in churches,
of which the usual subject was the vices and cor-
ruptions of the monks and clergy. These were Reforma-
disapproved of by the graver sort, but no doubt
served a useful purpose.* The press sent forth
its light hosts of libels; and though the catholic
party did not fail to try the same means of influ-
ence, they had both less liberty to write as they
pleased, and fewer readers than their antagonists.
In this feverish state of the public mind on the Its esta-
most interesting subject, ensued the death of
Henry VIII., who had excited and kept it up.
More than once, during the latter part of his ca-
pricious reign, the popish party, headed by Norfolk
and Gardiner, had gained an ascendant; and seve-
ral persons had been burned for denying transub-
stantiation. But at the moment of his decease,
Norfolk was a prisoner attainted of treason, Gar-
diner in disgrace, and the favour of Cranmer at
its height. It is said that Heary had meditated
some further changes in religion. Of his execu-
tors, the greater part, as their subsequent conduct
evinces, were nearly indifferent to the two systems,
except so far as more might be gained by innova-
tion. But Somerset, the new protector, appears
to have inclined sincerely towards the Reformation,
though not wholly uninfluenced by similar motives.
His authority readily overcame all opposition in
the council and it was soon perceived that Ed-
་
*Burnet, 318. Strype's Life
of Parker, 18. Collier (187.) is of
course much scandalised. In his
view of things, it had been better
to give up the Reformation en-
tirely, than to suffer one reflection
on the clergy. These dramatic sa-
tires on that order had also an ef-
fect in promoting the Reformation
in Holland. Brandt's History of
Reformation in Low Countries,
vol. i.
vol. i. p. 128.
"
I
2
116
THE CONSTITUTIONAL HISTORY OF ENGLAND
II.
Reforma-
tion.
CHAP. ward, whose singular precocity gave his opinions
in childhood an importance not wholly ridiculous,
had imbibed a steady and ardent attachment to
the new religion, which probably, had he lived
longer, would have led him both to diverge farther
from what he thought an idolatrous superstition,
and to have treated its adherents with severity."
Under his reign accordingly a series of alterations
in the tenets and homilies of the English church
were made, the principal of which I shall point
out, without following a chronological order, or
adverting to such matters of controversy as did
not produce a sensible effect on the people.
Sketch of 1. It was obviously among the first steps required
in order to introduce a mode of religion at once
more reasonable and more earnest than the former,
that the public services of the church should be
expressed in the mother tongue of the congrega-
tion. The Latin ritual had been unchanged ever
since the age when it was familiar; partly through
a sluggish dislike of innovation, but partly also
because the mysteriousness of an unknown dialect
served to impose on the vulgar, and to throw an
the chief
points of
different
between the
two re-
ligions.
* I can hardly avoid doubting,
whether Edward VI.'s Journal,
published in the second volume of
Burnet, be altogether his own; be-
cause it is strange for a boy of ten
years old to write with the precise
brevity of a man of business. Yet
it is hard to say how far an inter-
course with able men on serious
subjects may force a royal plant of
such natural vigour; and his let-
ters to his young friend Barnaby
Fitzpatrick, published by H. Wal-
pole in 1774, are quite unlike the
style of a boy. One could wish
this journal not to be genuine; for
the manner in which he speaks of
both his uncles' executions does
not show a good heart. Unfor
tunately, however, there is a letter
extant, of the king to Fitzpatrick,
which must be genuine, and is in
the same strain. He treated his
sister Mary harshly about her re-
ligion, and had, I suspect, too
much Tudor blood in his veins.
It is certain that he was a very ex
traordinary boy, or, as Cardan calls
him, monstrificus puellus; and the
reluctance with which he yielded,
on the solicitations of Cranmer, to
sign the warrant for burning John
Boucher, is as much to his honour,
as it is against the archbishop's.
FROM HENRY VII. TO GEORGE II.
117
CHAP.
tion.
II.
air of wisdom around the priesthood. Yet what
was thus concealed would have borne the light.
Our own liturgy, so justly celebrated for its piety, Reforma-
elevation, and simplicity, is in great measure a
translation from the catholic services; those por-
tions of course being omitted which had relation
to different principles of worship. In the second
year of Edward's reign, the reformation of the
public service was accomplished, and an English
liturgy compiled not essensially different from that
in present use.
**
2. No part of exterior religion was more promi-
nent, or more offensive to those who had imbibed
a protestant spirit, than the worship, or at least
veneration, of images, which in remote and bar-
barous ages had given excessive scandal both in
the Greek and Latin churches, though long fully
established in the practice of each. The populace,
in towns where the reformed tenets prevailed, be-
gan to pull them down in the very first days of
Edward's reign; and after a little pretence at
distinguishing those which had not been abused,
orders were given that all images should be taken
away from churches. It was perhaps necessary
thus to hinder the zealous Protestants from abating
them as nuisances, which had already caused several
disturbances. † But this order was executed with
*The litany had been translated
into English in 1542. Burnet, i.
331. Collier, 111.; where it may
be read, not much differing from
that now in use.
It was always
held out by orr church, when the
object was cociliation, that the
liturgy
was essentially the same.
with the mass-book. Strype's An-
nals, ii. 39. Hollingshed, iii. 921.
(4to. edition.)
+ It was observed, says Strype,
ii. 79., that where images were left
there was most contest, and most
peace where they were all sheer
pulled down, as they were in some
places.
13
118
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
II.
Reforma-
tion.
a rigour which lovers of art and antiquity have long
deplored. Our churches bear witness to the de
vastation committed in the wantonness of triumph-
ant reform, by defacing statues and crosses on the
exterior of buildings intended for worship, or win
dows and monuments within. Missals and other
books dedicated to superstition perished in the
same manner. Altars were taken down, and a
great variety of ceremonies abrogated; such as the
use of incense, tapers, and holy water; and though
more of these were retained than eager innovators
could approve, the whole surface of religious ordi-
nances, all that is palpable to common minds, un-
derwent a surprising transformation.
3. But this change in ceremonial observances
and outward show was trifling, when compared to
that in the objects of worship, and in the purposes
for which they were addressed. Those who have
visited some catholic temples, and attended to the
current language of devotion, must have perceived,
what the writings of apologists or decrees of coun
cils will never enable them to discover, that the
saints, but more especially the Virgin, are almost
exclusively the popular deities of that religion. All
this polytheism was swept away by the reformers;
and in this may be deemed to consist the most
specific difference of the two systems. Nor did
they spare the belief in purgatory, that unknown
land which the hierarchy swayed with so absolute
a rule, and to which the earth had been rendered
a tributary province. Yet in the first liturgy put
forth under Edward, the prayers for departed souls
were retained; whether out of respect to the pre
judices of the people, or to the immemorial an
レ
​FROM HENRY VII. TO GEORGE II.
119
1
tion.
II.
tiquity of the practice. But such prayers, if not CHAP.
necessarily implying the doctrine of purgatory
(which yet in the main they appear to do), are at Reforms-
least so closely connected with it, that the belief
could never be eradicated while they remained.
Hence, in the revision of the liturgy, four years
afterwards, they were laid aside; and several
other changes made, to eradicate the vestiges of
the ancient superstition.
4. Auricular confession, as commonly called, or
the private and special confession of sins to a
priest for the purpose of obtaining his absolution,
an imperative duty in the church of Rome, and
preserved as such in the statute of the six ar-
ticles, and in the religious codes published by
Henry VIII., was left to each man's discretion in
the new order; a judicious temperament, which the
reformers would have done well to adopt in some
other points. And thus, while it has never been
condemned in our church, it went without dispute
into complete neglect. Those who desire to aug-
ment the influence of the clergy regret, of course,
its discontinuance; and some may conceive that
it would serve either for wholesome restraint, or
useful admonition. It is very difficult, or perhaps
beyond the reach of any human being, to deter-
*Collier, p. 257., enters into a
vindication of the practice, which
appears to have prevailed in the
church from the second century.
It was defended in general by the
nonjurors, and the whole school
of Andrews. But, independently
of its wanting the authority of
I 4
Scripture, which the reformers set
up exclusively of all tradition, it
contradicted the doctrine of justi-
fication by mere faith, in the strict
sense which they affixed to that
tenet. See preamble of the act for
dissolution of chantries, 1 Edw. 6.
c. 14.
}
120
THE CONSTITUTIONAL HISTORY OF ENGLAND
II.
Reforma.
tion,
CHAP. mine absolutely how far these benefits, which can-
not be reasonably denied to result in some instances
from the rite of confession, outweigh the mischiefs
connected with it. There seems to be something
in the Roman catholic discipline (and I know no-
thing else so likely) which keeps the balance, as
it were, of moral influence pretty even between
the two religions, and compensates for the igno-
rance and superstition which the elder preserves:
for I am not sure that the protestant system in
the present age has any very sensible advantage
in this respect; or that in countries where the
comparison can fairly be made, as in Germany or
Switzerland, there is more honesty in one sex, or
more chastity in the other, when they belong to
the reformed churches. Yet, on the other hand,
the practice of confession is at the best of very
doubtful utility, when considered in its full extent
and general bearings. The ordinary confessor,
listening mechanically to hundreds of penitents,
can hardly preserve much authority over most of
them. But in proportion as his attention is directed
to the secrets of conscience, his influence may be
come dangerous; men grow accustomed to the
control of one perhaps more feeble and guilty than
themselves, but over whose frailties they exercise
no reciprocal command; and, if the confessors of
kings have been sometimes terrible to nations,
their ascendency is probably not less mischievous,
in proportion to its extent, within the sphere of
domestic life. In a political light, and with the
object of lessening the weight of the ecclesiastical
order in temporal affairs, there cannot be the least
[
FROM HENRY VII. TO GEORGE II.
121
hesitation as to the expediency of discontinuing CHAP.
the usage.
*
tion.
II.
5. It has very rarely been the custom of theolo- Reforma-
gians to measure the importance of orthodox opi-
mions by their effect on the lives and hearts of
those who adopt them; nor was this predilection
for speculative above practical doctrines ever more
evident than in the leading controversy of the six-
teenth century, that respecting the Lord's supper.
No errors on this point could have had any influ
ence on men's moral conduct, nor indeed much
on the general nature of their faith; yet it was se-
lected as the test of heresy; and most, if not all,
of those who suffered death upon that charge,
whether in England or on the Continent, were
convicted of denying the corporal presence in the
sense of the Roman church. It had been well if
the reformers had learned, by abhorring her per-
secution, not to practise it in a somewhat less
degree upon each other, or by exposing the ab-
surdities of transubstantiation, not to contend for
equal nonsense of their own. Four principal theo-
ries, to say nothing of subordinate varieties,
divided Europe at the accession of Edward VI.
about the sacrament of the eucharist. The church
of Rome would not depart a single letter from
transubstantiation, or the change, at the moment
of consecration, of the substances of bread and
wine into those of Christ's body and blood; the
* Collier, p. 248., descants, in
the true spirit of a high church-
man, on the importance of con-
fession. This also, as is well known,
is one of the points on which his
party disagreed with the generality
of Protestants.
Ą
122
THE CONSTITUTIONAL HISTORY OF ENGLAND
4X4
T
II.
Reforma-
tion.
CHAP. accidents, in school language, or sensible qualities
of the former remaining, or becoming inherent in
the new substance. This doctrine does not, as
vulgarly supposed, contradict the evidence of our
senses; since our senses can report nothing as to
the unknown being, which the schoolmen deno.
minated substance, and which alone was the subject
of this conversion. But metaphysicians of later ages
might enquire whether material substances, ab
stractedly considered, exist at all, or, if they exist,
whether they can have any specific distinction ex-
cept their sensible qualities. This, perhaps, did not
suggest itself in the sixteenth century; but it was
strongly objected that the simultaneous existence
of a body in many places, which the Romish doc
trine implied, was inconceivable, and even con-
tradictory. Luther, partly, as it seems, out of
his determination to multiply differences with
the church, invented a theory somewhat differ
ent, usually called consubstantiation, which was
adopted in the confession of Augsburgh, and to
which, at least down to the end of the seventeenth
century, the divines of that communion were
much attached. They imagined the two sub
stances to be united in the sacramental elements,
so that they might be termed bread and wine, or
the body and blood, with equal propriety.* But
it must be obvious that there is merely a scholas
tic distinction between this doctrine and that of
Rome; though, when it suited the Lutherans to
* Nostra sententia est, says Lu-
ther, apud Burnet, 111. Appendix,
194., corpus ita cum pane, seu in
pane esse, ut revera cum pane man-
ducetur, et quemcunque motum
vel actionem panis habet, cundem
et corpus Christi.
t
FROM HENRY VII. TO GEORGE II.
123
magnify,
CHAP.
tion.
II.
rather than dissemble, their deviations
from the mother church, it was raised into an im-
portant difference. A simpler and more rational Reforma-
explication occurred to Zuingle and Ecolampa-
dius, from whom the Helvetian Protestants imbibed
their faith. Rejecting every notion of a real pre-
sence, and divesting the institution of all its mys-
tery, they saw only figurative symbols in the
elements which Christ had appointed as a com-
memoration of his death. But this novel opinion
excited as much indignation in Luther as in the
Romanists. It was indeed a rock on which the
Reformation was nearly shipwrecked; since the
violent contests which it occasioned, and the nar-
row intolerance which one side at least displayed
throughout the controversy, not only weakened
on several occasions the temporal power of the
protestant churches, but disgusted many of those
who might have inclined towards espousing their
sentiments. Besides these three hypotheses, a
fourth was promulgated by Martin Bucer of Stras-
burgh, a man of much acuteness, but prone to
metaphysical subtlety, and not, it is said, of a very
ingenuous character. His theory upon the sa-
crament of the Lord's supper, after having been
adopted with little variation by Calvin, was finally
received into some of the offices of the English
church. If the Roman and Lutheran doctrines
teemed with unmasked absurdity, this middle sys-
tem (if indeed it is to be considered as a genuine
opinion, and not rather a politic device *,) had no
"Bucer thought, that for
avoiding contention, and for main-
taining peace and quietness in the
church, somewhat more ambigu-
ous words should be used, that
might have a respect to both per-
124
THE CONSTITUTIONAL HISTORY OF ENGLAND
II.
Reforma-
tion.
CHAP. advantage but in the disguise of unmeaning terms;
while it had the peculiar infelicity of departing
as much from the literal sense of the words of in-
stitution, wherein the former triumphed, as the
Zuinglian interpretation itself. It is not easy to
state in language tolerably perspicuous this obso
lete metaphysical theology. But Bucer, as I appre
hend, though his expressions are unusually confused,
did not acknowledge a local presence of Christ's
body and blood in the elements after consecration,
- so far concurring with the Helvetians; while he
contended that they were really, and without
figure, received by the worthy communicant through
faith, so as to preserve the belief of a mysterious
union, and of what was sometimes called a real
pre-
sence. It can hardly fail to strike every unpreju-
diced reader that a material substance can only in
a very figurative sense be said to be received
through faith; that there can be no real presence
of such a body, consistently with the proper use of
language, but by its local occupation of space; and
that, as the Romish tenet of transubstantiation is
rather the best, so this of the Calvinists is the worst
imagined of the three that have been opposed to
the simplicity of the Helvetic explanation. Bucer
himself came to England early in the reign of Ed-
ward, and had a considerable share in advising the
measures of reformation. But Peter Martyr, a dis-
suasions concerning the presence.
But Martyr was of another judg-
ment, and affected to speak of the
sacrament with all plainness and
perspicuity." Strype, ii. 121. The
truth is, that there were but two
opinions at bottom as to this main
point of the controversy; nor in
the nature of things was it pos
sible that there should be more;
for what can be predicated com-
cerning a body, in its relation to
a given space, but presence
absence?
and
FROM HENRY VII. TO GEORGE II.
125
II.
ciple of the Swiss school, had also no small influence. CHAP.
In the forty-two articles set forth by authority,
the real or corporeal presence, using these words Reforma-
as synonymous, is explicitly denied. This clause tion.
was omitted on the revision of the articles under
Elizabeth.* +
6. These various innovations were exceedingly
inimical to the influence and interests of the priest-
hood. But that order obtained a sort of com-
pensation in being released from its obligation to
celibacy. This obligation, though unwarranted by
Scripture, rested on a most ancient and universal
rule of discipline; for though the Greek and
Eastern churches have always permitted the ordi-
nation of married persons, yet they do not allow
those already ordained to take wives.
No very
good reason, however, could be given for this dis-
tinction; and the constrained celibacy of the
Latin clergy had given rise to mischiefs, of which
their general practice of retaining concubines

Burnet, ii. 105. App. 216.
Strype, ii. 121. 208. Collier, &c.
The Calvinists certainly did not
own a local presence in the ele-
ments. It is the artifice of modern
Romish writers, Dr. Milner, Mr.
C. Butler, &c. to disguise the in-
compatibility of their tenets with
those of the church of England on
this, as they do on all other topics
of controversy, by representing her
as maintaining
an actual, incom-
prehensible presence of Christ's
body in the consecrated elements;
which was never meant to be as-
serted in any authorised exposition
of faith; though in the seventeenth
cutury it was held by many distin-
guished churchmen. See the 27th,
28th, and 29th articles of religion.
An eminent living writer, who
would be as useful as he is agree-
able, if he could bring himself to
write with less heat and haste,
says, that at Elizabeth's accession,
among other changes, "the lan-
guage of the article which affirmed
a real presence was so framed as to
allow latitude of belief for those
who were persuaded of an exclu-
sive one.
sive one." "Southey's Book of the
Church, vol. ii. p. 247. The real
presence was not affirmed, but de-
nied, in the original draft; and as
an exclusive
to what Mr. S. calls "
one," (that is, transubstantiation,
if the words have any meaning,) it
is positively rejected in the amended
article.
126
THE CONSTITUTIONAL HISTORY OF ENGLAND
II.
Reforma-
tion.
The
CHAP. might be reckoned among the smallest.*
German Protestants soon rejected this burden,
and encouraged regular as well as secular priests
to marry. Cranmer had himself taken a wife in
Germany, whom Henry's law of the six articles,
one of which made the marriage of priests felony,
compelled him to send away. In the reign of
Edward this was justly reckoned an indispensable
part of the new Reformation. But the bill for that
purpose passed the lords with some little difficulty,
nine bishops and four peers dissenting; and it:
preamble cast such an imputation on the practice
it allowed, treating the marriage of priests as igno-
minious and a tolerated evil, that another act was
thought necessary a few years afterwards, when the
Reformation was better established, to vindicate
this right of the protestant church. †
number of the clergy availed themselves of their
liberty; which may probably have had as exten-
sive an effect in conciliating the ecclesiastical
profession, as the suppression of monasteries had
in rendering the gentry favourable to the new order
of religion.
Opposition
made by
nation.
A great
But great as was the number of those whom con-
part of the viction or self-interest enlisted under the protestant
banner, it appears plain that the Reformation
moved on with too precipitate a step for the ma
jority. The new doctrines prevailed in London,
in many large towns, and in the eastern counties.
* It appears to have been com-
mon for the clergy, by licence from
their bishops, to retain concubines,
who were, Collier says, for the
most part their wives, p. 262. But
I do not clearly understand in what
the distinction could have con-
sisted; for it seems unlikely that
marriages of priests were ever so
lemnised at so late a period;
they were, they were invalid.
or
Stat. 2 & 3 Edw. VI. c. 21
5 and 6 Edw. VI. c. 12. Bur
net, 89.

FROM HENRY VII. TO GEORGE II.
127
But in the north and west of England, the body of CHAP.
the people were strictly Catholics.
The clergy,
II.
though not very scrupulous about conforming to Reforma-
the innovations, were generally averse to most of tion.
them. And, in spite of the church lands, I ima-
gine that most of the nobility, if not the gentry,
inclined to the same persuasion; not a few peers
having sometimes dissented from the bills passed
on the subject of religion in this reign, while no
sort of disagreement appears in the upper house
during that of Mary. In the western insurrection
of 1549, which partly originated in the alleged
grievance of enclosures, many of the demands
made by the rebels go to the entire re-establish-
ment of popery. Those of the Norfolk insurgents
in the same year, whose political complaints were
the same, do not, as far as I perceive, show any
such tendency. But an historian, whose bias was
certainly not unfavourable to protestantism, con-
fesses that all endeavours were too weak to over-
come the aversion of the people towards reform-
tion, and even intimates that German troops were
ent for from Calais on account of the bigotry with
which the bulk of the nation adhered to the old
uperstition. t This is somewhat an humiliating
* 2 Strype, 53. Latimer pressed
he necessity of expelling these
emporising conformists. "Out
th them all! I require it in
od's behalf: make them quon-
ms, all the pack of them."
4.2 Burnet, 143.
Id.
Burnet, iii. 190. 196. "The
e of the old religion," says Paget,
remonstrating with Somerset on
rough treatment of some of the
try, and partiality to the com-
mons, " is forbidden by a law, and
the use of the new is not yet printed
in the stomachs of eleven out of
twelve parts of the realm, what-
ever countenance men make out-
wardly to please them in whom
they see the power resteth." Strype,
i. Appendix, H. H. This seems
rather to refer to the upper classes,
any rate it was an exaggeration of
than to the whole people. But at
the fact, the protestants being cer-
128
THE CONSTITUTIONAL HISTORY OF ENGLAND
II.
Reforma-
tion.
CHAP. admission, that the protestant faith was imposed
upon our ancestors by a foreign army. And as
the reformers, though still the fewer, were unde-
niably a great and increasing party, it may be
natural to enquire, whether a regard to policy as
well as equitable considerations should not have
repressed still more, as it did in some measure,
the zeal of Cranmer and Somerset? It might be
asked, whether, in the acknowledged co-existence
of two religions, some preference were not fairly
claimed for the creed, which all had once held, and
which the greater part yet retained; whether it
were becoming that the counsellors of an infant
king should use such violence in breaking up the
ecclesiastical constitution; whether it were to
be expected that a free-spirited people should see
their consciences thus transferred by proclamation,
and all that they had learned to venerate not only
torn away from them, but exposed to what they
must reckon blasphemous contumely and profan
ation? The demolition of shrines and images, far
unlike the speculative disputes of theologians, was
an overt insult on every catholic heart. Still more
were they exasperated at the ribaldry which vulgar
Protestants uttered against their most sacred mys
tery. It was found necessary, in the very first act
of the first protestant parliament, to denounce pe
nalties against such as spoke irreverently of the
sacrament, an indecency not unusual with those
who held the Zuinglian opinion in that age of
tainly in a much greater propor- in order to quell a seditious spin
tion. Paget was the adviser of in the nation, not by any mean
the scheme of sending for German wholly founded upon religion
troops in 1549, which, however, was grounds. Strype, xi. 169.

FROM HENRY VII. TO GEORGE 11.
129
tion.
coarse pleasantry and unmixed invective.* Nor CHAP.
could the people repose much confidence in the II.
judgment and sincerity of their governors, whom Reforma-
they had seen submitting without outward repug-
nance to Henry's various schemes of religion, and
whom they saw every day enriching themselves
with the plunder of the church they affected to re-
form. There was a sort of endowed colleges or
fraternities, called chantries, consisting of secular
priests, whose duty was to say daily masses for the
founders. These were abolished and given to the
king by acts of parliament in the last year of Henry,
and the first of Edward. It was intimated in the
preamble of the latter statute that their revenues
should be converted to the erection of schools, the
augmentation of the universities, and the sustenance
of the indigent. But this was entirely neglected,
and the estates fell into the hands of the courtiers.
Nor did they content themselves with this escheat-
ed wealth of the church. Almost every bishopric
was spoiled by their ravenous power in this reign,
either through mere alienations, or long leases, or
unequal exchanges. Exeter and Llandaff, from
being among the richest sees, fell into the class of
the poorest.
Lichfield lost the chief part of its
lands to raise an estate for lord Paget. London,
Winchester, and even Canterbury, suffered con-
siderably.
The duke of Somerset was much
* 2 Edward 6. c. 1. Strype,
i. 81.
† 37 H. 8. c. 2.
1 Edw. 6.
14. Strype, ii. 63. Burnet, &c.
Cranmer,
as well as the catholic
ishops, protested against this act,
ell knowing how little regard
VOL. I.
K
would be paid to its intention. In
the latter part of the young king's
reign, as he became more capable
of exerting his own power, he en-
dowed, as is well known, several
excellent foundations.
130
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
II.
Reforma-
tion.
beloved; yet he had given no unjust offence
pulling down some churches in order to erect
Somerset-house with the materials. He had even
projected the demolition of Westminster Abbey;
but the chapter averted this outrageous piece of
rapacity, sufficient of itself to characterise that
age, by the usual method, a grant of some of their
estates.*
Tolerance in religion, it is well known, so una-
nimously admitted (at least verbally) even by
theologians in the present century, was seldom
considered as practicable, much less as a matter of
right, during the period of the Reformation. The
difference in this respect between the Catholics
and Protestants was only in degree, and in degree
there was much less difference than we are apt to
believe. Persecution is the deadly original sin of
the reformed churches; that which cools every
honest man's zeal for their cause, in proportion as
* Strype, Burnet, Collier, pas-
sim. Harmer's Specimens, 100.
Sir Philip Hobby, our minister in
Germany, writes to the Protector
in 1548,that the foreign Protestants
thought our bishops too rich, and
advises him to reduce them to a
competent living; he particularly
recommends his taking away all
the prebends in England. Strype,
88.
These counsels, and the acts
which they prompted, disgust us,
from the spirit of rapacity they
breathe. Yet it might be urged
with some force that the enor-
mous wealth of the superior eccle-
siastics had been the main cause
of those corruptions which it was
sought to cast away, and that most
of the dignitaries were very averse
to the new religion. Even Cran-
mer had written some years before
to Cromwell, deprecating the esta
blishment of any prebends out of
the conventual estates, and speak-
ing of the collegiate clergy as an
idle, ignorant, and gormandising
race, who might, without any harm,
be extinguished along with the re-
gulars. Burnet, iii. 141. But the
gross selfishness of the great men
in Edward's reign justly made him
anxious to save what he could for
a church that seemed on the brink
of absolute ruin. Collier mentions
a characteristic circumstance. So
great a quantity of church plate
had been stolen, that a commission
was appointed to enquire into the
facts, and compel its restitution.
Instead of this, the commissioners
found more left than they thought
sufficient, and seized the greater
part to the king's use.
1

FROM HENRY VII. TO GEORGE II.
131
his reading becomes more extensive.
The Lu- CHAP.
theran princes and cities in Germany constantly
II.
refused to tolerate the use of the mass as an idol- Reforma-
atrous service *; and this name of idolatry, though tion.
adopted in retaliation for that of heresy, answered
the same end as the other, of exciting animosity
and uncharitableness. The Roman worship was
equally proscribed in England. Many persons
were sent to prison for hearing mass and similar
offences. The princess Mary supplicated in vain
to have the exercise of her own religion at home;
and Charles V. several times interceded in her
behalf; but though Cranmer and Ridley, as well
as the council, would have consented to this in-
dulgence, the young king, whose education had
unhappily infused a good deal of bigotry into his
mind, could not be prevailed upon to connive at
such idolatry. Yet in one memorable instance he
had shown a milder spirit, struggling against Cran-
mer to save a fanatical woman from the punishment
of heresy. This is a stain upon Cranmer's me-
mory which nothing but his own death could
have lightened. In men hardly escaped from a
* They declared, in the famous
protestation of Spire, which gave
them the name of Protestants, that
their preachers having confuted
the mass by passages in Scripture,
they could not permit their sub-
ects to go thither; since it would
afford a bad example, to suffer two
orts of service, directly opposite
o each other, in their churches.
Schmidt, Hist. des Allemands, vi.
394. vii. 24.
by Warwick, who died himself a
papist, but had pretended to fall
in with the young king's prejudices.
Her ill treatment was subsequent
to the protector's overthrow. It
is to be observed, that, in her
father's life, she had acknowledged
his supremacy, and the justice of
her mother's divorce. 1 Strype,
285. 2 Burnet, 241. Lingard,
vi. 326. It was of course by inti-
midation; but that excuse might
be made for others. Cranmer is
said to have persuaded Henry not
Burnet, 192. Somerset had to put her to death, which we must
ways allowed her to exercise her ~
eligion, though censured for this know.
in charity hope she did not
† Stat. 2 & 3 Edw. 6. c. 1.
Strype's Cranmer, p. 233.
K 2
132
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
tion.
II.
similar peril, in men who had nothing to plead but
the right of private judgment, in men who had
Reforma defied the prescriptive authority of past ages and of
established power, the crime of persecution assumes
a far deeper hue, and is capable of far less extenu-
ation, than in a Roman inquisitor. Thus the death
of Servetus has weighed down the name and
memory of Calvin. And though Cranmer was
incapable of the rancorous malignity of the Ge
nevan lawgiver, yet I regret to say that there is
a peculiar circumstance of aggravation in his pur-
suing to death this woman, Joan Boucher, and a
Dutchman that had been convicted of Arianism.
It is said that he had been accessary in the pre-
ceding reign to the condemnation of Lambert,
and perhaps some others, for opinions concerning
the Lord's supper which he had himself afterwards
embraced.* Such an evidence of the fallibility of
human judgment, such an example that persecu-
tions for heresy, how conscientiously soever ma-
naged, are liable to end in shedding the blood of
those who maintain truth, should have taught him,
above all men, a scrupulous repugnance to carry
into effect those sanguinary laws. Compared with
these executions for heresy, the imprisonment and
deprivation of Gardiner and Bonner appear but
measures of ordinary severity towards political ad
versaries under the pretext of religion; yet are
* When Joan Boucher was con-
demned, she said to her judges,
"It was not long ago since you
burned Anne Askew for a piece of
bread, and yet came yourselves
soon after to believe and profess
the same doctrine for which you
will
burned her; and now you
needs burn me for a piece of flesh,
and in the end you will come to
believe this also when
read the Scriptures and understand
them." Strype, ii. 214.
you
have

FROM HENRY VII. TO GEORGE II.
133
11.
they wholly unjustifiable, particularly in the former CHAP.
instance; and if the subsequent retaliation of those
bad men was beyond all proportion excessive, we Reforma-
should remember that such is the natural conse-
quence of tyrannical aggressions.
*
tion.
The person most conspicuous, though Ridley Cranmer.
was perhaps the most learned divine, in moulding
the faith and discipline of the English church,
which has not been very materially altered since
* Gardiner had some virtues,
and entertained sounder notions
of the civil constitution of England
than his adversaries. In a letter
to sir John Godsalve, giving his
reasons for refusing compliance
with the injunctions issued by the
council to the ecclesiastical visitors,
(which, Burnet says, does him more
honour than any thing else in his
life,) he dwells on the king's wanting
power to command any thing con-
trary to common law, or to a sta-
tute, and brings authorities for
this. Burnet, ii. Append. 112.
See also Lingard, vi. 387. for an-
other instance. Nor was this re-
gard to the constitution displayed
only when out of the sunshine.
For in the next reign he was
against despotic counsels, of which
an instance has been given in the
last chapter. His conduct, indeed,
with respect to the Spanish con-
nection, is equivocal. He was
much against the marriage at first,
and took credit to himself for the
securities exacted in the treaty with
Philip, and established by statute.
Burnet, ii. 267. But afterwards,
if we may trust Noailles, he fell
in with the Spanish party in the
council, and even suggested to par-
liament that the queen should
have the same power as her father
to dispose of the succession by
will. Ambassades de Noailles,
iii. 153. &c. &c. Yet according
to Dr. Lingard, on the imperial
ambassador's authority, he saved
Elizabeth's life against all the
council. The article GARDINER,
in the Biographia Britannica, con-
tains an elaborate and partial apo-
logy, at great length; and the his-
torian just quoted has of course
said all he could in favour of one
who laboured so strenuously for
the extirpation of the northern
heresy. But he was certainly not
an honest man, and, had been
active in Henry's reign against his
real opinions.
Even if the ill treatment of
Gardiner and Bonner by Edward's
council could be excused (and the
latter by his rudeness might de-
serve some punishment), what can
be said for the imprisonment of
the bishops Heath and Day, wor-
thy and moderate men, who had
gone a great way with the reform-
ation, but objected to the removal
of altars, an innovation by no
means necessary, and which should
have been deferred till the people
had grown ripe for further change?
Mr. Southey says, "Gardiner and
Bonner were deprived of their sees
and imprisoned: but no rigour
was used towards them? Book of
the Church, ii. 111. Liberty and
property being trifles!
K 3
134
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
II.
tion.
Few men,
his time, was archbishop Cranmer.*
about whose conduct there is so little room for
Reforma controversy upon facts, have been represented in
more opposite lights. We know the favouring
colours of protestant writers; but turn to the bitter
invective of Bossuet; and the patriarch of our
reformed church stands forth as the most aban-
doned of time-serving hypocrites. No political
factions affect the impartiality of men's judgment
so grossly, or so permanently, as religious heats.
Doubtless, if we should reverse the picture, and
imagine the end and scope of Cranmer's labour
to have been the establishment of the Roman
catholic religion in a protestant country, the
estimate formed of his behaviour would be some-
what less favourable than it is at present. If,
casting away all prejudice on either side, we weigh
the character of this prelate in an equal balance,
he will appear far indeed removed from the tur
pitude imputed to him by his enemies, yet not
entitled to any extraordinary veneration. Though
it is most eminently true of Cranmer that his
faults were always the effect of circumstances,
and not of intention; yet this palliating consi
deration is rather weakened when we recollect
that he consented to place himself in a station
* The doctrines of the English
church were set forth in 42 articles,
drawn up, as is generally believed,
by Cranmer and Ridley, with the
advice of Bucer and Martyr, and
perhaps of Cox. The three last
The three last
of these, condemning some novel
opinions, were not renewed under
Elizabeth, and a few other vari-
ations were made; but upon the
whole there is little difference, and
little difference, and
none perhaps in those tenets which
have been most the object of dis
cussion. See the original Articles
in Burnet, ii. App. N. 55. They
were never confirmed by a convo-
cation or a parliament, but im-
posed by the king's supremacy on
all the clergy, and on the univer-
sities. His death, however, en-
sued before they could be actually
subscribed,
FROM HENRY VII. TO GEORGE II.
135
tion.
II.
where those circumstances occurred. At the time CHAP.
of Cranmer's elevation to the see of Canterbury,
Henry, though on the point of separating for ever Reforma-
from Rome, had not absolutely determined upon
so strong a measure; and his policy required that
the new archbishop should solicit the usual bulls
from the pope, and take the oath of canonical
obedience to him. Cranmer, already a rebel from
that dominion in his heart, had recourse to the
disingenuous shift of a protest, before his con-
secration, that "he did not intend to restrain
himself thereby from any thing to which he was
bound by his duty to God or the king, or from
taking part in any reformation of the English
church which he might judge to be required."
This first deviation from integrity, as is almost
always the case, drew after it many others; and
began that discreditable course of temporising,
and undue compliance, to which he was re-
duced for the rest of Henry's reign. Cranmer's
abilities were not perhaps of a high order, or
at least they were unsuited to public affairs; but
his principal defect was in that firmness by which
Strype's Cranmer, Appendix,
p.9.-I am sorry to find a respect-
able writer inclining to vindicate
Cranmer in this protestation,
this protestation,
which Burnet admits to agree bet-
ter with the maxims of the casuists
than with the prelate's sincerity:
Todd's Introduction to Cranmer's
Defence of the True Doctrine of
the Sacrament (1825), p. 40. It
is of no importance to enquire,
whether the protest were made
publicly or privately. Nothing
can
possibly turn upon this. It
was, on either supposition, un-
known to the promisee, the pope
**
at Rome. The question is, whe-
ther, having obtained the bulls
from Rome on an express stipula-
tion that he should take a certain
oath, he had a right to offer a
limitation, not explanatory, but ut-
terly inconsistent with it? We are
sure that Cranmer's views and in-
tentions, which he very soon car-
ried into effect, were irreconcilable
with any sort of obedience to the
pope; and if, under all the circum-
stances, his conduct was justifiable,
there would be an end of all pro-
missory obligations whatever.
:
K 4
136
"
THE CONSTITUTIONAL HISTORY OF ENGLAND
1
CHAP.
11.
Reforma-
tion.
Ilis moder-
ation in in-
troducing
changes
not accept-
zealots.
men of more ordinary talents may ensure respect.
Nothing could be weaker than his conduct in
the usurpation of lady Jane, which he might
better have boldly sustained, like Ridley, as a step
necessary for the conservation of protestantism,
than given into against his conscience, overpow
ered by the importunities of a misguided boy.
Had the malignity of his enemies been directed
rather against his reputation than his life, had
he been permitted to survive his shame, as a
prisoner in the Tower, it must have seemed a
more arduous task to defend the memory of
Cranmer; but his fame has brightened in the
fire that consumed him.*
Those who, with the habits of thinking that pre-
vail in our times, cast back their eyes on the
reign of Edward VI. will generally be disposed
able to the to censure the precipitancy, and still more the
exclusive spirit, of our principal reformers. But
relatively to the course that things had taken in
Germany, and to the feverish zeal of that age,
the moderation of Cranmer and Ridley, the only
ecclesiastics who took a prominent share in these
measures, was very conspicuous; and tended above
every thing to place the Anglican church in that
middle position which it has always preserved,
between the Roman hierarchy and that of other
protestant denominations.
* The character of Cranmer is
summed up in no unfair manner
by Mr. C. Butler, Memoirs of En-
glish Catholics, vol. i. p. 139.; cx-
cept that his obtaining from Anne
Boleyn an acknowledgment of her
supposed pre-contract of marriage,
having proceeded from motives of
It is manifest from
humanity, ought not to incur much
censure, though the sentence of
nullity was a mere mockery of law.
compelled to
Poor Cranmer was
subscribe not less than six recant-
ations. Strype (iii. 232 ) had the
integrity to publish all these, which
were not fully known before.
FROM HENRY VII. TO GEORGE II.
137
tion.
II.
the history of the Reformation in Germany, that CHAP.
its predisposing cause was the covetous and ar-
rogant character of the superior ecclesiastics, Reforma-
founded upon vast temporal authority; a yoke
long borne with impatience, and which the unani-
mous adherence of the prelates to Rome in the
period of separation gave the Lutheran princes a
good excuse for entirely throwing off. Some of
the more temperate reformers, as Melancthon,
would have admitted a limited jurisdiction of the
episcopacy: but in general the destruction of that
order, such as it then existed, may be deemed as
fundamental a principle of the new discipline, as
any theological point could be of the new doctrine.
But, besides that the subjection of ecclesiastical to
civil tribunals, and possibly other causes, had ren-
dered the superior clergy in England less obnoxious
than in Germany, there was this important dif
ference between the two countries, that several
bishops from zealous conviction, many more from
pliability to self-interest, had gone along with the
new-modelling of the English church by Henry
and Edward; so that it was perfectly easy to keep
up that form of government, in the regular suc-
cession which had usually been deemed essential;
though the foreign reformers had neither the wish,
nor possibly the means, to preserve it. Cranmer
himself, indeed, during the reign of Henry, had
bent, as usual, to the king's despotic humour; and
favoured a novel theory of ecclesiastical authority,
which resolved all its spiritual as well as temporal
powers into the royal supremacy. Accordingly,
at the accession of Edward, he himself, and several
other bishops, took out commissions to hold their
}
138
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
II.
Reforma-
tion.
sees during pleasure.* But when the necessity of
compliance had passed by, they showed a disposi
tion not only to oppose the continual spoliations
of church property, but to maintain the jurisdic-
tion which the canon law had conferred upon
them. And though, as this papal code did not
appear very well adapted to a protestant church, a
new scheme of ecclesiastical laws was drawn up,
which the king's death rendered abortive, this was
rather calculated to strengthen the hands of the
spiritual courts than to withdraw any matter from
their cognisance.‡
* Burnet, ii. 6.
+ There are two curious entries
in the Lords' Journ. 14th and 18th
of Nov. 1549, which point out the
origin of the new code of ecclesias-
tical law mentioned in the next
note: "Hodie questi sunt episcopi,
contemni se a plebe, audere autem
nihil pro potestate suâ admini-
strare, eo quod per publicas quas-
dam denuntiationes quas proclama-
tiones vocant, sublata esset penitus
sua jurisdictio, adeo ut neminem
judicio sistere, nullum scelus pu-
nire, neminem ad ædem sacram
cogere, neque cætera id genus
munia ad eos pertinentia exequi
auderent. Hæc querela ab omni-
bus proceribus non sine moerore
audita est; et ut quam citissimè
huic malo subveniretur, injunctum
est episcopis ut formulam aliquam
statuti hâc de re scriptam traderent:
quæ si consilio postea prælecta om-
nibus ordinibus probaretur, pro
lege omnibus sententiis sanciri pos-
set.
"18 Nov. Hodie lecta est billa
pro jurisdictione episcoporum et
aliorum ecclesiasticorum, quæ cum
proceribus, eo quod cpiscopi nimis
sibi arrogare viderentur, non pla-
ceret, visum est deligere prudentes
aliquot viros utriusque ordinis, qui
habitâ maturà tantæ rei inter se
deliberatione, referrent toti consilio
quid pro ratione temporis et rei
necessitate in hac causa agi expe
diret." Accordingly, the lords.ap
point the archbishop of Canterbury,
the bishops of Ely, Durham, and
Litchfield, lords Dorset, Wharton,
and Stafford, with chief justice
Montague.
It had been enacted, 3 Edw.6.
c.11., that thirty-two commission-
ers, half clergy, half lay, should
be appointed to draw up a collec
tion of new canons. But these,
according to Strype, ii. 303. (though
I do not find it in the act), might
be reduced to eight, without pre
serving the equality of orders; and
of those nominated in Nov. 1551,
five were ecclesiastics, three lay
men. The influence of the former
shows itself in the collection, pub-
lished with the title of Reforma
tio Legum Ecclesiasticum, and
intended as a complete code of
protestant canon law. This was re-
ferred for revisal to a new commis
sion; but the king's death ensued,
and the business was never
again
taken up. Burnet, ii. 197. Collier,
326. The Latin style is highly
praised; Cheke and Haddon, the
most elegant scholars of that age,
FROM HENRY VII. TO GEORGE II.
139
of CHAP.
The policy, or it may be the prejudices, of
Cranmer induced him also to retain in the church
having been concerned in it. This
however is of small importance.
The canons are founded on a prin-
ciple current among the clergy,
that a rigorous discipline, enforced
by church censures and the aid of
the civil power, is the best safe-
guard of a christian commonwealth
against vice. But it is easy to per-
ceive that its severity would never
have been endured in this country,
and oat this was the true reason
why it was laid aside; not, accord-
ing to the improbable refinement
with which Warburton has fur-
nished Hurd, because the old canon
law was thought more favourable
to the prerogative of the crown.
Compare Warburton's Letters to
Hurd, p. 192. with the latter's
Moral and Political Dialogues,
P. 308. 4th edit.
The canons trench in several
places on the known province of
the commmon law, by assigning
specific penalties and forfeitures to
offences, as in the case of adultery;
and though it is true that this was
all subject to the confirmation of
parliament, yet the lawyers would
look with their usual jealousy on
such provisions in ecclesiastical
canons. But the great sin of this
protestant legislation is its exten-
sion of the name and penalties of
heresy to the wilful denial of any
part of the authorised articles of
faith. This is clear from the first
and second titles. But it has been
doubted whether capital punish-
ments for this offence were in-
tended to be preserved. Burnet,
always favourable to the reformers,
asserts that they were laid aside.
Collier and Lingard, whose bias is
the other way, maintain the con-
trary. There is, it appears to me,
some difficulty in determining this.
That all persons denying any one
of the articles might be turned over
to the secular power is evident.
II.

Reforma-
Yet it rather seems by one passage tion.
in the title, de judiciis contra hæ-
reses, c. 10., that infamy and civil
disability were the only punish-
ments intended to be kept up, ex-
cept in case of the denial of the
christian religion. For if a heretic
were, as a matter of course, to be
burned, it seems needless to pro-
vide, as in this chapter, that he
should be incapable of being a
witness, or of making a will. Dr.
Lingard, on the other hand, says,
“It regulates the delivery of the
obstinate heretic to the civil ma-
gistrate, that he may suffer death
according to law."
according to law." The words to
which he refers are these: Cum
sic penitus insederit error, et tam
alte radices egerit, ut nec sententiâ
quidem excommunicationis ad ve-
ritatem reus inflecti possit, tum
consumptis omnibus aliis remediis,
ad extremum ad civiles magistra-
tus ablegetur puniendus. Id. tit.
c. t.
It is generally best, where the
words are at all ambiguous, to
give the reader the power of judg-
ing for himself.
But I by no
means pretend that Dr. Lingard is
mistaken. On the contrary, the
language of this passage leads to a
strong suspicion that the rigour of
popish persecution was intended to
remain, especially as the writ de
hæretico comburendo was in force
by law, and there is no hint of
taking it away. Yet it seems mon-
strous to conceive that the denial
of predestination (which by the
way is asserted in this collection,
tit. de hæresibus, c. 22., with a
shade more of Calvinism than in
the articles,) was to subject any
one to be burned alive. And on
the other hand, there is this dif-
ficulty, that Arianism, Pelagianism,
popery, anabaptism, are all put on
the same footing; so that, if we
deny that the papist or free-willer
140
THE CONSTITUTIONAL HISTORY OF ENGLAND
II.
CHAP. a few ceremonial usages, which the Helvetic,
though not the Lutheran, reformers had swept
Reforma- away; such as the copes and rochets of bishops,
tion. and the surplice of officiating priests. It should
seem inconceivable that any one could object to
these vestments, considered in themselves; far
more, if they could answer in the slightest degree
the end of conciliating a reluctant people. But
this motive unfortunately was often disregarded in
that age; and indeed in all ages an abhorrence of
concession and compromise is a never-failing cha-
racteristic of religious factions. The foreign re-
formers then in England, two of whom, Bucer and
Peter Martyr, enjoyed a deserved reputation, ex-
pressed their dissatisfaction at seeing these habits
retained, and complained, in general, of the back-
wardness of the English reformation. Calvin and
Bullinger wrote from Switzerland in the same
was to be burned, we must deny
the same of the anti-trinitarian,
which contradicts the principle
and practice of that age. Upon
the whole, I cannot form a decided
opinion as to this matter. Dr.
Lingard does not hesitate to say,
"Cranmer and his associates pe-
rished in the flames which they
had prepared to kindle for the de-
struction of their opponents."
Upon further consideration, I
incline to suspect, that the tem-
poral punishment of heresy was
intended to be fixed by act of par-
liament; and probably with various
degrees, which will account for the
indefinite word “puniendus.
>>
Before I quit these canons, one
mistake of Dr. Lingard's may be
corrected. He says that divorces
were allowed by them not only for
adultery, but cruelty, desertion,
and incompatibility of temper. But
the contrary may be clearly shown,
from tit. de matrimonio, c. 11., and
tit. de divortiis, c. 12. Divorce was
allowed for something more than
incompatibility of temper; namely,
capitales inimicitiæ, meaning, as I
conceive, attempts by one party on
the other's life. In this respect,
their scheme of a very important
branch of social law seems far
better than our own. Nothing can
be more absurd than our modern
privilegia, our acts of parliament
to break the bond between an adul-
teress and her husband. Nor do
I see how we can justify the denial
of redress to women in every case
of adultery and desertion. It does
not follow that the marriage tie
ought to be dissolved as easily as
it is, at least by the rich, in the
Lutheran states of Germany.
FROM HENRY VII. TO GEORGE II.
141
tion.
II.
strain.*
Nor was this sentiment by any means CHAP.
confined to strangers. Hooper, an eminent divine,
having been elected bishop of Gloucester, refused Reforma-
to be consecrated in the usual dress. It marks,
almost ludicrously, the spirit of those times, that,
instead of permitting him to decline the station,
the council sent him to prison for some time, until
by some mutual concessions the business was ad-
justed. These events it would hardly be worth
while to notice in such a work as the present, if
they had not been the prologue to a long and
serious drama.
Persecu-
It is certain that the re-establishment of popery Mary.
on Mary's accession must have been acceptable to tion under
a large part, or perhaps to the majority, of the her.
nation. There is reason however to believe that
the reformed doctrine had made a real progress in
the few years of her brother's reign. The counties
of Norfolk and Suffolk, which placed Mary on the
throne as the lawful heir, were chiefly protestant,
and experienced from her the usual gratitude and
good faith of a bigot. Noailles bears witness, in
‡
many of his despatches, to the unwillingness which
great numbers of the people displayed to endure
the restoration of popery, and to the queen's ex-
cessive unpopularity, even before her marriage
with Philip had been resolved upon. § As for the
higher classes, they partook far less than their in-
feriors in the religious zeal of that age. Henry,
* Strype, passim. Burnet, ii. 10. 341. No part of England
154.; ii. Append. 200.
suffered so much in the persecu-
tion.
294.303.
Collier,
† Strype, Burnet. The former
is the more accurate.
Burnet, 237. 246. 3 Strype,
§ Ambassades de Noailles, v. ii.
passim. 3 Strype, 100.
142
THE CONSTITUTIONAL HISTORY OF ENGLAND
II.
Reforma-
tion.
CHAP. Edward, Mary, Elizabeth, found almost an equal
compliance with their varying schemes of faith.
Yet the larger proportion of the nobility and gen-
try appear to have preferred the catholic religion.
Several peers opposed the bills for reformation
under Edward; and others, who had gone along
with the current, became active counsellors of
Mary. Not a few persons of family emigrated in
the latter reign; but, with the exception of the
second earl of Bedford, who suffered a short im
prisonment on account of religion, the protestant
martyrology contains no confessor of superior
rank.* The same accommodating spirit charac
terised, upon the whole, the clergy; and would
have been far more general, if a considerable num-
ber had not availed themselves of the permission
to marry granted by Edward; which led to their
expulsion from their cures on his sister's coming
to the throne. † Yet it was not the temper of
* Strype, iii. 107. He reckons
the emigrants at 800. Life of
Cranmer, 314. Of these the most
illustrious was the duchess of Suf-
folk, first cousin of the queen. In
the parliament of 1555, a bill se-
questering the property of " the
duchess of Suffolk and others, con-
temptuously gone over the seas,
was rejected by the commons on
the third reading. Journals, 6th
Dec.
It must not be understood that
all the aristocracy were supple hy-
pocrites, though they did not ex-
pose themselves voluntarily to pro-
secution. Noailles tells us that
the earls of Oxford and West-
moreland, and lord Willoughby,
were censured by the council for
religion; and it was thought that
the former would lose his title
(more probably his hereditary of-
fice of chamberlain), which would
be conferred on the earl of Pem-
broke. v. 319. Michele, the Ve
netian ambassador, in his Rela-
zione del Stato d'Inghilterra, Lans-
downe MSS. 840., does not speak
favourably of the general affection
towards popery. The English in
general," he says, "would turn
Jews or Turks if their sovereign
pleased; but the restoration of the
abbey lands by the crown keeps
alive a constant fear among those
who possess them." Fol. 176. This
restitution of church lands in the
hands of the crown cost the queen
£60,000 a year of revenue.
Parker had extravagantly
reckoned the number of these at
12,000, which Burnet reduces to
this
3000, vol. iii. 226. But upon
computation they formed a very
considerable body on the protestant
!
¡
!
I
!
FROM HENRY VII. TO GEORGE II.
143
CHAP.
Mary's parliaments, whatever pains had been II.
tion.
taken about their election, to second her bigotry
in surrendering the temporal fruits of their recent Reforma-
schism. The bill for restoring first fruits and im-
propriations in the queen's hands to the church
passed not without difficulty; and it was found
impossible to obtain a repeal of the act of su-
premacy without the pope's explicit confirmation
of the abbey lands to their new proprietors. Even
this confirmation, though made through the legate
cardinal Pole, by virtue of a full commission, left
not unreasonably an apprehension that, on some
better opportunity, the imprescriptible nature of
church property might be urged against the pos-
= sessors. With these selfish considerations others
of a more generous nature conspired to render the
old religion more obnoxious than it had been at
the queen's accession. Her marriage with Philip,
his encroaching disposition, the arbitrary turn of
his counsels, the insolence imputed to the Spa-
niards who accompanied him, the unfortunate loss
of Calais through that alliance, while it thoroughly
alienated the kingdom from Mary, created a pre-
judice against the religion which the Spanish court
:
*
side. Burnet's calculation, how
ever, is made by assuming the
ejected ministers of the diocese of
Norwich to have been in the ratio
of the whole; which, from the
eminent protestantism of that dis-
trict, is not probable; and Dr. Lin-
gard, on Wharton's authority, who
has taken his ratio from the dio-
cese of Canterbury, thinks they
did not amount to more than about
1500.
Burnet, ii. 298.; iii. 245. But
sce Philips's Life of Pole, sect. ix.,
contra; and Ridley's answer to
this, p. 272. In fact, no scheme
of religion would on the whole
have been so acceptable to the na-
tion, as that which Henry left esta-
blished, consisting chiefly of what
was called catholic in doctrine, but
free from the grosser abuses and
from all connection with the see of
Rome. Arbitrary and capricious
as that king was, he carried the
people along with him, as I be-
lieve, in all great points, both as
to what he renounced, and what
he retained. Michele (Relazione,
&c.) is of this opinion.
144
THE CONSTITUTIONAL HISTORY OF ENGLAND
tion.
II.
CHAP. so steadily favoured.* So violent indeed was the
hatred conceived by the English nation against
Reforma- Spain during the short period of Philip's marriage
with their queen, that it diverted the old channel
of public feelings, and almost put an end to that
dislike and jealousy of France which had so long
existed. For at least a century after this time we
rarely find in popular writers any expression of
hostility towards that country; though their na
tional manners, so remote from our own, are not
unfrequently the object of ridicule.
The preju-
dices of the populace, as much as the policy of
our counsellors, were far more directed against
Spain.
Its effect
rather fa-
But what had the greatest efficacy in disgusting
vourable to the English with Mary's system of faith, was the
protestant- cruelty by which it was accompanied. Though
the privy council were in fact continually urging
the bishops forward in this prosecution †, the
ism.
* No one of our historians has
been so severe on Mary's reign,
except on a religious account, as
Carte, on the authority of the
letters of Noailles. Dr. Lingard,
though with these before him, has
softened and suppressed, till this
queen appears honest and even
amiable. A man of sense should
be ashamed of such partiality to
his sect. Admitting that the
French ambassador had a tempt-
ation to exaggerate the faults of
a government wholly devoted to
Spain, it is manifest that Mary's
reign was inglorious, her capacity
narrow, and her temper sanguin-
ary; that, although conscientious
in some respects, she was as capa-
ble of dissimulation as her sister,
and of breach of faith as her hus-
band; that she obstinately and
wilfully sacrificed her subjects'
affections and interests to a mis-
placed and discreditable attach-
ment; and that the words with
which Carte has concluded the
character of this unlamented sove-
reign, though little pleasing to men
of Dr. Lingard's profession, are
perfectly just:-" Having reduced
the nation to the brink of ruin,
she left it, by her seasonable de-
cease, to be restored by her ad-
mirable successor to its ancient
prosperity and glory." I fully
admit, at the same time, that Dr.
Lingard has proved Elizabeth to
have been as dangerous a prisoner,
as she afterwards found the queen
of Scots.
+ Strype, ii. 17. Burnet, iii.
263. and Append. 285., where there
is a letter from the king and queen
to Bonner, as if even he wanted
excitement to prosecute heretics.
FROM HENRY VII. TO GEORGE II.
145

CHAP.
II.
tion.
latter bore the chief blame, and the abhorrence
entertained for them naturally extended to the doc-
trine they professed. A sort of instinctive rea. Reforma
scning told the people, what the learned on neither
side had been able to discover, that the truth of a
religion begins to be very suspicious, when it stands
in need of prisons and scaffolds to eke out its evi-
dences. And as the English were constitutionally
humane, and not hardened by continually wit-
nessing the infliction of barbarous punishments,
there arose a sympathy for men suffering torments
with such meekness and patience, which the po-
pulace of some other nations were perhaps less
apt to display, especially in executions on the
score of heresy.* The theologian indeed and the
The number who suffered death
by fire in this reign is reckoned by
Fox at 284, by Speed at 277, and
by lord Burghley at 290. Strype,
ii. 473. These numbers come so
near to cach other, that they may
be presumed also to approach the
truth. But Carte, on the autho-
rity of one of Noailles's letters,
thinks many more were put to
death than our martyrologists have
discovered. And the prefacer to
Kidley's Treatise de Cœnâ Do-
mini, supposed to be bishop Grin-
dal, says that 800 suffered in this
manner for religion. Burnet, ii.
361. I incline however to the
lower statements.
* Burnet makes a very just ob-
servation on the cruelties of this
period, that "they raised that hor-
ror in the whole nation, that there
seems ever since that time such
an abhorrence to that religion to
be derived down from father to
son, that it is no wonder an aver-
sion so deeply rooted and raised
upon such grounds, does upon
every new provocation or jealousy
VOL. I.
L
of returning to it break out in
most violent and convulsive symp-
toms." p. 338. "Delicta majorum
immeritus luis, Romane." But
those who would diminish this
aversion, and prevent these con-
vulsive symptoms, will do better
by avoiding for the future either
such panegyrics on Mary and her
advisers, or such insidious extenu-
ations of her persecution as we
have lately read, and which do not
raise a favourable impression of
their sincerity in the principles of
toleration to which they profess to
have been converted.
Noailles, who, though an enemy
to Mary's government, must, as a
catholic, be reckoned an unsuspi-
cious witness, remarkably confirms
the account given by Fox, and
since by all our writers, of the
death of Rogers, the proto-martyr,
and its effect on the people.
"Ce
jour d'huy a esté faite la confirma-
tion de 'alliance entre le pape et ce
royaume par un sacrifice publique
et solemnel d'un docteur predi-
cant nommé Rogerus, le quel a eté
146
THE CONSTITUTIONAL HISTORY OF ENGLAND
II.
Reforma-
tion.
CHAP. philosopher may concur in deriding the notion
that either sincerity or moral rectitude can be the
test of truth; yet among the various species of
authority to which recourse had been had to su
persede or to supply the deficiencies of argument,
I know not whether any be more reasonable, and
none certainly is so congenial to unsophisticated
minds. Many are said to have become protest-
ants under Mary, who, at her coming to the throne,
had retained the contrary persuasion. * And the
strongest proof of this may be drawn from the
acquiescence of the great body of the kingdom in
the re-establishment of protestantism by Elizabeth,
when compared with the seditions and discontent
on that account under Edward. The course which
this famous princess steered in ecclesiastical con
cerns, during her long reign, will form the subject
of the two ensuing chapters.
brulé tout vif pour estre Luthe-
rien; mais il est mort persistant en
son opinion. A quoy le plus grand
partie de ce peuple a pris tel plaisir,
qu'ils n'ont eu crainte de luy faire
plusieurs acclamations pour com-
forter son courage; et meme ses
enfans y on assisté, le consolant de
telle façon qu'il semblait qu'on le
menait aux noces." V. 173.
* Strype, iii. 285.
F
1
FROM HENRY VII. TO GEORGE II.
147
CHAPTER III.
ON THE LAWS OF ELIZABETH'S REIGN RESPECTING
THE ROMAN CATHOLICS.
pag
Change of Religion on the Queen's Accession Acts of Supremacy and
Uniformity Restraint of Roman Catholic Worship in the first Years of
Elizabeth Statute of 1562 ·Speech of Lord Montague against it
This det not fully enforced - Application of the Emperor in behalf of
the English Catholics · Persecution of this Body in the ensuing Period
Uncertain Succession of the Crown between the Families of Scotland
and Suffolk
The Queen's Unwillingness to decide this, or to marry
Imprisonment of Lady Catherine Grey — Mary Queen of Scotland ·
Combination in her Favour Bull of Pius V.-Statutes for the Queen's
Security - Catholics more rigorously treated
lands - Their Hostility to the Government
Catholic Worship Execution of Campion and others Defence of the
Queen by Burleigh - Increased Severity of the Government Mary
- Plot in her Favour Her Execution Remarks upon it · Con
Refugees in the Nether-
Fresh Laws against the
tinued Persecution of Roman Catholics — General Observations.
THE accession of Elizabeth, gratifying to the
whole nation on account of the late queen's ex-
treme unpopularity, infused peculiar joy into the
hearts of all well-wishers to the Reformation.
Child of that famous marriage which had severed
the connexion of England with the Roman see,
and trained betimes in the learned and reasoning
discipline of protestant theology, suspected and
oppressed for that very reason by a sister's jealousy,
and scarcely preserved from the death which at
one time threatened her, there was every ground
to be confident, that, notwithstanding her forced
compliance with the catholic rites during the late
CHAP.
III.
ELIZ.
Catholics.
3
L 2
148
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
Change of
CHAP. reign, her inclinations had continued steadfast to
the opposite side. Nor was she long in mani-
ELIZ. festing this disposition sufficiently to alarm one
Catholics. party, though not entirely to satisfy the other. Her
religion on great prudence, and that of her advisers, which
accession. taught her to move slowly, while the temper of the
nation was still uncertain, and her government still
embarrassed with a French war and a Spanish alli-
ance, joined with a certain tendency in her reli
gious sentiments not so thoroughly protestant as
the queen's
* Elizabeth was much suspected
of a concern in the conspiracy of
1554, which was more extensive
than appeared from Wyatt's insur-
rection, and had in view the placing
her on the throne, with the earl
of Devonshire for her husband.
Wyatt indeed at his execution ac-
quitted her; but as he said as much
for Devonshire, who is proved by
the letters of Noailles to have been
engaged, his testimony is of less
value. Nothing however appears
in these letters, I believe, to crimi-
nate Elizabeth. Her life was saved,
against the advice of the imperial
court, and of their party in the
cabinet, especially lord Paget, by
Gardiner, according to Dr. Lin-
gard, writing on the authority of
Renard's despatches. Burnet, who
had no access to that source of
information, imagines Gardiner to
have been her most inveterate ene-
my. She was even released from
prison for the time, though soon
afterwards detained again, and
kept in custody, as is well known,
for the rest of this reign. Her
inimitable dissimulation was all
required to save her from the pe-
naſties of heresy and treason.
appears by the memoir of the Ve-
netian ambassador, in 1557 (Lans-
downe MSS. 840.), as well as from
the letters of Noailles, that Mary
was desirous to change the succes-
It
1
sion, and would have done so, had
it not been for Philip's reluctance,
and the impracticability of ob-
taining the consent of parliament.
Though of a dissembling charac
ter, she could not conceal the ha-
tred she bore to one who brought
back the memory of her mother's
and her own wrongs; especially
when she saw all eyes turned to-
wards the successor, and felt that
the curse of her own barrenness
was to fall on her beloved religion.
Elizabeth had been not only forced
to have a chapel in her house, and
to give all exterior signs of con-
formity, but to protest on oath her
attachment to the catholic faith;
though Hume, who always loves a
popular story, gives credence to the
well known verses ascribed to her,
in order to elude a declaration of
her opinion on the sacrament. The
inquisitors of that age were not so
easily turned round by an equivo
cal answer. Yet Elizabeth's faith
was constantly suspected.
cresce oltro questo l'odio," says
the Venetian," il sapere che sia
aliena dalla religione presente, per
essere non pur nata, ma dotta ed
allevata nell' altra, che se bene con
la esteriore ha mostrato, e mostra
di essersi ridotta, vivendo cattoli
camente, pure è opinione che dis
simuli e nell' interiore la ritenga
più che mai.”
"Ac
A
FROM HENRY VII. TO GEORGE II.
149
III.
ELIZ.
Catholics.
had been expected, produced some complaints of CHAP.
delay from the ardent reformers just returned from
exile. She directed sir Edward Karn, her sister's
ambassador at Rome, to notify her accession to
Paul IV. Several catholic writers have laid stress
on this circumstance as indicative of a desire to
remain in his communion; and have attributed
her separation from it to his arrogant reply, com-
manding her to lay down the title of royalty, and
to submit her pretensions to his decision. But
she had begun to make alterations, though not
very essential, in the church service, before the
pope's behaviour could have become known to
her; and the bishops must have been well aware
of the course she designed to pursue, when they
adopted the violent and impolitic resolution of re-
fusing to officiate at her coronation.* Her council
was formed of a very few catholics, of several
pliant conformists with all changes, and of some
known friends to the protestant interest. But two
* Elizabeth ascended the throne
November 17, 1558. On the 5th
of December Mary was buried;
and on this occasion White, bishop
of Winchester, in preaching her
funeral sermon, spoke with viru-
lence against the protestant exiles,
and expressed apprehension of
their return. Burnet, iii. 272. Di-
rections to read part of the service
in English, and forbidding the ele-
vation of the host, were issued prior
to the proclamation of December
27, against innovations without
authority. The great seal was
taken from archbishop Heath early
in January, and given to sir Nicho-
las Bacon. Parker was pitched
upon to succeed Pole at Canterbury
in the preceding month. From the
dates of these and other facts, it
may be fairly inferred that Eliza-
beth's resolution was formed inde-
pendently of the pope's behaviour
towards sir Edward Karn; though
that might probably exasperate her
against the adherents of the Roman
see, and make their religion appear
more inconsistent with their civil
allegiance. If, indeed, the refusal
of the bishops to officiate at her
coronation (Jan. 14, 1558-9) were
founded in any degree on Paul
IV.'s denial of her title, it must
have seemed in that age within a
hair's breadth of high treason. But
it more probably arose from her
order that the host should not be
elevated, which in truth was not
legally to be justified. Mass was
said however at her coronation; so
that she seems to have dispensed
with this prohibition.
L 3
ར་
t
150
THE CONSTITUTIONAL HISTORY OF ENGLAND
1
III.
ELIZ.
Catholics.
CHAP. of these, Cecil and Bacon, were so much higher
in her confidence, and so incomparably superior
in talents to the other counsellors, that it was evi-
dent which way she must incline.*
The parliament
met about two months after her accession. The
creed of parliament from the time of Henry VIII.
had been always that of the court; whether it
were that elections had constantly been influenced,
as we know was sometimes the case, or that men
of adverse principles, yielding to the torrent,
had left the way clear to the partisans of power.
This first, like all subsequent parliaments, was to
the full as favourable to protestantism as the queen
could desire: the first fruits of benefices, and,
what was far more important, the supremacy in
ecclesiastical affairs, were restored to the crown;
the laws made concerning religion in Edward's
time were re-enacted. These acts did not pass
without considerable opposition among the lords;
nine temporal peers, besides all the bishops, having
protested against the bill of uniformity establishing
the Anglican liturgy, though some pains had been
taken to soften the passages most obnoxious to
catholics.† But the act restoring the royal supre-
* See a paper by Cecil on the
best means of reforming religion,
written at this time with all his
cautious wisdom, in Burnet, or in
Strype's Annals of the Reform-
ation, or in the Somers Tracts.
+ Parl. Hist. vol. i. p. 394. In
the reign of Edward, a prayer had
been inserted in the liturgy to de-
"from the bishop of Rome
liver us
and all his detestable enormities."
This was now struck out; and,
what was more acceptable to the
nation, the words used in distri-
buting the elements were so con-
trived by blending the two forms
successively adopted under Ed-
ward, as neither to offend the
popish or Lutheran, nor the Zuin
glian communicant. A rubric di
rected against the doctrine of the
real or corporal presence was omit-
ted. This was replaced after the
restoration. Burnet owns that the
greater part of the nation still ad-
hered to this tenet, though it was
not the opinion of the rulers of the
church. ii. 390. 406.
AJ
#
FROM HENRY VII. TO GEORGE II.
151
macy met with less resistance; whether it were
that the system of Henry retained its hold over
some minds, or that it did not encroach, like the
former, on the liberty of conscience, or that men
not over-scrupulous were satisfied with the inter-
pretation which the queen caused to be put upon
the oath.
Several of the bishops had submitted to the
Reformation under Edward VI. But they had
acted, in general, so conspicuous a part in the
late restoration of popery, that, even amidst so
many examples of false profession, shame restrained
them from a second apostasy. Their number hap-
pened not to exceed sixteen, one of whom was
prevailed on to conform; while the rest, refusing
the oath of supremacy, were deprived of their
bishoprics by the court of ecclesiastical high com-
mission. In the summer of 1559, the queen ap-
pointed a general ecclesiastical visitation, to compel
the observance of the protestant formularies. It
appears from their reports that only about one
hundred dignitaries, and eighty parochial priests,
resigned their benefices, or were deprived.* Men
eminent for their zeal in the protestant cause, and
most of them exiles during the persecution, occu-
pied the vacant sees. And thus, before the end of
1559, the English church, so long contended for as
however highly probable that
others resigned their preferments
afterwards, when the casuistry of
their church grew more scrupulous.
It may be added, that the visitors
restored the married clergy who
had been dispossessed in the pre-
ceding reign; which would of course
considerably augment the number
of sufferers for popery.
* Burnet; Strype's Annals, 169.
Pensions were reserved for those
who quitted their benefices on ac-
count of religion. Burnet, ii. 398.
This was a very liberal measure,
and at the same time a politic check
on their conduct. Lingard thinks
the number must have been much
greater; but the visitor's reports
seem the best authority. It is
CHAP.
III.
ELIZ.
Catholics.
L 4
152
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
III.
ELIZ.
Catholics.
Acts of
and uni-
formity.
a prize by the two religions, was lost for ever to that
of Rome.
These two statutes, commonly denominated the
acts of supremacy and uniformity, form the basis
supremacy of that restrictive code of laws, deemed by soine
one of the fundamental bulwarks, by others the re-
proach of our constitution, which pressed so heavily
for more than two centuries upon the adherents to
the Romish church. By the former all beneficed
ecclesiastics, and all laymen holding office under the
crown, were obliged to take the oath of supremacy,
renouncing the spiritual as well as temporal juris-
diction of every foreign prince or prelate, on pain
of forfeiting their office or benefice; and it was
rendered highly penal, and for the third offence
treasonable, to maintain such supremacy by writing
or advised speaking. The latter statute trenched
**
* 1 Eliz. c.i. The oath of su-
premacy was expressed as follows:
"I, A. B., do utterly testify and
declare, that the queen's highness
is the only supreme governor of
this realm, and all other her high-
ness's dominions and countries, as
well in all spiritual and ecclesias-
tical things or causes, as temporal;
and that no foreign prince, person,
prelate, state, or potentate, hath or
ought to have any jurisdiction,
power, superiority, pre-eminence,
or authority, ecclesiastical or spi-
ritual, within this realm; and
therefore I do utterly renounce
and forsake all foreign jurisdic-
tions, powers, superiorities, and
authorities, and do promise that
from henceforth I shall bear faith
and true allegiance to the queen's
highness, her heirs and lawful
successors, and to my power shall
assist and defend all jurisdictions,
pre-eminences, privileges, and au-
thorities, granted or belonging to
the queen's highness, her heirs
and successors, or united and an-
nexed to the imperial crown of this
realm."
A remarkable passage in the in-
junctions to the ecclesiastical vi
sitors of 1559, which may be rec-
koned in the nature of a contem
poraneous exposition of the law,
restrains the royal supremacy es
tablished by this act, and asserted
in the above oath, in the following
words: "Her majesty forbiddeth
all manner her subjects to give ear
or credit to such perverse and ma-
licious persons, which most sini-
sterly and maliciously labour to
notify to her loving subjects, how
by words of the said oath it may
be collected, that the kings or
queens of this realm, possessors of
the crown, may challenge autho
rity and power of ministry of di
vine service in the church; wherein
her said subjects be much abused
by such evil-disposed persons.
For
1
FROM HENRY VII. TO GEORGE II.
153
more on the natural rights of conscience; prohi-
biting, under pain of forfeiting goods and chattels
CHAP.
III.
for the first offence, of a year's imprisonment for ELIZ.
the second, and of imprisonment during life for the Catholics.
third, the use by a minister, whether beneficed or
not, of any but the established liturgy; and im-
posed a fine on one shilling on all who should
certainly her majesty neither doth,
nor ever will, challenge any other
authority than that was challenged
and lately used by the said noble
kings of famous memory, king
Henry VIII. and king Edward VI.,
which is, and was of ancient time,
due to the imperial crown of this
realm; that is, under God to have
the sovereignty and rule over all
manner of persons born within
these her realms, dominions, and
countries, of what estate, either
ecclesiastical or temporal, soever
they be, so as no other foreign
power shall or ought to have any
superiority over them. And if any
person that hath conceived any
other sense of the form of the said
oath shall accept the same with
this interpretation, sense, or mean-
ing, her majesty is well pleased to
accept every such in that behalf,
as her good and obedient subjects,
and shall acquit them of all manner
of penalties contained in the said
act, against such as shall peremp-
torily or obstinately take the same
oath." I Somers Tracts, edit.
Scott, 73.
This interpretation was after-
wards given in one of the thirty-
nine articles, which having been
confirmed by parliament, it is un-
doubtedly to be reckoned the true
sense of the oath. Mr. Butler, in
his Memoirs of English Catholics,
vol. i. p. 157., enters into a discus-
sion of the question, whether Ro-
man catholics might conscien-
tiously take the oath of supremacy
It appears that in
in this sense.
the seventeenth century some con-
tended for the affirmative; and this
seems to explain the fact, that se-
veral persons of that persuasion,
besides peers from whom the oath
was not exacted, did actually hold
offices under the Stuarts, and even
enter into parliament, and that the
test act and declaration against
transubstantiation were thus ren-
dered necessary to make their ex-
clusion certain. Mr. B. decides
against taking the oath, but on
grounds by no means sufficient;
and oddly overlooks the decisive
objection, that it denies in toto the
jurisdiction and ecclesiastical au-
thority of the pope. No writer, as
far as my slender knowledge ex-
tends, of the Gallican or German
school of discipline, has gone to
this length; certainly not Mr.
Butler himself, who in a modern
publication, Book of the Roman
Catholic Church, p. 120., seems to
consider even the appellant juris-
diction in ecclesiastical causes as
vested in the holy see by divine
right.
As to the exposition before given
of the oath of supremacy, I con-
ceive that it was intended not only
to relieve the scruples of catholics,
but of those who had imbibed from
the school of Calvin an apprehen-
sion of what is sometimes, though
rather improperly, called Erastian-
ism, the merging of all spiritual
powers, even those of ordination
and of preaching, in the paramount
authority of the state, towards
which the despotism of Henry, and
obsequiousness of Cranmer, had
seemed to bring the church of
England.
V.
154
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. absent themselves from church on Sundays and
holidays.*
III.
ELIZ.
Catholics.
Restraint
catholic
worship in
the first
years of
This act operated as an absolute interdiction of
the catholic rites, however privately celebrated.
of Roman It has frequently been asserted that the govern
ment connived at the domestic exercise of that re-
ligion during these first years of Elizabeth's reign.
Elizabeth. This may possibly have been the case with respect
to some persons of very high rank whom it was
inexpedient to irritate. But we find instances of
severity towards catholics, even in that early period;
and it is evident that their solemn rites were only
performed by stealth, and at much hazard. Thus
sir Edward Waldgrave and his lady were sent to
the Tower in 1561, for hearing mass and having
a priest in their house. Many others about the
same time were punished for the like offence.t
Two bishops, one of whom, I regret to say, was
Grindal, write to the council in 1562, concerning
a priest apprehended in a lady's house, that nei
ther he nor the servants would be sworn to answer
to articles, saying they would not accuse them-
selves; and, after a wise remark on this, that “
pa-
pistry is like to end in anabaptistry," proceed to
hint, that "some think that if this priest might be
put to some kind of torment, and so driven to con-
fess what he knoweth, he might gain the queen's
majesty a good mass of money by the masses that
he hath said; but this we refer to your lordship's
wisdom." This commencement of persecution
+
* 1 Eliz. c. 2.
+ Strype's Annals, i. 233. 241.
‡ Haynes, 395. The penalty
for causing mass to be said, by the
act of uniformity, was only 100
marks for the first offence. These
imprisonments were probably in
many cases illegal, and only sus-
tained by the arbitrary power of
the high commission court.
1
:
FROM HENRY VII. TO GEORGE II.
155
CHAP.
IIJ.
induced many catholics to fly beyond sea, and
gave rise to those reunions of disaffected exiles,
which never ceased to endanger the throne of ELIZ.
Elizabeth.
}
It cannot, as far as appears, be truly alleged
that any greater provocation had as yet been given
by the catholics, than that of pertinaciously con-
tinuing to believe and worship as their fathers had
done before them. I request those who may hesi-
tate about this, to pay some attention to the order
of time, before they form their opinions. The
master mover, that became afterwards so busy,
had not yet put his wires into action. Every pru-
dent man at Rome (and we shall not at least deny
that there were such) condemned the precipitate
and insolent behaviour of Paul IV. towards Eliza-
beth, as they did most other parts of his admini-
stration. Pius IV., the successor of that injudicious
old man, aware of the inestimable importance of
reconciliation, and suspecting probably that the
queen's turn of thinking did not exclude all hope
of it, despatched a nuncio to England, with an
invitation to send ambassadors to the council at
Trent, and with powers, as is said, to confirm the
English liturgy, and to permit double communion;
one of the few concessions which the more indul-
gent Romanists of that age were not very re-
luctant to make.* But Elizabeth had taken her
line as to the court of Rome; the nuncio received
a message at Brussels, that he must not enter the
kingdom; and she was too wise to countenance
the impartial fathers of Trent, whose labours had
Catholics.
*
Strype, 220.
156
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
ELIZ.
Catholics.
CHAP. nearly drawn to a close, and whose decisions on
the controverted points it had never been very
difficult to foretell. I have not found that Pius
IV., more moderate than most other pontiffs of the
sixteenth century, took any measures hostile to
the temporal government of this realm; but the
deprived ecclesiastics were not unfairly anxious to
keep alive the faith of their former hearers, and
to prevent them from sliding into conformity,
through indifference and disuse of their ancient
rites. * The means taken were chiefly the same
as had been adopted against themselves, the dis
persion of small papers either in a serious or lively
strain; but, the remarkable position in which the
queen was placed rendering her death a most im-
portant contingency, the popish party made use
of pretended conjurations and prophecies of that
event, in order to unsettle the people's minds,
and dispose them to anticipate another re-action.†
Partly through these political circumstances, but
far more from the hard usage they experienced for
professing their religion, there seems to have been
an increasing restlessness among the catholics about
1562, which was met with new rigour by the par-
liament of that year. ‡
* Questions of conscience were
circulated, with answers, all tend-
ing to show the unlawfulness of
conformity. Strype, 228. There
was nothing more in this than the
catholic clergy were bound in con-
sistency with their principles to
do, though it seemed very atro-
cious to bigots. Mr. Butler says,
that some theologians at Trent
were consulted as to the lawful-
ness of occasional conformity to the
Anglican rites, who pronounced
against it. Mem. of Catholics, i.
171.
+ The trick of conjuration about
the queen's death began very early
in her reign. (Strype, i. 7), and
led to a penal statute against "fond
and fantastical prophecies." 5 Eliz.
c. 15.
I know not how to charge the
catholics with the conspiracy of the
two Poles, nephews of the cardinal,
and some others, to obtain five
FROM HENRY VII. TO GEORGE II.
157
III.
ELIZ.
Catholics.
Statute of
The act entitled, "for the assurance of the queen's CHAP.
royal power over all estates and subjects within
her dominions," enacts, with an iniquitous and san-
guinary retrospect, that all persons, who had ever
taken holy orders or any degree in the universities, 1562.
or had been admitted to the practice of the laws,
or held any office in their execution, should be
bound to take the oath of supremacy, when ten-
dered to them by a bishop, or by commissioners
appointed under the great seal. The penalty for
the first refusal of this oath was that of a præmu-
nire; but any person, who after the space of three
months from the first tender should again refuse
it when in like manner tendered, incurred the
pains of high treason. The oath of supremacy
was imposed by this statute on every member of
the House of Commons, but could not be tendered
to a peer; the queen declaring her full confidence
in those hereditary counsellors. Several peers of
great weight and dignity were still catholics.*
of lord
This harsh statute did not pass without oppo- Speech
sition. Two speeches against it have been pre- Montague
served; one by lord Montagu in the House of against it.
Lords, the other by Mr. Atkinson in the Com-
mons, breathing such generous abhorrence of per-
thousand troops from the duke of
Guise, and proclaim Mary queen.
This seems however to have been
the immediate provocation for the
statute 5 Eliz.; and it may be
thought to indicate a good deal of
discontent in that party upon which
the conspirators relied. But as
Elizabeth spared the lives of all
who were arraigned, and we know
no details of the case, it may be
doubted whether their intentions
were altogether so criminal as was
charged. Strype, i. 333. Camden,
388. (in Kennet).
Strypetells us (1.374.) of resolu-
tions adopted against the queen in
a consistory held by Pius IV. in
1563; one of these is a pardon to
any cook, brewer, vintner, or other,
that would poison her. But this
is so unlikely, and so little in that
pope's character, that it makes us
suspect the rest, as false inform-
ation of a spy.
* 5 Eliz. c. 1.
158
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
III.
ELIZ.
Catholics.
secution as some erroneously imagine to have been
unknown to that age, because we rarely meet with
it in theological. writings. "This law," said lord
Montagu, "is not necessary; forasmuch as the
catholics of this realm disturb not, nor hinder the
public affairs of the realms, neither spiritual nor
temporal. They dispute not, they preach not,
they disobey not the queen; they cause no trouble
nor tumults among the people; so that no man
can say that thereby the realm doth receive any
hurt or damage by them. They have brought
into the realm no novelties in doctrine and reli-
gion. This being true and evident, as it is indeed,
there is no necessity why any new law should be
made against them. And where there is no sore
nor grief, medicines are superfluous, and also
hurtful and dangerous. I do entreat," he says
afterwards, "whether it be just to make this penal
statute to force the subjects of this realm to receive
and believe the religion of protestants on pain of
death. This I say to be a thing most unjust; for
that it is repugnant to the natural liberty of men's
understanding. For understanding may be per-
suaded, but not forced." And further on: "It is
an easy thing to understand that a thing so unjust,
and so contrary to all reason and liberty of man,
cannot be put in execution but with great incom-
modity and difficulty. For what man is there so
without courage and stomach, or void of all honour,
that can consent or agree to receive an opinion
and new religion by force and compulsion; or will
swear that he thinketh the contrary to what he
thinketh? To be still, or dissemble, may be borne
and suffered for a time-to keep his reckoning with
FROM HENRY VII. TO GEORGE II.
159
God alone; but to be compelled to lie and to
swear, or else to die therefore, are things that no
man ought to suffer and endure. And it is to be
feared rather than to die they will seek how to de-
fend themselves; whereby should ensue the con-
trary of what every good prince and well ad-
vised commonwealth ought to seek and pretend,
that is, to keep their kingdom and government in
peace."*
I am never very willing to admit as an apology
for unjust or cruel enactments, that they are not
designed to be generally executed; a pretext often
insidious, always insecure, and tending to mask the
approaches of arbitrary government. But it is cer-
tain that Elizabeth did not wish this act to be
enforced in its full severity. And archbishop
Parker, by far the most prudent churchman of the
time, judging some of the bishops too little mode-
rate in their dealings with the papists, warned them
privately to use great caution in tendering the oath
of supremacy according to the act, and never to do
so the second time, on which the penalty of treason
might attach, without his previous approbation. †
The temper of some of his colleagues was more
narrow and vindictive. Several of the deprived
prelates had been detained in a sort of honourable
Strype, Collier, Parliament.
History. The original source is
the manuscript collections of Fox
the martyrologist, a very unsus-
picious authority; so that there
seems every reason to consider this
speech, as well as Mr. Atkinson's,
authentic. The following is a spe-
a spe-
cimen of the sort of answer given
to these arguments:
They say
CC
it touches conscience, and it is a
thing wherein a man ought to have
a scruple; but if any hath a con-
science in it, these four years' space
might have settled it. Also, after
his first refusal, he hath three
months' respite for conference and
settling of his conscience." Strype,
270.
Strype's Life of Parker, 125.
CHAP.
III.
ELIZ.
Catholics.
Statute of
fully en-
1562 not
forced.
160
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
ELIZ.
Catholics.
*
CHAP. custody in the palaces of their successors.
Bon-
ner, the most justly obnoxious of them all, was
confined in the Marshalsea. Upon the occasion of
this new statute, Horn, bishop of Winchester, in-
dignant at the impunity of such a man, proceeded
to tender him the oath of supremacy, with an evi
dent intention of driving him to high treason.
Bonner, however, instead of evading this attack,
intrepidly denied the other to be a lawful bishop;
and, strange as it may seem, not only escaped all
farther molestation, but had the pleasure of seeing
his adversaries reduced to pass an act of parliament,
declaring the present bishops to have been legally
consecrated. This statute, and especially its pre-
amble, might lead a hasty reader to suspect that the
celebrated story of an irregular consecration of the
first protestant bishops at the Nag's-head tavern
was not wholly undeserving of credit. That tale,
however, has been satisfactorily refuted; the only
irregularity which gave rise to this statute consisted
in the use of an ordinal, which had not been legally
re-established. ‡
Applica-
It was not long after the act imposing such heavy
tion of the penalties on catholic priests for refusing the oath of
emperor in
behalf of
the English
catholics.
* Strype's Annals, 149. Tun-
stall was treated in a very hand-
some manner by Parker, whose
guest he was. But Feckenham,
abbot of Westminster, met with
rather unkind usage, though he
had been active in saving the lives
of protestants under Mary, from
bishops Horn and Cox (the latter
of whom seems to have been an
honest, but narrow-spirited and
peevish man), and at last was sent
to Wisbeach gaol for refusing the
oath of supremacy. Strype, i. 457.ii.
526. Fuller's Church History, 178.
+ 8 Eliz. c. 1. Eleven peers dis-
sented, all noted catholics, except
the earl of Sussex. Strype, i. 492.
Even Dr. Lingard admits that
Parker was consecrated at Lam-
beth, on Dec. 17, 1559; but con-
jectures that there may have been
some previous meeting at the
Nag's-head, which gave rise to
the story. This means that any
absurdity may be presumed, rather
than acknowledge good catholics
to have propagated a lie.
FROM HENRY VII. TO GEORGE II.
161
*
CHAP.
III.
Catholics.
supremacy, that the emperor Ferdinand addressed
two letters to Elizabeth, interceding for the ad-
herents to that religion, both with respect to those ELIZ.
new severities to which they might become liable
by conscientiously declining that oath, and to the
prohibition of the free exercise of their rites. He
suggested that it might be reasonable to allow them
the use of one church in every city. And he con-
cluded with an expression, which might possibly
be designed to intimate that his own conduct to-
wards the protestants in his dominions would be
influenced by her concurrence in his request.
Such considerations were not without great import-
ance. The protestant religion was gaining ground
in Austria, where a large proportion of the nobility
as well as citizens had for some years earnestly
claimed its public toleration. Ferdinand, prudent
and averse from bigoted counsels, and for every
reason solicitous to heal the wounds which religious
differences had made in the empire, while he was
endeavouring, not absolutely without hope of suc-
cess, to obtain some concessions from the pope,
had shown a disposition to grant further indulg-
ences to his protestant subjects. His son, Max-
imilian, not only through his moderate temper, but
some real inclination towards the new doctrines,
bade fair to carry much farther the liberal policy of
* Nobis vero factura est rem
adeo gratam, ut omnem simus da-
turi operam, quo possimus eam
rem serenitati vestræ mutuis bene-
volentiæ et fraterni animi studiis
cumulatissimè compensare.
See
the letter in the additions to the
first volume of Strype's Annals,
prefixed to the second, p. 67. It
has been erroneously referred by
Camden, whom many have fol-
lowed, to the year 1559, but bears
date 24th Sept. 1563.
VOL. I.
M
162
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
ELIZ.
Catholics.
CHAP. the reigning emperor. It was consulting very lit
tle the general interests of protestantism, to disgust
persons so capable and so well disposed to befriend
it. But our queen, although free from the fanatical
spirit of persecution which actuated part of her
subjects, was too deeply imbued with arbitrary
principles to endure any public deviation from the
mode of worship she should prescribe. And it
must perhaps be admitted that experience alone
could fully demonstrate the safety of toleration,
and show the fallacy of apprehensions that unpre
judiced men might have entertained. In her an
swer to Ferdinand, the queen declares that she
cannot grant churches to those who disagree from
her religion, being against the laws of her parlia-
ment, and highly dangerous to the state of her
kingdom; as it would sow various opinions in the
nation to distract the minds of honest men, and
would cherish parties and factions that might dis
turb the present tranquillity of the commonwealth.
Yet enough had already occurred in France to lead
observing men to suspect that severities and re
strictions are by no means an infallible specific to
prevent or subdue religious factions.
Camden and many others have asserted that by
systematic connivance the Roman catholics en
joyed a pretty free use of their religion for the
first fourteen years of Elizabeth's reign. But this
is not reconcileable to many passages in Strype's
collections. We find abundance of persons harassed
* For the dispositions of Ferdi-
nand and Maximilian towards re-
ligious toleration in Austria, which
indeed for a time existed, see
F. Paul, Concile de Trente (par
"
Courayer), ii. 72. 197. 220, &c.
Schmidt, Hist. des Allemands, vi
120. 179, &c. Flechier, Vie de
Commendom, 388.;
House of Austria.
or Coxe's
!
FROM HENRY VII. TO GEORGE II.
163
for recusancy, that is, for not attending the pro-
testant church, and driven to insincere promises of
conformity. Others were dragged before eccle-
siastical commissions for harbouring priests, or for
sending money to those who had fled beyond sea.*
Students of the inns of court, where popery had a
strong hold at this time, were examined in the
star-chamber as to their religion, and on not giving
satisfactory answers were committed to the Fleet.t
The catholic party were not always scrupulous
about the usual artifices of an oppressed people,
meeting force by fraud, and concealing their heart-
felt wishes under the mask of ready submission, or
eren of zealous attachment. A great majority both
of clergy and laity yielded to the times; and of
these temporising conformists it cannot be doubted
that many lost by degrees all thought of returning
to their ancient fold. But others, while they com-
plied with exterior ceremonies, retained in their
private devotions their accustomed mode of wor-
ship. It is an admitted fact, that the catholics
generally attended the church, till it came to be
reckoned a distinctive sign of their having re-
nounced their own religion. They persuaded
themselves (and the English priests, uninstructed
and accustomed to a temporising conduct, did not
discourage the notion) that the private observance
of their own rites would excuse a formal obedi-
ence to the civil power.
* Strype, 513, et alibi.
Strype, 522. He says the law-
yers in most eminent places were
generally favourers of popery. p.
269. But, if he means the judges,
they did not long continue so.
The Romish scheme of
Cum regina Maria moreretur,
et religio in Anglia mutaret, post
episcopos et prælatos catholicos
captos et fugatos, populus velut
ovium grex sine pastore in magnis
tenebris et caligine animarum sua-
CHAP.
III.
ELIZ.
Catholics.
M 2
164
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
ELIZ.
Catholics.
CHAP. worship, though it attaches more importance to
ceremonial rites, has one remarkable difference
from the protestant, that it is far less social; and
consequently the prevention of its open exercise
has far less tendency to weaken men's religious
associations, so long as their individual intercourse
with a priest, its essential requisite, can be pre-
served. Priests therefore travelled the country in
various disguises, to keep alive a flame which the
practice of outward conformity was calculated to
extinguish. There was not a county throughout
England, says a catholic historian, where several
of Mary's clergy did not reside, and were com-
monly called the old priests. They served as chap-
lains in private families. By stealth, at the dead of
night, in private chambers, in the secret lurking-
places of an ill peopled country, with all the
mystery that subdues the imagination, with all
the mutual trust that invigorates constancy, these
proscribed ecclesiastics celebrated their solemn
haberi volebant, sic se de præcepto
satisfecisse existimabant. Defere-
bantur filii catholicorum ad bap-
tisteria hæreticorum, ac inter illo-
rum manus matrimonia contrahe-
bant. Atque hæc omnia sine omni
scrupulo fiebant, facta propter ca-
tholicorum sacerdotum ignoran-
tiam, qui talia vel licere credebant,
vel timore quodam præpediti dis-
Dei
simulabant. Nunc autem per
misericordiam omnes catholici in-
telligunt, ut salventur non satis
esse corde fidem catholicam cre-
dere, sed eandem etiam ore opor-
tere confiteri. Ribadeneira de
Schismate, p.53. See also Butler's
English Catholics, vol. iii. p. 156.
+ Dodd's Church Hist. vol. ii.
rum oberravit. Unde etiam fac-
tum est multi ut catholicorum
superstitionibus impiis dissimula-
tionibus et gravibus juramentis
contra sanctæ sedis apostolicæ auc-
toritatem, cum admodum parvo
aut plane nullo conscientiarum sua-
rum scrupulo assuescerent. Fre-
quentabant ergo hæreticorum sy-
nagogas, intererant eorum con-
cionibus, atque ad easdem etiam
audiendas filios et familiam suam
compellabant. Videbatur illis ut
Videbatur illis ut
catholici essent, sufficere una cum
hæreticis eorum templa non adire,
ferri autem posse si ante vel post
illos eadem intrassent. Communi-
cabatur de sacrilegâ Calvini cœnâ,
vel secreto et clanculum intra pri-
vatos parictes. Missam qui audi-
թ. 8.
verant, ac postea Calvinianos se
FROM HENRY VII. TO GEORGE II.
165
III.
ELIZ.
Catholics.
rites, more impressive in such concealment than if CHAP.
surrounded by all their former splendour. The
strong predilection indeed of mankind for mystery,
which has probably led many to tamper in poli-
tical conspiracies without much further motive,
will suffice to preserve secret associations, even
where their purposes are far less interesting than
those of religion. Many of these itinerant priests
assumed the character of protestant preachers; and
it has been said, with some truth, though not pro-
bably without exaggeration, that, under the direc-
tions of their crafty court, they fomented the
division then springing up, and mingled with the
anabaptists and other sectaries, in the hope both
of exciting dislike to the establishment, and of
instilling their own tenets, slightly disguised, into
the minds of unwary enthusiasts.*
It is my thorough conviction that the persecu-
tion, for it can obtain no better name †, carried
* Thomas Heath, brother to the
late archbishop of York, was seized
at Rochester about 1570, well pro-
vided with anabaptist and Arian
tracts for circulation. Strype, i.
521. For other instances, see p.
281. 484. Life of Parker, 244.
Nalson's Collections, vol. i. Intro-
duction, p. 39, &c. from a pan-
phlet written also by Nalson, en-
titled, Foxes and Firebrands. It
was surmised that one Henry
Nicolas, chief of a set of fanatics,
called the Family of Love, of
whom we read a great deal in this
reign, and who sprouted up again
about the time of Cromwell, was
secretly employed by the popish
party. Strype, ii. 37. 589. 595.
But these conjectures were very
often ill-founded, and possibly so
in this instance, though the pas-
sages quoted by Strype (589) are
suspicious. Brandt however (Hist.
of Reformation in Low Countries,
vol. i. p. 105.) does not suspect
Nicolas of being other than a fa-
natic. His sect appeared in the
Netherlands about 1555.
Sou-
+ "That church [of England]
and the queen, its re-founder, are
clear of persecution, as regards the
catholics. No church, no sect, no
individual even, had yet professed
the principle of toleration."
they's Book of the Church, vol. ii.
p. 285. If the second of these sen-
tences is intended as a proof of the
first, I must say, it is little to the
purpose. But it is not true in this
broad way of assertion. Not to
mention sir Thomas More's Uto-
Persecu-
catholics in
tion of the
the ensuing
period.
M 3
166
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
III.
ELIZ.
Catholics.
on against the English catholics, however it might
serve to delude the government by producing an
apparent conformity, could not but excite a spirit
of disloyalty in many adherents of that faith. Nor
would it be safe to assert that a more conciliating
policy would have altogether disarmed their hos-
tility, much less laid at rest those busy hopes of
the future, which the peculiar circumstances of
Elizabeth's reign had a tendency to produce. This
remarkable posture of affairs affected all her civil,
and still more her ecclesiastical policy. Her own
title to the crown depended absolutely on a par-
liamentary recognition. The act of 35 H. 8. c. 1.
had settled the crown upon her, and thus far re-
strained the previous statute, 28 H. 8. c. 7., which
had empowered her father to regulate the succes-
sion at his pleasure. Besides this legislative au-
thority, his testament had bequeathed the king-
dom to Elizabeth after her sister Mary; and the
common consent of the nation had ratified her
possession. But the queen of Scots, niece of
Henry by Margaret, his elder sister, had a prior
right to the throne during Elizabeth's life, in the
eyes of such catholics as preferred an hereditary
pia, the principle of toleration had
been avowed by the chancellor
l'Hospital, and many others in
France. I mention him as on the
stronger side; for in fact the weaker
had always professed the general
principle, and could demand tole-
ration from those of different sen-
timents on no other plea. And as
to capital inflictions for heresy,
which Mr. S. seems chiefly to have
in his mind, there is reason to be-
lieve that many protestants never
approved them. Sleidan intimates,
vol. iii. p. 263., that Calvin incur-
red odium by the death of Servetus.
And Melancthon says expressly
the same thing, in the letter which
he unfortunately wrote to the re-
former of Geneva, declaring his
own approbation of the crime;
and which I am willing to ascribe
rather to his constitutional fear of
giving offence than to sincere con-
viction.
FROM HENRY VII. TO GEORGE II.
167
CHAP.
III.
ELIZ.
Catholics.
succession
of the
crown be-
families of
tween the
Scotland
folk.
to a parliamentary title, and was reckoned by the
far greater part of the nation its presumptive heir
after her decease. There could indeed be no
question of this, had the succession been left to
its natural course. But Henry had exercised the Uncertain
power with which his parliament, in too servile a
spirit, yet in the plenitude of its sovereign autho-
rity, had invested him, by settling the succession in
remainder upon the house of Suffolk, descendants and Suf-
of his second sister Mary, to whom he postponed
the elder line of Scotland. Mary left two daughters,
Frances and Eleanor. The former became wife of
Grey, marquis of Dorset, created duke of Suffolk
by Edward; and had three daughters,-Jane, whose
fate is well known, Catherine, and Mary. Eleanor
Brandon, by her union with the earl of Cumber-
land, had a daughter, who married the earl of
Derby. At the beginning of Elizabeth's reign, or
rather after the death of the duchess of Suffolk,
lady Catherine Grey was by statute law the pre-
sumptive heiress of the crown; but according to
the rules of hereditary descent, which the bulk of
mankind do not readily permit an arbitrary and
capricious enactment to disturb, Mary queen of
Scots, grandaughter of Margaret, was the indis-
putable representative of her royal progenitors, and
the next in succession to Elizabeth.
unwilling-
ness to de-
cide the
succession,
This reversion, indeed, after a youthful princess, Elizabeth's
might well appear rather an improbable contin-
gency. It was to be expected that a fertile mar-
riage would defeat all speculations about her in- or to marry.
heritance; nor had Elizabeth been many weeks on
the throne, before this began to occupy her sub-
M 4
168
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
ELIZ.
Catholics.
CHAP. jects' minds.* Among several who were named,
two very soon became the prominent candidates
for her favour, the archduke Charles, son of the
emperor Ferdinand, and lord Robert Dudley, some-
time after created earl of Leicester; one recom-
mended by his dignity and alliances, the other by
her own evident partiality. She gave at the outset
so little encouragement to the former proposal, that
Leicester's ambition did not appear extravagant.†
But her ablest counsellors who knew his vices,
and her greatest peers who thought his nobility
recent and ill acquired, deprecated so unworthy
a connection. [Few will pretend to explore the
labyrinths of Elizabeth's heart; yet we may almost
conclude that her passion for this favourite kept
up a struggle against her wisdom for the first
seven or eight years of her reign. Meantime
she still continued unmarried; and those expres-
sions she had so early used, of her resolution to
live and die a virgin, began to appear less like coy
affectation than at first. Never had a sovereign's
marriage been more desirable for a kingdom.
Cecil, aware how important it was that the queen
should marry, but dreading her union with Lei-
cester, contrived, about the end of 1564, to renew
the treaty with the archduke Charles. § During
*The address of the house of
commons, begging the queen to
marry, was on Feb. 6. 1559.
+ Haynes, 233.
See particularly two letters in
the Hardwicke State Papers, i. 122.
and 163., dated in October and No-
vember, 1560, which show the
alarm excited by the queen's ill-
placed partiality.
§ Cecil's earnestness for the Aus-
trian marriage appears plainly,
Haynes, 430.; and still more in a
remarkable minute, where he has
drawn up, in parallel columns, ac-
cording to a rather formal, but per-
spicuous, method he much used,
his reasons in favour of the arch-
duke, and against the earl of Lei-
cester. The former chiefly relate
FROM HENRY VII. TO GEORGE II.
169
1
this negotiation, which lasted from two to three
years, she showed not a little of that evasive and
dissembling coquetry which was to be more fully
displayed on subsequent occasions.* Leicester
deemed himself so much interested as to quarrel
with those who manifested any zeal for the Austrian
marriage; but his mistress gradually overcame her
misplaced inclinations; and from the time when
that connection was broken off, his prospects of be-
coming her husband seem rapidly to have vanished
away.
The pretext made for relinquishing this
treaty with the archduke was Elizabeth's constant
to foreign politics, and may be con-
jectured by those acquainted with
history. The latter are as follows:
1. Nothing is increased by mar-
riage of him, either in riches,
estimation, or power. 2. It will
be thought that the slanderous
speeches of the queen with the earl
have been true. 3. He shall study
nothing but to enhance his own
particular friends to wealth, to of-
fices, to lands, and to offend others.
4. He is infamed by death of his
wife. 5. He is far in debt. 6. He
is likely to be unkind, and jealous
of the queen's majesty. Id. +++.
These suggestions, and especially
the second, if actually laid before
the queen, show the plainess and
freedom which this great states-
man ventured to use towards her.
The allusion to the death of Lei-
cester's wife, which had occurred
in a very suspicious manner, at
Cumnor, near Oxford, and is well
known as the foundation of the
novel of Kenilworth, though re-
lated there with great anachronism
and confusion of persons, may be
frequently met with in contempo-
rary documents. By the above
quoted letters in the Hardwicke
Papers, it appears that those who
disliked Leicester had spoken freely
of this report to the queen.
* Elizabeth carried her dissimu-
lation so far as to propose marriage
articles, which were formally laid
before the imperial ambassador.
These, though copied from what
had been agreed on Mary's mar-
riage with Philip, now seemed
highly ridiculous, when exacted
from a younger brother without
territories or revenues.
Jura et
leges regni conserventur, neque
quicquam mutetur in religione aut
in statu publico. Officia et ma-
gistratus exerceantur per naturales.
Neque regina, neque liberi sui edu-
cantur ex regno sine consensu reg-
ni, &c. Haynes, 438.
Cecil was not too wise a man to
give some credit to astrology. The
stars were consulted about the
queen's marriage; and those vera-
cious oracles gave response, that
she should be married in the thirty-
first year of her age to a foreigner,
and have one son, who would be a
great prince, and a daughter, &c.
&c. Strype, ii. 16., and Appendix, 4.,
where the nonsense may be read
at full length. Perhaps however
the wily minister was no dupe, but
meant that his mistress should be.
CHAP.
III.
ELIZ.
Catholics.
;
}
170
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
111.
ELIZ.
Catholics.
refusal to tolerate the exercise of his religion; a
difficulty which, whether real or ostensible, re-
curred in all her subsequent negotiations of a
similar nature.*
In every parliament of Elizabeth the house of
commons was zealously attached to the protestant.
interest. This, as well as an apprehension of dis-
turbance from a contested succession, led to those
importunate solicitations that she would choose a
husband, which she so artfully evaded. A deter-
mination so contrary to her apparent interest, and
to the earnest desire of her people, may give some
countenance to the surmises of the time, that she
was restrained from marriage by a secret con-
sciousness that it was unlikely to be fruitful. †
*The council appear in general
to have been as resolute against
tolerating the exercise of the ca-
tholic religion in any husband the
queen might choose, as herself.
We find however that several di-
vines were consulted on two ques-
tions: 1. Whether it were lawful
to marry a papist. 2. Whether the
queen might permit mass to be
said. To which answers were
given, not agreeing with each other.
Strype, ii. 150., and Appendix, 31.
33. When the earl of Worcester
was sent over to Paris in 1571, as
proxy for the queen, who had been
made sponsor for Charles IX.'s in-
fant daughter, she would not per-
mit him, though himself a catholic,
to be present at the mass on that
occasion. ii. 171.
+ "The people," Camden says,
cursed Huic, the queen's physi-
cian, as having dissuaded the queen
from marrying on account of some
impediment and defect in her.”
Many will recollect the allusion to
this in Mary's scandalous letter to
Elizabeth, wherein, under pretence
of repeating what the countess of
Shrewsbury had said, she utters
every thing that female spite and
mistrust could dictate. But in the
long and confidential correspond-
ence of Cecil, Walsingham, and sir
Thomas Smith, about the queen's
marriage with the duke of Anjou,
in 1571, for which they were evi-
dently most anxious, I do not per-
ceive the slightest intimation that
the prospect of her bearing chil-
dren was at all less favourable than
in any other case. The council
seem, indeed, in the subsequent
treaty with the other duke of
Anjou, in 1579, when she was
forty-six, to have reckoned on
something rather beyond the usual
laws of nature in this respect; for
in a minute by Cecil of the reasons
for and against this marriage, he
sets down the probability of issue
on the favourable side. " By mar-
riage with Monsieur she is likely
to have children, because of his
youth
youth," as if her age were no ob-
jection.
?
FROM HENRY VII. TO GEORGE II.
171
1
E
III.
ELIZ.
Catholics.
Whether these conjectures were well founded, of CHAP.
which I know no evidence, or whether the risk of
experiencing that ingratitude which the husbands
of sovereign princesses have often displayed, and
of which one glaring example was immediately
before her eyes, outweighed in her judgment that
of remaining single, or whether she might not
even apprehend a more desperate combination of
the catholic party at home and abroad, if the
birth of any issue from her should shut out their
hopes of Mary's succession, it is difficult for us to
decide.
Though the queen's marriage were the primary
object of these addresses, as the most probable
means of securing an undisputed heir to the crown,
yet she might have satisfied the parliament in some
degree by limiting the succession to one certain
line. But it seems doubtful whether this would
have answered the proposed end. If she had
taken a firm resolution against matrimony, which,
unless on the supposition already hinted, could
hardly be reconciled with a sincere regard for her
people's welfare, it might be less dangerous to leave
the course of events to regulate her inheritance.
Though all parties seem to have conspired in press-
ing her to some decisive settlement on this subject,
it would not have been easy to content the two fac-
tions, who looked for a successor to very different
quarters.*
It is evident that any confirmation of
* Camden, after telling us that
the queen's disinclination to marry
raised great clamours, and that
the earls of Pembroke and Lei-
cester had professed their opinion
that she ought to be obliged to
take a husband, or that a suc-
cessor should be declared by act of
parliament even against her will,
asserts some time after, as incon-
sistently as improperly, that "very
few but malecontents and traitors
appeared very solicitous in the
business of a successor, P. 401.
172
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
ELIZ.
CHAP. the Suffolk title would have been regarded by the
queen of Scots and her numerous partisans as
a flagrant injustice, to which they would not sub-
Catholics. mit but by compulsion: and on the other hand,
by re-establishing the hereditary line, Elizabeth
would have lost her check on one whom she had
reason to consider as a rival and competitor, and
whose influence was already alarmingly extensive
among her subjects.
Imprison-
ment of
lady Cathe-
rine Grey.
She had, however, in one of the first years of her
reign, without any better motive than her own jea
lous and malignant humour, taken a step not only
harsh and arbitrary, but very little consonant to
policy, which had almost put it out of her power
to defeat the queen of Scots' succession. Lady
Catherine Grey, who has been already mentioned
as next in remainder of the house of Suffolk,
(in Kennet's Complete Hist. of
England, vol. ii.). This, however,
from Camden's known proneness
to flatter James, seems to indicate
that the Suffolk party were more
active than the Scots upon this
occasion. Their strength lay in
the house of commons, which was
wholly protestant, and rather pu-
ritan.
At the end of Murden's State
Papers is a short journal kept by
Cecil, containing a succinct and
authentic summary of events in
Elizabeth's reign. I extract as a
specimen such passages as bear on
the present subject.
Oct. 6. 1566. Certain lewd bills
thrown abroad against the queen's
majesty for not assenting to have
the matter of succession proved
in parliament; and bills also to
charge sir W. Cecil the secretary
with the occasion thereof.
27. Certain lords, viz. the earls
of Pembroke and Leicester, were
excluded the presence-chamber
for furthering the proposition of
the succession to be declared by
parliament without the queen's
allowance.
Nov. 12. Messrs. Bell and Mon-
son moved trouble in the parlia-
ment about the succession.
14. The queen had before her
thirty lords and thirty commoners,
to receive her answer concerning
their petition for the succession
and for marriage. Dalton was
blamed for speaking in the com-
mons' house.
24. Command given to the par-
liament not to treat of the succes-
sion.
Nota: in this parliament time
the queen's majesty did remit a
part of the offer of a subsidy to
the commons, who offered largely,
to the end to have had the succes-
sion established. P. 762.
FROM HENRY VII. TO GEORGE II.
173
III.
ELIZ.
proved with child by a private marriage, as they CHAP.
both alleged, with the earl of Hertford. The
queen, always envious of the happiness of lovers,
and jealous of all who could entertain any hopes of Catholics.
the succession, threw them both into the Tower.
By connivance of their keepers, the lady bore a
second child during this imprisonment. Upon this
Elizabeth caused an enquiry to be instituted before
a commission of privy counsellors and civilians;
wherein, the parties being unable to adduce proof
of their marriage, archbishop Parker pronounced
that their cohabitation was illegal, and that they
should be censured for fornication. He was to be
pitied if the law obliged him to utter so harsh a
sentence, or to be blamed if it did not. Even had
the marriage never been solemnised, it was impos-
sible to doubt the existence of a contract, which
both were still desirous to perform. But there is
reason to believe that there had been an actual
marriage, though so hasty and clandestine that they
had not taken precautions to secure evidence of it.
The injured lady sunk under this hardship and in-
dignity*; but the legitimacy of her children was
Catherine, after her release
from the Tower, was placed in the
custody of her uncle lord John
Grey, but still suffering the queen's
displeasure, and separated from
her husband. Several interesting
letters from her and her uncle to
Cecil are among the Lansdowne
MSS. vol. vi. They cannot be
read without indignation at Eliza
beth's unfeeling severity. Sorrow
killed this poor young woman the
next year, who was never permit-
ted to see her husband again,
Strype, i. 391. The earl of Hert-
ford underwent a long imprison
ment, and continued in obscurity
during Elizabeth's reign; but had
some public employments under
her successor. He was twice after-
wards married, and lived to a very
advanced age, not dying till 1621,
near sixty years after his ill-starred
and ambitious love. It is worth
while to read the epitaph on his
monument in the S. E. aisle of
Salisbury cathedral, an affecting
testimony to the purity and faith-
fulness of an attachment, rendered
still more sacred by misfortune
and time. Quo desiderio veteres
revocavit amores!
shall revert
to the question of this marriage
in a subsequent chapter.
174
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
ELIZ.
Catholics.
CHAP. acknowledged by general consent, and, in a distant
age, by a legislative declaration. These proceed-
ings excited much dissatisfaction; generous minds
revolted from their severity, and many lamented to
see the reformed branch of the royal stock thus
bruised by the queen's unkind and impolitic jea-
lousy.* Hales, clerk of the hanaper, a zealous pro-
testant, having written in favour of lady Catherine's
marriage, and of her title to the succession, was
sent to the Tower.† The lord keeper Bacon him-
self, a known friend to the house of Suffolk, being
suspected of having prompted Hales to write this
treatise, lost much of his mistress's favour. Even
Cecil, though he had taken a share in prosecuting
lady Catherine, perhaps in some degree from an
apprehension that the queen might remember he
had once joined in proclaiming her sister Jane, did
not always escape the same suspicion ; and it is
* Haynes, 396.
+ Id. 413. Strype, 410. Hales's
treatise in favour of the authen-
ticity of Henry's will is among the
Harleian MSS. n. 537. and 555.,
and has also been printed in the
Appendix to Hereditary Right
Asserted, fol. 1713.
Camden, p. 416., ascribes the
powerful coalition formed against
him in 1569, wherein Norfolk and
Leicester were combined with all
the catholic peers, to his predilec-
tion for the house of Suffolk. But
it was more probably owing to
their knowledge of his integrity
and attachment to his sovereign,
which would stedfastly oppose
their wicked design of bringing
about Norfolk's marriage with
Mary, as well as to their jealousy
of his influence. Carte reports, on
the authority of the despatches of
Fenelon, the French ambassador,
that they intended to bring him
to account for breaking off the
ancient league with the house of
Burgundy, or, in other words, for
maintaining the protestant in-
terest. Vol. iii. p. 483.
A papist writer, under the name
of Andreas Philopater, gives an
account of this confederacy against
Cecil at some length. Norfolk
and Leicester belonged to it; and
the object was to defeat the Suf-
folk succession, which Cecil and
Bacon favoured, Leicester be-
trayed his associates to the queen.
It had been intended that Norfolk
should accuse the two counsellors
before the lords, eâ ratione ut è
senatu regiâque abreptos ad curiæ
januas in crucem agi præciperet,
eoque perfecto rectè deinceps ad
forum progressus explicaret populo
tum hujus facti rationem, tum
successionis etiam regnandi legi-
timam seriem, si quid forte reginæ
humanitus accideret. P. 43.
FROM HENRY VII. TO GEORGE II.
175
III.
ELIZ.
Catholics.
probable that he felt the imprudence of entirely dis- CHAP.
countenancing a party from which the queen and
religion had nothing to dread. There is reason to
believe that the house of Suffolk was favoured in
parliament; the address of the commons in 1563,
imploring the queen to settle the succession, con-
tains several indications of a spirit unfriendly to the
Scottish line*; and a speech is extant, said to
have been made as late as 1571, expressly vindicat-
ing the rival pretension. † If indeed we consider
with attention the statute of 13 Eliz. c. 1., which
renders it treasonable to deny that the sovereigns
of this kingdom, with consent of parliament, might
alter the line of succession, it will appear little
short of a confirmation of that title, which the de-
scendants of Mary Brandon derived from a parlia-
mentary settlement. But the doubtful birth of lord
Beauchamp and his brother, with an ignoble mar-
riage, which Frances, the younger sister of lady
Catherine Grey, had thought it prudent to contract,
deprived this party of all political consequence
much sooner, as I conceive, than the wisest of
Elizabeth's advisers could have desired; and gave
rise to various other pretensions, which failed not
to occupy speculative or intriguing tempers through-
out this reign.
queen of
We may well avoid the tedious and intricate Mary,
paths of Scottish history, where each fact must be scotland.
sustained by a controversial discussion. Every one
will recollect, that Mary Stuart's retention of the
* D'Ewes, 81.
Strype, 11. Append. This
speech seems to have been made
while Catherine Grey was living;
perhaps therefore it was in a for-
mer parliament, for no account
that I have seen represents her as
having been alive so late as 1571.
176
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
III.
ELIZ.
Catholics.
arms and style of England gave the first, and, as it
proved, inexpiable provocation to Elizabeth. It is
indeed true, that she was queen consort of France,
a state lately at war with England, and that if the
sovereigns of the latter country, even in peace,
would persist in claiming the French throne, they
could hardly complain of this retaliation. But, al-
though it might be difficult to find a diplomatic
answer to this, yet every one was sensible of an im
portant difference between a title retained through
vanity, and expressive of pretensions long since
abandoned, from one that several foreign powers
were prepared to recognise, and a great part of the
nation might perhaps only want opportunity to sup-
port.* If, however, after the death of Francis II.
had set the queen of Scots free from all adverse con-
nections, she had with more readiness and apparent
* There was something pecu-
liar in Mary's mode of blazonry.
She bore Scotland and England
quarterly, the former being first;
but over all was a half scutcheon
of pretence with the arms of Eng-
land, the sinister half being as it
were obscured, in order to intimate
that she was kept out of her right.
Strype, vol. i. p. 8.
The despatches of Throckmor-
ton, the English ambassador in
France, bear continual testimony
to the insulting and hostile man-
ner in which Francis II. and his
queen displayed their pretensions
to our crown. Forbes's State Pa-
pers, vol. i. passim. The follow-
ing is an instance. At the entrance
of the king and queen into Cha-
telherault, 23d Nov. 1559, these
lines formed the inscription over
one of the gates:
Gallia perpetuis pugnaxque Britannia bellis
Olim odio inter se dimicuere pari.
Nunc Gallos totoque remotos orbe Britannos
Unum dos Mariæ cogit in imperium.
Ergo pace potes, Francisce, quod omnibus
armis
Mille patres annis non potuere tui.
This offensive behaviour of the
French court is the apology of
Elizabeth's intrigues during the
same period with the malecontents,
which to a certain extent cannot
be denied by any one who has
read the collection above quoted;
though I do not think Dr. Lingard
warranted in asserting her privity
to the conspiracy of Amboise as a
proved fact. Throckmorton was
a man very likely to exceed his in-
structions; and there is much rea-
son to believe that he did so. It
is remarkable that no modern
French writers that I have seen,
Anquetil, Garnier, Lacretelle, or
the editors of the General Collec-
tion of Memoirs, seem to have been
aware of Elizabeth's secret in-
trigues with the king of Navarre
and other protestant chiefs in 1559,
which these letters, published by
Forbes in 1740, demonstrate.
FROM HENRY VII. TO GEORGE II.
177
III.
ELIZ.
Catholics.
sincerity renounced a pretension which could not CHAP.
be made compatible with Elizabeth's friendship,
she might perhaps have escaped some of the con-
sequences of that powerful neighbour's jealousy.
But, whether it were that female weakness restrained
her from unequivocally abandoning claims which
she deemed well founded, and which future events
might enable her to realise even in Elizabeth's
life-time, or whether she fancied that to drop the
arms of England from her scutcheon would look
like a dereliction of her right of succession, no sa-
tisfaction was fairly given on this point to the En-
glish court. Elizabeth took a far more effective
revenge, by intriguing with all the malecontents of
Scotland. But while she was endeavouring to ren-
der Mary's throne uncomfortable and insecure, she
did not employ that influence against her in Eng-
land, which lay more fairly in her power. She cer-
tainly was not unfavourable to the queen of Scots'
succession, however she might decline compliance
with importunate and injudicious solicitations to
declare it. She threw both Hales and one Thorn-
ton into prison for writing against that title. And
when Mary's secretary, Lethington, urged that
Henry's testament, which alone stood in their way,
should be examined, alleging that it had not been
signed by the king, she paid no attention to this
imprudent request.
* Burnet, i. Append. 266. Many
letters, both of Mary herself and
of her secretary, the famous Mait-
land of Lethington, occur in
Haynes's State Papers, about the
end of 1561. In one of his to
Cecil, he urges, in answer to what
VOL. I.
N
had been alleged by the English
court, that a collateral successor
had never been declared in any
prince's life-time, that whatever
reason there might be for that,
"if the succession had remained
untouched according to the law,
178
THE CONSTITUTIONAL HISTORY OF ENGLAND
เ
CHAP.
III.
Catholics.
The circumstances wherein Mary found herself
placed on her arrival in Scotland were sufficiently
ELIZ. embarrassing to divert her attention from any re-
gular scheme against Elizabeth, though she may
sometimes have indulged visionary hopes; nor is it
probable that with the most circumspect manage-
ment she could so far have mitigated the rancour
of some or checked the ambition of others, as to
find leisure for hostile intrigues. But her im-
prudent marriage with Darnley, and the far greater
errors of her subsequent behaviour, by lowering
both her resources and reputation as far as pos-
sible, seemed to be pledges of perfect security from
that quarter.
Yet it was precisely when Mary
was become most feeble and helpless, that Eliza-
beth's apprehensions grew most serious and well-
founded.
+
At the time when Mary, escaped from captivity,
threw herself on the protection of a related, though
rival queen, three courses lay open to Elizabeth,
and were discussed in her councils. To restore
her by force of arms, or rather by a mediation
which would certainly have been effectual, to the
throne which she had compulsorily abdicated,
was the most generous, and would probably have
turned out the most judicious proceeding. Reign-
ing thus with tarnished honour and diminished
power, she must have continually depended on
the support of England, and become little better
than a vassal of its sovereign. Still it might be
objected by many, that the queen's honour was
yet where by a limitation men had
gone about to prevent the provi-
dence of God, and shift one into
the place due to another, the of
fended party could not but seck
the redress thereof." P. 373.
}
FROM HENRY VII. TO GEORGE II.
179
concerned not to maintain too decidedly the cause
of one accused by common fame, and even by
evidence that had already been made public, of
adultery and the assassination of her husband.
To have permitted her retreat into France would
have shown an impartial neutrality; and probably
that court was too much occupied at home to have
afforded her any material assistance. Yet this
ap-
peared rather dangerous; and policy was supposed,
as frequently happens, to indicate a measure abso-
iutely repugnant to justice, that of detaining her
in perpetual custody.* Whether this policy had
no other fault than its want of justice, may reason-
ably be called in question.
CHAP.
III.
ELIZ.
Catholics.
The queen's determination neither to marry nor
limit the succession had inevitably turned every
one's thoughts towards the contingency of her
death. She was young indeed; but, had been
dangerously ill, once in 1562 †, and again in 1568.
Of all possible competitors for the throne, Mary Combina-
was incomparably the most powerful, both among favour of
the nobility and the people. Besides the undivided Mary.
attachment of all who retained any longings for
the ancient religion, and many such were to be
found at Elizabeth's court and chapel, she had the
stronghold of hereditary right, and the general
* A very remarkable letter of the
earl of Sussex, Oct. 22, 1568, con-
tains these words: "I think surely
no end can be made good for Eng-
land, except the person of the
Scottish queen be detained, by one
means or other, in England." The
England." The
whole letter manifests the spirit of
Elizabeth's advisers, and does no
great credit to Sussex's sense of
justice, but a great deal to his abi-
lity. Yet he afterwards became an
advocate for the duke of Norfolk's
marriage with Mary. Lodge's Il-
lustrations, vol. ii. p. 4.
+ Hume and Carte say, this first
illness was the small-pox. But it
appears by a letter from the queen
to lord Shrewsbury, Lodge, 279.,
that her attack in 1571 was sus-
pected to be that disorder.
tion in
N 2
180
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
III.
ELIZ.
Catholics.
sentiment that revolts from acknowledging the
omnipotency of a servile parliament. Cecil, whom
no one could suspect of partiality towards her,
admits in a remarkable minute on the state of
the kingdom, in 1569, that "the queen of Scots'
strength standeth by the universal opinion of the
world for the justice of her title, as coming of the
ancient line." * This was no doubt in some degree
counteracted by a sense of the danger which her
accession would occasion to the protestant church,
and which, far more than its parliamentary title,
kept up a sort of party for the house of Suffolk.
The crimes imputed to her did not immediately
gain credit among the people; and some of higher
rank were too experienced politicians to turn aside
for such considerations. She had always preserved
her connections among the English nobility, of
whom many were catholics, and others adverse to
Cecil, by whose counsels the queen had been prin-
cipally directed in all her conduct with regard to
Scotland and its sovereign. After the unfinished
process of enquiry to which Mary submitted at
York and Hampton Court, when the charge of
participation in Darnley's murder had been sub-
stantiated by evidence at least that she did not
disprove, and the whole course of which proceed-
ings created a very unfavourable impression both
* Haynes, 580.
+ In a conversation which Mary
had with one Rooksby, a spy of
Cecil's, about the spring of 1566,
she imprudently named several of
her friends, and of others whom
she hoped to win, such as the duke
of Norfolk, the earls of Derby,
Northumberland, Westmoreland,
Cumberland, Shrewsbury. "She
had the better hope of this, for that
she thought then to be all of the
old religion, which she meant to
restore again with all expedition,
and thereby win the hearts of the
common people." The whole pas-
sage is worth notice. Haynes, 447.
See also Melvil's Memoirs, for the
dispositions of an English party
towards Mary in 1566.
FROM HENRY VII. TO GEORGE II.
181
in England and on the continent, no time was to
be lost by those who considered her as the object
of their dearest hopes. She was in the kingdom;
she might, by a bold rescue, be placed at their
head; every hour's delay increased the danger of
her being delivered up to the rebel Scots; and
doubtless some eager protestants had already be-
gun to demand her exclusion by an absolute de-
cision of the legislature.
Elizabeth must have laid her account, if not with
the disaffection of the catholic party, yet at least
with their attachment to the queen of Scots. But
the extensive combination that appeared, in 1569,
to bring about by force the duke of Norfolk's mar-
riage with that princess, might well startle her
cabinet. In this combination Westmoreland and
Northumberland, avowed catholics, Pembroke and
Arundel, suspected ones, were mingled with Sus-
sex and even Leicester, unquestioned protestants.
The duke of Norfolk himself, greater and richer
than any English subject, had gone such lengths
in this conspiracy that his life became the just for-
feit of his guilt and folly. It is almost impossible
to pity this unhappy man, who lured by the most
criminal ambition, after proclaiming the queen of
Scots a notorious adulteress and murderer, would
have compassed a union with her at the hazard of
his sovereign's crown, of the tranquillity and even
independence of his country, and of the reformed
religion. There is abundant proof of his in-
**
* Murden's State Papers, 134.
180. Norfolk was a very weak
man, the dupe of some very cun-
ning ones. We may observe that
his submission to the queen, Id.
153., is expressed in a style which
would now be thought most pusil-
lanimous in a man of much lower
CHAP.
III.
ELIZ.
Catholics.
N
3
182
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
ELIZ.
Catholics.
CHAP. trigues with the duke of Alva, who had engaged
to invade the kingdom. His trial was not indeed
conducted in a manner that we can approve (such
was the nature of state proceedings in that age),
nor can it, I think, be denied that it formed a
precedent of constructive treason not easily recon-
cilable with the statute; but much evidence is ex-
tant that his prosecutors did not adduce; and no
one fell by a sentence more amply merited, or the
execution of which was more indispensable.*
Bull of
Pius V.
Norfolk was the dupe throughout all this in-
trigue of more artful men; first of Murray and
Lethington, who had filled his mind with ambitious.
hopes, and afterwards of Italian agents employed
by Pius V. to procure a combination of the ca-
tholic party. Collateral to Norfolk's conspiracy,
but doubtless connected with it, was that of the
northern earls of Northumberland and Westmore-
land, long prepared, and perfectly foreseen by the
government, of which the ostensible and manifest
aim was the re-establishment of popery.† Pius V.,
who took a far more active part than his pre-
station, yet he died with great in-
trepidity. But such was the tone
of those times; an exaggerated hy-
pocrisy prevailed in every thing.
* State Trials, i. 957. He was
interrogated by the queen's coun-
sel with the most insidious ques-
tions. All the material evidence
was read to the lords from written
depositions of witnesses who might
have been called, contrary to the
statute of Edward VI. But the
Burghley Papers, published by
Haynes and Murden, contain a
mass of documents relative to this
conspiracy, which leave no doubt
as to the most heinous charge, that
of inviting the duke of Alva to in-
vade the kingdom. There is rea-
son to suspect that he feigned him-
self a catholic in order to secure
Alva's assistance. Murden, թ. 10.
(C
†The northern counties were at
this time chiefly catholic. "There
are not," says Sadler, writing from
thence, ten gentlemen in this
country who do favour and allow
of her majesty's proceedings in the
cause of religion." Lingard, vii.
54. It was consequently the great
resort of the priests from the Ne-
therlands, and in the feeble state of
the protestant church there wanted
sufficient ministers to stand up in
its defence. Strype, i. 509. et post;
ii. 183. Many of the gentry indeed
were still disaffected in other parts
towards the new religion. A pro-
FROM HENRY VII. TO GEORGE II.
183
CHAP.
III.
Catholics.
decessor in English affairs, and had secretly in-
stigated this insurrection, now published his
celebrated bull, excommunicating and deposing ELIZ.
Elizabeth, in order to second the efforts of her re-
bellious subjects.* This is, perhaps, with the ex-
ception of that issued by Sixtus V. against Mary IV.
of France, the latest blast of that trumpet, which
had thrilled the hearts of monarchs. Yet there was
nothing in the sound that bespoke declining vigour;
even the illegitimacy of Elizabeth's birth is scarcely
alluded to; and the pope seems to have chosen
rather to tread the path of his predecessors, and
absolve her subjects from their allegiance, as the
just and necessary punishment of her heresy.
Since nothing so much strengthens any govern-
ment as an unsuccessful endeavour to subvert it,
it may be thought that the complete failure of
the rebellion under the earls of Northumberland
and Westmoreland, with the detection and pu-
nishment of the duke of Norfolk, rendered Eliza-
beth's throne more secure. But those events
revealed the number of her enemies, or at least
of those in whom no confidence could be re-
posed. The rebellion, though provided against
by the ministry, and headed by two peers of great
family but no personal weight, had not only as-
sumed for a time a most formidable aspect in the
north, but caused many to waver in other parts of
the kingdom. Even in Norfolk, an eminently
fession of conformity was required
in 1569 from all justices of the
peace, which some refused, and
others made against their con-
sciences. Id. i. 567.
* Camden has quoted a long
passage from Hieronymo Catena's
Life of Pius V., published at Rome
in 1588, which illustrates the evi-
dence to the same effect contained
in the Burghley Papers, and partly
adduced on the duke of Norfolk's
trial.
+ Strype, i. 546. 553. 556.
N
4
184
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
ELIZ.
Catholics.
CHAP. protestant county, there was a slight insurrection
in 1570, out of attachment to the duke.* If her
greatest subject could thus be led astray from his
faith and loyalty, if others not less near to her
councils could unite with him in measures so con-
trary to her wishes and interests, on whom was
she firmly to rely? Who, especially, could be
trusted, were she to be snatched away from the
world, for the maintenance of the protestant esta-
blishment under a yet unknown successor? This
was the manifest and principal danger that her
counsellors had to dread. Her own great reputa-
tion, and the respectful attachment of her people,
might give reason to hope that no machinations.
would be successful against her crown; but let us
reflect in what situation the kingdom would have
been left by her death in a sudden illness, such
as she had more than once experienced in earlier
years, and again in 1571. "You must think,"
lord Burleigh writes to Walsingham, on that occa
sion, "such a matter would drive me to the end
of my wits." And sir Thomas Smith expresses his
fears in equally strong language.† Such statesmen
do not entertain apprehensions lightly. Whom, in
truth, could her privy council, on such an event,
have resolved to proclaim? The house of Suffolk,
had its right been more generally recognised than
it was, (lady Catherine being now dead,) presented
no undoubted heir. The young king of Scotland,
an alien and an infant, could only have reigned
through a regency; and it might have been dif
ficult to have selected from the English nobility a
* Strype, i. 578. Camden, 428.
Lodge, ii. 45.
+ Strype, ii. 88. Life of Smith,
152.
FROM HENRY VII. TO GEORGE II.
185
fit person to undertake that office, or at least one
in whose elevation the rest would have acquiesced.
It appears most probable that the numerous and
powerful faction who had promoted Norfolk's union
with Mary would have contrived again to remove
her from her prison to the throne. Of such a
revolution the disgrace of Cecil and of Elizabeth's
wisest ministers must have been the immediate
consequence; and it is probable that the resto-
ration of the catholic worship would have ensued.
These apprehensions prompted Cecil, Walsingham,
and Smith to press the queen's marriage with the
duke of Anjou far more earnestly than would
otherwise have appeared consistent with her in-
terests. A union with any member of that per-
fidious court was repugnant to genuine protestant
sentiments. But the queen's absolute want of
foreign alliances, and the secret hostility both of
France and Spain, impressed Cecil with that deep
sense of the perils of the time which his private
letters so strongly bespeak. A treaty was believed
to have been concluded in 1567, to which the two
last mentioned powers, with the emperor Maximi-
lian and some other catholic princes, were parties,
for the extirpation of the protestant religion.* No
alliance that the court of Charles IX. could have
formed with Elizabeth was likely to have diverted
it from pursuing this object; and it may have been
* Strype, i. 502. I do not give
any credit whatever to this league,
as printed in Strype, which seems
to have been fabricated by some of
the queen's emissaries. There had
been, not perhaps a treaty, but a
verbal agreement between France
and Spain at Bayonne some time
before; but its object was appa-
rently confined to the suppression
of protestantism in France and the
Netherlands. Had they succeeded
however in this, the next blow
would have been struck at Eng-
land. It seems very unlikely that
Maximilian was concerned in such
a league.
CHAP.
III.
ELIZ.
Catholics.
ik
186
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
III.
ELIZ.
Catholics.
fortunate that her own insincerity saved her from
being the dupe of those who practised it so well.
Walsingham himself, sagacious as he was, fell into
the snares of that den of treachery, giving credit
to the young king's assurances almost on the very
eve of St. Bartholomew.*
The bull of Pius V., far more injurious in its
consequences to those it was designed to serve
than to Elizabeth, forms a leading epoch in the
history of our English catholics. It rested upon
a principle never universally acknowledged, and
regarded with much jealousy by temporal govern-
ments, yet maintained in all countries by many
whose zeal and ability rendered them formidable,
-the right vested in the supreme pontiff to depose
kings for heinous crimes against the church. One
Felton affixed this bull to the gates of the bishop
of London's palace, and suffered death for the
offence. So audacious a manifestation of disloyalty
was imputed with little justice to the catholics at
large, but might more reasonably lie at the door of
those active instruments of Rome, the English
refugee priests and jesuits dispersed over Flanders
and lately established at Douay, who were con-
tinually passing into the kingdom, not only to keep
alive the precarious faith of the laity, but, as was
generally surmised, to excite them against their
Statutes for Sovereign. This produced the act of 13 Eliz. c. 2.;
the queen's
security.
* Strype, vol. ii.
esta-
+ The college of Douay for En-
glish refugee priests was
blished in 1568 or 1569. Lingard,
374. Strype seems, but I believe
through inadvertence, to put this
event several years later. Annals,
ii. 630. It was dissolved by Re-
quesens, while governor of Flan-
ders, but revived at Rheims in
1575, under the protection of the
cardinal of Lorrain, and returned
to Douay in 1593. Similar colleges
were founded at Rome in 1579, at
Valladolid in 1589, at St. Omer in
1596, and at Louvain in 1606.
FROM HENRY VII. TO GEORGE II.
187
III.
ELIZ.
Catholics.
which, after reciting these mischiefs, enacts that CHAP.
all persons publishing any bull from Rome, or
absolving and reconciling any one to the Romish
church, or being so reconciled, should incur the
penalties of high treason; and such as brought
into the realm any crosses, pictures, or super-
stitious things consecrated by the pope or under
his authority, should be liable to a premunire.
Those who should conceal or connive at the
offenders were to be held guilty of misprision of
treason. This statute exposed the catholic priest-
hood, and in great measure the laity, to the con-
tinual risk of martyrdom; for so many had fallen
away from their faith through a pliant spirit of
conformity with the times, that the regular disci-
pline would exact their absolution and recon-
ciliation before they could be reinstated in the
church's communion. Another act of the same
session, manifestly levelled against the partisans
of Mary, and even against herself, makes it high
treason to affirm that the queen ought not to enjoy
the crown, but some other person; or to publish
that she is a heretic, schismatic, tyrant, infidel,
or usurper of the crown; or to claim right to the
crown, or to usurp the same during the queen's
life; or to affirm that the laws and statutes do not
bind the right of the crown, and the descent, li-
mitation, inheritance, or governance thereof. And
whosoever should during the queen's life, by any
book or work written or printed, expressly affirm,
before the same had been established by parlia-
ment, that any one particular person was or ought
to be heir and successor to the queen, except the
same be the natural issue of her body, or should
188
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
CHAP. print or utter any such book or writing, was for the
first offence to be imprisoned a year, and to forfeit
half his goods; and for the second to incur the
penalties of a premunire.*
ELIZ.
Catholics.
It is impossible to misunderstand the chief aim
of this statute. But the house of commons, in
which the zealous protestants, or, as they were now
rather denominated, puritans, had a predominant
influence, were not content with these demonstra-
tions against the unfortunate captive. Fear, a
often happens, excited a sanguinary spirit amongst
them; they addressed the queen upon what they
called the great cause, that is, the business of the
queen of Scots, presenting by their committee
reasons gathered out of the civil law to prove that
"it standeth not only with justice, but also with
the queen's majesty's honour and safety, to pro-
ceed criminally against the pretended Scottish
queen."+ Elizabeth, who could not really dislike
these symptoms of hatred towards her rival, took
the opportunity of simulating more humanity than
the commons; and when they sent a bill to the
upper house attainting Mary of treason, checked
its course by proroguing the parliament. Her
backwardness to concur in any measures for se-
curing the kingdom, as far as in her lay, from those
calamities which her decease might occasion, could
not but displease lord Burleigh. "All that we
* 13 Eliz. c. 1.
This act was
made at first retrospective, so as to
affect every one who had at any
time denied the queen's title. A
member objected to this in de-
bate as CC
a precedent most peril-
ous." But sir Francis Knollys,
Mr. Norton, and others defended
it. D'Ewes, 162. It seems to
have been amended by the lords.
So little notion had men of observ
ing the first principles of equity
towards their enemies! There is
much reason from the debate to
suspect that the ex post facto words
were levelled at Mary.
† Strype, ii. 133. 'D'Ewes, 207.
FROM HENRY VII. TO GEORGE II.
189
*
laboured for," he writes to Walsingham in 1572,
"and had with full consent brought to fashion, I
mean a law to make the Scottish queen unable
and unworthy of succession to the crown, was by
her majesty neither assented to nor rejected, but
deferred." Some of those about her, he hints,
made herself her own enemy by persuading her
not to countenance these proceedings in parlia-
ment. I do not think it admits of much question
that, at this juncture, the civil and religious insti-
tutions of England would have been rendered
more secure by Mary's exclusion from a throne,
which indeed, after all that had occurred, she
could not be endured to fill without national dis-
honour. But the violent measures suggested
against her life were hardly, under all the circum-
stances of her case, to be reconciled with justice;
even admitting her privity to the northern rebel-
lion and to the projected invasion by the duke of
Alva. These however were not approved merely
by an eager party in the commons: Archbishop
Parker does not scruple to write about her to
Cecil" If that only [one] desperate person were
taken away, as by justice soon it might be, the
queen's majesty's good subjects would be in bet-
ter hope, and the papists' daily expectation van-
quished." And Walsingham, during his embassy
+
at Paris, desires that "the queen should see how
much they (the papists) built upon the possibility
of that dangerous woman's coming to the crown of
England, whose life was a step to her majesty's
death;" adding that "she was bound for her own
*
Strype, ii. 135.
† Life of Parker, 354.
CHAP.
III.
ELIZ.
Catholics.
190
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
CHAP. safety and that of her subjects, to add to God's
providence her own policy, so far as might stand
with justice." *
ELIZ.
Catholics.
Catholics
more ri-
gorously
treated.
We cannot wonder to read that these new sta-
tutes increased the dissatisfaction of the Roman
catholics, who perceived a systematic determin-
ation to extirpate their religion. Governments
ought always to remember that the intimidation
of a few disaffected persons is dearly bought by
alienating any large portion of the community.
Many retired to foreign countries, and receiving
for their maintenance pensions from the court of
Spain, became unhappy instruments of its ambi-
tious enterprises. Those who remained at home
could hardly think their oppression much mitigated
by the precarious indulgences which Elizabeth's
caprice, or rather the fluctuation of different par-
ties in her councils, sometimes extended to them.
The queen indeed, so far as we can penetrate her
dissimulation, seems to have been really averse
to extreme rigour against her catholic subjects:
and her greatest minister, as we shall more fully
see afterwards, was at this time in the same sen-
timents. But such of her advisers as leaned to-
wards the puritan faction, and too many of the
Anglican clergy, whether puritan or not, thought
no measure of charity or compassion should be
extended to them. With the divines they were
idolators; with the council they were a dangerous
and disaffected party; with the judges they were
refractory transgressors of statutes; on every side
* Strype's Annals, ii. 48.
Murden's Papers, p. 43., con-
tain proofs of the increased dis-
content among the catholics in
consequence of the penal laws.
FROM HENRY VII. TO GEORGE II.
191
III.
ELIZ.
'Catholics.
they were obnoxious and oppressed. A few aged CHAP.
men having been set at liberty, Sampson, the
famous puritan, himself a sufferer for conscience
sake, wrote a letter of remonstrance to lord Bur-
leigh. He urged in this that they should be com-
pelled to hear sermons, though he would not at
first oblige them to communicate.*
A bill having
been introduced in the session of 1571 imposing a
penalty for not receiving the communion, it was
objected that consciences ought not to be forced.
But Mr. Strickland entirely denied this principle.
and quoted authorities against it. † Even Parker,
by no means tainted with puritan bigotry, and
who had been reckoned moderate in his proceed-
ings towards catholics, complained of what he
called "a Machiavel government;" that is, of the
queen's lenity in not absolutely rooting them
out. ‡
This indulgence, however, shown by Elizabeth,
Strype, ii. 330. See too in
vol. iii. Appendix 68., a series of
petitions intended to be offered to
the queen and parliament, about
1583. These came from the puri-
tanical mint, and show the dread
that party entertained of Mary's
succession, and of a relapse into
popery. It is urged in these, that
no toleration should be granted
to the popish worship in private
houses. Nor in fact had they
much cause to complain that it
was so. Knox's famous intole-
rance is well known. "One mass,"
he declared in preaching against
Mary's private chapel at Holy-
rood-house,
CC was more fearful
unto him than if ten thousand
anned enemies were landed in any
part of the realm, on purpose to sup-
press the whole religion." M'Cric's
Life of Knox, vol. ii. p. 24. In a
i
St.
conversation with Maitland he as-
serted most explicitly the duty of
putting idolaters to death. Id.
p. 120. Nothing can be more san-
guinary than the reformer's spirit
in this remarkable interview.
Dominic could not have surpassed
him. It is strange to see men,
professing all the while our mo-
dern creed of charity and tolera-
tion, extol these sanguinary spirits
of the sixteenth century. The
English puritans, though I can-
not cite any passages so strong as
the foregoing, were much the bit-
terest enemies of the catholics.
When we read a letter from any
one, such as Mr. Topcliffe, very
fierce against the latter, we may
expect to find him put in a word
in favour of silenced ministers.
D'Ewes, 161. 177.
Strype's Life of Parker, 354.
192
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
III.
ELIZ.
Catholics.
the topic of reproach in those times, and some-
times of boast in our own, never extended to any
positive toleration, nor even to any general con-
nivance at the Romish worship in its most private
exercise. She published a declaration in 1570,
that she did not intend to sift men's consciences,
provided they observed her laws by coming to
church; which, as she well knew, the greater part
deemed inconsistent with their integrity." Nor
did the government always abstain from an inqui
sition into men's private thoughts. The inns of
court were more than once purified of popery by
examining their members on articles of faith.
Gentlemen of good families in the country were
harassed in the same manner. One sir Richard
Shelley, who had long acted as a sort of spy
for
Cecil on the continent, and given much useful in-
formation, requested only leave to enjoy his reli
gion without hindrance; but the queen did not
accede to this without much reluctance and de-
lay. She had indeed assigned no other ostensible
pretext for breaking off her own treaty of mar-
riage with the archduke Charles, and subsequently
with the dukes of Anjou and Alençon, than her
determination not to suffer the mass to be cele
brated even in her husband's private chapel. It is
worthy to be repeatedly inculcated on the reader,
since so false a colour has been often employed to
disguise the ecclesiastical tyranny of this reign,
that the most clandestine exercise of the Romish
worship was severely punished. Thus we read in
* Strype's Annals, i. 582. Ho-
nest old Strype, who thinks church
and state never in the wrong, calls
this "
a notable picce of favour."
+ Id. ii. 110. 408.
Id. iii. 127.
FROM HENRY VII. TO GEORGE II.
193
the life of Whitgift, that on information given that
some ladies and others heard mass in the house of
one Edwards by night, in the county of Denbigh,
he being then bishop of Worcester and vice-presi-
dent of Wales, was directed to make inquiry into
the facts; and finally was instructed to commit
Edwards to close prison, and as for another person
implicated, named Morice, "if he remained ob-
stinate, he might cause some kind of torture to be
used upon him, and the like order they prayed
him to use with the others." * But this is one of
many instances, the events of every day, forgotten
on the morrow, and of which no general historian
takes account. Nothing but the minute and pa-
tient diligence of such a compiler as Strype, who
thinks no fact below his regard, could have pre-
served them from oblivion. †
+
*Life of Whitgift, 83. See too
99., and Annals of Reformation,
631, &c.; also Holingshed, ann.
1574, ad init.
An almost incredible specimen
of ungracious behaviour towards a
Roman catholic gentleman is men-
tioned in a letter of Topcliffe, a
man whose daily occupation was
to hunt out and molest men for
popery. "The next good news,
but in account the highest, her ma-
jesty hath served God with great
zeal and comfortable examples;
for by her council two notorious
papists, young Rockwood, the mas-
ter of Euston-hall, where her ma-
jesty did lie upon Sunday now a
fortnight, and one Downes, a gen
tleman, were both committed, the
one to the town prison at Norwich,
the other to the country prison
there, for obstinate papistry; and
seven more gentlemen of worship
were committed to several houses
in Norwich as prisoners; two of
VOL. I.
O
the Lovels, another Downes, one
Beningfield, one Parry, and two
others not worth memory for bad-
ness of belief.
"This Rockwood is a papist of
kind [family] newly crept out of
his late wardship. Her majesty,
by some means I know not, was
lodged at his house, Euston, far
unmeet for her highness; never-
theless, the gentleman brought
into her presence by like device, her
majesty gave him ordinary thanks
for his bad house, and her fair
hand to kiss: but my lord cham-
berlain nobly and gravely under-
standing that Rockwood was ex-
communicated for papistry, called
him before him, demanded of him
how he durst presume to attempt
her royal presence, he, unfit to ac-
company any Christian person;
forthwith said he was fitter for a
pair of stocks, commanded him
out of the court, and yet to attend
her council's pleasure at Norwich
CHAP.
III.
ELIZ.
Catholics.
194
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
III.
ELIZ.
Catholics.
It will not surprise those who have observed
the effect of all persecution for matters of opinion
upon the human mind, that during this period the
Romish party continued such in numbers and in
zeal as to give the most lively alarm to Elizabeth's
administration. One cause of this was beyond
doubt the connivance of justices of the peace, a
great many of whom were secretly attached to
the same interest, though it was not easy to ex-
clude them from the commission, on account of
he was committed. And to dis-
syffer [sic] the gentleman to the
full, a piece of plate being missed
in the court, and searched for in
his hay-house, in the hay-rick, such
an image of our lady was there
found, as for greatness, for gay-
ness, and workmanship, I did never
see a match; and after a sort of
country dances ended, in her ma-
jesty's sight the idol was set be-
hind the people who avoided; she
rather seemed a beast raised upon
a sudden from hell by conjuring,
than the picture for whom it had
been so often and so long abused.
Her majesty commanded it to the
fire, which in her sight by the
country folks was quickly done to
her content, and unspeakable joy
of every one but some one or two
who had sucked of the idol's poi-
soned milk.
tr
Shortly after, a great sort of
good preachers, who had been long
commanded to silence for a little
niceness, were licensed, and again
commanded to preach; a greater
and more universal joy to the
countries, and the most of the
court, than the disgrace of the pa-
pists: and the gentleman of those
parts, being great and hot protest-
ants, almost before by policy dis-
credited and disgraced, were greatly
countenanced.
"I was so happy lately, amongst
other good graces, that her majesty
did tell me of sundry lewd papist
beasts that have resorted to Bux-
ton," &c. Lodge, ii. 188. 30 Aug.
1578.
This Topcliffe was the most im-
placable persecutor of his
age. In
a letter to lord Burleigh, Strype,
iv. 39., he urges him to imprison
all the principal recusants, and
especially women," the farther off
from their own family and friends
the better." The whole letter is
curious, as a specimen of the pre-
valent spirit, especially among the
puritans, whom Topcliffe favoured.
Instances of the ill-treatment ex-
perienced by respectable families
(the Fitzherberts and Foljambes),
and even aged ladies, without any
other provocation than their re
cusancy, may be found in Lodge,
ii. 372. 462.; ii, 22. But those
farthest removed from puritanism
partook sometimes of the same ty
rannous spirit. Aylmer, bishop of
London, renowned for his perse
cution of non-conformists, is said
by Rishton de Schismate, p. 319,
to have sent a young catholic lady
to be whipped in Bridewell for re-
fusing to conform. If the autho
rity is suspicious (and yet I do
not perceive that Rishton is a liar
like Sanders), the fact is rendered
hardly improbable by Aylmer's
harsh character.
"
I
FROM HENRY VII. TO GEORGE II.
195
The object of many
III.
ELIZ.
Catholics.
Refugees
in the Ne-
Their hos-
tility to the
ment.
therlands.
govern-
their wealth and respectability.*
The facility CHAP.
with which catholic rites can be performed in se-
cret, as before observed, was a still more important
circumstance. Nor did the voluntary exiles esta-
blished in Flanders remit their diligence in filling
the kingdom with emissaries. The
at least among them, it cannot for a moment be
doubted, from the era of the bull of Pius V., if
not earlier, was nothing less than to subvert the
queen's throne. They were closely united with
the court of Spain, which had passed from the
character of an ally and pretended friend, to that
of a cold and jealous neighbour, and at length of
an implacable adversary. Though no
war had
been declared between Elizabeth and Philip, nei-
ther party had scrupled to enter into leagues with
the disaffected subjects of the other. Such sworn
vassals of Rome and Spain as an Allen or a Persons,
were just objects of the English government's dis-
trust it is the extension of that jealousy to the
peaceful and loyal which we stigmatize as oppres-
sive, and even as impolitic. †
Strype's Life of Smith, 171.;
Annals, ii. 631. 636.; iii. 479.; and
Append. 170. The last reference
is to a list of magistrates sent up
by the bishops from each diocese,
with their characters. Several of
these, but the wives of many more,
were inclined to popery.
endeavouring to dethrone Eliza-
beth, by means of a Spanish force.
But it must, I think, be candidly
confessed by protestants, that they
had very little influence over the
superior catholic laity. And an ar-
gument may be drawn from hence
against those who conceive the po-
litical conduct of catholics to be
entirely swayed by their priests,
† Allen's Admonition to the
Nobility and People of England,
written in 1588, to promote the
when even in the sixteenth cen-
success of the Armada, is full of tury the efforts of these able men,
gross lies against the queen. See united with the head of their
an analysis of it in Lingard, note church, could produce so little ef-
B. B.
Mr. Butler fully acknow- fect. Strype owns that Allen's
ledges, what indeed the whole tenor
book gave offence to many catho-
of historical documents for this lics. ii. 560. Life of Whitgift,
reign confirms, that Allen and 505. One Wright of Douay an-
Persons were actively engaged in
swered a case of conscience, whe-
0
2
196
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
III.
ELIZ.
Catholics.
catholic
worship.
In concert with the directing powers of the Va-
tican and Escurial, the refugees redoubled their
exertions about the year 1580. Mary was now
Fresh laws wearing out her years in hopeless captivity; her
against the son, though they did not lose hope of him, had
received a strictly protestant education; while a
new generation had grown up in England, rather
inclined to diverge more widely from the ancient
religion than to suffer its restoration. Such were
they who formed the house of commons that met
in 1581, discontented with the severities used
against the puritans, but ready to go beyond any
measures that the court might propose to subdue
and extirpate popery. Here an act was passed,
which, after repeating the former provisions that
had made it high treason to reconcile any of her
majesty's subjects, or to be reconciled to the church
of Rome, imposes a penalty of £20 a month on all
persons absenting themselves from church, unless
they shall hear the English service at home: such
as could not pay the same within three months
after judgment were to be imprisoned until they
should conform. The queen, by a subsequent act,
had the power of seizing two thirds of the party's
land, and all his goods, for default of payment.*
ther catholics might take up arms
to assist the king of Spain against
the queen, in the negative. Id.
251. Annals, 565. This man,
though a known loyalist, and ac-
tually in the employment of the
ministry, was afterwards kept in a
disagreeable sort of confinement,
in the dean of Westminster's house,
of which he complains with much
reason. Birch's Memoirs, vol. ii.
p. 71. et alibi. Though it does not
fall within the province of a writer
on the constitution to enlarge on
Elizabeth's foreign policy, I must
observe, in consequence of the la-
boured attempts of Dr. Lingard to
represent it as perfectly Machia-
velian, and without any motive but
wanton malignity, that, with re-
spect to France and Spain, and
even Scotland, it was strictly de-
fensive, and justified by the law of
self-preservation; though, in some
of the means employed, she did not
always adhere more scrupulously
to good faith than her enemies.
* 23 Eliz. c. 1. and 29 Eliz. c. 6.
FROM HENRY VII. TO GEORGE II.
197
These grievous penalties on recusancy, as the wil-
ful absence of catholics from church came now to
be denominated, were doubtless founded on the
extreme difficulty of proving an actual celebration
of their own rites. But they established a per-
secution which fell not at all short in principle of
that for which the inquisition had become so odious.
Nor were the statutes merely designed for terror's
sake, to keep a check over the disaffected, as some
would pretend. They were executed in the most
sweeping and indiscriminating manner, unless per-
haps a few families of high rank might enjoy a
connivance.*
CHAP.
III
ELIZ.
Catholics.
of Campian
and others.
It had certainly been the desire of Elizabeth to Execution
abstain from capital punishments on the score of
religion. The first instance of a priest suffering
death by her statutes was in 1577, when one Mayne
was hanged at Launceston, without any charge
against him except his religion, and a gentleman
who had harboured him was sentenced to imprison-
ment for life. In the next year, if we may trust
the zealous catholic writers, Thomas Sherwood, a
boy of fourteen years, was executed for refusing to
deny the temporal power of the pope, when urged
by his judges. But in 1581 several seminary
* Strype's Whitgift, p. 117., and
other authorities passim.
† Camden, Lingard. Two others
suffered at Tyburn not long after-
wards for the same offence. Ho-
lingshed, 344. See in Butler's
Mem. of Catholics, vol. iii. p. 382.,
an affecting narrative, from Dodd's
Church History, of the sufferings
of Mr. Tregian and his family, the
gentleman whose chaplain Mayne
had been. I see no cause to doubt
its truth.
Ribadeneira, Continuatio San-
deri et Rishtoni de Schismate An-
glicano, p. 111. Philopater, p.
247. This circumstance of Sher-
wood's age is not mentioned by
Stowe; nor does Dr. Lingard ad-
vert to it. No woman was put to
death under the penal code, so far
as I remember; which of itself
distinguishes the persecution from
that of Mary, and of the house of
Austria in Spain and the Nether-
lands.
0 3
198
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
ELIZ.
Catholics.
CHAP. priests from Flanders having been arrested, whose
projects were supposed (perhaps not wholly with-
out foundation) to be very inconsistent with their
allegiance, it was unhappily deemed necessary to
hold out some more conspicuous examples of
rigour. Of those brought to trial the most emi-
nent was Campian, formerly a protestant, but long
known as the boast of Douay for his learning and
virtues.* This man, so justly respected, was
put to the rack, and revealed through torture the
names of some catholic gentlemen with whom he
had conversed. He appears to have been indicted
along with several other priests, not on the recent.
statutes, but on that of 25 Edw. III. for compassing
and imagining the queen's death. Nothing that I
have read affords the slightest proof of Campian's
concern in treasonable practices, though his con-
nections, and profession as a jesuit, render it by no
means unlikely. If we may confide in the published
trial, the prosecution was as unfairly conducted,
and supported by as slender evidence, as any per
haps which can be found in our books. But as
this account, wherein Campian's language is full
of a dignified eloquence, rather seems to have been
compiled by a partial hand, its faithfulness may
not be above suspicion. For the same reason I
hesitate to admit his alleged declarations at the
place of execution, where, as well as at his trial,
he is represented to have expressly acknowledged
Elizabeth, and to have prayed for her as his queen
de facto and de jure. For this was one of the
questions propounded to him before his trial,
* Strype's Parker, 375.
+ Strype's Annals, ii. 644.
‡ State Trials, i. 1050.; from the
Phoenix Britannicus.
FROM HENRY VII. TO GEORGE II.
199
which he refused to answer, in such a manner as
betrayed his way of thinking. Most of those in-
terrogated at the same time, on being pressed whe-
ther the queen was their lawful sovereign whom
they were bound to obey, notwithstanding any
sentence of deprivation that the pope might pro-
nounce, endeavoured, like Campian, to evade the
snare. A few, who unequivocally disclaimed the
deposing power of the Roman see, were pardoned.*
It is more honourable to Campian's memory that
we should reject these pretended declarations, than
imagine him to have made them at the expense of
his consistency and integrity. For the pope's
right to deprive kings of their crowns was in that
age the common creed of the jesuits, to whose
order Campian belonged; and the continent was
full of writings published by the English exiles,
by Sanders, Bristow, Persons, and Allen, against
Elizabeth's unlawful usurpation of the throne.
But many availed themselves of what was called
an explanation of the bull of Pius V., given by
his successor Gregory XIII.; namely, that the
* Id. 1078. Butler's English
Catholics, i. 184. 244. Lingard,
vii. 182.; whose remarks are just
and candid. A tract, of which I
have only seen an Italian transla-
tion, printed at Macerata in 1585,
entitled Historia del glorioso mar-
tirio di diciotto sacerdoti e un se-
colare, fatti morire in Inghilterra
per la confessione e difensione della
fede cattolica, by no means asserts
that he acknowledged Elizabeth to
be queen de jure, but rather that
he refused to give an opinion as to
her right. He prayed however for
her as a queen.
"Io ho pregato, e
prego per lei. All' ora il Signor
Howardo li domandò per qual re-
gina egli pregasse, se per Elisa-
betta? Al quale rispose, Si, per
Elisabetta." Mr. Butler quotes this
tract in English.
The trials and deaths of Cam-
pian and his associates are told in
the continuation of Holingshed,
with a savageness and bigotry which,
I am very sure, no scribe for the
Inquisition could have surpassed,
p.
456. But it is plain, even from
this account, that Campian owned
Elizabeth as queen. See particu-
larly p. 488., for the insulting man-
ner in which this writer describes
the pious fortitude of these but-
chered ecclesiastics.
CHAP.
III.
ELIZ.
Catholics.
0 4
200
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
III.
ELIZ.
Catholics.
bull should be considered as always in force
against Elizabeth and the heretics, but should
only be binding on catholics when due execu-
tion of it could be had.* This was designed to
satisfy the consciences of some papists in sub-
mitting to her government, and taking the oath.
of allegiance. But in thus granting a permission
to dissemble, in hope of better opportunity for
revolt, this interpretation was not likely to tran-
quillize her council, or conciliate them towards
the Romish party. The distinction, however, be-
tween a king by possession and one by right, was
neither heard for the first, nor for the last time,
in the reign of Elizabeth.
Strype, ii. 637. Butler's Eng.
Catholics, i. 196. The earl of
Southampton asked Mary's ambas-
sador, bishop Lesley, whether, after
the bull, he could in conscience
obey Elizabeth. Lesley answered,
that as long as she was the stronger
he ought to obey her. Murden,
p. 30.
The writer quoted before
by the name of Andreas Philopater
(Persons, translated by Cresswell,
according to Mr. Butler, vol. iii. p.
236.), after justifying at length
the resistance of the League to
Henry IV., adds the following re-
markable paragraph: "Hinc etiam
infert universa theologorum et ju-
risconsultorum schola, et est cer-
tum et de fide, quemcunque prin-
cipem christianum, si a religione
catholicâ manifestè deflexerit, et
alios avocare voluerit, excidere sta-
tim omni potestate et dignitate, ex
ipsâ vi juris tum divini tum hu-
mani, hocque ante omnem senten-
tiam supremi pastoris ac judicis
contra ipsum prolatam; et sub-
ditos quoscunque liberos esse ab
omni juramenti obligatione, quod
ei de obedientiâ tanquam principi
legitimo præstitissent, posseque et
It is the lot of every
debere (si vires habeant) istius-
modi hominem, tanquam aposta-
tam, hæreticum, ac Christi domini
desertorem, et inimicum reipub-
licæ suæ, hostemque ex hominum
christianorum dominatu ejicere, ne
alios inficiat, vel suo exemplo aut
imperio a fide avertat," p. 149. He
quotes four authorities for this in
the margin, from the works of di-
vines or canonists.
This broad duty, however, of ex-
pelling a heretic sovereign, he qua-
lifies by two conditions; first, that
the subjects should have the power,
CC
ut vires habeant idoneas ad hoc
subditi;" secondly, that the heresy
be undeniable. There can, in
truth, be no doubt that the alle-
giance professed to the queen by
the seminary priests and jesuits,
and, as far as their influence ex-
tended, by all catholics, was with
this reservation-till they should
be strong enough to throw it off.
See the same tract, p. 229. But
after all, when we come fairly to
consider it, is not this the case with
every disaffected party in every
state? a good reason for watchful-
ness, but none for extermination.
FROM HENRY VII, TO GEORGE II.
201
III.
ELIZ.
Catholics.
government that is not founded on the popular CHAP.
opinion of legitimacy, to receive only a precarious
allegiance. Subject to this reservation, which was
pretty generally known, it does not appear that the
priests or other Roman catholics, examined at va-
rious times during this reign, are more chargeable
with insincerity or dissimulation than accused per-
sons generally are.
The public executions, numerous as they were,
scarcely form the most odious part of this perse-
cution. The common law of England has always
abhorred the accursed mysteries of a prison-house;
and neither admits of torture to extort confession,
nor of any penal infliction not warranted by a ju-
dicial sentence. But this law, though still sacred
in the courts of justice, was set aside by the privy
council under the Tudor line. The rack seldom
stood idle in the Tower for all the latter part of
Elizabeth's reign.* To those who remember the
annals of their country, that dark and gloomy pile
affords associations not quite so numerous and
recent as the Bastile, yet enough to excite our
hatred and horror. But standing as it does in
such striking contrast to the fresh and flourishing
constructions of modern wealth, the proofs and
the rewards of civil and religious liberty, it seems
* Rishton and Ribadeneira. See
in Lingard, note U., a specification
of the different kinds of torture
used in this reign.
The government did not pretend
to deny the employment of torture.
But the puritans, eager as they
were to exert the utmost severity
of the law against the professors
of the old religion, had more re-
gard to civil liberty than to ap-
prove such a violation of it. Beal,
clerk of the council, wrote, about
1585, a vehement book against the
ecclesiastical system, from which
Whitgift picks out various enor-
mous propositions, as he thinks
them; one of which is, "that he
condemns, without exception of any
cause, racking of grievous offenders,
as being cruel, barbarous, contrary
to law, and unto the liberty of
English subjects." Strype's Whit-
gift, p. 212.
202
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
CHAP. like a captive tyrant, reserved to grace the triumph
of a victorious republic, and should teach us to
reflect in thankfulness, how highly we have been
elevated in virtue and happiness above our fore-
fathers.
ELIZ.
Catholics.
Such excessive severities under the pretext of
treason, but sustained by very little evidence of
any other offence than the exercise of the catholic
ministry, excited indignation throughout a great
part of Europe. The queen was held forth in
pamphlets, dispersed every where from Rome and
Douay, not only as a usurper and heretic, but a
tyrant more ferocious than any heathen perse-
cutor, for inadequate parallels to whom they ran-
sacked all former history.* These exaggerations,
* The persecution of catholics
in England was made use of as
an argument against permitting
Henry IV. to reign in France, as
appears by the title of a tract pub-
lished in 1586: Advertissement des
catholiques, Anglois aux François
catholiques, du danger où ils sont
de perdre leur religion et d'expéri-
menter, comme en Angleterre, la
cruauté des ministres, s'ils reçoivent
à la couronne un roy qui soit héré-
tique. It is in the British Museum.
One of the attacks on Elizabeth
deserves some notice, as it has
lately been revived. In the sta-
tute 13 Eliz. an expression is used,
"her majesty, and the natural is-
sue of her body," instead of the
more common legal phrase, "law-
ful issue." This probably was
adopted by the queen out of
prudery, as if the usual term im-
plied the possibility of her having
unlawful issue. But the papistical
libellers put the most absurd in-
terpretation on the word natu-
ral," as if it was meant to secure
the succession for some imaginary
bastards by Leicester. And Dr.
CC
Lingard is not ashamed to insi-
nuate the same suspicion, vol. viii.
p. 81. note. Surely what was con-
genial to the dark malignity of
Persons, and the blind frenzy of
Whitaker, does not become the
good sense, I cannot say the can-
dour, of this writer.
It is true that some, not pre-
judiced against Elizabeth, have
doubted whether " Cupid's fiery
dart" was as effectually "quenched
in the chaste beams of the watery
moon," as her poet intimates. This
must leave to the reader's judg-
ment.
She certainly went strange
lengths of indelicacy. But, if she
might sacrifice herself to the queen
of Cnidus and Paphos, she was
unmercifully severe to those about
her, of both sexes, who showed
any inclination to that worship,
though under the escort of Hy-
men. Miss Aikin, in her well-
written and interesting Memoirs
of the Court of Elizabeth, has
collected several instances from
Harrington and Birch. It is by
no means true, as Dr. Lingard
asserts, on the authority of one
FROM HENRY VII. TO GEORGE II.
203
III.
ELIZ.
Catholics.
the
queen,
by Bur-
coming from the very precincts of the Inquisition, CHAP.
required the unblushing forehead of bigotry; but
the charge of cruelty stood on too many facts to be
passed over, and it was thought expedient to repel
it by two remarkable pamphlets, both ascribed to
the pen of lord Burleigh. One of these, entitled Defence of
"The Execution of Justice in England for Main-
tenance of public and private Peace," appears to leigh.
have been published in 1583. It contains an
elaborate justification of the late prosecutions for
treason, as no way connected with religious tenets,
but grounded on the ancient laws for protection
of the queen's person and government from con-
spiracy. It is alleged that a vast number of ca-
tholics, whether of the laity or priesthood, among
whom the deprived bishops are particularly enu-
merated, had lived unmolested on the score of their
faith, because they paid due temporal allegiance
to their sovereign. Nor were any indicted for
treason, but such as obstinately maintained the
pope's bull depriving the queen of her crown.
And even of these offenders, as many as after con-
demnation would renounce their traitorous prin-
ciples, had been permitted to live; such was her
majesty's unwillingness, it is asserted, to have any
blood spilled without this just and urgent cause
proceeding from themselves. But that any matter
of opinion, not proved to have ripened into an
overt act, and extorted only, or rather conjec-
tured, through a compulsive inquiry, could sustain
in law or justice a conviction for high treason, is
Faunt, an austere puritan, that
her court was dissolute, compara-
tively at least with the general
character of courts; though nei-
ther was it so virtuous as the en-
thusiasts of the Elizabethan period
suppose.
204
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
III.
ELIZ.
Catholics.
what the author of this pamphlet has not rendered
manifest.*
A second and much shorter paper bears for
title, "A Declaration of the favourable dealing of
her Majesty's Commissioners, appointed for the
examination of certain traitors, and of tortures
unjustly reported to be done upon them for matter
of religion." Its scope was to palliate the imputa-
tion of excessive cruelty with which Europe was
then resounding. Those who revere the memory
of lord Burleigh must blush for this pitiful apo-
logy. "It is affirmed for truth," he says, "that
the forms of torture in their severity or rigour of
execution have not been such and in such manner
performed, as the slanderers and seditious libellers.
have published. And that even the principal of
fender, Campian himself, who was sent and came.
from Rome, and continued here in sundry corners
of the realm, having secretly wandered in the
greater part of the shires of England in a disguised
suit, to be intent to make special preparation of
treasons, was never so racked but that he was per-
fectly able to walk and to write, and did presently
write and subscribe all his confessions. The queen's
servants, the warders, whose office and act it is
to handle the rack, were ever by those that at-
tended the examinations specially charged to use
it in so charitable a manner as such a thing might
be. None of those who were at any time put to
* Somers Tracts, i. 189. Strype,
iii. 205. 265. 480. Strype says that
he had seen the manuscript of this
tract in lord Burleigh's hand-writ-
ing. It was answered by cardinal
Allen, to whom a reply was made
by poor Stubbe, after he had lost
his right hand. An Italian trans-
lation of the Execution of Justice
was published at London in 1584.
This shows how anxious the queen
was to repel the charges of cruelty,
which she must have felt to be not
wholly unfounded.
FROM HENRY VII. TO GEORGE II.
205
the rack," he proceeds to assert, "were asked,
during their torture, any question as to points of
doctrine; but merely concerning their plots and
conspiracies, and the persons with whom they had
had dealings, and what was their own opinion as to
the pope's right to deprive the queen of her crown.
Nor was any one so racked until it was rendered
evidently probable by former detections or con-
fessions that he was guilty; nor was the torture
ever employed to wring out confessions at ran-
dom; nor unless the party had first refused to
declare the truth at the queen's commandment.”
Such miserable excuses serve only to mingle con-
tempt with our detestation.* But it is due to
Elizabeth to observe, that she ordered the torture
to be disused; and upon a subsequent occasion,
the quartering of some concerned in Babington's
conspiracy having been executed with unusual
cruelty, gave directions that the rest should not
be taken down from the gallows until they were
dead. t
I should be reluctant, but for the consent of
several authorities, to ascribe this little tract to
lord Burleigh, for his honour's sake. But we may
quote with more satisfaction a memorial addressed
by him to the queen about the same year, 1583,
full not only of sagacious, but just and tolerant
"Considering," he says, "that the urging
of the oath of supremacy must needs, in some
degree, beget despair, since in the taking of it,
he [the papist] must either think he doth an un-
lawful act, as without the special grace of God
advice.
* Somers Tracts, p. 209.
+ State Trials, i. 1160.
CHAP.
III.
ELIZ.
Catholics.
206
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
CHAP. he cannot think otherwise, or else, by refusing it,
must become a traitor, which before some hurt
ELIZ. done seemeth hard; I humbly submit this to
Catholics.
your
excellent consideration, whether, with as much
security of your majesty's person and state, and
more satisfaction for them, it were not better to
leave the oath to this sense, that whosoever would
not bear arms against all foreign princes, and
namely the pope, that should any way invade your
majesty's dominions, he should be a traitor. For
hereof this commodity will ensue, that those pa-
pists, as I think most papists would, that should
take this oath, would be divided from the great
mutual confidence which is now between the pope
and them, by reason of their afflictions for him;
and such priests as would refuse that oath then,
no tongue could say for shame that they suffer for
religion, if they did suffer.
"But here it may be objected, they would dis-
semble and equivocate with this oath, and that the
pope would dispense with them in that case. Even
so may they with the present oath both dissemble
and equivocate, and also have the pope's dispens-
ation for the present oath, as well as for the other.
But this is certain, that whomsoever the conscience,
or fear of breaking an oath, doth bind, him would
that oath bind. And that they make conscience
of an oath, the trouble, losses, and disgraces that
they suffer for refusing the same do sufficiently
testify; and you know that the perjury of either
oath is equal."
These sentiments are not such as bigoted theo-
logians were then, or have been since, accustomed
to entertain. "I account," he says afterwards,
•
FROM HENRY VII. TO GEORGE II.
207
III.
ELIZ.
Catholics.
"that putting to death does no ways lessen them; CHAP.
since we find by experience, that it worketh
no such effect, but, like hydra's heads, upon
cutting off one, seven grow up, persecution being
accounted as the badge of the church: and there-
fore they should never have the honour to take
any pretence of martyrdom in England, where the
fulness of blood and greatness of heart is such that
they will even for shameful things go bravely for
death; much more, when they think themselves to
climb heaven, and this vice of obstinacy seems to
the common people a divine constancy; so that
for my part I wish no lessening of their number,
but by preaching and by education of the younger
under schoolmasters." And hence the means he
recommends for keeping down popery, after the
encouragement of diligent preachers and school-
"the taking order that, from the
highest counsellor to the lowest constable, none
shall have any charge or office but such as will
really pray and communicate in their congregation
according to the doctrine received generally into
this realm;" and next, the protection of tenants
against their popish landlords, "that they be not
put out of their living, for embracing the esta-
blished religion."-"This," he says, "would greatly
bind the commons' hearts unto you, in whom in-
deed consisteth the power and strength of your
realm; and it will make them less, or nothing at
all, depend on their landlords. And, although
masters, are,
there
may hereby grow some wrong, which the
tenants upon that confidence may offer to their
landlords, yet those wrongs are very easily, even
with one wink of your majesty's, redressed; and
208
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
III.
ELIZ.
Catholics.
Increased
the govern-
ment.
are nothing comparable to the danger of having
many thousands depending on the adverse party."
The strictness used with recusants, which much
increased from 1579 or 1580, had the usual con-
severity of sequence of persecution, that of multiplying hy-
pocrites. For, in fact, if men will once bring
themselves to comply, to take all oaths, to practise
all conformity, to oppose simulation and dissimu-
lation to arbitrary inquiries, it is hardly possible
that any government should not be baffled. Fraud
becomes an over-match for power. The real dan-
ger meanwhile, the internal disaffection, remains
as before, or is aggravated. The laws enacted
against popery were precisely calculated to pro-
duce this result. Many indeed, especially of the
female sex, whose religion, lying commonly more
in sentiment than reason, is less ductile to the
sophisms of worldly wisdom, stood out and endured
the penalties. But the oath of supremacy was
not refused; the worship of the church was fre-
quented by multitudes who secretly repined for a
change; and the council, whose fear of open en-
mity had prompted their first severities, were led
on by the fear of dissembled resentment to devise
yet further measures of the same kind. Hence, in
1584, a law was enacted, enjoining all jesuits, se-
minary priests, and other priests, whether ordained
within or without the kingdom, to depart from it
within forty days, on pain of being adjudged trai-
tors. The penalty of fine and imprisonment at the
queen's pleasure was inflicted on such as, know-
ing any priest to be within the realm, should not
* Somers Tracts, 164.
FROM HENRY VII. TO GEORGE II.
209
1
discover it to a magistrate. This seemed to fill
up the measure of persecution, and to render the
longer preservation of this obnoxious religion
absolutely impracticable. Some of its adherents
presented a petition against this bill, praying that
they might not be suspected of disloyalty on ac-
count of refraining from the public worship, which
they did to avoid sin; and that their priests might
not be banished from the kingdom.* And they
all very justly complained of this determined op-
pression. The queen, without any fault of theirs,
they alledged, had been alienated by the artifices
of Leicester and Walsingham. Snares were laid
to involve them unawares in the guilt of treason;
their steps were watched by spies; and it was be-
come intolerable to continue in England. Cam-
den indeed asserts that counterfeit letters were
privately sent in the name of the queen of Scots
or of the exiles, and left in papists' houses. † A
general inquisition seems to have been made about
this time; but whether it was founded on sufficient
grounds of previous suspicion, we cannot abso-
lutely determine. The earl of Northumberland,
* Strype, ii. 298. Shelley,
though notoriously loyal and fre-
quently employed by Burleigh,
was taken up and examined be-
fore the council for preparing this
petition.
+ P. 591. Proofs of the text
are too numerous for quotation,
and occur continually to a reader
of Strype's 2d and 3d volumes. In
vol. 3. Append. 158. we have a
letter to the queen from one An-
tony Tyrrel, a priest, who seems to
have acted as an informer, where-
in he declares all his accusations
of catholics to be false. This man
had formerly professed himself a
VOL. I.
P
protestant, and returned after-
wards to the same religion; so that
his veracity may be dubious. So,
a little further on, we find in the
same collection, p. 250. a letter
from one Bennet, a priest, to lord
Arundel, lamenting the false ac-
cusations he had given in against
him, and craving pardon. It is
always possible, as I have just
hinted, that these retractations may
be more false than the charges.
But ministers who employ spies,
without the utmost distrust of
their information, are sure to be-
come their dupes, and end by the
most violent injustice and tyranny.
CHAP.
III.
ELIZ.
Catholics.
210
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
ELIZ.
Catholics.
CHAP. brother of him who had been executed for the re-
bellion of 1570, and the earl of Arundel, son of
the unfortunate duke of Norfolk, were committed
to the Tower, where the former put an end to his
own life (for we cannot charge the government
with an unproved murder); and the second, after
being condemned for a traitorous correspondence
with the queen's enemies, died in that custody.
But whether or no some conspiracies (I mean more
active than usual, for there was one perpetual
conspiracy of Rome and Spain during most of the
queen's reign,) had preceded these severe and un-
fair methods by which her ministry counteracted
them, it was not long before schemes, more formi
dable than ever, were put in action against her
life. As the whole body of catholics was irritated
and alarmed by the laws of proscription against
their clergy, and by the heavy penalties on recu-
sancy, which, as they alledged, showed a manifest
purpose to reduce them to poverty; so some des
perate men saw no surer means to rescue their
cause than the queen's assassination. One Somer-
ville, half a lunatic, and Parry, a man who, long
employed as a spy upon the papists, had learned
to serve with sincerity those he was sent to betray,
were the first who suffered death for unconnected
plots against Elizabeth's life. † More deep-laid
* The rich catholics compounded
for their recusancy by annual pay-
ments, which were of some consi-
deration in the queen's rather
scanty revenue. A list of such
recusants, and of the annual fines
paid by them in 1594, is pub-
lished in Strype, iv. 197.; but is
plainly very imperfect. The total
was £3323 1s. 10d. A few paid
as much as £140 per annum. The
average seems however to have
been about £20. Vol.iii. Append.
153.; see also p. 258. Probably
these compositions, though oppres-
sive, were not quite so serious as
the catholics pretended.
+ Parry seems to have been pri-
vately reconciled to the church of
Rome about 1580; after which he
FROM HENRY VII. TO GEORGE II.
211
machinations were carried on by several catholic
laymen at home and abroad, among whom a bro-
ther of lord Paget was the most prominent.*
21
continued to correspond with Ce-
cil, but generally recommending
some catholics to mercy. He says,
in one letter, that a book printed
at Rome, De Persecutione An-
glicanà, had raised a barbarous
opinion of our cruelty; and that
could wish that in those cases
it might please her majesty to par-
don the dismembering and draw-
ing. Strype, ii. 260. He sat af
terwards in the parliament of 1584,
taking of course the oath of su-
premacy, where he alone opposed
the act against catholic priests.
Parl. Hist. 822. Whether he were
actually guilty of plotting against
the queen's life (for this part of
his treason he denied at the scaf
fold) I cannot say; but his speech
there made contained some very
good advice to her. The ministry
garbled this before its publication
in Holingshed and other books;
but Strype has preserved a genuine
copy; vol. iii. Append. 102. It is
plain that Parry died a catholic;
though some late writers of that
communion have tried to disclaim
him. Dr. Lingard, it may be
added, admits that there were
many schemes to assassinate Eliza-
beth, though he will not confess
any particular instance.
"There
exist," he says, "in the archives
at Simancas several notices of such
offers." P. 384.
* It might be inferred from
some authorities that the catholics
had become in a great degree dis-
affected to the queen about 1584,
consequence of the extreme ri-
gour practised against them. In
a memoir of one Crichton, a Scots
jesuit, intended to show the easi-
ness of invading England, he says,
that "all the catholics without
exception favour the enterprise,
first, for the sake of the restitution
of the catholic faith; secondly, for
the right and interest which the
queen of Scots has to the kingdom,
and to deliver her out of prison;
thirdly, for the great trouble and
misery they endure more and more,
being kept out of all employments,
and dishonoured in their own
countries, and treated with great
injustice and partiality when they
have need to recur to law; and
also for the execution of the laws
touching the confiscation of their
goods in such sort as in so short
time would reduce the catholics to
extreme poverty." Strype, iii. 415.
And in the report of the earl of
Northumberland's treasons, laid
before the star-chamber, we read
that " Throckmorton said, that the
bottom of this enterprise, which
was not to be known to many,
was, that if a toleration of religion
might not be obtained without al-
teration of the government, that
then the government should be
altered, and the queen removed."
Somers Tracts, vol. i. p. 206.
Further proofs that the rigour
used towards the catholics was the
great means of promoting Philip's
designs occur in Birch's Memoirs
of Elizabeth, i. 82. et alibi.
We have also a letter from Per-
sons in England to Allen in 1586,
giving a good account of the zeal
of the catholics, though a very bad
one of their condition through se-
vere imprisonment and other ill-
treatment. Strype, iii. 412. and
Append. 151. Rishton and Riba-
deneira bear testimony that the
persecution had rendered the laity
more zealous and sincere, de Schis-
mate, l. ii. 320., and 1. iv. 53.
Yet to all this we may oppose
their good conduct in the year of
the Spanish Armada, and in gene-
ral during the queen's reign; which
CHAP.
III.
ELIZ.
Catholics.
Plot in
favour of
Mary.
P 2
212
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
III.
ELIZ.
Catholics.
Mary.
These had in view two objects, the deliverance of
Mary, and the death of her enemy. Some per-
haps who were engaged in the former project did
not give countenance to the latter. But few, if
any, ministers have been better served by their
spies than Cecil and Walsingham. It is surprising
to see how every letter seems to have been in.
tercepted, every thread of these conspiracies un-
ravelled, every secret revealed to these wise cour-
sellors of the queen. They saw that while one
lived, whom so many deemed the presumptive
heir, and from whose succession they anticipated,
at least in possibility, an entire reversal of all that
had been wrought for thirty years, the queen was
as a mark for the pistol or dagger of every zealot.
And fortunate, no question, they thought it, that
the detection of Babington's conspiracy enabled
them with truth, or a semblance of truth, to im
pute a participation in that crime to the most dan-
gerous enemy whom, for their mistress, their reli-
gion, or themselves, they had to apprehend.
Mary had now consumed the best years of her
life in custody; and, though still the perpetual
object of the queen's vigilance, had perhaps gra-
dually become somewhat less formidable to the
protestant interest. Whether she would have
ascended the throne, if Elizabeth had died during
the latter years of her imprisonment, must appear
proves that the loyalty of the main
body was more firm than their
leaders wished, or their enemies
believed. However, if any of my
readers should incline to suspect
that there was more disposition
among this part of the community
to throw off their allegiance to the
queen altogether than I have ad-
mitted, he may possibly be in the
right; and I shall not impugn his
opinion, provided he concurs in
attributing the whole, or nearly
the whole, of this disaffection to
her unjust aggressions on the li
berty of conscience.
FROM HENRY VII. TO GEORGE II.
213
very doubtful, when we consider the increasing
strength of the puritans, the antipathy of the
nation to Spain, the prevailing opinion of her con-
sent to Darnley's murder, and the obvious expe-
dient of treating her son, now advancing to man-
hood, as the representative of her claim. The
new projects imputed to her friends even against
the queen's life, exasperated the hatred of the pro-
testants against Mary. An association was formed
in 1581, the members of which bound themselves
by oath to withstand and pursue, as well by force.
of arms as by all other means of revenge, all man-
ner of persons, of whatsoever state they shall be
and their abettors, that shall attempt any act, or
counsel, or consent to any thing that shall tend to
the harm of her majesty's royal person; and never
to desist from all manner of forcible pursuit against
such persons, to the utter extermination of them,
their counsellors, aiders, and abettors. And if
any such wicked attempt against her most royal
person shall be taken in hand or procured, whereby
any that have, may or shall pretend title to come
to this crown by the untimely death of her majesty
so wickedly procured, (which God of his mercy
forbid!) that the same may be avenged, we do not
only bind ourselves both jointly and severally never
to allow, accept or favour any such pretended suc-
cessor, by whom or for whom any such detestable
act shall be attempted or committed, as unworthy
of all government in any christian realm or civil
state, but do also further vow and promise, as we
are most bound, and that in the presence of the
eternal and everlasting God, to prosecute such per-
son or persons to death, with our joint and parti-
CHAP.
III.
ELIZ.
Catholics.
P 3
214
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
CHAP. cular forces, and to act the utmost revenge upon
them, that by any means we or any of us can devise
and do, or cause to be devised and done for their
utter overthrow and extirpation."
ELIZ.
Catholics.
""*
The pledge given by this voluntary association
received the sanction of parliament in an act "for
the security of the queen's person, and continuance
of the realm in peace.' This statute enacts that,
if
any invasion or rebellion should be made by or
for any person pretending title to the crown after
her majesty's decease, or if any thing be confessed
or imagined tending to the hurt of her person with
the privity of any such person, a number of peers,
privy counsellors, and judges, to be commissioned
by the queen, should examine and give judgment
on such offences, and all circumstances relating
thereto; after which judgment all persons against
whom it should be published should be disabled
for ever to make any such claim. † I omit some
further provisions to the same effect, for the sake
of brevity. But we may remark that this statute
differs from the associators' engagement, in omit-
ting the outrageous threat of pursuing to death
any person, whether privy or not to the design, on
whose behalf an attempt against the queen's life
should be made. The main intention of the statute
was to procure, in the event of any rebellious
movements, what the queen's counsellors had long
ardently desired to obtain from her, an absolute
exclusion of Mary from the succession. But, if the
scheme of assassination, devised by some of her
desperate partisans, had taken effect, however
* State Trials, i. 1162.
+ 27 Eliz. c. i
:
FROM HENRY VII. TO GEORGE II.
215
III.
ELIZ..
Catholics.
questionable might be her concern in it, I have CHAP.
little doubt that the rage of the nation would, with
or without some process of law, have instantly
avenged it in her blood. This was, in the language
of parliament, their great cause; an expression
which, though it may have an ultimate reference
to the general interest of religion, is never applied,
so far as I remember, but to the punishment of
Mary, which they had demanded in 1572, and now
clamoured for in 1586. The addresses of both
houses to the queen, to carry the sentence passed
by the commissioners into effect, her evasive an-
swers and feigned reluctance, as well as the strange
scenes of hypocrisy which she acted afterwards,
are well known matters of history, upon which it is
unnecessary to dwell. No one will be found to
excuse the hollow affectation of Elizabeth; but the Execution
famous sentence that brought Mary to the scaffold, of Mary.
though it has certainly left in popular opinion a
darker stain on the queen's memory than any other
transaction of her life, if not capable of complete
vindication, has at least encountered a dispropor-
tioned censure.
It is of course essential to any kind of apology Remarks
for Elizabeth in this matter, that Mary should have upon it.
been assenting to a conspiracy against her life. For
it could be no real crime to endeavour at her own
deliverance; nor, under the circumstances of so
long and so unjust a detention, would even a con-
spiracy against the aggressor's power afford a moral
justification for her death. But though the pro-
ceedings against her are by no means exempt from
the shameful breach of legal rules, almost universal
in trials for high treason during that reign (the
P 4
216
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
ELIZ.
Catholics.
CHAP. witnesses not having been examined in open court);
yet the depositions of her two secretaries, joined to
the confessions of Babington and other conspirators,
form a body of evidence, not indeed irresistibly
convincing, but far stronger than we find in many
instances where condemnation has ensued. And
Hume has alledged sufficient reasons for believing
its truth, derived from the great probability of her
concurring in any scheme against her oppressor,
from the certainty of her long correspondence with
the conspirators (who, I may add, had not made
any difficulty of hinting to her their designs against
the queen's life *), and from the deep guilt that the
falsehood of the charge must inevitably attach to
sir Francis Walsingham. † Those at least, who
cannot acquit the queen of Scots of her husband's
* In Murden's State Papers we
have abundant evidence of Mary's
acquaintance with the plots going
forward in 1585 and 1586 against
Elizabeth's government, if not
with those for her assassination.
But Thomas Morgan, one of the
most active conspirators, writes to
her, 9th July, 1586: "There be
some good members that attend
opportunity to do the queen of
England a piece of service, which
I trust will quiet many things, if
it shall please God to lay his as-
sistance to the cause, for the which
I pray daily," p. 530. In her an-
swer to this letter, she does not
advert to this hint, but mentions
Babington as in correspondence
with her. At her trial she denied
all communication with him.
+ It may probably be answered
to this, that if the letter signed by
Walsingham as well as Davison
to sir Amias Paulet, urging him
"to find out some way to shorten
the life of the Scots queen," be
proper to
genuine, which cannot perhaps be
justly questioned (though it is so
in the Biog. Brit. art. WALSING-
HAM, note O.), it will be diffi-
cult to give him credit for any
scrupulousness with respect to
Mary. But, without entirely jus-
tifying this letter, it
remark, what the Marian party
choose to overlook, that it was
written after the sentence, during
the queen's odious scenes of gri-
mace, when some might argue,
though erroneously, that, a legal
trial having passed, the formal
method of putting the prisoner to
death might, in so peculiar a case,
be dispensed with. This was Eliza-
beth's own wish, in order to save
her reputation, and enable her to
throw the obloquy on her servants;
which by Paulet's prudence and
honour in refusing to obey her by
privately murdering his prisoner,
she was reduced to do in a very
bungling and scandalous manner.
FROM HENRY VII. TO GEORGE II.
217
III.
ELIZ.
Catholics.
murder, will hardly imagine that she would scruple CHAP.
to concur in a crime so much more capable of ex-
tenuation, and so much more essential to her inte-
rests. But as the proofs are not perhaps complete,
we must hypothetically assume her guilt, in order
to set this famous problem in the casuistry of pub-
lic law upon its proper footing.
It has been said so often, that few perhaps wait
to reflect whether it has been said with reason,
that Mary, as an independent sovereign, was not
amenable to any English jurisdiction. This, how-
ever, does not appear unquestionable. By one of
those principles of law, which may be called na-
tural, as forming the basis of a just and rational
jurisprudence, every independent government is
supreme within its own territory. Strangers, vo-
luntarily resident within a state, owe a temporary
allegiance to its sovereign, and are amenable to
the jurisdiction of his tribunals; and this principle,
which is perfectly conformable to natural law, has
been extended by positive usage even to those
who are detained in it by force. Instances have
occurred very recently in England, when prisoners
of war have suffered death for criminal offences;
and if some have doubted the propriety of carrying
such sentences into effect, where a penalty of un-
usual severity has been inflicted by our municipal
law, few, I believe, would dispute the fitness of
punishing a prisoner of war for wilful murder, in
such a manner as the general practice of civil so-
cieties and the prevailing sentiments of mankind
agree to point out. It is certainly true than an
exception to this rule, incorporated with the po-
sitive law of nations, and established, no doubt,
218
THE CONSTITUTIONAL HISTORY OF ENGLAND
44
III.
ELIZ.
Catholics.
CHAP. before the age of Elizabeth, has rendered the am-
bassadors of sovereign princes exempt, in all ordi-
nary cases at least, from criminal process. Whether,
however, an ambassador may not be brought to
punishment for such a flagrant abuse of the con
fidence which is implied by receiving him, as a
conspiracy against the life itself of the prince at
whose court he resides, has been doubted by those
writers who are most inclined to respect the pri
vileges with which courtesy and convenience have
invested him.* A sovereign, during a temporary
residence in the territories of another, must, of
course possess as extensive an immunity as his
representative. But that he might, in such cir
cumstances, frame plots for the prince's assassina-
tion with impunity, seems to take for granted some
principle that I do not apprehend.
But whatever be the privilege of inviolability
attached to sovereigns, it must, on every rational
ground, be confined to those who enjoy and ex-
ercise dominion in some independent territory.
An abdicated or dethroned monarch may preserve
his title by the courtesy of other states, but cannot
rank with sovereigns in the tribunals where public
* Questions were put to civilians
by the queen's order in 1570, con-
cerning the extent of Lesley, bishop
of Ross's privilege, as Mary's am-
bassador. Murden Papers, p. 18.
Somers Tracts, i. 186. They an-
swered, first, that an ambassador
that raises rebellion against the
prince to whom he is sent, by the
law of nations, and the civil law
of the Romans, has forfeited the
privileges of an ambassador, and
is liable to punishment: secondly,
that if a prince be lawfully deposed
from his public authority, and an-
other substituted in his stead, the
agent of such a prince cannot chal-
lenge the privileges of an ambas-
sador; since none but absolute
princes, and such as enjoy a royal
prerogative, can constitute ambas-
sadors. These questions are so far
curious, that they show the jus
gentium to have been already
reckoned a matter of science, in
which a particular class of lawyers
was conversant.
FROM HENRY VII. TO GEORGE II.
219
ཇ༐
law is administered.
I should be rather surprised
CHAP.
III.
Catholics.
to hear any one assert that the parliament of Paris
was incompetent to try Christina for the murder of ELIZ.
Monaldeschi. And, though we must admit that
Mary's resignation of her crown was compulsory,
and retracted on the first occasion; yet after a
twenty years' loss of possession, when not one of
her former subjects avowed allegiance to her, when
the king of Scotland had been so long acknow-
ledged by England and by all Europe, is it possible
to consider her as more than a titular queen,
divested of every substantial right to which a sove-
reign tribunal could have regard? She was styled
accordingly, in the indictment, "Mary, daughter
and heir of James the Fifth, late king of Scots,
otherwise called Mary queen of Scots, dowager of
France." We read even that some lawyers would
have had her tried by a jury of the county of Staf-
ford, rather than the special commission; which
Elizabeth noticed as a strange indignity. The com-
mission, however, was perfectly legal under the re-
cent statute.*
But, while we can hardly pronounce Mary's exe-
cution to have been so wholly iniquitous and un-
warrantable as it has been represented, it may be
admitted that a more generous nature than that of
Elizabeth would not have exacted the law's full
penalty. The queen of Scots' detention in England
was in violation of all natural, public, and municipal
law; and if reasons of state policy or precedents
from the custom of princes are allowed to extenuate
this injustice, it is to be asked whether such reasons
* Strype, 360. 362. Civilians
were consulted about the legality
of trying Mary. Idem, Append.
138.
220
THE CONSTITUTIONAL HISTORY OF ENGLAND
.III.
ELIZ.
Catholics.
CHAP. and such precedents might not palliate the crime
of assassination imputed to her. Some might per-
haps alledge, as was so frequently urged at the
time, that if her life could be taken with justice,
it could not be spared in prudence; and that Eliza-
beth's higher duty to preserve her people from the
risks of civil commotion must silence every feeling
that could plead for mercy. Of this necessity dif-
ferent judgments may perhaps be formed; it is
evident, that Mary's death extinguished the best
hope of popery in England: but the relative force
of the two religions was greatly changed since
Norfolk's conspiracy; and it appears to me that an
act of parliament explicitly cutting her off from
the crown, and at the same time entailing it on
her son, would have afforded a very reasonable
prospect of securing the succession against all
serious disturbance. But this neither suited the
inclination of Elizabeth, nor of some among those
who surrounded her.
Continued
persecution
catholics.
As the catholics endured without any open
of Roman murmuring the execution of her on whom their
fond hopes had so long rested, so for the remainder
of the queen's reign they by no means appear,
when considered as a body, to have furnished any
specious pretexts for severity. In that memorable
year, when the dark cloud gathered around our
coasts, when Europe stood by in fearful suspense
to behold what should be the result of that great
cast in the game of human politics, what the craft
of Rome, the power of Philip, the genius of Far-
nese, could achieve against the island-queen with
her Drakes and Cecils, -in that agony of the pro-
testant faith and English name, they stood the
FROM HENRY VII. TO GEORGE II.
221
trial of their spirits without swerving from their
allegiance. It was then that the catholics in every
county repaired to the standard of the lord-lieu-
tenant, imploring that they might not be suspected
of bartering the national independence for their
religion itself. It was then that the venerable
lord Montague brought a troop of horse to the
queen at Tilbury, commanded by himself, his son
and grandson.* It would have been a sign of
gratitude if the laws depriving them of the free
exercise of their religion had been, if not repealed,
yet suffered to sleep, after these proofs of loyalty.
But the execution of priests and of other catholics
became on the contrary more frequent, and the
fines for recusancy exacted as rigorously as before.†
A statute was enacted, restraining popish recu-
sants, a distinctive name now first imposed by law,
mand. Sir William Stanley's re-
cent treachery in giving up De-
venter to the Spaniards made it un-
reasonable for them to complain
of exclusion from trust. Nor do
I know that they did so. But
trust and toleration are two dif
ferent things. And even with re-
spect to the former, I believe it far
better to leave the matter in the
hands of the executive government,
which will not readily suffer itself
to be betrayed, than to proscribe,
as we have done, whole bodies by
a legislative exclusion. Whenever,
indeed, the government itself is not
to be trusted, there arises a new
condition of the problem.
* Butler's English Catholics,
j. 259.; Hume. This is strongly
confirmed by a letter printed not
long after, and republished in the
Harleian Miscellany, vol. i. p. 142.,
with the name of one Leigh, a se-
minary priest, but probably the
work of some protestant. He says,
" for contributions of money, and
for all other warlike actions, there
was no difference between the ca-
tholic and the heretic. But in this
case [of the Armada] to withstand
the threatened conquest, yea, to
defend the person of the queen,
there appeared such a sympathy,
concourse, and consent of all sorts
of persons, without respect of reli-
gior, as they all appeared to be
ready to fight against all strangers
as it were with one heart and one
body." Notwithstanding this, I
am far from thinking that it would
have been safe to place the catho-
lics, generally speaking, in com- gard, 513.
+ Strype, vols. iii. and iv. pas-
sim. Life of Whitgift, 401. 505.
Murden, 667. Birch's Memoirs of
Elizabeth, Lingard, &c. One hun-
dred and ten catholics suffered
death between 1588 and 1603. Lin-
CHAP.
III.
ELIZ.
Catholics.
222
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
CHAP. to particular places of residence, and subjecting
them to other vexatious provisions.* All persons
ELIZ. were forbidden, by proclamation, to harbour any
Catholics. of whose conformity they were not assured.† Some
General ob-
servations.
indulgence was doubtless shown during all Eliza-
beth's reign to particular persons, and it was not
unusual to release priests from confinement; but
such precarious and irregular connivance gave
more scandal to the puritans than comfort to the
opposite party.
The catholic martyrs under Elizabeth amount to
no inconsiderable number. Dodd reckons them at
191; Milner has raised the list to 204. Fifteen
of these, according to him, suffered for denying
the queen's supremacy, 126 for exercising their
ministry, and the rest for being reconciled to the
Romish church. Many others died of hardships
in prison, and many were deprived of their pro-
perty. There seems nevertheless to be good reason
* 33 Eliz. C. 2.
+ Camden, 566. Strype, iv. 56.
This was the declaration of Octo-
ber, 1591, which Andreas Philo-
pater answered. Ribadeneira also
inveighs against it. According to
them, its publication was delayed
till after the death of Hatton,
when the persecuting part of the
queen's council gained the ascen-
dency.
Butler, 178. In Coke's fa-
mous speech in opening the case
of the Powder-plot, he says that
not more than thirty priests and
five receivers had been executed
in the whole of the queen's reign,
and for religion not any one. State
Trials, ii. 179.
Dr. Lingard says of those who
were executed between 1588, and
the queen's death, "The butchery,
with a few exceptions, was per-
3)
formed on the victim while he was
in full possession of his senses.'
Vol. viii. p. 356. I should be glad
to think that the few exceptions
were the other way. Much would
depend on the humanity of the
sheriff, which one might hope to
be stronger in an English gentle-
man than his zeal against popery.
But I cannot help acknowledging,
that there is reason to believe the
disgusting cruelties of the legal
sentence to have been frequently
inflicted. In an anonymous me-
morial among lord Burleigh's pa-
pers, written about 1586, it is re-
commended that priests persisting
in their treasonable opinion should
be hanged, "and the manner of
drawing and quartering forborne."
Strype, iii. 620. This seems to
imply that it had been usually
practised on the living. And lord
1
FROM HENRY VII. TO GEORGE II.
223
for doubting whether any one who was executed
might not have saved his life by explicitly denying
the pope's power to depose the queen. It was
constantly maintained by her ministers, that no one
had been executed for his religion. This would
be an odious and hypocritical subterfuge, if it
rested on the letter of these statutes, which adjudge
the mere manifestation of a belief in the Roman
catholic religion, under certain circumstances, to
be an act of treason. But both lord Burleigh, in
his Execution of Justice, and Walsingham in a
letter published by Burnet, positively assert the
contrary; and I am not aware that their assertion
has been disproved. This certainly furnishes a
distinction between the persecution under Eliza-
beth (which, unjust as it was in its operation, yet
as far as it extended to capital inflictions, had in
view the security of the government), and that
which the protestants had sustained in her sister's
reign, springing from mere bigotry and vindictive
rancour, and not even shielding itself at the time
with those shallow pretexts of policy which it
has of late been attempted to set up in its ex-
tenuation. But that which renders these con-
demnations of popish priests so iniquitous, is, that
the belief in, or rather the refusal to disclaim, a
speculative tenet, dangerous indeed and incom-
patible with loyalty, but not coupled with any
overt act, was construed into treason; nor can any
one affect to justify these sentences, who is not
Bacon, in his observations on a li-
bel written against lord Burleigh
in 1592, does not deny the "bowel-
lings" of catholics; but makes a
sort of apology for it, as "less cruel
Bacon's
than the wheel or forcipation, or
even simple burning."
Works, vol. i. p. 534.
* Burnet, ii. 418.
CHAP.
III.
ELIZ.
Catholics.
224
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
CHAP. prepared to maintain that a refusal of the oath of
abjuration, while the pretensions of the house of
Stuart subsisted, might lawfully or justly have in-
curred the same penalty.
ELIZ.
Catholics.
*
An apology was always deduced for these
measures, whether of restriction or punishment,
adopted against all adherents to the Roman
church, from the restless activity of that new
militia which the Holy See had lately organised.
The mendicant orders established in the 13th
century had lent former popes a powerful aid to-
wards subjecting both the laity and the secular
priesthood, by their superior learning and ability,
>>
*"Though no papists were in
this reign put to death purely on
account of their religion, as num-
berless protestants had been in the
woful days of queen Mary, yet
many were executed for treason.
Churton's Life of Nowell, p. 147.
Mr. Southey, whose abandonment
of the oppressed side I sincerely
regret, holds the same language;
and a later writer, Mr. Townsend,
in his Accusations of History
against the Church of Rome, has
laboured to defend the capital, as
as well as other, punishments of
catholics under Elizabeth, on the
same pretence of their treason.
Treason, by the law of England,
and according to the common use
of language, is the crime of rebel-
lion or conspiracy against the go-
vernment. If a statute is made,
by which the celebration of certain
religious rites is subjected to the
same penalties as rebellion or con-
spiracy, would any man, free from
prejudice, and not designing to im-
pose upon the uninformed, speak
of persons convicted on such a sta-
tute as guilty of treason, without
expressing in what sense he uses
the words, or deny that they were
as truly punished for their religion,
as if they had been convicted of
heresy? A man is punished for
religion, when he incurs a penalty
for its profession or exercise, to
which he was not liable on any
other account.
This is applicable to the great
majority of capital convictions on
this score under Elizabeth. The
persons convicted could not be
traitors in any fair sense of the
word, because they were not
charged with any thing properly
denominated treason. It certainly
appears that Campian and some
other priests about the same time
were indicted on the statute of
Edward III. for compassing the
queen's death, or intending to de-
pose her. But the only evidence,
so far as we know or have reason
to suspect, that could be brought
against them, was their own ad-
mission, at least by refusing to ab-
jure it, of the pope's power to de-
pose heretical princes. I suppose
it is unnecessary to prove that,
without some overt act to show a
design of acting upon this princi
ple, it could not fall within the
statute.
FROM HENRY VII. TO GEORGE II.
225
their emulous zeal, their systematic concert, their
implicit obedience. But in all these requisites for
good and faithful janissaries of the church, they
were far excelled by the new order of Ignatius
Loyola. Rome, I believe, found in their services
what has stayed her fall. They contributed in a
very material degree to check the tide of the re-
formation. Subtle alike and intrepid, pliant in
their direction, unshaken in their aim, the sworn,
implacable, unscrupulous enemies of protestant
governments, the jesuits were a legitimate object
of jealousy and restraint. As every member of
that society enters into an engagement of abso-
lute, unhesitating obedience to its superior, no one
could justly complain that he was presumed capa-
ble at least of committing any crimes that the
policy of his monarch might enjoin. But if the
jesuits by their abilities and busy spirit of intrigue
promoted the interests of Rome, they raised up
enemies by the same means to themselves within
the bosom of the church; and became little less
obnoxious to the secular clergy, and to a great
proportion of the laity, than to the protestants
whom they were commissioned to oppose. Their
intermeddling character was shown in the very
prisons occupied by catholic recusants, where a
schism broke out between the two parties, and
the secular priests loudly complained of their
usurping associates.* This was manifestly con-
Watson's Quodlibets. True
relation of the faction begun at
Wisbech, 1601. These tracts con-
tain rather an uninteresting ac-
count of the squabbles in Wisbech
castle among the prisoners, but
VOL. I.
Q
cast heavy reproaches on the jesuits,
as the "fire-brands of all sedition,
seeking by right or wrong simply
or absolutely the monarchy of all
England, enemies to all secular
priests, and the causes of all the
CHAP.
III.
ELIZ.
Catholics.
226
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
III.
ELIZ.
Catholics.
nected with the great problem of allegiance to the
queen, which the one side being always ready to
pay, did not relish the sharp usage it endured on
account of the other's disaffection. The council
indeed gave some signs of attending to this dis-
tinction, by a proclamation issued in 1602, order-
ing all priests to depart from the kingdom, unless
they should come in and acknowledge their alle-
giance, with whom the queen would take further
order.* Thirteen priests came forward on this,
with a declaration of allegiance as full as could be
devised. Some of the more violent papists blamed
them for this; and the Louvain divines concurred
in the censure. There were now two parties.
†
among the English catholics; and those who,
goaded by the sense of long persecution, and in-
flamed by obstinate bigotry, regarded every he
retical government as unlawful or unworthy of
obedience, used every machination to deter the rest
from giving any test of their loyalty. These were
the more busy, but by much the less numerous
class; and their influence was mainly derived from
the law's severity, which they had braved or en-
dured with fortitude. It is equally candid and
reasonable to believe that, if a fair and legal toler
ation, or even a general connivance at the exercise
of their worship, had been conceded in the first
part of Elizabeth's reign, she would have spared
herself those perpetual terrors of rebellion which
discord in the English nation."
P. 74. I have seen several other
pamphlets of the time relating to
this difference. Some account of
it may be found in Camden, 648.,
and Strype, iv. 194., as well as in
the catholic historians, Dodd and
Lingard.
* Rymer, xv. 473. 488.
Butler's Engl. Catholics, P
261.
FROM HENRY VII. TO GEORGE 11.
227
occupied all her later years. Rome would not in-
deed have been appeased, and some desperate
fanatic might have sought her life; but the English
catholics collectively would have repaid her pro-
tection by an attachment, which even her rigour
seems not wholly to have prevented.
It is not to be imagined that an entire unanimity
prevailed in the councils of this reign as to the
best mode of dealing with the adherents of Rome.
Those temporary connivances or remissions of
punishment, which, though to our present view
they hardly lighten the shadows of this persecu-
tion, excited loud complaints from bigoted men,
were owing to the queen's personal humour, or the
influence of some advisers more liberal than the
rest. Elizabeth herself seems always to have in-
clined rather to indulgence than extreme severity.
Sir Christopher Hatton, for some years her chief
favourite, incurred odium for his lenity towards
papists, and was, in their own opinion, secretly
inclined to them.* Whitgift found enough to do
with an opposite party. And that too noble and
high-minded spirit, so ill fitted for a servile and
dissembling court, the earl of Essex, was the con-
sistent friend of religious liberty, whether the ca-
tholic or the puritan were to enjoy it. But those
counsellors, on the other hand, who favoured the
more precise reformers, and looked coldly on the
established church, never failed to demonstrate
<<
lished after his death in 1591. De
Schismate Anglic. c. 9. This must
have been the proclamation of 29th
Nov. 1591, forbidding all persons
to harbour any one, of whose con-
formity they should not be well
assured.
* Ribadencira says, that Hatton,
animo Catholicus, nihil perinde
quam innocentem illorum sangui-
nem adeo crudeliter perfundi dole-
bat." He prevented Cecil from pro-
mulgating a more atrocious edict
than any other, which was pub-
CHAP.
III.
ELIZ.
Catholics.
Q 2
228
THE CONSTITUTIONAL HISTORY OF ENGLAND
III.
Catholics.
CHAP. their protestantism by excessive harshness towards
the old religion's adherents. That bold bad man,
ELIZ. whose favour is the great reproach of Elizabeth's
reign, the earl of Leicester, and the sagacious, dis-
interested, inexorable Walsingham, were deemed
the chief advisers of sanguinary punishments. But,
after their deaths, the catholics were mortified to
discover that lord Burleigh, from whom they had
hoped for more moderation, persisted in the same
severities; contrary, I think, to the principles he
had himself laid down in the paper from which I
have above made some extracts.*
The restraints and penalties, by which civil go-
vernments have at various times thought it expe-
dient to limit the religious liberties of their subjects,
may be arranged in something like the following
scale. The first and slightest degree is the requi-
sition of a test of conformity to the established re-
ligion, as the condition of exercising offices of civil
trust. The next step is to restrain the free pro-
mulgation of opinions, especially through the press.
All prohibitions of the open exercise of religious
worship appear to form a third, and more severe,
class of restrictive laws. They become yet more
rigorous, when they afford no indulgence to the
most private and secret acts of devotion or ex-
pressions of opinion. Finally, the last stage of
persecution is to enforce by legal penalties a con-
formity to the established church, or an abjuration
of heterodox tenets.
The first degree in this classification, or the
exclusion of dissidents from trust and power,
* Birch, i. 84.
>
FROM HENRY VII. TO GEORGE II.
229
--
CHAP.
III.
Catholics.
though it be always incumbent on those who main-
tain it to prove its necessity, may, under certain
rare circumstances, be conducive to the political ELIZ.
well-being of a state; and can then only be reck-
oned an encroachment on the principles of toler-
ation, when it ceases to produce a public benefit
sufficient to compensate for the privation it occa-
sions to its objects. Such was the English test act
during the interval between 1672 and 1688. But,
in my judgment, the instances which the history
of mankind affords, where even these restrictions
have been really consonant to the soundest policy,
are by no means numerous. Cases may also be
imagined, where the free discussion of contro-
verted doctrines might for a time at least be sub-
jected to some limitation for the sake of public
tranquillity. I can scarcely conceive the neces-
sity of restraining an open exercise of religious
rites in any case, except that of glaring immorality.
In no possible case can it be justifiable for the
temporal power to intermeddle with the private
devotions or doctrines of any man. But least of
all, can it carry its inquisition into the heart's re-
cesses, and bend the reluctant conscience to an
insincere profession of truth, or extort from it an
acknowledgment of error, for the purpose of in-
flicting punishment. The statutes of Elizabeth's
reign comprehend every one of these progressive
degrees of restraint and persecution. And it is
much to be regretted that any writers worthy of
respect should, either through undue prejudice
against an adverse religion, or through timid ac-
quiescence in whatever has been enacted, have
offered for this odious code the false pretext of
Q 3
230
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. political necessity.
III.
ELIZ.
Catholics.
That necessity, I am per-
suaded, can never be made out: the statutes were,
in many instances, absolutely unjust; in others,
not demanded by circumstances; in almost all,
prompted by religious bigotry, by excessive appre-
hension, or by the arbitrary spirit with which our
government was administered under Elizabeth.
FROM HENRY VII. TO GEORGE II.
231
CHAPTER IV.
ON THE LAWS OF ELIZABETH'S REIGN RESPECTING
PROTESTANT NON-CONFORMISTS.
Religious
Origin of the Differences among the English Protestants
Inclinations of the Queen - Unwillingness of many to comply with
the established Ceremonies ·Conformity enforced by the Archbishop
Against the Disposition of others — A more determined Opposition, about
1570, led by Cartwright — Dangerous Nature of his Tenets - Puritans
supported in the Commons and in some Measure by the Council
Prophesyings
Archbishops Grindal and Whitgift-Conduct of the
latter in enforcing Conformity High Commission Court-Lord Bur-
leigh averse to Severity - Puritan Libels · Attempt to set up Presby-
terian System House of Commons averse to episcopal Authority
Independents liable to severe Laws Hooker's Ecclesiastical Polity —
Its Character-Spoliation of Church Revenues
General Remarks
Letter of Walsingham in Defence of the Queen's Government.
THE two statutes enacted in the first year of
Elizabeth, commonly called the acts of supremacy
and uniformity, are the main links of the Anglican
church with the temporal constitution, and establish
the subordination and dependency of the former;
the first abrogating all jurisdiction and legislative
power of ecclesiastical rulers, except under the
authority of the crown; and the second prohibit-
ing all changes of rites and discipline without the
approbation of parliament. It was the constant
policy of this queen to maintain her ecclesiastical
prerogative and the laws she had enacted. But in
following up this principle she found herself in-
CHAP.
IV.
ELIZ.
Puritans.
Q 4
232
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
CHAP. volved in many troubles, and had to contend with
a religious party, quite opposite to the Romish, less
dangerous indeed and inimical to her government,
but full as vexatious and determined.
ELIZ.
Puritans.
Origin of
the differ-
I have in another place slightly mentioned the
differences that began to spring up under Edward
among the VI. between the moderate reformers who esta-
English
ences
protestants. blished the new Anglican church, and those who
accused them of proceeding with too much for-
bearance in casting off superstitions and abuses.
These diversities of opinion were not without some
relation to those which distinguished the two great
families of protestantism in Europe. Luther, in-
tent on his own system of dogmatic theology, had
shown much indifference about retrenching exte
rior ceremonies, and had even favoured, especially
in the first years of his preaching, that specious
worship which some ardent reformers were eager
to reduce to simplicity.* Crucifixes and images,
tapers and priestly vestments, even for a time the
elevation of the host and the Latin mass-book, con-
tinued in the Lutheran churches; while the dis-
ciples of Zuingle and Calvin were carefully eradi-
cating them as popish idolatry and superstition.
Cranmer and Ridley, the founders of the English
reformation, justly deeming themselves independent
of any foreign master, adopted a middle course be-
tween the Lutheran and Calvinistic ritual. The
general tendency however of protestants, even in
the reign of Edward VI., was towards the simpler
forms; whether through the influence of those
foreign divines who co-operated in our reformation,
* Sleitlan, Hist. de la Réformation, par Courayer, ii. 74.
FROM HENRY VII. TO GEORGE II.
233
IV.
ELIZ.
Puritans.
or because it was natural in the heat of religious CHAP.
animosity to recede as far as possible, especially in
such exterior distinctions, from the opposite deno-
mination. The death of Edward seems to have
prevented a further approach to the scheme of Ge-
neva in our ceremonies, and perhaps in our dis-
cipline. During the persecution of Mary's reign,
the most eminent protestant clergymen took refuge
in various cities of Germany and Swisserland. They
were received by the Calvinists with hospitality and
fraternal kindness; while the Lutheran divines, a
narrow-minded intolerant faction, both neglected
and insulted them.* Divisions soon arose among
themselves about the use of the English service, in
which a pretty considerable party was disposed to
make alterations. The chief scene of these dis-
turbances was Frankfort, where Knox, the famous.
reformer of Scotland, headed the innovators; while
Cox, an eminent divine, much concerned in the
establishment of Edward VI., and afterwards bishop
of Ely, stood up for the original liturgy. Cox suc-
ceeded (not quite fairly, if we may rely on the only
narrative we possess) in driving his opponents from
the city; but these disagreements were by no
means healed, when the accession of Elizabeth re-
called both parties to their own country, neither of
them very likely to display more mutual charity in
their
prosperous hour, than they had been able to
exercise in a common persecution. †
*Strype's Craumer, 354.
These transactions have been
perpetuated by a tract, entitled
Discourse of the Troubles at
Frankfort, first published in 1575,
and reprinted in the well-known
collection entitled The Phoenix.
It is fairly and temperately writ-
ten, though with an avowed bias
towards the puritan party. What-
ever we read in any historian on
the subject, is derived from this
234
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
ELIZ.
Puritans.
The first mortification these exiles endured on
their return was to find a more dilatory advance
towards public reformation of religion, and more
of what they deemed lukewarmness, than their
sanguine zeal had anticipated. Most part of this
delay was owing to the greater prudence of the
queen's counsellors, who felt the pulse of the nation
before they ventured on such essential changes.
But there was yet another obstacle, on which the
Religious reformers had not reckoned. Elizabeth, thouga
inclinations resolute against submitting to the papal supremacy,
of the
queen.
was not so averse to all the tenets abjured by pro-
testants, and loved also a more splendid worship
than had prevailed in her brother's reign; while
many of those returned from the continent were
intent on copying a still simpler model. She re-
proved a divine who preached against the real pre-
sence, and is even said to have used prayers to the
Virgin.* But her great struggle with the re-
formers was about images, and particularly the cru-
cifix, which she retained, with lighted tapers before
it, in her chapel; though in the injunctions to the
authority; but the refraction is
of course very different through
the pages of Collier and of Neal.
* Strype, ii. 1. There was a
Lutheran party at the beginning
of her reign, to which the queen
may be said to have inclined, not
altogether from religion, but from
policy. Id. i. 53. Her situation
was very hazardous; and in order
to connect herself with sincere
allies, she had thoughts of join-
ing the Smalcaldic league of the
German princes, whose bigotry
would admit none but members of
the Augsburg confession. Jewel's
letters to Peter Martyr, in the
appendix to Burnet's third vo
lume, throw considerable light on
the first two years of Elizabeth's
reign; and show that famous pre-
late to have been what afterwards
would have been called a pre-
cisian or puritan. He even ap-
proved a scruple Elizabeth enter
tained about her title of head of
the church, as appertaining only
to Christ. But the unreasonable-
ness of the discontented party, and
the natural tendency of a man who
has joined the side of power to
deal severely with those he has
left, made him afterwards their
enemy.
FROM HENRY VII. TO GEORGE II.
235
IV.
ELIZ.
Puritans.
ecclesiastical visitors of 1559, they are directed to CHAP.
have them taken away from churches.* This con-
cession she must have made very reluctantly, for
we find proofs the next year of her inclination to
restore them; and the question of their lawfulness
was debated, as Jewel writes word to Peter Martyr,
by himself and Grindal on one side, against Parker
and Cox, who had been persuaded to argue in their
favour. But the strenuous opposition of men so
distinguished as Jewel, Sandys, and Grindal, of
whom the first declared his intention of resigning
his bishopric in case this return towards superstition
should be made, compelled Elizabeth to relinquish
her project. The crucifix was even for a time
removed from her own chapel, but replaced about
1570. §
There was however one other subject of dispute
between the old and new religions, upon which
her majesty could not be brought to adopt the
protestant side of the
* Roods and relics accordingly
were broken to pieces and burned
throughout the kingdom, of which
Collier makes loud complaint.
This, Strype says, gave much of-
fence to the catholics; and it was
not the most obvious method of
inducing them to conform.
+ Burnet, iii. Appendix, 290.
Strype's Parker, 46.
Quantum auguror, non scri-
bam ad te posthac episcopus. Eo
enim jam res pervenit, ut aut
cruces argentea et stanneæ, quas
nos ubique confregimus, restitu-
endæ sint, aut episcopatus relin-
quendi. Burnet, 294. Sandys
writes, that he had nearly been
deprived for expressing himself
warmly against images. Id. 296.
question.
This was the
Other proofs of the text may be
found in the same collection, as
well as in Strype's Annals, and hi
Life of Parker. Even Parker seems,
on one occasion, to have expected
the queen to make such a retro-
grade movement in religion as
would compel them all to disobey
her. Life of Parker, Appendix,
29.; a very remarkable letter.
Strype's Parker, 310. The
archbishop seems to disapprove
this as inexpedient, but rather
coldly; he was far from sharing
the usual opinions on this subject.
A puritan pamphleteer took the
liberty to name the queen's chapel
as "the pattern and precedent of
all superstition," Strype's Annals,
i. 471.
236
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
ELIZ.
Puritans.
CHAP. marriage of the clergy, to which she expressed so
great an aversion, that she would never consent to
repeal the statute of her sister's reign against it.*
Accordingly, the bishops and clergy, though they
married by connivance, or rather by an ungracious
permission †, saw, with very just dissatisfaction,
their children treated by the law as the offspring
of concubinage. This continued, in legal strict-
* Burnet, ii. 395.
+ One of the injunctions to the
visitors of 1559, reciting the offence
and slander to the church that had
arisen by lack of discreet and sober
behaviour in many ministers, both
in choosing of their wives, and in
living with them, directs that no
priest or deacon shall marry with-
out the allowance of the bishops,
and two justices of the peace,
dwelling near the woman's abode,
nor without the consent of her
pa-
rents or kinsfolk, or, for want of
these, of her master or mistress,
on pain of not being permitted to
exercise the ministry, or hold any
benefice; and that the marriages
of bishops should be approved by
the metropolitan, and also by com-
missioners appointed by the queen.
Somers Tracts, i. 65. Burnet, ii.
398. It is reasonable to suppose,
that when a host of low-bred and
illiterate priests were at once re-
leased from the obligation to celi-
bacy, many of them would abuse
their liberty improvidently, or even
scandalously; and this probably
had increased Elizabeth's preju-
dice against clerical natrimony.
But I do not suppose that this in-
junction was ever much regarded.
Some time afterwards (Aug. 1561)
she put forth another extraordi-
nary injunction, that no member
of a college or cathedral should
have his wife living within its pre-
cincts, under pain of forfeiting all
his preferments. Cecil sent this
to Parker, telling him at the same
time that it was with great diffi-
culty he had prevented the queen
from altogether forbidding the
marriage of priests. Life of P.
107.
And the archbishop him-
self says, in the letter above men-
tioned,
tioned, "I was in a horror to hear
such words to come from her mild
nature and Christianly learned con-
science, as she spake concerning
God's holy ordinance and institu
tion of matrimony."
Sandys writes to Parker, April,
1559, "The queen's majesty will
wink at it, but not stablish it by
law, which is nothing else but to
bastard our children." And deci
sive proofs are brought by Strype,
that the marriages of the clergy
were not held legal, in the first
part at least of the queen's reign.
Elizabeth herself, after having
been sumptuously entertained by
the archbishop at Lambeth, took
leave of Mrs. Parker with the fol-
lowing courtesy: "Madam (the
style of a married lady) I may not
call you; mistress (the appellation
at that time of an unmarried wo-
man) I am loth to call you; but
however, I thank you for your
good cheer." This lady is styled,
in deeds made while her husband
was archbishop, Parker, alias IIar-
leston; which was her maiden
name, And she dying before her
husband, her brother is called her
heir-at-law, though she left chil-
dren.
But the archbishop pro-
cured letters of legitimation, in
order to render them capable of
FROM HENRY VII. TO GEORGE II.
237
CHAP.
IV.
Puritans.
ness, till the first year of James, when the statute
of Mary was explicitly repealed; though I cannot
help suspecting that clerical marriages had been ELIZ.
tacitly recognised, even in courts of justice, long
before that time. Yet it appears less probable to
derive Elizabeth's prejudice in this respect from
any deference to the Roman discipline, than from
that strange dislike to the most lawful union be-
ween the sexes, which formed one of the singu-
larities of her character.
Such a reluctance as the queen displayed to re-
turn in every point even to the system established
under Edward, was no slight disappointment to
those who thought that too little had been effected
by it. They had beheld at Zurich and Geneva
the simplest, and, as they conceived, the purest
form of worship. They were persuaded that the
vestments still worn by the clergy, as in the days
of popery, though in themselves indifferent, led
to erroneous notions among the people, and kept
alive a recollection of former superstitions, which
would render their return to them more easy in
the event of another political revolution.* They
disliked some other ceremonies for the same rea-
son. These objections were by no means confined,
as is perpetually insinuated, to a few discontented
persons. Except archbishop Parker, who had re-
mained in England during the late reign, and
Cox, bishop of Ely who had taken a strong part
inheritance. Life of Parker, 511.
Others did the same.
.8. Yet such letters were, I con-
Annals, i.
ceive, beyond the queen's power
to grant, and could not have ob-
tained any regard in a court of
law.
In the diocese of Bangor, it was
usual for the clergy, some years
after Elizabeth's accession, to pay
the bishop for a licence to keep a
concubine. Strype's Parker, 203.
* Burnet, iii. 305.
238
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
ELIZ.
Puritans.
at Frankfort against innovation, all the most emi-
nent churchmen, such as Jewel, Grindal, Sandys,
Nowell, were in favour of leaving off the surplice
and what were called the popish ceremonies.*
Whether their objections are to be deemed narrow
and frivolous or otherwise, it is inconsistent with
veracity to dissemble that the queen alone was
the cause of retaining those observances, to which
the great separation from the Anglican establish
ment is ascribed. Had her influence been with-
drawn, surplices and square caps would have lost
their steadiest friend; and several other little
accommodations to the prevalent dispositions of
protestants would have taken place. Of this it
seems impossible to doubt, when we read the pro-
ceedings of the convocation in 1562, when a pro-
position to abolish most of the usages deemed
objectionable was lost only by a vote, the numbers
being 59 to 58.†
In thus restraining the ardent zeal of reform-
ation, Elizabeth may not have been guided merely
by her own prejudices, without far higher motives
* Jewel's letters to Bullinger, in
Burnet, are full of proofs of his
dissatisfaction; and those who feel
any doubts may easily satisfy them-
selves from the same collection, and
from Strype as to the others. The
current opinion, that these scru-
ples were imbibed during the ha-
nishment of our reformers, must
be received with great allowance.
The dislike to some parts of the
Anglican ritual had begun at home;
it had broken out at Frankfort; it
is displayed in all the early docu-
ments of Elizabeth's reign by the
English divines, far more warmly
than by their Swiss correspondents.
Grindal, when first named to the
see of London, had his scruples
about wearing the episcopal habits
removed by Peter Martyr. Strype's
Grindal, 29.
† It was proposed on this occa
sion to abolish all saints' days, to
omit the cross in baptism, to leave
kneeling at the communion to the
ordinary's discretion, to take away
organs, and one or two more of the
ceremonies then chiefly in dispute.
Burnct, iii. 303. and Append. 319,
Strype, i. 297. 299. Nowell voted
in the minority. It can hardly be
going too far to suppose that some
of the majority were attached to
the old religion.
|
FROM HENRY VII. TO GEORGE II.
239
of prudence and even of equity. It is difficult to
pronounce in what proportion the two conflict-
ing religions were blended on her coming to the
throne. The reformed occupied most large towns,
and were no doubt a more active and powerful
body than their opponents. Nor did the eccle-
siastical visitors of 1559 complain of any resist-
ance, or even unwillingness, among the people.*
:
33
* Jewel, one of these visitors,
writes afterwards to Martyr: "In-
venimus ubique animos multitudi-
nis satis propensos ad religionem;
ibi etiam, ubi omnia putabantur
fore difficillima Si quid erat
obstinatæ malitiæ, id totum erat
presbyteris, illis præsertim, qui
aliquando stetissent à nostrà sen-
tentia.' Burnet, iii. Append. 289.
The common people in London
and elsewhere, Strype says, took
an active part in demolishing
images; the pleasure of destruc-
tion, I suppose, mingling with
their abhorrence of idolatry. And
during the conferences held in
Westminster Abbey, Jan. 1559,
between the catholic and protest-
ant divines, the populace who had
been admitted as spectators, tes-
tified such disapprobation of the
former, that they made it a pretext
for breaking off the argument.
There was indeed such a tendency
to anticipate the government in re-
formation, as necessitated a pro-
clamation, Dec. 28. 1558, silencing
preachers on both sides.
Mr. Butler says, from several
circumstances it is evident that a
great majority of the nation then
inclined to the Roman catholic re-
ligion. Mem. of Eng. Catholics,
146. But his proofs of this are
extremely weak. The attachment
he supposes to have existed in the
laity towards their pastors may
well be doubted; it could not be
founded on the natural grounds of
esteem; and if Rishton, the con-
tinuator of Sanders de Schismate,
whom he quotes, says that one
third of the nation was protestant,
we may surely double the calcu-
lation of so determined a papist.
As to the influence which Mr.
B. alledges the court to have em-
ployed in elections for Elizabeth's
first parliament, the argument
would equally prove that the ma-
jority was protestant under Mary,
since she had recourse to the same
means. The whole tenor of his-
torical documents in Elizabeth's
reign proves that the catholics
soon became a minority, and still
more among the common people
than the gentry. The north of Eng-
land, where their strength lay, was
in every respect the least import-
ant part of the kingdom. Even
according to Dr. Lingard, who
thinks fit to claim half the nation
as catholic in the middle of this
reign, the number of recusants
certified to the council under 23
Eliz. c. 1., amounted only to fifty
thousand; and, if we can trust the
authority of other lists, they were
much fewer before the accession
of James. This writer, I may
observe in passing, has, through
haste and thoughtlessness, mis-
stated a passage he cites from
Murden's State Papers, p. 605.,
and confounded the persons sus-
pected for religion in the city of
London, about the time of the
Armada, with the whole number
of men fit for arms; thus making
the former amount to seventeen
thousand and eighty-three.
Mr. Butler has taken up so pa-
CHAP.
IV.
ELIZ.
Puritans.
240
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
ELIZ.
Puritans.
CHAP. Still the Romish party was extremely numerous;
it comprehended the far greater portion of the
beneficed clergy, and all those who, having no
turn for controversy, clung with pious reverence
to the rites and worship of their earliest associa-
tions. It might be thought perhaps not very repug-
nant to wisdom or to charity, that such persons
should be won over to the reformed faith by re-
taining a few indifferent usages, which gratified
their eyes, and took off the impression, so unpleas-
ing to simple minds, of religious innovation. Iu
might be urged that, should even somewhat more
of superstition remain awhile than rational men
would approve, the mischief would be far less than
to drive the people back into the arms of popery,
or to expose them to the natural consequences of
destroying at once all old landmarks of reverence,
'
a dangerous fanaticism, or a careless irreligion.
I know not in what degree these considerations had
radoxical a notion on this subject,
that he literally maintains the ca-
tholics to have been at least one
half of the people at the epoch of
the gunpowder plot. Vol.i. p. 295.
We should be glad to know at
what time he supposes the grand
apostasy to have been consum-
mated. Cardinal Bentivoglio gives
a very different account; reckoning
the real catholics, such as did not
make profession of heresy, at only
a thirtieth part of the whole;
though he supposes that four
fifths might become such, from
secret inclination or general indif-
ference, if it were once established.
Opere di Bentivoglio, p. 83., edit.
Paris, 1645. But I presume nei-
ther Mr. Butler nor Dr. Lingard
would own these adiaphorists.
The latter writer, on the other
hand, reckons the Hugonots of
France, soon after 1560, at only
one hundredth part of the nation,
quoting for this Castelnau, an use-
ful memoir writer, but no autho-
rity on a matter of calculation.
The stern spirit of Coligni, atroa
animus Catonis, rising above all
misfortune, and unconquerable,
except by the darkest treachery, is
sufficiently admirable without re-
ducing his party to so miserable a
fraction. The Calvinists at this
time are reckoned by some at one
fourth, but more frequently at
one tenth, of the French nation.
Even in the beginning of the next
century, when proscription and
massacre, lukewarmness and self-
interest, had thinned their ranks,
they are estimated by Bentivoglio
(ubi supra) at one fifteenth.
FROM HENRY VII. TO GEORGE II.
241
weight with Elizabeth; but they were such as it
well became her to entertain.
We live however too far from the period of her
accession, to pass an unqualified decision on the
course of policy which it was best for the queen
to pursue. The difficulties of effecting a compro-
mise between two intolerant and exclusive sects
were perhaps insuperable. In maintaining or alter-
ing a religious establishment, it may be reckoned
the general duty of governments to respect the
wishes of the majority. But it is also a rule of
human policy to favour the more efficient and
determined, which may not always be the more
numerous party. I am far from being convinced
that it would not have been practicable, by reced-
ing a little from that uniformity which governors
delight to prescribe, to have palliated in a great
measure, if not put an end for a time, to the dis-
content that so soon endangered the new establish-
ment. The frivolous usages, to which so many
frivolous objections were raised, such as the tippet
and surplice, the sign of the cross in baptism, the
ring in matrimony, the posture of kneeling at the
communion, might have been left to private dis-
cretion, not possibly without some inconvenience,
but with less, as I conceive, than resulted from
rendering their observance indispensable. Nor
should we allow ourselves to be turned aside by
the common reply, that no concessions of this
kind would have ultimately prevented the disunion
of the church upon more essential differences than
these litigated ceremonies; since the science of
policy, like that of medicine, must content itself
with devising remedies for immediate danger, and
VOL. I.
R
CHAP.
IV.
ELIZ.
Puritans.
242
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
can at best only retard the progress of that in-
trinsic decay which seems to be the law of all
ELIZ. things human, and through which every institu-
tion of man, like his earthly frame, must one day
crumble into ruin.
Puritans.
Unwilling-
ness of
many to
comply
with the
ceremonies.
The repugnance felt by a large part of the pro-
testant clergy to the ceremonies with which Eliza-
beth would not consent to dispense, showed itself
established in irregular transgressions of the uniformity pre-
scribed by statute. Some continued to wear the
habits, others laid them aside; the communicants
received the sacrament sitting, or standing, or
kneeling, according to the minister's taste; some
baptised in the font, others in a basin; some with
the sign of the cross, others without it. The
people in London and other towns, siding chiefly
with the malecontents, insulted such of the clergy
as observed the prescribed order.* Many of the
bishops readily connived at deviations from cere-
monies which they disapproved. Some, who felt
little objection to their use, were against imposing
them as necessary.† And this opinion, which led
to very momentous inferences, began so much to
prevail, that we soon find the objections to con-
formity more grounded on the unlawfulness of
compulsory regulations in the church prescribed
by the civil power, than on any special impropriety
in the usages themselves. But this principle, which
perhaps the scrupulous party did not yet very fully
avow, was altogether incompatible with the supre-
macy vested in the queen, of which fairest flower
*Strype's Parker, 152, 153.
Collier, 508. In the Lansdowne
Collection, vol. viii. 47. is a letter
from Parker, Apr. 1565, complain-
ing of Turner, dean of Wells, for
having made a man do penance for
adultery in a square cap.
+ Strype's Parker, 157. 173.
FROM HENRY VII. TO GEORGE II.
243
of her prerogative she was abundantly tenacious.
One thing was evident, that the puritan malecon-
tents were growing every day more numerous,
more determined, and more likely to win over the
generality of those who sincerely favoured the
protestant cause. There were but two lines to be
taken; either to relax and modify the regulations
which gave offence, or to enforce a more punctual
observation of them. It seems to me far more
probable that the former course would have pre-
vented a great deal of that mischief, which the
second manifestly aggravated. For in this early
stage the advocates of a simpler ritual had by no
means assumed the shape of an embodied faction,
whom concessions, it must be owned, are not apt
to satisfy, but numbered the most learned and dis-
tinguished portion of the hierarchy. Parker stood
nearly alone on the other side, but alone more
than an equipoise in the balance, through his high
station, his judgment in matters of policy, and
his knowledge of the queen's disposition. He had
possibly reason to apprehend that Elizabeth, irri-
tated by the prevalent humour for alteration, might
burst entirely away from the protestant side, or
stretch her supremacy to reduce the church into
a slavish subjection to her caprice.* This might
induce a man of his sagacity, who took a far wider
view of civil affairs than his brethren, to exert
himself according to her peremptory command for
universal conformity. But it is not easy to recon-
cile the whole of his conduct to this supposition;
and in the copious memorials of Strype, we find
*This apprehension of Eliza- antism is intimated in a letter of
beth's taking a disgust to protest- bishop Cox. Strype's Parker, 229.
CHAP.
IV.
ELIZ.
Puritans.
R 2
244
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
the archbishop rather exciting the queen to rigor-
ELIZ.
Puritans.
the arch-
bishop
against the
of others.
ous measures against the puritans than standing
in need of her admonition.*
ta
Conformity The unsettled state of exterior religion which
enforced by has been mentioned lasted till 1565. In the be-
ginning of that year a determination was taken by
disposition the queen, or rather perhaps the archbishop, to
put a stop to all irregularities in the public service.
He set forth a book called Advertisements, con-
taining orders and regulations for the discipline of
the clergy. This modest title was taken in conse-
quence of the queen's withholding her sanction
of its appearance through Leicester's influence.t
The primate's next step was to summon before the
ecclesiastical commission Sampson, dean of Christ-
church, and Humphrey, president of Magdalen
college, Oxford, men of signal non-conformity, but
at the same time of such eminent reputation that,
when the law took its course against them, no
other offender could hope for indulgence. On re-
fusing to wear the customary habits, Sampson was
deprived of his deanery; but the other seems to
have been tolerated.
* Parker sometimes declares
himself willing to see some indulg-
ence as to the habits and other
matters; but, the queen's com-
mands being peremptory, he had
thought it his duty to obey them,
though forewarning her that the
puritan ministers would not give
way, 225. 227. This however is
not consistent with other passages,
where he appears to importune
the queen to proceed. Her wa-
vering conduct, partly owing to
caprice, partly to insincerity, was
naturally vexatious to a man of
his firm and ardent temper. Pos-
This instance of severity,
sibly he might dissemble a little in
writing to Cecil, who was against
driving the puritans to extremities.
But, on the review of his whole
behaviour, he must be reckoned,
and always has been reckoned,
the most severe disciplinarian of
Elizabeth's first hierarchy; though
more violent men came after-
wards.
159.
+ Strype's Annals, 416. Parker,
Some years after, these ad-
vertisements obtained the queen's
sanction, and got the name of Ar-
ticles and Ordinances. Id. 160.
Strype's Annals, 416. 430.
FROM HENRY VII. TO GEORGE II.
245
IV.
ELIZ.
Puritans.
as commonly happens, rather irritated than intimi- CHAP.
dated the puritan clergy, aware of their numbers,
their popularity, and their powerful friends, but
above all sustained by their own sincerity and
earnestness. Parker had taken his resolution to
proceed in the vigorous course he had begun. He
obtained from the queen a proclamation, peremp-
torily requiring conformity in the use of the cleri-
cal vestments and other matters of discipline. The
London ministers, summoned before himself and
their bishop Grindal, who did not very willingly
co-operate with his metropolitan, were called upon
for a promise to comply with the legal ceremonies,
which thirty-seven out of ninety-eight refused to
make. They were in consequence suspended from
their ministry, and their livings put in sequestra-
tion. But these unfortunately, as was the case
in all this reign, were the most conspicuous, both
for their general character and for their talent în
preaching.*
Whatever deviations from uniformity existed
within the pale of the Anglican church, no at-
tempt had hitherto been made to form separate
assemblies; nor could it be deemed necessary,
while so much indulgence had been conceded to
the scrupulous clergy. But they were now reduced
to determine whether the imposition of those rites
they disliked would justify, or render necessary,
an abandonment of their ministry. The bishops
of that school had so far overcome their repug-
Life of Parker, 184. Sampson
had refused a bishopric on account
of these ceremonies. Burnet, iii.
292.
* Life of Parker, 214. Strype
says, p. 223., that the suspended
ministers preached again after a
little time by connivance..
R 3
246
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
Puritans.
nance, as not only to observe the ceremonies of
the church, but, in some instances, to employ com-
ELIZ. pulsion towards others.* A more unexceptionable,
because more disinterested, judgment was pro-
nounced by some of the Swiss reformers to whom
our own paid great respect-Beza, Gualter, and
Bullinger; who, while they regretted the continu-
ance of a few superfluous rites, and still more the
severity used towards good men, dissuaded their
friends from deserting their vocation on that ac
count.
Several of the most respectable opponents
of the ceremonies were equally adverse to any
open schism. † But the animosities springing from
heated zeal, and the smart of what seemed op-
pression, would not suffer the English puritans
generally to acquiesce in such temperate counsels.
They began to form separate conventicles in Lon-
don, not ostentatiously indeed, but of course with-
out the possibility of eluding notice. It was doubt-
less worthy of much consideration, whether an
established church-government could wink at the
systematic disregard of its discipline by those who
were subject to its jurisdiction and partook of its
revenues. And yet there were many important
* Jewel is said to have become
strict in enforcing the use of the
surplice. Annals, 421.
f Strype's Annals, i.423. ii. 316.
Life of Parker, 243. 348. Burnet,
üi. 310.325.337. Bishops Grindal
and Horn wrote to Zurich, saying
plainly, it was not their fault that
the habits were not laid aside,
with the cross in baptism, the use
of organs, baptism by women, &c.
p. 314. This last usage was much
inveighed against by the Calvinists,
because it involved a theological
tenet differing from their own, as
to the necessity of baptism. In
Strype's Annals, 501., we have the
form of an oath taken by all mid-
wives, to exercise their calling
without sorcery or superstition,
and to baptize with the proper
words. It was abolished by James I.
Beza was more dissatisfied than
the Helvetic divines with the state
of the English church, Annals, i
452. Collier, 503.; but dissuaded
the puritans from separation, and
advised them rather to comply
with the ceremonies. Id. 511.
FROM HENRY VII. TO GEORGE II.
247
IV.
ELIZ.
Puritans.
considerations derived from the posture of religion CHAP.
and of the state, which might induce cool-headed
men to doubt the expediency of too much straight-
ening the reins. But there are few, I trust, who
can hesitate to admit that the puritan clergy, after
being excluded from their benefices, might still
claim from a just government a peaceful toleration
of their particular worship. This it was vain to
expect from the queen's arbitrary spirit, the im-
perious humour of Parker, and that total disregard
of the rights of conscience which was common to
all parties in the sixteenth century. The first in-
stance of actual punishment inflicted on protestant
dissenters was in June 1567, when a company of
more than one hundred were seized during their
religious exercises at Plummer's Hall, which they
had hired on pretence of a wedding, and fourteen
or fifteen of them were sent to prison.* They be-
haved on their examination with a rudeness as well
as self-sufficiency, that had already begun to cha-
racterise the puritan faction. But this cannot
excuse the fatal error of molesting men for the
exercise of their own religion.
These coercive proceedings of the archbishop
were feebly seconded, or directly thwarted, by
most leading men both in church and state.
Grindal and Sandys, successively bishops of Lon-
don and archbishops of York, were naturally reck-
oned at this time somewhat favourable to the
non-conforming ministers, whose scruples they had
partaken. Parkhurst and Pilkington, bishops of
Norwich and Durham, were openly on their side. †
* Strype's Life of Parker, 242. + Burnet, iii. 316. Strype's
Life of Grindal, 114.
Parker, 155. et alibi.
R 4
248
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
ELIZ.
Puritans.
CHAP. They had still more effectual support in the queen's
council. The earl of Leicester, who possessed
more power than any one to sway her wavering
and capricious temper, the earls of Bedford, Hunt-
ingdon, and Warwick, regarded as the steadiest
protestants among the aristocracy, the wise and
grave lord keeper Bacon, the sagacious Walsing-
ham, the experienced Sadler, the zealous Knollys,
considered these objects of Parker's severity, either
as demanding a purer worship than had been esta
blished in the church, or at least as worthy by their
virtues and services of more indulgent treatment.*
Cecil himself, though on intimate terms with the
archbishop, and concurring generally in his mea-
sures, was not far removed from the latter way of
thinking, if his natural caution and extreme dread
at this juncture of losing the queen's favour had
permitted him more unequivocally to express it.
Those whose judgment did not incline them to-
wards the puritan notions, respected the scruples
of men in whom the reformed religion could so
implicitly confide. They had regard also to the
condition of the church. The far greater part of
its benefices were supplied by conformists of very
doubtful sincerity, who would resume their mass-
books with more alacrity than they had cast them
aside. † Such a deficiency of protestant clergy
t
* Id. 226. The church had
but two or three friends, Strype
says, in the council about 1572,
of whom Cecil was the chief. Id.
388.
+ Burnet says, on the authority
of the visitors' reports, that out of
9400 beneficed clergymen, not
more than about 200 refused to
conform. This caused for some
years just apprehensions of the
danger into which religion was
brought by their retaining their
affections to the old superstition;
:
so that," he proceeds, " if queen
Elizabeth had not lived so long as
she did, till all that generation
was dead, and a new set of men
better educated and principled
were grown up and put in their
FROM HENRY VII. TO GEORGE II.
249
had been experienced at the queen's accession,
that for several years it was a common practice to
appoint laymen, usually mechanics, to read the
service in vacant churches. * These were not
always wholly illiterate; or if they were, it was no
more than might be said of the popish clergy, the
vast majority of whom were destitute of all useful
knowledge, and could read little Latin. † Of the
two universities, Oxford had become so strongly
attached to the Romish side during the late reign,
rooms; and if a prince of another
religion had succeeded before that
time, they had probably turned
about again to the old superstition
as nimbly as they had done before
in queen Mary's days." Vol. ii.
p. 401.
It would be easy to mul-
tiply testimonies out of Strype, to
the papist inclinations of a great
part of the clergy in the first part
of this reign. They are said to have
been sunk in superstition and loose-
ness of living. Annals, i. 166.
Strype's Annals, 138. 177.
Collier, 436. 465. This seems to
show that more churches were
empty by the desertion of popish
incumbents than the foregoing
note would lead us to suppose. I
believe that many went off to fo-
reign parts from time to time, who
had complied in 1559; and others
were put out of their livings. The
Roman Catholic writers make out
a longer list than Burnet's calcu-
lation allows.
It appears from an account sent
in to the privy-council by Park-
hurst, bishop of Norwich, in 1562,
that in his diocese more than one
third of the benefices were vacant.
Aurals, i. 323. But in Ely, out
of 152 cures only 52 were served
in 1560. L. of Parker, 72.
† Parker wrote in 1561 to the
hishops of his province, enjoining
them to send him certificates of
the names and qualities of all their
clergy; one column, in the form
of certificate, was for learning
"And this," Strype says,
<< was
commonly set down; Latinè aliqua
verba intelligit, Latinè utcunque
intelligit; Latinè pauca intelligit,'
&c.
&c. Sometimes, however, we find
doctus. L. of Parker, 95. But
if the clergy could not read the
language in which their very pray-
ers were composed, what other
learning or knowledge could they
have? Certainly none; and even
those who had gone far enough to
study the school logic and divinity,
do not deserve a much higher
place than the wholly uninstructed.
The Greek tongue was never gene-
rally taught in the universities or
public schools till the reformation,
and perhaps not so soon.
Since this note was written, a
letter of Gibson has been published
in Pepys's Memoirs, vol. ii. p. 15+.,
mentioning a catalogue he had
found of the clergy in the arch-
deaconry of Middlesex, A.D. 1563,
with their qualifications annexed.
Three only are described as docti
Latinè et Græcè; twelve are called
docti simply; nine, Latinè docti ;
thirty-one, Latinè mediocriter in-
telligentes; forty-two, Latinè per-
peram, utcunque aliquid, pauca
verba, &c. intelligentes; seventeen
are non docti or indocti. If this
was the case in London, what can
we think of more remote parts?
CHAP.
IV.
ELIZ.
Puritans.
250
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
Puritans.
CHAP. that, after the desertion or expulsion of the most
zealous of that party had almost emptied several
ELIZ. colleges, it still for many years abounded with
adherents to the old religion.* But at Cam-
bridge, which had been equally popish at the
queen's accession, the opposite faction soon ac-
quired the ascendant. The younger students,
* In the struggle made for popery
at the queen's accession, the lower
house of convocation sent up to the
bishops five articles of faith, all
strongly catholic. These had pre-
viously been transmitted to the two
universities, and returned with the
hands of the greater part of the
doctors to the first four. The fifth
they scrupled, as trenching too
much on the queen's temporal
power. Burnet, ii. 388. iii. 269.
Strype says, the universities
were so addicted to popery that
for some years few educated in
them were ordained. Life of Grin-
dal, p. 50. And Wood's Anti-
quities of the University of Oxford
contain many proofs of its attach-
ment to the old religion. In Exeter
College, as late as 1578, there
were not above four protestants
out of eighty, "all the rest secret
or open Roman affectionaries."
These chiefly came from the west,
"where popery greatly prevailed,
and the gentry were bred up in
that religion. Strype's Annals,
ii. 539, But afterwards, Wood
complains, through the influence
of Humphrey and Reynolds (the
latter of whom became divinity
lecturer on secretary Walsingham's
foundation in 1586), the disposi-
tion of the times, and the long con-
tinuance of the earl of Leicester,
the principal patron of the puri-
tanical faction, in the place of
chancellor of Oxford, the face of
the university was so much al-
tered that there was little to be
seen in it of the church of Eng-
CC
land, according to the principles
and positions upon which it was
first reformed." Hist. of Oxford,
vol. ii. p. 228. Previously, how-
ever, to this change towards pu-
ritanism, the university had not
been Anglican, but popish; which
Wood liked much better than the
first, and nearly as well as the se-
cond.
A letter from the university of
Oxford to Elizabeth on her acces-
sion (Hearne's edition of Roper's
Life of More, p. 173.) shows the
accommodating character of these
academies. They extol Mary as
an excellent queen, but are con-
soled by the thought of her excel-
lent successor. One sentence is cu
rious: "Cum patri, fratri, sorori,
nihil fuerit republicâ carius, reli
gione optatius, verâ gloriâ dulcius;
cum in hâc familiâ hæ laudes flo-
ruerint, vehementer confidimus,
&c., quæ ejusdem stirpis sis, easdem
cupidissime prosecuturam." It was
a singular strain of complaisance
to praise Henry's, Edward's, and
Mary's, religious sentiments in the
same breath; but the queen might
at least learn this from it, that
whether she fixed on one of their
creeds, or devised a new one for
herself, she was sure of the ac
quiescence of this ancient and
learned body. A preceding letter:
to cardinal Pole, in which the
times of Henry and Edward are
treated more cavalierly, seems by
the style, which is very elegant, to
have been the production of the
same pen.
FROM HENRY VII. TO GEORGE II.
251
imbibing ardently the new creed of ecclesiastical
liberty, and excited by puritan sermons, began to
throw off their surplices, and to commit other
breaches of discipline, from which it might be
inferred that the generation to come would not be
less apt for innovation than the present.*
CHAP.
IV.
ELIZ.
Puritans.
A more de-
opposition,
termined
about 1570,
led by Cart-
The first period in the history of puritanism in-
cludes the time from the queen's accession to 1570,
during which the retention of superstitious cere-
monies in the church had been the sole avowed wright.
ground of complaint. But when these obnoxious
rites came to be enforced with unsparing rigour,
and even those who voluntarily renounced the tem-
poral advantages of the establishment were hunted
from their private conventicles, they began to con-
sider the national system of ecclesiastical regimen
as itself in fault, and to transfer to the institution
of episcopacy that dislike they felt for some of the
prelates. The ostensible founder of this new school
(though probably its tenets were by no means new
to many of the sect) was Thomas Cartwright, the
Lady Margaret's professor of divinity at Cam-
bridge. He began about 1570 to inculcate the
* The fellows and scholars of
St. John's College, to the number
of three hundred, threw off their
hoods and surplices, in 1565, with-
out any opposition from the master,
till Cecil, as chancellor of the uni-
versity, took up the matter, and
insisted on their conformity to the
established regulations. This
much dissatisfaction to the uni-
versity; not only the more intem-
perate party, but many heads of
colleges and grave men, among
whom we are rather surprised to
find the name of Whitgift, inter-
ceding with their chancellor for
gave
some mitigation as to these unpa-
latable observances. Strype's An-
nals, i. 441. Life of Parker, 194.
Cambridge had however her ca-
tholics, as Oxford had her puritans,
of whom Dr. Caius, founder of the
college that bears his name, was
among the most remarkable. Id.
200. The chancellors of Oxford
and Cambridge, Leicester and
Cecil, kept a very strict hand over
them, especially the latter, who
seems to have acted as paramount
visitor over every college, making
them reverse any act which he dis-
approved. Strype, passim.
252
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
ELIZ.
Puritans.
CHAP. unlawfulness of any form of church-government,
except what the apostles had instituted, namely,
the presbyterian. A deserved reputation for virtue,
learning, and acuteness, an ardent zeal, an inflex-
ible self-confidence, a vigorous, rude, and arrogant
style, marked him as the formidable leader of a
religious faction.* In 1572 he published his cele-
brated Admonition to the Parliament, calling on
that assembly to reform the various abuses subsist
Dangerous ing in the church. In this treatise, such a hardy
his tenets. spirit of innovation was displayed, and schemes of
nature of
ecclesiastical policy so novel and extraordinary
were developed, that it made a most important
epoch in the contest, and rendered its termination
far more improbable. The hour for liberal conces
sions had been suffered to pass away; the arch-
bishop's intolerant temper had taught men to ques-
tion the authority that oppressed them, till the
battle was no longer to be fought for a tippet and a
surplice, but for the whole ecclesiastical hierarchy,
interwoven as it was with the temporal constitution
of England.
It had been the first measure adopted in throw-
ing off the yoke of Rome to invest the sovereign
with an absolute control over the Anglican church;
so that no part of its coercive discipline could be
exercised but by his authority, nor any laws enacted
for its governance without his sanction. This su
premacy, indeed, both Henry VIII. and Edward
VI. had carried so far, that the bishops were
reduced almost to the rank of temporal officers,
taking out commissions to rule their dioceses dur-
* Strype's Annals, i. 583. Life of Parker, 312. 347. Life of Whitgift, 27.
FROM HENRY VII. TO GEORGE II.
253
IV.
ELIZ.
Puritans.
ing the king's pleasure; and Cranmer had pros- CHAP.
trated at the feet of Henry those spiritual functions
which have usually been reckoned inherent in the
order of clergy. Elizabeth took some pains to
soften and almost explain away her supremacy, in
order to conciliate the catholics; while, by means
of the high commission court, established by statute
in the first year of her reign, she was practically as-
serting it with no little despotism. But the avowed
opponents of this prerogative were hitherto chiefly
those who looked to Rome for another head
of their church. The disciples of Cartwright
now learned to claim an ecclesiastical independ-
ence, as unconstrained as the Romish priesthood
in the darkest ages had usurped. "No civil
magistrate in councils or assemblies for church
matters," he says in his Admonition, "can either
be chief moderator, over-ruler, judge, or deter-
miner; nor has he such authority as that, without
his consent, it should not be lawful for ecclesias-
tical persons to make any church orders or cere-
monies. Church matters ought ordinarily to be
handled by church officers. The principal direc-
tion of them is by God's ordinance committed to
the ministers of the church and to the ecclesiastical
governors. As these meddle not with the making
civil laws, so the civil magistrate ought not to or-
dain ceremonies, or determine controversies in the
church, as long as they do not intrench upon his
temporal authority. 'Tis the prince's province to
protect and defend the councils of his clergy, to
keep the peace, to see their decrees executed, and
to punish the contemners of them; but to exercise
254
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
ELIZ.
Puritans.
no spiritual jurisdiction."*
"It must be remem
bered," he says in another place, "that civil ma-
gistrates must govern the church according to the
rules of God prescribed in his word, and that as
they are nurses, so they be servants unto the
church; and as they rule in the church, so they
must remember to submit themselves unto the
church, to submit their sceptres, to throw down
their crowns before the church, yea, as the prophet
speaketh, to lick the dust of the feet of the
church." It is difficult to believe that I am tran-
scribing the words of a protestant writer; so much
does this passage call to mind those tones of infatu
ated arrogance, which had been heard from the
lips of Gregory VII. and of those who trod in his
footsteps. +
The strength of the protestant party had been
derived, both in Germany and in England, far less
* Cartwright's Admonition,
quoted in Neal's Hist. of Puritans,
i. 88.
>>
+Madox's Vindication of Church
of England against Neal, p. 122.
This writer quotes several very
extravagant passages from Cart-
wright, which go to prove irre-
sistibly that he would have made no
compromise short of the overthrow
of the established church, p. 111,
&c. "As to you, dear brethren,
is said in a puritan tract of 1570,
“whom God hath called into the
brunt of the battle, the Lord keep
you constant, that ye yield neither
to toleration, neither to any other
subtle persuasions of dispensations
and licenses, which were to fortify
their Romish practices; but, as
you fight the Lord's fight, be va-
liant." Madox, p. 287.
These principles had already
been broached by those who called
Calvin master; he had himself be-
come a sort of prophet-king at
Geneva. And Collier quotes pas
sages from Knox's Second Blast,
inconsistent with any government,
except one slavishly subservient to
the church. P. 444. The non-
juring historian holds out the hard
of fellowship to the puritans he
abhors, when they preach up eccle-
siastical independence. Collier
liked the royal supremacy as little
as Cartwright; and in giving an
account of Bancroft's attack on the
non-conformists for denying it,
enters upon a long discussion in
favour of an absolute emancipa-
tion from the control of laymen.
P. 610. He does not even approve
the determination of the judges
Cawdrey's case (5 Coke's Reports),
though against the non-conform-
ists, as proceeding on a wrong
principle of setting up the state
above the church. P. 634.
FROM HENRY VII. TO GEORGE II.
255
from their superiority in argument, however deci-
sive this might be, than from that desire which all
classes, and especially the higher, had long expe-
rienced to emancipate themselves from the thral-
dom of ecclesiastical jurisdiction. For it is ever
found, that men do not so much as give a hearing
to novel systems in religion, till they have imbibed,
from some cause or other, a secret distaste to that
in which they have been educated. It was there-
fore rather alarming to such as had an acquaintance
with ecclesiastical history, and knew the encroach-
ments formerly made by the hierarchy throughout
Europe, encroachments perfectly distinguishable
from those of the Roman see, to perceive the same
pretensions urged, and the same ambition and ar-
rogance at work, which had imposed a yoke on the
necks of their fathers. With whatever plausibility
it might be maintained that a connexion with tem-
poral magistrates could only corrupt the purity and
shackle the liberties of a Christian church, this ar-
gument was not for them to urge, who called on
those magistrates to do the church's bidding, to
enforce its decrees, to punish its refractory mem-
bers; and while they disdained to accept the
prince's co-operation as their ally, claimed his ser-
vice as their minister. The protestant dissenters
since the revolution, who have almost unanimously,
and, I doubt not, sincerely, declared their averse-
ness to any religious establishment, especially as
accompanied with coercive power, even in favour
of their own sect, are by no means chargeable with
these errors of the early puritans. But the scope
of Cartwright's declaration was not to obtain`a
toleration for dissent, not even by abolishing the
CHAP.
IV.
ELIZ.
Puritans.
256
THE CONSTITUTIONAL HISTORY OF ENGLAND
J
IV.
Puritans.
CHAP. whole ecclesiastical polity, to place the different
professions of religion on an equal footing, but to
ELIZ. substitute his own model of government, the one,
exclusive, unappealable standard of obedience,
with all the endowments, so far as applicable to
its frame, of the present church, and with all the
support to its discipline that the civil power could
afford.*
We are not however to conclude that every one,
or even the majority, of those who might be counted
on the puritan side in Elizabeth's reign, would have
subscribed to these extravagant sentences of Cart-
wright, or desired to take away the legal supremacy
of the crown. That party acquired strength by
the prevailing hatred and dread of popery, and by
the disgust which the bishops had been unfortunate
enough to excite. If the language which I have
quoted from the puritans breathed a spirit of eccle-
* The school of Cartwright were
as little disposed as the episco-
palians to see the laity fatten on
church property. Bancroft, in his
famous sermon preached at Paul's
Cross in 1588 (p. 24.), divides the
puritans into the clergy factious,
and the lay factious. The former,
he says, contend and lay it down
in their supplication to parliament
in 1585, that things once dedicated
to a sacred use ought so to remain
for ever, and not to be converted to
any private use. The lay, on the
contrary, think it enough for the
clergy to fare as the apostles did.
Cartwright did not spare those who
longed to pull down bishoprics for
the sake of plundering them, and
charged those who held impropria-
tions with sin. Bancroft takes de-
light in quoting his bitter phrases
from the ecclesiastical discipline.
+ The old friends and protectors
of our reformers at Zurich, Bul-
linger and Gualter, however they
had favoured the principles of
the first non-conformists, write in
strong disapprobation of the inno-
vators of 1574. Strype's Annals,
ii. 316. And Fox, the martyro-
logist, a refuser to conform, speaks,
in a remarkable letter quoted by
Fuller in his Church History, p.
107., of factiosa illa Puritanorum
capita, saying that he is totus ab iis
alienus, and unwilling perbacchari
in episcopos. The same is true of
Bernard Gilpin, who disliked some
of the ceremonies, and had sub-
scribed the articles with a reserv
<C
ation, so far as agreeable to the
word of God;" but was wholly op-
posed to the new reform of church
discipline. Carleton's Life of Gil-
pin, and Wordsworth's Ecclesias-
tical Biography, vol. iv. Neal has
not reported the matter faithfully.
FROM HENRY VII. TO GEORGE II.
257
siastical usurpation that might one day become
dangerous, many were of opinion that a spirit not
less mischievous in the present hierarchy, under
the mask of the queen's authority, was actually
manifesting itself in deeds of oppression. The
upper ranks among the laity, setting aside courtiers,
and such as took little interest in the dispute, were
chiefly divided between those attached to the an-
cient church and those who wished for further
alterations in the new. I conceive the church of
England party, that is, the party adverse to any
species of ecclesiastical change, to have been the
least numerous of the three during this reign; still
excepting, as I have said, the neutrals, who com-
monly make a numerical majority, and are counted
along with the dominant religion.* But by the
*The puritan," says Persons
the jesuit, in 1594, "is more ge-
nerally favoured throughout the
realm with all those which are not
of the Roman religion than is the
protestant, upon a certain general
persuasion that his profession is
the more perfect, especially in great
towns, where preachers have made
more impression in the artificers
and burghers than in the country
people. And among the protestants
themselves, all those that were less
interested in ccclesiastical livings,
or other preferments depending of
the state, are more affected com-
monly to the puritans, or casily are
to be induced to pass that way for
the same reason." Doleman's Con-
ference about the next Succession
to the Crown of England, p. 242.
And again:
The puritan party
at home, in England, is thought to
be most rigorous of any other, that
is to say, most ardent, quick, bold,
resolute, and to have a great part
of the best captains and soldiers on
VOL. I.
S
The
their side, which is a point of no
small moment." P. 244. I do not
quote these passages out of trust
in father Persons, but because they
coincide with much besides that
has occurred to me in reading, and
especially with the parliamentary
proceedings of this reign.
following observation will confirm
what may startle some readers;
that the puritans, or at least those
who rather favoured them, had a
majority among the protestant gen-
try in the queen's days. It is agreed
on all hands, and is quite mani-
fest, that they predominated in the
house of commons. But that house
was composed, as it has ever been,
of the principal landed proprietors,
and as much represented the general
wish of the community when it
demanded a further reform in re-
ligious matters, as on any other
subject. One would imagine, by
the manner in which some express
themselves, that the discontented
were a small faction, who by some
CHAP.
IV.
ELIZ.
Puritans.
258
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
ELIZ.
Puritans.
Puritans
supported
in the com-
mons,
act of the fifth of Elizabeth, Roman catholics were
excluded from the house of commons; or, if some
that way affected might occasionally creep into it,
yet the terror of penal laws impending over their
heads would make them extremely cautious of be-
traying their sentiments. This contributed with
the prevalent tone of public opinion, to throw such
a weight into the puritanical scale in the commons,
as it required all the queen's energy to counter-
balance.
In the parliament that met in April 1571, a few
days only after the commencement of the session,
Mr. Strickland, "a grave and ancient man of great
zeal,” as the reporter styles him, began the attack
by a long but apparently temperate speech on the
abuses of the church, tending only to the retrench-
ment of a few superstitions in the liturgy, and to
some reforms in the disposition of benefices. He
proceeded to bring in a bill for the reformation of
the common prayer, which was read a first time.
Abuses in respect to benefices appear to have been
a copious theme of scandal. The power of dis
pensation, which had occasioned so much clamour
in former ages, instead of being abolished or even
reduced into bounds at the reformation, had beeu
transferred entire from the pope to the king and
archbishop. And, after the council of Trent had
effected such considerable reforms in the catholic
discipline, it seemed a sort of reproach to the pro-
testant church of England, that she retained all
the dispensations, the exemptions, the pluralities,
which had been deemed the peculiar corruptions
unaccountable means, in despite of
the government and the nation,
formed a majority of all parlia-
ments under Elizabeth and her
two successors.
FROM HENRY VII. TO GEORGE II.
259
!
IV.
ELIZ.
Puritans.
of the worst times of popery.* In the reign of CHAP.
Edward VI., as I have already mentioned, the
canon law being naturally obnoxious from its origin
and character, a commission was appointed to draw
up a code of ecclesiastical laws. This was accord-
ingly compiled, but never obtained the sanction of
parliament; and though some attempts were made,
and especially in the commons at this very time, to
bring it again before the legislature, our ecclesi-
astical tribunals have been always compelled to
borrow a great part of their principles from the
canon law: one important consequence of which
may be mentioned by way of illustration; that
they are incompetent to grant a divorce from the
bond of marriage in cases of adultery, as had been
provided in the reformation of ecclesiastical laws
compiled under Edward VI. A disorderly state of
the church, arising partly from the want of any
fixed rules of discipline, partly from the negligence
of some bishops, and simony of others, but above
all, from the rude state of manners and general
ignorance of the clergy, is the common theme of
complaint in this period, and aggravated the in-
creasing disaffection towards the prelacy. A bill
was brought into the commons to take away the
granting of licences and dispensations by the
archbishop of Canterbury. But the queen's inter-
ference put a stop to this measure.” †
* Burnet, iii. 335. Pluralities
are still the great abuse of the
church of England; and the rules
on this head are so complicated and
unreasonable that scarce any one
can remember them. It would be
difficult to prove that, with a view
to the interests of religion among
the people, or of the clergy them-
selves, taken as a body, any plu-
ralities of benefices with cure of
souls ought to remain, except of
small contiguous parishes. But
with a view to the interests of
some hundred well connected eccle-
siastics, the difficulty is none at all.
+ D'Ewes, p. 156. Parliament.
Hist. i. 733, &c.
s
2
260
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
ELIZ.
Puritans.
The house of commons gave in this session a
more forcible proof of its temper in ecclesiastical
concerns. The articles of the English church,
originally drawn up under Edward VI., after hav
ing undergone some alteration, were finally re-
duced to their present form by the convocation of
1562. But it seems to have been thought neces
sary that they should have the sanction of parlia
ment, in order to make them binding on the clergy.
Of these articles the far greater portion relate to
matters of faith, concerning which no difference
of opinion had as yet appeared. Some few how-
ever declare the lawfulness of the established form
of consecrating bishops and priests, the supremacy
of the crown, and the power of the church to
order rites and ceremonies. These involved the
main questions at issue; and the puritan oppo-
sition was strong enough to withhold the appro-
bation of the legislature from this part of the
national symbol. The act of 13 Eliz. c. 12. accord-
ingly enacts, that every priest or minister shal!
subscribe to all the articles of religion which only
concern the confession of the true christian faith,
and the doctrine of the sacraments, comprised
in a book entitled "Articles whereupon it was
agreed," &c. That the word only was inserted
for the sake of excluding the articles which esta
blished church authority and the actual discipline,
is evident from a remarkable conversation which
Mr. Wentworth, the most distinguished asserter,
of civil liberty in this reign, relates himself in a
subsequent session (that of 1575), to have held
on the subject with archbishop Parker.
"I was,"
says, "among others, the last parliament sent
he says,
FROM HENRY VII. TO GEORGE II.
261
<
C
C
C
"
<
for unto the archbishop of Canterbury, for the
articles of religion that then passed this house.
He asked us, Why we did put out of the book
the articles for the homilies, consecration of
bishops, and such like?' Surely, sir,' said I, 'be-
cause we were so occupied in other matters that
we had no time to examine them how they agreed
with the word of God.' • What!' said he, surely
you mistake the matter; you will refer yourselves
wholly to us therein!" No; by the faith I bear
to God,' said I, we will pass nothing before we
understand what it is; for that were but to make
you popes: make you popes who list,' said I, for
we will make you none.' And sure, Mr. Speaker,
the speech seemed to me to be a pope-like speech,
and I fear least our bishops do attribute this of
the pope's canons unto themselves; Papa non
potest errare." * The intrepid assertion of the
right of private judgment on one side, and the
pretension to something like infallibility on the
other, which have been for more than two cen-
turies since so incessantly repeated, are here curi-
ously brought into contrast. As to the reservation
itself, obliquely insinuated rather than expressed in
this statute, it proved of little practical importance,
Lenfant makes a very just observ-
ation on this: "Si la gravité de
l'histoire le permettoit, on diroit
avec le comique: C'est tout com-
me ici. Il y a long tems que le
Π
premier de ces mots est le langage
de ce qu'on appelle l'Eglise, et que
le second est le langage de ce qu'on
appelle l'heresic." Concile de Basle,
* D'Ewes, p. 239. Parl. Hist.
790. Strype's Life of Parker, 394.
In a debate between cardinal
Carvajal, and Rockisane, the fa-
mous Calixtin archbishop of
Prague, at the council of Basle,
the former said he would reduce
the whole argument to two syl-
lables; Crede. The latter replied
he would do the same, and confine
himself to two others; Proba.
p. 193.
CHAP.
IV.
ELIZ.
Puritans.
1
$ 3
262
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. the bishops having always exacted a subscription to
the whole thirty-nine articles.*
IV.
ELIZ.
It was not to be expected that the haughty
Puritans. spirit of Parker, which had refused to spare the
honest scruples of Sampson and Coverdale, would
abate of its rigour towards the daring paradoxes
of Cartwright. His disciples, in truth, from dis-
satisfied subjects of the church, were become her
downright rebels, with whom it was hardly prac
ticable to make any compromise that would avoid
a schism, except by sacrificing the splendour and
jurisdiction of an established hierarchy. The arch-
bishop continued, therefore, to harass the puritan
ministers, suppressing their books, silencing them
in churches, prosecuting them in private meet-
ings.t Sandys and Grindal, the moderate re-
formers of our spiritual aristocracy, not only with-
drew their countenance from a party who aimed
at improvement by subversion, but fell, according
to the unhappy temper of their age, into courses
of undue severity. Not merely the preachers, to
whom, as regular ministers, the rules of canonical
obedience might apply, but plain citizens, for
listening to their sermons, were dragged before
the high commission and imprisoned upon any
Several ministers were de-
prived, in 1572, for refusing to
subscribe the articles. Strype, ii.
186. Unless these were papists,
which indeed is possible, their ob-
jection must have been to the ar-
ticles touching discipline; for the
puritans liked the rest very well.
Neal, 187. Strype's Parker,
325. Parker wrote to lord Bur-
leigh (June 1573), exciting the
council to proceed against some of
"He
to be
those men who had been called
before the star-chamber.
knew them," he said,
cowards".
—a very great mistake-
"and if they of the privy council
gave over, they would hinder her
majesty's government more than
they were aware, and much abate
the estimation of their own au-
thorities," &c. Id. p. 421. Cart
wright's Admonition was now pro-
hibited to be sold. Ibid.
FROM HENRY VII. TO GEORGE II.
263
IV.
ELIZ.
Puritans.
refusal to conform.* Strange that these prelates CHAP.
should not have remembered their own magnani-
mous readiness to encounter suffering for con-
science sake in the days of Mary, or should have
fondly arrogated to their particular church that
castic force of resolution, which disdains to ac-
kuov·ledge tyrannous power within the sanctuary
of the soul, and belongs to the martyrs of every
opinion without attesting the truth of any!
The puritans meanwhile had not lost all their
friends in the council, though it had become more
difficult to protect them. One powerful reason
andoubtedly operated on Walsingham and other
ministers of Elizabeth's court against crushing
their party; namely, the precariousness of the
queen's life, and the unsettled prospects of suc-
cession. They had already seen, in the duke of
Norfolk's conspiracy, that more than half the
superior nobility had committed themselves to
support the title of the queen of Scots. That title
was sacred to all who professed the catholic reli-
gion, and respectable to a large proportion of the
rest. But deeming, as they did, that queen a con-
victed adulteress and murderer, the determined
enemy of their faith, and conscious that she could
never forgive those who had counselled her deten-
tion and sought her death, it would have been
unworthy of their prudence and magnanimity to
have
gone as sheep to the slaughter, and risked
the destruction of protestantism under a second
Mary, if the intrigues of ambitious men, the pu-
sillanimity of the multitude, and the specious pre-
* Neal, 210.
and in some
the council.
measure by
$ 4
264
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
ELIZ.
Puritans.
CHAP. text of hereditary right, should favour her claims.
on a demise of the crown. They would have
failed perhaps in attempting to resist them; but
upon resistance I make no question that they had
resolved. In so awful a crisis, to what could they
better look than to the stern, intrepid, uncompro-
mising spirit of puritanism; congenial to that of
the Scottish reformers, by whose aid the lords of
the congregation had overthrown the ancient re-
ligion in despite of the regent Mary of Guise? Of
conforming churchmen, in general, they might
well be doubtful, after the oscillations of the three
preceding reigns; but every abhorrer of ceremo-
nies, every rejecter of prelatical authority, might
be trusted as protestant to the heart's core, whose
sword would be as ready as his tongue to with-
stand idolatry. Nor had the puritans admitted,
even in theory, those extravagant notions of pas-
sive obedience which the church of England had
thought fit to mingle with her homilies. While
the victory was yet so uncertain, while contingen-
cies so incalculable might renew the struggle, all
politic friends of the reformation would be anxious
not to strengthen the enemy by disunion in their
own camp. Thus sir Francis Walsingham, who
had been against enforcing the obnoxious habits,
used his influence with the scrupulous not to se-
parate from the church on account of them; and
again, when the schism had already ensued,
thwarted, as far as his credit in the council ex-
tended, that harsh intolerance of the bishops
which aggravated its mischiefs.*
* Strype's Annals, i. 433.
FROM HENRY VII. TO GEORGE II.
265
We should reason in as confined a manner as
the puritans themselves, by looking only at the
captious frivolousness of their scruples, and treat-
ing their sect either as wholly contemptible or as
absolutely mischievous. We do injustice to these
vise counsellors of the maiden queen, when we
condemn, I do not mean on the maxims only of
toleration, but of civil prudence, their unwilling-
ness to crush the non-conforming clergy by an
undeviating rigour. It may justly be said that,
in a religious sense, it was a greater good to pos-
sess a well-instructed pious clergy, able to contend
against popery, than it was an evil to let some pre-
judices against mere ceremonies gain a head. The
old religion was by no means, for at least the first
half of Elizabeth's reign, gone out of the minds
of the people. The lurking priests had great ad-
vantages from the attractive nature of their faith,
and some, no doubt, from its persecution. A
middle system, like the Anglican, though it was
more likely to produce exterior conformity, and
for that reason was, I think, judiciously introduced
at the outset, did not afford such a security against
relapse, nor draw over the heart so thoroughly, as
one which admitted of no compromise. Thus the
sign of the cross in baptism, one of the principal
topics of objection, may well seem in itself a very
innocent and decorous ceremony. But if the
perpetual use of that sign is one of the most strik-
ing superstitions in the church of Rome, it might
be urged in behalf of the puritans, that the people
were less likely to treat it with contempt, when
they saw its continuance, even in one instance, so
strictly insisted upon. I do not pretend to say
CHAP.
IV.
ELIZ.
Puritans.
266
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
ELIZ.
Puritans.
CHAP. that this reasoning is right, but that it is at least
plausible, and that we must go back and place
ourselves, as far as we can, in those times, before
we determine upon the whole of this controversy
in its manifold bearings. The great object of
Elizabeth's ministers, it must be kept in mind, was
the preservation of the protestant religion, to which
all ceremonies of the church, and even its form of
discipline, were subordinate. An indifferent pas-
siveness among the people, a humble trust in
authority, however desirable in the eyes of church-
men, was not the temper which would have kept
out the right heir from the throne, or quelled the
generous ardour of the catholic gentry on the
queen's decease.
Prophesy-
ings.
A matter very much connected with the pre-
sent subject will illustrate the different schemes of
ecclesiastical policy pursued by the two parties
that divided Elizabeth's council. The clergy in
several dioceses set up, with encouragement from
their superiors, a certain religious exercise, called
prophesyings. They met at appointed times to
expound and discuss together particular texts of
Scripture, under the presidency of a moderator,
appointed by the bishop, who finished by repeating
the substance of their debate with his own deter-
mination upon it. These discussions were in
public; and it was contended that this sifting of
the grounds of their faith, and habitual argu-
mentation, would both tend to edify the people,
very little acquainted as yet with their religion,
and supply in some degree the deficiencies of
learning among the pastors themselves. These
deficiencies were indeed glaring; and it is not
FROM HENRY VII. TO GEORGE II.
267
unlikely that the prophesyings might have had a
salutary effect, if it had been possible to exclude
the prevailing spirit of the age. It must however
be evident to any one who had experience of man-
kind, that the precise clergy, armed not only with
popular topics, but with an intrinsic superiority of
learning and ability to support them, would wield
these assemblies at their pleasure, whatever might
be the regulations devised for their control. The
queen entirely disliked them, and directed Parker
to put them down. He wrote accordingly to
Parkhurst, bishop of Norwich, for that purpose.
The bishop was unwilling to comply. And some
privy-counsellors interfered by a letter, enjoining
him not to hinder those exercises, so long as no-
thing contrary to the church was taught therein.
This letter was signed by sir Thomas Smith, sir
Walter Mildmay, bishop Sandys, and sir Francis
Knollys. It was, in effect, to reverse what the
archbishop had done. Parker, however, who was
not easily daunted, wrote again to Parkhurst, that,
understanding he had received instructions in
opposition to the queen's orders and his own, he
desired to be informed what they were. This
seems to have checked the counsellors; for we find
that the prophesyings were now put down.*
Though many will be of opinion that Parker
took a statesman-like view of the interests of the
church of England in discouraging these exercises,
they were generally regarded as so conducive to
instruction that he seems to have stood almost
alone in his opposition to them. Sandy's name
*
Strype's Annals, ü. 219. 322. Life of Parker, 461.
CHAP.
IV.
ELIZ.
Puritans.
268
THE CONSTITUTIONAL HISTORY OF ENGLAND
•
CHAP.
IV.
ELIZ.
Puritans.
Grindal.
Whitgift.
appears to the above-mentioned letter of the coun-
cil to Parkhurst. Cox, also, was inclined to fa-
vour the prophesyings. And Grindal, who in 1575
succeeded Parker in the see of Canterbury, bore
the whole brunt of the queen's displeasure rather
than obey her commands on this subject. He
conceived that, by establishing strict rules with re-
spect to the direction of those assemblies, the
abuses which had already appeared of disorderly
debate, and attacks on the discipline of the church.
might be got rid of without entirely abolishing
the exercise. The queen would hear of no mid-
dle course, and insisted both that the prophesyings
should be discontinued, and that fewer licenses
for preaching should be granted. For no parish
priest could without a license preach any discourse
except the regular homilies; and this was one of
the points of contention with the puritans. Grin-
dal steadily refused to comply with this injunction;
and was in consequence sequestered from the
exercise of his jurisdiction for the space of about
five years, till, on his making a kind of submission,
the sequestration was taken off not long before
his death. The queen, by circular letters to the
bishops, commanded them to put an end to the
prophesyings, which were never afterwards re-
newed.*
Whitgift, bishop of Worcester, a person of a very
* Strype's Life of Grindal, 219.
230. 272. The archbishop's letter
to the queen, declaring his unwil-
lingness to obey her requisition, is
in a far bolder strain than the pre-
lates were wont to use in this reign,
and perhaps contributed to the se-
verity she showed towards him.
Grindal was a very honest, con-
scientious man, but too little of a
courtier or statesman for the place
he filled. He was on the point of
resigning the archbishopric when
he died; there had at one time
been some thoughts of depriving
him.
FROM HENRY VII. TO GEORGE II.
269
CHAP.
IV.
Puritans.
opposite disposition, was promoted, in 1583, to the
primacy, on Grindal's decease. He had distin-
guished himself some years before by an answer ELIZ.
to Cartwright's Admonition, written with much
ability, but not falling short of the work it under-
took to confute in rudeness and asperity.* It is
seldom good policy to confer such eminent sta-
tions in the church on the gladiators of theological
controversy; who from vanity and resentment,
as well as the course of their studies, will always
be prone to exaggerate the importance of the dis-
putes wherein they have been engaged, and to
turn whatever authority the laws or the influence
of their place may give them against their adver-
saries. This was fully illustrated by the conduct of
archbishop Whitgift, whose elevation the wisest of
Elizabeth's counsellors had ample reason to regret.
In a few months after his promotion, he gave an His con-
earnest of the rigour he had determined to adopt, forcing
by promulgating articles for the observance of conformity.
discipline. One of these prohibited all preaching,
reading, or catechising in private houses, whereto
any not of the same family should resort, "seeing
the same was never permitted as lawful under any
christian magistrate." But that which excited the
loudest complaints was the subscription to three
points, the queen's supremacy, the lawfulness of
the common prayer and ordination service, and
*Strype's Whitgift, 27. et alibi.
He did not disdain to reflect on
Cartwright for his poverty, the
consequence of a scrupulous ad-
herence to his principles. But the
controversial writers of every side
in the sixteenth century display a
want of decency and humanity
which even our anonymous libel-
•
lers have hardly matched. Whit-
gift was not of much learning, if
it be true, as the editors of the
Biographia Britannica intimate,
that he had no acquaintance with
the Greek language. This must
seem strange to those who have an
exaggerated notion of the scholar-
ship of that age.
duct in en-
270
THE CONSTITUTIONAL HISTORY OF ENGLAND
11
CHAP.
IV.
ELIZ.
Puritans.
the truth of the whole thirty-nine articles, exacted
from every minister of the church.* These in-
deed were so far from novelties, that it might
seem rather supererogatory to demand them (if
in fact the law required subscription to all the ar-
ticles); yet it is highly probable that many had
hitherto eluded the legal subscriptions, and that
others had conceived their scruples after having
conformed to the prescribed order. The arch-
bishop's peremptory requisition passed, perhaps
justly, for an illegal stretch of power. It en-
countered the resistance of men pertinaciously at-
tached to their own tenets, and ready to suffer the
privations of poverty rather than yield a simulated
obedience. To suffer however in silence has at
no time been a virtue with our protestant dissen-
ters. The kingdom resounded with the clamour
of those who were suspended or deprived of their
benefices, and of their numerous abettors. They
* Strype's Whitgift, 115.
+ Neal, 266. Birch's Memoirs
of Elizabeth, vol. i. p. 42. 47, &c.
According to a paper in the
appendix to Strype's Life of Whit-
gift, p. 60., the number of conform-
able ministers in cleven dioceses,
not including those of London and
Norwich, the strong-holds of pu-
ritanism, was 786, that of non-
compliers 49. But Neal says that
233 ministers were suspended in
only six counties, 64 of whom in
Norfolk, 60 in Suffolk, 38 in Es-
sex, p. 268. The puritans formed
so much the more learned and di-
ligent part of the clergy, that a
great scarcity of preachers was ex-
perienced throughout this reign,
in consequence of silencing so many
of the former. Thus in Cornwall,
about the year 1578, out of 140
clergymen, not one was capable of
preaching. Neal, p. 245. And, in
general, the number of those who
could not preach, but only read
the service, was to the others nearly
as four to one; the preachers being
a majority only in London. Id.
p. 320.
This may be deemed by some
an instance of Neal's prejudice.
But that historian is not so ill-in-
formed as they suppose; and the
fact is highly probable. Let it be
remembered that there existed few
books of divinity in English; that
all books were, comparatively to
the value of money, far dearer than
at present; that the majority of
the clergy were nearly illiterate,
and many of them addicted to
drunkenness and low vices; above
all, that they had no means
plying their deficiencies by preach-
and
ing the discourses of others;
we shall see little cause for doubting
Neal's statement, though founded
on a puritan document.
of
sup
FROM HENRY VII. TO GEORGE II.
271
appealed from the archbishop to the privy coun-
cil. The gentry of Kent and other counties
strongly interposed in their behalf. They had
powerful friends at court, especially Knollys, who
wrote a warm letter to the archbishop.* But, se-
cure of the queen's support, who was now chiefly
under the influence of sir Christopher Hatton, a
decided enemy to the puritans, Whitgift relented
not a jot of his resolution, and went far greater
lengths than Parker had ever ventured, or perhaps
had desired, to proceed.
CHAP
IV.
ELIZ.
Puritans.
mission
The act of supremacy, while it restored all ec- High com-
clesiastical jurisdiction to the crown, empowered court.
the queen to execute it by commissioners appointed
under the great seal, in such manner and for such
time as she should direct; whose power should
extend to visit, correct, and amend all heresies,
schisms, abuses, and offences whatever, which fall
under the cognizance and are subject to the cor-
rection of spiritual authority. Several temporary
commissions had sat under this act with continually
augmented powers, before that appointed in 1583,
wherein the jurisdiction of this anomalous court
almost reached its zenith. It consisted of forty-
four commissioners, twelve of whom were bishops,
many more privy-counsellors, and the rest either
clergymen or civilians. This commission, after
reciting the acts of supremacy, uniformity, and
two others, directs them to inquire from time to
time, as well by the oaths of twelve good and
lawful men, as by witnesses and all other means
they can devise, of all offences, contempts, or mis-
* Life of Whitgift, 137. et alibi pluries. Annals, iii. 183.
272
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
ELIZ.
Puritans.
demeanours done and committed contrary to the
tenor of the said several acts and statutes; and
also to inquire of all heretical opinions, seditious
books, contempts, conspiracies, false rumours or
talks, slanderous words and sayings, &c., contrary
to the aforesaid laws. Power is given to any three
commissioners, of whom one must be a bishop, to
punish all persons absent from church, according
to the act of uniformity, or to visit and reform he-
resies and schisms according to law; to deprive all
beneficed persons holding any doctrine contrary to
the thirty-nine articles; to punish incests, adulte-
ries, and all offences of the kind; to examine all
suspected persons on their oaths, and to punish all
who should refuse to appear or to obey their orders,
by spiritual censure or by discretionary fine or im-
prisonment; to alter and amend the statutes of
colleges, cathedrals, schools, and other foundations,
and to tender the oath of supremacy according to
the act of parliament.*
* Neal, 274. Strype's Annals,
iii. 180.
The germ of the high commis-
sion court seems to have been a
commission granted by Mary (Feb.
1557) to certain bishops and others
to inquire after all heresies, punish
persons misbehaving at church,
and such as refused to come thither,
either by means of presentments
by witness, or any other politic
way they could devise; with full
power to proceed as their discre-
tions and conciences should direct
them; and to use all such means
as they could invent, for the search-
ing of the premises, to call wit-
nesses, and force them to make
oath of such things as might dis-
cover what they sought after. Bur-
net, ii. 347. But the primary mo-
del was the inquisition itself.
It was questioned whether the
power of deprivation for not read-
ing the common prayer, granted to
the high commissioners, were le-
gal; the act of uniformity having
annexed a much smaller penalty.
But it was held by the judges in
the case of Cawdrey (5 Coke Re-
ports), that the act did not take
away the ecclesiastical jurisdiction
and supremacy which had ever ap-
pertained to the crown, and by vir-
tue of which it might erect courts
with as full spiritual jurisdiction
as the archbishops and bishops
exercised.
FROM HENRY VII. TO GEORGE II.
273
IV.
ELIZ.
Puritans.
Master of such tremendous machinery, the arch- CHAP.
bishop proceeded to call into action one of its
powers contained for the first time in the present
commission, by tendering what was technically
styled the oath ex officio, to such of the clergy as
were surmised to harbour a spirit of puritanical
disaffection. This procedure, which was wholly
founded on the canon law, consisted in a series of
interrogations, so comprehensive as to embrace the
whole scope of clerical uniformity, yet so precise
and minute as to leave no room for evasion, to
which the suspected party was bound to answer
upon oath.*
So repugnant was this to the rules of
our English law, and to the principles of natural
equity, that no species of ecclesiastical tyranny
seems to have excited so much indignation. Lord Lord Bur-
Burleigh, who, though at first rather friendly to
Whitgift, was soon disgusted by his intolerant and
arbitrary behaviour, wrote in strong terms of re-
monstrance against these articles of examination,
as "so curiously penned, so full of branches and
circumstances, as he thought the inquisitors of
Spain used not so many questions to comprehend
and to trap their preys." The primate replied by
alledging reasons in behalf of the mode of examin-
ation, but very frivolous, and such as a man deter-
mined to persevere in an unwarrantable course of
action may commonly find. They had little effect
on the calm and sagacious mind of the treasurer,
who continued to express his dissatisfaction, both
individually and as one of the privy council. But
3
Strype's Whitgift, 135.; and
Appendix, 49.
Id. 157. 160.
Memoirs, i. 62. There was said to
be a scheme on foot, about 1590,
to make all persons in office sub-
‡ Id. 163. 166. et alibi. Birch's scribe a declaration that episcopacy
VOL. I.
T
to severity.
leigh averse
274
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
ELIZ.
Puritans.
the extensive jurisdiction improvidently granted to
the ecclesiastical commissioners, and which the
queen was not at all likely to recall, placed Whit
gift beyond the control of the temporal adminis
tration.
The archbishop, however, did not stand alone
in this impracticable endeavour to overcome the
stubborn sectaries by dint of hard usage. Several
other bishops were engaged in the same uncharitable
course; but especially Aylmer of London, who
has left a worse name in this respect than any
prelate of Elizabeth's reign. † The violence of
Aylmer's temper was not redeemed by many vir-
tues; it is impossible to exonerate his character
from the imputations of covetousness and of plun-
dering the revenues of his see; faults very preva-
lent among the bishops of that period. The privy
council wrote sometimes to expostulate with Ayl
mer, in a tone which could hardly have been em-
ployed towards a man in his station who had not.
forfeited the general esteem. Thus, upon occasion
of one Benison, whom he had imprisoned without
cause, we find a letter signed by Burleigh, Leices
ter, Walsingham, and even Hatton, besides several
others, urging the bishop to give the man a sum of
money, since he would recover damages at law,
which might hurt his lordship's credit. Aylmer,
however, who was of a stout disposition, especially
when his purse was interested, objected strongly to
this suggestion, offering rather to confer on Beni-
was lawful by the word of God, mer, p. 59, &c. His biographer is
which Burleigh prevented.
here, as in all his writings, too
partial to condemn, but too honest
* Neal, 325. 385.
+ Id. 290. Strype's Life of Ayl- to conceal.
FROM HENRY VII. TO GEORGE II.
275
son a small living, or to let him take his action at
law. The result does not appear; but probably
the bishop did not yield.* He had worse suc-
cess in an information laid against him for fell-
ing his woods, which ended not only in an in-
junction, but a sharp reprimand from Cecil in
the star-chamber. †
may
What lord Burleigh thought of these proceedings
be seen in the memorial to the queen on mat-
ters of religion and state, from which I have, in the
last chapter, made an extract to show the tolerance
of his disposition with respect to catholics. Pro-
testing that he was not in the least addicted to the
preciser sort of preachers, he declares himself
"bold to think that the bishops, in these danger-
ous times, take a very ill and unadvised course in
driving them from their cures ;" first, because it
must discredit the reputation of her majesty's
power, when foreign princes should perceive that
even among her protestant subjects, in whom con-
sisted all her force, strength, and power, there was
so great a heart-burning and division; and se-
condly, "because," he says, "though they were
over squeamish and nice in their opinions, and
more scrupulous than they need; yet with their
careful catechising and diligent preaching, they
bring forth that fruit which your most excellent
majesty is to desire and wish; namely, the lessen-
• Neal, 294.
Strype's Aylmer, 71. When
he
grew old, and reflected that a
large sum of money would be due
from his family, for dilapidations
of the palace at Fulham, &c. he
literally proposed to sell his bishop-
ric to Bancroft. Id. 169. The other
however waited for his death, and
had above £4000 awarded to him;
but the crafty old man having laid
out his money in land, this sum
was never paid. Bancroft tried to
get an act of parliament in order
to render the real estate liable, but
without success; p. 194.
CHAP.
IV.
ELIZ.
Puritans,
T 2
276
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
ELIZ.
Puritans.
CHAP. ing and diminishing the papistical numbers."* But
this great minister's knowledge of the queen's tem-
per, and excessive anxiety to retain her favour,
made him sometimes fearful to act according to his
own judgment. "It is well known," lord Bacon
says of him, in a treatise published in 1591, "that
as to her majesty, there was never a counsellor of
his lordship's long continuance that was so appli
able to her majesty's princely resolutions, en-
deavouring always after faithful propositions and
remonstrances, and these in the best words and the
most grateful manner, to rest upon such conclu-
sions as her majesty in her own wisdom determin-
eth, and them to execute to the best; so far hath
he been from contestation, or drawing her majesty
into any of his own courses."+ Statesmen who be
tray this unfortunate infirmity of clinging too
fondly to power, become the slaves of the princes
they serve. Burleigh used to complain of the
harshness with which the queen treated him. ‡
And though, more lucky than most of his class, he
kept the white staff of treasurer down to his death,
he was reduced in his latter years to court a rising
favourite more submissively than became his own
dignity. From such a disposition we could not
expect any decided resistance to those measures of
severity towards the puritans which fell in so en-
tirely with Elizabeth's temper.
There is no middle course, in dealing with re-
ligious sectaries, between the persecution that ex
* Somers' Tracts, i. 166.
Bacon's Works, i. 532.
Birch's Memoirs, ii. 146.
Id. ibid. Burleigh does not
shine much in these memoirs; but
most of the letters they contain are
from the two Bacons, then engaged
in the Essex faction, though ne-
phews of the treasurer.
FROM HENRY VII. TO GEORGE II.
277
terminates, and the toleration that satisfies.
They CHAP.
IV.
Puritans.
were wise in their generation, the Loaisas and Val-
des of Spain, who kindled the fires of the inquisi- ELIZ.
tion, and quenched the rising spirit of protestantism
in the blood of a Seso and a Cazalla. But sustained
by the favouring voice of his associates, and still
more by that firm persuasion which bigots never
know how to appreciate in their adversaries, a pu-
ritan minister set at nought the vexatious and arro-
gant tribunal before which he was summoned.
Exasperated, not overawed, the sectaries threw off*
what little respect they had hitherto paid to the
hierarchy. They had learned, in the earlier con-
troversies of the reformation, the use, or, more
truly, the abuse, of that powerful lever of human
bosoms, the press. He who in Saxony had sounded
the first trumpet-peal against the battlements of
Rome, had often turned aside from his graver
labours to excite the rude passions of the populace
by low ribaldry and exaggerated invective; nor
had the English reformers ever scrupled to win
proselytes by the same arts. What had been ac-
counted holy zeal in the mitred Bale and martyred
Latimer, might plead some apology from example
in the aggrieved puritan. Pamphlets, chiefly anony- Puritan
mous, were rapidly circulated throughout the king-
dom, inveighing against the prelacy. Of these
libels the most famous went under the name of
Martin Mar-prelate, a vizored knight of those lists,
behind whose shield a host of sturdy puritans were
supposed to fight. These were printed at a move-
able
press, shifted to different parts of the country
as the pursuit grew hot, and contained little serious
argument, but the unwarrantable invectives of
libels.
T 3
278
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV
ELIZ.
Puritans.
CHAP. angry men, who stuck at no calumny to blacken
their enemies.* If these insults upon authority are
apt sometimes to shock us even now, when long
usage has rendered such licentiousness of sedi-
tious and profligate libellers almost our daily food,
what must they have seemed in the reign of
Elizabeth, when the press had no acknowledged
liberty, and while the accustomed tone in address-
ing those in power was little better than servile.
adulation?
A law had been enacted some years before,
levelled at the books dispersed by the seminary
priests, which rendered the publication of seditious
libels against the queen's government a capital
felony. This act, by one of those strained con-
structions which the judges were commonly ready
to put upon any political crime, was brought to
bear on some of these puritanical writings. The
authors of Martin Mar-prelate could not be traced
with certainty; but strong suspicions having fallen
on one Penry, a young Welshman, he was tried
some time after for another pamphlet, containing
some sharp reflections on the queen herself, and
received sentence of death, which it was thought
proper to carry into execution. ‡ Udal, a puritan
* The first of Martin Mar-pre-
late's libels were published in 1588.
In the month of November of that
year the archbishop is directed by
a letter from the council to search
for and commit to prison the au-
thors and printers. Strype's Whit-
gift, 288. These pamphlets are
scarce; but a few extracts from
them may be found in Strype, and
other authors. The abusive lan-
guage of the puritan pamphleteers
had begun several years before.
Strype's Annals, ii. 193.
See the
trial of sir Richard Knightley of
Northamptonshire for dispersing
puritanical libels.
puritanical libels. State Trials, i.
1263.
主
​23 Eliz, c. 2.
Penry's protestation at his
death is in a style of the most af
fecting and simple cloquence. Life
of Whitgift, 409. and Appendix,
176. It is a striking contrast to the
coarse abuse for which he suffered.
The authors of Martin Mar-prelate
FROM HENRY VII. TO GEORGE II.
279
minister, fell into the grasp of the same statute for
an alledged libel on the bishops, which had surely
a very indirect reference to the queen's administra-
tion. His trial, like most other political trials of
the age, disgraces the name of English justice. It
consisted mainly in a pitiful attempt by the court
to entrap him into a confession that the imputed
libel was of his writing, as to which their proof
was deficient. Though he avoided this snare, the
jury did not fail to obey the directions they re-
ceived to convict him. So far from being con-
cerned in Martin's writings, Udal professed his
disapprobation of them and his ignorance of the
author. This sentence appeared too iniquitous to
be executed even in the eyes of Whitgift, who
interceded for his life; but he died of the effects
of confinement.*
were never fully discovered; but
Penry seems not to deny his con-
cern in it.
* State Trials, 1271. It may be
remarked on this as on other occa-
sions, that Udal's trial is evidently
published by himself; and a de-
fendant, especially in a political
proceeding, is apt to give a partial
colour to his own case. Life of
Whitgift, 314. Annals of Reform-
ation, iv. 21. Fuller's Church
History, 122. Neal, 340. This
writer says:
Among the divines
who suffered death for the libels
above mentioned, was the rev. Mr.
Udal." This is no doubt a splen-
etic mode of speaking. But War-
burton, in his short notes on Neal's
history, treats
CC
Neal than he intended, speaking
of his own comments as CC a full
confutation (I quote from memory)
of that historian's false facts and
misrepresentations." But when we
look at these, we find a good deal
of wit and some pointed remarks,
but hardly any thing that can be
deemed a material correction of
facts.
Neal's History of the Puritans
is almost wholly compiled, as far
as this reign is concerned, from
Strype, and from a manuscript writ-
ten by some puritan about the time.
It was answered by Madox, after-
wards bishop of Worcester, in a
Vindication of the Church of Eng-
land, published anonymously in
1733. Neal replied with tolerable
success; but Madox's book is still
an useful corrective. Both how-
ever were, like most controver-
sialists, prejudiced men, loving the
interests of their respective factions
better than truth, and not very
treats it as a wilful and
audacious attempt to impose on
the reader; as if the ensuing pages
did not let him into all the circum-
stances. I will here observe that
Warburton, in his self-conceit, has
paid a much higher compliment to
CHAP.
IV.
ELIZ.
Puritans.
T 4
280
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
ELIZ.
Puritans.
Attempt to
set up a
Presby-
terian
system.
If the libellous pen of Martin Mar-prelate was
a thorn to the rulers of the church, they had still
more cause to take alarm at an overt measure of
revolution which the discontented party began to
effect about the year 1590. They set up, by com-
mon agreement, their own platform of government
by synods and classes; the former being a sort of
general assemblies, the latter held in particular
shires or dioceses, agreeably to the presbyterian
model established in Scotland. In these meetings
debates were had, and determinations usually
made, sufficiently unfavourable to the established
system. The ministers composing them subscribed
to the puritan book of discipline. These associ-
ations had been formed in several counties, but
chiefly in those of Northampton and Warwick,
under the direction of Cartwright, the legislator
of their republic, who possessed, by the earl of
Leicester's patronage, the mastership of a hospital
in the latter town.* It would be unjust to cen-
sure the archbishop for interfering to protect the
discipline of his church against these innovators,
had but the means adopted for that purpose been
more consonant to equity. Cartwright with se
veral of his sect were summoned before the eccle-
siastical commission; where refusing to inculpate
themselves by taking the oath ex officio, they were
committed to the Fleet. This punishment not
satisfying the rigid churchmen, and the authority
of the ecclesiastical commission being incompetent
scrupulous about misrepresenting
an adversary. But Neal had got
rid of the intolerant spirit of the
puritans, while Madox labours to
justify every act of Whitgift and
Parker.
* Life of Whitgift, 328.
FROM HENRY VII. TO GEORGE II.
281
IV.
ELIZ.
Puritans.
to inflict any heavier judgment, it was thought fit CHAP.
the next year to remove the proceedings into the
court of star-chamber. The judges, on being con-
sulted, gave it as their opinion, that since far less
crimes had been punished by condemnation to
the galleys or perpetual banishment, the latter
would be fittest for their offence. But several of
the council had more tender regards to sincere,
though intractable, men; and in the end they
were admitted to bail upon a promise to be quiet,
after answering some interrogatories respecting the
queen's supremacy and other points, with civility
and an evident wish to avoid offence.*
It may
be observed that Cartwright explicitly declared
his disapprobation of the libels under the name of
Martin Mar-prelate.† Every political party, how-
ever honourable may be its objects and character,
is liable to be disgraced by the association of such
unscrupulous zealots. But, though it is an un-
candid sophism to charge the leaders with the
excesses they profess to disapprove in their fol-
lowers, it must be confessed that few chiefs of
faction have had the virtue to condemn with suf
ficient energy the misrepresentations which are
intended for their benefit.
It was imputed to the puritan faction with more
or less of truth, that, not content with the subver-
sion of episcopacy and of the whole ecclesiastical
polity established in the kingdom, they maintained
principles that would essentially affect its civil
institutions. Their denial indeed of the queen's
* Id. 336. 360. 366. Append.
142. 159.
52.
+ Id. Append. 135. Annals, iv.
282
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
ELIZ.
Puritans.
CHAP. supremacy, carried to such lengths as I have shown
above, might justly be considered as a derogation
of her temporal sovereignty. Many of them as-
serted the obligation of the judicial law of Moses,
at least in criminal cases; and deduced from this
the duty of putting idolaters, (that is, papists,) adul-
terers, witches and demoniacs, sabbath-breakers,
and several other classes of offenders, to death.*
They claimed to their ecclesiastical assemblies the
right of determining "all matters wherein breach
of charity may be, and all matters of doctrine and
manners, so far as appertaineth to conscience."
They took away the temporal right of patronage
to churches, leaving the choice of ministers to ge-
neral suffrage. There are even passages in Cart-
wright's Admonition, which intimate that the
commonwealth ought to be fashioned after the
model of the church. ‡ But these it would not be
candid to press against the more explicit declar
ations of all the puritans in favour of a limited mon-
archy, though they grounded its legitimacy on the
republican principles of popular consent. § And
with respect to the former opinions, they appear
to have been by no means common to the whole
puritan body; some of the deprived and impri-
* This predilection for the Mo- though I conceive it to be not very
saic polity was not uncommon far from the truth.
among the reformers; Collier
quotes passages from Martin Bucer
as strong as could well be found in
the puritan writings. P. 303.
+Life of Whitgift, p. 61. 333.
and Append. 138. Annals, iv. 140.
As I have not seen the original
works in which these tenets are
said to be promulgated, I cannot
vouch for the fairness of the re-
presentation made by hostile pens,
Ibid. Madox's Vindication of
the Ch. of Eng. against Neal,
p. 212. Strype's Annals, iv. 142.
§ The large views of civil go-
vernment entertained by the puri-
tans were sometimes imputed to
them as a crime by their more
courtly adversaries, who reproach-
ed them with the writings of Bu
chanan and Languet. Life of Whit-
gift, 258. Annals, iv. 142.
FROM HENRY VII. TO GEORGE II.
283
soned ministers even acknowledging the queen's CHAP.
supremacy in as full a manner as the law conferred
it on her, and as she professed to claim it.*
The pretensions advanced by the school of Cart-
wright did not seem the less dangerous to those
who cast their eyes upon what was passing in
Scotland, where they received a practical illustra-
tion. In that kingdom, a form of polity very nearly
conforming to the puritanical platform had become
established at the reformation in 1560; except that
the office of bishop or superintendent still con-
tinued, but with no paramount, far less arbitrary
dominion, and subject even to the provincial synod,
much more to the general assembly of the Scottish
church. Even this very limited episcopacy was
abolished in 1592. The presbyterian clergy, in-
dividually and collectively, displayed the intrepid,
haughty, and untractable spirit of the English
puritans. Though Elizabeth had from policy
abetted the Scottish clergy in their attacks upon
the civil administration, this connexion itself had
probably given her such an insight into their tem-
* See a declaration to this effect,
at which no one could cavil, in
Strype's Annals, iv. 85. The pu-
ritans, or at least some of their
friends, retaliated this charge of
denying the queen's supremacy
on their adversaries. Sir Francis
Knollys strongly opposed the
clains of episcopacy, as a divine
institution, which had been covert-
ly insinuated by Bancroft, on the
ground of its incompatibility with
the prerogative, and urged lord
Burleigh to make the bishops ac-
knowledge they had no superiority
over the clergy, except by statute,
as the only means to save her ma-
jesty from the extreme danger into
which she was brought by the ma-
chinations of the pope and king of
Spain. Life of Whitgift, p. 350.
361.389. He wrote afterwards to
lord Burleigh in 1591, that if he
might not speak his mind freely
against the power of the bishops,
and prove it unlawful, by the laws
of this realm, and not by the canon
law, he hoped to be allowed to be-
come a private man. This bold
letter he desires to have shown to
the queen. Lansdowne Catalogue,
vol. lxviii. 84.
IV.
ELIZ.
Puritans.
284
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
per as well as their influence, that she must have
shuddered at the thought of seeing a republican
ELIZ. assembly substituted for those faithful satraps, her
bishops, so ready to do her bidding, and so patient
under the hard usage she sometimes bestowed on
them.
Puritans.-
House of
commons
averse to
episcopal
authority.
These prelates did not however obtain so much
support from the house of commons as from their
sovereign. In that assembly a determined band
of puritans frequently carried the victory against
the courtiers. Every session exhibited proofs of
their dissatisfaction with the state of the church.
The crown's influence would have been too weak
without stretches of its prerogative. The com-
mons in 1575 received a message forbidding them
to meddle with religious concerns. For five years
afterwards the queen did not convoke parliament,
of which her dislike to their puritanical temper
might in all probability be the chief reason. But,
when they met again in 1580, the same topic of
ecclesiastical grievances, which had by no means
abated during the interval, was revived. The
commons appointed a committee, formed only of
the principal officers of the crown who sat in the
house, to confer with some of the bishops, accord-
ing to the irregular and imperfect course of par-
liamentary proceedings in that age, "touching the
griefs of this house for some things very requisite
to be reformed in the church, as the great number
of unlearned and unable ministers, the great abuse
of excommunications for every matter of small
moment, the commutation of penances, and the
great multitude of dispensations and pluralities,
FROM HENRY VII. TO GEORGE II.
285
and other things very hurtful to the church."*
The committee reported that they found some of
the bishops desirous of a remedy for the abuses
they confessed, and of joining in a petition for
that purpose to her majesty; which had accord-
ingly been done, and a gracious answer, promising
all convenient reformation, but laying the blame
of remissness upon some prelates, had been re-
ceived. This the house took with great thankful-
ness. It was exactly the course which pleased
Elizabeth, who had no regard for her bishops, and
a real anxiety that her ecclesiastical as well as
temporal government should be well administered,
provided her subjects would intrust the sole care
of it to herself, or limit their interference to
modest petitioning.
A new parliament having been assembled, soon
after Whitgift on his elevation to the primacy had
begun to enforce an universal conformity, the
lower house drew up a petition in sixteen articles,
to which they requested the lords' concurrence,
complaining of the oath ex officio, the subscrip-
tion to the three new articles, the abuses of ex-
communication, licences for non-residence, and
other ecclesiastical grievances. The lords replied
coolly, that they conceived many of those articles,
which the commons had proposed, to be unne-
cessary, and that others of them were already pro-
vided for; and that the uniformity of the common
prayer, the use of which the commons had re-
quested to leave in certain respects to the min-
ister's discretion, had been established by parlia-
* D'Ewes, 302. Strype's Whitgift, 92. Append. 32.
CHAP.
IV.
ELIZ.
Puritans.
286
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
ELIZ.
Puritans.
ment. The two archbishops, Whitgift and Sandys,
made a more particular answer to each article of
the petition, in the name of their brethren.* But,
in order to show some willingness towards re-
formation, they proposed themselves in convoca-
tion a few regulations for redress of abuses, none
of which, however, on this occasion, though they
received the royal assent, were submitted to the
legislature t; the queen in fact maintaining an in-
superable jealousy of all intermeddling on the pat
of parliament with her exclusive supremacy over
the church. Excluded by Elizabeth's jealousy
from entertaining these religious innovations,
which would probably have met no unfavourable
reception from a free parliament, the commons
vented their ill-will towards the dominant hier-
archy in complaints of ecclesiastical grievances,
and measures to redress them; as to which, even
with the low notions of parliamentary right pre-
vailing at court, it was impossible to deny their
competence. Several bills were introduced this
session of 1584-5 into the lower house, which,
though they had little chance of receiving the
queen's assent, manifest the sense of that assem-
bly, and in all likelihood of their constituents.
One of these imported that bishops should be
sworn in one of the courts of justice to do nothing
in their office contrary to the common law. Au-
other went to restrain pluralities, as to which the
prelates would very reluctantly admit of any limit-
ation.‡ A bill of the same nature passed the
* D'Ewes, 339. et post. Strype's
Whitgift, 176, &c. Append. 70.
† Strype's Annals, iii. 228.
Strype's Annals, iii. 186. 192.
Compare Append. 35.
FROM HENRY VII. TO GEORGE II.
287
commons in 1589, though not without some op-
position. The clergy took so great alarm at this
measure, that the convocation addressed the queen
in vehement language against it; and the arch-
bishop throwing all the weight of his advice and
authority into the same scale, the bill expired in
the upper house.*
A similar proposition in the
session of 1601 seems to have miscarried in the
commons.† In the next chapter will be found
other instances of the commons' reforming temper
in ecclesiastical concerns, and the queen's deter-
mined assertion of her supremacy.
The oath ex officio, binding the taker to answer
all questions that should be put to him, inasmuch
as it contravened the generous maxim of English
law that no one is obliged to criminate himself,
provoked very just animadversion. Morice, at-
torney of the court of wards, not only attacked its
legality with arguments of no slight force, but in-
troduced a bill to take it away. This was on the
whole well received by the house; and sir Francis
Knollys, the stanch enemy of episcopacy, though
in high office, spoke in its favour. But the queen
put a stop to the proceeding, and Morice lay some
time in prison for his boldness. The civilians, of
whom several sat in the lower house, defended a
mode of procedure that had been borrowed from
their own jurisprudence. This revived the ancient
animosity between them and the common lawyers.
The latter had always manifested a great jealousy
of the spiritual jurisdiction, and had early learned
to restrain its exorbitances by writs of prohibition
* Strype's Whitgift, 279. Annals, iii. 543. + Parl. Hist. 921.
CHAP.
IV.
ELIZ.
Puritans.
288
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
ELIZ.
Puritans.
CHAP. from the temporal courts. Whitgift, as tenacious
of power as the most ambitious of his predecessors,
murmured like them at this subordination, for such
it evidently was, to a lay tribunal.* But the
judges, who found as much gratification in exert-
ing their power as the bishops, paid little regard
to the remonstrances of the latter. We find the
reports of this and the succeeding reign full of
cases of prohibitions. Nor did other abuses im-
puted to these obnoxious judicatures fail to pro-
voke censure, such as the unreasonable fees of
their officers, and the usage of granting licences,
and commuting penances for money. The ec-
clesiastical courts indeed have generally been
reckoned more dilatory, vexatious, and expensive
than those of the common law. But in the pre-
sent age that part of their jurisdiction, which,
though coercive, is professedly spiritual, and
wherein the greatest abuses have been alledged to
exist, has gone very much into disuse. In matri-
monial and testamentary causes, their course of
proceeding may not be open to any censure, so
far as the essential administration of justice is con-
cerned; though in the latter of these, a most in-
* Strype's Whitgift, 521. 537.
App. 136.
The archbishop could
not disguise his dislike to the law-
yers. "The temporal lawyer," he
says in a letter to Cecil, "whose
learning is no learning any where
but here at home, being born to
nothing, doth by his labour and
travel in that barbarous knowledge
purchase to himself and his heirs
for ever a thousand pounds per an-
num, and oftentimes much more,
whereof there are at this day many
examples." P. 215.
Strype's Whitgift, and D'Ewes,
passim. In a convocation held dur-
ing Grindal's sequestration (1580),
proposals for reforming certain
abuses in the spiritual courts were
considered; but nothing was done
in it. Strype's Grindal, p. 259.
and Appendix, p. 97. And in 1594,
a commission to enquire into abuses
in the spiritual courts was issued ;
but whether this were intended
bonâ fide or not, it produced no
reformation. Strype's Whitgift,
419.
FROM HENRY VII. TO GEORGE II.
289
convenient division of jurisdictions, following not
only the unequal boundaries of episcopal dioceses,
but the various peculiars or exempt districts which
the church of England has continued to retain, is
productive of a good deal of trouble and needless
expense.
CHAP.
IV.
ELIZ.
Puritans.
ents
to severe
laws.
Notwithstanding the tendency towards puritan- Independ-
ism which the house of commons generally dis- enable
played, the court succeeded in procuring an act,
which eventually pressed with very great severity
upon that class. This passed in 1593, and en-
acted the penalty of imprisonment against any
person above the age of sixteen, who should for-
bear for the space of a month to repair to some
church, until he should make such open submis-
sion and declaration of conformity as the act ap-
points. Those who refused to submit to these
conditions were to abjure the realm, and if they
should return without the queen's license, to suffer
death as felons.* As this, on the one hand, like
so many former statutes, helped to crush the un-
fortunate adherents to the Romish faith, so too
did it bear an obvious application to such pro-
testant sectaries as had professedly separated from
the Anglican church. But it is here worthy of
remark, that the puritan ministers throughout this
reign disclaimed the imputation of schism, and
acknowledged the lawfulness of continuing in the
established church, while they demanded a further
reformation of her discipline. The real sepa-
* 35 Eliz. c. 1. Parl. Hist. 863.
Neal asserts in his summary
of the controversy, as it stood in
this reign, that the puritans did
not object to the office of bishop,
VOL. I.
U
provided he was only the head of
the presbyters, and acted in con-
junction with them, p. 398. But
this was in effect to demand every
thing. For if the office could be
290
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
ELIZ.
Puritans.
CHAP. ratists, who were also a numerous body, were
denominated Brownists or Barrowists, from the
names of their founders, afterwards lost in the
more general appellation of Independents. These
went far beyond the puritans in their aversion to
the legal ministry, and were deemed in conse-
quence still more proper subjects for persecution.
Multitudes of them fled to Holland from the rigour
of the bishops in enforcing this statute.* But two
of this persuasion, Barrow and Greenwood, expe-
rienced a still severer fate. They were indicted
on that perilous law of the 23d of the queen, men-
tioned in the last chapter, for spreading seditious
writings, and executed at Bury. They died, Neal
tells us, with such expressions of piety and loyalty
that Elizabeth regretted the consent she had given
to their deaths.t
so far lowered in eminence, there
were many waiting to clip the tem-
poral revenues and dignity in pro-
portion.
In another passage, Neal states
clearly, if not quite fairly, the
main points of difference between
the church and non-conforming
parties under Elizabeth, p. 147.
He concludes with the following
remark, which is very true. "Both
parties agreed too well in asserting
the necessity of an uniformity of
public worship, and of calling in
the sword of the magistrate for the
support and defence of the seve-
ral principles, which they made an
ill use of in their turns, as they
could grasp the power into their
hands. The standard of uniform-
ity, according to the bishops, was
the queen's supremacy and the
laws of the land; according to the
puritans, the decrees of provincial
and national synods, allowed and
enforced by the civil magistrate ;
but neither party were for admit-
ting that liberty of conscience and
freedom of profession which is
every man's right, as far as is con-
sistent with the peace of the go-
vernment he lives under."
* Neal, 253. 386.
+ Strype's Whitgift, 414. Neal,
373. Several years before, in 1583,
two men called anabaptists, Thack-
er and Copping, were hanged at
the same place on the same statute
for denying the queen's ecclesi-
astical supremacy; the proof of
which was their dispersion of
Brown's tracts, wherein that was
only owned in civil cases. Strype's
Annals, iii. 186. This was ac-
cording to the invariable practice
of Tudor times: an oppressive and
sanguinary statute was first made;
and next, as occasion might serve,
a construction was put on it con-
trary to all common sense, in order
to take away men's lives.
4
FROM HENRY VII. TO GEORGE II.
291
IV.
ELIZ.
Puritans.
Ecclesiasti
Its char
But, while these scenes of pride and persecution CHAP.
on one hand, and of sectarian insolence on the
other, were deforming the bosom of the English
church, she found a defender of her institutions
in one who mingled in these vulgar controversies
like a knight of romance among caitiff brawlers,
with arms of finer temper and worthy to be proved
in a nobler field. Richard Hooker, master of the Hooker's
Temple, published the first four books of his Ec- cal Polity.
clesiastical Polity in 1594; the fifth three years racter.
afterwards; and dying in 1600, left behind three
which did not see the light till 1647. This emi-
nent work may justly be reckoned to mark an æra
in our literature. For if passages of much good
sense and even of a vigorous eloquence are scat-
tered in several earlier writers in prose, yet none
of these, except perhaps Latimer and Ascham, and
Sir Philip Sidney in his Arcadia, can be said to
have acquired enough reputation to be generally
known even by name, much less are read in the
present day; and it is indeed not a little remarkable
that England, until near the end of the 16th cen-
tury, had given few proofs in literature of that in-
tellectual power which was about to develop itself
with such unmatchable energy in Shakspeare and
Bacon. We cannot indeed place Hooker (but
whom dare we to place?) by the side of these master
spirits; yet he has abundant claims to be counted
among the luminaries of English literature. He
not only opened the mine, but explored the depths,
of our native eloquence. So stately and graceful is
the march of his periods, so various the fall of his
musical cadences upon the ear, so rich in images,
so condensed in sentences, so grave and noble his
U 2
292
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
ELIZ.
Puritans.
CHAP. diction, so little is there of vulgarity in his racy
idiom, of pedantry in his learned phrase, that I
know not whether any later writer has more ad-
mirably displayed the capacities of our language,
or produced passages more worthy of comparison
with the splendid monuments of antiquity. If we
compare the first book of the Ecclesiastical Polity
with what bears perhaps most resemblance to it of
any thing extant; the treatise of Cicero de Legi-
bus, it will appear somewhat perhaps inferior,
through the imperfection of our language, which
with all its force and dignity does not equal the
Latin in either of these qualities, and certainly
more tedious and diffuse in some of its reasonings,
but by no means less high-toned in sentiment, or
less bright in fancy, and far more comprehensive
and profound in the foundations of its philosophy.
The advocates of a presbyterian church had
always thought it sufficient to prove that it was
conformable to the apostolical scheme as deduced
merely from the scriptures. A pious reverence for
the sacred writings, which they made almost their
exclusive study, had degenerated into very narrow
views on the great themes of natural religion and
the moral law, as deducible from reason and senti-
ment. These, as most of the various families of
their descendants continue to do, they greatly
slighted, or even treated as the mere chimeras of
heathen philosophy. If they looked to the Mosaic
law as the standard of criminal jurisprudence, if
they sought precedents from scripture for all mat-
ters of temporal policy, much more would they
deem the practice of the apostles an unerring
and immutable rule for the discipline of the
FROM HENRY VII. TO GEORGE II.
293
Christian church. * To encounter these adver-
saries, Hooker took a far more original course
than the ordinary controvertists, who fought their
battle with conflicting interpretations of scriptural
texts or passages from the fathers. He enquired
into the nature and foundation of law itself as the
rule of operation to all created beings, yielding
thereto obedience by unconscious necessity, or
sensitive appetite, or reasonable choice; reviewing
especially those laws that regulate human agency,
as they arise out of moral relations, common to our
species, or the institutions of politic societies, or
the inter-community of independent nations; and
having thoroughly established the fundamental
distinction between laws natural and positive,
eternal and temporary, immutable and variable, he
came with all this strength of moral philosophy to
discriminate by the same criterion the various
rules and precepts contained in the scriptures. It
was a kind of maxim among the puritans, that
scripture was so much the exclusive rule of human
actions, that whatever, in matters at least concern-
ing religion, could not be found to have its au-
thority, was unlawful. Hooker devoted the whole
second book of his work to the refutation of this
principle. He proceeded afterwards to attack its
application more particularly to the episcopal
* "The discipline of Christ's
church," said Cartwright," that
necessary for all times, is de-
livered by Christ, and set down in
the Holy Scriptures. Therefore
the true and lawful discipline is to
be fetched from thence, and from
thence alone. And that which
resteth upon any other foundation
ought to be esteemed unlawful and
counterfeit." Whitgift, in his an-
swer to Cartwright's Admonition,
rested the controversy in the main,
as Hooker did, on the indifferency
of church discipline and ceremony.
It was not till afterwards that
the defenders of the established
order found out that one claim of
divine right was best met by an-
other.
CHAP.
IV.
ELIZ.
Puritans.
U
3
294
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
ELIZ.
Puritans.
CHAP. scheme of church government, and to the various
ceremonies or usages which those sectaries treated
as either absolutely superstitious, or at least as im-
positions without authority. It was maintained
by this great writer, not only that ritual observ-
ances are variable according to the discretion of
ecclesiastical rulers, but that no certain form of
polity is set down in scripture as generally indis-
pensable for a Christian church. Far, however,
from conceding to his antagonists the fact which
they assumed, he contended for episcopacy as an
apostolical institution, and always preferable, when
circumstances would allow its preservation, to the
more democratical model of the Calvinistic con-
gregations. "If we did seek," he says, "to main-
tain that which most advantageth our own cause,
the very
best way for us and the strongest against
them were to hold, even as they do, that in scrip-
ture there must needs be found some particular
form of church polity which God hath instituted,
and which for that very cause belongeth to all
churches at all times. But with any such partial
eye to respect ourselves, and by cunning to make
those things seem the truest, which are the fittest
to serve our purpose, is a thing which we neither
like nor mean to follow."
The richness of Hooker's eloquence is chiefly
displayed in his first book; beyond which perhaps
few who want a taste for ecclesiastical reading are
likely to proceed. The second and third however,
though less brilliant, are not inferior in the force
and comprehensiveness of reasoning. The eighth
and last returns to the subject of civil government,
and expands, with remarkable liberality, the prin-
FROM HENRY VII. TO GEORGE II.
295
IV.
ELIZ.
Puritans.
ciples he had laid down as to its nature in the first CHAP.
book. Those that intervene are mostly confined to
a more minute discussion of the questions mooted
between the church and puritans; and in these, as
far as I have looked into them, though Hooker's
argument is always vigorous and logical, and he
seems to be exempt from that abusive insolence to
which polemical writers were then even more prone
than at present, yet he has not altogether the terse-
ness or lucidity, which long habits of literary war-
fare, and perhaps a natural turn of mind, have given
to some expert dialecticians. In respect of lan-
guage, the three posthumous books, partly from
having never received the author's last touches,
and partly, perhaps, from his weariness of the la-
bour, are beyond comparison less elegantly written
than the preceding.
The better parts of the Ecclesiastical Polity bear
a resemblance to the philosophical writings of an-
tiquity, in their defects as well as their excel-
lencies. Hooker is often too vague in the use of
general terms, too inconsiderate in the admission
of principles, too apt to acquiesce in the scholastic
pseudo-philosophy, and indeed in all received
tenets; he is comprehensive rather than sagacious,
and more fitted to sift the truth from the stores of
accumulated learning than to seize it by an ori-
ginal impulse of his own mind; somewhat also im-
peded, like many other great men of that and the
succeeding century, by too much acquaintance
with books, and too much deference for their au-
thors. It may be justly objected to some passages,
that they elevate ecclesiastical authority, even in
matters of belief, with an exaggeration not easily
U 4
296
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
Puri tans
reconciled to the protestant right of private judg
ment, and even of dangerous consequence in those
ELIZ. times; as when he inclines to give a decisive voice.
in theological controversies to general councils; not
indeed on the principles of the church of Rome,
but on such as must end in the same conclusion,
the high probability that the aggregate judgment
of many grave and learned men should be well
founded.* Nor would it be difficult to point out.
several other subjects, such as religious toleration,
as to which he did not emancipate himself from the
trammels of prejudice. But, whatever may be the
imperfections of his Ecclesiastical Polity, they are
far more than compensated by its eloquence and its
reasoning, and above all by that deep pervading
sense of the relation between man and his Creator,
as the groundwork of all eternal law, which ren-
dered the first book of this work a rampart, on the
one hand against the puritan school who shunned
the light of nature as a deceitful meteor; and on
the other against that immoral philosophy which,
*"If the natural strength of
men's wit may by experience and
study attain unto such ripeness in
the knowledge of things human,
that men in this respect may pre-
sume to build somewhat upon their
judgment; what reason have we to
think but that even in matters di-
vine, the like wits, furnished with
necessary helps, exercised in scrip-
ture with like diligence, and assist-
ed with the grace of Almighty God,
may grow unto so much perfec-
tion of knowledge, that men shall
have just cause, when any thing
pertinent unto faith and religion is
doubted of, the more willingly to
incline their minds towards that
which the sentence of so grave,
wise, and learned in that faculty
shall judge most sound? For the
controversy is of the weight of
such men's judgment," &c. But
Hooker's mistake was to exagge-
rate the weight of such men's judg-
ment; and not to allow enough for
their passions and infirmities, the
imperfection of their knowledge,
their connivance with power, their
attachment to names and persons,
and all the other drawbacks to ec-
clesiastical authority.
It is well known that the pre-
face to the Ecclesiastical Polity
was one of the two books to which
James II. ascribed his return into
the fold of Rome; and it is not
difficult to perceive by what course
of reasoning on the positions it
contains this was effected.
FROM HENRY VII. TO GEORGE II.
297
IV.
displayed in the dark precepts of Machiavel, or CHAP.
lurking in the desultory sallies of Montaigne, and
not always rejected by writers of more apparent ELIZ.
seriousness, threatened to destroy the sense of in- Puritans.
trinsic distinctions in the quality of actions, and to
convert the maxims of state-craft and dissembling
policy into the rule of life and manners.
Nothing perhaps is more striking to a reader of
the Ecclesiastical Polity than the constant and al-
mcst excessive predilection of Hooker for those
liberal principles of civil government, which are
sometimes so just and always so attractive. Upon
these subjects, his theory absolutely coincides with
that of Locke. The origin of government, both in
right and in fact, he explicitly derives from a
primary contract; "without which consent, there
were no reason that one should take upon him to
be lord or judge over another; because, although
there be, according to the opinion of some very
great and judicious men, a kind of natural right in
the noble, wise, and virtuous, to govern them which
are of servile disposition; nevertheless, for mani-
festation of this their right, and men's more peace-
able contentment on both sides, the assent of them
who are to be governed seemeth necessary.
"The
lawful power," he observes elsewhere, "of making
laws to command whole politic societies of men,
belongeth so properly unto the same entire societies,
that for any prince or potentate of what kind soever
upon earth to exercise the same of himself, and not
either by express commission immediately and per-
sonally received from God, or else by authority
received at first from their consent upon whose
persons they impose laws, it is no better than mere
?
298
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP, tyranny.
IV.
ELIZ.
Puritans.
Laws they are not, therefore, which
public approbation hath not made so.
But appro-
bation not only they give, who personally declare
their assent by voice, sign, or act; but also when
others do it in their names, by right originally, at
the least, derived from them. As in parliaments,
councils, and the like assemblies, although we be
not personally ourselves present, notwithstanding
our assent is by reason of other agents there in ou
behalf. And what we do by others, no reason but
that it should stand as our deed, no less effectually
to bind us, than if ourselves had done it in person."
And in another place still more peremptorily: "Of
this thing no man doubteth, namely, that in all so-
cieties, companies, and corporations, what severally
each shall be bound unto, it must be with all their
assents ratified. Against all equity it were that a
man should suffer detriment at the hands of men,
for not observing that which he never did either by
himself or others mediately or immediately agree
unto."
These notions respecting the basis of political
society, so far unlike what prevailed among the next
generation of churchmen, are chiefly developed and
dwelt upon in Hooker's concluding book, the
eighth; and gave rise to a rumour, very sedulously
propagated soon after the time of its publication,
and still sometimes repeated, that the posthumous
portion of his work had been interpolated or altered
by the puritans.* For this surmise, however, I am
* In the life of Hooker prefixed
to the edition I use, fol. 1671., I
find an assertion of Dr. Barnard,
chaplain to Usher, that he had
seen a manuscript of the last books
of Hooker, containing many things
omitted in the printed volume.
One passage is quoted, and seems
FROM HENRY VII. TO GEORGE II.
299
IV.
Puritans.
persuaded that there is no foundation. The three
The three CHAP.
latter books are doubtless imperfect, and it is pos-
sible that verbal changes may have been made by ELIZ.
their transcribers or editors; but the testimony that
has been brought forward to throw a doubt over
their authenticity consists in those vague and self-
contradictory stories, which gossiping compilers of
literary anecdote can easily accumulate; while the
intrinsic evidence arising from the work itself, on
which, in this branch of criticism, I am apt chiefly
to rely, seems altogether to repel every suspicion.
For not only the principles of civil government,
presented in a more expanded form by Hooker in
the eighth book, are precisely what he laid down in
the first; but there is a peculiar chain of conse-
cutive reasoning running through it, wherein it
would be difficult to point out any passages that
could be rejected without dismembering the context.
It was his business in this part of the Ecclesiastical
Polity, to vindicate the queen's supremacy over the
in Hooker's style. But the ques-
tion is rather with respect to inter-
polations than omissions. And of
the former I see no evidence or
likelihood. If it be true, as is al-
leged, that different manuscripts
of the three last books did not
agree, if even these disagreements
were the result of fraud, why
should we conclude that they were
corrupted by the puritans rather
than the church? In Zouch's
edition of Walton's Life of Hooker,
the reader will find a long and ill-
digested note on this subject, the
result of which has been to con-
vince me that there is no reason
to believe any other than verbal
changes to have been made in the
loose draught which the author
left, but that whatever changes
were made, it does not appear
that the manuscript was ever in
the hands of the puritans. The
strongest probability however of
their authenticity is from internal
evidence.
A late writer has produced a
somewhat ridiculous proof of the
carelessness with which all editions
of the Ecclesiastical Polity have
been printed; a sentence having
slipped into the text of the seventh
book, which makes nonsense, and
which he very probably conjec-
tures to have been a marginal
memorandum of the author for his
own use on revising the manu-
script. M'Crie's Life of Melvil,
vol.i. p.471.
300
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
ELIZ.
Puritans.
church: and this he has done by identifying the
church with the commonwealth; no one, according
to him, being a member of the one who was not
also a member of the other. But as the constitution
of the Christian church, so far as the laity partook
in its government, by choice of pastors or otherwise,
was undeniably democratical, he laboured to show,
through the medium of the original compact of
civil society, that the sovereign had received this,
as well as all other powers, at the hands of the people.
"Laws being made among us," he affirms, "are
not by any of us so taken or interpreted, as if they
did receive their force from power which the prince
doth communicate unto the parliament, or unto any
other court under him, but from power which the
whole body of the realm being naturally possessed
with, hath by free and deliberate assent derived
unto him that ruleth over them so far forth as hath
been declared; so that our laws made concerning
religion do take originally their essence from the
power of the whole realm and church of England."
In this system of Hooker and Locke, for it will
be obvious to the reader that their principles were
the same, there is much, if I am not mistaken, to
disapprove. That no man can be justly bound by
laws which his own assent has not ratified, appears
to me a position incompatible with the existence of
society in its literal sense, or illusory in the sophis
tical interpretations by which it is usual to evade
its meaning. It will be more satisfactory and im
portant to remark the views which this great writer
entertained of our own constitution, to which he
frequently and fearlessly appeals, as the standing
illustration of a government restrained by law.
FROM HENRY VII. TO GEORGE II.
301
:
IV.
ELIZ.
Puritans.
"I cannot choose," he says, "but commend highly CHAP.
their wisdom, by whom the foundation of the com-
monwealth hath been laid; wherein though no
manner of person or cause be unsubject unto the
king's power, yet so is the power of the king over
all, and in all limited, that unto all his proceedings
the law itself is a rule. The axioms of our regal
government are these: Lex facit regem'-the
king's grant of any favour made contrary to the law
is void; Rex nihil potest nisi quod jure potest'
-what power the king hath, he hath it by law:
the bounds and limits of it are known, the entire
community giveth general order by law, how all
things publicly are to be done; and the king, as
the head thereof, the highest in authority over all,
causeth, according to the same law, every parti-
cular to be framed and ordered thereby. The
whole body politic maketh laws, which laws give
power unto the king; and the king having bound
himself to use according to law that power, it so
falleth out, that the execution of the one is accom-
plished by the other." These doctrines of limited
monarchy recur perpetually in the eighth book;
and though Hooker, as may be supposed, does not
enter upon the perilous question of resistance, and
even intimates that he does not see how the people
can limit the extent of power once granted, unless
where it escheats to them, yet he positively lays it
down, that usurpers of power, that is, lawful rulers
arrogating more than the law gives to them, cannot
in conscience bind any man to obedience.
It would perhaps have been a deviation from my
subject to enlarge so much on these political prin-
ciples in a writer of any later age, when they had
302
THE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
ELIZ.
Puritans.
Spoliation
of church
revenues.
been openly sustained in the councils of the nation.
But as the reigns of the Tudor family were so in-
auspicious to liberty that some have been apt to
imagine its recollection to have been almost effaced,
it becomes of more importance to show that abso-
lute monarchy was, in the eyes of so eminent an
author as Hooker, both pernicious in itself, and
contrary to the fundamental laws of the English
commonwealth. Nor would such sentiments, we
may surely presume, have been avowed by a man
of singular humility, and whom we might charge
with somewhat of an excessive deference to autho-
rity, unless they had obtained more currency, both
among divines and lawyers, than the complaisance
of courtiers in these two professions might lead us
to conclude; Hooker being not prone to deal in
paradoxes, nor to borrow from his adversaries that
sturdy republicanism of the school of Geneva which
had been their scandal. I cannot indeed but sus-
pect that his whig principles, in the last book, are
announced with a temerity that would have startled
his superiors; and that its authenticity, however
called in question, has been better preserved by the
circumstance of a posthumous publication than if
he had lived to give it to the world. Whitgift
would probably have induced him to suppress a
few passages incompatible with the servile theories
already in vogue, It is far more usual that an
author's genuine sentiments are perverted by means
of his friends and patrons than of his adversaries.
The prelates of the English church, while they
inflicted so many severities on others, had not al-
ways cause to exult in their own condition. From
the time when Henry taught his courtiers to revel
FROM HENRY VII. TO GEORGE II.
303.
*
CHAP.
IV.
Puritans.
in the spoil of monasteries, there had been a per-
petual appetite for ecclesiastical possessions. En-
dowed by a prodigal superstition with pomp and ELIZ.
wealth beyond all reasonable measure, and far be-
yond what the new system of religion appeared to
prescribe, the church of England still excited the
covetousness of the powerful, and the scandal of
the austere. I have mentioned in another place
how the bishoprics were impoverished in the first
reformation under Edward VI. The catholic
bishops who followed made haste to plunder, from
a consciousness that the goods of their church were
speedily to pass into the hands of heretics.t Hence
the alienation of their estates had gone so far that
in the beginning of Elizabeth's reign statutes were
made, disabling ecclesiastical proprietors from
granting away their lands, except on leases for
three lives, or twenty-one years. But an unfor-
tunate reservation was introduced in favour of the
The queen, therefore, and her courtiers,
who obtained grants from her, continued to prey
upon their succulent victim. Few of her council
imitated the noble disinterestedness of Walsing-
ham, who spent his own estate in her service, and
left not sufficient to pay his debts. The documents
of that age contain ample proofs of their rapacity.
crown.
* The puritans objected to the
title of lord bishops. Sampson
wrote a peevish letter to Grindal
on this, and received a very good
answer. Strype's Parker, Append.
178. Parker, in a letter to Cecil,
defends it on the best ground; that
the bishops hold their lands by
barony, and therefore the giving
them the title of lords was no ir-
regularity, and nothing more than
a consequence of the tenure. Col-、
lier, 5+. This will not cover our
modern colonial bishops, on whom
the same title has, without any
good reason, been conferred.
Strype's Annals, i. 159.
1 Eliz. c. 19.; 13 Eliz. c. 10.
Blackstone's Commentaries, vol. ii.
c. 28. The exception in favour of
the crown was repealed in the first
year of James.
304
TIIE CONSTITUTIONAL HISTORY OF ENGLAND
IV.
ELIZ.
Puritans.
CHAP. Thus Cecil surrounded his mansion-house at Bur-
leigh with estates, once belonging to the see of
Peterborough. Thus Hatton built his house in
Holborn on the bishop of Ely's garden. Cox, on
making resistance to this spoliation, received a
singular epistle from the queen.* This bishop, in
consequence of such vexations, was desirous of re-
tiring from the see before his death. After that
event, Elizabeth kept it vacant eighteen years.
During this period we have a petition to her from
lord keeper Puckering, that she would confer it on
Scambler, bishop of Norwich, then eighty-eight
years old, and notorious for simony, in order that
he might give him a lease of part of the lands.f
These transactions denote the mercenary and ra-
pacious spirit which leavened almost all Elizabeth's
courtiers.
of
The bishops of this reign do not appear, with
some distinguished exceptions, to have reflected
so much honour on the established church as those
who attach a superstitious reverence to the age
the reformation are apt to conceive. In the plun-
der that went forward, they took good care of
themselves. Charges against them of simony, cor-
ruption, covetousness, and especially destruction
* It was couched in the follow- Annals, vol. ii. Append. 84. The
ing terms:
"Proud Prelate,
"You know what you were
before I made you what you are:
if you do not immediately comply
with my request, by G I will
unfrock you.
“ELIZABETH."
Poor Cox wrote a very good
letter before this, printed in Strype's
names of Hatton Garden and Ely
Place (Mantua væ miseræ nimium
vicina Čremonæ) still bear witness
to the encroaching lord keeper, and
the elbowed bishop.
+ Strype, iv. 246. See also p. 15.
of the same volume. By an act in
the first year of James, c. 3., con-
veyances of bishops' lands to the
crown are made void; a concession
much to the king's honour.
FROM HENRY VII. TO GEORGE II,
305
of their church estates for the benefit of their fa-
milies, are very common, sometimes no doubt
unjust, but too frequent to be absolutely without
foundation.* The council often wrote to them,
as well as concerning them, with a sort of asperity
which would astonish one of their successors. And
the queen never restrained herself in treating them
on any provocation with a good deal of rudeness,
of which I have just mentioned an egregious ex-
ample. In her speech to parliament on closing
the session of 1584, when many complaints against
the rulers of the church had rung in her ears, she
told the bishops that if they did not amend what
was wrong, she meant to depose them. For there
seems to have been no question in that age but
that this might be done by virtue of the crown's
supremacy.
The church of England was not left by Eliza-
* Harrington's State of the
Church, in Nuga Antiquæ, vol. ii.
passim; Wilkins's Concilia, iv.
256.; Strype's Annals, iii. 620., et
alibi; Life of Parker, 454.; of
Whitgift, 220.; of Aylmer, passim.
Observe the preamble of 13 Eliz.
10. It must be admitted, on the
other hand, that the gentry, when
popishly or puritanically affected,
were apt to behave exceedingly ill
towards the bishops. At Lambeth
and Fulham they were pretty safe;
but at a distance they found it hard
to
struggle with the rudeness and
iniquity of the territorial aristo-
cracy; as Sandys twice experienced.
+ Birch's Memoirs, i. 48. Eliza-
beth seems to have fancied herself
entitled by her supremacy to dis-
pose of bishops as she pleased,
though they did not hold com-
missions durante bene placito, as
in her brother's time. Thus she
suspended Fletcher, bishop of Lon-
VOL. I.
CC
don, of her own authority, only
for marrying a fine lady and a
widow." Strype's Whitgift, 458.
And Aylmer, having preached too
vehemently against female vanity
in dress, which came home to the
queen's conscience, she told her
ladies that if the bishop held more
discourse on such matters, she
would fit him for heaven; but he
should walk thither without a staff,
and leave his mantle behind him.
Harrington's State of the Church,
in Nuga Antiquæ, i. 170.; see too
p. 217. It will of course not ap-
pear surprising that Hutton, arch-
bishop of York, an exceedingly
honest prelate, having preached a
bold sermon before the queen,
urging her to settle the succession,
and pointing strongly towards
Scotland, received a sharp mes-
sage, p. 250.
X
D'Ewes, 328,
CHAP.
IV.
ELIZ.
Puritans,
3
306
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
ELIZ.
Puritans.
beth in circumstances that demanded applause for
the policy of her rulers. After forty years of con-
stantly aggravated molestation of the nonconform
ing clergy, their numbers were become greater,
their popularity more deeply rooted, their enmity
to the established order more irreconcilable. It
was doubtless a problem of no slight difficulty, by
what means so obstinate and opiniated a class of
sectaries could have been managed; nor are we
perhaps, at this distance of time, altogether compe-
tent to decide upon the fittest course of policy in
that respect.* But it is manifest that the obsti
nacy of bold and sincere men is not to be quelled
by any punishments that do not exterminate them,
and that they were not likely to entertain a less
conceit of their own reason when they found no
arguments so much relied on to refute it as that
of force. Statesmen invariably take a better view
of such questions than churchmen; and we may
well believe that Cecil and Walsingham judged
more sagaciously than Whitgift and Aylmer. The
best apology that can be made for Elizabeth's te-
naciousness of those ceremonies which produced
this fatal contention I have already suggested,
without much express authority from the records
of that age; namely, the justice and expediency
of winning over the catholics to conformity, by
retaining as much as possible of their accustomed
rites. But in the latter period of the queen's reign,
* Collier says, p. 586., on Hey-
lin's authority, that Walsingham
offered the puritans, about 1583,
in the queen's name, to give up the
ceremony of kneeling at the com-
munion, the cross in baptism, and
the surplice; but that they an-
swered, "ne ungulam quidem esse
relinquendam." But I am not
aware of any better testimony to
the fact; and it is by no means
agrecable to the queen's general
conduct.
FROM HENRY VII. TO GEORGE II.
307
IV.
Puritans.
this policy had lost a great deal of its application; CHAP.
or rather the same principle of policy would have
dictated numerous concessions in order to satisfy ELIZ.
the people. It appears by no means unlikely that,
by reforming the abuses and corruption of the
spiritual courts, by abandoning a part of their
jurisdiction, so heterogeneous and so unduly
obtained, by abrogating obnoxious and at best
frivolous ceremonies, by restraining pluralities of
benefices, by ceasing to discountenance the most
diligent ministers, and by more temper and disin-
terestedness in their own behaviour, the bishops
would have palliated, to an indefinite degree, that
dissatisfaction with the established scheme of polity,
which its want of resemblance to that of other
protestant churches must more or less have pro-
duced. Such a reformation would at least have
contented those reasonable and moderate persons
who occupy sometimes a more extensive ground
between contending factions than the zealots of
either are willing to believe or acknowledge.
remarks.
I am very sensible that such freedom as I have General
used in this chapter cannot be pleasing to such as
have sworn allegiance to either the Anglican or
the puritan party; and that even candid and libe-
ral minds may be inclined to suspect that I have
not sufficiently admitted the excesses of one side
to furnish an excuse for those of the other. Such
readers I would gladly refer to lord Bacon's Ad-
vertisement touching the Controversies of the
Church of England; a treatise written under
Elizabeth, in that tone of dispassionate philo-
sophy which the precepts of Burleigh sown in his
own deep and fertile mind had taught him to apply.
x 2
308
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
IV.
ELIZ.
Puritans.
Letter of
Walsing-
ham in
the queen's
This treatise, to which I did not turn my attention.
in writing the present chapter, appears to coincide
in every respect with the views it displays. If
he censures the pride and obstinacy of the pu-
ritan teachers, their indecent and libellous style
of writing, their affected imitation of foreign
churches, their extravagance of receding from
every thing formerly practised, he animadverts
with no less plainness on the faults of the episco-
pal party, on the bad example of some prelates,
on their peevish opposition to every improvement,
their unjust accusations, their contempt of foreign
churches, their persecuting spirit.*
Yet that we may not deprive this great queen's
administration, in what concerned her dealings
defence of with the two religious parties opposed to the
established church, of what vindication may best
be offered for it, I will refer the reader to a letter
of sir Francis Walsingham, written to a person in
France, after the year 1580.† It is a very able
govern-
ment.
Bacon, ii. 375. See also an-
other paper concerning the paci-
fication of the church, written un-
der James, p.387. "The wrongs,"
he says,
"of those which are pos-
sessed of the government of the
church towards the other, may
hardly be dissembled or excused."
p. 382. Yet Bacon was never
charged with affection for the pu-
ritans. In truth, Elizabeth and
James were personally the great
support of the high church inter-
est; it had few real friends among
their counsellors.
+ Burnet, ii. 418. Cabala, part
ii. 38. (4to edition). Walsingham
grounds the queen's proceedings
upon two principles: the one,
that "consciences are not to be
forced, but to be won and reduced
by force of truth, with the aid of
time, and use of all good means of
instruction and persuasion;" the
other, that " cases of conscience,
when they exceed their bounds,
and grow to be matter of faction,
lose their nature; and that sove
reign princes ought distinctly to
punish their practices and con-
tempt, though coloured with the
pretence of conscience and re-
ligion." Bacon has repeated the
same words, as well as some more
of Walsingham's letter, in his ob-
servations on the libel on lord Bur-
leigh, i. 522. And Mr. Southey
(Book of the Church, ii. 291.)
seems to adopt them as his own.
Upon this it may be observed;
first, that they take for granted
the fundamental sophism of re-
FROM HENRY VII. TO GEORGE II.
309
apology for her government; and if the reader
should detect, as he doubtless may, somewhat of
sophistry in reasoning, and of mis-statement in
matter of fact, he will ascribe both one and the
other to the narrow spirit of the age with respect
to civil and religious freedom, or to the circum-
stances of the writer, an advocate whose sovereign
was his client.
The generality of statesmen, and
churchmen themselves not unfre-
quently, have argued upon the
principles of what, in the seven-
teenth century, was called Hob-
bism, towards which the Erastian
system, which is that of the church
of England, though excellent in
some points of view, had a ten-
dency to gravitate; namely, that
civil and religious allegiance are
so necessarily connected, that it is
the subject's duty to follow the
dictates of the magistrate in both
alike. And this received some coun-
tenance from the false and mis-
licious intolerance, namely, that
the civil magistrate, or the church
he supports, is not only in the
right, but so clearly in the right,
that no honest man, if he takes
time and pains to consider the
subject, can help acknowledging
it: secondly, that, according to
the principles of Christianity as
admitted on each side, it does not
rest in an esoteric persuasion, but
requires an exterior profession,
evidenced both by social worship,
and by certain positive rites; and
that the marks of this profession,
according to the form best adapted
to their respective ways of think-chievous position of Hooker, that
ing, were as incumbent upon the the church and commonwealth are
catholic and puritan, as they had but different denominations of the
been upon the primitive church: same society. Warburton has suf-
nor were they more chargeable with ficiently exposed the sophistry of
faction, or with exceeding the this theory; though I do not think
bounds of conscience, when they him equally successful in what he
persisted in the use of them, not- substitutes for it.
withstanding any prohibitory sta-
tute, than the early Christians.
CHAP.
IV.
ELIZ.
Puritans.
x 3
310
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAPTER V.
ON THE CIVIL GOVERNMENT OF ELIZABETH.
CHAP.
V.
ELIZ.
Govern-
ment.
General
remarks.
General Remarks - Defective Security of the Subject's Liberty — Trials
for Treason and other political Offences unjustly conducted — Illegal
Commitments- Remonstrance of Judges against them Proclamations
unwarranted by Law Restrictions on Printing Martial Law —
Loans of Money not quite voluntary Character of Lord Burleigh's
Administration ·Disposition of the House of Commons Addresses
concerning the Succession - Difference on this between the Queen and
Commons in 1566 ·Session of 1571 Influence of the Puritans in
Parliament Speech of Mr. Wentworth in 1576
tinue to seek Redress of ecclesiastical Grievances
especially in the Session of 1601 - Influence of the Crown in Parliament
Debate on Election of non-resident Burgesses Assertion of Privi-
leges by Commons Case of Ferrers, under Henry VIII. Other
Cases of Privilege — Privilege of determining contested Elections claimed
by the House The English Constitution not admitted to be an absolute
Monarchy Pretensions of the Crown.
The Commons con-
Also of Monopolies,
THE subject of the two last chapters, I mean the
policy adopted by Elizabeth for restricting the
two religious parties which from opposite quarters
resisted the exercise of her ecclesiastical preroga
tives, has already afforded us many illustrations of
what may more strictly be reckoned the constitu
tional history of her reign. The tone and temper
of her administration have been displayed in a
vigilant execution of severe statutes, especially to-
wards the catholics, and sometimes in stretches of
power beyond the law. And as Elizabeth had no
domestic enemies or refractory subjects who did
FROM HENRY VII. TO GEORGE II.
311
not range under one or other of these two sects,
and little disagreement with her people on any
other grounds, the ecclesiastical history of this
period is the best preparation for our enquiry into
The civil government. In the present chapter I
shall first offer a short view of the practical exer-
cise of government in this reign, and then proceed
to show how the queen's high assumptions of pre-
rogative were encountered by a resistance in par-
liament, not quite uniform, but insensibly becom-
ing more vigorous.
Elizabeth ascended the throne with all the ad-
vantages of a very extended authority. Though
the jurisdiction actually exerted by the court of
star-chamber could not be vindicated according
to statute-law, it had been so well established as
to pass without many audible murmurs.
Her pro-
genitors had intimidated the nobility; and if she
had something to fear at one season from this
order, the fate of the duke of Norfolk and of the
rebellious earls in the north put an end for ever to
all apprehension from the feudal influence of the
aristocracy. There seems no reason to believe
that she attempted a more absolute power than
her predecessors; the wisdom of her counsellors,
on the contrary, led them generally to shun the
more violent measures of the late reigns; but she
certainly acted upon many of the precedents they
had bequeathed her, with little consideration of
their legality. Her own remarkable talents, her
masculine intrepidity, her readiness of wit and
royal deportment, which the bravest men unaf-
fectedly dreaded, her temper of mind, above all, at
once fiery and inscrutably dissembling, would in
CHAP.
V.
ELIZ.
Govern-
ment.
x 4
312
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
ELIZ.
Govern-
ment.
CHAP. any circumstances have ensured her more real
sovereignty than weak monarchs, however nomi-
nally absolute, can ever enjoy or retain. To these
personal qualities was added the co-operation of
some of the most diligent and circumspect, as well
as the most sagacious counsellors that any prince
has employed; men as unlikely to loose from their
grasp the least portion of that authority which
they found themselves to possess, as to excite po.
pular odium by an unusual or misplaced exertion
of it. The most eminent instances, as I have re-
marked, of a high-strained prerogative in her reign,
have some relation to ecclesiastical concerns; and
herein the temper of the predominant religion was
such as to account no measures harsh or arbitrary
that were adopted towards its conquered, but still
formidable, enemy. Yet when the royal supremacy
was to be maintained against a different foe by less
violent acts of power, it revived the smouldering
embers of English liberty. The stern and exas-
perated puritans became the depositaries of that
sacred fire; and this manifests a second connection
between the temporal and ecclesiastical history of
the present reign.
Civil liberty, in this kingdom, has two direct
guarantees; the open administration of justice ac-
cording to known laws truly interpreted, and fair
constructions of evidence; and the right of parlia
ment, without let or interruption, to enquire into,
and obtain the redress of, public grievances. Of
these, the first is by far the most indispensable;
nor can the subjects of any state be reckoned to
enjoy a real freedom, where this condition is not
found both in its judicial institutions and in their
FROM HENRY VII. TO GEORGE II.
313
CHAP.
V.
ELIZ.
ment.
constant exercise. In this, much more than in
positive law, our ancient constitution, both under
the Plantagenet and Tudor line, had ever been
failing ;) and it is because one set of writers have Govern-
looked merely to the letter of our statutes or other
authorities, while another have been almost exclu-
sively struck by the instances of arbitrary govern-
ment they found on record, that such incompatible
systems have been laid down with equal positive-
ness on the character of that constitution.
Those
Trials for
treason and
other politi-
unjustly
I have found it impossible not to anticipate, in
more places than one, some of those glaring trans-
gressions of natural as well as positive law, that cal offences
rendered our courts of justice in cases of treason conducted.
little better than the caverns of murderers. (Who-
ever was arraigned at their bar was almost certain
to meet a virulent prosecutor, a judge hardly dis-
tinguishable from the prosecutor except by his
ermine, and a passive pusillanimous jury.
who are acquainted only with our modern decent
and dignified procedure, can form little conception
of the irregularity of ancient trials; the perpetual
interrogation of the prisoner, which gives most of
us so much offence at this day in the tribunals of a
neighbouring kingdom; and the want of all evi-
dence except written, and perhaps unattested,
examinations or confessions.) Habington, one of
the conspirators against Elizabeth's life in 1586,
complained that two witnesses had not been brought
against him, conformably to the statute of Edward
VI. But Anderson the chief justice told him, that
as he was indicted on the act of Edward III., that
provision was not in force.* In the case of cap-
* State Trials, i. 1148.
314
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
ELIZ.
Govern-
CHAP. tain Lee, a partisan of Essex and Southampton, the
court appear to have denied the right of peremp-
tory challenge.* Nor was more equal measure
dealt to the noblest prisoners by their equals. The
earl of Arundel was convicted of imagining the
queen's death, on evidence which at the utmost
would only have supported an indictment for recon-
ciliation to the church of Rome.t
ment.
The integrity of judges is put to the proof as
much by prosecutions for seditious writings as by
charges of treason. I have before mentioned the
conviction of Udal and Penry, for a felony created
by the 23d of Elizabeth; the former of which, espe-
cially, must strike every reader of the trial as one
of the gross judicial iniquities of this reign. But,
before this sanguinary statute was enacted, a pun-
ishment of uncommon severity had been inflicted
upon one Stubbe, a puritan lawyer, for a pamphlet
against the queen's intended marriage with the
duke of Anjou. It will be in the recollection of
most of my readers that, in the year 1579, Eliza-
beth exposed herself to much censure and ridicule,
and inspired the justest alarm in her most faithful
subjects, by entertaining, at the age of forty-six,
the proposals of this young scion of the house of
Valois. Her council, though several of them in
their deliberations had much inclined against the
preposterous alliance, yet in the end, displaying
the compliance usual with the servants of self-
willed princes, agreed, "conceiving," as they say,
"her earnest disposition for this her marriage," to
further it with all their power. Sir Philip Sidney
* State Trials, 1256.
† Id. 1403,
FROM HENRY VII. TO GEORGE II.
315
resent.*
with more real loyalty wrote her a spirited remon-
strance, which she had the magnanimity never to
But she poured her indignation on
Stubbe, who, not entitled to use a private address,
had ventured to arouse a popular cry in his
"Gaping Gulph, in which England will be swal-
lowed up by the French Marriage." This pamphlet
is very far from being, what some have ignorantly
or unjustly called it, a virulent libel; but is written
in a sensible manner, and with unfeigned loyalty
and affection towards the queen. But, besides the
main offence of addressing the people on state af-
fairs, he had, in the simplicity of his heart, thrown
out many allusions proper to hurt her pride, such
as dwelling too long on the influence her husband
would acquire over her, and imploring that she
would ask her physicians whether to bear children
* Murden, 337. Dr. Lingard
has fully established, what indeed
no one could reasonably have dis-
puted, Elizabeth's passion for An-
jou; and says very truly, "the
writers who set all this down to
policy cannot have consulted the
original documents," p. 149.
It
was altogether repugnant to sound
policy. Persons, the jesuit, indeed
says, in his famous libel, Leicester's
Commonwealth, written not long
after this time, that it would have
been <<
honourable, convenient,
profitable, and needful: which
every honest Englishman would
interpret by the rule of contraries.
Sussex wrote indeed to the queen
in favour of the marriage (Lodge,
ii. 177.); and Cecil undoubtedly
professed to favour it; but this
must have been out of obsequious-
ness to the queen.
It was a habit
of this minister to set down briefly
the arguments on both sides of a
question, sometimes in parallel
columns, sometimes successively;
a method which would seem too
formal in our age, but tending to
give himself and others a clearer
view of the case. He has done
this twice in the present instance;
Murden, 322. 331.; and it is evi-
dent that he does not, and cannot,
answer his own objections to the
match. When the council waited
on her with this resolution in fa-
vour of the marriage, she spoke
sharply to those whom she believed
to be against it. Yet the treaty
went on for two years; her coquetry
in this strange delay breeding her,
as Walsingham wrote from Paris,
tr
greater dishonour than I dare
commit to paper." Strype's An-
nals, iii. 2. That she ultimately
broke it off, must be ascribed to
the suspiciousness and irresolution
of her character, which, acting for
once conjointly with her good un-
derstanding, overcame a disgrace-
ful inclination.
CHAP.
V.
ELIZ.
Govern-
ment.
316
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern-
ment.
at her years would not be highly dangerous to her
life. Stubbe, for writing this pamphlet, received
sentence to have his right hand cut off. When the
penalty was inflicted, taking off his hat with his
left, he exclaimed, Long live Queen Elizabeth!
Burleigh, who knew that his fidelity had borne so
rude a test, employed him afterwards in answering
some of the popish libellers.*
(There is no room for wonder at any verdict that
could be returned by a jury, when we consider
what means the government possessed of securing
it. The sheriff returned a pannel, either according
to express directions, of which we have proofs, or
to what he judged himself of the crown's intention
and interest. If a verdict had gone against the
prosecution in a matter of moment, the jurors
must have laid their account with appearing before
the star-chamber; lucky, if they should escape,
on humble retractation, with sharp words, instead of
enormous fines and indefinite imprisonment. The
control of this arbitrary tribunal bound down and
rendered impotent all the minor jurisdictions.
That primæval institution, those inquests by twelve
true men, the unadulterated voice of the people
responsible alone to God and their conscience,
which should have been heard in the sanctuaries
of justice, as fountains springing fresh from the
lap of earth, became, like waters constrained in
their course by art, stagnant and impure. Until
this weight that hung upon the constitution should
be taken off, there was literally no prospect of en-
* Strype, iii. 480. Stubbe al-
ways signed himself Scæva, in
these left-handed productions.
+ Lodge, ii. 412.; iii. 49.
FROM HENRY VII. TO GEORGE II.
317
joying with security those civil privileges which it CHAP.
held forth.*
V.
ELIZ.
Govern-
ment.
commit-
It cannot be too frequently repeated, that no
power of arbitrary detention has ever been known
to our constitution since the charter obtained at
Runnymede. The writ of habeas corpus has Illegal
always been a matter of right. But as may na- ments.
turally be imagined, no right of the subject, in his
relation to the crown, was preserved with greater
difficulty. Not only the privy-council in general
arrogated to itself a power of discretionary impri-
sonment, into which no inferior court was to
enquire, but commitments by a single counsellor
appear to have been frequent. These abuses gave
rise to a remarkable complaint of the judges,
which, though an authentic recognition of the
privilege of personal freedom against such irre-
gular and oppressive acts of individual ministers,
must be admitted to leave by far too great latitude
to the executive government, and to surrender, at
least by implication from rather obscure language,
a great part of the liberties which many statutes
had confirmed. This is contained in a passage
from chief justice Anderson's Reports. But as
* Several volumes of the Har-
leian MSS. illustrate the course of
government under Elizabeth. The
copious analysis in the catalogue,
by Humphrey Wanley and others,
which I have in general found ac-
curate, will, for most purposes, be
sufficient. See particularly vol.
703. A letter, inter alia, in this,
(folio 1.) from lord Hunsdon and
Walsingham to the sheriff of Sus-
sex, directs him not to assist the
creditors of John Ashburnham in
molesting him, "till such time as
our determination touching the
premises shall be known," Ash-
burnham being to attend the coun-
cil to prefer his complaint. See
also vols. 6995, 6996, 6997, and
many others. The Lansdowne
catalogue will furnish other evi-
dences.
+ Anderson's Reports, i. 297.
It may be found also in the Bio-
graphia Britannica, and the Bio-
graphical Dictionary, art. An-
derson.
318
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern-
ment..
Remon-
strance of
judges
against
them.
there is an original manuscript in the British
Museum, differing in some material points from
the print, I shall follow it in preference.*
"To the Rt: hon: our very good lords sir Chr.
Hatton, of the honourable order of the garter
knight, and chancellor of England, and sir W.
Cecill of the hon: order of the garter knight, lord
Burleigh, lord high treasurer of England, We
her majesty's justices, of both benches, and barons
of the exchequer, do desire your lordships that.
by your good means such order may be taken that
her highness's subjects may not be committed or
detained in prison, by commandment of any noble-
man or counsellor, against the laws of the realm, to
the grievous charges and oppression of her majes-
ty's said subjects: Or else help us to have access
to her majesty, to be suitors unto her highness for
the same; for divers have been imprisoned for
suing ordinary actions, and suits at the common
law, until they will leave the same, or against their
wills
put their matter to order, although some time
it be after judgment and accusation.
"Item: Others have been committed and de-
tained in prison upon such commandment against
the law; and upon the queen's writ in that behalf, no
cause sufficient hath been certified or returned.
"Item: Some of the parties so committed and
detained in prison after they have, by the queen's
writ, been lawfully discharged in court, have been
eftsoones recommitted to prison in secret places,
* Lansdowne MSS. lviii. 87. lue. There is another in the same
The Harleian MS. 6846. is a mere collection, at which I have not
transcript from Anderson's Re- looked.
ports, and consequently of no_va-
FROM HENRY VII. TO GEORGE II.
319
V.
ELIZ.
Govern-
and not in common and ordinary known prisons, CHAP.
as the Marshalsea, Fleet, King's Bench, Gatehouse,
nor the custodie of any sheriff, so as upon com-
plaint made for their delivery, the queen's court ment.
cannot learn to whom to award her majesty's writ,
without which justice cannot be done.
"Item: Divers serjeants of London and officers
have been many times committed to prison for
lawful execution of her majesty's writs out of the
King's Bench, Common Pleas, and other courts, to
their great charges and oppression, whereby they
are put in such fear as they dare not execute the
queen's process.
Item: Divers have been sent for by pursui-
vants for private causes, some of them dwelling
far distant from London, and compelled to pay to
the pursuivants great sums of money against the
law, and have been committed to prison till they
would release the lawful benefit of their suits,
judgments, or executions for remedie, in which
behalf we are almost daily called upon to minister
justice according to law, whereunto we are bound
by our office and oath.
"And whereas it pleased your lordships to will
divers of us to set down when a prisoner sent to
custody by her majesty, her council, or some one
or two of them, is to be detained in prison, and
not to be delivered by her majesty's courts or
judges:
"We think that, if any person shall be committed
by her majesty's special commandment, or by order
from the council-board, or for treason touching her
majesty's person (a word of five letters follows, ille-
gible to me), which causes being generally returned
320
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. into any court, is good cause for the same court to
leave the person committed in custody.
V.
ELIZ.
Govern-
ment.
Proclama-
un-
warranted
by law.
But if any person shall be committed for any
other cause, then the same ought specially to be
returned."
This paper bears the original signatures of eleven
judges. It has no date, but is indorsed 5 June
1591. In the printed report, it is said to have
been delivered in Easter term 34 Eliz., that is,
in 1592. The chancellor Hatton, whose name is
mentioned, died in November 1591; so that, if
there is no mistake, this must have been delivered
a second time, after undergoing the revision of
the judges. And in fact the differences are far
too material to have proceeded from accidental
carelessness in transcription. The latter copy is
fuller, and on the whole more perspicuous, than
the manuscript I have followed; but in one or two
places it will be better understood by comparison
with it.)
It was a natural consequence, not more of the
tions and high notions entertained of prerogative than of
the very irregular and infrequent meeting of par-
liament, that an extensive and somewhat indefinite
authority should be arrogated to proclamations of
the king in council. Temporary ordinances, bor-
dering at least on legislative authority, grow out
of the varying exigencies of civil society, and will
by very necessity be put up with in silence, where-
ever the constitution of the commonwealth does
not, directly or in effect, provide for frequent as-
semblies of the body in whom the right of making
or consenting to laws has been vested. Since the
}
FROM HENRY VII. TO GEORGE II.
321
English constitution has reached its zenith, we
have endeavoured to provide a remedy by statute
for every possible mischief or inconvenience; and
if this has swollen our code to an enormous re-
dundance, till, in the labyrinth of written law, we
almost feel again the uncertainties of arbitrary
power, it has at least put an end to such exertions
of prerogative as fell at once on the persons and
properties of whole classes. It seems by the pro-
clamations issued under Elizabeth, that the crown
claimed a sort of supplemental right of legislation,
to perfect and carry into effect what the spirit of
existing laws might require, as well as a paramount
supremacy, called sometimes the king's absolute or
sovereign power, which sanctioned commands be-
yond the legal prerogative, for the sake of public
safety, whenever the council might judge that to
be in hazard. Thus we find anabaptists, without
distinction of natives or aliens, banished the realm;
Irishmen commanded to depart into Ireland; the
culture of woad*, and the exportation of corn,
money, and various commodities, prohibited; the
excess of apparel restrained. A proclamation in
1580 forbids the erection of houses within three
miles of London, on account of the too great in-
crease of the city, under the penalty of imprison-
* Hume says,
"that the queen
had taken a dislike to the smell of
this useful plant.' But this rea-
son, if it existed, would hardly have
induced her to prohibit its culti-
vation throughout the kingdom.
The real motive appears in several
letters of the Lansdowne collec-
tion. By the domestic culture of
VOL. I.
Y
woad, the customs on its import-
ation were reduced; and this led
to a project of levying a sort of ex-
cise upon it at home. Catalogue
of Lansdowne MSS. xlix. 32-60.
The same principle has since
caused the prohibition of sowing
tobacco.
CHAP.
V.
ELIZ.
Govern-
ment.
322
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. ment and forfeiture of the materials.
V.
ELIZ.
Govern-
ment.
This is re-
peated at other times, and lastly (I mean during
her reign) in 1602, with additional restrictions. †
Some proclamations in this reign hold out me-
naces, which the common law could never have
executed on the disobedient. To trade with the
French king's rebels, or to export victuals into the
Spanish dominions (the latter of which might pos-
sibly be construed into assisting the queen's ene
mies) incurred the penalty of treason.
And per-
sons having in their possession goods taken on the
high seas, which had not paid custom, are enjoined
to give them up, on pain of being punished as
felons and pirates. Notwithstanding these in-
stances, it cannot perhaps be said on the whole
that Elizabeth stretched her authority very out.
rageously in this respect. Many of her proclama-
tions, which may at first sight appear illegal, are
warrantable by statutes then in force, or by an-
cient precedents. Thus the council is empowered
by an act 28 H. 8. c. 14. to fix the prices of
wines; and abstinence from flesh in Lent, as well
as on Fridays and Saturdays, (a common subject
of Elizabeth's proclamations,) is enjoined by se-
veral statutes of Edward VI. and of her own. §
And it has been argued by some not at all in-
clined to diminish any popular rights, that the
king did possess a prerogative by common law
* Camden, 476.
†
Rymer, xvi. 448.
Many of these proclamations
are scattered through Rymer; and
the whole have been collected in a
volume.
S By a proclamation in 1560,
butchers killing flesh in Lent are
made subject to a specific penalty
of 201.; which was levied upon
one man. Strype's Annals, i. 235.
This seems to have been illegal.
FROM HENRY VII. TO GEORGE 11.
323
1
of restraining the export of corn and other com- CHAP.
modities.*
V.
ELIZ.
Govern-
ment.
tions on
It is natural to suppose that a government thus
arbitrary and vigilant must have looked with ex-
treme jealousy on the diffusion of free enquiry Restric-
through the press. The trades of printing and printing.
bookselling, in fact, though not absolutely licensed,
were always subject to a sort of peculiar superin-
tendence. Besides protecting the copyright of
authorst, the council frequently issued proclama-
tions to restrain the importation of books, or to
regulate their sale. ‡ It was penal to utter, or so
much as to possess, even the most learned works
on the catholic side; or if some connivance was
usual in favour of educated men, the utmust strict-
ness was used in suppressing that light infantry of
literature, the smart and vigorous pamphlets with
which the two parties arrayed against the church
assaulted her opposite flanks. § Stowe, the well-
known chronicler of England, who lay under sus-
picion of an attachment to popery, had his library
searched by warrant, and his unlawful books taken
* Lord Camden in 1766. Har-
grave, in preface to Hale de Jure
Coronæ, in Law Tracts, vol. i.
† We find an exclusive privilege
granted in 1563 to Thomas Cooper,
afterwards bishop of Winchester,
to print his Thesaurus, or Latin
dictionary, for twelve years. Ry-
mer, xv. 620.; and to Richard
Wright to print his translation of
Tacitus during his natural life;
any one infringing this privilege to
forfeit 40s. for every printed copy.
Id. xvi. 97.
Strype's Parker, 221. By the
51st of the queen's injunctions, in
1559, no one might print any book
or paper whatsoever unless the
same be first licensed by the coun-
cil or ordinary.
§ A proclamation, dated Feb.
1589, against seditious and schis-
matical books and writings, com-
mands all persons who shall have
in their custody any such libels
against the order and government
of the church of England, or the
rites and ceremonies used in it,
to bring and deliver up the same
with convenient speed to their
ordinary. Life of Whitgift, Ap-
pendix, 126. This has probably
been one cause of the extreme
scarcity of these puritanical pam-
phlets.
Y 2
324
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. away; several of which were but materials for his
V. history.* Whitgift, in this, as in every other respect,
ELIZ. aggravated the rigour of preceding times. At
Govern-
ment.
his instigation, the star-chamber, in 1585, published
ordinances for the regulation of the press. The
preface to these recites enormities and abuses of
disorderly persons professing the art of printing and
selling books to have more and more increased in
spite of the ordinances made against them, which
it attributes to the inadequacy of the penalties
hitherto inflicted. Every printer therefore is en-
joined to certify his presses to the Stationers'
Company, on pain of having them defaced, and
suffering a year's imprisonment. None to print at
all, under similar penalties, except in London, and
one in each of the two universities. No printer
who has only set up his trade within six months
to exercise it any longer, nor any to begin it in
future, until the excessive multitude of printers be
diminished, and brought to such a number as the
archbishop of Canterbury and bishop of London for
the time being shall think convenient; but, when-
ever any addition to the number of master printers
shall be required, the Stationers' Company shall
select proper persons to use that calling with the
approbation of the ecclesiastical commissioners.
None to print any book, matter, or thing what-
soever, until it shall have been first seen, perused,
and allowed by the archbishop of Canterbury, or
bishop of London, except the queen's printer, to be
appointed for some special service, or law-printers,
*
Strype's Grindal, 124., and Append. 43., where a list of these books
is given.
A
र
FROM HENRY VII. TO GEORGE II.
325
V.
ELIZ.
Govern-
who shall require the licence only of the chief jus- CHAP.
tices. Every one selling books printed contrary to
the intent of this ordinance, to suffer three months'
imprisonment. The Stationers' Company empowered ment.
to search houses and shops of printers and book-
sellers, and to seize all books printed in contra-
vention of this ordinauce, to destroy and deface the
presses, and to arrest and bring before the council
those who shall have offended therein.*
The forms of English law, however inadequate
to defend the subject in state prosecutions, imposed
a degree of seeming restraint on the crown, and
wounded that pride which is commonly a yet
stronger sentiment than the lust of power, with
princes and their counsellors. It was possible that
juries might absolve a prisoner; it was always ne-
cessary that they should be the arbiters of his fate.
Delay's too were interposed by the regular process;
not such, perhaps, as the life of man should require,
yet enough to weaken the terrors of summary
punishment. Kings love to display the divinity
with which their flatterers invest them, in nothing
so much as the instantaneous execution of their
will; and to stand revealed, as it were, in the
storm and thunderbolt, when their power breaks
* Strype's Whitgift, 222., and
Append. 94. The archbishop ex-
ercised his power over the press,
as may be supposed, with little
moderation. Not confining him-
self to the suppression of books
favouring the two religions adverse
to the church, he permitted nothing
to appear that interfered in the
least with his own notions. Thus
we find him seizing an edition of
some works of Hugh Broughton,
an eminent Hebrew scholar. This
learned divine differed from Whit-
gift about Christ's descent to hell.
It is amusing to read that ulti-
mately the primate came over to
Broughton's opinion; which, if it
prove some degree of candour, is
a glaring evidence of the advan-
tages of that free enquiry he had
sought to suppress. P. 384, 431,
Y
3
326
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
ELIZ.
Govern-
ment.
CHAP. through the operation of secondary causes, and
awes a prostrate nation without the intervention
of law. There may indeed be times of pressing
danger, when the conservation of all demands the
sacrifice of the legal rights of a few; there may be
circumstances that not only justify, but compel, the
temporary abandonment of constitutional forms.
It has been usual for all governments, during an
actual rebellion, to proclaim martial law, or the
suspension of civil jurisdiction. And this anomaly,
I must admit, is very far from being less indis-
pensable at such unhappy seasons, in countries
where the ordinary mode of trial is by jury, than
where the right of decision resides in the judge.
But it is of high importance to watch with extreme
jealousy the disposition, towards which most go-
vernments are prone, to introduce too soon, to ex-
tend too far, to retain too long, so perilous a remedy.
In the fourteenth and fifteenth centuries, the court
of the constable and marshal, whose jurisdiction
was considered as of a military nature, and whose
proceedings were not according to the course of the
common law, sometimes tried offenders by what
was called martial law, but only, I believe, either
during, or not long after, a serious rebellion. This
tribunal fell into disuse under the Tudors. But
Mary had executed some of those taken in Wyatt's
insurrection without regular process, though their
leader had his trial by a jury. Elizabeth, always
hasty in passion and quick to punish, would have
resorted to this summary course on a slighter oc-
casion. One Peter Burchell, a fanatical puritan,
and perhaps insane, conceiving that sir Christopher
Hatton was an enemy to true religion, determined
I
FROM HENRY VII. TO GEORGE II.
327.
V.
Govern-
to assassinate him. But by mistake he wounded CHAP.
instead a famous seaman, captain Hawkins. For
this ordinary crime, the queen could hardly be pre- ELIZ.
vented from directing him to be tried instantly by ment
martial law. Her council, however, (and this it is
important to observe,) resisted this illegal propo-
sition with spirit and success.* We have indeed a
proclamation some years afterwards, declaring that
such as brought into the kingdom or dispersed papal
bulls, or traitorous libels against the queen, should
with all severity be proceeded against by her ma-
jesty's lieutenants or their deputies, by martial law,
and suffer such pains and penalties as they should
inflict; and that none of her said lieutenants or
their deputies be any wise impeached, in body,
lands, or goods, at any time hereafter, for any thing
to be done or executed in the punishment of any
such offender, according to the said martial law,
and the tenour of this proclamation, any law or
statute to the contrary in any wise notwithstanding. †
This measure, though by no means constitutional,
finds an apology in the circumstances of the time.
It bears date the 1st of July, 1588, when within the
lapse of a few days the vast armament of Spain
might effect a landing upon our coasts; and pro-
Camden, 449. Strype's An-
nals, ii. 288. The queen had been
told, it seems, of what was done in
Wyatt's business, a case not all
parallel; though there was no suf-
ficient necessity even in that in-
stance to justify the proceeding by
martial law. But bad precedents
always beget "progeniem vitiosi-
orem."
There was a difficulty how to
punish Burchell capitally, which
probably suggested to the queen .
this strange expedient. It is said,
which is full as strange, that the
bishops were about to pass sentence
on him for heresy, in having as-
serted that a papist might lawfully
be killed. He put an end, how-
ever, to this dilemma, by cleaving.
the skull of one of the keepers in
the Tower, and was hanged in a
common way.
↑ Strype's Annals, ii. 570. Life
of Whitgift, Append. 126.
Y 4
328
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
ELIZ.
Govern-
ment.
Martial
law.
CHAP. spectively to a crisis, when the nation, struggling
for life against an invader's grasp, could not afford
the protection of law to domestic traitors. But it
is an unhappy consequence of all deviations from
the even course of law, that the forced acts of
over-ruling necessity come to be distorted into pre.
cedents to serve the purposes of arbitrary power.
No other measure of Elizabeth's reign can be com-
pared, in point of violence and illegality, to a com-
mission in July 1595, directed to Sir Thomas Wil-
ford; whereby upon no other allegation than that
there had been of late sundry great unlawful as-
semblies of a number of base people in riotous sort,
both in the city of London and the suburbs, for
the suppression whereof, (for that the insolency of
many desperate offenders is such, that they care
not for any ordinary punishment by imprisonment,)
it was found necessary to have some such notable
rebellious persons to be speedily suppressed by
execution to death, according to the justice of
martial law, he is appointed provost-marshal, with
authority, on notice by the magistrates, to attach
and seize such notable rebellious and incorrigible
offenders, and in the presence of the magistrates
to execute them openly on the gallows. The com-
mission empowers him also " to repair to all com-
mon highways near to the city, which any vagrant
persons do haunt, and, with the assistance of jus-
tices and constables, to apprehend all such vagrant
and suspected persons, and them to deliver to the
said justices, by them to be committed and exa-
mined of the causes of their wandering, and find-
ing them notoriously culpable in their unlawful
manner of life, as incorrigible, and so certified by
FROM HENRY VII. TO GEORGE II.
329
the said justices, to cause to be executed upon the
gallows or gibbet some of them that are so found
most notorious and incorrigible offenders; and some
such also of them as have manifestly broken the
peace, since they have been adjudged and con-
demned to death for former offences, and had the
queen's pardon for the same."*
This peremptory style of superseding the com-
mon law was a stretch of prerogative without an
adequate parallel, so far as I know, in any former
period. It is to be remarked, that no tumults had
taken place of any political character or of serious
importance, some riotous apprentices only having
committed a few disorders. † But rather more than
usual suspicion had been excited about the same
time by the intrigues of the jesuits in favour of
Spain, and the queen's advanced age had begun
to renew men's doubts as to the succession. The
rapid increase of London gave evident uneasiness,
as the proclamations against new buildings show,
to a very cautious administration, environed by
bold and inveterate enemies, and entirely destitute
of regular troops to withstand a sudden insurrection.
Circumstances of which we are ignorant, I do not
question, gave rise to this extraordinary commission.
The executive government in modern times has
been invested with a degree of coercive power to
maintain obedience, of which our ancestors, in the
most arbitrary reigns, had no practical experience.
If we reflect upon the multitude of statutes enacted
since the days of Elizabeth in order to restrain and
suppress disorder, and above all on the prompt and
* Rymer, xvi. 279.
+ Carte, 693, from Stowe.
CHAP.
V.
ELIZ.
Govern-
ment.
¦
330
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern-
ment.
certain aid that a disciplined army affords to our
civil authorities, we may be inclined to think that
it was rather the weakness than the vigour of her
government which led to its inquisitorial watchful-
ness and harsh measures of prevention. We find
in an earlier part of her reign an act of state
somewhat of the same character, though not per-
haps illegal. Letters were written to the sheriffs
and justices of divers counties in 1569, directing
them to apprehend, on a certain night, all vaga-
bonds and idle persons having no master, nor means
of living, and either to commit them to prison, or
pass them to their proper homes. This was re-
peated several times; and no less than 13,000 per-
sons were thus apprehended, chiefly in the north,
which, as Strype says, very much broke the rebel-
lion attempted in that year.
*
Amidst so many infringements of the freedom of
commerce, and with so precarious an enjoyment
of personal liberty, the English subject continued
to pride himself in his immunity from taxation
without consent of parliament. This privilege he
had asserted, though not with constant success,
against the rapacity of Henry VII. and the vio-
lence of his son. Nor was it ever disputed in
theory by Elizabeth. She retained, indeed, not-
withstanding the complaints of the merchants at
her accession, a custom upon cloths, arbitrarily
imposed by her sister, and laid one herself upon
sweet wines. But she made no attempt at levy-
ing internal taxes, except that the clergy were
called upon, in 1586, for an aid not granted in
* Strype's Annals, i. 535.
}
FROM HENRY VII. TO GEORGE II.
331
V.
ELIZ.
Govern-
ment.
convocation, but assessed by the archdeacon ac- CHAP.
cording to the value of their benefices; to which
they naturally showed no little reluctance.* By
dint of singular frugality she continued to steer
the true course, so as to keep her popularity un-
diminished and her prerogative unimpaired; ask-
ing very little of her subjects' money in parlia-
ments, and being hence enabled both to have long
breathing times between their sessions, and to
meet them without coaxing or wrangling; till, in
the latter years of her reign, a foreign war and a
rebellion in Ireland, joined to a rapid depreciation
in the value of money, rendered her demands
somewhat higher. But she did not abstain from
the ancient practice of sending privy-seals to
borrow money of the wealthy. These were not
considered as illegal, though plainly forbidden by
the statute of Richard III.; for it was the fashion
to set aside the authority of that act, as having
been passed by an usurper. It is impossible to Loans of
doubt that such loans were so far obtained by money not
compulsion, that any gentleman or citizen of suf- tary.
ficient ability refusing compliance would have
* Strype, iii. Append. 147. This
was exacted in order to raise men
for service in the Low Countries.
But the beneficed clergy were al-
ways bound to furnish horses and
armour, or their value, for the de-
fence of the kingdom in peril of
invasion or rebellion. An instance
of their being called on for such
a contingent occurred in 1569.
Strype's Parker, 273.; and Rymer
will supply many others in earlier
times.
The magistrates of Cheshire and
Lancashire had imposed a charge
of eightpence a week on each parish
of those counties for the main-
tenance of recusants in custody.
This, though very nearly borne
out by the letter of a recent sta-
tute, 14th Eliz. c. 5., was conceived
by the inhabitants to be against
law. We have, in Strype's Annals,
vol. iii. Append. 56., a letter from
the privy-council, directing the
charge to be taken off. It is only
worth noticing, as it illustrates the
jealousy which the people enter-
tained of any thing approaching to
taxation without consent of parlia-
ment, and the caution of the mi-
nistry in not pushing any exertion
of prerogative farther than would
readily be endured.
quite volun-
332
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern-
ment.
discovered that it were far better to part with his
money than to incur the council's displeasure.
We have indeed a letter from a lord mayor to the
council, informing them that he had committed
to prison some citizens for refusing to pay the
money demanded of them.* But the queen seems
to have been punctual in their speedy repayment
according to stipulation; a virtue somewhat un-
usual with royal debtors. Thus we find a procla-
mation in 1571, that such as had lent the queen
money in the last summer should receive repay-
ment in November and December. † Such loans
* Murden, 632. That some
degree of intimidation was occa-
sionally made use of, may be in-
ferred from the following letter of
sir Henry Cholmley to the mayor
and aldermen of Chester, in 1597.
He informs them of letters re-
ceived by him from the council,
CC
whereby I am commanded in alĺ
haste to require you that you and
every of you send in your several
sums of money unto Torpley (Tar-
porly) on Friday next the 23d
December, or else that you and
every of you give me meeting
there, the said day and place, to
enter severally into bond to her
highness for your appearance forth-
with before their lordships, to show
cause wherefore you and every of
should refuse to pay her ma-
you
jesty loan according to her highness
several privy-seals by you received,
letting you wit that I am now
directed by other letters from their
lordships to pay over the said
money to the use of her majesty,
and to send and certify the said
bonds so taken: which praying
you heartily to consider of as the
last direction of the service, I
heartily bid you farewell.”
MSS. 2173. 10.
Harl.
+ Strype, ii. 102. In Haynes,
p. 518., is the form of a circular
CC
letter or privy-seal, as it was called
from passing that office, sent in
1569, a year of great difficulty, to
those of whose aid the queen stood
in need. It contains a promise of
repayment at the expiration of
twelve months. A similar appli-
cation was made through the lord-
lieutenants in their several coun-
ties, to the wealthy and well dis-
posed, in 1588, immediately after
the destruction of the Armada.
The loans are asked only for the
space of a year, as heretofore has
been yielded unto her majesty in
times of less need and danger, and
yet always fully repaid." Strype,
iii. 535. Large sums of money
are said to have been demanded
of the citizens of London in 1599.
Carte, 675. It is perhaps to this
year that we may refer a curious
fact mentioned in Mr. justice
Hutton's judgment in the case of
ship-money. "In the time of
Queen Elizabeth (he says), who
was a gracious and a glorious
queen, yet in the end of her reign,
whether through covetousness, or
by reason of the wars that came
upon her, I know not by what
counsel she desired benevolence,
the statute of 2d Richard III. was
pressed, yet it went so far, that by
commission and direction money
FROM HENRY VII. TO GEORGE II.
333
were but an anticipation of her regular revenue,
and no great hardship on rich merchants; who, if
they got no interest for their money, were recom-
pensed with knighthoods and gracious words.
And as Elizabeth incurred no debt till near the
conclusion of her reign, it is probable that she
never had borrowed more than she was sure to
repay. Хx
A letter quoted by Hume from lord Burleigh's
papers, though not written by him, as the historian
asserts, and somewhat obscure in its purport, ap-
pears to warrant the conclusion that he had re-
volved in his mind some project of raising money
by a general contribution or benevolence from
persons of ability, without purpose of repayment.
This was also amidst the difficulties of the year
1569, when Cecil perhaps might be afraid of meet-
ing parliament, on account of the factions leagued
against himself. But as nothing further was done
in this matter, we must presume that he per-
ceived the impracticability of so unconstitutional a
scheme.*
CHAP.
V.
ELIZ.
Govern-
ment.
of lord
Those whose curiosity has led them to some- Character
what more acquaintance with the details of En- Burleigh's
glish history under Elizabeth than the pages of adminis-
Camden or Hume will afford, cannot but have
been struck with the perpetual interference of
was gathered in every inn of court;
and I myself for my part paid
twenty shillings. But when the
queen was informed by her judges
that this kind of proceeding was
against law, she gave directions to
pay all such sums as were collected
back; and so I (as all the rest of
our house, and as I think of other
houses too) had my twenty shil-
lings repaid me again; and privy
counsellors were sent down to all
parts, to tell them that it was for
the defence of the realm, and it
should be repaid them again."
State Trials, iii. 1199.
* Haynes, 518. Hume has ex-
aggerated this, like other facts, in
his very able, but partial, sketch of
the constitution in Elizabeth's reign.
tration.
334
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern-
ment.
I
men in power with matters of private concern.
am far from pretending to know how far the soli
citations for a prime minister's aid and influence
may extend at present. Yet one may think that
he would hardly be employed, like Cecil, where
he had no personal connexion, in reconciling fa-
mily quarrels, interceding with a landlord for his
tenant, or persuading a rich citizen to bestow his
daughter on a young lord. We are sure, at least,
that he would not use the air of authority upon
such occasions. The vast collection of lord Bur-
leigh's letters in the Museum is full of such petty
matters, too insignificant, for the most part, to be
mentioned even by Strype.* They exhibit, how-
ever, collectively, a curious view of the manner in
which England was managed, as if it had been the
household and estate of a nobleman under a strict
and prying steward. We are told that the relax-
ation of this minister's mind was to study the state
of England and the pedigrees of its nobility and
gentry of these last he drew whole books with
his own hands; so that he was better versed in
descents and families than most of the heralds,
and would often surprise persons of distinction at
*The following are a few spe-
cimens, copied from the Lansdowne
catalogue. "Sir Antony Cooke to
sir William Cecil, that he would
move Mr. Peters to recommend
Mr. Edward Stanhope to a certain
young lady of Mr. P.'s acquaint-
ance, whom Mr. Stanhope was de-
sirous to marry." Jan. 25. 1563.
lxxi. 73. "Sir John Mason to sir
William Cecil, that he fears his
young landlord, Spelman, has in-
tentions of turning him out of his
house, which will be disagreeable;
hopes therefore sir William C. will
speak in his behalf." Feb. 4. 1566.
Id. 74. "Lord Stafford to lord Bur-
leigh, to further a match between
a certain rich citizen's daughter
and his son; he requests lord B.
to appoint the father to meet him
(lord Stafford) some day at his
house," where I will in few words
make him so reasonable an offer
as I trust he will not disallow."
lxviii. 20. Lady Zouch to lord
Burleigh, for his friendly interpo-
sition to reconcile lord Žouch her
husband, who had forsaken her
through jealousy.” 1593. lxxiv. 72.
FROM HENRY VII. TO GEORGE II.
335
CHAP.
V.
ELIZ.
Govern-
his table by appearing better acquainted with
their manors, parks, and woods, than themselves.*
Such knowledge was not sought by the crafty
Cecil for mere diversion's sake. It was a main ment.
part of his system to keep alive in the English
gentry a persuasion that his eye was upon them.
No minister was ever more exempt from that false
security which is the usual weakness of a court.
His failing was rather a bias towards suspicion
and timidity; there were times, at least, in which
his strength of mind seems to have almost de-
serted him, through sense of the perils of his sove-
reign and country. But those perils appear less
to us, who know how the vessel outrode them,
than they could do to one harassed by continual
informations of those numerous spies whom he
employed both at home and abroad. The one
word of Burleigh's policy was prevention; and
this was dictated by a consciousness of wanting
an armed force or money to support it, as well as
by some uncertainty as to the public spirit, in re-
spect at least of religion. But a government that
directs its chief attention to prevent offences
against itself, is in its very nature incompatible
with that absence of restraint, that immunity from
suspicion, in which civil liberty, as a tangible pos-
session, may be said to consist. It appears pro-
bable, that Elizabeth's administration carried too
far, even as a matter of policy, this precautionary
system upon which they founded the penal code
against popery; and we may surely point to a
contrast very advantageous to our modern consti-
* Biographia Britannica, art. CECIL.
336
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
ELIZ.
Govern-
ment.
Disposition
of the house
of com-
mons.
CHAP. tution, in the lenient treatment which the Jacobite
faction experienced from the princes of the house
of Hanover. She reigned however in a period of
real difficulty and danger. At such seasons, few
ministers will abstain from arbitrary actions, except
those who are not strong enough to practise them.
I have traced, in another work, the acquisition
by the house of commons of a practical right to
enquire into and advise upon the public admini-
stration of affairs, during the reigns of Edward III.,
Richard II., and the princes of the line of Lan-
caster. This energy of parliament was quelled by
the civil wars of the fifteenth century; and, what-
ever may have passed in debates within its walls
that have not been preserved, did not often display
itself in any overt act under the first Tudors. To
grant subsidies which could not be raised by any
other course, to propose statutes which were not
binding without their consent, to consider of public
grievances, and procure their redress, either by law
or petition to the crown, were their acknowledged
constitutional privileges, which no sovereign or
minister ever pretended to deny. For this end
liberty of speech and free access to the royal person
were claimed by the speaker as customary privi-
leges (though not quite, in his modern language,
as undoubted rights,) as the commencement of
every parliament. But the house of commons in
Elizabeth's reign contained men of a bold and
steady patriotism, well read in the laws and records
of old time, sensible to the dangers of their country
and abuses of government, and conscious that it
was their privilege and their duty to watch over
the common weal. This led to several conflicts
I
FROM HENRY VII. TO GEORGE II.
337
V.
ELIZ.
between the crown and parliament; wherein, if CHAP.
the former often asserted the victory, the latter
sometimes kept the field, and was left on the whole
a gainer at the close of the campaign.
It would surely be erroneous to conceive, that
many acts of government in the four preceding
reigns had not appeared at the time arbitrary and
unconstitutional. If indeed we are not mistaken
in judging them according to the ancient law, they
must have been viewed in the same light by con-
temporaries, who were full as able to try them by
that standard. But, to repeat what I have once
before said, the extant documents from which we
draw our knowledge of constitutional history under
those reigns are so scanty, that instances even of
a successful parliamentary resistance to measures
of the crown may have left no memorial. The
debates of parliament are not preserved, and very
little is to be gained from such histories as the age
produced. The complete barrenness indeed of
Elizabeth's chroniclers, Holingshed and Thin, as
to every parliamentary or constitutional information,
speaks of itself the jealous tone of heradminis-
tration. Camden, writing to the next generation,
though far from an ingenuous historian, issome-
what less under restraint. This forced silence of
history is much more to be suspected after the
use of printing and the reformation, than in the
ages when monks compiled annals in their con-
vents, reckless of the censure of courts, because
independent of their permission. Grosser igno-
rance of public transactions is undoubtedly found
in the chronicles of the middle ages; but far less
of that deliberate mendacity, or of that insidious
VOL. I.
Z
Govern-
ment.
338
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
Govern-
ment.
suppression, by which fear, and flattery, and hatred,
and the thirst of gain, have, since the invention of
ELIZ. printing, corrupted so much of historical literature.
throughout Europe. We begin however to find
in Elizabeth's reign more copious and unquestion-
able documents for parliamentary history. The
regular journals indeed are partly lost; nor would
those which remain give us a sufficient insight into
the spirit of parliament, without the aid of othe
sources. But a volume called sir Simon D'Ewes's
journal, part of which is copied from a manuscript
of Heywood Townsend, a member of all parlia-
ments from 1580 to 1601, contains minutes of the
most interesting debates as well as transactions,
and for the first time renders us acquainted with
the names of those who swayed an English house
of commons. *
Addresses
the succes-
There was no peril more alarming to this king-
concerning dom during the queen's reign than the precarious-
sion. ness of her life,-a thread whereon its tranquillity,
if not its religion and independence, was suspended.
Hence the commons felt it an imperious duty not
only to recommend her to marry, but, when this
was delayed, to solicit that some limitations of the
crown might be enacted, in failure of her issue.
The former request she evaded without ever mani-
festing much displeasure, though not sparing a hint
that it was a little beyond the province of parlia-
ment. Upon the last occasion, indeed, that it was
preferred, namely, by the speaker in 1575, she gave
what from any other woman must have appeared
an assent, and almost a promise. But about de-
* Townsend's manuscript has
been separately published; but I
do not find that D'Ewes has omit
ted any thing of consequence.
FROM HENRY VII. TO GEORGE II.
339
CHAP.
V.
ELIZ.
Govern-
ment.
claring the succession she was always very sensible.
Through a policy not perhaps entirely selfish, and
certainly not erroneous on selfish principles, she
was determined never to pronounce among the
possible competitors for the throne. Least of all
could she brook the intermeddling of parliament
in such a concern. The commons first took up
this business in 1562, when there had begun to be
much debate in the nation about the opposite titles
of the queen of Scots and lady Catherine Grey;
and especially in consequence of a dangerous sick-
ness the queen had just experienced, and which is
said to have been the cause of summoning parlia-
ment. Their language is wary, praying her only
by "proclamation of certainty already provided,
if any such be," alluding to the will of Henry VIII.,
"or else by limitations of certainty, if none be, to
provide a most gracious remedy in this great ne-
cessity *;" offering at the same time to concur in
provisions to guarantee her personal safety against
any one who might be limited in remainder. Eliza-
beth gave them a tolerably courteous answer, though
not without some intimation of her dislike to this
address. But at their next meeting, which was Difference.
not till 1566, the hope of her own marriage having
grown fainter, and the circumstances of the king-
dom still more powerfully demanding some se-
curity, both houses of parliament united, with a
دو
* D'Ewes, p. 82. Strype, i. 258. ;
from which latter passage it seems
that Cecil was rather adverse to
the proposal.
but an imperfect copy or abridg-
ment of one which she made in
1566; as D'Ewes himself after-
wards confesses. Her real answer
to the speaker in 1563 is in Har-
rington's Nuga Antiquæ, vol. i.
† D'Ewes, p. 85. The speech
+
The speech
which Hume, on D'Ewes's autho-
rity, has put into the queen's p. 80.
mouth at the end of this session, is
tween the
queen and
on this be-
commons
in 1566.
z 2
340
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern-
ment.
boldness of which there had perhaps been no ex-
ample for more than a hundred years, to overcome
her repugnance.
Some of her own council among
the peers are said to have asserted in their places
that the queen ought to be obliged to take a hus-
band, or that a successor should be declared by
parliament against her will. She was charged with
a disregard to the state and to posterity. She
would prove, in the uncourtly phrase of some
sturdy members of the lower house, a step-mother
to her country, as being seemingly desirous that
England, which lived as it were in her, should
rather expire with than survive her; that kings
can only gain the affections of their subjects by
providing for their welfare both while they live
and after their deaths; nor did any but princes
hated by their subjects, or faint-hearted women,
ever stand in fear of their successors.* But this
great princess wanted not skill and courage to re-
sist this unusual importunity of parliament. The
peers, who had forgotten their customary respect-
fulness, were excluded the presence-chamber till
they made their submission. She prevailed on the
commons, through her ministers who sat there, to
join a request for her marriage with the more un-
and
palatable alternative of naming her successor;
when this request was presented, gave them fair
words, and a sort of assurance that their desires
should by some means be fulfilled. When they
continued to dwell on the same topic in their
speeches, she sent messages through her ministers,
* Camden, p. 400.
+ The courtiers told the house,
that the queen intended to marry,
in order to divert them from their
request that they would name her
successor. Strype, vol. i. p. 494.
FROM HENRY VII. TO GEORGE II.
341
and at length a positive injunction through the
speaker, that they should proceed no further in
the business. The house however was not in a
temper for such ready acquiescence as it sometimes
displayed. Paul Wentworth, a bold and plain-
spoken man, moved to know whether the queen's
command and inhibition that they should no longer
dispute of the matter of succession, were not against
their liberties and privileges. This caused, as we
are told, long debates; which do not appear to have
terminated in any resolution.* But, more probably
having passed than we know at present, the queen,
whose haughty temper and tenaciousness of prero-
gative were always within check of her discretion,
several days after announced through the speaker,
that she revoked her two former commandments ;
"which revocation," says the journal, "was taken
by the house most joyfully, with hearty prayer and
thanks for the same.” At the dissolution of this
parliament, which was perhaps determined upon in
consequence of their steadiness, Elizabeth alluded
in addressing them with no small bitterness to what
had occurred.†
This is the most serious disagreement on record
between the crown and the commons since the
days of Richard II. and Henry IV. Doubtless the
queen's indignation was excited by the nature of
the subject her parliament ventured to discuss,
still more than by her general disapprobation of
their interference in matters of state. It was an
endeavour to penetrate the great secret of her
reign, in preserving which she conceived her peace,
* D'Ewes, p. 128.
+ Id. p. 116. Journals, 8th Oct.,.
25th Nov., 2d Jan.
CHAP.
V.
ELIZ.
Govern-
ment.
z 3
342
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
ELIZ.
Govern-
ment.
CHAP. dignity, and personal safety to be bound up. There
were, in her opinion, as she intimates in her speech
at closing the session, some underhand movers of
this intrigue (whether of the Scots or Suffolk fac-
tion does not appear), who were more to blame
than even the speakers in parliament. And if, as
Cecil seems justly to have thought, no limitations
of the crown could at that time have been effected
without much peril and inconvenience, we may
find some apology for her warmth about their pre-
cipitation in a business, which, even according to
our present constitutional usage, it would naturally
be for the government to bring forward. It is to
be collected from Wentworth's motion, that to de-
liberate on subjects affecting the commonwealth
was reckoned, by at least a large part of the house
of commons, one of their ancient privileges and
liberties. This was not one which Elizabeth, how-
ever she had yielded for the moment in revoking
her prohibition, ever designed to concede to them.
Such was her frugality, that, although she had re-
mitted a subsidy granted in this session, alledging
the very honourable reason that, knowing it to have
been voted in expectation of some settlement of the
succession, she would not accept it when that im-
plied condition had not been fulfilled, she was able
to pass five years without again convoking her
Session of people. A parliament met in April 1571, when
the lord keeper Bacon*, in answer to the speaker's
customary request for freedom of speech in the
commons, said that "her majesty having expe
rience of late of some disorder and certain offences,
which, though they were not punished, yet were
1571.
*
D'Ewes, p. 141.
FROM HENRY VII. TO GEORGE II.
343
V.
ELIZ.
they offences still, and so must be accounted, they CHAP.
would therefore do well to meddle with no matters
of state, but such as should be propounded unto
them, and to occupy themselves in other matters
concerning the commonwealth."
Govern-
ment.
of the pu-
The commons so far attended to this intimation, Influence
that no proceedings about the succession appear ritans in
to have taken place in this parliament, except such parliament.
as were calculated to gratify the queen. We may
perhaps except a bill attainting the queen of Scots,
which was rejected in the upper house. But they
entered for the first time on a new topic, which
did not cease for the rest of this reign to furnish
matter of contention with their sovereign. The
party called puritan, including such as charged
abuses on the actual government of the church, as
well as those who objected to part of its lawful
discipline, had, not a little in consequence of the
absolute exclusion of the catholic gentry, obtained
a very considerable strength in the commons. But
the queen valued her ecclesiastical supremacy more
than any part of her prerogative. Next to the
succession of the crown, it was the point she could
least endure to be touched. The house had in-
deed resolved, upon reading a bill the first time
for reformation of the common prayer, that peti-
tion be made to the queen's majesty for her license
to proceed in it, before it should be further dealt
in. But Strickland, who had proposed it, was sent
for to the council, and restrained from appearing
again in his place, though put under no confine-
ment. This was noticed as an infringement of
their liberties. The ministers endeavoured to ex-
z 4
344
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern-
ment.
cuse his detention, as not intended to lead to any
severity, nor occasioned by any thing spoken in
that house, but on account of his introducing a
bill against the prerogative of the queen, which was
not to be tolerated. And instances were quoted
of animadversion or speeches made in parliament.
But Mr. Yelverton maintained that all matters not
treasonable, nor too much to the derogation of the
imperial crown, were tolerable there, where al
things came to be considered, and where there was
such fulness of power as even the right of the crown
was to be determined, which it would be high trea
son to deny. Princes were to have their preroga-
tives, but yet to be confined within reasonable
limits. The queen could not of herself make laws,
neither could she break them. This was the true.
voice of English liberty, not so new to men's ears
as Hume has imagined, though many there were
who would not forfeit the court's favour by utter-
ing it. Such speeches as the historian has quoted
of sir Humphry Gilbert, and many such may be
found in the proceedings of this reign, are rather
directed to intimidate the house by exaggerating
their inability to contend with the crown, than to
prove the law of the land to be against them. In
the present affair of Strickland, it became so evident
that the commons would at least address the queen
to restore him, that she adopted the course her
usual prudence indicated, and permitted his return
to his house. But she took the reformation of
ecclesiastical abuses out of their hands, sending
word that she would have some articles for that
purpose executed by the bishops under her royal
supremacy, and not dealt in by parliament. This
FROM HENRY VII. TO GEORGE II.
345
did not prevent the commons from proceeding to
send up some bills in the upper house, where, as
was natural to expect, they fell to the ground.*
This session is also remarkable for the first
marked complaints against some notorious abuses,
which defaced the civil government of Elizabeth.†
A member having rather prematurely suggested
the offer of a subsidy, several complaints were
made of irregular and oppressive practices, and
Mr. Bell said, that licenses granted by the crown
and other abuses galled the people, intimating
also, that the subsidy should be accompanied by a
redress of grievances.‡ This occasion of intro-
ducing the subject, though strictly constitutional,
was likely to cause displeasure. The speaker in-
formed them a few days after of a message from
the queen to spend little time in motions, and
make no long speeches.§ And Bell, it appears,
having been sent for by the council, came into the
house with such an amazed countenance, that
it daunted all the rest," who for many days durst
not enter on any matter of importance. It be-
came the common whisper, that no one must speak
against licenses, lest the queen and council should
be angry. And at the close of the session, the
lord keeper severely reprimanded those audacious,
arrogant, and presumptuous members who had
called her majesty's grants and prerogatives in
question, meddling with matters neither pertain-
* D'Ewes, 156, &c. There is
no mention of Strickland's busi-
ness in the journal.
† Something of this sort seems
to have occurred in the session of
1566, as may be inferred from the
lord keeper's reproof to the speaker
for calling her majesty's letters pa-
tent in question. Id. 115.
Id. 158. Journals, 7 Apr.
Journals, 9 and 10 Apr.
|| D'Ewes, 159.
CHAP.
V.
ELIZ...
Govern-
ment.
346
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. ing to them, nor within the capacity of their un-
derstanding.*
V.
ELIZ.
Govern-
ment.
The parliament of 1572 seemed to give evidence
of their inheriting the spirit of the last by choos-
ing Mr. Bell for their speaker. But very little
of it appeared in their proceedings. In their first
short session, chiefly occupied by the business of
the queen of Scots, the most remarkable circum-
stances are the following. The commons were
desirous of absolutely excluding Mary from in-
heriting the crown, and even of taking away her
life, and had prepared bills with this intent. But
Elizabeth, constant to her mysterious policy, made
one of her ministers inform them that she would
neither have the queen of Scots enabled nor dis-
abled to succeed, and willed that the bill respect-
ing her should be drawn by her council: and that,
in the mean time, the house should not enter on
any speeches or arguments on that matter.‡ An-
other circumstance worthy of note in this session
is a signification, through the speaker, of her ma-
jesty's pleasure that no bills concerning religion
should be received, unless they should be first con-
sidered and approved by the clergy, and requiring
to see certain bills touching rites and ceremonies
that had been read in the house. The bills were
accordingly ordered to be delivered to her, with
a humble prayer that, if she should dislike them,
* D'Ewes, 151.
+ Bell, I suppose, had recon-
ciled himself to the court, which
would have approved no speaker
chosen without its recommend-
ation. There was always an un-
derstanding between this servant
of the house and the government.
Proofs and presumptions of this
are not unfrequent. In Strype's
Annals, vol. iv. p. 124. we find in-
structions for the speaker's speech
in 1592, drawn up by lord Bur-
leigh, as might very likely be the
case on other occasions.
‡ D'Ewes, 219,
FROM HENRY VII. TO GEORGE II.
347
she would not conceive an ill opinion of the house, CHAP.
or of the parties by whom they were preferred.*
The submissiveness of this parliament was doubt-
less owing to the queen's vigorous dealings with
the last. At their next meeting, which was not
till February 1575-6, Peter Wentworth, brother, I
believe, of the person of that name before men-
tioned, broke out, in a speech of uncommon bold.
ness, against her arbitrary encroachments on their
privileges. The liberty of free speech, he said,
had in the two last sessions been so many ways
infringed, that they were in danger, while they
contented themselves with the name, of losing
and foregoing the thing. It was common for a
rumour to spread through that house,
"the queen
likes or dislikes such a matter; beware what you
do." Messages were even sometimes brought
down, either commanding or inhibiting, very in-
jurious to the liberty of debate. He instanced
that in the last session, restraining the house from
dealing in matters of religion; against which and
against the prelates he inveighed with great acri-
mony. With still greater indignation he spoke of
the queen's refusal to assent to the attainder of
Mary, and after surprising the house by the bold
words, none is without fault, no not our noble
queen, but has committed great and dangerous
faults to herself," went on to tax her with ingra-
titude and unkindness to her subjects, in a strain
perfectly free indeed from disaffection, but of
more rude censure than any kings would put up
with.t
V.
ELIZ.
Govern-
ment.
Speech of
worth in
Mr. Went-
1576.
* D'Ewes, 213, 214.
+ Id. 236.
348
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern.
inent.
This direct attack upon the sovereign, in mat-
ters relating to her public administration, seems
no doubt unparliamentary; though neither the
rules of parliament in this respect, nor even the
constitutional principle, were so strictly under-
stood as at present. But it was part of Elizabeth's
character to render herself extremely prominent,
and, as it were, responsible in public esteem, for
every important measure of her government. It
was difficult to consider a queen as acting merely
by the advice of ministers, who protested in par-
liament that they had laboured in vain to bend her
heart to their councils. The doctrine that some
one must be responsible for every act of the crown
was yet perfectly unknown; and Elizabeth would
have been the last to adopt a system so inglorious
to monarchy. But Wentworth had gone to a length
which alarmed the house of commons. They
judged it expedient to prevent an unpleasant in-
terference by sequestering their member, and ap-
pointing a committee of all the privy counsellors
in the house to examine him. Wentworth de-
clined their authority, till they assured him that
they sat as members of the commons, and not as
counsellors. After a long examination, in which
he not only behaved with intrepidity, but, accord-
ing to his own statement, reduced them to confess
the truth of all he advanced, they made a report
to the house, who committed him to the Tower.
He had lain there a month, when the queen sent
word that she remitted her displeasure towards
him, and referred his enlargement to the house,
who released him upon a reprimand from the
speaker, and an acknowledgment of his fault upon
FROM HENRY VII. TO GEORGE II.
349
his knees.*
In this commitment of Wentworth,
CHAP.
V.
ELIZ.
Govern-
it can hardly be said that there was any thing, as
to the main point, by which the house sacrificed
its acknowledged privileges. In later instances, ment.
and even in the reign of George the First, mem-
bers have been committed for much less indecent
reflections on the sovereign. The queen had no
reason upon the whole to be ill-pleased with this
parliament, nor was she in haste to dissolve it,
though there was a long intermission of its ses-
sions. The next was in 1581, when the chancellor,
on confirming a new speaker, did not fail to ad-
monish him that the house of commons should
not intermeddle in any thing touching her ma-
jesty's person or estate, or church government.
They were supposed to disobey this injunction
and fell under the queen's displeasure, by appoint-
ing a public fast on their own authority, though
to be enforced on none but themselves. This
trifling resolution, which showed indeed a little of
the puritan spirit, passed for an encroachment on
the supremacy, and was only expiated by a humble
apology. It is not till the month of February
1587-8, that the zeal for ecclesiastical reformation
overcame in some measure the terrors of power,
but with no better success than before. A Mr.
Cope offered to the house, we are informed, a bill
and a book, the former annulling all laws respect-
ing ecclesiastical government then in force, and
establishing a certain new form of common prayer
contained in the latter. The speaker interposed
to prevent this bill from being read, on the ground
* D'Ewes, 260.
+ Id. 282.
350
THE CONSTITUTIONAL HISTORY OF ENGLAND
commanded them not to
Several members however
CHAP. that her majesty had
V. meddle in this matter.
Govern-
ment.
ELIZ. spoke in favour of hearing it read, and the day
passed in debate on this subject. Before they
met again, the queen sent for the speaker, who
delivered up to her the bill and book. Next time
that the house sat, Mr. Wentworth insisted that
some questions of his proposing should be read.
These queries were to the following purport:
Whether this council was not a place for any mem
ber of the same, freely and without control, by bill
or speech, to utter any of the griefs of this com-
monwealth? Whether there be any council that
can make, add, or diminish from the laws of the
realm, but only this council of parliament? Whe-
ther it be not against the orders of this council to
make any secret or matter of weight, which is
here in hand, known to the prince or any other,
without consent of the house? Whether the
speaker may overrule the house in any matter or
cause in question? Whether the prince and state
can continue and stand, and be maintained with.
out this council of parliament, not altering the
government of the state? These questions ser-
jeant Pickering, the speaker, instead of reading
them to the house, showed to a courtier, through
whose means Wentworth was committed to the
Tower. Mr. Cope, and those who had spoken in
favour of his motion, underwent the same fate;
and notwithstanding some notice taken of it in
the house, it does not appear that they were set
at liberty before its dissolution, which ensued in
three weeks.* Yet the commons were so set on
* D'Ewes, 410.
2
FROM HENRY VII. TO GEORGE II.
351
displaying an ineffectual hankering after reform,
that they appointed a committee to address the
queen for a learned ministry.
At the beginning of the next parliament, which
met in 1588-9, the speaker received an admonition
that the house were not to extend their privileges
to any irreverent or misbecoming speech. In this
session Mr. Damport, we are informed by D'Ewes*,
moved neither for making of any new laws, nor
for abrogating of any old ones, but for a due course
of proceeding in laws already established, but ex-
ecuted by some ecclesiastical governors contrary
both to their purport and the intent of the legis-
lature, which he proposed to bring into discussion.
So cautious a motion saved its author from the
punishment which had attended Mr. Cope for his
more radical reform; but the secretary of state,
reminding the house of the queen's express inhi-
bition from dealing with ecclesiastical causes, de-
clared to them by the chancellor at the commence-
ment of the session (in a speech which does not
appear), prevented them from taking any further
notice of Mr. Damport's motion. They narrowly
escaped Elizabeth's displeasure in attacking some
civil abuses. Sir Edward Hobby brought in a bill
to prevent certain exactions made for their own
profit by the officers of the exchequer. Two days
after he complained, that he had been very sharply
rebuked by some great personage, not a member
of the house, for his speech on that occasion. But
instead of testifying indignation at this breach of
their privileges, neither he nor the house thought
*P. 438.
Townsend calls this gentleman Davenport, which no
doubt was his true name.
CHAP.
V.
ELIZ.
Govern-
ment.
The com-
tinue to
seek redress
tical griev-
mons con-
of ecclesias-
ances.
352
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern-
ment.
of any further redress than by exculpating him to
this great personage, apparently one of the min-
isters, and admonishing their members not to re-
peat elsewhere any thing uttered in their debates.*
For the bill itself, as well as one intended to re-
strain the flagrant abuses of purveyance, they both
were passed to the lords. But the queen sent a
message to the upper house, expressing her dislike
of them, as meddling with abuses, which, if they
existed, she was both able and willing to repress ;
and this having been formally communicated to
the commons, they appointed a committee to
search for precedents in order to satisfy her ma-
jesty about their proceedings. They received
afterwards a gracious answer to their address, the
queen declaring her willingness to afford a remedy
for the alledged grievances. †
Elizabeth, whose reputation for consistency,
which haughty princes overvalue, was engaged in
protecting the established hierarchy, must have
experienced not a little vexation at the perpetual
recurrence of complaints which the unpopularity
of that order drew from every parliament. The
speaker of that summoned in 1593 received for
answer to his request of liberty of speech, that it
was granted, "but not to speak every one what he
listeth, or what cometh into his brain to utter;
their privilege was aye or no. Wherefore, Mr.
Speaker," continues the lord keeper Pickering,
himself speaker in the parliament of 1588, "her
majesty's pleasure is, that if you perceive any idle
heads which will not stick to hazard their own
* D'Ewes, 433.
+ Id. 440. et post.
FROM HENRY VII. TO GEORGE II.
353
CHAP.
V.
Govern-
estates, which will meddle with reforming the
church and transforming the commonwealth, and
do exhibit such bills to such purpose, that you ELIZ.
receive them not, until they be viewed and con- ment.
sidered by those, who it is fitter should consider of
such things, and can better judge of them." It
seems not improbable that this admonition, which
indeed is in no unusual style for this reign, was
suggested by the expectation of some unpleasing
debate. For we read that the very first day of the
session, though the commons had adjourned on
account of the speaker's illness, the unconquerable
Peter Wentworth, with another member, presented
a petition to the lord keeper, desiring the lords
of the upper house to join with them of the lower
in imploring her majesty to entail the succession
of the crown, for which they had already prepared
a bill. This step, which may seem to us rather
arrogant and unparliamentary, drew down, as they
must have expected, the queen's indignation.
They were summoned before the council, and
committed to different prisons.* A few days af
terwards a bill for reforming the abuses of ecclesi-
astical courts was presented by Morice, attorney
of the court of wards, and underwent some dis-
cussion in the house. † But the queen sent for
the speaker, and expressly commanded that no bill
touching matters of state or reformation of causes
ecclesiastical should be exhibited; and if
any such
should be offered, enjoining him on his allegiance
not to read it. It was the custom at that time
for the speaker to read and expound to the house
* D'Ewes, 470.
VOL. 1.
+ Id. 474. Townsend, 60.
A A
I Id. 62.
354
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern-
ment.
وو
all the bills that any member offered. Morice
himself was committed to safe custody, from
which he wrote a spirited letter to lord Burleigh,
expressing his sorrow for having offended the
queen, but at the same time his resolution "to
strive,” he says, "while his life should last, for
freedom of conscience, public justice, and the liber-
ties of his country. Some days after a motion
was made that, as some places might complain of
paying subsidies, their representatives not having
been consulted nor been present when they were
granted, the house should address the queen to set
their members at liberty. But the ministers op-
posed this, as likely to hurt those whose good was
sought, her majesty being more likely to release.
them, if left to her own gracious disposition. It
does not appear however that she did so during the
session, which lasted above a month.† We read,
on the contrary, in an undoubted authority, namely,
a letter of Antony Bacon to his mother, that
"divers gentlemen, who were of the parliament,
and thought to have returned into the country
after the end thereof, were stayed by her majesty's
commandment, for being privy, as it is thought,
and consenting to Mr. Wentworth's motion."‡
Some difficulty was made by this house of commons
about their grant of subsidies, which was uncom
monly large, though rather in appearance than
truth, so great had been the depreciation of silver
for some years past. §
* See the letter in Lodge's Il-
lustrations, vol. iii. 34. Townsend
says he was committed to Sir John
Fortescue's keeping, a gentler sort
of imprisonment, p. 61.
+
i. 96.
D'Ewes, 470.
Birch's Memoirs of Elizabeth,
§ Strype has published, from
lord Burleigh's manuscripts, a
FROM HENRY VII. TO GEORGE II.
355
7
V.
ELIZ.
Govern-
ment.
Also of
monopo-
lies, espe-
cially in the
1601.
session of
The admonitions not to abuse freedom of speech, CHAP.
which had become almost as much matter of course
as the request for it, were repeated in the ensuing
parliaments of 1597 and 1601. Nothing more re-
markable occurs in the former of these sessions
than an address to the queen against the enormous
abuse of monopolies. The crown either possessed
or assumed the prerogative of regulating almost all
matters of commerce at its discretion. Patents to
deal exclusively in particular articles, generally of
foreign growth, but reaching in some instances to
such important necessaries of life as salt, leather,
and coal, had been lavishly granted to the cour-
tiers, with little direct advantage to the revenue.
They sold them to companies of merchants, who
of course enhanced the price to the utmost ability
of the purchaser. This business seems to have
been purposely protracted by the ministers and
the speaker, who, in this reign, was usually in the
court's interests, till the last day of the session;
when, in answer to his mention of it, the lord
keeper said that the queen "hoped her dutiful and
loving subjects would not take away her preroga-
tive, which is the choicest flower in her garden,
and the principal and head pearl in her crown and
diadem; but would rather leave that to her dis-
position, promising to examine all patents, and to
abide the touchstone of the law."*
This answer,
though less stern than had been usual, was merely
speech made in the parliament of
1589 against the subsidy then pro-
posed. Annals, vol. iii. Append.
238. Not a word about this oc-
curs in D'Ewes's Journal; and I
mention it as an additional proof
how little we can rely on negative
inferences as to proceedings in par-
liament at this period.
* D'Ewes, 547,
A A
2
356
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
ELIZ.
Govern-
ment.
CHAP. evasive; and in the session of 1601, a bolder and
more successful attack was made on the admini-
stration than this reign had witnessed. The griev
ance of monopolies had gone on continually in-
creasing; scarce any article was exempt from these
oppressive patents. When the list of them was
read over in the house, a member exclaimed,
"Is not bread among the number?" The house
seemed amazed: "Nay," said he, "if no remedy
is found for these, bread will be there before the
next parliament." Every tongue seemed now un-
loosed; each as if emulously descanting on the
injuries of the place he represented. It was vain
for the courtiers to withstand this torrent. Ra-
leigh, no small gainer himself by some monopolies,
after making what excuse he could, offered to give
them up.
Robert Cecil the secretary, and Bacon,
talked loudly of the prerogative, and endeavoured
at least to persuade the house that it would be
fitter to proceed by petition to the queen than by
a bill. But it was properly answered, that nothing
had been gained by petitioning in the last parlia
ment. After four days of eager debate, and more
heat than had ever been witnessed, this ferment
was suddenly appeased by one of those well-timed
concessions by which skilful princes spare them-
selves the mortification of being overcome.
beth sent down a message that she would revoke
all grants that should be found injurious by fair
trial at law: and Cecil rendered the somewhat
ambiguous generality of this expression more satis-
factory by an assurance that the existing patents
should all be repealed, and no more be granted.
This victory filled the commons with joy, per-
Eliza-
FROM HENRY VII. TO GEORGE II.
357
**
V.
ELIZ.
Govern-
haps the more from being rather unexpected. CHAP.
They addressed the queen with rapturous and
hyperbolical acknowledgments, to which she an-
swered in an affectionate strain, glancing only ment
with an oblique irony at some of those movers
in the debate, whom in her earlier and more
vigorous years she would have keenly repri-
manded. She repeated this a little more plainly
at the close of the session, but still with com-
mendation of the body of the commons.
altered a tone must be ascribed partly to the
growing spirit she perceived in her subjects, but
partly also to those cares which clouded with list-
less melancholy the last scenes of her illustrious
life. t
*Their joy and gratitude were
rather premature, for her majesty
did not revoke all of them; as
appears by Rymer, xvi. 540., and
Carte, iii. 712. A list of them,
dated May 1603, Lodge, iii. 159.
seems to imply that they were still
existing.
par-
† D'Ewes, 619. 644. &c.
The speeches made in this
liament are reported more fully
than usual by Heywood Towns-
end, from whose journal those of
most importance have been tran-
scribed by D'Ewes. Hume has
given considerable extracts, for the
sole purpose of inferring from this
very debate on monopolies, that
the royal prerogative was, accord-
ing to the opinion of the house of
commons itself, hardly subject to
any kind of restraint. But the
passages he selects are so unfairly
taken (some of them being the
mere language of courtiers, others
separated from the context, in
order to distort their meaning),
that no one who compares them
with the original can acquit him
of extreme prejudice. The adu-
1
So
latory strain in which it was usual
to speak of the sovereign often
covered a strong disposition to keep
down his authority. Thus when
a Mr. Davies says in this debate:
"God hath given that power to
absolute princes, which he attri-
butes to himself-Dixi quod dii
estis;" it would have been seen, if
Hume had quoted the following
sentence, that he infers from hence,
that justice being a divine attri-
bute, the king can do nothing that
is unjust, and consequently cannot
grant licences to the injury of his
subjects. Strong language was no
doubt used in respect of the pre-
rogative.
rogative. But it is erroneous to
assert, with Hume, that it came
equally from the courtiers and
country gentlemen, and was ad-
mitted by both. It will chiefly be
found in the speeches of secretary
Cecil, the official defender of pre-
rogative, and of some lawyers.
Hume, after quoting an extrava-
gant speech ascribed to serjeant
Heyle, that "all we have is her
majesty's, and she may lawfully
at any time take it from us; yea,
A A
3
358
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern-
ment.
Influence
of the
crown in
Parliament.
The discontent that vented itself against mono-
polies was not a little excited by the increasing
demands which Elizabeth was compelled to make
upon the commons in all her latter parliaments.
Though it was declared in the preamble to the
subsidy bill of 1593, that "these large and un-
usual grants, made to a most excellent princess
on a most pressing and extraordinary occasion,
should not at any time hereafter be drawn into &
precedent," yet an equal sum was obtained in
1597, and one still greater in 1601. But money
was always reluctantly given, and the queen's
early frugality had accustomed her subjects to
very low taxes; so that the debates on the supply
in 1601, as handed down to us by Townsend, ex-
hibit a lurking ill-humour, which would find a
better occasion to break forth.
The house of commons, upon a review of Eli-
zabeth's reign, was very far, on the one hand,
she hath as much right to all our
lands and goods as to any revenue
of her crown," observes that Heyle
was an eminent lawyer, a man of
character. That Heyle was high
in his profession is beyond doubt;
but in that age, as has since, though
from the change of times less
grossly, continued to be the case,
the most distinguished lawyers
notoriously considered the court
and country as plaintiff and de-
fendant in a great suit, and them-
selves as their retained advocates.
It is not likely however that Heyle
should have used the exact words
imputed to him. He made, no
doubt, a strong speech for prero-
gative, but so grossly to transcend
all limits of truth and decency
seems even beyond a lawyer seek-
ing office. Townsend and D'Ewes
write with a sort of sarcastic hu-
mour, which is not always to be
taken according to the letter.
D'Ewes, 433. Townsend, 205.
Hume proceeds to tell us,
that
it was asserted this session, that
the speaker might either admit or
reject bills in the house; and re-
marks, that the very proposal of it
is a proof at what a low ebb liberty
was
at that time in England.
There cannot be a more complete
mistake. No such assertion was
made; but a member suggested
that the speaker might, as the con-
suls in the Roman senate used,
appoint the order in which bills
should be read; at which speech,
it is added, some hissed. D'Ewes,
677. The present regularity of
parliamentary forms, so justly va-
lued by the house, was yet un-
known; and the members called
confusedly for the business they
wished to have brought forward.
I
FROM HENRY VII. TO GEORGE II.
359
CHAP.
V.
ELIZ.
Govern-
from exercising those constitutional rights which
have long since belonged to it, or even those which
by ancient precedent they might have claimed as
their own; yet, on the other hand, was not quite ment.
so servile and submissive an assembly as an artful
historian has represented it. If many of its mem-
bers were but creatures of power, if the majority
was often too readily intimidated, if the bold and
honest, but not very judicious, Wentworths were
but feebly supported, when their impatience hur-
ried them beyond their colleagues, there was still
a considerable party oometimes carrying the house
along with them, who with patient resolution and
inflexible aim recurred in every session to the as-
sertion of that one great privilege which their
sovereign contested, the right of parliament to en-
quire into and suggest a remedy for every public
mischief or danger. It may be remarked, that, the
ministers, such as Knollys, Hatton, and Robert
Cecil, not only sat among the commons, but took
a very leading part in their discussions; a proof
that the influence of argument could no more be
dispensed with than that of power. This, as I
conceive, will never be the case in any kingdom
where the assembly of the estates is quite subser-
vient to the crown. Nor should we put out of
consideration the manner in which the commons
were composed. Sixty-two members were added
at different times by Elizabeth to the represent-
ation; as well from places which had in earlier
times discontinued their franchise, as from those to
which it was first granted *; a very large propor-
* Parl. Hist. 958. In the ses- pointed to confer with the attor-
sion of 1571, a committee was ap- ney and solicitor-general about the
A A 4
360
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern-
ment.
tion of them petty boroughs, evidently under the
influence of the crown or peerage. This had been
the policy of her brother and sister, in order to
counterbalance the country gentlemen, and find
room for those dependants who had no natural
interest to return them to parliament. The mi-
nistry took much pains with elections, of which
many proofs remain.
return of burgesses from nine
places which had not been repre-
sented in the last parliament. But
in the end it was ordered, by
Mr. Attorney's assent, that the
burgesses shall remain according to
their returns; for that the validity
of the charters of their towns is
elsewhere to be examined, if cause
be." D'Ewes, p. 156. 159.
D'Ewes observes that it was
very common in former times, in
order to avoid the charge of pay-
ing wages to their burgesses, that
a borough which had fallen into
poverty or decay, either got licence
of the sovereign for the time being
to be discharged from electing
members, or discontinued it of
themselves; but that of late the
members for the most part bear-
ing their own charges, many of
those towns which had thus dis-
continued their privilege, renewed
it both in Elizabeth's reign and
that of James, p. 80. This could
only have been, it is hardly neces-
sary to say, by obtaining writs out
of chancery for that purpose.
to the payment of wages, the words
of D'Ewes intimate that it was not
entirely disused. In the session
of 1586, the borough of Grantham
complained that Arthur Hall
(whose name now appears for the
last time) had sued them for wages
due to him as their representative
in the preceding parliament; al-
leging that, as well by reason of
his negligent attendance and some
other offences by him committed
As
The house accordingly
in some of its sessions, as of his
promise not to require any such
wages, they ought not to be charged;
and a committee having been ap-
pointed w caчquire in thin, re-
ported that they had requested
Mr. Hall to remit his claim for
wages, which he had freely done.
D'Ewes, p. 417.
* Strype mentions letters from
the council to Mildmay, sheriff of
Essex, in 1559, about the choice of
knights. Annals, v.i. p. 32. And
other instances of interference may
be found in the Lansdowne and
Harleian collections.
Thus we
read that a Mr. Copley used to no-
minate burgesses for Gatton, "for
that there were no burgesses in the
borough." The present proprietor
being a minor in custody of the
court of wards, lord Burleigh di-
rects the sheriff of Surrey to make
no return without instructions from
himself; and afterwards orders him
to cancel the name of Francis Ba-
con in his indenture, he being re-
turned for another place, and to
substitute Edward Brown. Harl.
MSS. DCCiii. 16.
I will introduce in this place,
though not belonging to the pre-
sent reign, a proof that Henry VIII.
did not trust altogether to the in-
timidating effects of his despotism
for the obedience of parliament,
and that his ministers looked to
the management of elections, as
their successors have always done.
Sir Robert Sadler writes to some
one, whose name does not appear,
FROM HENRY VII. TO GEORGE II.
361
1
1
CHAP.
V.
ELIZ.
Govern-
was filled with placemen, civilians, and common
lawyers grasping at preferment. The slavish tone
of these persons, as we collect from the minutes
of D'Ewes, is strikingly contrasted by the man- ment.
liness of independent gentlemen. And as the
house was by no means very fully attended, the
divisions, a few of which are recorded, running
from 200 to 250 in the aggregate, it may be per-
ceived that the court, whose followers were at
hand, would maintain a formidable influence. But
this influence, however pernicious to the integrity
of parliament, is distinguishable from that exertion
of almost absolute prerogative, which Hume has
assumed as the sole spring of Elizabeth's govern-
ment, and would never be employed till some de-
ficiency of strength was experienced in the other.
D'Ewes has preserved a somewhat remarkable
debate on a bill presented in the session of 1571,
to inform him that the duke of
Norfolk had spoken to the king,
who was well content he should be
a burgess of Oxford; and that he
should "order himself in the said
room according to such instruc-
tions as the said duke of Norfolk
should give him from the king:"
if he is not elected at Oxford, the
writer will recommend him to some
of "my lord's towns of his bi-
shopric of Winchester." Cotton
MSS. Cleopatra E. iv. 178. Thus
we see that the practice of our go-
vernment has always been alike;
and we may add the same of the
nobility, who interfered with elec-
tions full as continually, and far
more openly, than in modern times.
The difference is, that a secretary
of the treasury, or peer's agent,
does that with some precaution of
secrecy, which the council board,
or the peer himself, under the Tu-
dors, did by express letters to the
Debate on
non-resi-
election of
dent bur-
returning officer; and that the ope- gesses.
rating motive is the prospect of a
good place in the excise or customs
for compliance, rather than that of
lying some months in the Fleet for
disobedience.
A very late writer has asserted,
as an undoubted fact, which "his-
toric truth requires to be men-
tioned," that for the first parlia-
ment of Elizabeth, "five candi-
dates were nominated by the court
for each borough, and three for
each county; and by the authority
of the sheriffs, the members were
chosen from among the candi-
dates." Butler's Book of the Ro-
man Catholic Church, p. 225. I
never met with any tolerable au-
thority for this, and believe it to be
a mere fabrication; not certainly
of Mr. Butler, who is utterly inca-
pable of a wilful deviation from
truth, but of some of those whom
he too implicitly follows.
362
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
ELIZ.
Govern-
ment.
CHAP. in order to render valid elections of non-resident
burgesses. According to the tenor of the king's
writ, confirmed by an act passed under Henry V.,
every city and borough was required to elect none
but members of their own community. To this
provision, as a seat in the commons' house grew
more an object of general ambition, while many
boroughs fell into comparative decay, less and less
attention had been paid; till, the greater part of the
borough representatives having become strangers,
it was deemed by some expedient to repeal the
ancient statute, and give a sanction to the inno-
vation that time had wrought; while others con-
tended in favour of the original usage, and seemed
anxious to restore its vigour. It was alleged on
the one hand by Mr. Norton that the bill would
take away all pretence for sending unfit men, as
was too often seen, and remove any objection that
might be started to the sufficiency of the present
parliament, wherein, for the most part against po-
sitive law, strangers to their several boroughs had
been chosen: that persons able and fit for so great
an employment ought to be preferred without re-
gard to their inhabitancy; since a man could not
be presumed to be the wiser for being a resident
burgess and that the whole body of the realm,
and the service of the same, was rather to be re-
spected than any private regard of place or per
This is a remarkable, and perhaps the ear-
liest assertion, of an important constitutional prin-
ciple, that each member of the house of commons
is deputed to serve, not only for his constituents,
but for the whole kingdom; a principle which
marks the distinction between a modern English
son.
FROM HENRY VII. TO GEORGE II.
363
it
parliament and such deputations of the estates as
were assembled in several continental kingdoms;
principle to which the house of commons is in-
debted for its weight and dignity, as well as its
beneficial efficiency, and which none but the ser-
vile worshippers of the populace are ever found
to gainsay. It is obvious that such a principle
could never obtain currency, or even be advanced
on any plausible ground, until the law for the elec-
tion of resident burgesses had gone into disuse.
Those who defended the existing law, forgetting,
as is often the case with the defenders of existing
laws, that it had lost its practical efficacy, urged
that the inferior ranks using manual and mecha-
nical arts ought like the rest to be regarded and
consulted with on matters which concerned them,
and of which strangers could less judge. "We,"
said a member, "who have never seen Berwick or
St. Michael's Mount, can but blindly guess of
them, albeit we look on the maps that come from
thence, or see letters of instruction sent; some one
whom observation, experience, and due consider-
ation of that country hath taught, can more per-
fectly open what shall in question thereof grow,
and more effectually reason thereupon, than the
skilfullest otherwise whatsoever." But the greatest
mischief resulting from an abandonment of their
old constitution would be the interference of no-
blemen with elections; lords' letters, it was said,
would from henceforth bear the sway; instances
of which, so late as the days of Mary, were al-
leged, though no one cared to allude particularly
to any thing of a more recent date. Some pro-
posed to impose a fine of forty pounds on any
CHAP.
V.
ELIZ.
Govern-
ment.
364
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
CHAP. borough making its election on a peer's nomination.
The bill was committed by a majority; but as no
further entry appears in the Journals, we may infer
it to have dropped.*
ELIZ.
Govern-
ment.
Assertion
of privi-
leges by
commons.
It
may be mentioned, as not unconnected with
this subject, that in the same session a fine was
imposed on the borough of Westbury for receiving
a bribe of four pounds from Thomas Long, "being
a very simple man and of small capacity to serve
in that place;" and the mayor was ordered to
repay the money. Long, however, does not seem
to have been expelled. This is the earliest pre-
cedent on record for the punishment of bribery in
elections. +
We shall find an additional proof that the house
of commons under the Tudor princes, and espe-
cially Elizabeth, was not so feeble and insignificant
an assembly as has been often insinuated, if we
look at their frequent assertion and gradual ac-
quisition of those peculiar authorities and immu
nities which constitute what is called privilege of
parliament. Of these the first, in order of time if
not of importance, was their exemption from ar-
rest on civil process during their session. Several
instances occur under the Plantagenet dynasty,
where this privilege was claimed and admitted;
but generally by means of a distinct act of parlia
ment, or at least by a writ of privilege out of chan-
cery. The house of commons for the first time
Ferrers un- took upon themselves to avenge their own injury
VIII. in 1543, when the remarkable case of George
This is related in detail by
Case of
der Henry
Ferrers occurred.
* D'Ewes, 168.
+ Journals, p. 88.
FROM HENRY VII. TO GEORGE II.
365
Without
V.
ELIZ.
Govern-
ment.
Holingshed, and is perhaps the only piece of con- CHAP.
stitutional information we owe to him.
repeating all the circumstances, it will be sufficient
here to mention, that the commons sent their ser-
jeant with his mace to demand the release of Fer-
rers, a burgess who had been arrested on his way
to the house; that the gaolers and sheriffs of Lon-
don having not only refused compliance, but ill-
treated the serjeant, they compelled them, as well
as the sheriffs of London, and even the plaintiff
who had sued the writ against Ferrers, to appear
at the bar of the house, and committed them to
prison; and that the king, in the presence of the
judges, confirmed in the strongest manner this as-
sertion of privilege by the commons. It was how-
ever, so far at least as our knowledge extends, a
very important novelty in constitutional practice;
not a trace occurring in any former instance on
record, either of a party being delivered from ar-
rest at the mere demand of the serjeant, or of any
one being committed to prison by the sole autho-
rity of the house of commons, With respect to
the first,
"the chancellor," says Holingshed, "of
fered to grant them a writ of privilege, which they
of the commons' house refused, being of a clear
opinion that all commandments and other acts
proceeding from the nether house were to be done
and executed by their serjeant without writ, only
by show of his mace, which was his warrant." It
might naturally seem to follow from this position,
if it were conceded, that the house had the same
power of attachment for contempt, that is, of com-
mitting to prison persons refusing obedience to
lawful process, which our law attributes to all
366
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
ELIZ.
Govern-
ment.
CHAP. courts of justice, as essential to the discharge of
their duties. The king's behaviour is worthy of
notice while he dexterously endeavours to insi-
nuate that the offence was rather against him than
the commons, Ferrers happening to be in his ser-
vice, he displays that cunning flattery towards
them in their moment of exasperation, which his
daughter knew so well how to employ.*
Other cases
of privi-
lege.
Such important powers were not likely to be
thrown away, though their exertion might not
always be thought expedient. The commons had
sometimes recourse to a writ of privilege in order
to release their members under arrest, and did not
repeat the proceeding in Ferrers's case till that of
Smalley, a member's servant, in 1575, whom they
sent their serjeant to deliver. And this was only
"after sundry reasons, arguments, and disputa-
tions," as the journal informs us; and, what is
more, after rescinding a previous resolution that
they could find no precedents for setting at liberty
any one in arrest, except by writ of privilege.+ It
is to be observed, that the privilege of immunity
* Holingshed, vol. iii. p. 824.
(4to edit.). Hatsell's Precedents,
v. i. p. 53. Mr. Hatsell inclines
too much, in my opinion, to de-
preciate the authority of this case,
imagining that it was rather as the
king's servant, than as a member
of the house, that Ferrers was de-
livered. But, though Henry art-
fully endeavours to rest it chiefly
on this ground, it appears to me
that the commons claim the pri-
vilege as belonging to themselves,
without the least reference to this
circumstance. If they did not al-
ways assert it afterwards, this ne-
gative presumption is very weak,
when we consider how common it
was to overlook or recede from pre-
cedents, before the constitution
had been reduced into a system.
Carte, vol. iii. p. 164., endeavours
to discredit the case of Ferrers as
an absolute fable, and certainly
points out some inaccuracy as to
dates; but it is highly improbable
that the whole should be an in-
vention. He returns to the subject
afterwards, p. 541., and, with a
folly almost inconceivable even in
a Jacobite, supposes the puritans
to have fabricated the tale, and
prevailed on Holingshed to insert
it in his history.
+ Journals, Feb. 22d and 27th.
FROM HENRY VII. TO GEORGE II.
367
t
extended to the menial servants of members, till
taken away by a statute of George III. Several
persons however were, at different times, under
Mary and Elizabeth, committed by the house to
the Tower, or to the custody of their own serjeant,
for assaults on their members.* Smalley himself
above-mentioned, it having been discovered that
he had fraudulently procured this arrest, in order
to get rid of the debt, was committed for a month,
and ordered to pay the plaintiff one hundred
pounds, which was possibly the amount of what he
owed. † One also, who had served a subpoena out
of the star-chamber on a member in the session of
1584, was not only put in confinement, but obliged
to pay the party's expenses, before they would dis-
charge him, making his humble submission on his
knees. This is the more remarkable, inasmuch
as the chancellor had but just before made answer
to a committee deputed "to signify to him how
by the ancient liberties of the house, the members
thereof are privileged from being served with sub-
pœnas," that he thought the house had no such
privilege, nor would he allow any precedents for
it, unless they had also been ratified in the court
of chancery." § They continued to enforce this
summary mode of redress with no objection, so
far as appears, of any other authority, till, by the
end of the queen's reign, it had become their esta-
blished law of privilege that "no subpoena or sum-
mons for the attendance of a member in any other
court ought to be served, without leave obtained
or information given to the house; and that the
+
*Hatsell, 73. 92. 119.
‡ Id. 97.
† Id. 90.
Id. 96.
CHAP.
V.
ELIZ.
Govern-
ment.
እዩ፡
368
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern-
ment.
*
persons who procured or served such process were
guilty of a breach of privilege, and were punishable
by commitment or otherwise, by the order of the
house." The great importance of such a pri-
vilege was the security it furnished, when fully
claimed and acted upon, against those irregular
detentions and examinations by the council, and
which, in despite of the promised liberty of speech,
had, as we have seen, oppressed some of their most
distinguished members. But it must be owned
that by thus suspending all civil and private suits
against themselves, the commons gave too much
encouragement to needy and worthless men who
sought their walls as a place of sanctuary.
This power of punishment, as it were for con-
tempt, assumed in respect of those who molested
members of the commons by legal process, was
still more naturally applicable to offences against
established order committed by any of themselves.
In the earliest record that is extant of their daily
proceedings, the Commons' Journal of the first par-
liament of Edward VI., we find, on 21st January,
1547-8, a short entry of an order that John Storie,
one of the burgesses, shall be committed to the
custody of the serjeant. The order is repeated
the next day; on the next, articles of accusation
are read against Storie. It is ordered on the fol-
lowing day that he shall be committed prisoner to
the Tower. His wife soon after presents a petition,
which is ordered to be delivered to the Protector.
On the 20th of February, letters from Storie in the
Tower are read. These probably were not deemed
* Hatsell, 119.
FROM HENRY VII. TO GEORGE II.
369
satisfactory, for it is not till the 2d of March that
we have an entry of a letter from Mr. Storie in the
Tower with his submission. And an order imme-
diately follows, that "the king's privy council in
the nether house shall humbly declare unto the lord
protector's grace, that the resolution of the house
is, that Mr. Storie be enlarged and at liberty, out
of prison; and to require the king's majesty to
forgive him his offences in this case towards his
majesty and his council."
Storie was a zealous enemy of the reformation,
and suffered death for treason under Elizabeth.
His temper appears to have been ungovernable;
even in Mary's reign he fell a second time under
the censure of the house for disrespect to the
speaker. It is highly probable that his offence in
the present instance was some ebullition of viru-
lence against the changes in religion; for the first
entry concerning him immediately follows the third
reading of the bill that established the English
liturgy. It is also manifest that he had to atone
for language disrespectful to the Protector's go-
vernment, as well as to the house. But it is worthy
of notice, that the commons by their single autho-
rity commit their burgess first to their own officer,
and next to the Tower; and that upon his sub-
mission they inform the Protector of their resolution
to discharge him out of custody, recommending
him to forgiveness as to his offence against the
council, which, as they must have been aware, the
privilege of parliament as to words spoken within
its walls (if we are right in supposing such to have
been the case) would extend to cover. It would
be very unreasonable to conclude that this is the
VOL. I.
B B
CHAP.
V.
ELIZ.
Govern-
ment.
370
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
ELIZ.
Govern-
ment.
CHAP. first instance of a member's commitment by order
of the house, the earlier journals not being in ex-
istence. Nothing indicates that the course taken
was unprecedented. Yet on the other hand we
can as little infer that it rested on any previous
usage; and the times were just such, in which a
new precedent was likely to be established. The
right of the house indeed to punish its own mem-
bers for indecent abuse of the liberty of speech,
may be thought to result naturally from the king's
concession of that liberty; and its right to preserve
order in debate is plainly incident to that of de-
bating at all.
In the subsequent reign of Mary, Mr. Copley
incurred the displeasure of the house for speaking
irreverend words of her majesty, and was com
mitted to the serjeant at arms; but the despotic
character of that government led the commons to
recede in some degree from the regard to their own
privileges they had shown in the former case. The
speaker was directed to declare this offence to the
queen, and to request her mercy for the offender.
Mary answered, that she would well consider that
request, but desired that Copley should be exa-
mined as to the cause of his behaviour. A pro-
rogation followed the same day, and of course no
more took place in this affair.*
A more remarkable assertion of the house's right
to inflict punishment on its own members occurred
in 1581, and being much better known than those
I have mentioned, has been sometimes treated as
the earliest precedent. One Arthur Hall, a bur-
gess for Grantham, was charged with having
* Journals, 5th and 7th March, 1557-8.
FROM HENRY VII. TO GEORGE II.
371
I
V.
ELIZ.
Govern-
caused to be published a book against the present CHAP.
parliament, on account of certain proceedings in
the last session, wherein he was privately interested,
"not only reproaching some particular good mem- ment.
bers of the house, but also very much slanderous
and derogatory to its general authority, power, and
state, and prejudicial to the validity of its proceed-
ings in making and establishing of laws." Hall
was the master of Smalley, whose case has been
mentioned above, and had so much incurred the
displeasure of the house by his supposed privity to
the fraud of his servant, that a bill was brought in
and read a first time, the precise nature of which
does not appear, but expressed to be against him
and two of his servants. It seems probable, from
these and some other passages in the entries that
occur on this subject in the journal, that Hall in
his libel had depreciated the house of commons as
an estate of parliament, and especially in respect
of its privileges, pretty much in the strain which
the advocates of prerogative came afterwards to
employ. Whatever share therefore personal re-
sentment may have had in exasperating the house,
they had a public quarrel to avenge against one of
their members, who was led by pique to betray
their ancient liberties. The vengeance of popular
assemblies is not easily satisfied. Though Hall
made a pretty humble submission, they went on,
by a unanimous vote, to heap every punishment in
their
power upon his head. They expelled him,
they imposed a fine of five hundred marks upon
him, they sent him to the Tower until he should
make a satisfactory retractation. At the end of the
session he had not been released; nor was it the
BB 2
372
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
ELIZ.
Govern-
ment.
CHAP. design of the commons that his imprisonment
should then terminate; but their own dissolution,
which ensued, put an end to the business.* Hall
sat in some later parliaments. This is the leading
precedent, as far as records show, for the power of
expulsion, which the commons have ever retained
without dispute of those who would most curtail
their privileges. But in 1558 it had been put to
the vote whether one outlawed and guilty of divers
frauds should continue to sit, and carried in his
favour by a very small majority; which affords a
presumption that the right of expulsion was already
deemed to appertain to the house. They exer-
cised it with no small violence in the session of
1585 against the famous Dr. Parry, who having
spoken warmly against the bill inflicting the pe-
nalty of death on jesuits and seminary priests, as
being cruel and bloody, the commons not only or
dered him into the custody of the serjeant, for
opposing a bill approved of by a committee, and
directed the speaker to reprimand him upon his
knees, but on his failing to make a sufficient.
apology, voted him no longer a burgess of that
* D'Ewes, 291. Hatsell, 93.
The latter says,
"I cannot but
suspect, that there was some private
history in this affair, some par-
ticular offence against the queen,
with which we are unacquainted."
But I believe the explanation I
have given will be thought more
to the purpose; and so far from
having offended the queen, Hall
seems to have had a patron in lord
Burleigh, to whom he wrote many
letters, complaining of the com-
mons, which are extant in the
Lansdowne collection. He seems
to have been a man of eccentric
and unpopular character, and had
already incurred the displeasure
of the commons in the session of
1572, when he was ordered to be
warned by the serjeant to appear
at the bar" to answer for sundry
lewd speeches used as well in the
house as elsewhere."
Another
CC
entry records him to have been
charged with seven several ar-
ticles, but having humbly sub-
mitted himself to the house, and
confessed his folly, to have been
upon the question released with a
good exhortation from the speaker."
D'Ewes, 207. 212.
+ Hatsell, 80.
FROM HENRY VII. TO GEORGE II.
373
V.
ELIZ.
Govern-
ment.
house.* The year afterwards Bland, a currier, CHAP.
was brought to their bar for using what were judged
contumelious expressions against the house for
something they had done in a matter of little
moment, and discharged on account of his poverty,
on making submission, and paying a fine of twenty
shillings.† In this case they perhaps stretched
their power somewhat farther than in the case of
Arthur Hall, who, as one of their body, might seem
more amenable to their jurisdiction.
determin-
ing con-
tested elec-
tions
claimed by
the house.
The commons asserted in this reign, perhaps for Privilege of
the first time, another most important privilege, the
right of determining all matters relative to their own
elections. Difficulties of this nature had in former
times been decided in chancery, from which the
writ issued, and into which the return was made.
Whether no cases of interference on the part of
the house had occurred, it is impossible to pro-
nounce, on account of the unsatisfactory state of
the rolls and journals of parliament under Ed-
ward IV., Henry VII. and Henry VIII. One re-
markable entry, however, may be found in the reign
of Mary, when a committee is appointed "to
inquire if Alexander Nowell, prebendary of West-
minster, may be of the house ;" and it is declared
next day by them, that "Alexander Nowell,
being prebendary in Westminster, and thereby
having voice in the convocation-house, cannot be
a member of this house; and so agreed by the
* D'Ewes, 341.
† D'Ewes, 366. This case,
though of considerable importance,
is overlooked by Hatsell, who
speaks of that of Hall as the only
one before the long parliament,
wherein the commons have pu-
nished the authors of libels dero-
gatory to their privileges. P. 127.
Though he speaks only of libels,
certainly the punishment of words
spoken is at least as strong an ex-
ercise of power.
BB 3
374
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. house, and the queen's writ to be directed for
V.
ELIZ.
Govern-
ment.
*
another burgess in his place." Nothing farther
appears on record till in 1586 the house appointed
a committee to examine the state and circum-
stances of the returns for the county of Norfolk.
The fact was, that the chancellor had issued a se-
cond writ for this county, on the ground of some
irregularity in the first return, and a different person
had been elected. Some notice having been taken
of this matter in the commons, the speaker received
orders to signify to them her majesty's displeasure
that "the house had been troubled with a thing
impertinent for them to deal with, and only be-
longing to the charge and office of the lord chan-
cellor, whom she had appointed to confer with the
judges about the returns for the county of Norfolk,
and to act therein according to justice and right.”
The house, in spite of this peremptory inhibition,
proceeded to nominate a committee to examine
into and report the circumstances of these returns ;
who reported the whole case with their opinion,
that those elected on the first writ should take
their seats, declaring further that they understood
the chancellor and some of the judges to be of the
same opinion; but that "they had not thought it
proper to inquire of the chancellor what he had
done, because they thought it prejudicial to the
privilege of the house to have the same determined
by others than such as were members thereof. And
though they thought very reverently of the said
lord chancellor and judges, and knew them to be
competent judges in their places; yet in this case
they took them not for judges in parliament in this
* Journals, 1 Mary, p. 27.
FROM HENRY VII. TO GEORGE II.
375
house
and thereupon required that the members,
if it were so thought good, might take their oaths
and be allowed of by force of the first writ, as
allowed by the censure of this house, and not as
allowed of by the said lord chancellor and judges.
Which was agreed unto by the whole house." *
This judicial control over their elections was not
lost. A committee was appointed, in the session
of 1589, to examine into sundry abuses of returns,
among which is enumerated that some are returned
for new places. † And several instances of the
house's deciding on elections occur in subsequent
parliaments.
This tenaciousness of their own dignity and
privileges was shown in some disagreements with
the upper house. They complained to the lords
in 1597, that they had received a message from
the commons at their bar without uncovering, or
rising from their places. But the lords proved,
upon a conference, that this was agreeable to
usage in the case of messages; though when bills
were brought up from the lower house, the speaker
of the lords always left his place, and received
them at the bar. Another remonstrance of the
‡
commons, against having amendments to bills sent
down to them on paper instead of parchment, seems
a little frivolous, but serves to indicate a rising
spirit, jealous of the superiority that the peers had
arrogated. § In one point more material, and in
which they had more precedent on their side, the
commons successfully vindicated their privilege.
The lords sent them a message in the session of
* D'Ewes, 393, &c.
+ Id. 430.
‡ Id. 539. § Id. 596.
CHAP.
V.
ELIZ.
Govern-
ment.
BB 4
376
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
ELIZ.
Govern-
ment.
CHAP. 1593, reminding them of the queen's want of a
supply, and requesting that a committee of con-
ference might be appointed. This was accordingly
done, and sir Robert Cecil reported from it that
the lords would consent to nothing less than a
grant of three entire subsidies, the commons having
shown a reluctance to give more than two. But
Mr. Francis Bacon said, "he yielded to the sub-
sidy, but disliked that this house should join with
the upper house in granting it. For the custom
and privilege of this house hath always been, first
to make offer of the subsidies from hence, then to
the upper house; except it were that they present
a bill unto this house, with desire of our assent
thereto, and then to send it up again." But the
house were now so much awakened to the privilege
of originating money-bills, that, in spite of all the
exertions of the court, the proposition for another
conference with the lords was lost on a division
The En-
glish con-
by 217 to 128.* It was by his opposition to the
ministry in this session, that Bacon, who acted per-
haps full as much from pique towards the Cecils,
and ambitious attachment to Essex, as from any
real patriotism, so deeply offended the queen, that,
with all his subsequent pliancy, he never fully re-
instated himself in her favour.†
That the government of England was a mon-
* D'Ewes, 486. Another trifling
circumstance may be mentioned to
show the rising spirit of the age.
In the session of 1601, sir Robert
Cecil having proposed that the
speaker should attend the lord
keeper about some matter, sir Ed-
ward Hobby took up the word in
strong language, as derogatory to
their dignity; and the secretary,
who knew, as later ministers have
done, that the commons are never
so unmanageable as on such points
of honour, made a proper apology.
Id. 627.
+ Birch's Memoirs, i. 97. 120.
152, &c. ii. 129. Bacon's Works,
v. ii. p. 416. 435.
FROM HENRY VII. TO GEORGE II.
377
CHAP.
V.
ELIZ.
Govern-
ment.
ted to be
an absolute
monarchy.
archy, bounded by law, far unlike the actual state
of the principal kingdoms on the Continent, ap-
pears to have been so obvious and fundamental a
truth, that flattery itself did not venture directly
to contravene it. Hume has laid hold of a pass- stitution
age in Raleigh's preface to his History of the not admit-
World (written indeed a few years later than the
age of Elizabeth), as if it fairly represented public
opinion as to our form of government. Raleigh
says that Philip II. "attempted to make himself
not only an absolute monarch over the Nether-
lands, like unto the kings and sovereigns of Eng-
land and France; but, Turk-like, to tread under
his feet all their national and fundamental laws,
privileges, and ancient rights." But who, that
was really desirous of establishing the truth, would
have brought Raleigh into court as an unexcep-
tionable witness on such a question? Unscru-
pulous ambition taught men in that age who
sought to win or regain the crown's favour, to
falsify all law and fact in behalf of prerogative, as
unblushingly as our modern demagogues exag-
gerate and distort the liberties of the people.*
"The
* Raleigh's Dedication of his Pre-
rogative of Parliaments to James I.
contains terrible things.
bonds of subjects to their kings
should always be wrought out of
iron, the bonds of kings unto sub-
jects but with cobwebs." "All
binding of a king by law upon the
advantage of his necessity, makes
the breach itself lawful in a king;
his charters and all other instru-
ments being no other than the
surviving witnesses of his uncon-
strained will." The object how
ever of the book, is to persuade
the king to call a parliament (about
1613), and we are not to suppose
that Raleigh meant what he said.
He was never very scrupulous
about truth. In another of his
tracts, entitled "The Prince; or,
Thesaurus of State," he holds,
though not without flattery to-
wards James, a more reasonable
language. "In every just state
some part of the government is or
ought to be impartial to the peo-
ple; as in a kingdom, a voice or
suffrage in making laws and
sometimes also in levying of arms,
if the charge be great and the
prince be forced to borrow help of
378
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. The sentence itself, if designed to carry the full
V.
ELIZ.
Govern-
ment.
meaning that Hume assigns to it, is little better
than an absurdity. For why were the rights and
privileges of the Netherlands more fundamental
than those of England? and by what logic could
it be proved more Turk-like to impose the tax of
the twentieth penny, or to bring Spanish troops
into those provinces, in contravention of their
ancient charters, than to transgress the Great
Charter of this kingdom, with all those unre-
scinded statutes and those traditional unwritten
liberties which were the ancient inheritance of its
subjects? Or could any one, conversant in the
slightest degree with the two countries, range in
the same class of absolute sovereigns the kings of
France in England? The arbitrary acts of our
Tudor princes, even of Henry VIII., were trifling
in comparison of the despotism of Francis I. and
Henry II., who forced their most tyrannical or
dinances down the throats of the parliament of
Paris with all the violence of military usurpers.
No permanent law had ever been attempted in
England, nor any internal tax imposed, without
consent of the people's representatives. No law
in France had ever received such consent; nor
had the taxes, enormously burthensome as they
were in Raleigh's time, been imposed, for one
hundred and fifty years past, by any higher au-
thority than a royal ordinance. If a few nobler
spirits had protested against the excessive des-
potism of the house of Valois; if La Boetie had
drunk at the springs of classical republicanism; if
his subjects, the matter rightly
may be propounded to a parlia-
ment, that the tax may seem to
have proceeded from themselves.”
FROM HENRY VII. TO GEORGE II.
379
Hottoman had appealed to the records of their
freeborn ancestry that surrounded the throne of
Clovis; if Languet had spoken in yet a bolder
tone of a rightful resistance to tyranny*; if the
jesuits and partisans of the League had cunningly
attempted to win men's hearts to their faction by
the sweet sounds of civil liberty and the popular
origin of politic rule; yet these obnoxious para-
doxes availed little with the nation, which, after
the wild fanaticism of a rebellion arising wholly
from religious bigotry had passed away, relapsed
at once into its patient loyalty, its self-complacent
servitude. But did the English ever recognise,
even by implication, the strange parallels which
Raleigh has made for their government with that
of France, and Hume with that of Turkey? The
language adopted in addressing Elizabeth was
always remarkably submissive. Hypocritical adu-
lation was so much among the vices of that age,
that the want of it passed for rudeness. Yet
Onslow, speaker of the parliament of 1566, being
then solicitor-general, in addressing the queen
says: "By our common law, although there be
for the prince provided many princely prerogatives
and royalties, yet it is not such as the prince can
take money or other things, or do as he will at his
* Le Contre Un of La Boetie,
the friend of Montaigne, is, as the
title intimates, a vehement phi-
lippic against monarchy. It is
subjoined to some editions of the
The Franco-Gal-
latter's essays.
lia of Hottoman contains little
more than extracts from Frede-
garius, Aimoin, and other ancient
writers, to prove the elective cha-
racter and general freedom of the
monarchy under the two first races.
This made a considerable impres-
sion at the time, though the pass-
ages in question have been so often
quoted since, that we are almost
surprised to find the book so de-
void of novelty. Hubert Languet's
Vindicia contra Tyrannos, pub-
lished under the name of Junius
Brutus, is a more argumentative
discussion of the rights of governors
and their subjects.
CHAP.
V.
ELIZ.
Govern-
ment.
380
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern-
ment.
own pleasure without order, but quietly to suffer
his subjects to enjoy their own, without wrongful
oppression; wherein other princes by their liberty
do take as pleaseth them."*
* D'Ewes, p. 115.
I have already adverted to Gar-
diner's resolute assertion of the
law against the prince's single will,
as a proof that, in spite of Hume's
preposterous insinuations to the
contrary, the English monarchy
was known and acknowledged to
be limited. Another testimony
may be adduced from the words
of a great protestant churchman.
Archbishop Parker, writing to
Cecil to justify himself for not al-
lowing the queen's right to grant
some dispensation in a case of mar-
riage, says, "he would not dispute
of the queen's absolute power, or
prerogative royal, how far her
highness might go in following the
Roman authority; but he yet
doubted, that if any dispensation
should pass from her authority, to
any subject, not avouchable by
laws of her realm, made and esta-
blished by herself and her three
estates, whether that subject be in
surety at all times afterwards:
specially seeing there be parlia-
ment laws, precisely determining
cases of dispensations." Strype's
Parker, 177.
Perhaps, however, there is no
more decisive testimony to the
established principles of limited
monarchy in the age of Elizabeth,
than a circumstance mentioned in
Anderson's Reports, 154.
The
queen had granted to Mr. Richard
Cavendish an office for issuing cer-
tain writs, and directed the judges
to admit him to it, which they
neglected (that is, did not think
fit) to do. Cavendish hereupon
Cavendish hereupon
obtained a letter from her majesty,
expressing her surprise that he
was not admitted according to her
grant, and commanding them to
sequester the profits of the office
for his use, or that of any other to
whom these might appear to be
due, as soon as the controversy re-
specting the execution of the said
office should be decided. It is
plain that some other persons were
in possession of these profits, or
claimed a right therein. The
judges conceived that they could
not lawfully act according to the
said letter and command, because
through such a sequestration of the
emoluments, those who claimed a
right to issue the writs would be
disseised of their freehold. The
queen, informed that they did not
obey the letter, sent another, under
the sign manual, in more positive
language, ending in these words:
"We look that you and every of
you should dutifully fulfil our
commandment herein, and these
our letters shall be your warrant.'
21st April, 1587. This letter was
delivered to the justices in the
presence of the chancellor and lord
Leicester, who were commissioned
to hear their answer, telling them
also, that the queen had granted
the patent on account of her great
desire to provide for Cavendish.
The judges took a little time to
consult what should be said; and,
returning to the lords, answered
that they desired in all respects
humbly to obey her majesty; but,
as this case is, could not do so
without perjury, which they well
knew the queen would not require,
and so went away. Their answer
was reported to the queen, who
ordered the chancellor, chief jus-
tice of the king's bench, and
master of the rolls, to hear the
judges' reasons; and the queen's
council were ordered to attend,
when the queen's serjeant began
to show the queen's prerogative to
FROM HENRY VII. TO GEORGE II.
381
V.
Govern-
In the first months of Elizabeth's reign, Aylmer, CHAP.
afterwards bishop of London, published an answer
to a book by John Knox, against female monarchy, ELIZ.
or, as he termed it, "Blast of the Trumpet against ment.
the Monstrous Regiment of Women;" which,
though written in the time of Mary, and directed
against her, was of course not acceptable to her
sister. The answerer relies, among other argu-
ments, on the nature of the English constitution,
which, by diminishing the power of the crown,
renders it less unfit to be worn by a woman.
Well," he says, "a woman may not reign in
CC
grant the issuing of writs, and
showed precedents. The judges
protested in answer, that they had
every wish to assist her majesty to
all her rights, but said that this
manner of proceeding was out of
course of justice; and gave their rea-
sons, that the right of issuing these
writs and fees incident to it was
in the prothonotaries and others,
who claimed it by freehold; who
ought to be made to answer, and
not the judges, being more inte-
rested therein. This was certainly
a little feeble, but they soon re-
covered themselves. They were
then charged with having neglected
to obey these letters of the queen;
which they confessed, but said that
this was no offence or contempt
towards her majesty, because the
command was against the law of
the land; in which case, they said,
no one is bound to obey such com-
mand. When farther pressed, they
said the queen herself was sworn
to keep the laws as well as they;
and that they could not obey this
command without going against
the laws directly and plainly,
against their oaths, and to the
offence of God, her majesty, the
country and commonwealth in
which they were born and live : so
that if the fear of God were gone
from them, yet the examples of
others, and the punishment of
those who had formerly trans-
gressed the laws, would remind
them and keep them from such an
offence. Then they cited the
Spensers, and Thorp, a judge under
Edward III., and precedents of
Richard II.'s time, and of Emp-
son, and the statutes from Magna
Charta, which show what a crime
it is for judges to infringe the laws
of the land; and thus, since the
queen and the judges were sworn
to observe them, they said that
they would not act as was com-
manded in these letters.
All this was repeated to her ma-
jesty for her good allowance of the
said reasons, and which her ma-
jesty, as I have heard, says the re-
porter, took well; but nothing
farther was heard of the business.
Such was the law and the go-
vernment, which Mr. Hume has
compared to that of Turkey! It
is almost certain, that neither
James nor Charles would have
made so discreet a sacrifice of their
pride and arbitrary temper; and
in this self-command lay the great
superiority of Elizabeth's policy.
382
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
ELIZ.
Govern-
ment.
CHAP. England! Better in England than any where, as
it shall well appear to him that without affection
will consider the kind of regimen. While I com-
pare ours with other, as it is in itself, and not
maimed by usurpation, I can find none either so
good or so indifferent. The regiment of England
is not a mere monarchy, as some for lack of con-
sideration think, nor a mere oligarchy nor demo-
cracy, but a rule mixed of all these, wherein each
one of these have or should have like authority.
The image whereof, and not the image but the
thing indeed, is to be seen in the parliament-
house, wherein you shall find these three estates;
the king or queen which representeth the mon-
archy, the noblemen which be the aristocracy,
and the burgesses and knights the democracy.
If the parliament use their privileges, the king
can ordain nothing without them: if he do, it is
his fault in usurping it, and their fault in permit-
ting it. Wherefore, in my judgment, those that
in king Henry VIII.'s days would not grant him
that his proclamations should have the force of
a statute, were good fathers of the country, and
worthy commendation in defending their liberty.
But to what purpose is all this? To declare that
it is not in England so dangerous a matter to have
a woman ruler, as men take it to be. For first it
is not she that ruleth, but the laws, the executors
whereof be her judges appointed by her, her jus
tices and such other officers. Secondly, she
maketh no statutes or laws, but the honourable
court of parliament; she breaketh none, but it
must be she and they together, or else not. If on
the other part the regiment were such as all hanged
7
FROM HENRY VII. TO GEORGE II.
383
CHAP.
V.
ELIZ.
ment.
on the king's or queen's will, and not upon the
laws written; if she might decree and make laws
alone without her senate; if she judged offences
according to her wisdom, and not by limitation of Govern-
statutes and laws; if she might dispose alone of
war and peace; if, to be short, she were a mere
monarch, and not a mixed ruler, you might per-
adventure make me to fear the matter the more,
and the less to defend the cause." *
This passage, notwithstanding some slight mis-
takes it contains, affords a proof of the doctrine
current among Englishmen in 1559, and may per-
haps be the less suspected, as it does not proceed
from a skilful pen. And the quotations I have
made in the last chapter from Hooker are evidence
still more satisfactory, on account of the gravity
and judiciousness of the writer, that they continued
to be the orthodox faith in the later period of Eli-
zabeth's reign. It may be observed, that those
who speak of the limitations of the sovereign's
power, and of the acknowledged liberties of the
subject, use a distinct and intelligible language;
while the opposite tenets are insinuated by means
of vague and obscure generalities, as in the sen-
tence above quoted from Raleigh. Sir Thomas
Smith, secretary of state to Elizabeth, has be-
queathed us a valuable legacy in his treatise on
the commonwealth of England. But undoubtedly
he evades, as far as possible, all great constitu-
tional principles, and treats them, if at all, with a
vagueness and timidity very different from the
* Harborowe of True and Faith-
ful Subjects, 1559. Most of this
Most of this
passage is quoted by Dr. M'Crie,
in his Life of Knox, vol. i. note
BB, to whom I am indebted for
pointing it out.
384
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
V.
ELIZ.
Govern-
ment.
Preten-
crown.
tone of Fortescue. He thus concludes his chapter
on the parliament: "This is the order and form
of the highest and most authentical court of Eng-
land, by virtue whereof all these things be esta-
blished whereof I spoke before, and no other
means accounted available to make any new for-
feiture of life, members, or lands, of any Englishman,
where there was no law ordered for it before."*
This leaves no small latitude for the authority of
royal proclamations, which the phrase, I make no
question, was studiously adopted in order to pre-
serve.
There was unfortunately a notion very preva-
sions of the lent in the cabinet of Elizabeth, though it was
not quite so broadly or at least so frequently pro-
mulgated as in the following reigns, that, besides
the common prerogatives of the English crown,
which were admitted to have legal bounds, there
was a kind of paramount sovereignty, which they
denominated her absolute power, incident, as they
pretended, to the abstract nature of sovereignty,
and arising out of its primary office of preserving
the state from destruction. This seemed analo-
gous to the dictatorial power which might be said.
to reside in the Roman senate, since it could con-
fer it upon an individual. And we all must, in
fact, admit that self-preservation is the first neces-
sity of commonwealths as well as persons, which
may justify, in Montesquieu's poetical language,
the veiling of the statues of liberty. Thus mar-
tial law is proclaimed during an invasion, and
houses are destroyed in expectation of a siege.
* Commonwealth of England, b. ii. c. 3.
FROM HENRY VII. TO GEORGE II.
385
I
V.
ELIZ.
Govern-
ment.
But few governments are to be trusted with this CHAP.
insidious plea of necessity, which more often
means their own security than that of the people.
Nor do I conceive that the ministers of Elizabeth
restrained this pretended absolute power, even in
theory, to such cases of overbearing exigency. It
was the misfortune of the sixteenth century to see
kingly power strained to the highest pitch in the
two principal European monarchies. Charles V.
and Philip II. had crushed and trampled the an-
cient liberties of Castile and Arragon. Francis I.
and his successors, who found the work nearly
done to their hands, had inflicted every practical
oppression upon their subjects. These examples
could not be without their effect on a government
so unceasingly attentive to all that passed on the
stage of Europe. Nor was this effect confined
to the court of Elizabeth. A king of England, in
the presence of absolute sovereigns, or perhaps of
their ambassadors, must always feel some degree
of that humiliation with which a young man, in
check of a prudent father, regards the careless
prodigality of the rich heirs with whom he asso-
ciates. Good sense and elevated views of duty
may subdue the emotion; but he must be above
human nature who is insensible to the contrast.
*
There must be few of my readers who are un-
acquainted with the animated sketch that Hume
has delineated of the English constitution under
*Bodin says the English am-
bassador M. Dail (Mr. Ďale) had
assured him, not only that the
king may assent to or refuse a bill
as he pleases, but that il ne laisse
pas d'en ordonner à son plaisir, et
contre la volonté des estats, comme
VOL. I.
on a vu Henry VIII. avoir tou-
jours usé de sa puissance souve-
raine. He admitted, however,
that taxes could only be imposed
in parliament. De la République,
1. i. c. 8.
CC
386
THE CONSTITUTIONAL HISTORY OF ENGLAND
V.
ELIZ.
Govern-
ment.
CHAP. Elizabeth. It has been partly the object of the
present chapter to correct his exaggerated out-
line; and nothing would be more easy than to
point at other mistakes into which he has fallen
through prejudice, through carelessness, or through
want of acquaintance with law. His capital and
inexcusable fault in every thing he has written on
our constitution is to have sought for evidence.
upon one side only of the question. Thus the re-
monstrance of the judges against arbitrary im-
prisonment by the council is infinitely more con-
clusive to prove that the right of personal liberty
existed, than the fact of its infringement can be to
prove that it did not. There is something falla-
cious in the negative argument which he perpe-
tually uses, that because we find no mention of
any umbrage being taken at certain strains of pre-
rogative, they must have been perfectly consonant
to law. For if nothing of this could be traced,
which is not so often the case as he represents it,
we should remember that even when a constant
watchfulness is exercised by means of political
parties and a free press, a nation is seldom alive to
the transgressions of a prudent and successful
government. The character, which on a former
occasion I have given of the English constitution
under the house of Plantagenet, may still be ap
plied to it under the line of Tudor, that it was a
monarchy greatly limited by law, but retaining
much power that was ill calculated to promote the
public good, and swerving continually into an
irregular course, which there was no restraint ade-
quate to correct. It may be added, that the prac
tical exercise of authority seems to have been less
FROM HENRY VII. TO GEORGE II.
387
V.
Govern-
frequently violent and oppressive, and its legal CHAP.
limitations better understood in the reign of Eli-
zabeth, than for some preceding ages; and that ELIZ.
sufficient indications had become distinguishable ment.
before its close, from which it might be gathered
that the seventeenth century had arisen upon a
race of men in whom the spirit of those who stood
against John and Edward was rekindled with a
less partial and a steadier warmth.*
* The misrepresentations of
Hume as to the English constitu-
tion under Elizabeth, and the ge-
neral administration of her reign,
have been exposed, since the pre-
sent chapter was written, by Mr.
Brodie, in his History of the Bri-
tish Empire from the Accession of
Charles I. to the Restoration, vol.
i. c. 3. In some respects, Mr. B.
seems to have gone too far in an
opposite system, and to represent
the practical course of government
as less arbitrary than I can admit
it to have been.
cc 2
388
THE CONSTITUTIONAL HISTORY OF ENGLAND
388
5
}
CHAPTER VI.
ON THE ENGLISH CONSTITUTION UNDER JAMES I.
८
CHAP.
Quiet Accession of James Question of his Title to the Crown - Legiti-
macy of the Earl of Hertford's Issue Early Unpopularity of the
King Conduct towards the Puritans Parliament convoked by an
irregular Proclamation Question of Fortescue and Goodwin's Election
L.-
Shirley's Case of Privilege Complaints of Grievances Commons'
Vindication of themselves· Session of 1605 Union with Scotland
debated Continual Bickerings between the Crown and Commons
Impositions on Merchandize without Consent of Parliament Remon-
strances against these in Session of 1610. · Doctrine of King's absolute
Power inculcated by Clergy Articuli cleri · Cowell's Interpreter —
Renewed Complaints of the Commons Negotiation for giving up the
feudal Revenue Dissolution of Parliament Character of James -
Death of Lord Salisbury — Foreign Politics of the Government Lord
Coke's Alienation from the Court Illegal Proclamations -
Means re-
sorted to in order to avoid the Meeting of Parliament · Parliament of
1614- Undertakers - It is dissolved without passing a single Act-
Benevolences Prosecution of Peacham — Dispute about the Jurisdic-
tion of the Court of Chancery ·Case of Commendams Arbitrary Pro-
ceedings in Star-Chamber- Arabella Stuart Somerset and Overbury—
Sir Walter Raleigh Parliament of 1621 - Proceedings against Mom-
pesson and Lord Bacon Violence in the Case of Floyd — Disagree-
ment between the King and Commons Their Dissolution, after a strong
Remonstrance Marriage-Treaty with Spain Parliament of 1624
· Impeachment of Middlesex.
IT might afford an illustration of the fallacious-
VI. ness of political speculations, to contrast the hopes
JAMESI. and inquietudes that agitated the minds of men
Quiet ac-
cession of
James.
concerning the inheritance of the crown during
Elizabeth's lifetime, while not less than fourteen
titles were idly or mischievously reckoned
up, with
FROM HENRY VII. TO GEORGE II.
389
the perfect tranquillity that accompanied the ac-
cession of her successor.
* Father Persons, a subtle and
lying jesuit, published in 1594, un-
der the name of Doleman, a trea-
tise entitled "Conference about
the next Succession to the Crown
of England." This book is dedi-
cated to lord Essex, whether from
any hopes entertained of him, or,
as was then supposed, in order to
injure his fame and his credit with
the queen. Sidney Papers, i. 357.
Birch's Memoirs, i. 313. It is
written with much art, to show the
extreme uncertainty of the succes-
sion, and to perplex men's minds
by multiplying the number of com-
petitors. This however is but the
second part of his Conference, the
aim of the first being to prove the
right of common-wealths to depose
sovereigns, much more to exclude
the right heir, especially for want
of true religion. "I affirm and
hold," he says,
"that for any
man to give his help, consent, or
assistance towards the making of a
king whom he judgeth or believeth
to be faulty in religion, and conse-
quently would advance either no
religion, or the wrong, if he were
in authority, is a most grievous
and damnable sin to him that doth
it, of what side soever the truth be,
or how good or bad soever the
party be that is preferred." p. 216.
He pretends to have found very
few who favour the king of Scots'
title; an assertion by which we
may appreciate his veracity. The
protestant party, he tells us, was
wont to favour the house of Hert-
ford, but of late have gone more
towards Arabella, whose claim the
lord Burleigh is supposed to coun-
tenance. p. 241. The drift of the
whole
*
The house of Suffolk,
wealth, though he harps much on
the embarrassments attending the
succession, Persons argues with
all his power in favour of the Scot-
tish title, Mary being still alive,
and James's return to the faith
not desperate. Both these works
are full of the mendacity generally
and justly ascribed to his order;
yet they are worthy to be read by
any one who is curious about the
secret politics of the queen's reign.
Philip II. held out assurances,
that if the English would aid him
in dethroning Elizabeth, a free
parliament should elect any catho-
lic sovereign at their pleasure, not
doubting that their choice would
fall on the infanta. He promised
also to enlarge the privileges of
the people, to give the merchants
a free trade to the Indies, with
many other flattering inducements.
Birch's Memoirs, ii. 308. But most
of the catholic gentry, it is just to
observe, would never concur in the
invasion of the kingdom by foreign-
ers, preferring the elevation of
Arabella, according to the pope's
project. This difference of opinion
gave rise, among other causes, to
the violent dissensions of that party
in the latter years of Elizabeth's
reign; dissensions that began soon
after the death of Mary, in favour
of whom they were all united,
though they could never after-
wards agree on any project for the
succession. Winwood's Memorials,
i. 57. Lettres du Cardinal d'Os-
sat, ii. 501.
For the life and character of the
famous father Persons, or Par-
sons, above mentioned, see Dodd's
Church History, the Biographia
to recommend the infanta, Britannica, or Miss Aikin's James
by means of perverted history and I., i. 360. Mr. Butler is too fa-
bad law, yet ingeniously contrived vourably inclined towards a man
to ensnare ignorant persons. In without patriotism or veracity.
his former and more celebrated · Dodd plainly thinks worse of him
treatise, Leicester's Common- than he dares speak.
CHAP.
VI.
JAMESI.
}
c c 3
390
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
whose claim was legally indisputable, if we admit
the testament of Henry VIII. to have been duly
JAMES I. executed, appear, though no public enquiry had
been made into that fact, to have lost ground in
popular opinion, partly through an unequal mar-
riage of lord Beauchamp with a private gentle-
man's daughter, but still more from a natural dis-
position to favour the hereditary line rather than
the capricious disposition of a sovereign long since
dead, as soon as it became consistent with the pre-
servation of the reformed faith. Leicester once
hoped, it is said, to place his brother-in-law, the
earl of Huntingdon, descended from the duke of
Clarence, upon the throne; but this pretension
had been entirely forgotten. The more intriguing
and violent of the catholic party, after the death
of Mary, entertaining little hope that the king of
Scots would abandon the principles of his educa-
tion, sought to gain support to a pretended title
in the king of Spain, or his daughter the infanta,
who afterwards married the archduke Albert, go-
vernor of the Netherlands. Others, abhorring so
odious a claim, looked to Arabella Stuart, daughter
of the earl of Lennox, younger brother of James's
father, and equally descended from the stock of
Henry VII., sustaining her manifest defect of pri-
mogeniture by her birth within the realm, accord-
ing to the principle of law that excluded aliens
from inheritance. But this principle was justly
deemed inapplicable to the crown. Clement VIII.,
who had no other view than to secure the re-esta-
blishment of the catholic faith in England, and
had the judgment to perceive that the ascendency
of Spain would neither be endured by the nation,
FROM HENRY VII. TO GEORGE II.
391
CHAP.
VI.
nor permitted by the French king, favoured this
claim of Arabella, who though apparently of the
reformed religion, was rather suspected at home JAMES I.
or wavering in her faith; and entertained a hope
of marrying her to the cardinal Farnese, brother
of the duke of Parma.* Considerations of public
interest, however, unequivocally pleaded for the
Scottish line; the extinction of long sanguinary
feuds, and the consolidation of the British empire,
Elizabeth herself, though by no means on terms
of sincere friendship with James, and harassing
him by intrigues with his subjects to the close of
her life, seems to have always designed that he
should inherit her crown. And the general ex-
pectation of what was to follow, as well from con-
viction of his right as from the impracticability of
any effectual competition, had so thoroughly paved
the way, that the council's proclamation of the king
of Scots excited no more commotion than that of
an heir apparent.t
* D'Ossat, ubi suprà. Clement
had, some years before, indulged
the idle hope that France and
Spain might unite to conquer Eng-
land, and either bestow the king-
dom on some catholic prince or
divide it between themselves, as
Louis XII. and Ferdinand had
done with Naples in 1501; an ex-
ample not very inviting to the
French. D'Ossat, Henry's minister
at Rome, pointed out the difficulties
of such an enterprise, England
being the greatest naval power in
the world, and the people warlike.
The pope only replied, that the
kingdom had been once conquered,
and might be so again; and espe-
cially being governed by an old
woman, whom he was ignorant
enough to compare with Joanna II.
of Naples. Vol. i. 399. Henry IV.
would not even encourage the pro-
ject of setting up Arabella, which
he declared to be both unjust and
chimerical. Mem. de Sully, 1. 15.
A knot of protestants were also
busy about the interests of Ara-
bella, or suspected of being so;
Raleigh, Cobham, Northumber-
land, though perhaps the last was
a catholic. Their intrigues occupy
a great part of the letters of other
intriguers, Cecil and lord Henry
Howard, in the Secret Correspond-
ence with king James, published
by sir David Dalrymple, vol. i.
passim.
+ The explicit declaration on
her death-bed ascribed to her by
Hume and most other writers, that
her kinsman the king of Scots
CC 4
392
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
Question of
his title to
the crown.
The popular voice in favour of James was un-
doubtedly raised in consequence of a natural opi-
JAMES I. nion that he was the lawful heir to the throne.
But this was only according to vulgar notions of
right, which respect hereditary succession as some-
thing indefeasible. In point of fact, it is at least
very doubtful whether James I. or any of his pos-
terity were legitimate sovereigns, according to the
sense which that word ought properly to bear.
The house of Stuart no more came in by a clear
title than the house of Brunswick; by such a title,
I mean, as the constitution and established laws of
this kingdom had recognized. No private man
could have recovered an acre of land without prov-
ing a better right than they could make out to the
crown of England. What then had James to rest
upon? What renders it absurd to call him and his
should succeed her, is not con-
firmed by Carey who was there at
the time. "She was speechless
when the council proposed the king
of Scots to succeed her, but put
her hand to her head as if in token
of approbation." E. of Monmouth's
Memoirs, p. 176. But her uniform
conduct shows her intentions. See,
however, D'Israeli's Curiosities of
Literature, iii. 107.
It is impossible to justify Eliza-
beth's conduct towards James in
his own kingdom. What is best
to be said for it is, that his indis-
cretion, his suspicious intrigues at
Rome and Madrid, the dangerous
influence of his favourites, and the
evident purpose of the court of
Spain to make him its tool, ren-
dered it necessary to keep a very
strict watch over his proceedings.
If she excited the peers and pres-
byters of Scotland against their
king, he was not behind her in
some of the last years of her reign.
It appears by a letter from the
earl of Mar, in Dalrymple's Secret
Correspondence, p. 2., that James
had hopes of a rebellion in Eng-
land in 1601, which he would
have had no scruple in abetting.
And a letter from him to Tyrone,
in the Lansdowne MSS. lxxxiv.
36, dated 22d Dec. 1597, when the
latter was at least preparing for
rebellion, though rather cautious,
is full of expressions of favour, and
of promises to receive his assist-
ance thankfully at the queen's
death. This letter being found in
the collection once belonging to
sir Michael Hicks, must have been
in lord Burleigh's, and probably
in Elizabeth's hands; it would not
make her less inclined to instigate
conspiracies across the Tweed.
The letter is not an original, and
may have been communicated by
some one about the king of Scots
in the pay of England.
FROM HENRY VII. TO GEORGE II.
393
VI.
children usurpers? He had that which the flat- CHAP.
terers of his family most affected to disdain, the
will of the people; not certainly expressed in re- JAMESI.
gular suffrage or declared election, but unanimously
and voluntarily ratifying that which in itself could
surely give no right, the determination of the late
queen's council to proclaim his accession to the
throne.
It is probable that what has been just said may
appear rather paradoxical to those who have not
considered this part of our history; yet it is ca-
pable of satisfactory proof. This proof consists of
four propositions: 1. That a lawful king of Eng-
land, with the advice and consent of parliament,
may make statutes to limit the inheritance of the
crown as shall seem fit; -2. That a statute passed
in the 35th year of king Henry VIII. enabled that
prince to dispose of the succession by his last will
signed with his own hand; -3. That Henry exe-
cuted such a will, by which, in default of issue
from his children, the crown was entailed upon the
descendants of his younger sister Mary, duchess of
Suffolk, before those of Margaret, queen of Scots;
-4. That such descendants of Mary were living
at the decease of Elizabeth.
Of these propositions, the two former can re-
quire no support; the first being one that it would
be perilous to deny, and the second asserting a no-
torious fact. A question has however been raised
with respect to the third proposition; for though
the will of Henry, now in the chapter-house at
Westminster, is certainly authentic, and is attested
by many witnesses, it has been doubted whether
the signature was made with his own hand, as re-
394
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
quired by the act of parliament. In the reign of
Elizabeth, it was asserted by the queen of Scots
JAMES I. ministers, that the king being at the last extremity,
some one had put a stamp for him to the instru
ment.* It is true, that he was in the latter part of
his life accustomed to employ a stamp instead of
making his signature. Many impressions of this
are extant; but it is evident on the first inspection,
not only that the presumed autographs in the will
(for there are two) are not like these impressions,
* See Burnet, vol. i. Appendix,
267. for secretary Lethington's
letter to Cecil, where he tells a
circumstantial story so positively,
and so open, if false, to a contra-
diction it never received, that those
who lay too much stress on this
very equivocal species of presump-
tion would, if the will had perished,
have reckoned its forgery beyond
question. The king's death ap-
proaching, he asserts, some as
well known to you as to me caused
William Clarke, sometimes servant
to Thomas Heneage, to sign the
supposed will with a stamp, for
otherwise signed it was never;"
for which he appeals to an attesta-
tion of the late lord Paget in par-
liament, and requests the deposi-
tions of several persons now living
to be taken. He proceeds to refer
him "to the original will surmised
to be signed with the king's own
hand, that thereby it may most
clearly and evidently appear by
some differences, how the same
was not signed with the king's
hand, but stamped as aforesaid.
And albeit it is used both as an
argument and calumniation against
my sovereign by some, that the
said original hath been embezzled
in queen Mary's time, I trust God
will and hath reserved the same to
be an instrument to relieve [prove]
the truth, and to confound false
surmises, that thereby the right
may take place, notwithstanding
the many exemplifications and
transcripts, which being sealed
with the great seal, do run abroad
in England." Lesley, bishop of
Ross, repeats the same story with
some additions. Bedford's Here-
ditary Right, p. 197. A treatise of
Hales, for which he suffered im-
prisonment, in defence of the Suf-
folk title under the will, of which
there is a manuscript in the British
Museum, Harl. MSS. 537., and
which is also printed in the ap-
pendix to the book last quoted,
leads me to conjecture that the
original will had been mislaid or
rather concealed at that time. For
he certainly argues on the supposi
tion that it was not forthcoming,
and had not himself seen it; but
"he has been informed that the
king's name is evidently written
with a pen, though some of the
strokes are unseen, as if drawn
by a weak and trembling hand.”
Every one who has seen the will
must bear witness to the correct-
ness of this information. The re-
appearance of this very remarkable
instrument was, as I conceive,
after the Revolution; for Collier
mentions that he had heard
in existence; and it is also described
in a note to the Acta Regia.
was
¿
FROM HENRY VII. TO GEORGE II.
895
VI.
but that they are not the impressions of any stamp, CHAP.
the marks of the pen being very clearly discernible.
It is more difficult to pronounce that they may not JAMESI.
be feigned; but such is not the opinion of some who
are best acquainted with Henry's hand-writing *;
and what is still more to the purpose, there is no
pretence for setting up such a possibility, when the
story of the stamp, as to which the partizans of
Mary pretended to adduce evidence, appears so
clearly to be a fabrication. We have therefore
every reasonable ground to maintain, that Henry
did duly execute a will, postponing the Scots line
to that of Suffolk.
The fourth proposition is in itself undeniable.
There were descendants of Mary, duchess of Suf-
folk, by her two daughters, Frances, second duchess
of Suffolk, and Eleanor, countess of Cumberland.
A story had indeed been circulated that Charles
Brandon, duke of Suffolk, was already married to
a lady of the name of Mortimer at the time of his
union with the king's sister. But this circumstance
seems to be sufficiently explained in the treatise of
Hales. It is somewhat more questionable, from
which of his two daughters we are to derive the
hereditary stock. This depends on the legitimacy Legitimacy
of lord Beauchamp, son of the earl of Hertford by of the ear
Catherine Grey. I have mentioned in another ford's issue.
place the process before a commission appointed by
Elizabeth, which ended in declaring that their mar-
riage was not proved, and that their cohabitation
*It is right to mention, that
some difference of opinion exists
as to the genuineness of Henry's
signature. But as it is attested by
many witnesses, and cannot be
proved a forgery, the legal pre-
sumption turns much in its favour.
+ Bedford's (Harbin's) Here-
ditary Right Asserted, p. 204.
earl
396
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. had been illicit. The parties alledged themselves
to have been married clandestinely in the earl of
JAMES I. Hertford's house, by a minister whom they had
never before seen, and of whose name they were
ignorant, in the presence only of a sister of the earl,
then deceased. This entire absence of testimony,
and the somewhat improbable nature of the story,
at least in appearance, may still perhaps leave a
shade of doubt as to the reality of the marriage.
On the other hand, it was unquestionable that their
object must have been a legitimate union; and
such a hasty and furtive ceremony as they asserted
to have taken place, while it would, if sufficiently
proved, be completely valid, was necessary to pro-
tect them from the queen's indignation. They
were examined separately upon oath to answer a
series of the closest interrogatories, which they did
with little contradiction, and a perfect agreement
in the main; nor was any evidence worth mention-
ing adduced on the other side; so that, unless the
rules of the ecclesiastical law are scandalously re-
pugnant to common justice, their oaths entitled
them to credit on the merits of the case.* The
earl of Hertford, soon after the tranquil accession
of James, having long abandoned all ambitious
hopes, and seeking only to establish his children's
* A manuscript in the Cottonian
library, Faustina A. xi. written
about 1562 in a very hostile spirit,
endeavours to prove from the want
of testimony, and from some va-
riances in their depositions (not
very material ones), that their al-
legations of matrimony could not
be admitted, and that they had in-
curred an ecclesiastical censure for
fornication. But another, which
I have also found in the Museum,
Harl. MSS. 6286, contains the
whole proceedings and evidence,
from which I have drawn the con-
clusion in the text. Their ig
norance of the clergyman who per-
formed the ceremony is not per-
haps very extraordinary; he seems
to have been one of those vaga-
bond ecclesiastics, who, till the
marriage act of 1752, were always
ready to do that service for a fee.
FROM HENRY VII. TO GEORGE II.
397
CHAP.
VI.
legitimacy and the honour of one who had been
the victim of their unhappy loves, petitioned the
king for a review of the proceedings, alledging JAMES I.
himself to have vainly sought this at the hands of
Elizabeth. It seems probable, though I have not
met with any more distinct proof of it than a story
in Dugdale, that he had been successful in finding
the person who solemnized the marriage.* A com-
mission of delegates was accordingly appointed to
investigate the allegations of the earl's petition.
But the jealousy that had so long oppressed this
unfortunate family was not yet at rest. Questions
seem to have been raised as to the lapse of time
and other technical difficulties, which served as a
pretext for coming to no determination on the
merits. Hertford, or rather his son, not long
after, endeavoured indirectly to bring forward the
main question by means of a suit for some lands
against lord Monteagle. This is said to have been
heard in the court of wards, where a jury was im-
panelled to try the fact. But the law officers of
the crown interposed to prevent a verdict, which,
though it could not have been legally conclusive
upon the marriage, would certainly have given a
sanction to it in public opinion. ‡ The house of
* "Hereupon I shall add, what
I have heard related from persons
of great credit, which is, that the
validity of this marriage was after-
wards brought to a trial at the
common law; when the minister
who married them being present,
and other circumstances agreeing,
the jury (whereof John Digby of
Coleshill, in com. War. esquire,
was the foreman) found it a good
marriage." Baronage of England,
part ii. 369. Mr. Luders doubts
the accuracy of Dugdale's story;
and I think it not unlikely that it
is a confused account of what hap-
pened in the Court of Wards.
+ I derive this fact from a Cot-
ton MS. Vitellius C. xvi. 412., &c.;
but the volume is much burned,
and the papers confused with
others relative to Lord Essex's di-
vorce. See as to the same suit, or
rather perhaps that mentioned in
the next note, Birch's Negotiations,
p.219., or Aikin's James I. i. 225.
キ ​"The same day a great cause
between the Lord Beauchamp and
398
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. Seymour was now compelled to seek a renewal of
their honours by another channel. Lord Beau-
JAMESI. champ, as he had uniformly been called, took a
grant of the barony of Beauchamp, and another of
the earldom of Hertford, to take effect upon the
death of the earl, who is not denominated his father
in the patent.* But after the return of Charles II.,
in the patent restoring this lord Beauchamp's son
to the dukedom of Somerset, he is recited to be
heir male of the body of the first duke by his wife
Anne, which establishes (if the recital of a private
act of parliament can be said to establish any thing)
the validity of the disputed marriage.†
The descent from Eleanor, the younger daughter
of Mary Brandon, who married the Earl of Cum-
berland, is subject to no difficulties. She left an
only daughter, married to the earl of Derby, from
whom the claim devolved again upon females, and
seems to have attracted less notice during the reign
of Elizabeth than some others much inferior in
Monteagle was heard in the court
of wards, the main point whereof
was to prove the lawfulness of E.
of Hertford's marriage. The court
sat until five of the clock in the
afternoon, and the jury had a
week's respite for the delivery of
their verdict. Letter of Sir E.
Hoby to Sir T. Edmonds, Feb.
10. 1606. "For my lord of Hert-
ford's cause, when the verdict was
ready to be given up, Mr. Attorney
interposed himself for the king,
and said that the land that they
both strove for was the king's,
and until his title were decided,
the jury ought not to proceed; not
doubting but the king will be gra-
cious to both lords. But thereby
both land and legitimation remain
undecided." The same to the
same, March 7. Sloane MSS.
4176.
* Dugdale's Baronage. Luders'
Essay on the Right of Succession
to the Crown in the Reign of Eli-
zabeth. This ingenious author is,
I believe, the first who has taken
the strong position as to the want
of legal title to the house of Stuart
which I have endeavoured to sup-
port. In the entertaining letters
of Joseph Mede on the news of
the day, Harl. MSS. 389., it is said
that the king had thoughts of de-
claring Hertford's issue by lady
Catherine Grey illegitimate in the
parliament of 1621, and that Lord
Southampton's commitment was
for having searched for proofs of
their marriage. June 30. 1622.
Luders, ubi suprà.
FROM HENRY VII. TO GEORGE II.
399
CHAP.
VI.
plausibility. If any should be of opinion that no
marriage was regularly contracted between the earl
of Hertford and lady Catherine Grey, so as to JAMES I.
make their children capable of inheritance, the
title to the crown, resulting from the statute of
35 H. 8. and the testament of that prince, will
have descended, at the death of Elizabeth, on the
issue of the countess of Cumberland, the youngest
daughter of the duchess of Suffolk, lady Frances
Keyes, having died without issue.* In neither
case could the house of Stuart have a lawful claim.
But I may, perhaps, have dwelled too long on a
subject which, though curious and not very gene-
rally understood, can be of no sort of importance,
except as it serves to cast ridicule upon those
notions of legitimate sovereignty and absolute right,
which it was once attempted to set up as paramount
even to the great interests of a commonwealth.
There is much reason to believe that the con-
sciousness of this defect in his parliamentary title
*The representative of the title
of Mary Brandon, duchess of Suf-
folk, that is, the person on whom
the claim has descended, according
to the rules which determine the
succession of the crown, on the
supposition that Hertford was duly
married to Catherine Grey, is the
present duchess of Buckingham;
upon the contrary supposition, the
marquis of Stafford. This is, of
course, if we may take for granted
the accuracy of common books of
genealogy. I have not adverted
to one objection which some urged
at the time, as we find by Persons's
treatises, Leicester's Common-
wealth, and the Conference, to the
legitimacy of the Seymours. Ca-
therine Grey had been betrothed,
or perhaps married, to Lord Her-
bert, son of the Earl of Pembroke,
during the brilliant days of her
family, at the close of Edward's
reign. But on her father's fall
Pembroke caused a sentence of di-
vorce to be pronounced, the grounds
of which do not appear, but which
was probably sufficient in law to
warrant her subsequent union with
Hertford. No advantage is taken
of this in the proceedings, which
seems to show that there was no
legal bond remaining between the
parties. Camden says she was di-
vorced from Lord Herbert, "being
so far gone with child, as to be
very near her time.' But from
her youth at the time, and the
silence of all other writers, I
conclude this to be unworthy of
credit.
400
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. put James on magnifying, still more than from his
natural temper he was prone to do, the inherent
JAMES I. rights of primogenitary succession, as something
indefeasible by the legislature; a doctrine which,
however it might suit the schools of divinity, was in
diametrical opposition to our statutes.* Through
the servile spirit of those times, however, it made
a rapid progress; and, interwoven by cunning and
bigotry with religion, became a distinguishing
tenet of the party who encouraged the Stuarts to
subvert the liberties of this kingdom. In James's
proclamation on ascending the throne, he sets
forth his hereditary right in pompous and perhaps
unconstitutional phrases. It was the first measure
of parliament to pass an act of recognition, ac-
knowledging that, immediately on the decease of
Elizabeth, "the imperial crown of the realm of
England did by inherent birthright, and lawful
and undoubted succession, descend and come to
his most excellent majesty, as being lineally, justly,
and lawfully, next and sole heir of the blood royal
of this realm.Ӡ The will of Henry VIII. it was
tacitly agreed by all parties to consign to oblivion:
and this most wisely, not on the principles which
seem rather too much insinuated in this act of
recognition, but on such substantial motives of
public expediency as it would have shown an equal
want of patriotism and of good sense for the de-
scendants of the house of Suffolk to have withstood.
James left a kingdom where his authority was
* Bolingbroke is of this opinion;
considering the act of recognition
as "the era of hereditary right,
and of all those exalted notions
concerning the power of preroga-
tive of kings and the sacredness of
their persons.
their persons." Dissertation on
Parties, Letter II.
+ Stat. 1 Jac. c. 1.
FROM HENRY VII. TO GEORGE II.
401
incessantly thwarted and sometimes openly as-
sailed, for one wherein the royal prerogative had
for more than a century been strained to a very
high pitch, and where there had not occurred for
above thirty years the least appearance of rebel-
lion and hardly of tumult. Such a posture of the
English commonwealth, as well as the general
satisfaction testified at his accession, seemed fa-
vourable circumstances to one who entertained,
with less disguise if not with more earnestness
than most other sovereigns, the desire of reigning
with as little impediment as possible to his own
will.
;
Yet some considerations might have in-
duced a prince who really possessed the king-craft
wherein James prided himself, to take his mea-
sures with caution. The late queen's popularity
had remarkably abated during her last years.*
It is a very common delusion of royal personages
to triumph in the people's dislike of those into
whose place they expect shortly to come, and to
count upon the most transitory of possessions, a
favour built on hopes that they cannot realize and
discontents that they will not assuage. If Eliza-
beth lost a great deal of that affection her subjects
*This is confirmed by a curious
little tract in the British Museum,
Sloane MSS. 827., containing a
short history of the queen's death,
and new king's accession. It af-
fords a good contemporary illus-
tration of the various feelings
which influenced men at this crisis,
and is written in a dispassionate
The author ascribes the
loss of Elizabeth's popularity to
the impoverishment of the realm,
and to the abuses which prevailed.
foreigners were
manner.
Carte says,
VOL. I.
CC
shocked on James's arrival at the
applause of the populace who had
professed to adore the late queen,
but in fact she had no huzzas after
Essex's execution. She was in
four days' time as much forgot as
if she had never existed, by all the
world, and even by her own ser-
vants. Vol. iii. p. 707. This is
exaggerated, and what Carte could
not know; but there is no doubt
that the generality were glad of a
change.
DD
CHAP.
VI.
JAMES I.
402
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. had entertained for her, this may be ascribed, not
so much to Essex's death, though that no doubt
JAMES I. had its share, as to weightier taxation, to some
oppressions of her government, and above all to
her inflexible tenaciousness in every point of ec-
clesiastical discipline. It was the part of a prudent
successor to preserve an undeviating economy, to
remove without repugnance or delay the irritations
of monopolies and purveyance, and to remedy
those alledged abuses in the church, against which
the greater and stronger part of the nation had so
long and so loudly raised its voice.
Early un-
popularity
The new king's character, notwithstanding the
of the king. vicinity of Scotland, seems to have been little un-
derstood by the English at his accession. But he
was not long in undeceiving them, if it be true
that his popularity had vanished away before his
arrival in London.* The kingdom was full of
* Carte, no foe surely to the
house of Stuart, says: By the
time he reached London, the ad-
miration of the intelligent world
was turned into contempt." On
this journey he gave a remarkable
proof of his hasty temper and dis-
regard of law, in ordering a pick-
pocket taken in the fact to be
hanged without trial. The his-
torian last quoted thinks fit to say
in vindication, that "all felonies
committed within the verge of the
court are cognizable in the court
of the king's household," referring
to 33 H. 8. c.i. This act however
contains no such thing; nor does
any court appear to have been
held. Though the man's noto-
rious guilt might prevent any open
complaint of so illegal a proceed-
ing, it did not fail to excite observ-
ation. "I hear our new king,"
says Sir John Harrington,
"has
hanged one man before he was
tried; it is strangely done: now
if the wind bloweth thus, why may
not a man be tried before he has
offended ?" Nuga Antiquæ, vol. i.
p. 180.
Birch and Carte tell us, on the
authority of the French ambassa-
dor's despatches, that on this jour
ney he expressed a great contempt
for women, suffering them to be
presented on their knees, and in-
discreetly censuring his own wife;
that he offended the military men
by telling them they might sheathe
their swords, since peace was his
object; that he showed impatience
of the common people who flocked
to see him while hunting, driving
them away with curses, very un-
like the affable manners of the late
queen. This is confirmed by Wil-
son, in Kennet's Complete History,
vol. ii. p. 667.
FROM HENRY VII. TO GEORGE II.
403
CHAP.
VI.
puritans.
acute wits and skilful politicians, quick enough to
have seen through a less unguarded character than
that of James. It was soon manifest that he was JAMES I.
unable to wield the sceptre of the great princess
whom he ridiculously affected to despise*, so as
to keep under that rising spirit, which might per-
haps have grown too strong even for her control.
He committed an important error in throwing Conduct
away the best opportunity that had offered itself towards the
for healing the wounds of the church of England.
In his way to London, the malcontent clergy pre-
sented to him what was commonly called the Mil-
lenary Petition, as if signed by 1000 ministers,
though the real number was not so great. This
petition contained no demand inconsistent with
the established hierarchy, nor, as far as I am
aware, which might not have been granted without
inconvenience. James, however, who had not un-
naturally taken an extreme disgust at the presby-
terian clergy of his native kingdom, by whom his
life had been perpetually harassed, showed no dis-
* Sully, being sent over to com-
pliment James on his accession,
persisted in wearing mourning for
Elizabeth, though no one had done
so in the king's presence, and he
was warned that it would be taken
ill;
"dans une cour où il sembloit
qu'on eût si fort affecté de mettre
en oubli cette grande reine, qu'on
n'y faisoit jamais mention d'elle,
et qu'on évitoit même de pronon-
cer son nom." Mém. de Sully,
1. 14. James afterwards spoke
slightingly to Sully of his prede-
cessor, and said that he had long
ruled England through her minis-
ters.
It states, that neither as factious
men desiring a popular party in
the church, nor as schismatics
aiming at the dissolution of the
state ecclesiastical, they humbly
desired the redress of some abuses.
Their objections were chiefly to
the cap and surplice, the cross in
baptism, baptism by women, con-
firmation, the ring in marriage,
the reading of the Apocrypha, bow-
ing at the name of Jesus, &c.; to
non-residence and incapable minis-
ters, the commendams held by
bishops, unnecessary excommuni-
cations, and other usual topics.
Neal, p. 408. Fuller, part ii. p.
22.
† It was subscribed by 825 mi-
nisters from twenty-five counties.
-
DD 2
404
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. position to treat these petitioners with favour.*
VI. The Bishops had promised him an obsequiousness
JAMESI. to which he had been little accustomed, and a
zeal to enhance his prerogative which they after-
wards too well displayed. His measures towards
the non-conformist party had evidently been re-
solved upon before he summoned a few of their
divines to the famous conference at Hampton-
Court. In the accounts that we read of this meet.
ing, we are alternately struck with wonder at the
indecent and partial behaviour of the king, and at
the abject baseness of the bishops, mixed, accord-
ing to the custom of servile natures, with insolence
towards their opponents.t It was easy for a
monarch and eighteen churchmen to claim the
victory, be the merits of their dispute what they
might, over four abashed and intimidated adver-
saries. A very few alterations were made in the
‡
* The puritans seem to have
flattered themselves that James
would favour their sect, on the
credit of some strong assertions he
had occasionally made of his ad-
herence to the Scots kirk. Some
of these were a good while before;
but on quitting the kingdom he
had declared that he left it in a
state which he did not intend to
alter. Neal, 406. James how
ever was all his life rather a bold
liar than a good dissembler. It
seems strange that they should not
have attended to his Basilicon Do-
ron, printed three years before,
though not for general circulation,
wherein there is a passage quite
decisive of his disposition towards
the presbyterians and their scheme
of polity. The Millenary Petition
indeed did not go so far as to re-
quest any thing of that kind.
+ Strype's Whitgift, p. 571.
Collier, p. 673. Neal, p. 411.
Fuller, part ii.
p. 7. State Trials,
vol. ii. p. 69. Phoenix Britanni-
cus, i. 141. Winwood, ii. 13. All
these, except the last, are taken
from an account of the conference
published by Barlow, and probably
more favourable to the king and
bishops than they deserved. See
what Harrington, an eye-witness,
says in Nuge Antiquæ, i. 181.
which I would quote as the best
evidence of James's behaviour,
were the passage quite decent.
Reynolds, the principal dis-
putant on the puritan side, was
nearly, if not altogether, the most
learned man in England. He was
censured by his faction for making
a weak defence; but the king's
partiality and intemperance plead
his apology. He is said to have
complained of unfair represent-
ation in Barlow's account. Hist.
FROM HENRY VII. TO GEORGE II.
405
VI.
church-service after this conference, but not of CHAP.
such moment as to reconcile probably a single
minister to the established discipline.* The king JAMES I.
soon afterwards put forth a proclamation, requiring
all ecclesiastical and civil officers to do their duty
by enforcing conformity, and admonishing all men
not to expect nor attempt any further alteration
in the public service; for "he would neither let
any presume that his own judgment, having de-
termined in a matter of this weight, should be
swayed to alteration by the frivolous suggestions
of any light spirit, nor was he ignorant of the in-
convenience of admitting innovation in things
once settled by mature deliberation." And he
had already strictly enjoined the bishops to pro-
ceed against all their clergy who did not observe
the prescribed ordert; a command which Ban-
croft, who about this time followed Whitgift in the
primacy, did not wait to have repeated. But the
most enormous outrage on the civil rights of these
men was the commitment to prison of ten among
and Ant. of Oxford, ii. 293. James
wrote a conceited letter to one
Blake, boasting of his own supe-
rior logic and learning. Strype's
Whitgift, Append. 239.
* Rymer, xvi. 565.
† Strype's Whitgift, 587. How
desirous men not at all connected
in faction with the puritans were
of amendments in the church, ap-
pears by a tract of Bacon, written,
as it seems, about the end of 1603,
vol. i. p. 387. He excepts to se-
veral matters of ceremony; the
cap and surplice, the ring in mar-
riage, the use of organs, the form
of absolution, lay-baptism, &c.;
and inveighs against the abuse of
excommunication, against non-
..
residence and pluralities, the oath
ex officio, the sole exercise of or-
dination and jurisdiction by the
bishop, conceiving that the dean
and chapter should always assent,
&c. And, in his predominant spirit
of improvement, asks, "Why the
civil state should be purged and
restored by good and wholesome
laws made every three or four
years
in parliament assembled, devising
remedies as fast as time breedeth
mischief; and contrariwise the ec-
clesiastical state should still con-
tinue upon the dregs of time, and
receive no alteration now for these
forty-five years or more ?”
‡ Id. ibid.
{
DD 3
406
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. those who had presented the Millenary Petition;
the judges having declared in the star-chamber,
JAMESI. that it was an offence fineable at discretion, and
very near to treason and felony, as it tended to
sedition and rebellion.* By such beginnings did
the house of Stuart indicate the course it would
steer.
An entire year elapsed, chiefly on account of
the unhealthiness of the season in London, before
James summoned his first parliament. It might
perhaps have been more politic to have chosen
some other city; for the length of this interval
gave time to form a disadvantageous estimate of
his administration and to alienate beyond recovery
the puritanical party. Libels were already in cir-
culation, reflecting with a sharpness never before
known on the king's personal behaviour, which
presented an extraordinary contrast to that of
Elizabeth. The nation, it is easy to perceive,
cheated itself into a persuasion, that it had borne
that princess more affection than it had really felt,
especially in her latter years; the sorrow of sub-
jects for deceased monarchs being often rather
inspired by a sense of evil than a recollection of
good. James however little heeded the popular
voice, satisfied with the fulsome and preposterous
adulation of his court, and intent on promulgating
certain maxims concerning the dignity and power
of princes, which he had already announced in his
*Neal, 432. Winwood, ii. 36.
+ See one of the Somers Tracts,
vol. ii. p. 144. entitled "Advertise-
ments of a Loyal Subject, drawn
from the Observation of the Peo-
ple's Speeches." This appears to
have been written before the meet-
ing of parliament. The French
ambassadors, Sully and La Bode-
ric, thought most contemptibly of
the king. Lingard, vol. ix. p. 107.
His own courtiers, as their private
letters show, disliked and derided
him.
FROM HENRY VII. TO GEORGE II.
407
CHAP.
VI.
discourse on the True Law of Free Monarchies,
printed some years before in Scotland. In this
treatise, after laying it down that monarchy is the JAMES I.
true pattern of divinity, and proving the duty of
passive obedience, rather singularly, from that pas-
sage in the book of Samuel where the prophet so
forcibly paints the miseries of absolute power, he
denies that the kings of Scotland owe their crown
to any primary contract, Fergus, their progenitor,
having conquered the country with his Irish; and
advances more alarming tenets, as that the king
makes daily statutes and ordinances enjoining such
pains thereto as he thinks meet, without any ad-
vice of parliament or estates; that general laws
made publicly in parliament may by the king's
authority be mitigated or suspended upon causes
only known to him; and that, "although a good
king will frame all his actions to be according to
the law, yet he is not bound thereto, but of his
own will and for example-giving to his subjects.*
These doctrines, if not absolutely novel, seemed
peculiarly indecent as well as dangerous, from the
mouth of a sovereign. Yet they proceeded far
more from James's self-conceit and pique against
the republican spirit of presbyterianism than from
his love of power, which (in its exercise I mean, as
distinguished from its possession) he did not feel
in so eminent a degree as either his predecessor
or his son.
*
In the proclamation for calling together his first
parliament, the king, after dilating, as was his fa-
vourite practice, on a series of rather common
*King James's Works, p. 207.
DD 4
408
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. truths in very good language, charges all persons
VI. interested in the choice of knights for the shire to
JAMES I. select them out of the principal knights or gen
Parliament tlemen within the county; and for the burgesses,
by an irre- that choice be made of men of sufficiency and dis-
clamation. cretion, without desire to please parents and
convoked
gular pro-
Question of
Fortescue
and Good-
tion.
friends, that often speak for their children or
kindred; avoiding persons noted in religion for
their superstitious blindness one way, or for their
turbulent humour otherways. We do command, he
says, that no bankrupts or outlaws be chosen, but
men of known good behaviour and sufficient live-
lihood. The sheriffs are charged not to direct a
writ to any ancient town being so ruined that
there are not residents sufficient to make such
choice, and of whom such lawful election may be
made. All returns are to be filed in chancery,
and if any be found contrary to this proclamation,
the same to be rejected as unlawful and insuf
ficient, and the place to be fined for making it;
and any one elected contrary to the purport, effect,
and true meaning of this proclamation, to be fined
and imprisoned.*
Such an assumption of control over parlia
win's elec- mentary elections was a glaring infringement of
those privileges which the house of commons had
been steadily and successfully asserting in the late
reign. An opportunity very soon occurred of con-
testing this important point. At the election for
the county of Buckingham, sir Francis Goodwin
had been chosen in preference to sir John For
tescue, a privy counsellor, and the writ returned
* Parl. Hist. i. 967.
FROM HENRY VII. TO GEORGE II.
409
VI.
into chancery. Goodwin having been some years CHAP.
before outlawed, the return was sent back to the
sheriff, as contrary to the late proclamation; and, JAMESI.
on a second election, sir John Fortescue was
chosen. This matter being brought under the
consideration of the house of commons, a very
few days after the opening of the session, gave
rise to their first struggle with the new king. It
was resolved, after hearing the whole case, and
arguments by members on both sides, that Good-
win was lawfully elected and returned, and ought
to be received. The first notice taken of this was
by the lords, who requested that this might be
discussed in a conference between the two houses,
before any other matter should be proceeded in.
The commons returned for answer, that they con-
ceived it not according to the honour of the house
to give account of any of their proceedings. The
lords replied, that having acquainted his majesty
with the matter, he desired there might be a con-
ference thereon between the two houses. Upon
this message, the commons came to a resolution
that the speaker with a numerous deputation of
members should attend his majesty, and report
the reasons of their proceedings in Goodwin's case.
In this conference with the king, as related by
the speaker, it appears that he had shown some
degree of chagrin, and insisted that the house
ought not to meddle with returns, which could
only be corrected by the court of chancery; and
that since they derived all matters of privilege
from him and his grant, he expected they should
not be turned against him. He ended by direct-
ing the house to confer with the judges. After
410
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. a debate which seems, from the minutes in the
journals, to have been rather warm, it was unani-
JAMESI. mously agreed not to have a conference with the
judges; but the reasons of the house's proceeding
were laid before the king in a written statement
or memorial, answering the several objections that
his majesty had alledged. This they sent to the
lords, requesting them to deliver it to the king,
and to be mediators in behalf of the house for his
majesty's satisfaction; a message in rather a lower
tone than they had previously taken. The king
sending for the speaker privately, told him that
he was now distracted in judgment as to the merits
of the case; and for his further satisfaction, de-
sired and commanded, as an absolute king, that
there should be a conference between the house
and the judges. Upon this unexpected message,
says the journal, there grew some amazement and
silence. But at last one stood up and said: "The
prince's command is like a thunderbolt; his com-
mand upon our allegiance like the roaring of a lion.
To his command there is no contradiction; but
how or in what manner we should now proceed
to perform obedience, that will be the question."*
It was resolved to confer with the judges in pre-
sence of the king and council. In this second
conference, the king, after some favourable ex-
pressions towards the house, and conceding that
it was a court of record, and judge of returns,
though not exclusively of the chancery, suggested
that both Goodwin and Fortescue should be set
aside, by issuing a new writ. This compromise
was joyfully accepted by the greater part of the
* Commons' Journals, i. 166.
FROM HENRY VII. TO GEORGE II.
411
CHAP.
VI.
commons, after the dispute had lasted nearly three
weeks.*
They have been considered as victo-
rious, upon the whole, in this contest, though they JAMES I.
apparently fell short in the result of what they
had obtained some years before. But no attempt
was ever afterwards made to dispute their exclusive
jurisdiction. †
The commons were engaged during this session Shirley's
in the defence of another privilege, to which they vilege.
case of pri-
annexed perhaps a disproportionate importance.
Sir Thomas Shirley, a member, having been taken
in execution on a private debt before their meeting,
and the warden of the Fleet prison refusing to de-
liver him up, they were at a loss how to obtain his
release. Several methods were projected; among
which, that of sending a party of members with
the serjeant and his mace, to force open the prison,
was carried on a division; but the speaker hinting
that such a vigorous measure would expose them
individually to prosecution as trespassers, it was
prudently abandoned. The warden, though com-
mitted by the house to a dungeon in the Tower,
continued obstinate, conceiving that by releasing
his prisoner he should become answerable for the
debt. They were evidently reluctant to solicit the
king's interference; but aware at length that their
* It appears that some of the
more eager patriots were dissatis-
fied at the concession made by va-
cating Goodwin's seat, and said
they had drawn on themselves the
reproach of inconstancy and levity.
"But the acclamation of the house
was, that it was a testimony of our
duty, and no levity." It was
thought expedient, however, to
save their honour, that Goodwin
should send a letter to the speaker
expressing his acquiescence. P.
168.
+ Commons' Journals, 147. &c.;
Parl. Hist. 997.; Carte, iii. 730.
who gives, on this occasion, a re-
view of the earlier cases where the
house had entered on matters of
election. See also a rather curious.
letter of Cecil in Winwood's Me-
morials, ii. 18. where he artfully
endeavours to treat the matter as
of little importance.
412
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
own authority was insufficient, "the vice-cham-
berlain, according to a memorandum in the jour-
JAMESI. nals, was privately instructed to go to the king,
and humbly desire that he would be pleased to
command the warden, on his allegiance, to deliver
up sir Thomas; not as petitioned for by the house,
but as if himself thought it fit, out of his own gra-
cious judgment." By this stratagem, if we may so
term it, they saved the point of honour, and re-
covered their member.* The warden's appre-
hensions, however, of exposing himself to an action
for the escape gave rise to a statute, which em-
powers the creditor to sue out a new execution
against any one who shall be delivered by virtue
of his privilege of parliament, after that shall have
expired, and discharges from liability those out of
whose custody such persons shall be delivered.
This is the first legislative recognition of privilege.†
The most important part of the whole is a proviso
subjoined to the act, "That nothing therein con-
tained shall extend to the diminishing of any pu
nishment to be hereafter, by censure in parliament,
inflicted upon any person who hereafter shall make
or procure to be made any such arrest as is afore-
said." The right of commitment, in such cases at
least, by a vote of the house of commons, is here
unequivocally maintained.
of griev-
ances.
Complaints It is not necessary to repeat the complaints of
ecclesiastical abuses preferred by this house of
commons, as by those that had gone before them.
James, by siding openly with the bishops, had
given alarm to the reforming party. It was anti-
* Commons' Journals, page 155. +1 Jac. i. c. 13.
&c. Parl. Hist. 1028.; Carte, 734.
FROM HENRY VII. TO GEORGE II.
413
CHAP.
VI.
cipated that he would go farther than his pre
decessor, whose uncertain humour, as well as the
inclinations of some of her advisers, had materially JAMES I.
counterbalanced the dislike she entertained of the
innovators. A code of new canons had recently
been established in convocation with the king's
assent, obligatory perhaps upon the clergy, but
tending to set up an unwarranted authority over
the whole nation; imposing oaths and exacting se-
curities in certain cases from the laity, and aiming
at the exclusion of non-conformists from all civil
rights.* Against these canons, as well as various
other grievances, the commons remonstrated in a
conference with the upper house, but with little
immediate effect. They made a more remarkable
effort in attacking some public mischiefs of a tem-
poral nature, which, though long the theme of
general murmurs, were closely interwoven with
the ancient and undisputed prerogatives of the
crown. Complaints were uttered, and innovations
projected by the commons of 1604, which Eliza-
beth would have met with an angry message, and
perhaps visited with punishment on the proposers.
James however was not entirely averse to some
of the projected alterations, from which he hoped
* By one of these canons, all
persons affirming any of the thirty-
nine articles to be erroneous are
excommunicated ipso facto; con-
sequently become incapable of be-
ing witnesses, of suing for their
debts, &c. Neal, 428. But the
But the
courts of law disregarded these ipso
fucto excommunications.
† Somers Tracts, ii. 14.; Jour-
nals, 199. 235. 238.; Parl. Hist.
1067. It is here said, that a
bill restraining excommunications
passed into a law, which does not
appear to be true, though James
himself had objected to their fre-
quency. I cannot trace such a bill
in the journals beyond the com-
mittee, nor is it in the statute-
book. The fact is, that the king
desired the house to confer on the
subject with the convocation, which
they justly deemed unprecedented,
and derogatory to their privileges;
but offered to confer with the
bishops, as lords of parliament.
Journals, 173.
414
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. to derive a pecuniary advantage. The two prin-
cipal grievances were, purveyance and the inci-
JAMESI. dents of military tenure. The former had been
restrained by not less than thirty-six statutes, as
the commons assert in a petition to the king; in
spite of which the impressing of carts and carriages,
and the exaction of victuals for the king's use, at
prices far below the true value, and in quantity
beyond what was necessary, continued to prevail
under authority of commissions from the board of
green cloth, and was enforced, in case of demur or
resistance, by imprisonment under their warrant.
The purveyors, indeed, are described as living at
free quarters upon the country, felling woods with-
out the owners' consent, and commanding labour
with little or no recompense.* Purveyance was a
very ancient topic of remonstrance; but both the
inadequate revenues of the crown, and a supposed
dignity attached to this royal right of spoil, had
prevented its abolition from being attempted. But
the commons seemed still more to trench on the
pride of our feudal monarchy, when they proposed to
take away guardianship in chivalry; that lucrative
tyranny, bequeathed by Norman conquerors, the
custody of every military tenant's estate until he
should arrive at twenty-one, without accounting
for the profits. This, among other grievances, was
referred to a committee, in which Bacon took an
active share. They obtained a conference on this
subject with the lords, who refused to agree to a
bill for taking guardianship in chivalry away, but
offered to join in a petition for that purpose to the

* Bacon's Works, i. 624.; Journals, 190. 215.
FROM HENRY VII. TO GEORGE II.
415
VI.
king, since it could not be called a wrong, having CHAP.
been patiently endured by their ancestors as well
as themselves, and being warranted by the law of JAMES I.
the land. In the end the lords advised to drop
the matter for the present, as somewhat unseason-
able in the king's first parliament.*
In the midst of these testimonies of dissatisfac-
tion with the civil and ecclesiastical administration,
the house of commons had not felt much willing-
ness to greet the new sovereign with a subsidy.
No demand had been made upon them, far less
any proof given of the king's exigencies; and they
doubtless knew by experience, that an obstinate
determination not to yield to any of their wishes
would hardly be shaken by a liberal grant of mo-
ney. They had even passed the usual bill granting
tonnage and poundage for life, with certain re-
servations that gave the court offence, and which
apparently they afterwards omitted. But there was
so little disposition to do any thing further, that
the king sent a message to express his desire that
the commons would not enter upon the business
of a subsidy, and assuring them that he would not
take unkindly their omission. By this artifice,
which was rather transparent, he avoided the not
improbable mortification of seeing the proposal
rejected.t
vindication
The king's discontent at the proceedings of this Commons'
session, which he seems to have rather strongly of them-
expressed in some speech to the commons that has selves.
not been recorded ‡, gave rise to a very remarkable
*Commons' Journals, 150. &c.
Journals, 230.
† Journals, 246,
416
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. vindication, prepared by a committee at the house's
command, and entitled a Form of Apology and
JAMES I. Satisfaction to be delivered to his Majesty, though
such may not be deemed the most appropriate title.
It contains a full and pertinent justification of all
those proceedings at which James had taken um-
brage, and asserts, with respectful boldness and in
explicit language, the constitutional rights and
liberties of parliament. If the English monarchy
had been reckoned as absolute under the Planta-
genets and Tudors, as Hume has endeavoured to
make it appear, the commons of 1604 must have
made a surprising advance in their notions of free-
dom since the king's accession. Adverting to what
they call the misinformation openly delivered to
his majesty in three things; namely, that their
privileges were not of right, but of grace only, re-
newed every parliament on petition; that they are
no court of record, nor yet a court that can com
mand view of records; that the examination of the
returns of writs for knights and burgesses is without
their compass, and belonging to the chancery: as-
sertions, they say, "tending directly and appa-
rently to the utter overthrow of the very funda-
mental privileges of our house, and therein of the
rights and liberties of the whole commons of your
realm of England, which they and their ancestors,
from time immemorial, have undoubtedly enjoyed
under your majesty's most noble progenitors ;" and
against which they expressly protest, as derogatory
in the highest degree to the true dignity and autho-
rity of parliament, desiring" that such their pro-
testation might be recorded to all posterity;" they
maintain, on the contrary, "1. That their privileges
FROM HENRY VII. TO GEORGE II.
4.17
VI.
and liberties are their right and inheritance, no less CHAP.
than their very lands and goods; 2. That they
cannot be withheld from them, denied or impaired, JAMES I.
but with apparent wrong to the whole state of the
realm; 3. That their making request, at the be-
ginning of a parliament, to enjoy their privilege, is
only an act of manners, and does not weaken their
right; 4. That their house is a court of record, and
has been ever so esteemed; 5. That there is not the
highest standing court in this land that ought to
enter into competition, either for dignity or autho-
rity, with this high court of parliament, which,
with his majesty's royal assent, gives law to other
courts, but from other courts receives neither laws
nor orders; 6. That the house of commons is the
sole proper judge of return of all such writs, and
the election of all such members as belong to it,
without which the freedom of election were not
entire." They aver that in this session the pri-
vileges of the house have been more universally
and dangerously impugned than ever, as they sup-
pose, since the beginnings of parliaments. That
in regard to the late queen's sex and age, and much
more upon care to avoid all trouble, which by
wicked practice might have been drawn to im-
peach the quiet of his majesty's right in the suc-
cession, those actions were then passed over which
they hoped in succeeding times to redress and
rectify; whereas, on the contrary, in this parlia-
ment, not privileges, but the whole freedom of the
parliament and realm had been hewed from them.
"What cause," they proceed, "we, your poor
commons, have to watch over our privileges is
manifest in itself to all men. The prerogatives of
VOL. I.
E F
418
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. princes may easily and do daily grow. The pri
vileges of the subject are for the most part at an
JAMES I. everlasting stand. They may be by good provi-
dence and care preserved; but being once lost,
are not recovered but with much disquiet." They
then enter in detail on the various matters that had
arisen during the session, the business of Good-
win's election, of Shirley's arrest, and some smaller
matters of privilege to which my limits have not
permitted me to allude. "We thought not,"
speaking of the first, "that the judge's opinion,
which yet in due place we greatly reverence, being
delivered what the common law was, which extends
only to inferior and standing courts, ought to bring
any prejudice to this high court of parliament,
whose power being above the law is not founded
on the common law, but have their rights and pri-
vileges peculiar to themselves." They vindicate
their endeavours to obtain redress of religious
and public grievances : "Your majesty would be
misinformed," they tell him, "if any man should
deliver that the kings of England have any abso-
lute power in themselves, either to alter religion,
which God defend should be in the power of any
mortal man whatsoever, or to make any laws con-
cerning the same, otherwise than as in temporal
causes, by consent of parliament. We have and
shall at all times by our oaths acknowledge, that
your majesty is sovereign lord and supreme go
vernor in both."* Such was the voice of the
* Parl. Hist. 1030., from Petyt's
Jus Parliamentarium, the earliest
book, as far as I know, where this
important document is preserved.
The entry on the Journals, p. 243.,
contains only the first paragraph.
Hume and Carte have been igno-
rant of it. It is just alluded to by
Rapin:
It was remarked that the at-
FROM HENRY VII. TO GEORGE II.
419-
CHAP.
VI.
English commons in 1604, at the commencement
of that great conflict for their liberties, which is
measured by the line of the house of Stuart. But JAMESI.
it is not certain that this apology was ever delivered
to the king, though he seems to allude to it in a
letter written to one of his ministers about the same
time. *
1605.
The next session, which is remarkable on ac- Session,
count of the conspiracy of some desperate men to
blow up both houses of parliament with gunpowder
on the day of their meeting, did not produce much
worthy of our notice.
A bill to regulate, or pro-
tendance of members in this ses-
sion was more frequent than had
ever been known, so that fresh
seats were required. Journals,141.
** My faithful 3, such is now
my misfortune, as I must be for
this time secretary to the devil in
answering your letters directed
unto him. That the entering now
into the matter of the subsidy
should be deferred until the coun-
cil's next meeting with me, I think
no ways convenient, especially for
three reasons. First, ye see it has
bin already longest delayd of any
thing, and yet yee see the lower
house are ever the longer the fur-
ther from it; and (as in every thing
that concerns mee) delay of time
does never turn them towards mee,
but, by the contrary, every hour
breedeth a new trick of contradic-
tion amongst them, and every day
produces new matter of sedition,
so fertile are their brains in ever
buttering forth venome. Next,
the Parlt. is now so very near an
end, as this matter can suffer no
longer delay. And thirdly, if this
be not granted unto before they
receive my answer unto their pe-
tition, it needs never to be moved,
for the will of man or angel cannot
devise a pleasing answer to their
proposition, except I should pull
the crown not only from my own
head, but also from the head of all
those that shall succeed unto mee,
and lay it down at their feet.
And that freedom of uttering my
thoughts, which
which no extremity,
strait nor peril of my life could
ever bereave mee of in time past,
shall now remain with me, as long
as the soul shall with the body.
And as for the Reservations of the
Bill of Tonnage and Poundage,
yee of the Upper House must out
of your Love and Discretion help
it again or otherwise they will in
this, as in all things else that con-
cern mee, wrack both me and all
my Posterity. Yee may impart
this to little 10 and bigg Suffolk.
And so Farewell from my Wilder-
nesse, wch I had rather live in (as
God shall judge mee) like an Her-
mite in this Forrest, then be a King
over such a People as the pack of
Puritans are that over-rules the
lower house.
J. R.
MS. penes autorem.
I cannot tell who is addressed in
this letter by the numeral 3; per-
haps the earl of Dunbar. By 10
we must doubtless understand
Salisbury.
EE 2
420
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. bably to suppress, purveyance was thrown out by
VI. the lords. The commons sent up another bill to
JAMESI. the same effect, which the upper house rejected
without discussion, by a rule then perhaps first
established, that the same bill could not be pro-
posed twice in one session.* They voted a liberal
subsidy, which the king, who had reigned three
years without one, had just cause to require. For
though he had concluded a peace with Spain soon
after his accession, yet the late queen had left a
debt of £400,000, and other charges had fallen on
the crown.
But the bill for this subsidy lay a good
while in the house of commons, who came to a
vote that it should not pass till their list of griev
ances was ready to be presented. No notice was
taken of these till the next session beginning in
November, 1606, when the king returned an an-
swer to each of the sixteen articles in which
matters of grievance were alledged. Of these the
greater part refer to certain grants made to par-
ticular persons in the nature of monopolies; the
king either defending these in his answer, or re-
mitting the parties to the courts of law to try their
Union with legality. The principal business of this third ses-
sion, as it had been of the last, was James's fa-
vourite scheme of a perfect union between England
Scotland
debated.
* Parl. Hist. Journals, 274. 278.,
&c. In a conference with the lords
on this bill, Mr. Hare, a member,
spoke so warmly, as to give their
lordships offence, and to incur some
reprehension. "You would have
thought," says sir Thomas Hoby,
in a manuscript letter in the Mu-
seum, Sloane MSS. 4161.,
"that
Hare and Hyde represented two
tribunes of the people." But the
commons resented this infringe-
ment on their privileges, and after
voting that Mr. Hare did not err
in his employment in the com-
mittee with the lords, sent a mes-
sage to inform the other house of
their vote, and to request that they
"would forbear hereafter any tax-
ations and reprehensions in their
conferences." Journals, 20th and
22d Feb.
FROM HENRY VII. TO GEORGE II.
421
VI.
and Scotland. It may be collected, though this CHAP.
was never explicitly brought forward, that his views
extended to a legislative incorporation.* But in JAMESI.
all the speeches on this subject, and especially
his own, there is a want of distinctness as to the
object proposed. He dwells continually upon the
advantage of unity of laws, yet extols those of
England as the best, which the Scots, as was evi-
dent, had no inclination to adopt. Wherefore
then was delay to be imputed to our English par-
liament, if it waited for that of the sister kingdom?
And what steps were recommended towards this
measure, that the commons can be said to have
declined, except only the naturalization of the
ante-nati, or Scots born before the king's accession
to our throne, which could only have a temporary
effect? + Yet Hume, ever prone to eulogize this
* Journals, 316.
An acute historical critic doubts
whether James aimed at an union
of legislatures, though suggested
by Bacon. Laing's Hist. of Scot-
land, iii. 17. It is certain that his
own speeches on the subject do
not mention this; nor do I know
that it was ever distinctly brought
forward by the government; yet
it is hard to see how the incor-
poration could have been complete
without it. Bacon not only con-
templates the formation of a single
parliament, but the alterations ne-
cessary to give it effect, vol. i. p. 638.;
suggesting that the previous com-
mission of lords of articles might
be adopted for some, though not
for all purposes.
This of itself
was a sufficient justification for the
dilatoriness of the English parlia-
ment. Nor were the common
lawyers who sat in the house
much better pleased with Bacon's
schemes for remodelling all our
laws. See his speech, vol.i. p. 654.,
for naturalizing the ante-nati. In
this, he asserts the kingdom not
to be fully peopled;
"the ter-
ritories of France, Italy, Flanders,
and some parts of Germany, do in
equal space of ground bear and
contain a far greater quantity of
people, if they were mustered by
the poll;" and even goes on to
assert the population to have been
more considerable under the hept-
archy.
It was held by twelve judges
out of fourteen, in Calvin's case,
that the post-nati, or Scots born
after the king's accession, were na-
tural subjects of the king of Eng-
land. This is laid down, and ir-
resistibly demonstrated, by Coke,
then chief justice, with his abun-
dant legal learning. State Trials,
vol. ii. 559.
It may be observed, that the
high-flying creed of prerogative
mingled itself intimately with this
EE 3
4.22
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
monarch at the expense of his people, while he
bestows merited praise on his speech in favour of
JAMESI. the union, which is upon the whole a well-written
and judicious performance, charges the parlia-
ment with prejudice, reluctance, and obstinacy.
The code, as it may be called, of international
hostility, those numerous statutes treating the
northern inhabitants of this island as foreigners.
and enemies, were entirely abrogated. And if the
commons, while both the theory of our own con-
stitution was so unsettled and its practice so full
of abuse, did not precipitately give in to schemes
that might create still further difficulty in all
questions between the crown and themselves,
schemes, too, which there was no imperious motive
for carrying into effect at that juncture, we may
justly consider it as an additional proof of their
wisdom and public spirit. Their slow progress
however in this favourite measure, which, though
they could not refuse to entertain it, they endea-
voured to defeat by interposing delays and impe-
diments, gave much offence to the king, which he
CC
question of naturalization; which
was much argued on the mon-
archical principle of personal alle-
giance to the sovereign, as opposed
to the half-republican theory that
lurked in the contrary proposition.
Allegiance," says lord Bacon,
"is of a greater extent and dimen-
sion than laws or kingdoms, and
cannot consist by the laws merely,
because it began before laws; it
continueth after laws, and it is in
vigour when laws are suspended
and have not had their force." Id.
596. So lord Coke: "Whatsoever
is due by the law or constitution of
man may be altered; but natural
legiance or obedience of the sub-
ject to the sovereign cannot be al-
tered; ergo, natural legiance or
obedience to the sovereign not
due by the law or constitution of
man.' 652.
>>
There are many doubtful posi-
tions scattered through the judg
ment in this famous case. Its
surest basis is the long series of
precedents, evincing that the na-
tives of Jersey, Guernsey, Calais,
and even Normandy and Guienne,
while these countries appertained
to the kings of England, though
not in right of its crown, were never
reputed aliens.
FROM HENRY VII. TO GEORGE II.
423
CHAP.
VI.
expressed in a speech to the two houses, with the
haughtiness, but not the dignity of Elizabeth. He
threatened them to live alternately in the two JAMESI.
kingdoms, or to keep his court at York; and al-
luded, with peculiar acrimony, to certain speeches
made in the house, wherein probably his own fame
had not been spared.* "I looked," he says,
"for no such fruits at your hands, such personal
discourses and speeches, which of all other, I
looked you should avoid, as not beseeming the
gravity of your assembly. I am your king; I am
placed to govern you, and shall answer for your
errors; I am a man of flesh and blood, and have
my passions and affections as other men; I pray
you, do not too far move me to do that which my
power may tempt me unto."t
between the
bickerings
commons.
It is most probable, as experience had shown, Continual
that such a demonstration of displeasure from Eliza-
beth would have ensured the repentant submission crown and
of the commons. But within a few years of the
most unbroken tranquillity, there had been one of
those changes of popular feeling, which a govern-
ment is seldom observant enough to watch. Two
springs had kept in play the machine of her ad-
* The house had lately expelled
sir Christopher Pigott for reflect-
ing on the Scots nation in a speech.
Journals, 13th Feb. 1607.
† Commons' Journals, 366.
The journals are full of notes of
these long discussions about the
union in 1604, 1608, 1607, and
even 1610. It is easy to perceive
a jealousy that the prerogative by
some means or other would be the
gainer. The very change of name
to Great Britain was objected to.
One said, we cannot legislate for
Great Britain, p. 186. Another,
with more astonishing sagacity,
feared that the king might suc-
ceed, by what the lawyers call re-
mitter, to the prerogatives of the
British kings before Julius Cæsar,
which would supersede Magna
Charta, p. 185.
James took the title of King of
Great Britain in the second year
of his reign. Lord Bacon drew
a well-written proclamation on
that occasion. Bacon, i. 621. Ry-
But it was, not
abandoned.
mer, xvi. 603.
long afterwards,
EEL
424
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. ministration, affection and fear; attachment arising
VI. from the sense of dangers endured, and glory
JAMESI. achieved for her people, tempered, though not
!
|
subdued, by the dread of her stern courage and
371 vindictive rigour. For James not a particle of
loyal affection lived in the hearts of the nation,
while his easy and pusillanimous, though choleric
disposition, had gradually diminished those senti-
ments of apprehension which royal frowns used to
excite. The commons, after some angry speeches,
resolved to make known to the king through the
speaker their desire, that he would listen to no
private reports, but take his information of the
house's meaning from themselves; that he would
give leave to such persons as he had blamed for
their speeches to clear themselves in his hearing;
and that he would by some gracious message make
known his intention that they should deliver their
opinions with full liberty, and without fear. The
speaker next day communicated a slight but civil
answer he had received from the king, importing
his wish to preserve their privileges, especially
that of liberty of speech.* This, however, did
not prevent his sending a message a few days
afterwards, commenting on their debates, and on
some clauses they had introduced into the bill for
the abolition of all hostile laws. And a petition
having been prepared by a committee under the
house's direction for better execution of the laws
against recusants, the speaker, on its being moved
that the petition be read, said that his majesty had
taken notice of the petition as a thing belonging
* Commons' Journals, p. 370.
+ P. 377.
FROM HENRY VII. TO GEORGE II.
425
VI.
to himself, concerning which it was needless to CHAP.
press him. This interference provoked some mem-
bers to resent it, as an infringement of their li- JAMES I.
berties. The speaker replied that there were many
precedents in the late queen's time, where she had
restrained the house from meddling in politics of
divers kinds. This, as a matter of fact, was too
notorious to be denied. A motion was made for
a committee " to search for precedents of ancient
as well as later times that do concern any messages
from the sovereign magistrate, king or queen of
this realm, touching petitions offered to the house
of commons." The king now interposed by a se-
cond message, that, though the petition were such
as the like had not been read in the house, and
contained matter whereof the house could not pro-
perly take knowledge, yet if they thought good to
have it read, he was not against the reading. And
the commons were so well satisfied with this con-
cession, that no further proceedings were had;
and the petition, says the journal, was at length,
with general liking, agreed to sleep. It contained
some strong remonstrances against ecclesiastical
abuses, and in favour of the deprived and silenced
puritans, but such as the house had often before
in various modes brought forward.*
The ministry betrayed, in a still more pointed
manner, their jealousy of any interference on the
part of the commons with the conduct of public
affairs in a business of a different nature. The
pacification concluded with Spain in 1604, very
* Commons' Journals, p. 384.
426
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
much against the general wish *, had neither re-
moved all grounds of dispute between the govern-
JAMESI. ments, nor allayed the dislike of the nations.
Spain advanced in that age the most preposterous
claims to an exclusive navigation beyond the
tropic, and to the sole possession of the American
continent; while the English merchants, mindful
of the lucrative adventures of the queen's reign,
could not be restrained from trespassing on the
rich harvest of the Indies by contraband and some-
times piratical voyages. These conflicting interests
led of course to mutual complaints of maritime
tyranny and fraud; neither likely to be ill founded,
where the one party was as much distinguished for
the despotic exercise of vast power, as the other by
boldness and cupidity. It was the prevailing bias
of the king's temper to keep on friendly terms with
Spain, or rather to court her with undisguised and
impolitic partiality. But this so much thwarted
the prejudices of his subjects that no part perhaps
of his administration had such a disadvantageous
effect on his popularity. The merchants presented
to the commons, in this session of 1607, a petition
* James entertained the strange
notion that the war with Spain
ceased by his accession to the
throne. By a proclamation dated
23d June, 1603, he permits his
subjects to keep such ships as had
been captured by them before the
24th April, but orders all taken
since to be restored to the owners.
Rymer, xvi. 516. He had been
used to call the Dutch rebels, and
was probably kept with difficulty
by Cecil from displaying his par-
tiality still more outrageously.
Carte, iii. 714. All the council,
except this minister, are said to
have been favourable to peace. Id.
938.
+ Winwood, vol. ii. 100. 152,
&c. Birch's Negotiations of Ed-
mondes. If we may believe sir
Charles Cornwallis, our ambassa-
dor at Madrid, “ England never
lost such an opportunity of win-
ning honour and wealth, as by re-
linquishing the war." The Spa-
niards were astonished how peace
could have been obtained on such
Win-
advantageous conditions.
wood, p. 75.
FROM HENRY VII. TO GEORGE II.
VI.
upon the grievances they sustained from Spain, CHAP.
entering into such a detail of alledged cruelties as
was likely to exasperate that assembly. Nothing JAMES I.
however was done for a considerable time, when
after receiving the report of a committee on the
subject, the house prayed a conference with the
lords. They, who acted in this and the preceding
session as the mere agents of government, intimated
in their reply, that they thought it an unusal mat-
ter for the commons to enter upon, and took time
to consider about a conference. After some delay
this was granted, and sir Francis Bacon reported
its result to the lower house. The earl of Salisbury
managed the conference on the part of the lords.
The tenor of his speech, as reported by Bacon, is
very remarkable. After discussing the merits of
the petition, and considerably extenuating the
wrongs imputed to Spain, he adverted to the cir-
cumstance of its being presented to the commons.
The crown of England was invested, he said, with
an absolute power of peace and war; and inferred,
from a series of precedents which he vouched, that
petitions made in parliament, intermeddling with
such matters, had gained little success; that great
inconveniences must follow from the public debate
of a king's designs, which, if they take wind, must
be frustrated; and that if parliaments have ever
been made acquainted with matter of peace or
war in a general way, it was either when the king
and council conceived that it was material to have
some declaration of the zeal and affection of the
people, or else when they needed money for the
charge of a war, in which case they should be sure
enough to hear of it; that the lords would make a
428
THE CONSTITUTIONAL HISTORY OF ENGLAND
ཐ་
VI.
CHAP. good construction of the commons' desire, that it
sprang from a forwardness to assist his majesty's
JAMESI. future resolutions, rather than a determination to
do that wrong to his supreme power which haply
might appear to those who were prone to draw
evil inferences from their preceedings. The earl
of Northampton, who also bore a part in this con-
ference, gave as one reason among others, why
the lords could not concur in forwarding the pe-
tition to the crown, that the composition of the
house of commons was in its first foundation in-
tended merely to be of those that have their re-
sidence and vocation in the places for which they
serve, and therefore to have a private and local
wisdom according to that compass, and so not fit
to examine or determine secrets of state which
depend upon such variety of circumstances; and
although he acknowledged that there were divers
gentlemen in the house of good capacity and in-
sight into matters of state, yet that was the acci-
dent of the person, and not the intention of the
place; and things were to be taken in the insti-
tution, and not in the practice. The commons
seemed to have acquiesced in this rather con
temptuous treatment. Several precedents indeed
might have been opposed to those of the earl of
Salisbury, wherein the commons, especially under
Richard II. and Henry VI., had assumed a right
of advising on matters of peace and war. But the
more recent usage of the constitution did not war-
rant such an interference. It was however rather
a bold assertion, that they were not the proper
channel through which public grievances, or those
S
FROM HENRY VII. TO GEORGE II.
4.29
of so large a portion of the community as the mer-
chants, ought to be represented to the throne.*
CHAP.
VI.
tions on
out consent
of parlia-
ment.
During the interval of two years and a half that JAMESI.
elapsed before the commencement of the next Imposi-
session, a decision had occurred in the court of merchant-
exchequer, which threatened the entire overthrow dise with-
of our constitution. It had always been deemed
the indispensable characteristic of a limited mon-
archy, however irregular and inconsistent might be
the exercise of some prerogatives, that no money
could be raised from the subject without the con-
sent of the estates. This essential principle was
settled in England, after much contention, by the
statute entitled Confirmatio Chartarum, in the
25th year of Edward I. More comprehensive and
specific in its expression than the Great Charter
of John, it abolishes all " aids, tasks, and prises,
unless by the common assent of the realm, and for
the common profit thereof, saving the ancient aids
and prises due and accustomed;" the king expli-
citly renouncing the custom he had lately set on
wool. Thus the letter of the statute and the his-
tory of the times conspire to prove, that imposi-
tions on merchandise at the ports, to which alone
the word prises was applicable, could no more be
levied by the royal prerogative after its enactment,
than internal taxes upon landed or moveable pro-

* Bacon, i. 663.; Journals,
p.341. Carte says, on the authority
of the French ambassador's de-
spatches, that the ministry secretly
put forward this petition of the
commons in order to frighten the
Spanish court into making com-
pensation to the merchants, where-
in they succeeded. iii. 766. This
is rendered very improbable by
It was
Salisbury's behaviour.
Carte's mistake to rely too much
on the despatches he was permitted
to read in the Dépôt des Affaires
Etrangères; as if an ambassador
were not liable to be deceived by
rumours in a country of which he
has in general too little knowledge
to correct them.
430
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. perty, known in that age by the appellations of
aids and tallages. But as the former could be
JAMES I. assessed with great ease, and with no risk of im-
mediate resistance, and especially as certain an-
cient customs were preserved by the statute*, so
that a train of fiscal officers, and a scheme of re-
gulations and restraints upon the export and im-
port of goods became necessary, it was long before
the sovereigns of this kingdom could be induced
constantly to respect this part of the law. Hence
several remonstrances from the commons under
Edward III. against the maletolts or unjust exact-
tions upon wool, by which, if they did not obtain
more than a promise of effectual redress, they
kept up their claim, and perpetuated the recogni-
tion of its justice, for the sake of posterity. They
became powerful enough to enforce it under Rich-
ard II., in whose time there is little clear evidence.
of illegal impositions; and from the accession of
the house of Lancaster, it is undeniable that they
ceased altogether. The grant of tonnage and
poundage for the king's life, which from the time.
of Henry V. was made in the first parliament of
every reign, might perhaps be considered as a tacit
compensation to the crown for its abandonment of
these irregular extortions.
* There was a duty on wool,
woolfells, and leather, called mag-
na, or sometimes antiqua custuma,
which is said in Dyer to have been
by prescription, and by the barons
in Bates's case to have been im-
posed by the king's prerogative.
As this existed before the 25th
Edward I., it is not very material
whether it were so imposed, or
granted by parliament. During
the discussion, however, which
took place in 1610, a record was
discovered of 3 Edw. I. proving it
to have been granted par tous les
grauntz del realme, par la prière
des comunes des marchants de
tout Engleterre. Hale, 146. The
prisage of wines, or duty of two
tons from every vessel, is consider-
ably more ancient; but how the
crown came by this right does not
appear.
FROM HENRY VII. TO GEORGE II.
431
VI.
Henry VII., the most rapacious, and Henry VIII., CHAP.
the most despotic, of English monarchs, did not
presume to violate this acknowledged right. The JAMES I.
first who had again recourse to this means of en-
hancing the revenue was Mary, who, in the year
1557, set a duty upon cloths exported beyond
seas, and afterwards another on the importation of
French wines. The former of those was probably
defended by arguing, that there was already a duty
on wool; and if cloth, which was wool manufac-
tured, could pass free, there would be a fraud on
the revenue. The merchants however did not ac-
quiesce in this arbitrary imposition, and as soon
as Elizabeth's accession gave hopes of a restor-
ation of English government, they petitioned to be
released from this burthen. The question appears,
by a memorandum in Dyer's Reports, to have
been extra-judicially referred to the judges, unless
it were rather as assistants to the privy council
that their opinion was demanded. This entry
concludes abruptly, without any determination of
the judges.* But we may presume, that if any
such had been given in favour of the crown, it
would have been made public. And that the ma-
jority of the bench would not have favoured this
claim of the crown, we may strongly presume from
their doctrine in a case of the same description,
wherein they held the assessment of treble custom
on aliens for violation of letters patent to be ab-
solutely against the law. The administration
*
Dyer, fol. 165. An argument
of the great lawyer Plowden in this
case of the queen's increasing the
duty on cloths is in the British
Museum, Hargrave MSS. 32., and
seems, as far as the difficult hand-
writing permitted me to judge, ad-
verse to the prerogative.
+ This case I have had the good
fortune to discover in one of Mr.
432
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. however would not release this duty, which con-
tinued to be paid under Elizabeth. She also im-
JAMES I. posed one upon sweet wines. We read of no con-
plaint in parliament against this novel taxation;
but it is alluded to by Bacon in one of his tracts
during the queen's reign, as a grievance alledged
by her enemies. He defends it, as laid only on a
foreign merchandise, and a delicacy which might
be forborne.* But considering Elizabeth's un-
willingness to require subsidies from the common,
and the rapid increase of foreign traffic during
her reign, it might be asked why she did not ex-
tend these duties to other commodities, and se-
cure to herself no trifling annual revenue. What
answer can be given, except that, aware how little
any unparliamentary levying of money could be
supported by law or usage, her ministers shunned
to excite attention to these innovations which
Hargrave's MSS. in the Museum,
132. fol. 66. It is in the hand-
writing of chief justice Hyde
(temp. Car. I.), who has written
in the margin:
"This is the report
of a case in my lord Dyer's writ-
ten original, but is not in the
printed books." The reader will
judge for himself why it was
omitted, and why the entry of the
former case breaks off so abruptly.
tr
Philip and Mary granted to the
town of Southampton that all
malmsy wines should be landed at
that port under penalty of paying
treble custom. Some merchants
of Venice having landed wines else-
where, an information was brought
against them in the exchequer,
1 Eliz., and argued several times
in the presence of all the judges.
Eight were of opinion against the
letters patent, among whom Dyer
and Catlin, chief justices, as well
for the principal matter of restraint
in the landing of malmsies at the
will and pleasure of the merchants,
for that it was against the laws,
statutes, and customs of the realmi,
Magna charta, c. 30.; 9 E. 3.;
14 E. 3.; 25 E. 3. c. 2. ; 27 E. 3.;
28 E. 3.; 2 R. 2. c. 1. and others,
as also in the assessment of treble
custom, which is merely against
the law; also the prohibition above
said was held to be private, and
not public. But baron Lake e
contra, and Browne J. censuit de-
liberandum. And after, at an after
meeting the same Easter term at
Serjeants' Inn, it was resolved as
above. And after by parliament,
5 Eliz. the patent was confirmed
and affirmed against aliens."
*Bacon, i. 521.
FROM HENRY VII. TO GEORGE II.
433
VI.
wanted hitherto the stamp of time to give them CHAP.
prescriptive validity ? *
James had imposed a duty of five shillings per JAMES I.
hundred weight on currants, over and above that
of two shillings and sixpence, which was granted
by the statute of tonnage and poundage.† Bates,
a Turkey merchant, having refused payment, an
information was exhibited against him in the ex-
chequer. Judgment was soon given for the crown.
The courts of justice, it is hardly necessary to say,
did not consist of men conscientiously impartial
between the king and the subject; some corrupt
with hope of promotion, many more fearful of re-
moval, or awe-struck by the frowns of power. The
speeches of chief baron Fleming, and of baron
Clark, the only two that are preserved in Lane's
Reports, contain propositions still worse than their
decision, and wholly subversive of all liberty.
"The king's power," it was said, "is double-
ordinary and absolute; and these have several laws
and ends. That of the ordinary is for the profit of
particular subjects, exercised in ordinary courts,
and called common law, which cannot be changed
in substance without parliament. The king's ab-
solute power is applied to no particular person's
benefit, but to the general safety; and this is not
directed by the rules of common law, but more
properly termed policy and government, varying
*Hale's Treatise on the Cus-
toms, part 3.; in Hargrave's Collec-
tion of Law Tracts. See also the
preface by Hargrave to Bates's case,
in the State Trials, where this most
important question is learnedly ar-
gued.
† He had previously published
VOL. I.
F F
letters patent, setting a duty of six
shillings and eight-pence a pound,
in addition to two-pence already
payable, on tobacco; intended no
doubt to operate as a prohibition
of a drug he so much hated. Ry-
mer, xvi. 602.
434
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. according to his wisdom for the common good;
and all things done within those rules are lawful.
JAMESI. The matter in question is matter of state, to be
ruled according to policy by the king's extraor
dinary power.
All customs (duties so called) are
the effects of foreign commerce; but all affairs of
commerce and all treaties with foreign nations
belong to the king's absolute power; he therefore
who has power over the cause, must have it also
over the effect. The sea-ports are the king's gates,
which he may open and shut to whom he pleases."
The ancient customs on wine and wool are as-
serted to have originated in the king's absolute
power, and not in a grant of parliament; a point,
whether true or not, of no great importance, if it
were acknowledged, that many statutes had sub-
sequently controlled this prerogative. But these
judges impugned the authority of statutes dero-
gatory to their idol. That of 45 E. 3. c. 4., that no
new imposition should be laid on wool or leather,
one of them maintains, did not bind the king's
successors; for the right to impose such duties
was a principal part of the crown of England,
which the king could not diminish. They extolled
the king's grace in permitting the matter to be
argued, commenting at the same time on the in-
solence shown in disputing so undeniable a claim.
Nor could any judges be more peremptory in re-
sisting an attempt to overthrow the most established
precedents, than were these barons of king James's
exchequer, in giving away those fundamental li-
berties in which every Englishman was inherited.*
* State Trials, ii. 371.
FROM HENRY VII. TO GEORGE II.
435
CHAP.
VI.
The immediate consequence of this decision was
a book of rates, published in July 1608, under the
authority of the great seal, imposing heavy duties JAMESI.
upon almost all merchandise.* But the judgment
of the court of exchequer did not satisfy men
jealous of the crown's encroachments. The impo-
sition on currants had been already noticed as a
grievance by the house of commons in 1606. But
the king answered that the question was in a course
for legal determination; and the commons them-
selves, which is worthy of remark, do not appear
to have entertained any clear persuasion that the
impost was contrary to law.† In the session, Remon
however, which began in February 1610, they had
acquired new light by sifting the legal authorities
and instead of submitting their opinions to the
courts of law, which were in truth little worthy of
such deference, were the more provoked to re-
monstrate against the novel usurpation those servile
men had endeavoured to prop up. Lawyers, as
learned probably as most of the judges, were not
wanting in their ranks. The illegality of impo-
sitions was shown in two elaborate speeches by
Hakewill and Yelverton.‡ And the country gen-
*Hale's Treatise on the Cus-
toms. These were perpetual, "to
be for ever hereafter paid to the
king and his successors, on pain of
his displeasure." State Trials, 481.
Journals, 295. 297.
† Mr. Hakewill's speech, though
long, will repay the diligent read-
er's trouble, as being a very lu-
minous and masterly statement of
this
great argument. State Trials,
407. The extreme inferiority
of Bacon, who sustained the cause
of
prerogative, must be apparent
to every one. Id. 345. Sir John
Davis makes somewhat a better
defence; his argument is, that the
king may lay an embargo on trade,
so as to prevent it entirely, and
consequently may annex conditions
to it. Id. 399. But to this it was
answered, that the king can only
lay a temporary embargo, for the
sake of some public good, not pro-
hibit foreign trade altogether.
As to the king's prerogative of
restraining foreign trade, see ex-
tracts from Hale's MS. Treatise de
strances
positions in
against im-
session of
1610.
FF 2
436
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. tlemen, who, though less deeply versed in pre-
VI. cedents, had too good sense not to discern that
JAMESI. the next step would be to levy taxes on their
lands, were delighted to find that there had been
an old English constitution not yet abrogated,
which would bear them out in their opposition.
When the king therefore had intimated by a mes
sage, and afterwards in a speech, his command not
to enter on the subject, couched in that arrogant
tone of despotism which this absurd prince af
fected*, they presented a strong remonstrance
against this inhibition; claiming "as an ancient,
general, and undoubted right of parliament to de-
bate freely all matters which do properly concern
the subject; which freedom of debate being once
foreclosed, the essence of the liberty of parliament
is withal dissolved. For the judgment given by
the exchequer, they take not on them to review
it, but desire to know the reasons whereon it was
grounded; especially as it was generally appre-
hended that the reasons of that judgment extended
much farther, even to the utter ruin of the an
cient liberty of this kingdom, and of the subjects'
right of property in their lands and goods."+ "The
Jure Coronæ, in Hargrave's Pre-
face to Collection of Law Tracts,
p. xxx. &c. It seems to have been
chiefly as to exportation of corn.
* Aikin's Memoirs of James I.
i. 350. This speech justly gave
offence. "The 21st of this pre-
sent (May, 1610)," says a corre-
spondent of sir Ralph Winwood,
❝he made another speech to both
the houses, but so little to their sa-
tisfaction that I hear it bred gene-
rally much discomfort to see our
monarchical power and royal pre-
rogative strained so high, and made
so transcendent every way, that if
the practice should follow the po-
sitions, we are not likely to leave
to our successors that freedom we
received from our forefathers; nor
make account of any thing wehave,
longer than they list that govern."
Winwood, iii. 175. The traces of
this discontent appear in short
notes of the debate. Journals,
p. 430.
+ Journals, 431.
"}
FROM HENRY VII. TO GEORGE II.
4.37
VI.
policy and constitution of this your kingdom (they CHAP.
say) appropriates unto the kings of this realm,
with the assent of the parliament, as well the sove- JAMES I.
reign power of making laws, as that of taxing, or
imposing upon the subjects' goods or merchan-
without their consents, be
dises, as may not,
altered or changed. This is the cause that the
people of this kingdom, as they ever showed them-
selves faithful and loving to their kings, and ready
to aid them, in all their just occasions, with vo-
luntary contributions; so have they been ever care-
ful to preserve their own liberties and rights, when
any thing hath been done to prejudice or impeach
the same. And therefore when their princes,
occasioned either by their wars, or their over-great
bounty, or by any other necessity, have without
consent of parliament set impositions, either within
the land, or upon commodities either exported or
imported by the merchants, they have, in open
parliament, complained of it, in that it was done
without their consents: and thereupon never failed
to obtain a speedy and full redress, without any
claim made by the kings, of any power or prero-
gative in that point. And though the law of pro-
perty be original, and carefully preserved by the
common laws of this realm, which are as ancient
as the kingdom itself; yet these famous kings, for
the better contentment and assurance of their
loving subjects, agreed, that this old fundamental
right should be further declared and established
by act of parliament. Wherein it is provided, that
no such charges should ever be laid upon the peo-
ple, without their common consent, as may ap-
pear by sundry records of former times.
We,
FF3
438
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. therefore, your majesty's most humble commcns
assembled in parliament, following the example of
JAMES I. this worthy case of our ancestors, and out of a
duty of those for whom we serve, finding that your
majesty, without advice or consent of parliament,
hath lately, in time of peace, set both greater im-
positions, and far more in number, than any your
noble ancestors did ever in time of war, have, with
all humility, presumed to present this most just
and necessary petition unto your majesty, that all
impositions set without the assent of parliament
may be quite abolished and taken away; and that
your majesty, in imitation likewise of your noble
progenitors, will be pleased, that a law be made
during this session of parliament, to declare that
all impositions set, or to be set upon your people,
their goods or merchandizes, save only by com-
mon consent in parliament, are and shall be
void." *
They proceeded accordingly, after a
pretty long time occupied in searching for pre-
cedents, to pass a bill taking away impositions ;
which, as might be anticipated, did not obtain the
concurrence of the upper house.
Doctrine
of king's
absolute
power
The commons had reason for their apprehen-
sions. This doctrine of the king's absolute power
Inculcated beyond the law had become current with all who
by clergy. sought his favour, and especially with the high
church party.
The convocation had in 1606
drawn up a set of canons, denouncing as erroneous
a number of tenets hostile in their opinion to royal
government. These canons, though never authen-
tically published till a later age, could not have
* Somers Tracts, vol. ii. 159. ; in the Journals much shorter.
FROM HENRY VII. TO GEORGE II.
439
VI.
been secret. They consist of a series of proposi- CHAP.
tions or paragraphs, to each of which an anathema
of the opposite error is attached; deducing the JAMES I.
orgin of government from the patriarchal regi-
men of families, to the exclusion of any popular
choice. In those golden days the functions both
of king and priest were, as they term it, "the pre-
rogatives of birthright;" till the wickedness of
mankind brought in usurpation, and so confused
the pure stream of the fountain with its muddy
runnels, that we must now look to prescription
for that right which we cannot assign to primoge-
niture. Passive obedience in all cases without ex-
ception to the established monarch is inculcated.*
It is not impossible that a man might adopt this
theory of the original of government, unsatisfactory
as it must appear on reflection, without deeming
it incompatible with our mixed and limited mon-
archy. But its tendency was evidently in a con-
trary direction. The king's power was of God,
that of the parliament only of man, obtained per-
haps by rebellion; but out of rebellion what right
could spring? Or were it even by voluntary con-
cession, could a king alienate a divine gift, and
tr
* These canons were published
in 1690 from a copy belonging to
bishop Overall, with Sancroft's im-
primatur. The titlepage runs in an
odd expression: Bishop Over-
all's Convocation-Book concerning
the Government of God's Catholic
Church and the Kingdoms of the
whole World." The second canon
is as follows: "If any man shall
affirm that men at the first ran up
and down in woods and fields, &c.
until they were taught by expe-
rience the necessity of government;
and that therefore they chose some
among themselves to order and
rule the rest, giving them power
and authority so to do; and that
consequently all civil power, ju-
risdiction, and authority, was first
derived from the people and dis-
ordered multitude, or either is ori-
ginally still in them, or else is de-
duced by their consent naturally
from them, and is not God's ordi-
nance, originally descending from
him and depending upon him, he
doth greatly err."
P. 3.
FF
4
440
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. infringe the order of Providence? Could his grants,
if not in themselves null, avail against his posterity,
JAMESI. heirs like himself under the great feoffment of
creation? These consequences were at least plau-
sible; and some would be found to draw them.
And indeed if they were never explicitly laid
down, the mere difference of respect with which
mankind could not but contemplate a divine and
human, a primitive or paramount, and a derivative
authority, would operate as a prodigious advantage
in favour of the crown.
The real aim of the clergy in thus enormously
enhancing the pretensions of the crown was to gain
its sanction and support for their own. Schemes
of ecclesiastical jurisdiction, hardly less extensive
than had warmed the imagination of Becket, now
floated before the eyes of his successor Bancroft.
He had fallen indeed upon evil days, and perfect
independence on the temporal magistrate could
no longer be attempted; but he acted upon the
refined policy of making the royal supremacy over
the church, which he was obliged to acknowledge,
and professed to exaggerate, the very instrument
of its independence upon the law. The favourite
object of the bishops in this age was to render their
ecclesiastical jurisdiction, no part of which had
been curtailed in our hasty reformation, as unre-
strained as possible by the courts of law. These
had been wont, down from the reign of Henry II.,
to grant writs of prohibition, whenever the spiritual
courts transgressed their proper limits; to the great
benefit of the subject, who would otherwise have
lost his birthright of the common law, and been
exposed to the defective, not to say iniquitous and
FROM HENRY VII. TO GEORGE II.
441
CHAP.
VI.
Cleri.
corrupt, procedure of the ecclesiastical tribunals.
But the civilians, supported by the prelates, loudly
complained of these prohibitions, which seem to JAMESI.
have been much more frequent in the latter years
of Elizabeth and the reign of James, than in any
other period. Bancroft accordingly presented to Articuli
the star-chamber, in 1605, a series of petitions in
the name of the clergy, which lord Coke has deno-
minated Articuli Cleri, by analogy to some similar
representations of that order under Edward II.*
In these it was complained that the courts of law
interfered by continual prohibitions with a juris-
diction as established and as much derived from
the king as their own, either in cases which were
clearly within that jurisdiction's limits, or on the
slightest suggestion of some matter belonging to
the temporal court. It was hinted that the whole
course of granting prohibitions was an encroach-
ment of the king's bench and common pleas, and
that they could regularly issue only out of chan-
cery. To each of these articles of complaint, ex-
tending to twenty-five, the judges made separate
answers, in a rough, and, some might say, a rude
style, but pointed and much to the purpose; vin-
dicating in every instance their right to take cog-
nisance of every collateral matter springing out of
an ecclesiastical suit, and repelling the attack upon
their power to issue prohibitions, as a strange pre-
sumption. Nothing was done, nor, thanks to the
firmness of the judges, could be done, by the council
* Coke's 2d İnstitute, 601.
Collier, 688. State Trials, ii. 131.
See too an angry letter of Bancroft,
written about 1611 (Strype's Life
of Whitgift, Append. 227.), wherein
he inveighs against the common
lawyers and the parliament.
442
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. in this respect. For the clergy had begun by ad-
vancing that the king's authority was sufficient to
JAMES I. reform what was amiss in any of his own courts,
all jurisdiction spiritual and temporal being an-
nexed to his crown. But it was positively and
repeatedly denied in reply, that any thing less than
an act of parliament could alter the course of jus-
tice established by law. This effectually silenced
the archbishop, who knew how little he had to
hope from the commons. By the pretensions made
for the church in this affair, he exasperated the
judges, who had been quite sufficiently disposed
to second all rigorous measures against the puritan
ministers, and aggravated that jealousy of the
ecclesiastical courts which the common lawyers
had long entertained.
Cowell's
Interpreter.
An opportunity was soon given to those who
disliked the civilians, that is, not only to the com-
mon lawyers, but to all the patriots and puritans in
England, by an imprudent publication of a doctor
Cowell. This man, in a law dictionary dedicated
to Bancroft, had thought fit to insert passages of a
tenor conformable to the new creed of the king's
absolute or arbitrary power. Under the title King,
it is said:" He is above the law by his absolute
power; and though for the better and equal course
in making laws he do admit the three estates unto
council, yet this in divers learned men's opinion is
not of constraint, but of his own benignity, or by
reason of the promise made upon oath at the time
of his coronation. And though at his coronation
he take an oath not to alter the laws of the land,
yet this oath notwithstanding, he may alter or sus-
pend any particular law that seemeth hurtful to
FROM HENRY VII. TO GEORGE II.
44.3
CHAP.
VI.
the public estate. Thus much in short, because I
have heard some to be of opinion that the laws are
above the king." And in treating of the Parlia- JAMES I.
ment, Cowell observes: "Of these two one must
be true, either that the king is above the parlia-
ment, that is, the positive laws of his kingdom, or
else that he is not an absolute king. And there-
fore though it be a merciful policy and also a po-
litic mercy, not alterable without great peril, to
make laws by the consent of the whole realm, be-
cause so no part shall have cause to complain of a
partiality, yet simply to bind the prince to or by
these laws were repugnant to the nature and con-
stitution of an absolute monarchy." It is said
again, under the title Prerogative, that "the king,
by the custom of this kingdom, maketh no laws
without the consent of the three estates, though he
may quash any law concluded of by them;" and
that he "holds it incontrollable, that the king of
England is an absolute king."*
Such monstrous positions from the mouth of a
man of learning and conspicuous in his profession,
who was surmised to have been instigated as well
as patronised by the archbishop, and of whose
book the king was reported to have spoken in
terms of eulogy, gave very just scandal to the
house of commons. They solicited and obtained
a conference with the lords, which the attorney-
general, sir Francis Bacon, managed on the part of
* Cowell's Interpreter, or Law
Dictionary; edit.ˆ 1607. These
passages are expunged in the later
editions of this useful book. What
the author says of the writ of pro-
hibition, and the statutes of præ-
munire, under these words, was
very invidious towards the com-
mon lawyers, treating such re-
straints upon the ecclesiastical
jurisdiction as necessary in former
ages, but now become useless since
the annexation of the supremacy
to the crown.
444
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
the lower house; a remarkable proof of his adroit-
ness and pliancy. James now discovered that it was
JAMES I. necessary to sacrifice this too unguarded advocate
of prerogative: Cowell's book was suppressed by
proclamation, for which the commons returned
thanks, with great joy at their victory.*
It is the evident policy of every administration,
in dealing with the house of commons, to humour
them in every thing that touches their pride and
tenaciousness of privilege, never attempting to
protect any one who incurs their displeasure by
want of respect. This seems to have been under-
stood by the earl of Salisbury, the first English
minister who, having long sat in the lower house,
had become skilful in those arts of management
which his successors have always reckoned so es-
sential a part of their mystery. He wanted a con-
siderable sum of money to defray the king's debts,
which, on his coming into the office of lord trea-
surer after lord Buckhurst's death, he had found to
amount to £1,300,000, about one third of which
was still undischarged. The ordinary expense
also surpassed the revenue by £81,000. It was
impossible that this could continue, without in-
volving the crown in such embarrassments as
would leave it wholly at the mercy of parliament.
Cecil therefore devised the scheme of obtaining a
perpetual yearly revenue of £200,000, to be granted
* Commons' Journals, 339. and
afterwards to 415. The authors of
the Parliamentary History say
there is no further mention of the
business after the conference, over-
looking the most important cir-
cumstance, the king's proclamation
suppressing the book, which yet is
mentioned by Rapin and Carte,
though the latter makes a false and
disingenuous excuse for Cowell.
Vol. iii. p. 798. Several passages
concerning this affair occur in
Winwood's Memorials, to which
I refer the curious reader. Vol. iii.
p. 125. 129. 131. 136, 137. 145.
-
FROM HENRY VII. TO GEORGE II.
445
VI.
once for all by parliament; and the better to in- CHAP.
cline the house to this high and extraordinary de-
mand, he promised in the king's name to give all JAMESI.
the redress and satisfaction in his power for any
grievances they might bring forward.*
complaints
This offer on the part of government seemed Renewed
to make an opening for a prosperous adjustment of the com-
of the differences which had subsisted ever since mons.
the king's accession. The commons accordingly,
postponing the business of a subsidy, to which the
courtiers wished to give priority, brought forward
a host of their accustomed grievances in ecclesias-
tical and temporal concerns. The most essential
was undoubtedly that of impositions, which they
sent up a bill to the lords, as above mentioned, to
take away. They next complained of the eccle-
siastical high commission court, which took upon
itself to fine and imprison, powers not belonging
to their jurisdiction, and passed sentences without
appeal, interfering frequently with civil rights,
and in all its procedure neglecting the rules and
precautions of the common law. They dwelt on
the late abuse of proclamations assuming the cha-
racter of laws. Amongst many other points of
happiness and freedom," it is said, "which your
majesty's subjects of this kingdom have enjoyed
under your royal progenitors, kings and queens of
this realm, there is none which they have accounted
more dear and precious than this, to be guided
and governed by the certain rule of the law, which
giveth both to the head and members that which
of right belongeth to them, and not by any un-
(C
* Winwood, iii. 123.
446
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. certain or arbitrary form of government, which, as
it hath proceeded from the original good consti-
JAMESI. tution and temperature of this estate, so hath it
been the principal means of upholding the same,
in such sort as that their kings have been just, be-
loved, happy, and glorious, and the kingdom it-
self peaceable, flourishing, and durable so many
ages.
And the effect, as well of the contentment
that the subjects of this kingdom have taken in
this form of government, as also of the love, re-
spect, and duty, which they have by reason of the
same rendered unto their princes, may appear in
this, that they have, as occasion hath required,
yielded more extraordinary and voluntary contri-
bution to assist their kings, than the subjects of
any other known kingdom whatsoever. Out of
this root hath grown the indubitable right of the
people of this kingdom, not to be made subject to
any punishment that shall extend to their lives,
lands, bodies, or goods, other than such as are
ordained by the common laws of this land, or the
statutes made by their common consent in parlia-
ment. Nevertheless, it is apparent, both that pro-
clamations have been of late years much more fre-
quent than heretofore, and that they are extended,
not only to the liberty, but also to the goods, in-
heritances, and livelihood of men; some of them
tending to alter some points of the law, and make
a new; other some made, shortly after a session
of parliament, for matter directly rejected in the
same session; other appointing punishments to be
inflicted before lawful trial and conviction; some
containing penalties in form of penal statutes;
some referring the punishment of offenders to
FROM HENRY VII, TO GEORGE II.
447
CHAP.
VI.
courts of arbitrary discretion, which have laid
heavy and grievous censures upon the delinquents;
some, as the proclamation for starch, accompanied JAMES I
with letters commanding enquiry to be made
against the transgressors at the quarter-sessions;
and some vouching former proclamations to coun-
tenance and warrant the later, as by a catalogue
here underwritten more particularly appeareth.
By reason whereof there is a general fear con-
ceived and spread amongst your majesty's people,
that proclamations will, by degrees, grow up,
and increase to the strength and nature of laws;
whereby not only that ancient happiness, freedom,
will be much blemished (if not quite taken away)
which their ancestors have so long enjoyed; but
the same may also (in process of time) bring a new
form of arbitrary government upon the realm: and
this their fear is the more increased by occasion
of certain books lately published, which ascribe a
greater power to proclamations than heretofore
had been conceived to belong unto them; as also
of the care taken to reduce all the proclamations
made since your majesty's reign into one volume,
and to print them in such form as acts of parlia-
ment formerly have been, and still are used to be,
which seemeth to imply a purpose to give them
more reputation and more establishment than here-
tofore they have had."*
They proceed, after a list of these illegal pro-
clamations, to enumerate other grievances, such
as the delay of courts of law in granting writs of
prohibition and habeas corpus, the jurisdiction of
* Somers Tracts, ii. 162. State Trials, ii. 519.
448
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
the council of Wales over the four bordering shires
of Gloucester, Worcester, Hereford, and Salop*,
JAMESI. Some patents of monopolies, and a tax under the
name of a licence recently set upon victuallers.
The king answered these remonstrances with ci-
vility, making, as usual, no concession with respect
to the ecclesiastical commission, and evading some
of their other requests; but promising that his pro-
clamations should go no farther than was warranted
by law, and that the royal licences to victualiers
should be revoked.
It appears that the commons, deeming these
enumerated abuses contrary to law, were unwilling
to chaffer with the crown for the restitution of
their actual rights. There were however parts
of the prerogative which they could not dispute,
though galled by the burthen; the incidents of
feudal tenure, and purveyance. A negotiation was
accordingly commenced and carried on for some
*The court of the council of
Wales was erected by statute 34
H. 8. c. 26. for that principality
and its marches, with authority to
determine such causes and matters
as should be assigned to them by
the king, "as heretofore hath been
accustomed and used;" which im-
plies a previous existence of some
such jurisdiction. It was pre-
tended, that the four counties of
Hereford, Worcester, Gloucester,
and Salop were included within
their authority, as marches of
Wales. This was controverted in
the reign of James by the inhabit-
ants of these counties, and on re-
ference to the twelve judges, ac-
cording to lord Coke, it was resolved
that they were ancient English
shires, and not within the juris-
diction of the council of Wales;
"and yet,” he subjoins, “the com-
mission was not after reformed in
all points as it ought to have been."
Fourth Inst. 242. An elaborate
argument in defence of the juris-
diction may be found in Bacon, ii.
122. And there are many papers
on this subject in Cotton MSS.
Vitellius, C. i. The complaints of
this enactment had begun in the
time of Elizabeth. It was alledged
that the four counties had been
reduced from a very disorderly
state to tranquillity by means of
the council's jurisdiction. But,
if this were true, it did not furrish
a reason for continuing to exclude
them from the general privileges
of the common law, after the ne-
cessity had ceased. The king, how-
ever, was determined not to con-
cede this point.
cede this point. Carte, iii. 794.
FROM HENRY VII. TO GEORGE II.
449
CHAP.
VI.
for giving
feudal
time with the court, for abolishing both these, or
at least the former. The king, though he refused
to part with tenure by knight's service, which he JAMES I.
thought connected with the honour of the mon- Negotiation
archy, was induced, with some real or pretended up the
reluctance, to give up its lucrative incidents, re- revenue.
lief, primer seisin, and wardship, as well as the
right of purveyance. But material difficulties re-
curred in the prosecution of this treaty. Some
were apprehensive, that the validity of a statute
cutting off such ancient branches of prerogative
might hereafter be called in question; especially
if the root from which they sprung, tenure in ca-
pite, should still remain. The king's demands too
seemed exorbitant. He asked £200,000 as a yearly
revenue over and above €100,000, at which his
wardships were valued, and which the commons
were content to give. After some days' pause
upon this proposition, they represented to the
lords, with whom, through committees of confer-
ence, the whole' matter had been discussed, that
if such a sum were to be levied on those only who
had lands subject to wardship, it would be a bur-
then they could not endure; and that if it were
imposed equally on the kingdom, it would cause
more offence and commotion in the people than
they could risk. After a good deal of haggling,
Salisbury delivered the king's final determination
to accept of £200,000 per annum, which the com-
mons voted to grant as a full composition for
abolishing the right of wardship, and dissolving
the court that managed it, and for taking away all
purveyance; with some further concessions, and
particularly, that the king's claim to lands should
VOL. I.
G G
450
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. be bound by sixty years' prescription. Two points
yet remained, of no small moment; namely, by
JAMES I. what assurance they could secure themselves
against the king's prerogative, so often held up
by court lawyers as something uncontrollable by
statute, and by what means so great an imposition
should be levied; but the consideration of these
was reserved for the ensuing session, which was to
take place in October.* They were prorogued in
July till that month, having previously granted a
subsidy for the king's immediate exigencies. On
their meeting again, the lords began the business
by requesting a conference with the other house
about the proposed contract. But it appeared
that the commons had lost their disposition to
comply. Time had been given them to calculate
the disproportion of the terms, and the perpetual
burthen that lands held by knight's service must
endure. They had reflected too on the king's pro-
digal humour, the rapacity of the Scots in his ser-
vice, and the probability that this additional re-
venue would be wasted without sustaining the
national honour, or preventing future applications
for money. They saw that after all the specious
promises by which they had been led on, no re-
dress was to be expected as to those grievances
they had most at heart; that the ecclesiastical
courts would not be suffered to lose a jot of their
jurisdiction, that illegal customs were still to be
levied at the out-ports, that proclamations were
still to be enforced like acts of parliament. Great
* Commons' Journals for 1610,
passim. Lords' Journals, 7th May,
et post. Parl. Hist. 1124, et post.
Bacon, i. 676. Winwood, iii. 119.
et post.
FROM HENRY VII. TO GEORGE II.
451
VI.
coldness accordingly was displayed in their pro- CHAP.
ceedings; and in a short time, this distinguished
parliament, after sitting nearly seven years, was JAMESI.
dissolved by proclamation.*
Dissolution
of parlia-
of James.
It was now perhaps too late for the king, by any ment.
reform or concession, to regain that public esteem Character
which he had forfeited. Deceived by an over-
weening opinion of his own learning, which was
not inconsiderable, of his general abilities which
were far from contemptible, and of his capacity
for government, which was very small, and con-
firmed in this delusion by the disgraceful flattery
of his courtiers and bishops, he had wholly over-
looked the real difficulties of his position; as a
foreigner, rather distantly connected with the royal
stock, and as a native of a hostile and hateful
kingdom, come to succeed the most renowned of
sovereigns, and to grasp a sceptre which deep
policy and long experience had taught her ad-
mirably to wield. † The people were proud of
martial glory, he spoke only of the blessing of the
peace-makers; they abhorred the court of Spain,
* It appears by a letter of the
king, in Murden's State Papers, p.
813., that some indecent allusions
to himself in the house of commons
had irritated him. "Wherein we
have misbehaved ourselves, we
know not, nor we can never yet
learn; but sure we are, we may
say with Bellarmin in his book,
that in all the lower houses these
seven years past, especially these
two last sessions, Ego pungor, ego
carpor. Our fame and actions have
been tossed like tennis-balls among
them, and all that spite and malice
durst do to disgrace and inflame
us hath been used. To be short,
this lower house by their behaviour
have perilled and annoyed our
health, wounded our reputation,
emboldened all ill-natured people
encroached upon many of our pri-
vileges, and plagued our people
with their delays. It only resteth
now, that you labour all you can
to do that you think best to the
repairing of our estate."
"Your queen," says lord Thos.
Howard, in a letter, "did talk of
her subjects' love and good affec-
tion, and in good truth she aimed
well; our king talketh of his sub-
jects' fear and subjection, and herein
I think he doth well too, as long
as it holdeth good." Nuga An-
tiquæ, i. 395.
G G 2
452
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. he sought its friendship; they asked indulgence
VI. for scrupulous consciences, he would bear no
JAMESI. deviation from conformity; they writhed under
Death of
bury.
the yoke of the bishops, whose power he thought
necessary to his own; they were animated by a
persecuting temper towards the catholics, he was
averse to extreme rigour; they had been used to
the utmost frugality in dispensing the public trea-
sure, he squandered it on unworthy favourites;
they had seen at least exterior decency of morals
prevail in the queen's court, they now heard only
of its dissoluteness and extravagance *; they had
imbibed an exclusive fondness for the common
law as the source of their liberties and privileges;
his churchmen and courtiers, but none more than
himself, talked of absolute power and the impre-
scriptible rights of monarchy.†
James lost in 1611 his son prince Henry, and
lord Salis- in 1612 the lord treasurer Salisbury. He showed
little regret for the former, whose high spirit and
great popularity afforded a mortifying contrast;
* The court of James I. was in-
comparably the most disgraceful
scene of profligacy which this
country has ever witnessed; equal
to that of Charles II. in the laxity
of female virtue, and without any
sort of parallel in some other re-
spects. Gross drunkenness is im-
puted even to some of the ladies
who acted in the court pageants,
Nugæ Antiquæ, i. 348., which Mr.
Gifford, who seems absolutely en-
raptured with this age and its
manners, might as well have re-
membered. Life of Ben Jonson,
p. 231. &c. The king's prodigality
is notorious.
+“It is atheism and blasphemy,"
he says in a speech made in the
star-chamber, 1616, "to dispute
what God can do; good Christians
content themselves with his will
revealed in his word; so it is pre-
sumption and high contempt in a
subject to dispute what a king can
do, or say that a king cannot do
this or that." King James's works,
p. 557.
It is probable that his familiar
conversation was full of this ro-
domontade, disgusting and con-
temptible from so wretched a pe-
dant, as well as offensive to the
indignant ears of those who knew
and valued their liberties. The
story of bishops Neile and An-
drews is far too trite for repeti-
tion.
FROM HENRY VII. TO GEORGE II.
453
CHAP.
VI.
especially as the young prince had not taken suffi-
cient pains to disguise his contempt for his father.*
Salisbury was a very able man, to whom perhaps JAMES I.
his contemporaries did some injustice. The mi-
nisters of weak and wilful monarchs are made
answerable for the mischiefs they are compelled
to suffer, and gain no credit for those which they
prevent. Cecil had made personal enemies of
those who had loved Essex or admired Raleigh,
as well as those who looked invidiously on his ele-
vation. It was believed that the desire shown by
the house of commons to abolish the feudal ward-
ships, proceeded in a great measure from the cir-
cumstance that this obnoxious minister was master
of the court of wards; an office both lucrative and
productive of much influence. But he came into Foreign
the scheme of abolishing it with a readiness that politics of
did him credit. His chief praise however was his ment.
management of continental relations. The only
minister of James's cabinet who had been trained
in the councils of Elizabeth, he retained some of
her jealousy of Spain, and of her regard for the
protestant interests. The court of Madrid, aware
both of the king's pusillanimity and of his favour-
able dispositions, affected a tone in the conferences
held in 1604 about a treaty of peace, which Eliza-
beth would have resented in a very different man-
ner. On this occasion, he not only deserted the
United Provinces, but gave hopes to Spain that
* Carte, iii. 747. Birch's Life of
P. Henry, 405. Rochester, three
days after, directed sir Thomas
Edmondes at Paris to commence a
negotiation for a marriage between
prince Charles and the second
daughter of the late king of
France. But the ambassador had
more sense of decency, and de-
clined to enter on such an affair at
that moment.
+ Winwood, vol. ii. Carte, iii.
the govern-
GG
3
454
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. he might, if they persevered in their obstinacy,
take part against them. Nor have I any doubt that
JAMES I. his blind attachment to that power would have
precipitated him into a ruinous connexion, if
Cecil's wisdom had not influenced his councils.
During this minister's life, our foreign politics
seem to have been conducted with as much firm-
ness and prudence as his master's temper would
allow; the mediation of England was of consider
able service in bringing about the great truce of
twelve years between Spain and Holland in 1609;
and in the dispute which sprang up soon afterwards
concerning the succession to the duchies of Cleves
and Juliers, a dispute which threatened to mingle
in arms the catholic and protestant parties through-
749. Watson's Hist. of Philip III.,
Appendix. In some passages of
this negotiation Cecil may appear
not wholly to have deserved the
character I have given him for ad-
hering to Elizabeth's principles of
policy. But he was placed in a
difficult position, not feeling him-
self secure of the king's favour,
which, notwithstanding his great
previous services, that capricious
prince, for the first year after his
accession, rather sparingly afforded;
as appears from the Memoirs of
Sully, I. 14., and Nugæ Antiquæ,
i. 345. It may be said that Cecil
was as little Spanish, just as Wal-
pole was as little Hanoverian, as
the partialities of their respective
sovereigns would permit, though
too much so in appearance for their
own reputation. It is hardly nc-
cessary to observe, that James and
the kingdom were chiefly indebted
to Cecil for the tranquillity that
attended the accession of the for-
mer to the throne. I will take this
opportunity of noticing that the
learned and worthy compiler of the
catalogue of the Lansdowne manu-
scripts in the Museum has thought
fit not only to charge sir Michael
Hicks with venality, but to add :
"It is certain that articles among
these papers contribute to justify
very strong suspicions, that neither
of the secretary's masters [lord
Burleigh and lord Salisbury] was
altogether innocent on the score of
corruption." Lansd. Cat. vol. xci.
p. 45. This is much too strong an
accusation to be brought forward
without more proof than appears.
It is absurd to mention presents
of fat bucks to men in power, as
bribes; and rather more
charge a man with being corrupted
because an attempt is made to cor-
rupt him, as the catalogue-maker
has done in this place. I would
not offend this respectable gentle-
man; but by referring to many of
the Lansdowne manuscripts I am
enabled to say that he has travelled
frequently out of his province, and
substituted his conjectures for an
analysis or abstract of the docu-
ment before him.
so to
FROM HENRY VII. TO GEORGE II.
455
CHAP.
VI.
out Europe*, our councils were full of a vigour and
promptitude unusual in this reign; nor did any
thing but the assassination of Henry IV. prevent JAMESI.
the appearance of an English army in the Nether-
lands. It must at least be confessed that the king's
affairs, both at home and abroad, were far worse
conducted after the death of the earl of Salisbury
than before. t
Coke's
from the
court.
The administration found an important disad- Lord
vantage, about this time, in a sort of defection of alienation
sir Edward Coke (more usually called lord Coke),
chief-justice of the king's bench, from the side
of prerogative. He was a man of strong, though
narrow, intellect; confessedly the greatest master
of English law that had ever appeared; but proud
and overbearing, a flatterer and tool of the court
till he had obtained his ends, and odious to the
nation for the brutal manner in which, as attorney-
general, he had behaved towards sir Walter Raleigh
on his trial. In raising him to the post of chief-
justice, the council had of course relied on finding
his unfathomable stores of precedent subservient
to their purposes. But soon after his promotion,
CC
* A great part of Winwood's
third volume relates to this busi-
ness, which, as is well known,
attracted a prodigious degree of
attention throughout Europe. The
question, as Winwood wrote to
Salisbury, was not of the suc-
cession of Cleves and Juliers, but
whether the house of Austria and
the church of Rome, both now
on the wane, shall recover their
lustre and greatness in these parts
of Europe." P. 378. James wished
to have the right referred to his
arbitration, and would have decided
in favour of the Elector of Bran-
denburg, the chief protestant com-
petitor.
+ Winwood, vols. ii. and iii.
passim. Birch, that accurate mas-
ter of this part of English history,
has done justice to Salisbury's
character. Negotiations of Ed-
mondes, p. 347. Miss Aikin, look-
ing to his want of constitutional
principle, is more unfavourable,
and perhaps on the whole justly;
but what statesman of that age
was ready to admit the new creed
of parliamentary control over the
executive government? Memoirs
of James, i. 395.
G G4
456
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. Coke, from various causes, began to steer a more
independent course. He was little formed to en-
JAMES I. dure a competitor in his own profession, and lived
on ill terms both with the lord chancellor Egerton,
and with the attorney-general, sir Francis Bacon.
The latter had long been his rival and enemy,
Discountenanced by Elizabeth, who, against the
importunity of Essex, had raised Coke over his
head, that great and aspiring genius was now high
in the king's favour. The chief-justice affected to
look down on one as inferior to him in knowledge
of our municipal law, as he was superior in all other
learning and in all the philosophy of jurisprudence.
And the mutual enmity of these illustrious men
never ceased till each in his turn satiated his re-
venge by the other's fall. Coke was also much
offended by the attempts of the bishops to emanci-
pate their ecclesiastical courts from the civil juris-
diction. I have already mentioned the peremptory
tone in which he repelled Bancroft's Articuli Cleri.
But as the king and some of the council rather
favoured these episcopal pretensions, they were
troubled by what they deemed his obstinacy, and
discovered more and more that they had to deal
with a most impracticable spirit.
It would be invidious to exclude from the mo-
tives that altered lord Coke's behaviour in matters
of prerogative his real affection for the laws of the
land, which novel systems, broached by the church-
men and civilians, threatened to subvert.* In
*"On Sunday, before the king's
going to Newmarket (which was
Sunday last was a se'nnight), my
lord Coke and all the judges of the
common law were before his ma-
jesty to answer some complaints
made by the civil lawyers for the
general granting of prohibitions.
I heard that the lord Coke, amongst
other offensive speech, should say
FROM HENRY VII. TO GEORGE II.
457
CHAP.
VI.
clamations.
Bates's case, which seems to have come in some
shape extra-judicially before him, he had delivered
an opinion in favour of the king's right to impose JAMES I.
at the out-ports; but so cautiously guarded, and
bottomed on such different grounds from those taken
by the barons of the exchequer, that it could not
be cited in favour of any fresh encroachments.*
He now performed a great service to his country. Illegal pro-
The practice of issuing proclamations, by way of
temporary regulation indeed, but interfering with
the subject's liberty, in cases unprovided for by
parliament, had grown still more usual than under
Elizabeth. Coke was sent for to attend some of
the council, who might perhaps have reason to
conjecture his sentiments; and it was demanded
whether the king, by his proclamation, might pro-
hibit new buildings about London, and whether he
might prohibit the making of starch from wheat.
This was during the session of parliament in 1610,
and with a view to what answer the king should
make to the commons' remonstrance against these
to his majesty that his highness
was defended by his laws. At
which saying, with other speech
then used by the lord Coke, his
majesty was very much offended,
and told him he spoke foolishly,
and said that he was not defended
by his laws, but by God, and so
gave the lord Coke, in other words,
a very sharp reprehension, both
for that and other things; and
withal told him that sir Thomas
Crompton [judge of the admi-
ralty] was as good a man as Coke;
my lord Coke having then, by way
of exception, used some speech
against sir Thomas Crompton.
Had not my lord treasurer, most
humbly on his knee, used many
good words to pacify his majesty
and to excuse that which had been
spoken, it was thought his high-
ness would have been much more
offended. In the conclusion, his
majesty, by the means of my lord
treasurer, was well pacified, and
gave a gracious countenance to all
the other judges, and said he would
maintain the common law." Lodge,
iii. 364. This letter is dated 25th
November, 1608, which shows how
early Coke had begun to give of-
fence by his zeal for the law.
* 12 Reports. In his second In-
stitute, p. 57., written a good deal
later, he speaks in a very different
manner of Bates's case, and de-
clares the judgment of the court of
exchequer to be contrary to law.
458
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. proclamations. Coke replied, that it was a matter
of great importance, on which he would confer
JAMES I. with his brethren. "The chancellor said, that
every precedent had first a commencement, and he
would advise the judges to maintain the power and
prerogative of the king; and in cases wherein there
is no authority and precedent, to leave it to the
king to order in it according to his wisdom and
for the good of his subjects, or otherwise the king
would be no more than the duke of Venice; and
that the king was so much restrained in his prero-
gative, that it was to be feared the bonds would be
broken. And the lord privy-seal (Northampton)
said, that the physician was not always bound to a
precedent, but to apply his medicine according to
the quality of the disease; and all concluded that
it should be necessary at that time to confirm the
king's prerogative with our opinions, although that
there were not any former precedent or authority
in law; for every precedent ought to have a com-
mencement. To which I answered, that true it is
that every precedent ought to have a commence-
ment; but when authority and precedent is want-
ing, there is need of great consideration before that
any thing of novelty shall be established, and to
provide that this be not against the law of the
land; for I said that the king cannot change any
part of the common law, nor create any offence by
his proclamation which was not an offence before,
without parliament. But at this time I only de-
sired to have a time of consultation and conference
with my brothers." This was agreed to by the
council, and three judges, besides Coke, appointed
to consider it. They resolved that the king, by
FROM HENRY VII. TO GEORGE II.
459
CHAP.
VI.
his proclamation, cannot create any offence which
was not one before; for then he might alter the
law of the land in a high point; for if he may JAMESI.
create an offence where none is, upon that ensues
fine and imprisonment. It was also resolved that
the king hath no prerogative but what the law of
the land allows him. But the king, for prevention
of offences, may by proclamation admonish all his
subjects that they keep the laws and do not offend
them, upon punishment to be inflicted by the law;
and the neglect of such proclamation, Coke says,
aggravates the offence. Lastly, they resolved that
if an offence be not punishable in the star-chamber,
the prohibition of it by proclamation cannot make
After this resolution, the report goes on to
remark, no proclamation imposing fine and im-
prisonment was made.*
it so.
12 Reports. There were, how-
ever, several proclamations after-
wards to forbid building within
two miles of London, except on old
foundations, and in that case only
with brick or stone, under penalty
of being proceeded against by the
attorney-general in the star-cham-
ber. Rymer, xvii. 107. (1618), 144.
(1619),607.(1624). London never-
theless increased rapidly, which
was by means of licences to build;
the prohibition being in this, as in
many other cases, enacted chiefly
for the sake of the dispensations.
James made use of proclama-
tions to infringe personal liberty
in another respect. He disliked to
see any country-gentleman come
up to London, where it must be
confessed, if we trust to what those
proclamations assert and the me-
moirs of the age confirm, neither
their own behaviour, nor that of
their wives and daughters, who
took the worst means of repairing
the ruin their extravagance had
caused, redounded to their honour.
The king's comparison of them to
ships in a river and in the sea is
well known. Still, in a constitu-
tional point of view, we may be
startled at proclamations com-
manding them to return to their
country-houses and maintain hos-
pitality, on pain of condign punish-
ment. Rymer, xvi. 517. (1604);
xvii. 417. (1622), 632. (1624).
I neglected, in the first chapter,
the reference I had made to an im-
portant dictum of the judges in the
reign of Mary, which is decisive as
to the legal character of proclama-
tions even in the midst of the
Tudor period. "The king, it is
said, may make a proclamation
quoad terrorem populi, to put them
in fear of his displeasure, but not
to impose any fine, forfeiture, or
imprisonment; for no proclama-
460
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
Means re-
order to
avoid the
parliament.
By the abrupt dissolution of parliament James
was left nearly in the same necessity as before ;
JAMES I. their subsidy being by no means sufficient to de-
sorted to in fray his expenses, far less to discharge his debts.
He had frequently betaken himself to the usual re-
meeting of source of applying to private subjects, especially
rich merchants, for loans of money. These loans,
which bore no interest, and for the repayment of
which there was no security, disturbed the prudent
citizens; especially as the council used to solicit
them with a degree of importunity at least border-
ing on compulsion. The house of commons had
in the last session requested that no one should be
bound to lend money to the king against his will.
The king had answered that he allowed not of any
precedents from the time of usurping or decaying
princes, or people too bold and wanton; that he
desired not to govern in that commonwealth where
the people should be assured of every thing and
hope for nothing, nor would he leave to posterity
such a mark of weakness on his reign; yet, in the
matter of loans, he would refuse no reasonable ex-
cuse.* Forced loans or benevolences were directly
prohibited by an act of Richard III., whose laws,
however the court might sometimes throw a slur
upon his usurpation, had always been in the statute-
book. After the dissolution of 1610, James at-
tempted as usual to obtain loans; but the mer-
chants, grown bolder with the spirit of the times,
refused him the accommodation. He had re-
course to another method of raising money, un-
tion can make a new law, but only
confirm and ratify an ancient one.
Dalison's Reports, 20.
* Winwood, iü. 193.
† Carte, iii. 805.
FROM HENRY VII. TO GEORGE II.
461
VI.
precedented, I believe, before his reign, though CHAP.
long practised in France, the sale of honours. He
sold several peerages for considerable sums, and JAMESI.
created a new order of hereditary knights, called
baronets, who paid £1,000 each for their patents.
of success.
*
Such resources however being evidently insuf-
ficient and temporary, it was almost indispensable
to try once more the temper of a parliament. This
was strongly urged by Bacon, whose fertility of
invention rendered him constitutionally sanguine
He submitted to the king that there
were expedients for more judiciously managing a
house of commons, than Cecil, (upon whom he was
too willing to throw blame,) had done with the
last; that some of those who had been most for-
ward in opposing were now won over;
such as
Neville, Yelverton, Hyde, Crew, Dudley Digges;
that much might be done by forethought towards
filling the house with well-affected persons, winning
or blinding the lawyers, whom he calls the literæ
vocales of the house, and drawing the chief con-
stituent bodies of the assembly, the country gen-
tlemen, the merchants, the courtiers, to act for the
king's advantage; that it would be expedient to
tender voluntarily certain graces and modifications
of the king's prerogative, such as might with
* The number of these was in-
tended to be two hundred, but
only ninety-three patents were sold
in the first six years. Lingard, ix.
203. from Somers Tracts. In
the first part of his reign he had
availed himself of an old feudal
resource, calling on all who held
£40 a year in chivalry (whether
of the crown or not, as it seems)
to receive knighthood, or to pay a
composition. Rymer, xvi. 530.
The object of this was of course
to raise money from those who
thought the honour troublesome
and expensive, but such as chose
to appear could not be refused;
and this accounts for his having
made many hundred knights in
the first year of his reign. Harris's
Life of James, 69.
462
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. smallest injury be conceded, lest they should be
first demanded, and in order to save more import-
JAMES I. ant points.* This advice was seconded by sir
Henry Neville, an ambitious man, who had nar-
rowly escaped in the queen's time for having tam-
pered in Essex's conspiracy, and had much pro-
moted the opposition in the late parliament, but
was now seeking the post of secretary of state. He
advised the king, in a very sensible memorial, to
consider what had been demanded and what had
been promised in the last session, granting the
more reasonable of the commons' requests, and
performing all his own promises; to avoid any
speech likely to excite irritation; and to seem
confident of the parliament's good affections, not
waiting to be pressed for what he meant to do. †
Neville and others, who, like him, professed to
understand the temper of the commons, and to
facilitate the king's dealings with them, were called
undertakers.‡ This circumstance, like several
others in the present reign, is curious, as it shows
the rise of a systematic parliamentary influence,
which was one day to become the mainspring of
government.
Under-
takers.
+
Neville however and his associates had de-
ceived the courtiers with promises they could not
realise. It was resolved to announce certain in-
tended graces in the speech from the throne; that
is, to declare the king's readiness to pass bills that
might remedy some grievances and retrench a
part of his prerogative. These proffered amend-
ments of the law, though eleven in number, failed
*MS. penes autorem. † Carte, iv. 17. Wilson, in Kennet, ii. 696.
FROM HENRY VII. TO GEORGE II.
463
VI.
altogether of giving the content that had been CHAP.
fully expected. Except the repeal of a strange
act of Henry VIII., allowing the king to make JAMES I.
such laws as he should think fit for the principality
of Wales without consent of parliament, none of
them could perhaps be reckoned of any consti-
tutional importance. In all domanial and fiscal
causes, and wherever the private interests of the
crown stood in competition with those of a sub-
ject, the former enjoyed enormous and superior
advantages, whereof what is strictly called its pre-
rogative was principally composed. The terms of
prescription that bound other men's right, the
rules of pleading and procedure established for
the sake of truth and justice, did not, in general,
oblige the king. It was not by doing away a very
few of these invidious and oppressive distinctions,
that the crown could be allowed to keep on foot
still more momentous abuses. The commons of Parliament
1614 accordingly went at once to the characteristic
grievance of this reign, the customs at the out-
ports. They had grown so confident in their
cause by ransacking ancient records, that an una-
nimous vote passed against the king's right of im-
position; not that there were no courtiers in the
house, but the cry was too obstreperous to be with-
stood. They demanded a conference on the
t
This act (34 H. 8. c. 26.) was
repealed a few years afterwards.
21 J. 1. c. 10.
+ Commons' Journals, 466. 472.
481. 486. Sir Henry Wotton at
length muttered something in fa-
your of the prerogative of laying
impositions, as belonging to he-
reditary though not to elective
princes. Id. 493. This silly ar-
gument is only worth notice, as a
proof what erroneous notions of
government were sometimes im-
bibed from an intercourse with
foreign nations. Dudley Digges
and Sandys answered him very
properly.
of 1614.
?
464
FROM HENRY VII. TO GEORGE II.
CHAP. subject with the lords, who preserved a kind of
VI. mediating neutrality throughout this reign.* In
JAMES I. the course of their debate, Neyle, bishop of Lich-
field, threw out some aspersion on the commons.
They were immediately in a flame, and demanded
reparation. This Neyle was a man of indifferent
character, and very unpopular from the share he
had taken in the earl of Essex's divorce, and from
his severity towards the puritans; nor did the
house fail to comment upon all his faults in their
debate. He had, however, the prudence to excuse
himself ("with many tears," as the Lords' Jour
nals inform us), denying the most offensive words
imputed to him; and the affair went no farther. †
This ill-humour of the commons disconcerted those
who had relied on the undertakers. But as the
secret of these men had not been kept, their pro-
ject considerably aggravated the prevailing dis-
content. The king had positively denied in his
first speech that there were any such undertakers;
and Bacon, then attorney-general, laughed at the
chimerical notion, that private men should under-
take for all the commons of England. §
some persons however had obtained that name at
court, and held out such promises, is at present
out of doubt; and indeed the king, forgetful of
*The judges having been called
upon by the house of lords to de-
liver their opinions on the subject
of impositions, previous to the in-
tended conference, requested, by
the mouth of chief justice Coke,
to be excused. This was probably
a disappointment to lord chancellor
Egerton, who had moved to con-
sult them, and proceeded from
Coke's dislike to him and to the
That
court. It induced the house to
decline the conference. Lords'
Journals, 23d May.
+ Lords' Journals, May 31.
Commons' Journals, 496. 498.
Carte, iv. 23. Neville's me-
morial above mentioned was read
in the house, May 14.
§ Carte, iv. 19, 20. Bacon, i.
695. C. J. 462.
FROM HENRY VII. TO GEORGE II.
465
VI.
his former denial, expressly confessed it on open- CHAP.
ing the session of 1621.
Aware Dissolved
without
Amidst these heats little progress was made; JAMES I.
and no one took up the essential business of supply.
The king at length sent a message, requesting
that a supply might be granted, with a threat of
dissolving parliament unless it were done. But
the days of intimidation were gone by. The
house voted that they would first proceed with
the business of impositions, and postpone supply
till their grievances should be redressed.*
of the impossibility of conquering their resolution, passing a
the king carried his measure into effect by a disso- single act.
lution. They had sat about two months, and,
what is perhaps unprecedented in our history, had
not passed a single bill. James followed up this
strong step by one still more vigorous. Several
members, who had distinguished themselves by
warm language against the government, were ar-
rested after the dissolution, and kept for a short
time in custody; a manifest violation of that free-
dom of speech, without which no assembly can be
independent, and which is the stipulated privilege
of the house of commons.‡
It was now evident that James could never ex-
pect to be on terms of harmony with a parliament,
unless by surrendering pretensions, which not only
were in his eyes indispensable to the lustre of his
* C. J. 506. Carte, 23. This
writer absurdly defends the pre-
rogative of laying impositions on
merchandise as part of the law of
nations.
It is said that, previously to
taking this step, the king sent for
the commons, and tore all their
VOL. I.
bills before their faces in the
banqueting-house at Whitehall.
D'Israeli's Character of James,
p. 158. on the authority of an un-
published letter.
Carte. Wilson. Camden's
Annals of James I. (in Kennet,
ii. 643.)
H H
Benevo-
་
lences,
466
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. monarchy, but from which he derived an income
VI. that he had no means of replacing. He went on
JAMESI. accordingly for six years, supplying his exigencies
by such precarious resources as circumstances
might furnish. He restored the towns mortgaged
by the Dutch to Elizabeth on payment of 2,700,000
florins, about one third of the original debt. The
enormous fines imposed by the star-chamber,
though seldom, I believe, enforced to their utmost
extent, must have considerably enriched the ex-
chequer. It is said by Carte that some Dutch
merchants paid fines to the amount of £133,000
for exporting gold coin.* But still greater profit
was hoped from the requisition of that more than
half involuntary contribution, miscalled a benevo-
lence. It began by a subscription of the nobility
and principal persons about the court. Letters
were sent written to the sheriffs and magistrates,
directing them to call on people of ability. It
had always been supposed doubtful whether the
statute of Richard III. abrogating "exactions,
called benevolences," should extend to voluntary
gifts at the solicitation of the crown. The lan-
guage used in that act certainly implies that
the pretended benevolences of Edward's reign
had been extorted against the subjects' will; yet
if positive violence were not employed, it seems
difficult to find a legal criterion by which to dis-
tinguish the effects of willing loyalty from those
of fear or shame. Lord Coke is said to have at
first declared that the king could not solicit a
benevolence from his subjects, but to have after-
* Carte, iv. p. 56.
FROM HENRY VII. TO GEORGE 11.
467
wards retracted his opinion and pronounced in
To this second opinion he
CHAP.
VI.
favour of its legality.
adheres in his Reports.
* While this business was JAMES I
pending, Mr. Oliver St. John wrote a letter to the
mayor of Marlborough, explaining his reasons for
declining to contribute, founded on the several
statutes which he deemed applicable, and on the
impropriety of particular men opposing their judg-
ment, to the commons in parliament, who had re-
fused to grant any subsidy. This argument, in
itself exasperating, he followed up by somewhat
blunt observations on the king. His letter came
under the consideration of the star-chamber, where
the offence having been severely descanted upon
by the attorney-general, Mr. St. John was sen-
tenced to a fine of £5,000, and to imprisonment
during pleasure.†
tion of
Coke, though still much at the council-board, Prosecu-
was regarded with increasing dislike on account Peacham.
of his uncompromising humour. This he had oc-
casion to display in perhaps the worst and most
tyrannical act of king James's reign, the prosecu-
tion of one Peacham, a minister in Somersetshire,
for high treason. A sermon had been found in
this man's study (it does not appear what led to
the search), never preached, nor, if judge Croke
is right, intended to be preached, containing such
sharp censures upon the king, and invectives
against the government, as, had they been pub-
lished, would have amounted to a seditious libel.
But common sense revolted at construing it into
* 12 Reports, 119.
+ State Trials, ii. 889.
}
HH 2
468
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
treason, under the statute of Edward III., as a
compassing of the king's death. James, however,
JAMES I. took it up with indecent eagerness. Peacham was
put to the rack, and examined upon various inter-
rogatories, as it is expressed by secretary Win-
wood, "before torture, in torture, between torture,
and after torture." Nothing could be drawn from
him as to any accomplices, nor any explanation of
his design in writing the sermon; which was pro-
bably but an intemperate effusion, so common
among the puritan clergy. It was necessary there-
fore to rely on this, as the overt act of treason.
Aware of the difficulties that attended this course,
the king directed Bacon previously to confer with
the judges of the king's bench, one by one, in
order to secure their determination for the crown.
Coke objected that "such particular, and as he
called it, auricular taking of opinions was not ac-
cording to the custom of this realm." * The other
three judges having been tampered with, agreed
to answer such questions concerning the case as
the king might direct to be put to them; yielding
to the sophism that every judge was bound by his
oath to give counsel to his majesty. The chief-
justice continued to maintain his objection to this
separate closeting of judges; yet, finding himself
abandoned by his colleagues, consented to give
answers in writing, which seem to have been
merely evasive. Peacham was brought to trial,
*There had, however, been in-
stances of it, as in sir Walter Ra-
leigh's case. Lodge, iii. 172, 173.;
and I have found proofs of it in
the queen's reign; though I can-
not at present quote my authority.
In a former age, the judges had
refused to give an extra-judicial
answer to the king. Lingard, v.
382. from the year-book, Pasch. 1.
H. 7. 15. Trin. 1.
FROM HENRY VII. TO GEORGE II.
469
and found guilty, but not executed, dying in pri- CHAP.
son a few months after.*
Vl.
about the
of the court
It was not long before the intrepid chief-justice JAMES I.
incurred again the council's displeasure. This will Dispute
require, for the sake of part of my readers, some jurisdiction
little previous explanation. The equitable juris- of chancery.
diction, as it is called, of the court of chancery
appears to have been derived from that extensive
judicial power which, in early times, the king's
ordinary council had exercised. The chancellor,
as one of the highest officers of state, took a great
share in the council's business; and when it was
not sitting, he had a court of his own, with juris-
diction in many important matters, out of which
process to compel appearance of parties might at
any time emanate. It is not unlikely therefore
that redress, in matters beyond the legal province
of the chancellor, was occasionally given through
the paramount authority of this court. We find
the council and the chancery named together in
many remonstrances of the commons against this
interference with private rights, from the time of
Richard II. to that of Henry VI. It was probably
in the former reign that the chancellor began to
establish systematically his peculiar restraining
* State Trials, ii. 869. Bacon,
ii. 483, &c. Dalrymple's Memo-
rials of James I., vol. i. p. 56.
Some other very unjustifiable con-
structions of the law of treason
took place in this reign. Thomas
Owen was indicted and found
guilty, under the statute of Ed-
ward III., for saying, that "the
king, being excommunicated (i. e.
if he should be excommunicated)
by the pope, might be lawfully de-
posed and killed by any one, which
killing would not be murder, being
the execution of the supreme sen-
tence of the pope;" a position very
atrocious, but not amounting to
treason. State Trials, ii. 879. And
Williams, another papist, was con-
victed of treason by a still more
violent stretch of law, for writing
a book predicting the king's death
in the year 1621. Id. 1085.
HH 3
470
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. jurisdiction.
VI.
This originated in the practice of
feoffments to uses, by which the feoffee, who had
JAMES I. legal seisin of the land, stood bound by private
engagement to suffer another, called the cestui
que use, to enjoy its use and possession. Such
fiduciary estates were well known to the Roman
jurists, but inconsistent with the feudal genius of
our law. The courts of justice gave no redress,
if the feoffee to uses violated his trust by detain-
ing the land. To remedy this, an ecclesiastical
chancellor devised the writ of subpoena, compelling
him to answer upon oath as to his trust.
It was
evidently necessary also to restrain him from pro-
ceeding, as he might do, to obtain possession;
and this gave rise to injunctions, that is, prohi-
bitions to sue at law, the violation of which was
punishable by imprisonment as a contempt of court.
Other instances of breach of trust occurred in per-
sonal contracts, and others wherein, without any
trust, there was a wrong committed beyond the
competence of the courts of law to redress; to all
which the process of subpoena was made applicable.
This extension of a novel jurisdiction was partly
owing to a fundamental principle of our common
law, that a defendant cannot be examined, so that,
if no witness or written instrument could be pro-
duced to prove a demand, the plaintiff was wholly
debarred of justice; but in a still greater degree,
to a strange narrowness and scrupulosity of the
judges, who, fearful of quitting the letter of their
precedents, even with the clearest analogies to
guide them, repelled so many just suits, and set
up rules of so much hardship, that men were
thankful to embrace the relief held out by a tri-
FROM HENRY VII. TO GEORGE II.
471
CHAP.
VI.
bunal acting in a more rational spirit. This error
the common lawyers began to discover, in time to
resume a great part of their jurisdiction in matters JAMESI.
of contract, which would otherwise have escaped
from them. They made too an apparently suc-
cessful effort to recover their exclusive authority
over real property, by obtaining a statute for turn-
ing uses into possession; that is, for annihilating
the fictitious estate of the feoffee to uses, and
vesting the legal as well as equitable possession in
the cestui que use. But this victory, if I may use
such an expression (since it would have freed
them, in a most important point, from the chan-
cellor's control), they threw away by one of those
timid and narrow constructions which had already
turned so much to their prejudice; and they per-
mitted trust-estates, by the introduction of a few
more words into a conveyance, to maintain their
ground, contra-distinguished from the legal seisin,
under the protection and guarantee, as before, of
the courts of equity.
The particular limits of this equitable jurisdic-
tion were as yet exceedingly indefinite. The chan-
cellors were generally prone to extend them; and
being at the same time ministers of state in a go-
vernment of very arbitrary temper, regarded too
little that course of precedent by which the other
judges held themselves too strictly bound. The
cases reckoned cognizable in chancery grew si-
lently more and more numerous; but with little
overt opposition from the courts of law till the
time of sir Edward Coke. That great master of
the common law was inspired not only with the
HH 4
472
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. jealousy of this irregular and encroaching juris-
VI. diction which all lawyers seem to have felt, but
JAMES I. with a tenaciousness of his own dignity, and a
personal enmity towards Egerton who held the
great seal. It happened that an action was tried
before him, the precise circumstances of which
do not appear, wherein the plaintiff lost the ver
dict, in consequence of one of his witnesses being
artfully kept away. He had recourse to the court
of chancery, filing a bill against the defendant to
make him answer upon oath, which he refused to
do, and was committed for contempt. Indict-
ments were upon this preferred, at Coke's insti-
gation, against the parties who had filed the bill
in chancery, their counsel and solicitors, for suing
in another court after judgment obtained at law;
which was alledged to be contrary to the statute
of præmunire. But the grand jury, though pressed,
as is said, by one of the judges, threw out these
indictments. The king, already incensed with
Coke, and stimulated by Bacon, thought this too
great an insult upon his chancellor to be passed
over. He first directed Bacon and others to search
for precedents of cases where relief had been given
in chancery after judgment at law. They reported
that there was a series of such precedents from
the time of Henry VIII.; and some where the
chancellor had entertained suits even after execu-
tion. The attorney-general was directed to pro-
secute in the star-chamber those who had pre-
ferred the indictments; and as Coke had not been
ostensibly implicated in the business, the king
contented himself with making an order in the
FROM HENRY VII. TO GEORGE II.
473
VI.
council-book, declaring the chancellor not to have CHAP.
exceeded his jurisdiction.*
Case of
commen-
The chief-justice almost at the same time gave JAMESI.
another provocation, which exposed him more
directly to the court's resentment. A cause hap- dams.
pened to be argued in the court of king's bench,
wherein the validity of a particular grant of a be-
nefice to a bishop to be held in commendam, that
is, along with his bishopric, came into question;
and the counsel at the bar, besides the special
points of the case, had disputed the king's general
prerogative of making such a grant. The king,
on receiving information of this, signified to the
chief-justice through the attorney-general, that he
would not have the court proceed to judgment
till he had spoken with them. Coke requested
that similar letters might be written to the judges
of all the courts. This having been done, they as-
sembled, and by a letter subscribed with all their
hands, certified his majesty, that they were bound
by their oaths not to regard any letters that might
come to them contrary to law, but to do the law
notwithstanding; that they held with one consent
the attorney-general's letter to be contrary to law,
and such as they could not yield to, and that they
had proceeded according to their oath to argue
the cause.
The king, who was then at Newmarket, returned
answer that he would not suffer his prerogative to
be wounded, under pretext of the interest of pri-
vate persons; that it had already been more boldly
dealt with in Westminster Hall than in the reigns
* Bacon, ii. 500. 518. 522. Cro. Jac. 335. 343.
474
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
of preceding princes, which popular and unlawful
liberty he would no longer endure; that their oath
JAMESI. not to delay justice was not meant to prejudice
the king's prerogative; concluding that out of his
absolute power and authority royal he commanded
them to forbear meddling any further in the cause.
till they should hear his pleasure from his own
mouth. Upon his return to London, the twelve
judges appeared as culprits in the council-chamber.
The king set forth their misdemeanors, both in
substance and in the tone of their letter. He
observed that the judges ought to check those advo-
cates who presume to argue against his preroga-
tive; that the popular lawyers had been the men,
ever since his accession, who had trodden in all
parliaments upon it, though the law could never
be respected if the king were not reverenced; that
he had a double prerogative-whereof the one
was ordinary, and had relation to his private in-
terest, which might be and was every day disputed
in Westminster Hall; the other was of a higher
nature, referring to his supreme and imperial
power and sovereignty, which ought not to be
disputed or handled in vulgar argument; but that
of late the courts of common law are grown so
vast and transcendant, as they did both meddle
with the king's prerogative, and had encroached
upon all other courts of justice. He commented
on the form of the letter, as highly indecent; cer-
tifying him merely what they had done, instead
of submitting to his princely judgment what they
should do.
After this harangue the judges fell upon their
FROM HENRY VII. TO GEORGE II.
475
knees, and acknowledged their error as to the form
of the letter. But Coke entered on a defence of
The king
CHAP.
VI.
the substance, maintaining the delay required to JAMESI.
be against the law and their oaths.
required the chancellor and attorney-general to
deliver their opinions; which, as may be supposed,
were diametrically opposite to those of the chief-
justice. These being heard, the following ques-
tion was put to the judges: Whether, if at any
time, in a case depending before the judges, his
majesty conceived it to concern him either in
power or profit, and thereupon required to con-
sult with them, and that they should stay proceed-
ings in the mean time, they ought not to stay
accordingly? They all, except the chief-justice,
declared that they would do so, and acknowledged
it to be their duty; Hobart, chief-justice of the
common-pleas, adding that he would ever trust
the justice of his majesty's commandment. But
Coke only answered, that when the case should
arise, he would do what should be fit for a judge
to do. The king dismissed them all with a com-
mand to keep the limits of their several courts,
and not to suffer his prerogative to be wounded;
for he well knew the true and ancient common
law to be the most favourable to kings of any law
in the world, to which law he advised them to
apply their studies.*
The behaviour of the judges in this inglorious
contention was such as to deprive them of every
*
Bacon, ii. 517, &c. Carte, iv.
Carte, iv.
35, Biograph. Brit. art. Coke.
The king told the judges, he
thought his prerogative as much
wounded if it be publicly disputed
upon, as if any sentence were given
against it.
476
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
shadow of that confidence which ought to be re-
posed in their integrity. Hobart, Doddridge, and
JAMES I. Several more, were men of much consideration for
learning; and their authority in ordinary matters
of law is still held high. But, having been induced
by a sense of duty, or through the ascendancy
that Coke had acquired over them, to make a
show of withstanding the court, they behaved like
cowardly rebels who surrender at the first dis
charge of cannon; and prostituted their integrity
and their fame, through dread of losing their of
fices, or rather perhaps of incurring the unmerciful
and ruinous penalties of the star-chamber.
The government had nothing to fear from such
recreants; but Coke was suspended from his office,
and not long afterwards dismissed.* Having
however, fortunately in this respect, married his
daughter to a brother of the duke of Bucking
ham, he was restored in about three years to the
privy-council, where his great experience in busi-
ness rendered him useful; and had the satisfac-
tion of voting for an enormous fine on his enemy
the earl of Suffolk, late high-treasurer, convicted
in the star-chamber of embezzlement.† In the
parliament of 1621, and still more conspicuously
in that of 1628, he became, not without some
honourable inconsistency of doctrine as well as
practice, the strenuous asserter of liberty on the
principles of those ancient laws which no one was
admitted to know so well as himself; redeeming, in
* See D'Israeli, Character of
James I. p. 125. He was too much
affected by his dismissal from office.
+ Camden's Annals of James I.
in Kennet, vol. ii. Wilson, ibid.
704, 705. Bacon's Works, ii. 574.
The fine imposed was 30,000/.;
Coke voted for 100,0007.
FROM HENRY VII. TO GEORGE II.
477
an intrepid and patriotic old age, the faults which
we cannot avoid perceiving in his earlier life.
CHAP.
VI.
proceedings
chamber.
The unconstitutional and usurped authority of JAMES I.
the star-chamber over-rode every personal right, Arbitrary
though an assembled parliament might assert its of the star-
general privileges. Several remarkable instances
in history illustrate its tyranny and contempt of
all known laws and liberties. Two puritans hav-
ing been committed by the high-commission court,
for refusing the oath ex-officio, employed Mr.
Fuller, a bencher of Gray's Inn, to move for their
habeas corpus; which he did on the ground that
the high commissioners were not empowered to
commit any of his majesty's subjects to prison.
This being reckoned a heinous offence, he was
himself committed, at Bancroft's instigation, (whe-
ther by the king's personal warrant, or that of
the council-board, does not appear,) and lay in
gaol to the day of his death; the archbishop con-
stantly opposing his discharge for which he pe-
titioned.* Whitelock, a barrister and afterwards
a judge, was brought before the star-chamber on
the charge of having given a private opinion to
his client, that a certain commission issued by the
crown was illegal. This was said to be a high
contempt and slander of the king's prerogative.
But, after a speech from Bacon in aggravation of
this offence, the delinquent was discharged on a
humble submission.† Such too was the fate of a
more distinguished person on a still more prepos-
terous accusation. Selden, in his History of Tithes,
* Fuller's Church Hist. 56.
Neal, i. 435. Lodge, iii. 344.
+ State Trials, ii. 765.
478
THE CONSTITUTIONAL HISTORY OF ENGLAND
СНАР.
VI.
had indirectly weakened the claim of divine right,
which the high-church faction pretended, and had
JAMESI. attacked the argument from prescription, deriving
their legal institution from the age of Charle-
magne, or even a later æra. Not content with
letting loose on him some stanch polemical writers,
the bishops prevailed on James to summon the
author before the council. This proceeding is as
much the disgrace of England, as that against
Galileo nearly at the same time is of Italy. Sel
den, like the great Florentine astronomer, bent
to the rod of power, and made rather too submis-
sive an apology for entering on this purely histo-
rical discussion.*
Arabella
Stuart.
Every generous mind must reckon the treatment
of Arabella Stuart among the hard measures of
despotism, even if it were not also grossly in viola
tion of English law. Exposed by her high descent
and ambiguous pretensions to become the victim of
ambitious designs wherein she did not participate,
that lady may be added to the sad list of royal
sufferers who have envied the lot of humble birth.
There is not, as I believe, the least particle of evi-
dence that she was engaged in the intrigues of the
catholic party to place her on the throne. It was
however thought a necessary precaution to put
her in confinement a short time before the queen's
death. At the trial of Raleigh she was present; and
Cecil openly acquitted her of any share in the con-
spiracy. She enjoyed afterwards a pension from
the king, and might have died in peace and ob-
*Collier, 712. 717. Selden's
Life in Biographia Brit.
+ Carte, iii, 698.
State Trials, ii. 23. Lodge's
Illustrations, iii. 217.
FROM HENRY VII. TO GEORGE II.
479
CHAP.
VI.
scurity, had she not conceived an unhappy attach-
ment for Mr. Seymour, grandson of that earl of
Hertford, himself so memorable an example of JAMES I
the perils of ambitious love. They were privately
married; but on the fact transpiring, the council,
who saw with jealous eyes the possible union of
two dormant pretensions to the crown, committed
them to the Tower.* They both made their es-
cape; but Arabella was arrested and brought back.
Long and hopeless calamity broke down her mind;
imploring in vain the just privileges of an English-
woman, and nearly in want of necessaries, she
died in prison, and in a state of lunacy, some years
afterwards.t And this through the oppression
* Winwood, iii. 201. 279.
† Id. 178. In this collection are
one or two letters from Arabella,
which show her to have been a
lively and accomplished woman.
It is said in a manuscript account
of circumstances about the king's
accession, which seems entitled to
some credit, that on its being pro-
posed that she should walk at the
queen's funeral, she answered with
spirit that, as she had been debarred
her majesty's presence while liv-
ing, she would not be brought on
the stage as a public spectacle after
her death. Sloane MSS. 827.
Much occurs on the subject of
this lady's imprisonment in one of
the valuable volumes in Dr. Birch's
hand-writing, among the same
same
MSS. 4161. Those have already
assisted Mr. D'Israeli in his inte-
resting memoir on Arabella Stuart,
in the Curiosities of Literature,
New Series, vol. i. They cannot
be read (as I should conceive)
without indignation at James and
his ministers. One of her letters
is addressed to the two chief-
justices, begging to be brought be-
fore them by habeas corpus, being
informed that it is designed to re-
move her far from those courts of
justice where she ought to be tried
and condemned, or cleared, to re-
mote parts, whose courts she holds
unfitted for her offence. "And if your
lordships may not or will not grant
unto me the ordinary relief of a dis-
tressed subject, then I beseech you
become humble intercessors to his
majesty that I may receive such
benefit of justice, as both his ma-
jesty by his oath hath promised,
and the laws of this realm afford to
all others, those of his blood not
excepted. And though, unfortu-
nate woman! I can obtain neither,
yet I beseech your lordships retain
me in your good opinion, and judge
charitably till I be proved to have
committed any offence either
against God or his majesty deserv-
ing so long restraint or separation
from my lawful husband.”
Arabella did not profess the Ro-
man catholic religion, but that
party seem to have relied upon her;
and so late as 1610, she incurred
some suspicion of being col-
lapsed." Winwood, ii. 117.
CC
This had been also conjectured
480
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
of a kinsman, whose advocates are always vaunt-
ing his good-nature ! Her husband became the
JAMESI. famous marquis of Hertford, the faithful coun-
sellor of Charles the First and partaker of his ad-
versity. Lady Shrewsbury, aunt to Arabella, was
examined on suspicion of being privy to her
escape; and for refusing to answer the questions
put to her, or, in other words, to accuse herself,
was sentenced to a fine of £20,000, and discre-
tionary imprisonment.*
Somerset
and Over-
bury.
Several events, so well known that it is hardly
necessary to dwell on them, aggravated the king's
unpopularity during this parliamentary interval.
The murder of Overbury burst into light, and re-
vealed to an indignant nation the king's unworthy
favourite, the earl of Somerset, and the hoary
pander of that favourite's vices, the earl of North-
ampton, accomplices in that deep-laid and deliberate
atrocity. Nor was it only that men so flagitious
should have swayed the councils of this coun-
try, and rioted in the king's favour. Strange
things were whispered, as if the death of Over-
bury was connected with something that did not
yet transpire, and which every effort was employed
to conceal. The people, who had already attri-
buted prince Henry's death to poison, now laid
it at the door of Somerset; but for that conjec-
ture, however highly countenanced at the time,
there could be no foundation. The symptoms of
the prince's illness, and the appearances on dis-
section, are not such as could result from any
in the queen's life-time. Secret
Correspondence of Cecil with
James I., p. 118.
* State Trials, ii. 769.
FROM HENRY VII. TO GEORGE II.
481
VI.
poison, and manifestly indicate a malignant fever, CHAP.
aggravated perhaps by injudicious treatment.*
Yet it is certain that a mystery hangs over this JAMES I.
scandalous tale of Overbury's murder. The inso-
lence and menaces of Somerset in the Tower, the
shrinking apprehensions of him which the king
could not conceal, the pains taken by Bacon to
prevent his becoming desperate, and, as I sus-
pect, to mislead the hearers by throwing them on
a wrong scent, are very remarkable circumstances
to which, after a good deal of attention, I can dis-
cover no probable cluc. But it is evident that he
was master of some secret, which it would have
highly prejudiced the king's honour to divulge. t
* Sir Charles Cornwallis's Me-
moir of Prince Henry, reprinted
in the Somers' Tracts, vol. ii., and
of which sufficient extracts may be
found in Birch's life, contains a
remarkably minute detail of all the
symptoms attending the prince's
illness, which was an epidemic ty-
phus fever. The report of his phy-
sicians after dissection, may also
be read in many books. Nature
might possibly have overcome the
disorder, if an empirical doctor had
not insisted on continually bleed-
ing him. He had no other mur-
derer. We need not even have
recourse to Hume's acute and de-
cisive remark that, if Somerset had
been so experienced in this trade,
he would not have spent five
months in bungling about Over-
bury's death.
Carte says, vol. iv. 33., that the
queen charged Somerset with de-
signing to poison her, prince
Charles, and the clector palatine,
order to marry the electress to
lord Suffolk's son. But this is too
extravagant, whatever Anne might
have thrown out in passion against
a favourite she hated. On Henry's
VOL. I.
I I
death the first suspicion fell of
course on the papists. Winwood,
iii. 410. Burnet doubts whether
his aversion to popery did not hasten
his death. And there is a remark-
able letter from sir Robert Naun-
ton to Winwood, in the note of the
last reference, which shows that
suspicions of some such agency
were entertained very early. But
the positive evidence we have of his
disease outweighs all conjecture.
+ The circumstances to which I
allude are well known to the cu-
rious in English history, and might
furnish materials for a separate dis-
sertation, had I leisure to stray in
these by-paths. Hume has treated
them as quite unimportant; and
Carte, with his usual honesty, has
never alluded to them. Those
who read carefully the new edi-
tion of the State Trials, and vari-
ous passages in lord Bacon's Let-
ters, may form for themselves the
best judgment they can, A few
conclusions may, perhaps, be laid
down as established. 1. That Over-
bury's death was occasioned, not
merely by lady Somerset's revenge,
but by his possession of important
482
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
Sir Walter Raleigh's execution was another stain
upon the reputation of James the First. It is need-
JAMES I. less to mention that he fell under a sentence passed
Sir Walter
Raleigh.
secrets, which in his passion he
had threatened Somerset to di-
vulge. 2. That Somerset conceived
himself to have a hold over the
king by the possession of the same
or some other secrets, and used in-
direct threats of revealing them.
3. That the king was in the utmost
terror at hearing of these mea-
sures; as is proved by a passage in
Weldon's Memoirs, p. 115., which,
after being long ascribed to his
libellous spirit, has lately received
the most entire confirmation by
some letters from More, lieutenant
of the Tower, published in the Ar-
chæologia, vol. xviii. 4. That Ba-
con was in the king's confidence,
and employed by him so to ma-
nage Somerset's trial, as to prevent
him from making any imprudent
disclosure, or the judges from get-
ting any insight into that which it
was not meant to reveal. See par-
ticularly a passage in his letter to
Coke, vol.ii. 514., beginning, "This
crime was second to none but the
powder-plot."
Upon the whole, I cannot sa-
tisfy myself in any manner as to
this mystery.
Prince Henry's
death, as I have observed, is out
of the question; nor does a differ-
ent solution, hinted by Harris and
others, and which may have sug-
gested itself to the reader, appear
probable to my judgment on weigh-
ing the whole case. Overbury was
an ambitious, unprincipled man;
and it seems more likely than any
thing else, that James had lis-
tened too much to some criminal
suggestion from him and Somer-
set; but of what nature I cannot
pretend even to conjecture; and
that through apprehension of this
being disclosed, he had pusillani-
mously acquiesced in the scheme
of Overbury's murder.
It is a remarkable fact, men-
tioned by Burnet, and perhaps
little believed, but which, like the
former, has lately been confirmed
by documents printed in the Ar-
chæologia, that James in the last
year of his reign, while dissatisfied
with Buckingham, privately re-
newed his correspondence with So-
merset, on whom he bestowed at
the same time a full pardon, and
seems to have given him hopes of
being restored to his former favour.
A memorial drawn up by Somer-
set, evidently at the king's com-
mand, and most probably after the
clandestine interview reported by
Burnet, contains strong charges
against Buckingham. Archæolo-
gia, vol. xvii. 280. But no conse-
quences resulted from this; James
was either reconciled to his fa-
vourite before his death, or felt
himself too old for a struggle.
Somerset seems to have tampered
a little with the popular party
in the beginning of the next
reign. A speech of sir Robert
Cotton's in 1625, Parl. Hist. ii.
145., praises him, comparatively at
least with his successor in royal
favour; and he was one of those
against whom informations were
brought in the star-chamber for
dispersing sir Robert Dudley's fa-
mous proposal for bridling the
impertinences of parliament. Ken-
net, iii. 62. The patriots, how-
ever, of that age had too much
sense to encumber themselves with
an ally equally unserviceable and
infamous. There cannot be the
slightest doubt of Somerset's guilt
as to the murder, though some have
thought the evidence insufficient;
(Carte, iv. 34.) he does not deny
it in his remarkable letter to James,
requesting, or rather demanding,
mercy, printed in the Cabala and
in Bacon's Works.
FROM HENRY VII. TO GEORGE II.
483
fifteen years before, on a charge of high treason, in CHAP.
plotting to raise Arabella Stuart to the throne.
It
VI.
is very probable that this charge was, partly at JAMES I.
least, founded in truth*; but his conviction was
obtained on the single deposition of lord Cobham,
an accomplice, a prisoner, not examined in court,
and known to have already retracted his accusa-
tion. Such a verdict was thought contrary to
law, even in that age of ready convictions. It
was a severe measure to detain for twelve years in
prison so splendid an ornament of his country, and
to confiscate his whole estate.† For Raleigh's
Raleigh made an attempt to
destroy himself on being com-
nitted to the Tower; which of
course affords a presumption of his
consciousness that something could
he proved against him. Cayley's
Life of Raleigh, vol. ii. p. 10.
Hume says, it appears from Sully's
Memoirs that he had offered his
services to the French ambassador.
I cannot find this in Sully; whom
Raleigh, however, and his party
seem to have aimed at deceiving
by false information. Nor could
there be any treason in making
an interest with the minister of
a friendly power. Carte quotes
the despatches of Beaumont, the
French ambassador, to prove the
connexion of the conspirators with
the Spanish plenipotentiary. But
it may be questioned whether he
knew any more than the govern-
inent gave out. If Raleigh had
ever shown a discretion bearing
the least proportion to his genius,
we might reject the whole story as
improbable. But it is to be re-
membered that there had long
been a catholic faction, who fixed
their hopes on Arabella; so that
the conspiracy, though extremely
injudicious, was not so perfectly
unintelligible as it appears to a
reader of Hume, who has over-
looked the previous circumstances.
It is also to be considered, that
the king had shown so marked a
prejudice against Raleigh on his
coming to England, and the hos-
tility of Cecil was so insidious and
implacable, as might drive a man
of his rash and impetuous courage
to desperate courses. See Cayley's
Life of Raleigh, vol.ii.; a work con-
taining much interesting matter,
but unfortunately written too much
in the spirit of an advocate, which,
with so faulty a client, must tend
to an erroneous representation of
facts.
+ This estate was Sherborn castle,
which Raleigh had not very fairly
obtained from the see of Salisbury.
He settled this before his convic-
tion upon his son; but an acciden-
tal flaw in the deed enabled the
king to wrest it from him, and be-
stow it on the earl of Somerset.
Lady Raleigh, it is said, solicited
his majesty on her knees to spare
it; but he only answered, "I mun
have the land, I mun have it for
Carr.' He gave him, however,
£12,000 instead. But the estate
was worth £5000 per annum.
This ruin of the prospects of a man
far too intent on aggrandisement
impelled him once more into the
labyrinth of fatal and dishonest
II 2
4.84
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
conduct in the expedition to Guiana, there is not
much excuse to make. Rashness and want of
JAMES I. foresight were always among his failings; else lie
would not have undertaken a service of so much.
hazard without obtaining a regular pardon for his
former offence. But it might surely be urged that
either his commission was absolutely null, or that
it operated as a pardon; since a man attainted of
treason is incapable of exercising that authority
which it conferred upon him.*
Be this as it may,
no technical reasoning could overcome the moral
sense that revolted at carrying the original sentence
into execution. Raleigh might be amenable to
punishment for the deception, by which he had
obtained a commission that ought never to have
issued; but the nation could not help seeing in
his death the sacrifice of the bravest and most re-
nowned of Englishmen to the vengeance of Spain.†
This unfortunate predilection for the court of
Madrid had always exposed James to his subjects'
jealousy. They connected it with an inclination
at least to tolerate popery, and with a dereliction
of their commercial interests. But from the time
speculations. Cayley, 89, &c.
Somers' Tracts, ii. p. 22, &c. Cu-
riosities of Literature, New Series,
vol. ii. It has been said that
Raleigh's unjust conviction made
him in one day the most popular,
from having been the most odious,
man in England. He was cer-
tainly such under Elizabeth. This
is a striking, but by no means so-
litary, instance of the impolicy of
political persecution.
* Rymer, xvi. 789. He was em-
powered to name officers, to use
martial law, &c.
+ James made it a merit with
the court of Madrid, that he had
put to death a man so capable of
serving him merely to give them
satisfaction. Somers' Tracts, ii.
437. There
437. There is even reason to sus-
pect that he betrayed the secret of
Raleigh's voyage to Gondomar, be-
fore he sailed. Hardwicke, State
Papers, i. 398. It is said in Mr.
Cayley's Life of Raleigh that his
fatal mistake in not securing a
pardon under the great seal was on
account of the expense. But the
king would have made some dif-
ficulty at least about granting it.
FROM HENRY VII. TO GEORGE II.
485
VI.
that he fixed his hopes on the union of his son CHAP.
with the infanta *, the popular dislike to Spain in-
creased in proportion to his blind preference. If JAMES I.
the king had not systematically disregarded the
public wishes, he could never have set his heart on
this impolitic match; contrary to the wiser maxim
he had laid down in his own Basilicon Doron,
never to seek a wife for his son except in a pro-
testant family. But his absurd pride made him
despise the uncrowned princes of Germany. This
Spanish policy grew much more odious after the
memorable events of 1619, the election of the
king's son-in-law to the throne of Bohemia, his
rapid downfall, and the conquest of the Upper
Palatinate by Austria. If James had listened to
some sanguine advisers, he would in the first in-
stance have supported the pretensions of Frederic.
But neither his own views of public law nor true
policy dictated such an interference.
The case
was changed after the loss of his hereditary do-
minions, and the king was sincerely desirous to
restore him to the Palatinate; but he unreason-
ably expected that he could effect this through the
friendly mediation of Spain, while the nation, not
perhaps less unreasonably, were clamorous for his
* This project began as early as
1605. Winwood, vol. ii. The
king had hopes that the United
Provinces would acknowledge the
sovereignty of prince Henry and
the infanta on their marriage; and
Cornwallis was directed to propose
this formally to the court of Madrid.
Id. p. 201. But Spain would not
cede the point of sovereignty; nor
was this scheme likely to please
either the states-general or the
court of France.
In the later negotiation about
the marriage of prince Charles,
those of the council who were
known or suspected catholics,
Arundel, Worcester, Digby, Wes-
ton, Calvert, as well as Bucking-
ham, whose connexions were such,
were in the Spanish party. Those
reputed to be jealous protestants
were all against it. Wilson, in
Kennet, ii. 725. Many of the
former were bribed by Gondomar.
Id. and Rushworth, i. 19.
I I 3
486
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. attempting it by force of arms.
VI.
In this agitation
of the public mind, he summoned the parliament
JAMES I. that met in February 1621.*
Parliament
of 1621.
The king's speech on opening the session was,
like all he had made on former occasions, full of
hopes and promises, taking cheerfully his share of
the blame as to past disagreements, and treating
them as little likely to recur, though all their causes
were still in operation. † He displayed, however,
more judgment than usual in the commencement
of this parliament. Among the methods devised
to compensate the want of subsidies, none had been
more injurious to the subject than patents of mo-
nopoly, including licences for exclusively carrying
on certain trades. Though the government was
principally responsible for the exactions they con-
nived at, and from which they reaped a large
benefit, the popular odium fell of course on the
monopolists. Of these the most obnoxious was sir
ings against Giles Mompesson, who, having obtained a patent
Proceed-
Mompes-
son.
for gold and silver thread, sold it of baser metal.
This fraud seems neither very extraordinary nor
very important; but he had another patent for
licensing inns and alehouses, wherein he is said to
have used extreme violence and oppression. The
* The proclamation for this par-
liament contains many of the un-
constitutional directions to the
electors, contained, as has been
seen, in that of 1604, though shorter.
Rymer, xvii. 270.
shall
« He
+ "Deal with me, as I
desire at your hands," &c.
knew not," he told them, "the
laws and customs of the land when
he first came, and was misled by
the old counsellors whom the old
queen had left;"-he owns that at
CC
the last parliament there was a
strange kind of beast called under-
taker," &c. Parl. Hist. i. 1180.
Yet this coaxing language was
oddly mingled with sallies of his
pride and prerogative notions. It
is evidently his own composition,
not Bacon's. The latter, in grant-
ing the speaker's petitions, took
the high tone so usual in this
reign, and directed the house of
commons like a schoolmaster. Ba-
con's Works, i. 701.
FROM HENRY VII. TO GEORGE II.
487
CHAP.
VI.
house of commons proceeded to investigate Mom-
pesson's delinquency. Conscious that the crown
had withdrawn its protection, he fled beyond sea. JAMES I.
One Michell, a justice of peace, who had been
the instrument of his tyranny, fell into the hands
of the commons, who voted him incapable of being
in the commission of the peace, and sent him to
the Tower.* Entertaining however, upon second
thoughts, as we must presume, some doubts about
their competence to inflict this punishment, espe-
cially the former part of it, they took the more
prudent course with respect to Mompesson, of
appointing Noy and Hakewill to search for pre-
cedents in order to show how far and for what
offences their power extended to punish delin-
quents against the state as well as those who of
fended against that house. The result appears
some days after, in a vote that "they must join
with the lords for punishing sir Giles Mompesson;
it being no offence against our particular house, nor
any member of it, but a general grievance." +
The earliest instance of parliamentary impeach-
ment, or of a solemn accusation of any individual
by the commons at the bar of the lords, was that
of lord Latimer in the year 1376. The latest
hitherto was that of the duke of Suffolk in 1449;
for a proceeding against the bishop of London in
1534, which has sometimes been reckoned an in-
stance of parliamentary impeachment, does not by
any means support that privilege of the commons. ‡
* Debates of Commons in 1621,
vol. i. p. 84. I quote the two
volumes published at Oxford in
1766; they are abridged in the
new Parliamentary History.
Id. 103. 109.
The commons in this session
complained to the lords, that the
bishop of London (Stokesley) had
imprisoned one Philips on
sus-
II 4
488
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
It had fallen into disuse, partly from the loss of
that control which the commons had obtained
JAMESI. under Richard II. and the Lancastrian kings; and
ment.
partly from the preference the Tudor princes had
given to bills of attainder or of pains and penalties,
when they wished to turn the arm of parliament
against an obnoxious subject. The revival of this
ancient mode of proceeding in the case of Mom-
pesson, though a remarkable event in our consti-
tutional annals, does not appear to have been
noticed as an anomaly. It was not indeed con-
ducted according to all the forms of an impeach-
The commons, requesting a conference
with the other house, informed them generally of
that person's offence, but did not exhibit any dis-
tinct articles at their bar. The lords took up
themselves the inquiry; and having become satis-
fied of his guilt, sent a message to the commons,
that they were ready to pronounce sentence. The
speaker accordingly, attended by all the house,
demanded judgment at the bar: when the lords
passed as heavy a sentence as could be awarded
for any misdemeanor; to which the king, by a
stretch of prerogative, which no one was then in-
clined to call in question, was pleased to add per-
petual banishment.*
The impeachment of Mompesson was followed
up by others against Michell, the associate in his
picion of heresy. Some time after-
wards, they called upon him to
answer their complaint. The bi-
shop laid the matter before the
lords, who all declared that it was
unbecoming for any lord of par-
liament to make answer to any
one in that place; " quod non con-
sentaneum fuit aliquem procerum
prædictorum alicui in eo loco re-
sponsorum. Lords' Journals, i.
71. The lords, however, in 1701
(State Trials, xiv. 275.), seem to
have recognised this as a case of
impeachment.
*Debates in 1621, p. 114. 228,
229.
FROM HENRY VII. TO GEORGE II.
489
CHAP.
VI.
ings against
iniquities; against sir John Bennet, judge of the
prerogative court, for corruption in his office; and
against Field, bishop of Landaff, for being con- JAMES I.
cerned in a matter of bribery.* The first of these
was punished; but the prosecution of Bennet
seems to have dropped in consequence of the ad-
journment, and that of the bishop ended in a slight
censure. But the wrath of the commons was
justly roused against that shameless corruption,
which characterizes the reign of James beyond
every other in our history. It is too well known,
how deeply the greatest man of that age was tar-
nished by the prevailing iniquity. Complaints Proceed-
poured in against the chancellor Bacon for re- lord Bacon..
ceiving bribes from suitors in his court. Some
have vainly endeavoured to discover an excuse
which he did not pretend to set up, and even
ascribed the prosecution to the malevolence of sir
Edward Coke. But Coke took no prominent
share in this business; and though some of the
charges against Bacon may not appear very heinous,
especially for those times, I know not whether the
unanimous conviction of such a man, and the con-
scious pusillanimity of his defence, do not afford
a more irresistible presumption of his misconduct
than any thing specially alledged. He was aban-
doned by the court, and had previously lost, as I
rather suspect, Buckingham's favour; but the
king, who had a sense of his transcendent genius,
remitted the fine of £40,000 imposed by the lords,
which he was wholly unable to pay.‡
* Debates in 1621, passim.
Carte.
Clarendon speaks of this im-
peachment as an unhappy prece-
dent, made to gratify a private dis-
pleasure. This expression seems
rather to point to Buckingham
than to Coke; and some letters of
490
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI..
JAMES I.
There was much to commend in the severity
practised by the house towards public delinquents;
Bacon to the favourite at the time
of his fall display a consciousness
of having offended him. Yet Buck-
ingham had much more reason to
thank Bacon as his wisest coun-
sellor, than to assist in crushing
him. In his works, vol. i. p. 712.,
is a tract, entitled Advice to the
Duke of Buckingham, containing
instructions for his governance as
minister. These are marked by
the deep sagacity and extensive
observation of the writer. One
passage should be quoted in justice
to Bacon. "As far as it may lie
in you, let no arbitrary power be
intruded; the people of this king-
dom love the laws thereof, and
nothing will oblige them more
than a confidence of the free en-
joying of them: what the nobles
upon an occasion once said in par-
liament, Nolumus leges Angliæ
mutari,' is imprinted in the hearts
of all the people." I may add
that with all Bacon's pliancy, there
are fewer over-strained expressions
about the prerogative in his poli-
tical writings than we should ex-
pect. His practice was servile,
but his principles were not uncon-
stitutional. We have seen how
strongly he urged the calling of
parliament in 1614: and he did
the same, unhappily for himself,
in 1621. Vol. ii. p. 580. He re-
fused also to set the great seal to
an office intended to be erected for
enrolling prentices, a speculation
apparently of some monopolists;
writing a very proper letter to
Buckingham, that there was no
ground of law for it. P. 555.
I am very loth to call Bacon,
for the sake of Pope's antithesis,
"the meanest of mankind." Who
would not wish to believe the feel-
ing language of his letter to the
king, after the attack on him had
already begun?" I hope I shall
not be found to have the troubled
fountain of a corrupt heart, in a
depraved habit of taking rewards
to pervert justice; howsoever I
may be frail, and partake of the
abuses of the times." P. 589.
Yet the general disesteem of his
contemporaries speaks forcibly
against him. Sir Simon d'Ewes
and Weldon, both indeed bitter
men, give him the worst of cha-
racters. Surely," says the latter,
(C
never so many parts and so base
and abject a spirit tenanted toge-
ther in any one earthen cottage as
in this man." It is a striking proof
of the splendour of Bacon's genius,
that it was unanimously acknow-
ledged in his own age amidst so
much that should excite contempt.
He had indeed ingratiated himself
with every preceding parliament
through his incomparable ducti-
lity; having taken an active part
in their complaints of grievances
in 1604, before he became attorney-
general, and even on many occa-
sions afterwards while he held
that office, having been intrusted
with the management of confer-
ences on the most delicate sub-
jects. In 1614, the commons,
after voting that the attorney-ge-
neral ought not to be elected to
parliament, made an exception in
favour of Bacon. Journals, p. 460.
"I have been always gracious in
the lower house," he writes to
James in 1616, begging for the
post of chancellor; "I have inte-
rest in the gentlemen of England,
and shall be able to do some good
effect in rectifying that body of
parliament-men, which is cardo
rerum." Vol. ii. p. 496.
I shall conclude this note by
observing, that, if all lord Bacon's
philosophy had never existed, there
would be enough in his political
writings to place him among the
greatest men this country has pro-
duced.
FROM HENRY VII. TO GEORGE II.
491
CHAP.
VI.
such examples being far more likely to prevent the
malversation of men in power than any law they
could enact. But in the midst of these laudable JAMES I.
proceedings, they were hurried by the passions of
the moment into an act of most unwarrantable
violence. It came to the knowledge of the house
that one Floyd, a gentleman confined in the Fleet
prison, had used some slighting words about the
elector palatine and his wife. It appeared in ag-
gravation, that he was a Roman catholic. Nothing
could exceed the fury into which the commons
were thrown by this very insignificant story. A
flippant expression, below the cognizance of an
ordinary court, grew at once into a portentous
offence, which they ransacked their invention to
chastise. After sundry novel and monstrous pro-
positions, they fixed upon the most degrading pu-
nishment they could devise. Next day, however,
the chancellor of the exchequer delivered a mes-
sage, that the king, thanking them for their zeal,
but desiring that it should not transport them to
inconveniences, would have them consider whe-
ther they could sentence one who did not belong
to them, nor had offended against the house or
any member of it; and whether they could sen-
tence a denying party, without the oath of wit-
nesses; referring them to an entry on the rolls of
parliament in the first year of Henry IV., that the
judicial power of parliament does not belong to
the commons. He would have them consider
whether it would not be better to leave Floyd to
him, who would punish him according to his fault.
This message put them into some embarrass-
ment. They had come to a vote in Mompesson's
492
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
case, in the very words employed in the king's
message, confessing themselves to have no juris-
JAMESI. diction, except over offences against themselves.
The warm speakers now controverted this propo-
sition with such arguments as they could muster;
Coke, though from the reported debates he seems
not to have gone the whole length, contending
that the house was a court of record, and that it
consequently had power to administer an oath.*
They returned a message by the speaker, except-
ing to the record in 1 H. 4., because it was not
an act of parliament to bind them, and persisting,
though with humility, in their first votes. † The
king replied mildly; urging them to show pre-
cedents, which they were manifestly incapable of
doing. The lords requested a conference, which
they managed with more temper, and notwith-
standing the solicitude displayed by the commons
to maintain their pretended right, succeeded in
withdrawing the matter to their own jurisdiction.‡
This conflict of privileges was by no means of ser-
* Debates in 1621, vol. ii. p. 7.
+ Debates, p.
14.
In a former parliament of
this reign, the commons having
sent up a message, wherein they
entitled themselves the knights,
citizens, burgesses, and barons
of the commons' court of par-
liament, the lords sent them word
that they would never acknow-
ledge any man that sitteth in the
lower house to have the right or
title of a baron of parliament; nor
could admit the term of the com-
mons' court of parliament;
cause all your house together,
without theirs, doth make no
court of parliament." 4th March,
4th March,
1606. Lords' Journals. Never-
"be-
theless the lords did not scruple,
almost immediately afterwards, to
denominate their own house a
court, as appears by memoranda
of 27th and 28th May; they even
issued a habeas corpus as from a
court, to bring a servant of the
earl of Bedford before them.
So
also in 1609, 16th and 17th of
February. And on April 14th
and 18th, 1614; and probably
later, if search were made.
I need hardly mention, that the
barons mentioned above, as part
of the commons, were the mem-
bers for the cinque ports, whose
denomination is recognised in se-
veral statutes.
FROM HENRY VII. TO GEORGE II.
493
?
VI.
Violence
in the case
of Floyd.
vice to the unfortunate culprit; the lords per- CHAP.
ceived that they could not mitigate the sentence
of the lower house without reviving their dispute, JAMES I.
and vindicated themselves from all suspicion of
indifference towards the cause of the Palatinate by
augmenting its severity. Floyd was adjudged to
be degraded from his gentility, and to be held an
infamous person; his testimony not to be received;
to ride from the Fleet to Cheapside on horseback
without a saddle, with his face to the horse's tail,
and the tail in his hand, and there to stand two
hours in the pillory, and to be branded in the
forehead with the letter K; to ride four days
afterwards in the same manner to Westminster,
and there to stand two hours more in the pillory,
with words in a paper in his hat showing his of
fence; to be whipped at the cart's tail from the
Fleet to Westminster Hall; to pay a fine of £5000,
and to be a prisoner in Newgate during his life.
The whipping was a few days after remitted on
prince Charles's motion; but he seems to have
undergone the rest of the sentence.
of the sentence. There is
surely no instance in the annals of our own, and
hardly of any civilized country, where a trifling
offence, if it were one, has been visited with such
outrageous cruelty. The cold-blooded deliberate
policy of the lords is still more disgusting than the
wild fury of the lower house.
This case of Floyd is an unhappy proof of the
disregard that popular assemblies when inflamed
by passion, are ever apt to show for those prin-
* Debates in 1621, vol. i. p.355,
&c. vol. ii. p. 5, &c. Mede writes
to his correspondent on May 11.
that the execution had not taken
place; "but I hope it will." The
king was plainly averse to it.
4.94
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. ciples of equity and moderation, by which, how-
VI. ever the sophistry of contemporary factions may
JAMESI. set them aside, a calm judging posterity will never
fail to measure their proceedings. It has contri-
buted at least, along with several others of the
same kind, to inspire me with a jealous distrust of
that indefinable, uncontrollable privilege of parlia-
ment, which has sometimes been asserted, and
perhaps with rather too much encouragement from
those whose function it is to restrain all exorbitant
power. I speak only of the extent to which theo-
retical principles have been carried, without in-
sinuating that the privileges of the house of com-
mons have been practically stretched in late times.
beyond their constitutional bounds. Time and
the course of opinion have softened down those
high pretensions, which the dangers of liberty
under James the First, as well as the natural cha-
racter of a popular assembly, then taught the
commons to assume; and the greater humanity of
modern ages has made us revolt from such dis-
proportionate punishments as were inflicted on
Floyd.*
* The following observation on
Floyd's case, written by Mr. Har-
ley, in a manuscript account of the
proceedings (Harl. MSS. 6274.), is
well worthy to be inserted. I copy
from the appendix to the above-
mentioned debates of 1621. “The
following collection," he has writ-
ten at the top, "is an instance how
far a zeal against popery and for
one branch of the royal family,
which was supposed to be neg-
lected by king James, and conse-
quently in opposition to him, will
carry people against common jús-
tice and humanity." And again
at the bottom: "For the honour
of Englishmen, and indeed of hu-
man nature, it were to be hoped
these debates were not truly taken,
there being so many motions con-
trary to the laws of the land, the
laws of parliament, and common
justice. Robert Harley, July 14.
1702." It is remarkable that this
date is very near the time when
the writer of these just observa-
tions, and the party which he led,
had been straining in more than
one instance the privileges of the
house of commons, not certainly
with such violence as in the case
FROM HENRY VII. TO GEORGE II.
495
CHAP.
VI.
Every thing had hitherto proceeded with har-
mony between the king and parliament. His
ready concurrence in their animadversion on Mom- JAMES I.
pesson and Michell, delinquents who had acted at
least with the connivance of government, and in
the abolition of monopolies, seemed to remove all
discontent. The commons granted two subsidies
early in the session without alloying their bounty
with a single complaint of grievances. One might
suppose that the subject of impositions had been
entirely forgotten, not an allusion to them occur-
ring in any debate.* It was voted indeed, in the
first days of the session, to petition the king about
the breach of their privilege of free speech, by the
imprisonment of sir Edwin Sandys, in 1614, for
words spoken in the last parliament; but the house
did not prosecute this matter, contenting itself
with some explanation by the secretary of state. †
They were going on with some bills for reform-
ation of abuses, to which the king was willing to
of Floyd, but much beyond what
can be deemed their legitimate
extent.
* In a much later period of the
session, when the commons had
lost their good humour, some heat
was very justly excited by a peti-
tion from some brewers, complain-
ing of an imposition of four-pence
on the quarter of malt. The cour-
tiers defended this as a composi-
tion in lieu of purveyance. But it
was answered that it was compul-
sory, for several of the principal
brewers had been committed and
lay long in prison for not yielding
to it. One said that impositions of
this nature overthrew the liberty
of all the subjects of this kingdom;
and if the king may impose such
taxes, then are we but villains, and
lose all our liberties. It produced
an order that the matter be exa-
mined before the house, the peti-
tioners to be heard by council, and
all the lawyers of the house to be
present. Debates of 1621, vol. ii.
252. Journals, p. 652. But no-
thing further seems to have taken
place, whether on account of the
magnitude of the business which
occupied them during the short re-
mainder of the session, or because
a bill which passed their house to
prevent illegal imprisonment, or
restraint on the lawful occupation
of the subject, was supposed to
meet this case. It is a remarkable
instance of arbitrary taxation, and
preparatory to an excise.
f Debates of 1621, p. 14. Hat-
sell's Precedents, i. 133.
496
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. accede, when they received an intimation that he
VI. expected them to adjourn over the summer. It
JAMES I. produced a good deal of dissatisfaction to see their
labour so hastily interrupted; especially as they
ascribed it to a want of sufficient sympathy on the
court's part with their enthusiastic zeal for the
elector palatine.* They were adjourned by the
king's commission, after an unanimous declaration
("sounded forth," says one present, "with the
voices of them all, withal lifting up their hats in
their hands so high as they could hold them, as a
visible testimony of their unanimous consent, in
such sort, that the like had scarce ever been seen
in parliament") of their resolution to spend their
lives and fortunes for the defence of their own re-
ligion and of the Palatinate. This solemn protest-
ation and pledge was entered on record in the
journals. †
They met again after five months, without any
change in their views of policy. At a conference of
the two houses, lord Digby, by the king's command,
explained all that had occurred in his embassy to
Germany for the restitution of the Palatinate;
which, though absolutely ineffective, was as much
as James could reasonably expect without a war.‡
He had in fact, though, according to the laxity of
those times, without declaring war on any one,
sent a body of troops under sir Horace Vere, who
still defended the Lower Palatinate. It was ne-
cessary to vote more money, lest these should
mutiny for want of pay. And it was stated to the
commons in this conference, that to maintain a
sufficient army in that country for one year would
* Debates, p. 114. et alibi, passim. Vol. ii. 170.172.
‡ Id.
p.
186.
FROM HENRY VII. TO GEORGE II.
4.97
f
1
require £900,000; which was left to their consi-
deration.* But now it was seen that men's pro-
CHAP.
VI.
mises to spend their fortunes in a cause not essen- JAMES I.
tially their own are written in the sand. The
commons had no reason perhaps to suspect that
the charge of keeping 30,000 men in the heart of
Germany would fall much short of the estimate.
Yet after long haggling they voted only one sub-
sidy, amounting to £70,000; a sum manifestly in-
sufficient for the first equipment of such a force.t
This parsimony could hardly be excused by their
suspicion of the king's unwillingness to undertake
the war, for which it afforded the best justification.
James was probably not much displeased at Disagree-
finding so good a pretext for evading a compliance
with their martial humour; nor had there been
much appearance of dissatisfaction on either side
(if we except some murmurs at the commitment
of one of their most active members, sir Edwin
Sandys, to the Tower, which were tolerably ap-
peased by the secretary Calvert's declaratio n that
he had not been committed for any parliamentary
matter), till the commons drew up a petition and
* P. 189. Lord Cranfield told
the commons there were three rea-
sons why they should give liberally.
1. That lands were now a third
better than when the king came to
the crown. 2. That wools, which
were then 20s. were now 30s. 3.
That corn had risen from 26s. to
36s. the quarter. Ibid. There had
certainly been a very great increase
of wealth under James, especially
to the country gentlemen; of which
their style of building is an evident
proof. Yet in this very session
complaints had been made of the
want of money, and fall in the
price of lands: vol. i. p. 16.; and
VOL. I.
an act was proposed against the
importation of corn; vol. ii. p. 87.
In fact, rents had been enormously
enhanced in this reign, which the
country gentlemen of course en-
deavoured to keep up.
But corn,
probably through good seasons,
was rather lower in 1621, than it
had been, about 30s. a quarter.
† P. 242. &c.
K K
Id. 174. 200. Compare also
p. 151. Sir Thomas Wentworth
appears to have discountenanced
the resenting this as a breach of
privilege. Doubtless the house
showed great and even excessive
moderation in it; for we
can
tween the
ment be-
king and
commons.
}
498
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
remonstrance against the growth of popery; sug-
gesting, among other remedies for this grievance,
JAMESI. that the prince should marry one of our own re-
ligion, and that the king would direct his efforts
against that power (meaning Spain) which first
maintained the war in the Palatinate.
This pe-
tition was proposed by sir Edward Coke. The
courtiers opposed it as without precedent; the
chancellor of the duchy observing that it was of
so high and transcendent a nature, he had never
known the like within those walls. Even the
mover defended it rather weakly, according to our
notions, as intended only to remind the king, but
requiring no answer. The scruples affected by the
courtiers, and the real novelty of the proposition,
had so great an effect, that some words were in-
serted, declaring that the house "did not mean to
press on the king's most undoubted and royal pre-
rogative." * The petition however had not been
presented, when the king, having obtained a copy
of it, sent a peremptory letter to the speaker, that
he had heard how some fiery and popular spirits
had been imboldened to debate and argue on
matters far beyond their reach or capacity, and
directing him to acquaint the house with his plea-
sure that none therein should presume to meddle
with any thing concerning his government or my
steries of state; namely, not to speak of his son's
match with the princess of Spain, nor to touch the
honour of that king, or any other of his friends and
confederates. Sandys's commitment, he bade them
hardly doubt that Sandys was
really committed for no other
cause than his behaviour in parlia-
ment. It was taken up again after-
wards, p. 259.
* P. 261. &c.
1
FROM HENRY VII. TO GEORGE II.
499
CHAP.
VI.
be informed, was not for any misdemeanor in par-
liament. But to put them out of doubt of any
question of that nature that may arise among them JAMESI.
hereafter, he let them know that he thought him-
self very free and able to punish any man's
misdemeanors in parliament, as well during their
sitting as after, which he meant not to spare upon
occasion of any man's insolent behaviour in that
place. He assured them that he would not deign
to hear their petition, if it touched on any of those
points which he had forbidden.*
The house received this message with unani-
mous firmness, but without any undue warmth.
A committee was appointed to draw up a petition,
which, in the most decorous language, and with
strong professions of regret at his majesty's dis-
pleasure, contained a defence of their former pro-
ceedings, and hinted very gently, that they could
not conceive his honour and safety, or the state of
the kingdom, to be matters at any time unfit for
their deepest consideration in time of parliament.
They adverted more pointedly to that part of the
king's message which threatened them for liberty
of speech, calling it their ancient and undoubted
right, and an inheritance received from their an-
cestors, which they again prayed him to confirm.t
His answer, though considerably milder than what
he had designed, gave indications of a resentment
not yet subdued. He dwelt at length on their un-
fitness for entering on matters of government, and
commented with some asperity even on their pre-
sent apologetical petition. In the conclusion he
* P. 284.
† P. 289.
K K 2
500
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
observed that "although he could not allow of the
style, calling their privileges an undoubted right
JAMES I. and inheritance, but could rather have wished that
they had said that their privileges were derived
from the grace and permission of his ancestors and
himself (for most of them had grown from pre-
cedent which rather shows a toleration than inhe-
ritance); yet he gave them his royal assurance,
that as long as they contained themselves within
the limits of their duty, he would be as careful to
maintain their lawful liberties and privileges as he
would his own prerogative; so that their house did
not touch on that prerogative which would enforce
him or any just king to retrench their privileges."
"" *
This explicit assertion that the privileges of the
commons existed only by sufferance, and condi-
tionally upon good behaviour, exasperated the
house far more than the denial of their right to
enter on matters of state. In the one, they were
conscious of having somewhat transgressed the
boundaries of ordinary precedents; in the other,
their individual security, and their very existence
as a deliberative assembly, were at stake. Calvert,
the secretary, and the other ministers, admitted
the king's expressions to be incapable of defence,
and called them a slip of the pen at the close of a
long answer.t The commons were not to be
diverted by any such excuses from their necessary
duty of placing on record a solemn claim of right.
Nor had a letter from the king, addressed to Cal-
vert, much influence; wherein, while he reiterated
his assurances of respecting their privileges, and
* P. 317.
+ P. 330.
FROM HENRY VII. TO GEORGE II.
501
CHAP.
VI.
tacitly withdrew the menace that rendered them
precarious, he said that he could not with patience
endure his subjects to use such anti-monarchical JAMES I.
words to him concerning their liberties, as "an-
cient and undoubted right and inheritance," with-
out subjoining that they were granted by the grace
and favour of his predecessors.* After a long and
warm debate, they entered on record in the Jour-
nals their famous protestation of December 18th,
1621, in the following words :-
"The commons now assembled in parliament,
being justly occasioned thereunto, concerning
sundry liberties, franchises, privileges, and juris-
dictions of parliament, amongst others not herein
mentioned, do make this protestation following:
-That the liberties, franchises, privileges, and
jurisdictions of parliament are the ancient and un-
doubted birthright and inheritance of the subjects
of England; and that the arduous and urgent
affairs concerning the king, state, and the defence
of the realm, and of the church of England, and
the making and maintenance of laws, and redress
of mischiefs and grievances which daily happen
within this realm, are proper subjects and matter
of counsel and debate in parliament; and that in
the handling and proceeding of those businesses,
every member of the house hath, and of right
ought to have, freedom of speech to propound,
treat, reason, and bring to conclusion, the same:
that the commons in parliament have like liberty
and freedom to treat of those matters in such
order as in their judgments shall seem fittest:
* P. 339.
KK 3
502
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. and that every such member of the said house
hath like freedom from all impeachment, impri-
JAMESI. sonment, and molestation (other than by the cen-
sure of the house itself) for or concerning any
bill, speaking, reasoning, or declaring of any matter
or matters touching the parliament or parliament
business; and that, if any of the said members
be complained of, and questioned for any thing
said or done in parliament, the same is to be
showed to the king by the advice and assent
of all the commons assembled in parliament, be-
fore the king give credence to any private in-
formation.'
Dissolution
""*
This protestation was not likely to pacify the
mons, after king's anger. He had already pressed the commons
of the com-
a strong
remon-
strance.
to make an end of the business before them, under
pretence of wishing to adjourn them before Christ-
mas, but probably looking to a dissolution. They
were not in a temper to regard any business, least
of all to grant a subsidy, till this attack on their
privileges should be fully retracted.
The king
therefore adjourned, and in about a fortnight
after dissolved them. But in the interval, having
sent for the journal book, he erased their last pro-
testation with his own hand; and published a
declaration of the causes which had provoked him
to this unusual measure, alledging the unfitness of
such a protest, after his ample assurance of main-
taining their privileges, the irregular manner in
which, according to him, it was voted, and its
ambiguous and general wording, which might
serve in future times to invade most of the prero-
1
* P. 359.
FROM HENRY VII. TO GEORGE II.
503
CHAP.
VI.
gatives annexed to the imperial crown. In his
proclamation for dissolving the parliament, James
recapitulated all his grounds of offences; but finally JAMESI.
required his subjects to take notice that it was
his intention to govern them as his progenitors
and predecessors had done, and to call a parlia-
ment again on the first convenient occasion.* He
immediately followed up this dissolution of par-
liament by dealing his vengeance on its most con-
spicuous leaders: sir Edward Coke and sir Robert
Philips were committed to the Tower; Mr. Pym,
and one or two more, to other prisons; sir Dud-
ley Digges, and several who were somewhat less
obnoxious than the former, were sent on a com-
mission to Ireland, as a sort of honourable banish-
ment.t The earls of Oxford and Southampton
underwent an examination before the council;
and the former was committed to the Tower on
pretence of having spoken words against the king.
It is worthy of observation that, in this session, a
portion of the upper house had united in opposing
the court. Nothing of this kind is noticed in
former parliaments, except perhaps a little on the
establishment of the reformation. In this minority
were considerable names; Essex, Southampton,
Warwick, Oxford, Say, Spencer. Whether a sense
of public wrongs, or their particular resentments,
influenced these noblemen, their opposition must
be reckoned an evident sign of the change that
* Rymer, xvii. 344. Parl. Hist.
Carte, 93. Wilson.
Besides the historians, see
Cabala, part ii. p. 155. (4to edit.);
D'Israeli's Character of James I.,
p. 125.; and Mede's Letters, Harl.
MSS. 389.
KK 4
504
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
JAMES I.
Marriage
treaty with
Spain.
was at work in the spirit of the nation, and by
which no rank could be wholly unaffected.*
James, with all his reputed pusillanimity, never
showed any signs of fearing popular opinion. His
obstinate adherence to the marriage treaty with
Spain was the height of political rashness in so
critical a state of the public mind. But what with
elevated notions of his prerogative and of his skill
in government on the one hand, what with a con-
fidence in the submissive loyalty of the English on
the other, he seems constantly to have fancied that
all opposition proceeded from a small troublesome
faction, whom if he could any way silence, the rest
of his people would at once repose in a dutiful
reliance on his wisdom. Hence he met every suc
ceeding parliament with as sanguine hopes as if he
had suffered no disappointment in the last. The
nation was however wrought up at this time to an
*Wilson's Hist. of James I. in
Kennet, ii. 247. 749. Thirty-
three peers, Mr. Joseph Mede
tells us in a letter of Feb. 24. 1621.
(Harl. MSS. 389.), “ signed a pe-
tition to the king which they re-
fused to deliver to the council, as
he desired, nor even to the prince,
unless he would say he did not re-
ceive it as a counsellor; where-
upon the king sent for lord Ox-
ford, and asked him for it; he,
according to previous agreement,
said he had it not; then he sent
for another, who made the same
answer: at last they told him they
had resolved not to deliver it, un-
less they were admitted all to-
gether. Whereupon his majesty,
wonderfully incensed, sent them
all away, re infectâ, and said that
he would come into parliament
himself, and bring them all to the
bar." This petition, I believe, did
not relate to any general griev
ances, but to a question of their
own privileges, as to their prece-
dence of Scots peers. Wilson, ubi
supra. But several of this large
number were inspired by more ge-
nerous sentiments; and the com-
mencement of an aristocratic op-
position deserves to be noticed.
In another letter, written in March,
Mede speaks of the good under-
standing between the king and
parliament; he promised they
should sit as long as they like,
and hereafter he would have a par-
"Is not
liament every three years.
this good if it be true? .
certain it is that the lords stick
wonderful fast to the commons,
and all take great pains."
•
But
The entertaining and sensible
biographer of James has sketched
the characters of these Whig peers.
Aikin's James I., ii. 238.
FROM HENRY VII. TO GEORGE II.
505
VI.
alarming pitch of discontent. Libels were in cir- CHAP.
culation about 1621, so bitterly malignant in their
censures of his person and administration, that two JAMES I.
hundred years might seem, as we read them, to
have been mistaken in their date.* Heedless how-
ever of this growing odium, James continued to
solicit the affected coyness of the court of Madrid.
The circumstances of that negotiation belong to
general history. It is only necessary to remind the
reader that the king was induced, during the resi-
dence of prince Charles and the duke of Bucking-
ham in Spain, to swear to certain private articles,
some of which he had already promised before their
departure, by which he bound himself to suspend
all penal laws affecting the catholics, to permit the
exercise of their religion in private houses, and to
procure from parliament, if possible, a legal toler-
ation. This toleration, as preliminary to the entire
re-establishment of popery, had been the first great
object of Spain in the treaty. But that court,
having protracted the treaty for years, in order
to extort more favourable terms, and interposed
One of these may be found in
the Somers Tracts, ii. 470., en-
titled Tom Tell-truth, a most ma-
lignant ebullition of disloyalty,
which the author must have risked
his neck as well as ears in publish-
ing. Some outrageous reflections
on the personal character of the
king could hardly be excelled by
modern licentiousness. Proclama-
tions about this time against ex-
cess of lavish speech in matters of
state, Rymer, xvii. 275. 514. and
against printing or uttering sedi-
tious and scandalous pamphlets,
Id. 522. 616. show the tone and
temper of the nation.
+ The letters on this subject,
published by lord Hardwicke, State
Papers, vol. i. are highly important;
and being unknown to Carte and
Hume, render their narratives less
satisfactory. Some pamphlets of
the time, in the second volume of
the Somers Tracts, may be read
with interest; and Howell's Let-
ters, being written from Madrid
during the prince of Wales's re-
sidence, deserve notice. See also
Wilson in Kennet, p. 750. et post.
Dr. Lingard has illustrated the
subject lately, ix. 271.
506
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. a thousand pretences, became the dupe of its own
VI. artifices; the resentment of a haughty minion over-
JAMES I. throwing with ease the painful fabric of this tedious
negotiation.
Parliament
of 1624.
Buckingham obtained a transient and unmerited
popularity by thus averting a great public mischief,
which rendered the next parliament unexpectedly
peaceable. The commons voted three subsidies
and three fifteenths, in value about £300,000 *;
but with a condition, proposed by the king himself,
that, in order to ensure its application to naval and
military armaments, it should be paid into the
hands of treasurers appointed by themselves, who
should issue money only on the warrant of the
council of war. He seemed anxious to tread back
the steps made in the former session, not only
referring the highest matters of state to their con-
sideration, but promising not to treat for peace
without their advice. They, on the other hand,
acknowledged themselves most bound to his ma-
jesty for having been pleased to require their
humble advice in a case so important, not mean-
ing, we may be sure, by these courteous and loyal
But
* Hume, and many other wri-
ters on the side of the crown, assert
the value of a subsidy to have
fallen from £70,000, at which it
had been under the Tudors, to
£55,000, or a less sum.
though I will not assert a negative
too boldly, I have no recollection
of having found any good autho-
rity for this; and it is surely too
improbable to be lightly credited.
For admit that no change was
made in each man's rate according
to the increase of wealth and dimi-
nution of the value of money, the
amount must at least have been
equal to what it had been; and to
suppose the contributors to have
prevailed on the assessors to under-
rate them, is rather contrary to
common fiscal usage. In one of
Mede's letters, which of course I
do not quote as decisive, it is said
that the value of a subsidy was not
above £80,000; and that the asses-
sors were directed (this was in
1621) not to follow former books,
but value every man's estate ac-
cording to their knowledge, and
not his own confession.
FROM HENRY VII. TO GEORGE II.
507
expressions, to recede from what they had claimed
in the last parliament as their undoubted right.
*
CHAP.
VI.
ment of
The most remarkable affair in this session was JAMES I.
the impeachment of the earl of Middlesex, actually Impeach-
lord treasurer of England, for bribery and other Middlesex.
misdemeanors. It is well known that the prince
of Wales and duke of Buckingham instituted this
prosecution to gratify the latter's private pique,
against the wishes of the king, who warned them
they would live to have their fill of parliamentary
impeachment. It was conducted by managers on
the part of the commons in a very regular form,
except that the depositions of witnesses were
merely read by the clerk; that fundamental rule
of English law which insists on the vivâ voce exa-
mination, being as yet unknown, or dispensed with
in political trials. Nothing is more worthy of no-
tice in the proceedings upon this impeachment
than what dropped from sir Edwin Sandys, in
speaking upon one of the charges. Middlesex had
laid an imposition of £3 per ton on French wines,
for taking off which he received a gratuity. San-
dys, commenting on this offence, protested in the
name of the commons, that they intended not to
question the power of imposing claimed by the
king's prerogative: this they touched not upon
now; they continued only their claim, and when
they should have occasion to dispute it, would do
so with all due regard to his majesty's state and
* Parl. Hist. 1383. 1388. 1390.
Carte, 119. The king seems to
have acted pretty fairly in this
parliament, bating a gross false-
hood in denying the intended to-
leration of papists. He wished to
get further pledges of support from
parliament before he plunged into
a war, and was very right in doing
So.
On the other hand, the prince
and duke of Buckingham behaved
in public towards him with great
rudeness. Parl. Hist. 1396.
508
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VI.
revenue.*
Such cautious and temperate language,
far from indicating any disposition to recede from
JAMES I. their pretensions, is rather a proof of such united
steadiness and discretion as must ensure their suc-
cess. Middlesex was unanimously convicted by
the peers. His impeachment was of the highest
moment to the commons; as it restored for ever
that salutary constitutional right which the single
precedent of lord Bacon might have been insuf
ficient to establish against the ministers of the
crown.
The two last parliaments had been dissolved
without passing a single act, except the subsidy
bill of 1621. An interval of legislation for thir-
teen years was too long for any civilized country.
Several statutes were enacted in the present session,
but none so material as that for abolishing mono-
polies for the sale of merchandise, or for using any
trade. This is of a declaratory nature, and re-
cites that they are already contrary to the ancient
and fundamental laws of the realm. Scarce any
difference arose between the crown and the com-
mons. This singular calm might probably have
been interrupted, had not the king put an end to
*Parl. Hist. 1421.
+ Clarendon blames the im-
peachment of Middlesex for the
very reason which makes me deem
it a fortunate event for the con-
stitution, and seems to consider
him as a sacrifice to Buckingham's
resentment. Hacket also, the bio-
grapher of Williams, takes his
part. Carte however thought him
guilty, p. 116.; and the unanimous
vote of the peers is much against
him, since that house was not
wholly governed by Buckingham.
See too the Life of Nicholas Far-
rar in Wordsworth's Ecclesiastical
Biography, vol. iv.; where it ap-
pears that that pious and consci-
entious man was one of the trea
surer's most forward accusers,
having been deeply injured by him.
It is difficult to determine the ques-
tion from the printed trial.
21 Jac. 1. c. 3. See what lord
Coke says on this act, and on
the general subject of monopolies,
3 Inst. 181.
FROM HENRY VII. TO GEORGE II.
509
CHAP.
VI.
the session. They expressed some little dissatis-
faction at this step, and presented a list of griev-
ances, one only of which is sufficiently considerable JAMES I.
to deserve notice; namely, the proclamations al-
ready mentioned in restraint of building about
London, whereof they complain in very gentle
terms, considering their obvious illegality and
violation of private right. †
The commons had now been engaged, for more
than twenty years, in a struggle to restore and to
fortify their own and their fellow subjects' liberties.
They had obtained in this period but one legis-
lative measure of importance, the late declaratory
act against monopolies. But they had rescued
from disuse their ancient right of impeachment.
They had placed on record a protestation of their
claim to debate all matters of public concern. They
had remonstrated against the usurped prerogatives
of binding the subject by proclamation, and of
levying customs at the out-ports. They had se-
cured beyond controversy their exclusive privilege
of determining contested elections of their mem-
bers. They had maintained, and carried indeed
to an unwarrantable extent, their power of judging
and inflicting punishment, even for offences not
committed against their house. Of these advantages
some were evidently incomplete; and it would re-
quire the most vigorous exertions of future par-
liaments to realize them. But such exertions the
nation gave abundant
cause to anticipate. A deep and lasting love of
freedom had taken hold of every class except per-
increased energy of the
*P. H. 1483.
+ Id. 1488,
510
THE CONSTITUTIONAL HISTORY OF ENGLAND
VI.
CHAP. haps the clergy; from which, when viewed together
with the rash pride of the court, and the uncer-
JAMESI. tainty of constitutional principles and precedents,
collected through our long and various history, a
calm by-stander might presage that the ensuing
reign would not pass without disturbance, nor per-
haps end without confusion.
FROM HENRY VII. TO GEORGE II.
511
CHAPTER VII.
ON THE ENGLISH CONSTITUTION FROM THE ACCES-
SION OF CHARLES I. TO THE DISSOLUTION OF HIS
THIRD PARLIAMENT.
J
Another Parliament called
Parliament of 1625 — Its Dissolution
Prosecution of Buckingham — Arbitrary Proceedings towards the Earls
of Arundel and Bristol - Loan demanded by the King - Several com-
mitted for Refusal to contribute — They sue for a Habeas Corpus —Ar-
guments on this Question, which is decided against them A Parliament
called in 1628 - Petition of Right - King's Reluctance to grant it
Tonnage and Poundage disputed — King dissolves Parliament
gious Differences Prosecution of Puritans by Bancroft — Growth of
High-Church Tenets - Differences as to the Observance of Sunday
Arminian Controversy State of Catholics under James - Jealousy of
the Court's Favour towards them Unconstitutional Tenets promulgated
by the High-Church Party - General Remarks.
Reli-
CHARLES the First had much in his character very
suitable to the times in which he lived, and to the
spirit of the people he was to rule; a stern and
a stern and
serious deportment, a disinclination to all licen-
tiousness, and a sense of religion that seemed more
real than in his father.* These qualities we might
suppose to have raised some expectation of him,
and to have procured at his accession some of that
* The general temperance and
chastity of Charles, and the effect
those virtues had in reforming the
outward face of the court, are at-
tested by many writers, and espe-
cially by Mrs. Hutchinson, whose
good word he would not have un-
deservedly obtained. Mem. of Col.
Hutchinson, p. 65. I am aware
that he was not the perfect saint
as well as martyr which his pane-
gyrists represent him to have been ;
but it is an unworthy office, even
for the purpose of throwing ridi-
cule on exaggerated praise, to turn
the microscope of history on pri-
vate life.
CHAP.
VII.
CHA. I.
1625-29.
512
THE CONSTITUTIONAL HISTORY OF ENGLAND
VII.
1625-29,
CHAP. popularity, which is really withheld from untried
princes. Yet it does not appear that he enjoyed
CHA. I. even this first transient sunshine of his subjects'
affection. Solely intent on retrenching the excesses
of prerogative, and well aware that no sovereign
would voluntarily recede from the possession of
power, they seem to have dreaded to admit into
their bosoms any sentiments of personal loyalty,
which might enervate their resolution. And Charles
took speedy means to convince them that they had
not erred in withholding their confidence.
Elizabeth in her systematic parsimony, James
in his averseness to war, had been alike influenced
by a consciousness that want of money alone could
render a parliament formidable to their power.
None of the irregular modes of supply were ever
productive enough to compensate for the clamour
they occasioned; after impositions and benevo-
lences were exhausted, it had always been found
necessary, in the most arbitrary times of the Tu-
dors, to fall back on the representatives of the peo-
ple. But Charles succeeded to a war, at least to
the preparation of a war, rashly undertaken through
his own weak compliance, the arrogance of his
favourite, and the generous or fanatical zeal of the
last parliament. He would have perceived it to
be manifestly impossible, if he had been capable
of understanding his own position, to continue
this war without the constant assistance of the
house of commons, or to obtain that assistance
without very costly sacrifices of his royal power.
It was not the least of this monarch's impru-
dences, or rather of his blind compliances with
Buckingham, to have not only commenced hos-
FROM HENRY VII. TO GEORGE II.
513
VII.
tilities against Spain which he might easily have CHAP.
avoided*, and persisted in them for four years,
but entered on a fresh war with France, though CHA. I.
he had abundant experience to demonstrate the
impossibility of defraying its charges.
1625—29.
of 1625.
The first parliament of this reign has been se- Parliament
verely censured on account of the penurious sup-
ply it doled out for the exigencies of a war, in
which its predecessors had involved the king. I
will not say that this reproach is wholly unfounded.
A more liberal proceeding, if it did not obtain a
reciprocal concession from the king, would have
put him more in the wrong. But, according to
the common practice and character of all such as-
semblies, it was preposterous to expect subsidies
equal to the occasion, until a foundation of con-
fidence should be laid between the crown and par-
liament. The commons had begun probably to
repent of their hastiness in the preceding year,
and to discover that Buckingham and his pupil,
or master, (which shall we say ?) had conspired to
deceive them. They were not to forget that
none of the chief grievances of the last reign were
yet redressed, and that supplies must be voted
slowly and conditionally if they would hope for
* War had not been declared at
Charles's accession, nor at the dis-
solution of the first parliament.
In fact, he was much more set
upon
than his subjects, Hume
and all his school keep this out of
sight.
Hume has disputed this, but
with little success, even on his own
showing. He observes, on an as-
sertion of Wilson, that Bucking-
ham lost his popularity after Bris-
tol arrived, because he proved that
VOL. I.
the former, while in Spain, had
professed himself a papist,- that
it is false, and was never said by
Bristol. It is singular that Hume
should know so positively what
Bristol did not say in 1624, when
it is notorious that he said in par-
liament what nearly comes to the
same thing in 1626. See a curious
letter in Cabala, p. 224., showing
what a combination had been
formed against Buckingham, of all
descriptions of malcontents.
L L
514
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VII.
1625-29.
reformation. Hence they made their grant of ton-
nage and poundage to last but for a year instead
CHA. I. of the king's life, as had for two centuries been
the practice; on which account the upper house
rejected the bill.* Nor would they have refused
a further supply, beyond the two subsidies (about
£140,000) which they had granted, had some ten-
der of redress been made by the crown; and were
Its dissolu- actually in debate upon the matter, when inter-
rupted by a sudden dissolution.†
tion.
Nothing could be more evident, by the expe-
rience of the late reign as well as by observing
the state of public spirit, than that hasty and pre-
mature dissolutions or prorogations of parliament
served but to aggravate the crown's embarrass-
ments. Every successive house of commons in-
herited the feelings of its predecessor, without
which it would have ill represented the prevalent
humour of the nation. The same men, for the
most part, came again to parliament more irritated
and desperate of reconciliation with the sovereign
than before. Even the politic measure, as it was
fancied to be, of excluding some of the most active
members from seats in the new assembly, by no-
minating them sheriffs for the year, failed altoge-
ther of the expected success; as it naturally must
in an age when all ranks partook in a common
enthusiasm.‡ Hence the prosecution against Buck-
* Parl. Hist. vol. i. p. 6.
+ Id. 33.
The language of lord keeper
Coventry in opening the session
was very ill calculated for the spi-
rit of the commons:
"If we con-
sider aright, and think of that in-
comparable distance between the
supreme height and majesty of a
mighty monarch and the submis-
sive awe and lowliness of loyal
subjects, we cannot but receive ex-
ceeding comfort and contentment
in the frame and constitution of this
highest court, wherein not only
the prelates, nobles, and grandees,
•
FROM HENRY VII. TO GEORGE II.
515
CHAP.
VII.
1625-29.
ingham, to avert which Charles had dissolved
his first parliament, was commenced with re-
doubled vigour in the second. It was too late, CHA. I.
after the precedents of Bacon and Middlesex, to
dispute the right of the commons to impeach a
minister of state. The king however, anticipating
their resolutions, after some sharp speeches only had
been uttered against his favourite, sent a message
that he would not allow any of his servants to be
questioned among them, much less such as were
of eminent place and near unto him. He saw, he
said, that some of them aimed at the duke of
Buckingham, whom, in the last parliament of his
father, all had combined to honour and respect,
nor did he know what had happened since to alter
their affections; but he assured them that the
duke had done nothing without his own special
direction and appointment. This haughty mes- Prosecu-
sage so provoked the commons that, having no Bucking-
express testimony against Buckingham, they came
to a vote that common fame is a good ground of
proceeding either by inquiry, or presenting the
complaint to the king or lords; nor did a speech
from the lord keeper, severely rating their pre-
sumption, and requiring on the king's behalf that
they should punish two of their members who had
given him offence by insolent discourses in the
house, lest he should be compelled to use his royal
authority against them; nor one from the king him-
self, bidding them remember that parliaments were
but the commons of all degrees,
have their part; and wherein that
high majesty doth descend to ad-
mit, or rather to invite, the hum-
blest of his subjects to conference
and counsel with him," &c. He
gave them a distinct hint after-
wards that they must not expect
to sit long. Parl. Hist. 39.
tion of
ham.
LL 2
516
THE CONSTITUTIONAL HISTORY OF ENGLAND
VII.
1625-29.
CHAP. altogether in his power for their calling, sitting, and
dissolution; therefore, as he found the fruits of
CHA. I. them good or evil, they were to continue to be or
not to be*, tend to pacify or to intimidate the
assembly. They addressed the king in very de-
corous language, but asserting "the ancient, con-
stant, and undoubted right and usage of parlia
ments to question and complain of all persons, of
what degree soever, found grievous to the com-
monwealth, in abusing the power and trust com-
mitted to them by their sovereign." The duke
was accordingly impeached at the bar of the house
of peers on eight articles, many of them probably
well-founded; yet as the commons heard no evi-
dence in support of them, it was rather unreason-
able in them to request that he might be com-
mitted to the Tower.
In the conduct of this impeachment, two of the
managers, sir John Eliot and sir Dudley Digges,
one the most illustrious confessor in the cause of
liberty whom that time produced, the other, a
man of much ability and a useful supporter of the
*Parl. Hist. 60. I know of no-
thing under the Tudors of greater
arrogance than this language. Sir
Dudley Carleton, accustomed more
to foreign negotiations than to an
English house of commons, gave
very just offence by descanting on
the misery of the people in other
countries. "He cautioned them
not to make the king out of love
with parliaments by incroaching
on his prerogative; for in his mes-
sages he had told them that he
must then use new councils. In
all christian kingdoms there were
parliaments anciently, till the mon-
archs seeing their turbulent spirits,
stood upon their prerogatives,
and overthrew them all, except
with us. In foreign countries the
people look not like ours, with store
of flesh on their backs; but like
ghosts, being nothing but skin and
bones, with some thin cover to their
nakedness, and wearing wooden
shoes on their feet; a misery be-
yond expression, and that we are
yet free from; and let us not lose
the repute of a free-born nation
by our turbulency in parliament."
Rushworth.
This was a hint, in the usual
arrogant style of courts, that the
liberties of the people depended on
favour, and not on their own de-
termination to maintain them.
FROM HENRY VII. TO GEORGE II.
517
CHAP.
VII.
1625-29.
popular party, though not exempt from some
oblique views towards promotion, gave such offence
by words spoken, or alledged to be spoken, in de- CHA. I.
rogation of his majesty's honour, that they were
committed to the Tower. The commons of course
resented this new outrage. They resolved to do
no more business till they were righted in their
privileges. They denied the words imputed to
Digges; and, thirty-six peers asserting that he had
not spoken them, the king admitted that he was
mistaken, and released both their members.* He Arbitrary
had already broken in upon the privileges of the towards the
house of lords, by committing the earl of Arundel earls of
to the Tower during the session; not upon any
political charge, but, as was commonly surmised,
on account of a marriage which his son had made
with a lady of royal blood. Such private offences
were sufficient in those arbitrary reigns to expose
the subject to indefinite imprisonment, if not to
an actual sentence in the star-chamber. The lords
took up this detention of one of their body, and
after formal examination of precedents by a com-
mittee, came to a resolution, "that no lord of par-
liament, the parliament sitting, or within the usual
times of privilege of parliament, is to be impri-
soned or restrained without sentence or order of
*Parl. Hist. 119. Hatsell, i.
147. Lords' Journals. A few peers
refused to join in this.
Dr. Lingard has observed that
the opposition in the house of lords
was headed by the earl of Pem-
broke, who had been rather con-
spicuous in the late reign, and
whose character is drawn by Cla-
rendon in the first book of his his-
tory. He held ten proxies in the
king's first parliament, as Bucking-
ham did thirteen. Lingard, ix.
328. In the second Pembroke had
had only five, but the duke still
came with thirteen. Lords' Jour-
nals, p. 491. This enormous ac-
cumulation of suffrages in one per-
son led to an order of the house,
which is now its established regu-
lation, that no peer can hold more
than two proxies. Lords' Jour-
nals, p. 507.
proceedings
Arundel
LL 3.
518
THE CONSTITUTIONAL HISTORY OF ENGLAND
VII.
the house, unless it be for treason or felony, or
for refusing to give surety for the peace." This
CHA. I. assertion of privilege was manifestly warranted by
the co-extensive liberties of the commons. After
various messages between the king and lords,
Arundel was ultimately set at liberty.
1625-29.
and Bristol.
*
This infringement of the rights of the peerage
was accompanied by another not less injurious,
the refusal of a writ of summons to the earl of
Bristol. The lords were justly tenacious of this
unquestionable privilege of their order, without
which its constitutional dignity and independence
could never be maintained. Whatever irregulari-
ties or uncertainty of legal principle might be
found in earlier times as to persons summoned
only by writ without patents of creation, concern-
ing whose hereditary peerage there is much reason
to doubt; it was beyond all controversy that an
earl of Bristol holding his dignity by patent was
entitled of right to attend parliament. The house
necessarily insisted upon Bristol's receiving his
summons, which was sent him with an injunction
not to comply with it by taking his place. But
the spirited earl knew that the king's constitu-
tional will expressed in the writ ought to outweigh
his private command, and laid the secretary's
letter before the house of lords. The king pre-
vented any further interference in his behalf by
causing articles of charge to be exhibited against
him by the attorney-general, whereon he was com-
mitted to the Tower. These assaults on the pride
and consequence of an aristocratic assembly, from
whom alone the king could expect effectual sup-
*Parl. Hist. 125. Hatsell, 141.
FROM HENRY VII. TO GEORGE II.
519
>
CHAP.
VII.
1625-29.
port, display his unfitness not only for the go-
vernment of England, but of any other nation.
Nor was his conduct towards Bristol less oppres- CHA. I.
sive than impolitic. If we look at the harsh and
indecent employment of his own authority and
even testimony, to influence a criminal process
against a man of approved and untainted worth
and his sanction of charges which, if Bristol's de-
fence be as true, as it is now generally admitted
to be, he must have known to be unfounded; we
shall hardly concur with those candid persons who
believe that Charles would have been an excellent
prince in a more absolute monarchy. Nothing
in truth can be more preposterous than to main-
tain, like Clarendon and Hume, the integrity and
innocence of lord Bristol, together with the sin-
cerity and humanity of Charles the First. Such
inconsistencies betray a determination in the his-
torian to speak of men according to his precon-
ceived affection or prejudice, without so much as
attempting to reconcile these sentiments to the
facts which he can neither deny nor excuse.†
* Mr. Brodie has commented
rather too severely on Bristol's
conduct, vol. ii. p. 109. That he
was
"actuated merely by motives
of self-aggrandizement," is surely
not apparent; though he might be
more partial to Spain than we may
think right, or even though he
might have some bias towards the
religion of Rome. The last how-
ever is by no means proved; for
the king's word is no proof in my
siring that they would not comply
with the earl's request of being
allowed counsel; and yielded un-
graciously, when the lords remon-
strated against the prohibition,
Parl. Hist. 97. 132. The attorney-
general exhibited articles against
Bristol as to facts depending in
great measure on the king's sole
testimony. Bristol petitioned the
house "to take in consideration
of what consequence such a pre-
cedent might be; and thereon
† See the proceedings on the most humbly to move his majesty
mutual charges of Buckingham for the declining, at least, of his
and Bristol in Rushworth, or the majesty's accusation and testi-
Parliamentary History. Charles's mony." Id. 98. The house or-
behaviour is worth noticing. He dered two questions on this to be
sent a message to the house, de- put to the judges: 1. Whether, in
LLA
eyes.
520
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VII.
1625-29.
**
Though the lords petitioned against a dissolu-
tion, the king was determined to protect his fa-
CHA. I. vourite, and rescue himself from the importunities
of so refractory a house of commons. Perhaps
he had already taken the resolution of governing
without the concurrence of parliaments, though
he was induced to break it the ensuing year. For
the commons having delayed to pass a bill for the
five subsidies they had voted in this session till
they should obtain some satisfaction for their com-
plaints, he was left without any regular supply.
This was not wholly unacceptable to some of his
counsellors, and probably to himself; as affording
a pretext for those unauthorised demands which
the advocates of arbitrary prerogative deemed
more consonant to the monarch's honour. He
manded by had issued letters of privy seal, after the former
parliament, to those in every county, whose names
had been returned by the lord lieutenant as most
Loan de-
the king.
case of treason or felony, the king's
testimony was to be admitted or
not? 2. Whether words spoken
to the prince, who is after king,
make any alteration in the case?
They were ordered to deliver their
opinions three days afterwards.
But when the time came, the chief
justice informed the house that the
attorney-general had communi-
cated to the judges his majesty's
pleasure that they should forbear
to give an answer. Id. 103. 106.
Hume says,
"Charles himself
was certainly deceived by Buck-
ingham, when he corroborated his
favourite's narrative by his testi-
mony." But no assertion can be
more gratuitous; the supposition
indeed is impossible.
* Parl. Hist. 193. If the follow-
ing letter is accurate, the privy-
council themselves were against
this dissolution: "Yesterday the
lords sitting in council at Whitehall
to argue whether the parliament
should be dissolved or not, were all
with one voice against the dissolu-
tion of it; and to-day, when the
lord keeper drew out the commis-
sion to have read it, they sent four
of their own body to his majesty
to let him know how dangerous
this abruption would be to the
state, and beseech him the parlia-
ment might sit but two days - he
answered, not a minute." 15 June,
1626. Mede's Letters, ubi supra.
The author expresses great alarm
at what might be the consequence
of this step. Mede ascribes this
to the council; but others, perhaps
more probably, to the house of
peers. The king's expression "not
a minute" is mentioned by several
writers.
FROM HENRY VII. TO GEORGE II.
521
VII.
CHA. I.
1625—29.
capable, mentioning the sum they were required CHAP.
to lend, with a promise of repayment in eighteen
months.* This specification of a particular sum
was reckoned an unusual encroachment, and a
manifest breach of the statute against arbitrary be-
nevolences; especially as the names of those who
refused compliance were to be returned to the
council. But the government now ventured on a
still more outrageous stretch of power. They first
attempted to persuade the people that, as subsidies
had been voted in the house of commons, they
should not refuse to pay them, though no bill had
been passed for that purpose. But a tumultuous
cry was raised in Westminster-hall from those who
had been convened, that they would pay no sub-
sidy but by authority of parliament.† This course,
* Rushworth, Kennet.
+ Mede's Letters-" On Mon-
day the judges sat in Westminster-
hall, to persuade the people to pay
subsidies; but there arose a great
tumultuous shout amongst them :
A parliament! a parliament ! else
no subsidies!' The levying of the
subsidies, verbally granted in par-
liament, being propounded to the
subsidy men in Westminster, all of
them, saving some thirty among
five thousand (and they all the
king's servants), cried A parlia-
ment! a parliament!' &c. The
same was done in Middlesex on
Monday also, in five or six places,
but far more are said to have re-
fused the grant. At Hicks's hall
the men of Middlesex assembled
there, when they had heard a
speech for the purpose, made their
obeisance; and so went out with-
out any answer affirmative or ne-
gative. In Kent the whole county
denied, saying that subsidies were
matters of too high a nature for
them to meddle withal, and that
they durst not deal therewith, lest,
hereafter, they might be called in
question." July 22. et post. In
Harleian MSS. xxxvii. fol. 192., we
find a letter from the king to the
deputy lieutenants and justices of
every county, informing them that
he had dissolved the last parlia-
ment because the disordered pas-
sion of some members of that house,
contrary to the good inclination of
the greater and wiser sort of them,
had frustrated the grant of four
subsidies, and three fifteenths,
which they had promised; he
therefore enjoins the deputy lieu-
tenants to cause all the troops and
bands of the county to be mustered,
trained, and ready to march, as he
is threatened with invasion; that
the justices do divide the county
into districts, and appoint in each
able persons to collect and receive
moneys, promising the parties to
employ them in the common de-
fence; to send a list of those who
contribute and those who refuse,
"that we may hereby be informed
who are well affected to our service,
and who are otherwise." July 7.
522
THE CONSTITUTIONAL HISTORY OF ENGLAND
VII.
1625-29.
CHAP. therefore, was abandoned for one hardly less un-
constitutional. A general loan was demanded
CHA. I. from every subject, according to the rate at which
he was assessed in the last subsidy. The commis-
sioners appointed for the collection of this loan re-
ceived private instructions to require not less than
a certain proportion of each man's property in
lands or goods, to treat separately with every one,
to examine on oath such as should refuse, to cer-
tify the names of refractory persons to the privy-
council, and to admit of no excuse for abatement
of the sum required.*
This arbitrary taxation (for the name of loan
could not disguise the extreme improbability that
the money would be repaid), so general and sys-
tematic as well as so weighty, could not be en-
dured without establishing a precedent that must
have shortly put an end to the existence of parlia-
ments. For, if those assemblies were to meet only
for the sake of pouring out stupid flatteries at the
foot of the throne, of humbly tendering such sup-
plies as the ministry should suggest, or even of
hinting at a few subordinate grievances which
touched not the king's prerogative and absolute
control in matters of state-functions which the
Tudors and Stuarts were well pleased that they
should exercise-if every remonstrance was to be
checked by a dissolution, and chastised by impri-
sonment of its promoters, every denial of subsidy
to furnish a justification for extorted loans, our
free-born high-minded gentry would not long have
1626. It is evident that the pre-
text of invasion, which was utterly
improbable, was made use of in
order to shelter the king's illegal
proceedings.
*Rushworth's Abr. i. 270.
FROM HENRY VII. TO GEORGE II.
523
VII.
1625-29.
brooked to give their attendance in such an igno- CHAP.
minious assembly, and an English parliament would
have become as idle a mockery of national repre- CHA. I.
sentation as the cortes of Castile. But this king-
dom was not in a temper to put up with tyranny.
The king's advisers were as little disposed to re-
cede from their attempt. They prepared to en-
force it by the arm of power.* The common
people who refused to contribute, were impressed
to serve in the navy. The gentry were bound by Several
recognizance to appear at the council-table, where for refusal to
many of them were committed to prison. Among They sue
these were five knights, Darnel, Corbet, Earl,
Heveningham, and Hampden, who sued the court
of king's bench for their writ of habeas corpus.
The writ was granted; but the warden of the Fleet
* The 321st volume of Hargrave
MSS. p. 300., contains minutes of
a debate at the council-table dur-
ing the interval between the se-
cond and third parliaments of
Charles, taken by a counsellor. It
was proposed to lay an excise on
beer; others suggested that it
should be on malt, on account of
what was brewed in private houses.
It was then debated "how to
overcome difficulties, whether by
persuasion or force. Persuasion,
it was thought, would not gain it;
and for judicial courses, it would
not hold against the subject that
would stand upon the right of his
own property, and against the fun-
damental constitutions of the king-
dom. The last resort was to a pro-
clamation; for in star-chamber it
might be punishable, and there
upon it rested.” There follows
much more; it seemed to be
agreed that there was such a ne-
cessity as might justify the impo-
sition; yet a sort of reluctance is
visible even among these timid
counsellors. The king pressed it
forward much. In the same vo-
lume, p. 393., we find other pro-
ceedings at the council-table,
whereof the subject was, the cen-
suring or punishing of some one
who had refused to contribute to
the loan of 1626 on the ground of
its illegality. The highest lan-
guage is held by some of the con-
clave in this debate.
Mr. D'Israeli has collected from
the same copious reservoir, the
manuscripts of the British Mu-
seum, several more illustrations,,
both of the arbitrary proceedings
of the council, and of the bold
spirit with which they were re-
sisted. Curiosities of Literature,
New Series, iii. 381. But this in-
genious author is too much imbued
with "the monstrous faith of
many made for one," and sets the
private feelings of Charles for an
unworthy and dangerous minion,
above the liberties and interests of
the nation.
t Rushworth, Kennet~
committed
contribute.
for a habeas
corpus.
524
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VII.
CHA. I.
1625-29.
Arguments
on this
question.
made return that they were detained by a warrant
from the privy-council, informing him of no parti-
cular cause of imprisonment, but that they were
committed by the special command of his majesty.
This gave rise to a most important question, whe-
ther such a return was sufficient in law to justify
the court in remitting the parties to custody. The
fundamental immunity of English subjects from
arbitrary detention had never before been so fully
canvassed; and it is to the discussion which arose
out of the case of these five gentlemen that we owe
its continual assertion by parliament, and its ulti-
mate establishment in full practical efficacy by the
statute of Charles II. It was argued with great
ability by Noy, Selden, and other eminent lawyers,
on behalf of the claimants, and by the attorney-
general Heath for the crown.
The counsel for the prisoners grounded their
demand of liberty on the original basis of Magna
Charta; the twenty-ninth section of which, as is
well known, provides that "no free man shall be
taken or imprisoned unless by lawful judgment of
his peers, or the law of the land." This principle
having been frequently transgressed by the king's
privy-council in earlier times, statutes had been
repeatedly enacted, independently of the general
confirmations of the charter, to redress this ma-
terial grievance. Thus in the 25th of Edward III.
it is provided that "no one shall be taken by pe-
tition or suggestion to the king or his counsel,
unless it be (i. e. but only) by indictment or pre-
sentment, or by writ original at the common law."
And this is again enacted three years afterwards,
with little variation, and once again in the course
FROM HENRY VII. TO GEORGE II.
525
CHAP.
VII.
1625—29.
of the same reign. It was never understood, what-
ever the loose language of these old statutes might
suggest, that no man could be kept in custody CHA. I.
upon a criminal charge before indictment, which
would have afforded too great security to offenders.
But it was the regular practice that every warrant
of commitment, and every return by a gaoler to
the writ of habeas corpus, must express the nature
of the charge, so that it might appear whether it
were no legal offence; in which case the party
must be instantly set at liberty; or one for which
bail ought to be taken, or one for which he must
be remanded to prison. It appears also to have
been admitted without controversy, though not
perhaps according to the strict letter of law, that
the privy-council might commit to prison on a
criminal charge, since it seemed preposterous to
deny that power to those intrusted with the care
of the commonwealth, which every petty magi-
strate enjoyed. But it was contended that they
were as much bound as every petty magistrate to
assign such a cause for their commitments as
might enable the court of king's bench to deter-
mine whether it should release or remand the pri-
soner brought before them by habeas corpus.
The advocates for this principle alledged several
precedents, from the reign of Henry VII. to that
of James, where persons committed by the council
generally, or even by the special command of the
king, had been admitted to bail on their habeas
corpus. "But I conceive," said one of these,
"that our case will not stand upon precedent, but
upon the fundamental laws and statutes of this
realm; and though the precedents look one way
Ї
526
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VII.
1625-29.
or the other, they are to be brought back unto
the laws by which the kingdom is governed.”
CHA. I. He was aware that a pretext might be found to
elude most of his precedents. The warrant had
commonly declared the party to be charged on
suspicion of treason or of felony; in which case
he would of course be bailed by the court. Yet in
some of these instances the words " by the king's
special command," were inserted in the commit-
ment; so that they served to repel the pretension
of an arbitrary right to supersede the law by his
personal authority. Ample proof was brought
from the old law books that the king's command
could not excuse an illegal act. "If the king com-
mand me," said one of the judges under Henry
VI., "to arrest a man, and I arrest him, he shall
have an action of false imprisonment against me,
though it were done in the king's presence."
"The king," said chief justice Markham to Ed-
ward IV., "cannot arrest a man upon suspicion
of felony or treason, as any of his subjects may;
because if he should wrong a man by such arrest,
he can have no remedy against him." No verbal
order of the king, nor any under his sign manual
or privy signet, was a command, it was contended
by Selden, which the law would recognize as suf-
ficient to arrest or detain any of his subjects; a
writ duly issued under the seal of a court being
the only language in which he could signify his
will. They urged further that, even if the first
commitment by the king's command were lawful,
yet when a party had continued in prison for a
reasonable time, he should be brought to answer,
and not be indefinitely detained; liberty being a
FROM HENRY VII. TO GEORGE II.
527
thing so favoured by the law that it will not suffer
any man to remain in confinement for any longer
time than of necessity it must.
To these pleadings for liberty, Heath, the at-
torney-general, replied in a speech of considerable
ability, full of those high principles of prerogative
which, trampling as it were on all statute and pre-
cedent, seemed to tell the judges that they were
placed there to obey rather than to determine.
"This commitment," he says, "is not in a legal
and ordinary way, but by the special command of
our lord the king, which implies not only the fact
done, but so extraordinarily done, that it is no-
toriously his majesty's immediate act and will that
it should be so." He alludes afterwards, though
somewhat obscurely, to the king's absolute power,
as contra-distinguished from that according to
law; a favourite distinction, as I have already ob-
served, with the supporters of despotism. "Shall
we make inquiries," he says, "whether his com-
mands are lawful? - who shall call in question the
justice of the king's actions, who is not to give
account for them?" He argues from the legal
maxim that the king can do no wrong, that a
cause must be presumed to exist for the commit-
ment, though it be not set forth. He adverts with
more success to the number of papists and other
state-prisoners, detained for years in custody for
"Some there were,
mere political jealousy.
says, "in the Tower who were put in it when very
young; should they bring a habeas corpus, would
the court deliver them?" Passing next to the pre-
cedents of the other side, and condescending to
admit their validity, however contrary to the tenor
وو
he
CHAP.
VII.
CHA. I.
1625-29.
528
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VII.
CHA. I.
1625-29.
Which is
decided
against
them.
of his former argument, he evades their application
by such distinctions as I have already mentioned.
mand.
The judges behaved during this great cause with
apparent moderation and sense of its importance
to the subject's freedom. Their decision, however,
was in favour of the crown; and the prisoners
were remanded to custody. In pronouncing this
judgment the chief justice, sir Nicholas Hyde,
avoiding the more extravagant tenets of absolute
monarchy, took the narrower line of denying the
application of those precedents, which had been
alledged to show the practice of the court in bail-
ing persons committed by the king's special com-
He endeavoured also to prove that, where
no cause had been expressed in the warrant, ex-
cept such command as in the present instance, the
judges had always remanded the parties; but with
so little success that I cannot perceive more than
one case mentioned by him, and that above a hun-
dred years old, which supports this doctrine. The
best authority on which he had to rely, was the
resolution of the judges in the 34th of Elizabeth,
published in Anderson's Reports.*) For, though
this is not grammatically worded, it seems impossible
to doubt that it acknowledges the special command
of the king or the authority of the privy-council as
a body, to be such sufficient warrant for a commit-
ment as to require no further cause to be expressed,
and to prevent the judges from discharging the
* See above, in chap. v. Coke
himself, while chief justice, had
held that one committed by the
privy-council was not bailable by
any court in England. Parl. Hist.
310. He had nothing to say when
pressed with this in the next par-
liament, but that he had mis-
grounded his opinion upon a cer-
tain precedent, which being no-
thing to the purpose, he was now
assured his opinion was as little
to the purpose. Id. 325. State
Trials, iii. 81.
FROM HENRY VII. TO GEORGE II.
529
CHAP.
VII.
1625-22.
party from custody, either absolutely or upon
bail. Yet it was evidently the consequence of
this decision, that every statute from the time of CHA. I.
Magna Charta, designed to protect the personal
liberties of Englishmen, became a dead letter ;
since the insertion of four words in a warrant (per
speciale mandatum regis), which might become
matter of form, would control their remedial effi-
cacy. And this wound was the more deadly, in
that the notorious cause of these gentlemen's im-
prisonment was their withstanding an illegal ex-
action of money. Every thing that distinguished
our constitutional laws, all that rendered the name
of England valuable, was at stake in this issue. If
the judgment in the case of ship-money was more
flagrantly iniquitous, it was not so extensively
destructive as the present.
Neither these measures, however, of illegal se-
verity towards the uncompliant, backed as they
were by a timid court of justice, nor the exhort-
ations of a more prostitute and shameless band of
churchmen, could divert the nation from its car-
dinal point of faith in its own prescriptive fran-
chises. To call another parliament appeared the
only practicable means of raising money for a war,
in which the king persisted with great impolicy or
rather blind trust in his favourite. He consented
to this with extreme unwillingness.t Previously to
its assembling, he released a considerable number
of gentlemen and others who had been committed
* State Trials, iii. 1–234. Parl.
Hist. 246. 259, &c. Rushworth.
+ At the council-table, some
VOL. I.
proposing a parliament, the king
said, he did abominate the name.
Mede's Letters, 30th Sept. 1626,
M M
A parlia-
ment called
in 1628.
530
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VII.
1625-29.
for their refusal of the loan. These were, in many
cases, elected to the new parliament; coming thither
CHA. I. with just indignation at their country's wrongs, and
pardonable resentment at their own.
No year,
indeed, within the memory of any one living, had
witnessed such violations of public liberty as 1627.
Charles seemed born to carry into daily practice
those theories of absolute power, which had been
promulgated from his father's lips. Even now,
while the writs were out for a new parliament.
commissioners were appointed to raise money "by
impositions or otherwise, as they should find most
convenient in a case of such inevitable necessity,
wherein form and circumstance must be dispensed
with rather than the substance be lost and hazard-
ed *;" and the levying of ship-money was already
debated in the council. Anticipating, as indeed
was natural, that this house of commons would cor-
respond as ill to the king's wishes as their predeces-
sors, his advisers were preparing schemes more
congenial, if they could be rendered effective, to
the spirit in which he was to govern. A contract
was entered into for transporting some troops and a
considerable quantity of arms from Flanders into
England, under circumstances at least highly sus-
picious, and which, combined with all the rest that
appears of the court policy at that time, leaves no
great doubt on the mind that they were designed to
keep under the people, while the business of contri-
bution was going forward.t Shall it be imputed asa
reproach to the Cokes, the Seldens, the Glanvils, the
*Rushworth. Mede's Letters
in Harl. MSS. passim.
+ Rushworth's Abr. i. 304. Ca-
bala, part ii. 217. See what is said
of this by Mr. Brodie, ii. 158.
FROM HENRY VII. TO GEORGE 11.
531
CHAP.
VII.
1625-29.
Pyms, the Eliots, the Philipses, of this famous par-
liament, that they endeavoured to devise more
effectual restraints than the law had hitherto im- CHA. I.
posed on a prince who had snapped like bands of
tow the ancient statutes of the land, to remove from
his presence counsellors, to have been misled by
whom was his best apology, and to subject him to
an entire dependence on his people for the expen-
diture of government, as the surest pledge of his
obedience to the laws P
The principal matters of complaint taken up by
the commons in this session were, the exaction of
money under the name of loans; the commitment
of those who refused compliance, and the late de-
cision of the king's bench, remanding them upon a
habeas corpus; the billeting of soldiers on private
persons, which had occurred in the last year, whe-
ther for convenience or for purposes of intimidation
and annoyance; and the commissions to try mili-
tary offenders by martial law-a procedure neces-
sary within certain limits to the discipline of an
army, but unwarranted by the constitution of this
country which was little used to any regular forces,
and stretched by the arbitrary spirit of the king's
administration beyond all bounds.* These four Petition of
grievances or abuses form the foundation of the Right.
Petition of Right, presented by the commons in the
shape of a declaratory statute. Charles had The king's
recourse to many subterfuges in hopes to elude the
A commission addressed to
lord Wimbleton, 28th Dec. 1625,
empowers him to proceed against
soldiers or dissolute persons join-
ing with them, who should com-
mit any robberies, &c. which by
martial law ought to be punished
with death, by such summary
course as is agreeable to martial
law, &c. Rymer, xviii. 254. An-
other, in 1626, may be found,
p. 763. It is unnecessary to point
out how unlike these commissions
are to our present mutiny-bills.
reluctance
to grant it.
M M
2
532
THE CONSTITUTIONAL HISTORY OF ENGLAND
VII.
1625-29.
CHAP. passing of this law; rather perhaps through wounded
pride, as we may judge from his subsequent con-
CHA. I. duct, than much apprehension that it would create
a serious impediment to his despotic schemes. He
tried to persuade them to acquiesce in his royal
promise not to arrest any one without just cause, or
in a simple confirmation of the Great Charter and
other statutes in favour of liberty. The peers, too
pliant in this instance to his wishes, and half reced-
ing from the patriot banner they had lately joined,
lent him their aid by proposing amendments (insi-
dious in those who suggested them, though not in
the body of the house), which the commons firmly
rejected.* Even when the bill was tendered to
him for that assent, which it had been necessary
for the last two centuries that the king should
grant or refuse in a word, he returned a long and
equivocal answer, from which it could only
be collected that he did not intend to remit any
portion of what he had claimed as his prerogative.
But on an address from both houses for a more
explicit answer, he thought fit to consent to the bill
in the usual form. The commons, of whose harsh-
ness towards Charles his advocates have said so
*Bishop Williams, as we are
informed by his biographer, though
he promoted the petition of right,
stickled for the additional clause
adopted by the lords, reserving
the king's sovereign power; which
very justly exposed him to suspi-
cion of being corrupted. For that
he was so is most evident by what
follows; where we are told that he
had an interview with the duke of
Buckingham, when they were re-
conciled; and "his grace had the
bishop's consent with a little ask-
ing, that he would be his grace's
faithful servant in the next session
of parliament, and was allowed to
hold up a seeming enmity, and his
own popular estimation, that he
might the sooner do the work.”
Hacket's Life of Williams, p. 77.
80.
With such instances of base-
ness and treachery in the public
men of this age, surely the distrust
of the commons was not so extra-
vagant as the school of Hume pre-
tend,
FROM HENRY VII. TO GEORGE II.
533
CHAP.
VII,
much, immediately passed a bill for granting five
subsidies, about £350,000; a sum not too great
for the wealth of the kingdom or for his exigencies, CHA. I.
but considerable according to the precedents of
former times, to which men naturally look.*
The sincerity of Charles in thus according his
assent to the Petition of Right may be estimated by
the following very remarkable conference which
he held on the subject with his judges. Before the
bill was passed, he sent for the two chief jus-
tices, Hyde and Richardson, to Whitehall; and
propounded certain questions, directing that the
other judges should be assembled in order to an-
swer them. The first question was, "Whether in
no case whatsoever the king may not commit a
subject without showing cause?" To which the
judges gave an answer the same day under their
hands, which was the next day presented to his
majesty by the two chief justices in these words:
"We are of opinion that, by the general rule of
law, the cause of commitment by his majesty ought
to be shown; yet some cases may require such
secrecy, that the king may commit a subject with-
out showing the cause for a convenient time."
The king then delivered them a second question,
* The debates and conferences
on this momentous subject, espe-
cially on the article of the habeas
corpus, occupy near two hundred
columns in the New Parliamentary
History, to which I refer the reader.
In one of these conferences, the
lords, observing what a prodigious
weight of legal ability was arrayed
on the side of the petition, very
fairly determined to hear counsel
for the crown. One of these, ser-
jeant Ashley, having argued in
behalf of the prerogative in a high
tone, such as had been usual in the
late reign, was ordered into cus-
tody; and the lords assured the
other house, that he had no au-
thority from them for what he had
said. Id. 327. A remarkable proof
of the rapid growth of popular
principles!
1625—29.
M M 3
584
THE CONSTITUTIONAL HISTORY OF ENGLAND
Ì.
1625—29.
cr
CHAP. and required them to keep it very secret, as the
VII. former: "Whether, in case a habeas corpus be
CHA. I. brought, and a warrant from the king without any
general or special cause returned, the judges ought
to deliver him before they understand the cause
from the king?" Their answer was as follows:
Upon a habeas corpus brought for one con-
mitted by the king, if the cause be not specially
or generally returned, so as the court may take
knowledge thereof, the party ought by the general
rule of law to be delivered. But, if the case be
such that the same requireth secrecy, and may not
presently be disclosed, the court in discretion may
forbear to deliver the prisoner for a convenient
time, to the end the court may be advertised of
the truth thereof." On receiving this answer, the
king proposed a third question: "Whether, if the
king grant the commons' petition, he doth not
thereby exclude himself from. committing or re-
straining a subject for any time or cause whatso-
ever, without showing a cause?" The judges re-
turned for answer to this important query: "Every
law, after it is made, hath its exposition, and so
this petition and answer must have an exposition
as the case in the nature thereof shall require to
stand with justice; which is to be left to the courts
of justice to determine, which cannot particularly
be discovered until such case shall happen. And
although the petition be granted, there is no fear
of conclusion as is intimated in the question."*
The king, a very few days afterwards gave his
first answer to the Petition of Right. For even
* Hargrave MSS. xxxii. 97.
FROM HENRY VII. TO GEORGE II.
535
N
1
this indirect promise of compliance, which the
judges gave him, did not relieve him from appre-
hensions that he might lose the prerogative of ar-
bitrary commitment. And though, after being
beaten from this evasion, he was compelled to ac-
cede in general terms to the petition, he had the
insincerity to circulate one thousand five hundred
copies of it through the country, after the proroga-
tion, with his first answer annexed; an attempt to
deceive without the possibility of success. But in-
stances of such ill faith, accumulated as they are
through the life of Charles, render the assertion of
his sincerity a proof either of historical ignorance,
or of a want of moral delicacy.
*
The Petition of Right, as this statute is still
called, from its not being drawn in the common
form of an act of parliament, after reciting the
various laws which have established certain essen-
tial privileges of the subject, and enumerating the
violations of them which had recently occurred, in
the four points of illegal exactions, arbitrary com-
mitments, quartering of soldiers or sailors, and in-
fliction of punishment by martial law, prays the
king, "That no man hereafter be compelled to
make or yield any gift, loan, benevolence, tax, or
such like charge without common consent by act
of parliament; and that none be called to answer
or take such oath, or to give attendance, or be con-
fined or otherwise molested or disquieted concern-
ing the same, or for refusal thereof; and that no
freeman in any such manner as is before mentioned
CHAP.
VII.
CHA. I.
1625-29.
*Parl. Hist. 436.
M M 4
536
THE CONSTITUTIONAL HISTORY OF ENGLAND.
VII.
CHAP. be imprisoned or detained; and that your majesty
would be pleased to remove the said soldiers and
CHA. I. marines, and that your people may not be so bur-
1625-29. thened in time to come; and that the aforesaid
commissions for proceeding by martial law may be
revoked and annulled; and that hereafter no com-
missions of the like nature may issue forth to any
person or persons whatever, to be executed as afore-
said, lest by colour of them any of
your majesty's
subjects be destroyed or put to death contrary to
the laws and franchises of the land.” *
It might not unreasonably be questioned whe-
ther the language of this statute were sufficiently
general to comprehend duties charged on mer-
chandise at the out-ports, as well as internal taxes
and exactions, especially as the former had received
a sort of sanction, though justly deemed contrary
to law, by the judgment of the court of exchequer
in Bates's case. The commons however were
steadily determined not to desist till they should
have rescued their fellow-subjects from a burthen
as unwarrantably imposed as those specifically
enumerated in their Petition of Right. Tonnage
and pound- and poundage, the customary grant of every reign,
Tonnage
age dis-
puted.
had been taken by the present king without con-
sent of parliament; the lords having rejected, as
before-mentioned, a bill that limited it to a single
year. The house now prepared a bill to grant it,
but purposely delayed its passing; in order to re-
monstrate with the king against his unconstitu-
tional anticipation of their consent. They declared
* Stat. 3 Car. I. c. l. Hume has
printed in a note the whole statute
with the preamble, which I omit
for the sake of brevity, and because
it may be found in so common a
book.
FROM HENRY VII. TO GEORGE II.
537
}
VII.
1625-29.
"that there ought not any imposition to be laid CHAP.
upon the goods of merchants, exported or imported,
without common consent by act of parliament;" CHA. I.
that tonnage and poundage, like other subsidies,
sprung from the free grant of the people; that
when impositions had been laid on the subjects'
goods and merchandises without authority of law,
which had very seldom occurred, they had, on
complaint in parliament, been forthwith relieved;
except in the late king's reign, who, through evil
counsel, had raised the rates and charges to the
height at which they then were." They conclude,
after repeating their declaration that the receiving
of tonnage and poundage and other impositions not
granted by parliament is a breach of the funda-
mental liberties of this kingdom, and contrary to
the late petition of right, with most humbly be-
seeching his majesty to forbear any further receiv-
ing of the same, and not to take it in ill part from
those of his loving subjects who should refuse to
make payment of any such charges without warrant
of law.*
The king anticipated the delivery of this remon-
strance by proroguing the parliament. Tonnage
and poundage, he told them, was what he had never
meant to give away, nor could possibly do without.
By this abrupt prorogation while so great a matter
was unsettled, he trod back his late footsteps, and
dissipated what little hopes might have arisen from
his tardy assent to the Petition of Right. During
the interval before the ensuing session, those mer-
chants, among whom Chambers, Rolls, and Vassal
* Parl. Hist. 431.
538
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VII.
1 625-29.
*
are particularly to be remembered with honour,
who gallantly refused to comply with the demands.
CHA. I. of the custom-house, had their goods distrained,
and on suing writs of replevin, were told by the
judges that the king's right, having been esta-
blished in the case of Bates, could no longer be
disputed. Thus the commons re-assembled, by
no means less inflamed against the king's adminis-
tration than at the commencement of the preced-
ing session. Their proceedings were conducted
with more than usual warmth. † Buckingham's
death, which had occurred since the prorogation,
did not allay their resentment against the advisers.
of the crown. But the king, who had very much
lowered his tone in speaking of tonnage and pound-
age, and would have been content to receive it as
their grant, perceiving that they were bent on a
full statutory recognition of the illegality of impo-
sitions without their consent, and that they had
opened a fresh battery on another side, by mingling
in certain religious disputes in order to attack some
of his favourite prelates, took the step, to which he
was always inclined, of dissolving this third parlia-
The king
dissolves the
parliament.
Religious
ment.
The religious disputes to which I have just al-
differences. luded are chiefly to be considered, for the present
purpose, in their relation to those jealousies and
resentments springing out of the ecclesiastical ad-
ministration, which during the reigns of the two
first Stuarts furnished unceasing food to political
discontent. James having early shown his inflexi-
ble determination to restrain the puritans, the bi-
* Rushworth Abr. i. 409.
+ Parl. Hist. 441, &c.
FROM HENRY VII. TO GEORGE II.
539
CHAP.
VII.
CHA. I.
shops proceeded with still more rigour than under
Elizabeth. No longer thwarted, as in her time, by
an unwilling council, they succeeded in exacting a
general conformity to the ordinances of the church. 1625-29.
It had been solemnly decided by the judges in the
queen's reign, and in 1604, that, although the sta-
tute establishing the high-commission court did
not authorize it to deprive ministers of their bene-
fices, yet this law being only in affirmation of the
queen's inherent supremacy, she might, by virtue
of that, regulate all ecclesiastical matters at her
pleasure, and erect courts with such powers as she
should think fit. Upon this somewhat dangerous Prosecution
principle, archbishop Bancroft deprived a consi- of puritans
derable number of puritan clergymen *; while croft.
many more, finding that the interference of the
commons in their behalf was not regarded, and
that all schemes of evasion were come to an end,
were content to submit to the obnoxious discipline.
But their affections being very little conciliated by
this coercion, there remained a large party within
the bosom of the established church, prone to
watch for and magnify the errors of their spiritual
rulers. These men preserved the name of puritans.
Austere in their lives, while many of the others
* Cawdrey's Case, 5 Reports.
Cro. Jac. 37. Neal, p. 432. The
The
latter says, above three hundred
were deprived; but Collier reduces
them to forty-nine; p. 687. The
former writer states the non-com-
formist ministers at this time in
twenty-four counties to have been
754; of course the whole number
was much greater; p. 434. This
minority was considerable; but it
is chiefly to be noticed, that it con-
tained the more exemplary portion
of the clergy; no scandalous or
absolutely illiterate incumbent, of
whom there was a very large num-
ber, being a non-conformist. This
general enforcement of conformity,
however it might compel the ma-
jority's obedience, rendered the se-
paration of the incompliant more
decided. Neal, 446. Many retired
to Holland, especially of the Brown-
ist, or Independent denomination.
Id. 436. And Bancroft, like his
successor Laud, interfered to stop
some who were setting out for
Virginia. Id. 454.
by Ban-
540
THE CONSTITUTIONAL HISTORY OF ENGLAND
VII.
CHA. I.
1625-29.
CHAP. were careless or irregular, learned as a body com-
paratively with the opposite party, implacably
averse to every thing that could be construed into
an approximation to popery, they acquired a degree
of respect from grave men, which would have been
much more general, had they not sometimes given
offence by a moroseness and even malignity of dis-
position, as well as by a certain tendency to equi-
vocation and deceitfulness; faults however, which
so frequently belong to the weaker party under a
rigorous government that they scarcely afford a
marked reproach against the puritans. They na-
turally fell in with the patriotic party in the house
of commons, and kept up throughout the kingdom
a distrust of the crown, which has never been so
general in England as when connected with some
religious apprehensions.
high-church
tenets.
Growth of The system pursued by Bancroft and his imitators,
bishops Neile and Laud, with the approbation of
the king, far opposed to the healing counsels of
Burleigh and Bacon, was just such as low-born and
little-minded men, raised to power by fortune's ca-
price, are ever found to pursue. They studiously
aggravated every difference, and irritated every
wound. As the characteristic prejudice of the pu-
ritans was so bigoted an abhorrence of the Romish
faith, that they hardly deemed its followers to de-
serve the name of Christians, the prevailing high-
church party took care to shock that prejudice by
somewhat of a retrograde movement, and various
seeming, or indeed real, accommodations of their
tenets to those of the abjured religion. They be-
gan by preaching the divine right, as it is called,
or absolute indispensability, of episcopacy; a doc-
FROM HENRY VII. TO GEORGE II.
541
CHAP.
VII.
CHA. I.
trine of which the first traces, as I apprehend,
are found about the end of Elizabeth's reign.*
They insisted on the necessity of episcopal suc-
cession regularly derived from the apostles. They 1625-29.
drew an inference from this tenet, that ordinations
by presbyters were in all cases null. And as this
affected all the reformed churches in Europe ex-
cept their own, the Lutherans not having pre-
served the succession of their bishops, while the
Calvinists had altogether abolished that order, they
began to speak of them not as brethren of the
same faith, united in the same cause, and distin-
guished only by differences little more material
than those of political commonwealths, (which had
been the language of the church of England ever
since the Reformation,) but as aliens to whom
* Lord Bacon, in his advertise-
ment respecting the Controversies
of the Church of England, written
under Elizabeth, speaks of this no-
tion as newly broached. "Yea and
some indiscreet persons have been
bold in open preaching to use dis-
honourable and derogatory speech
and censure of the churches abroad;
and that so far, as some of our
men ordained in foreign parts have
been pronounced to be no lawful
ministers" vol. i. p. 382. It is
evident, by some passages in Strype,
attentively considered, that natives
regularly ordained abroad in the
presbyterian churches were ad-
mitted to hold preferment in Eng-
land; the first bishop who object-
ed to them seems to have been
Aylmer. Instances, however, of
foreigners holding preferment with
out any re-ordination, may be found
down to the civil wars. Annals of
Reformation, ii. 522., and Appen-
dix, 116. Life of Grindal, 271.
Collier, ii. 594. Neal, i. 258.
The divine right of episcopacy
is said to have been laid down by
Bancroft, in his famous sermon at
Paul's cross, in 1588. But I do
not find any thing in it to that ef
fect. It is however pretty dis-
tinctly asserted, if I mistake not
the sense, in the canons of 1606.
Overall's Convocation Book, 179,
&c. Yet Laud had been reproved
by the university of Oxford in
1604, for maintaining, in his exer-
cise for bachelor of divinity, that
there could be no true church with-
out bishops, which was thought to
cast a bone of contention between
the church of England and the re-
formed upon the Continent. Hey-
lin's Life of Laud, 54.
Cranmer and some of the ori-
ginal founders of the Anglican
church, so far from maintaining
the divine and indispensable right
of episcopal government, held bi-
shops and priests to be the same
order.
542
THE CONSTITUTIONAL HISTORY OF ENGLAND
VII.
1625-29.
CHAP. they were not at all related, and schismatics with
whom they held no communion; nay, as wanting
CHA. I. the very essence of a Christian society. This
again brought them nearer, by irresistible conse-
quence, to the disciples of Rome, whom, with be-
coming charity, but against the received creed of
the puritans and perhaps against their own articles,
they all acknowledged to be a part of the catholic
church, while they were withholding that appella-
tion, expressly or by inference, from Heidelberg
and Geneva.
Differences
as to the ob-
Sunday.
The founders of the English reformation, after
servance of abolishing most of the festivals kept before that
time, had made little or no change as to the mode
of observance of those they retained. Sundays
and holidays stood much on the same footing as
days on which no work except for good cause was
to be performed, the service of the church was to
be attended, and any lawful amusement might be
indulged in.* A just distinction however soon
grew up; an industrious people could spare time
for very few holidays; and the more scrupulous
party, while they slighted the church-festivals as
of human appointment, prescribed a stricter ob-
servance of the Lord's day. But it was not till
about 1595 that they began to place it very nearly
on the footing of the Jewish sabbath, interdicting
not only the slightest action of worldly business,
but even every sort of pastime and recreation; a
system which, once promulgated, soon gained
ground as suiting their atrabilious humour, and
* See the queen's injunctions of
1559, Somers Tracts, i. 65., and
compare preamble of 5 and 6 of
Edw. VI. c. 3.
FROM HENRY VII. TO GEORGE II.
543
VII.
1625-29.
affording a new theme of censure on the vices of CHAP.
the great.* Those who opposed them on the
high-church side, not only derided the extrava- CHA. I.
gance of the Sabbatarians, as the others were
called, but pretended that the commandment hav-
ing been confined to the Hebrews, the modern ob-
servance of the first day of the week as a season
of rest and devotion was an ecclesiastical institu-
tion, and in no degree more venerable than that
of the other festivals or the season of Lent, which
the puritans stubbornly despised.†
Such a con-
CC
* The first of these Sabbatarians
was a Dr. Bound, whose sermon
was suppressed by Whitgift's order.
But some years before, one of Mar-
tin Mar-prelate's charges against
Aylmer was for playing at bowls
on Sundays: and the word sabbath
as applied to that day may be
found occasionally under Eliza-
beth, though by no means so usual
as afterwards. One of Bound's re-
commendations was that no feasts
should be given on that day, ex-
cept by lords, knights, and persons
of quality;" for which unlucky re-
servation his adversaries did not
forget to deride him. Fuller's
Church History, p. 227. This
writer describes in his quaint style
the abstinence from sports pro-
duced by this new doctrine; and
remarks, what a slight acquaint-
ance with human nature would
have taught archbishop Laud, that
"the more liberty people were
offered, the less they used it;
it was sport for them to refrain
from sport." See also Collier,
643. Neal, 386. Strype's Whit-
gift, 530. May's Hist. of Parlia-
ment, 16.
+ Heylin's Life of Laud, 15.
Fuller, part ii. p. 76.
The regulations enacted at va-
rious times since the Reform-
ation for the observance of ab-
stinence in as strict a manner,
though not ostensibly on the same
grounds, as it is enjoined in the
church of Rome, may deserve some
notice. A statute of 1548 (2 and
3 Edward VI. c. 19.), after reciting
that one day or one kind of meat
is not more holy, pure, or clean
than another, and much else to the
same effect, yet "forasmuch as di-
vers of the king's subjects, turn-
ing their knowledge therein to gra-
tify their sensuality, have of late
more than in times past broken
and contemned such abstinence,
which hath been used in this realm
upon the Fridays and Saturdays,
the embering days and other days
commonly called vigils, and in the
time commonly called Lent, and
other accustomed times; the king's
majesty considering that due and
godly abstinence is a mean to vir-
tue and to subdue men's bodies to
their soul and spirit, and consider-
ing also especially that fishers and
men using the trade of fishing in
the sea may thereby the rather be
set on work, and that by eating of
fish much flesh shall be saved and
increased," enacts, after repealing
all existing laws on the subject,
that such as eat flesh at the for-
bidden seasons shall incur a pe-
nalty of ten shillings, or ten days'
imprisonment without flesh, and a
544
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. troversy might well have been left to the usual
weapons. But James I., or some of the bishops
VII.
CHA. I.
1625-29. double penalty for the second of-
fence.
The next statute relating to ab-
stinence is one (5th Eliz. c. 5.) en-
tirely for the increase of the fishery.
It enacts, § 15. &c. that no one,
unless having a licence, shall eat
flesh on fish-days, or on Wednes-
days, now made an additional fish-
day, under a penalty of £3. or
three months' imprisonment. Ex-
cept that every one having three
dishes of sea-fish at his table,
might have one of flesh also. But
"because no manner of person shall
misjudge of the intent of this sta-
tute," it is enacted that whosoever
shall notify that any eating of fish
or forbearing of flesh mentioned
therein is of any necessity for the
saving of the soul of man, or that
it is the service of God, otherwise
than as other politic laws are and
be; that then such persons shall
be punished as spreaders of false
news, § 39 and 40. The act 27th
Eliz. c. 11. repeals the prohibition
as to Wednesday; and provides
that no victuallers shall vend flesh
in Lent, nor upon Fridays or Sa-
turdays, under a penalty. The
35th Eliz. c. 7. § 22. reduces the
penalty of three pounds or three
months' imprisonment, enacted by
5th of Eliz. to one third. This is
the latest statute that appears on
the subject.
Many proclamations appear to
have been issued in order to en-
force an observance so little con-
genial to the propensities of En-
glishmen. One of those in the first
year of Edward was before any sta-
tute; and its very words respecting
the indifference of meats in a reli-
gious sense were adopted by the
legislature the next year. (Strype's
Eccles. Memor. ii. 81.) In one of
Elizabeth's, A.D. 1572, as in the
statute of Edward, the political
motives of the prohibition seem in
some measure associated with the
superstition it disclaims; for eat-
ing in the season of Lent is called
"licentious and carnal disorder, in
contempt of God and man, and
only to the satisfaction of devilish
and carnal appetite ;" and butchers
&c. " ministering to such foul lust
of the flesh," were severely mulcted.
Strype's Annals, ii. 208. But in
1576 another proclamation to the
same effect uses no such hard
words, and protests strongly against
any superstitious interpretation of
its motive. Life of Grindal, p. 226.
So also in 1579, Strype's Annals,
ii. 608., and, as far as I have ob-
served, in all of a later date, the
encouragement of the navy and
fishery is set forth as their sole
ground. In 1596, Whitgift, by
the queen's command, issued let-
ters to the bishops of his province,
to take order that the fasting-days,
Wednesday and Friday, should be
kept, and no suppers eaten, espe-
cially on Friday evens.
This was
on account of the great dearth of
that and the preceding year.
Strype's Whitgift, p. 490. These
proclamations for the observance
of Lent continued under James and
Charles, as late, I presume, as the
commencement of the civil war.
They were diametrically opposed
to the puritan tenets; for, notwith-
standing the pretext about the
fishery, there
fishery, there is no doubt that the
dominant ecclesiastics maintained
the observance of Lent as an ordi-
nance of the church. But I sus-
pect that little regard was paid to
Friday and Saturday as days of
weekly fast. Rymer, xvii. 131.
134. 349.; xviii. 268. 282. 961.
This abstemious system, how-
ever, was only compulsory on the
poor. Licences were easily ob-
tained by others from the privy-
council in Edward's days, and af-
terwards from the bishop. They
FROM HENRY VII. TO GEORGE II.
545
VII.
1625-29.
to whom he listened, bethought themselves that CHAP.
this might serve as a test of puritan ministers. He
published accordingly a declaration to be read in CHA. I.
churches, permitting all lawful recreations on Sun-
day after divine service, such as dancing, archery,
May-games, and morrice-dances, and other usual
sports; but with a prohibition of bear-baiting and
other unlawful games. No recusant, or any one
who had not attended the church-service, was en-
titled to this privilege; which might consequently
be regarded as a bounty on devotion. The severe
puritan saw it in no such point of view. To his
cynical temper, May-games and morrice-dances
were hardly tolerable on six days of the week;
they were now recommended for the seventh.
And this impious licence was to be promulgated
in the church itself. It is indeed difficult to ex-
plain so unnecessary an insult on the precise
clergy, but by supposing an intention to harass.
were empowered, with their guests,
to eat flesh on all fasting-days for
life. Sometimes the number of
guests was limited. Thus the mar-
quis of Winchester had permission
for twelve friends; and John San-
ford, draper of Gloucester, for two.
Strype's Memorials, ii. 82. The
act above mentioned for encou-
ragement of the fishery, 5th Eliz.
c. 5., provides that £1.6s. 8d. shall
be paid for granting every licence,
and 6s. 8d. annually afterwards, to
the poor of the parish. But no
licence was to be granted for eat-
ing beef at any time of the year,
or veal from Michaelmas to the
first of May. A melancholy pri-
vation to our countrymen! but, I
have no doubt, little regarded.
Strype makes known to us the in-
teresting fact, that Ambrose Pot-
ter, of Gravesend, and his wife, had
VOL. I.
permission from archbishop Whit-
gift "to eat flesh and white meats
in Lent, during their lives; so that
it was done soberly and frugally,
cautiously, and avoiding public
scandal as much as might be, and
giving 6s. 8d. annually to the poor
of the parish." Life of Whitgift,
246,
The civil wars did not so put an
end to the compulsory observance
of Lent and fish days but that si-
milar proclamations are found after
the Restoration, I know not how
long. Kennet's Register, p. 367.
and 558. And some orthodox An-
glicans continued to make a show
of fasting. The following extracts
from Pepys's diary are, perhaps,
characteristic of the class. "I
called for a dish of fish which we
had for dinner, this being the first
day of Lent; and I do intend to
N N
546
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VII.
those who should refuse compliance.* But this
intention, from whatever cause, perhaps through
CHA. I. the influence of archbishop Abbot, was not carried
1625-29, into effect; nor was the declaration itself enforced
till the following reign.
The house of commons displayed their attach-
ment to the puritan maxims, or their dislike of
the prelatical clergy, by bringing in bills to enforce
a greater strictness in this respect. A circum-
stance that occurred in the session of 1621 will
serve to prove their fanatical violence. A bill
having been brought in "for the better observance
of the Sabbath, usually called Sunday," one Mr.
Shepherd, sneering at the puritans, remarked that,
as Saturday was dies Sabbati, this might be en-
titled a bill for the observance of Saturday, com-
monly called Sunday. This witticism brought on
his head the wrath of that dangerous assembly.
He was reprimanded on his knees, expelled the
house, and when he saw what befell poor Floyd,
might deem himself cheaply saved from their
fangs with no worse chastisement. Yet when
the upper house sent down their bill with "the
Lord's day" substituted for "the Sabbath," ob-
serving, "that people do now much incline to
words of Judaism," the commons took no excep-
tion. The use of the word Sabbath instead of
try whether I can keep it or no."
Feb. 27. 1661. Notwithstand
ing my resolution, yet for want of
other victuals, I did eat flesh this
Lent, but am resolved to eat as
little as I can."
* Wilson, 709.
+ Debates in parliament, 1621,
yol. i. p. 45. 52. The king re-
quested them not to pass this bill,
being so directly against his pro-
clamation. Id. 60. Shepherd's
expulsion is mentioned in Mede's
Letters, Harl. MSS. 389.
Vol. ii. 97. Two acts were
passed, 1 Car. I. c. 1. and 3 Car. I.
c. 2., for the better observance of
Sunday; the former of which gave
FROM HENRY VII. TO GEORGE II.
547
Sunday became in that age a distinctive mark of CHAP.
the puritan party.
VII.
CHA. I.
1625—29.
A far more permanent controversy sprang up
about the end of the same reign, which afforded a Arminian
new pretext for intolerance and a fresh source of controversy.
mutual hatred. Every one of my readers is ac-
quainted more or less with the theological tenets
of original sin, free will, and predestination, va-
riously taught in the schools, and debated by po-
lemical writers for so many centuries; and few
can be ignorant that the articles of our own
church, as they relate to these doctrines, have
been very differently interpreted, and that a con-
troversy about their meaning has long been car-
ried on with a pertinacity which could not have
continued on so limited a topic, had the com-
batants been merely influenced by the love of
truth. Those who have no bias to warp their
judgment will not perhaps have much hesitation
in drawing their line between, though not at an
equal distance between, the conflicting parties.
It appears, on the other hand, that the articles are
worded on some of these doctrines with consider-
able ambiguity; whether we attribute this to
the intrinsic obscurity of the subject, to the addi-
great annoyance, it seems, to the
orthodox party. Had any such
bill," says Heylin, "been offered
in king James's time, it would
have found a sorry welcome; but
this king being under a necessity
of compliance with them, resolved
to grant them their desires in that
particular, to the end that they
might grant his also in the aid re-
quired, when that obstruction was
removed. The Sabbatarians took
the benefit of this opportunity for
the obtaining of this grant, the first
that ever they obtained by all their
strugglings, which of what conse-
quence it was we shall see here-
after." Life of Laud, p. 129. Yet
this statute permits the people law-
ful sports and pastimes on Sun-
days within their own parishes.
NN 2
548
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VII.
tional difficulties with which it had been entangled
by theological systems, to discrepancy of opinion
CHA. I. in the compilers, or to their solicitude to prevent
1625-29. disunion by adopting formularies which men of
different sentiments might subscribe. It is also
manifest that their framers came, as it were, with
averted eyes to the Augustinian doctrine of pre-
destination, and wisely reprehended those who
turned their attention to a system so pregnant
with objections, and so dangerous, when need-
lessly dwelt upon, to all practical piety and virtue.
But, on the other hand, this very reluctance to
inculcate the tenet is so expressed as to manifest
their undoubting belief in it; nor is it possible
either to assign a motive for inserting the seven-
teenth article, or to give any reasonable interpre-
tation to it, upon the theory which at present
passes for orthodox in the English church. And
upon other subjects intimately related to the former,
such as the penalty of original sin and the deprav-
ation of human nature, the articles, after making
every allowance for want of precision, seem totally
irreconcilable with the scheme usually denomi-
nated Arminian.
The force of those conclusions, which we must,
in my judgment, deduce from the language of
these articles, will be materially increased by that
appeal to contemporary and other early authorities,
to which recourse has been had in order to inva-
lidate them. Whatever doubts may be raised as
to the Calvinism of Cranmer and Ridley, there
can surely be no room for any as to the chiefs of
the Anglican church under Elizabeth. We find
FROM HENRY VII. TO GEORGE II.
549
The
VII.
CHA. I.
1625-29.
explicit proofs that Jewel, Nowell, Sandys, Cox, CHAP.
professed to concur with the reformers of Zurich
and Geneva in every point of doctrine.*
works of Calvin and Bullinger became text-books
in the English universities. Those who did not
hold the predestinarian theory were branded with
reproach by the names of free-willers and Pela-
gians. And when the opposite tenets came to
be advanced, as they were at Cambridge about
1590, a clamour was raised as if some unusual
heresy had been broached. Whitgift, with the
concurrence of some other prelates, in order to
withstand its progress, published what were called
the Lambeth articles, containing the broadest and
most repulsive declaration of all the Calvinistic
tenets. But, lord Burleigh having shown some
disapprobation, these articles never obtained any
legal sanction.§
These more rigorous tenets, in fact, especially
when so crudely enounced, were beginning to give
way. They had been already abandoned by the
Lutheran church. They had long been opposed
in that of Rome by the Franciscan order, and
latterly by the jesuits. Above all, the study of the
Greek fathers, with whom the first reformers had
been little conversant, taught the divines of a
more learned age, that men of as high a name as
Augustin, and whom they were prone to over-
value, had entertained very different sentiments.||
Without loading the page with
too many references on a subject
so little connected with this work,
I mention Strype's Annals, vol. i.
p. 118. and a letter from Jewel to
P. Martyr in Burnet, vol. iii. Ap-
pendix, 275.
Collier, 568.
Strype's Annals, i. 207. 294.
Strype's Whitgift, 434–472.
It is admitted on all hands
that the Greek fathers did not in-
culcate the predestinarian system.
Elizabeth having begun to read
N N 3
550
THE CONSTITUTIONAL HISTORY OF ENGLAND
VII.
1625---29.
CHAP. Still the novel opinions passed for heterodox, and
were promulgated with much vacillation and in-
CHA. I. distinctness. When they were published in un-
equivocal propositions by Arminius and his school,
James declared himself with vehemence against
this heresy. He not only sent English divines
to sit in the synod of Dort, where the Calvinistic
system was fully established, but instigated the
proceedings against the remonstrants with more
of theological pedantry than charity or decorum.†
Yet this inconsistent monarch within a very few
years was so wrought on by one or two favourite
ecclesiastics, who inclined towards the doctrines.
condemned in that assembly, that openly to main-
tain the Augustinian system became almost a sure
means of exclusion from preferment in our church.
This was carried to its height under Charles.
Laud, his sole counsellor in ecclesiastical matters,
advised a declaration enjoining silence on the con-
troverted points; a measure by no means unwise,
if it had been fairly acted upon. It is alledged
some of the fathers, bishop Cox
writes of it with some disappro-
bation, adverting especially to the
Pelagianism of Chrysostom and
the other Greeks. Strype's An-
nals, i. 324.
* Winwood, iii. 293. The in-
temperate and even impertinent
behaviour of James in pressing the
states of Holland to inflict some
censure or punishment on Vor-
stius, is well known. But though
Vorstius was an Arminian, it was
not precisely on account of those
opinions that he incurred the king's
peculiar displeasure, but for cer-
tain propositions as to the nature
of the Deity, which James called
atheistical, but which were in fact
Arian. The letters on this sub-
ject in Winwood are curious. Even
at this time, the king is said to
have spoken moderately of predes-
tination as a dubious point, p. 452.,
though he had treated Arminius
as a mischievous innovator for
raising a question about it; and this
is confirmed by his letter to the
States in 1613. Brandt, iii. 129.,
and see p. 138. See Collier, p.711.,
for the king's sentiments in 1616;
also Brandt, iii. 313.
Sir Dudley Carleton's Letters
and Negotiations, passim. Brandt's
History of Reformation in Low
Countries, vol. iii. The English
divines sent to this synod were
decidedly inclined to Calvinism,
but they spoke of themselves as
deputed by the king, not by the
church of England which they did
not represent.
FROM HENRY VII. TO GEORGE II.
551
however that the preachers on one side only were
silenced, the printers of books on one side cen-
sured in the star-chamber, while full scope was
indulged to the opposite sect.*
The house of commons, especially in their last
session, took up the increase of Arminianism as
a public grievance. It was coupled in their re-
monstrances with popery, as a new danger to re-
ligion, hardly less terrible than the former.. This
* There is some obscurity about
the rapid transition of the court
from Calvinism to the opposite
side. It has been supposed that
the part taken by James at the
synod of Dort was chiefly political,
with a view to support the house
of Orange against the party headed
by Barnevelt. But he was so much
more of a theologian than a states-
man, that I much doubt whether
this will account satisfactorily for
his zeal in behalf of the Gomarists.
He wrote on the subject with
much polemical bitterness, but
without reference, so far as I have
observed, to any political faction;
though sir Dudley Carleton's let-
ters show that he contemplated the
matter as a minister ought to do.
Heylin intimates that the king
grew more moderate afterwards,
and into a better liking of those
opinions which he had laboured
to condemn at the synod of Dort."
Life of Laud, 120. The court
language, indeed, shifted so very
soon after this, that Antonio de
Dominis, the famous half-con-
verted archbishop of Spalato, is said
to have invented the name of doc-
trinal puritans for those who dis-
tinguished themselves by holding
the Calvinistic tenets. Yet the
synod of Dort was in 1618; while
De Dominis left England not later
than 1622. Buckingham seems to
have gone very warmly into Laud's
scheme of excluding the Calvinists.
The latter gave him a list of di-
vines on Charles's accession, dis-
tinguishing their names by O. and
P. for orthodox and puritan; in-
cluding several tenets in the latter
denomination, besides those of the
quinquarticular controversy; such
as the indispensable observance of
the Lord's day, the indiscrimina-
tion of bishops and presbyters, &c.
Life of Laud, 119.
Life of Laud, 119. The influence
of Laud became so great that to
preach in favour of Calvinism,
though commonly reputed to be
the doctrine of the church, in-
curred punishment in any rank.
Davenant, bishop of Salisbury, one
of the divines sent to Dort, and
reckoned among the principal the-
ologians of that age, was repri-
manded on his knees before the
privy-council for this offence. Col-
lier, p. 750. But in James's reign
the University of Oxford was de-
cidedly Calvinistic.
cidedly Calvinistic. A preacher,
about 1623, having used some sus-
picious expressions, was compelled
to recant them, and to maintain
the following theses in the divinity
school: Decretum prædestinationis
non est conditionale Gratia suf-
ficiens ad salutem non conceditur
omnibus. Wood, ii. 348. And I
suppose it continued so in the next
reign, so far as the university's
opinions could be manifested. But
Laud took care that no one should
be promoted, as far as he could
help it, who held these tenets..
T
CHAP.
VII.
CHA. I.
1625—29.
NN 4
552
THE CONSTITUTIONAL HISTORY OF ENGLAND
VII.
1625-29.
CHAP. bigoted clamour arose in part from the nature of
their own Calvinistic tenets, which, being still
CHA. I. prevalent in the kingdom, would, independently
of all political motives, predominate in any popular
assembly. But they had a sort of excuse for it
in the close, though accidental and temporary,
connexion that subsisted between the partisans
of these new speculative tenets and those of arbi-
trary power; the churchmen who receded most
from Calvinism being generally the zealots of pre-
rogative. They conceived also that these theories,
conformable in the main to those most counte-
nanced in the church of Rome, might pave the
way for that restoration of her faith which from
so many other quarters appeared to threaten them.
Nor was this last apprehension so destitute of all
plausibility as the advocates of the two first Stuarts
have always pretended it to be.
State of
catholics
under
James.
James, well instructed in the theology of the
reformers, and inured himself to controversial dia-
lectics, was far removed in point of opinion from
any bias towards the Romish creed. But he had,
while in Scotland, given rise to some suspicions at
the court of Elizabeth, by a little clandestine co-
quetry with the pope, which he fancied to be a
politic means of disarming enmity.* Some know-
* Winwood, vol. i. p. 1.52. 388.
Lettres d'Ossat, i. 221. Birch's
Negotiations of Edmondes, p. 36.
These references do not relate
to the letter said to have been
forged in the king's name, and
addressed to Clement VIII. by
lord Balmerino. But Laing, Hist.
of Scotland, iii. 59., and Birch's
Negotiations, &c. 177., render it
almost certain that this letter was
genuine, which indeed has been
generally believed by men of sense.
James was a man of so little con-
sistency or sincerity that it is dif
ficult to solve the problem of this
clandestine intercourse. But it
might very likely proceed from
his dread of being excommuni-
cated, and, in consequence, assas-
sinated. In a proclamation, com-
manding all jesuits and priests to
FROM HENRY VII. TO GEORGE II.
553
VII.
CHA. I.
1625-29.
ledge of this, probably, as well as his avowed CHAP.
dislike of sanguinary persecution, and a foolish
reliance on the trifling circumstance that one if not
both of his parents had professed their religion,
led the English catholics to expect a great deal of
indulgence, if not support, at his hands. This
hope might receive some encouragement from his
speech on opening the parliament of 1604, wherein
he intimated his design to revise and explain the
penal laws, "which the judges might perhaps,"
he said, "in times past have too rigorously inter-
preted." But the temper of those he addressed
r
SO
quit the realm, dated in 1603, he
declares himself personally
much beholden to the new bishop
of Rome for his kind office and
private temporal carriage towards
us in many things, as we shall ever
be ready to requite the same towards
him as bishop of Rome in state
and condition of a secular prince."
Rymer, xvi. 573. This is ex-
plained by a passage in the me-
moirs of Sully (l. 15.). Clement
VIII., though before Elizabeth's
death he had abetted the project
of placing Arabella on the throne,
thought it expedient, after this
design had failed, to pay some
court to James, and had refused
to accept the dedication of a work
written against him, besides, pro-
bably, some other courtesies.
There is a letter from the king
addressed to the pope, and pro-
bably written in 1603, among the
Cottonian MSS. Nero B. vi. 9.,
which shows his disposition to
coax and coquet with the Babylo-
nian, against whom he so much
inveighs in his printed works. It
seems that Clement had so far
presumed, as to suggest that the
prince of Wales should be edu-
cated a catholic; which the king
refuses, but not in so strong a
manner as he should have done.
I cannot recollect whether this
letter has been printed, though I
can scarcely suppose the contrary.
Persons himself began to praise
the works of James, and show
much hope of what he would do.
Cotton, Jul. B. vi. 77.
The severities against catholics
seem at first to have been prac-
tically mitigated. Winwood, ii.
78. Archbishop Hutton wrote to
Cecil, complaining of the toler-
ation granted to papists, while the
puritans were severely treated. Id.
p. 40. Lodge, iii. 251.
former," he says, "partly by this
round dealing with the puritans,
and partly by some extraordinary
favour, have grown mightily in
number, courage, and influence."
"The
"If the gospel shall quail, and
popery prevail, it will be imputed
principally unto your great coun-
sellors, who either procure or yield
to grant toleration to some." James
told some gentlemen who peti-
tioned for toleration, that the
utmost they could expect was con-
nivance. Carte. iii. 711. This seems
to have been what he intended
through his reign, till importuned
by Spain and France to promise
more.
554
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VII.
Jealousy of
favour to-
was very different.
The catholics were disap-
pointed by an act inflicting new penalties on
CHA. I. recusants, and especially debarring them from
1625-29. educating their children according to their con-
sciences.* The administration took a sudden turn
the court's towards severity; the prisons were filled, the pe-
nalties exacted, several suffered death †, and the
general helplessness of their condition impelled a
few persons (most of whom had belonged to what
was called the Spanish party in the last reign) to
the gunpowder conspiracy, unjustly imputed to
the majority of catholics, though perhaps extend-
ing beyond those who appeared in it. We can-
wards them.
* 1 Jac. I. c. 4. The penalties
of recusancy were particularly
hard upon women, who, as I have
observed in another place, adhered
longer to the old religion than the
other sex; and still more so upon
those who had to pay for their
scruples. It was proposed in par-
liament, but with the usual fate of
humane suggestions, that husbands
going to church, should not be
liable for their wives' recusancy.
Carte, 754. But they had the al-
ternative afterwards, by 7 Jac. I.
c. 6., of letting their wives lie in
prison or paying £10 a month.
+ Lingard, ix. 41. 55.
From comparing some pas-
sages in sir Charles Cornwallis's
despatches, Winwood, vol. ii.
vol. ii.
p. 143, 144. 153. with others in
Birch's account of sir Thomas Ed-
mondes's negotiations, p. 233. et
seq., it appears that the English
catholics were looking forward at
this time to some crisis in their
favour, and that even the court of
Spain was influenced by their
hopes. A letter from sir Thomas
Parry to Edmondes, dated at
Paris, 10 Oct. 1605, is remark-
able: "Our priests are very busy
about petitions to be exhibited to
the king's majesty at this parlia-
ment, and some further designs
upon refusal. These matters are
secretly managed by intelligence
with their colleagues in those parts
where you reside, and with the two
nuncios. I think it were necessary
for his majesty's service that you
found means to have privy spies
amongst them, to discover their
negotiations. Something is at pre-
sent in hand amongst these des-
perate hypocrites, which I trust
God shall divert by the vigilant
care of his majesty's faithful ser-
vants and friends abroad, and pru-
dence of his council at home."
Birch, p. 233. There seems indeed
some ground for suspicion that the
nuncio at Brussels was privy to the
conspiracy; though this ought not
to be asserted as an historical fact.
Whether the offence of Garnet
went beyond misprision of treason
has been much controverted. The
catholic writers maintain that he
had no knowledge of the conspi-
racy, except by having heard it in
confession. But this rests alto-
gether on his word; and the pre-
varication of which he has been
proved to be guilty (not to mention
the damning circumstance that he
FROM HENRY VII. TO GEORGE II.
555
not wonder that a parliament so narrowly rescued
from personal destruction endeavoured to draw
the cord still tighter round these dangerous ene-
mies. The statute passed on this occasion is by
no means more harsh than might be expected. It
required not only attendance on worship, but par-
ticipation in the communion, as a test of con-
was taken at Hendlip in conceal-
ment along with the other conspi-
rators), makes it difficult for a can-
did man to acquit him of a tho-
rough participation in their guilt.
Compare Townsend's Accusations
of History against the Church of
Rome (1825), p. 247. containing
extracts from some important do-
cuments in the State Paper-Office,
not as yet published, with State
Trials, vol. ii.; and see Lingard,
ix. 160, &c. Yet it should be
kept in mind that it was easy for
a few artful persons to keep on the
alert by indistinct communications
a credulous multitude whose daily
food was rumour; and the general
hopes of the English Romanists
at the moment are not evidence of
their privity to the gunpowder-
treason, which was probably con-
trived late, and imparted to very
few. But to deny that there was
such a plot, or, which is the same
thing, to throw the whole on the
contrivance and management of
Cecil, as has sometimes been done,
argues great effrontery in those
who lead, and great stupidity in
those who follow. The letter to
lord Monteagle, the discovery of
the powder, the simultaneous
rising in arms in Warwickshire,
are as indisputable as any facts in
history. What then had Cecil to
do with the plot, except that he
hit upon the clue to the dark al-
lusions in the letter to Monteagle,
of which he was courtier enough to
let the king take the credit? James's
admirers have always reckoned
He
this, as he did himself, a vast proof
of sagacity; yet there seems no
great acuteness in the discovery,
even if it had been his own.
might have recollected the circum-
stances of his father's catastrophe,
which would naturally put him on
the scent of gunpowder. In point
of fact, however, the happy conjec-
ture appears to be Cecil's. Win-
wood, ii. 170. But had he no pre-
vious hint ? See Lodge, iii. 301.
The earl of Northumberland
was not only committed to the
Tower on suspicion of privity in
the plot, but lay fourteen years
there, and paid a fine of £11,000
(by composition for £30,000), be-
fore he was released. Lingard, ix.
89.
89. It appears almost incredible
that a man of his ability, though
certainly of a dangerous and dis-
contented spirit, and rather desti-
tute of religion than a zealot for
popery, which he did not, I believe,
openly profess, should have min-
gled in so flagitious a design.
There is indeed a remarkable let-
ter in Winwood, vol. iii. p. 287.
which tends to corroborate the sus-
picions entertained of him. But
this letter is from Salisbury, his
inveterate enemy. Every one must
agree, that the fine imposed on this
nobleman was preposterous. Were
we even to admit that suspicion
might justify his long imprison-
ment, a participation in one of the
most atrocious conspiracies re-
corded in history was, if proved,
to be more severely punished; if
unproved, not at all.
CHAP.
VII.
CHA. I.
1625-29.
556
THE CONSTITUTIONAL HISTORY OF ENGLAND
VII.
1625-29.
CHAP. formity, and gave an option to the king of taking
a penalty of £20 a month from recusants, or two
CHA. I. thirds of their lands. It prescribed also an oath
of allegiance, the refusal of which incurred the
penalties of a præmunire. This imported that,
notwithstanding any sentence of deprivation or
excommunication by the pope, the taker would
bear true allegiance to the king, and defend him
against any conspiracies which should be made by
reason of such sentence or otherwise, and do his
best endeavour to disclose them; that he from his
heart abhorred, detested, and abjured as impious
and heretical, the damnable doctrine and position
that princes, excommunicated or deprived by the
pope, may be deposed or murdered by their sub-
jects, or any other whatsoever; and that he did
not believe that the pope or any other could ab-
solve him from this oath.*
Except by cavilling at one or two words, it seemed
impossible for the Roman catholics to decline so
reasonable a test of loyalty, without justifying the
worst suspicions of protestant jealousy. Most of
the secular priests in England, asking only a con-
nivance in the exercise of their ministry, and aware
how much the good work of reclaiming their apo-
state countrymen was retarded by the political
obloquy they incurred, would have willingly ac-
quiesced in the oath. But the court of Rome, not
yet receding an inch from her proudest claims,
absolutely forbade all catholics to abjure her de-
posing power by this test, and employed Bellar-
mine to prove its unlawfulness. The king stooped
to a literary controversy with this redoubted cham-
* 3 Jac. I. c. 4, 5.
FROM HENRY VII. TO GEORGE II.
557
CHAP.
VII.
1625-29.
pion, and was prouder of no exploit of his life than
his answer to the cardinal's book; by which he in-
curred the contempt of foreign courts and of all CHA. 1.
judicious men.* Though neither the murderous
conspiracy of 1605, nor this refusal to abjure the
principles on which it was founded, could dispose
James to persecution, or even render the papist so
obnoxious in his eyes as the puritan; yet he was
long averse to any thing like a general remission
of the penal laws. In sixteen instances after this
time, the sanguinary enactments of his predecessor
were enforced, but only perhaps against priests
who refused the oath t; the catholics enjoyed on
the whole somewhat more indulgence than before,
in respect to the private exercise of their religion;
at least enough to offend narrow-spirited zealots,
and furnish pretext for the murmurs of a discon-
tented parliament, but under condition of paying
compositions for recusancy; a regular annual source
of revenue which, though apparently trifling in
amount, the king was not likely to abandon, even
if his notions of prerogative, and the generally re-
ceived prejudices of that age, had not determined
him against an express toleration. ‡
* Carte, iii. 782. Collier, 690.
Butler's Memoirs of Catholics.
Lingard, vol. ix. 97. Aikin, i. 319.
It is observed by Collier, ii. 695.,
and indeed by the king himself, in
his Apology for the Oath of Alle-
giance, edit. 1619. p. 46., that Bel-
larmine plainly confounds the oath
of allegiance with that of supre-
macy. But this cannot be the
whole of the case; it is notorious
that Bellarmine protested against
any denial of the pope's deposing
power.
Lingard, ix. 215. Drury, exe-
cuted in 1607, was one of the
twelve priests who, in 1602, had
signed a declaration of the queen's
right to the crown, notwithstand-
ing her excommunication. But,
though he evidently wavered, he
could not be induced to say as
much now in order to save his life.
State Trials, ii. 358.
Lord Bacon, wise in all things,
always recommended mildness to-
wards recusants. In a letter to
Villiers, in 1616, he advises that the
oath of supremacy should by no
means be tendered to recusant ma-
558
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VII.
1625-29.
In the course however of that impolitic negotia-
tion, which exposed him to all eyes as the dupe and
CHA. I. tool of the court of Madrid, James was led on to
promise concessions for which his protestant sub-
jects were ill prepared. That court had wrought
on his feeble mind by affected coyness about the
Infanta's marriage, with two private aims; to se-
cure his neutrality in the war of the Palatinate,
and to obtain better terms for the English catho-
lics. Fully successful in both ends, it would pro-
bably have at length permitted the union to take
place, had not Buckingham's rash insolence broken
off the treaty; but I am at a loss to perceive the
sincere and even generous conduct which some
have found in the Spanish council during this ne-
gotiation.* The king acted with such culpable
CC
gistrates in Ireland; "the new
plantation of protestants," he says,
"must mate the other party in
time." Vol. ii. p. 530. This has
not indeed proved true; yet as
much, perhaps, for want of fol-
lowing Bacon's advice, as for any
other cause. He wished for a like
toleration in England. But the
king, as Buckingham lets him
know, was of a quite contrary opi-
nion; for, though he would not
by any means have a more severe
course held than his laws appoint
in that case, yet there are many
reasons why there should be no
mitigation above that which his
laws have exerted, and his own
conscience telleth him to be fit."
He afterwards professes
count it a baseness in a prince to
show such a desire of the match
[this was in 1617] as to slack any
thing in his course of government,
much more in propagation of the
religion he professeth, for fear of
giving hinderance to the match
thereby." Page 562. What a con-
trast to the behaviour of this same
"to ac-
king six years afterwards! The
commons were always dissatisfied
with lenity, and complained that
the lands of recusants were under-
valued; as they must have been,
if the king got only £6,000 per
annum by the compositions. De-
bates in 1621, vol. i. p. 24. 91.
But he valued those in England
and Ireland at £36,000. Lingard,
215., from Hardwicke Papers.
* The absurd and highly blam-
able conduct of Buckingham has
created a prejudice in favour of the
court of Madrid. That they de-
sired the marriage is easy to be
believed; but that they would have
ever sincerely co-operated for the
restoration of the Palatinate, or
even withdrawn the Spanish troops
from it, is neither rendered proba-
ble by the general policy of that
government, nor by the conduct it
pursued in the negotiation. Com-
pare Hardwicke State Papers, vol.
1.
Cabala, 1. et post. Howell's
Letters.
Letters. Clarendon State Papers,
vol. i. ad initium, especially p. 13.
A very curious paper in the latter
FROM HENRY VII. TO GEORGE II.
559
CHAP.
VII.
1625-29.
weakness, as even in him excites our astonishment.
Buckingham, in his first eagerness for the marriage
on arriving in Spain, wrote to ask if the king would CHA. I.
acknowledge the pope's spiritual supremacy, as the
surest means of success. James professed to be
shocked at this, but offered to recognize his juris-
diction as patriarch of the west, to whom eccle-
siastical appeals might ultimately be made; a con-
cession as incompatible with the code of our pro-
testant laws as the former. Yet with this knowledge
of his favourite's disposition, he gave the prince
and him a written promise to perform whatever
collection, p. 14., may be thought,
perhaps, to throw light on Buck-
ingham's projects, and account in
some measure for his sudden en-
mity to Spain. During his re-
sidence at Madrid in 1623, a se-
cretary who had been dissatisfied
with the court revealed to him a
pretended secret discovery of gold
mines in a part of America, and
suggested that they might be easily
possessed by any association that
could command seven or eight
hundred men; and that after hav-
ing made such a settlement,
would be easy to take the Spanish
flotilla, and attempt the conquest
of Jamaica and St. Domingo. This
made so great an impression on the
mind of Buckingham, that, long af-
terwards in 1628, he entered into
a contract with Gustavus Adol-
phus, who bound himself to de-
fend him against all opposers in
the possession of these mines, as an
absolute prince and sovereign, on
condition of receiving one tenth of
the profits; promising especially
his aid against any puritans who
might attack him from Barbadoes
or elsewhere, and to furnish him
with four thousand men and six
ships of war, to be paid out of the
revenue of the mines.
This is a very strange document,
if genuine. It seems to show that
Buckingham, aware of his unpopu-
larity in England, and that sooner
or later he must fall, and led away,
as so many were, by the expect-
ation of immense wealth in Ame-
rica, had contrived this arrange-
ment, which was probably intended
to take place only in the event of his
banishment from England. The
share that Gustavus appears to
have taken in so wild a plan is
rather extraordinary, and may ex-
pose the whole to some suspicion.
It is not clear how this came among
the Clarendon papers; but the in-
dorsement runs: "Presented, and
the design attempted and in some
measure attained by Cromwell,
anno 1652.” I should conjecture
therefore that some spy of the
king's procured the copy from
Cromwell's papers.
I have since found that Harte
had seen a sketch of this treaty,
but he does not tell us by what
means. Hist. Gust. Adolph. i. 130.
But that prince, in 1627, laid before
the diet of Sweden a plan for
establishing a commerce with the
West Indies; for which sums of
money were subscribed. Id. 143,
560
THE CONSTITUTIONAL HISTORY OF ENGLAND
VII.
1625-29.
CHAP. they should agree upon with the court of Madrid.*
On the treaty being almost concluded, the king,
CHA. I. prince, and privy-council swore to observe certain
stipulated articles, by which the infanta was not
only to have the exercise of her religion, but the
education of her children till ten years of age. But
the king was also sworn to private articles; that no
penal laws should be put in force against the catho-
lics, that there should be a perpetual toleration of
their religion in private houses, that he and his son
would use their authority to make parliament con-
firm and ratify these articles, and revoke all laws.
(as it is with strange latitude expressed) containing
any thing repugnant to the Roman catholic re-
ligion, and that they would not consent to any new
laws against them. The prince of Wales separately
engaged to procure the suspension or abrogation of
the penal laws within three years, and to lengthen
the term for the mother's education of their chil-
dren from ten years to twelve, if it should be in his
own power.
He promised also to listen to catho-
lic divines, whenever the infanta should desire it.t
These secret assurances, when they were whis-
pered in England, might not unreasonably excite
suspicion of the prince's wavering in his religion,
which he contrived to aggravate by an act as im-
prudent as it was reprehensible. During his stay
Hardwicke Papers, p. 402.
411. 417. The very curious letters
in this collection relative to the
Spanish match are the vouchers
for my text. It appears by one of
secretary Conway's, since pub-
lished, Ellis, iii. 154., that the king
was in great distress at the engage-
ment for a complete immunity
from penal laws for the catholics,
entered into by the prinee and
Buckingham; but, on full deliber-
ation in the council,
ation in the council, it was. agreed
that he must adhere to his promise.
This rash promise was the cause
of his subsequent prevarications.
+ Hardwicke Papers.
worth.
Rush-
FROM HENRY VII. TO GEORGE II.
561
VII.
1625—29.
at Madrid, while his inclinations were still bent on CHAP.
concluding the marriage, the sole apparent obstacle
being the pope's delay in forwarding the dispens- CHA. I.
ation, he wrote a letter to Gregory XV., in reply to
one received from him, in language evidently in-
tended to give an impression of his favourable dis-
positions towards the Roman faith. The whole
tenor of his subsequent life must have satisfied every
reasonable inquirer into our history, of Charles's
real attachment to the Anglican church; nor could
he have had any other aim than to facilitate his
arrangements with the court of Rome by this de-
ception. It would perhaps be uncandid to judge
severely a want of ingenuousness, which youth,
love, and bad counsels may extenuate; yet I can-
not help remarking that the letter is written with
the precautions of a veteran in dissimulation; and,
while it is full of what might raise expectation,
contains no special pledge that he could be called
on to redeem. But it was rather presumptuous
to hope that he could foil the subtlest masters of
artifice with their own weapons. *
Hardwicke Papers, p. 452.,
where the letter is printed in Latin.
The translation in Wilson, Rush-
worth, and Cabala, p. 214. is not
by any means exact, going in seve-
ral places much beyond the origi-
nal. If Hume knew nothing but
the translation, as is most probable,
we may well be astonished at his
way of dismissing this business;
that "the prince having received a
very civil letter from the pope, he
was induced to return a very civil
answer." Clarendon saw it in a
different light: Clar. State Papers,
ii. 337.
Urban VIII. had succeeded
Gregory XV. before the arrival of
VOL. I.
Charles's letter. He answered it
of course in a style of approbation,
and so as to give the utmost mean-
ing to the prince's compliments,
expressing his satisfaction,
pontificem Romanum ex officii ge-
nere colere princeps Britannus in-
ciperet," &c. Rushworth, vol. i.
p. 98.
CC cum
It is said by Howell, who was
then on the spot, that the prince
never used the service of the church
of England while he was at Madrid,
though two chaplains, church-
plate, &c. had been sent over.
Howell's Letters, p. 140. Bristol
and Buckingham charged each
other with advising Charles to em-
00
562
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VII.
1625-29.
James, impatient for this ill-omened alliance, lost
no time in fulfilling his private stipulations with
CHA. I. Spain. He published a general pardon of all pe-
nalties already incurred for recusancy.
It was
designed to follow this up by a proclamation pro-
hibiting the bishops, judges, and other magistrates
to execute any penal statute against the catholics.
But the lord keeper, bishop Williams, hesitated at
so unpopular a stretch of power.* And, the rup-
ture with Spain ensuing almost immediately, the
king, with a singular defiance of all honest men's
opinion, though the secret articles of the late treaty
had become generally known, declared in his first
speech to parliament in 1624, that he had only
thought good sometimes to wink and connive at
the execution of some penal laws, and not to go on
so rigorously as at other times, but not to dispense
with any or to forbid or alter any that concern re-
ligion; he never permitted or yielded, he never did
think it with his heart, nor spoke it with his mouth.”+
When James soon after this, not yet taught by
experience to avoid a catholic alliance, demanded
the hand of Henrietta Maria for his son, Richlieu
thought himself bound by policy and honour as
well as religion to obtain the same or greater ad-
vantages for the English catholics than had been
promised in the former negotiation. Henrietta was
to have the education of her children till they
brace the Romish religion; and he
himself in a letter to Bristol, Jan.
21. 1625-6, imputes this to him in
the most positive terms. Cabala,
p. 17. 4to. edit. As to Bucking-
ham's willingness to see this step
taken, there can, I presume, be
little doubt.
*Rushworth. Cabala, p. 19.
+ Parl. Hist. 1375. Both houses,
however, joined in an address that
the laws against recusants might
be put in execution. Id. 1408.;
and the commons returned again
to the charge afterwards. Idem,
1484.
FROM HENRY VII. TO GEORGE II.
563
CHAP.
VII.
1625-29.
reached the age of twelve; thus were added two
years, at a time of life when the mind becomes
susceptible of lasting impressions, to the term at CHA. I.
which, by the treaty with Spain, the mother's su-
perintendence was to cease.* Yet there is the
strongest reason to believe that this condition was
merely inserted for the honour of the French
crown, with a secret understanding that it should
never be executed. † In fact, the royal children
were placed at a very early age under protestant
governors of the king's appointment; nor does
Henrietta appear to have ever insisted on her
right. That James and Charles should have in-
curred the scandal of this engagement, since the
articles, though called private, must be expected
to transpire, without any real intentions of per-
forming it, is an additional instance of that arro-
gant contempt of public opinion which distin-
guished the Stuart family. It was stipulated in
the same private articles, that prisoners on the
score of religion should be set at liberty, and that
none should be molested in future. These pro-
*Rushworth.
+ See a series of letters from lord
Kensington (better known after-
wards as earl of Holland), the
king's ambassador at Paris for this
marriage-treaty; in the appendix
to Clarendon State Papers, vol. ii.
p. v. viii. ix.
that the English catholic clergy
should represent to him their ap-
probation of the marriage. He was
informed that the cardinal had
obtained terms much more favour-
able for the catholics than in the
Spanish treaty. In short, they
evidently fancied themselves to
have gained a full assurance of to-
leration; nor could the match have
been effected on any other terms.
The French minister writes to
Lous XIII. from London, Octo-
ber 6. 1624, that he had obtained
a supersedeas of all prosecutions,
more than themselves expected, or
could have believed possible;
CC en
somme, un acte très publique, et
qui fut résolu en plein conseil, le
Hardwicke Papers, i. 536.
Birch, in one of those volumes
given by him to the British Mu-
seum (and which ought to be pub-
lished according to his own inten-
tion), has made several extracts
from the MS. despatches of Til-
lieres, the French ambassador,
which illustrate this negotiation.
The pope, it seems, stood off from
granting the dispensation, requiring
0 0 2
564
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP. mises were irregularly fulfilled, according to the
terms on which Charles stood with his brother-in-
VII.
CHA. I.
1625—29. dit roi l'ayant assemblé exprès pour
cela le jour d'hier.' The pope
agreed to appoint a bishop for
England, nominated by the king
of France. Oct. 22. The oath of
allegiance, however, was a stum-
bling-block; the king could not
change it by his own authority,
and establish another in parlia-
ment, "où la faction des puritains
prédomine, de sorte qu'ils peuvent
ce qu'ils veulent." Buckingham
however promised "de nous faire
obtenir l'assurance que votre ma-
jesté désire tant, que les catholiques
de ce pais ne seront jamais in-
quiétés pour le raison du serment
de fidélité, du quel votre majesté
a si souvent ouï parler." Dec. 22.
He speaks the same day of an au-
dience he had of king James, who
promised never to persecute his
catholic subjects, nor desire of
them any oath which spoke of the
pope's spiritual authority, "mais
seulement un acte de la reconnois-
sance de la domination temporelle
qui Dieu lui a donnée, et qu'ils
auroient en considération de votre
majesté, et de la confiance que vous
prenez en sa parole, beaucoup plus
de liberté qu'ils n'auroient eu en
vertu des articles du traité d'Es-
pagne." The French advised that
no parliament should be called till
Henrietta should come over, "de
qui la présence serviroit de bride
aux puritains." It is not wonder-
ful, with all this good-will on the
part of their court, that the En-
glish catholics should now send a
letter to request the granting of
the dispensation. A few days after,
Dec. 26. the ambassador announces
the king's letter to the archbishops,
directing them to stop the prose-
cution of catholics, the enlarge-
ment of prisoners on the score of
religion, and the written promises
of the king and prince to let the
catholics enjoy more liberty than
they would have had by virtue of
the treaty with Spain. On the
credit of this, Louis wrote on the
23d of January to request six or
eight ships of war to employ against
Soubise, the chief of the Hugo-
nots; with which, as is well known,
Charles complied in the ensuing
summer.
The king's letter above men-
tioned does not, I believe, appear.
But his ambassadors, Carlisle and
Holland, had promised in his name
that he would give a written pro-
mise, on the word and honour of a
king, which the prince and a se-
cretary of state should also sign,
that all his Roman-catholic sub-
jects should enjoy more freedom
as to their religion than they could
have had by any articles agreed on
with Spain; not being molested in
their persons or property for their
profession and exercise of their re-
ligion, provided they used their li-
berty with moderation, and ren-
dered due submission to the king,
who would not force them to any
oath contrary to their religion.
This was signed 18th Nov. Hardw.
Pap. 546.
Yet after this concession on the
king's part, the French cabinet
was encouraged by it to ask for
CC
a direct and public toleration,
not by connivance, promise, or
écrit secret, but by a public noti-
fication to all the Roman catholics,
and that of all his majesty's king-
doms whatsoever, confirmed by
his majesty's and the prince's oath,
and attested by a public act, whereof
a copy to be delivered to the pope
or his minister, and the same to
bind his majesty and the prince's
successors for ever." Id. p. 552.
The ambassadors expressed the
strongest indignation at this pro-
posal, on which the French did not
think fit to insist. In all this
wretched negotiation, James was
as much the dupe as he had been
in the former, expecting that France
FROM HENRY VII. TO GEORGE II.
565
VII.
1625-29.
law. Sometimes general orders were issued to CHAP.
suspend all penal laws against papists; again, by a
capricious change of policy, all officers and judges CHA. I.
are directed to proceed in their execution; and
this severity gave place in its turn to a renewed
season of indulgence. If these alterations were
not very satisfactory to the catholics, the whole
scheme of lenity displeased and alarmed the pro-
testants. Tolerance, in any extensive sense, of
that proscribed worship was equally abhorrent to
the prelatist and the puritan; though one would
have winked at its peaceable and domestic exer-
cise, which the other was zealous to eradicate.
But, had they been capable of more liberal reason-
ing upon this subject, there was enough to justify
their indignation at this attempt to sweep away
the restrictive code established by so many sta-
tutes, and so long deemed essential to the security
of their church, by an unconstitutional exertion of
the prerogative, prompted by no more worthy
motive than compliance with a foreign power, and
tending to confirm suspicions of the king's waver-
ing between the two religions, or his indifference
to either. In the very first months of his reign,
and while that parliament was sitting, which has
been reproached for its parsimony, he sent a fleet
would assist in the recovery of the
Palatinate, towards which, in spite
of promises, she took no steps.
Richlieu had said, "donnez-nous
des prêtres, et nous vous donnerons
des colonels." Id. p. 538. Charles
could hardly be expected to keep
his engagement as to the catholics,
when he found himself so grossly
outwitted.
It was during this marriage-
treaty of 1624, that the archbishop
of Embrun, as he relates himself,
in the course of several conferences
with the king on that subject, was
assured by him that he was de-
sirous of re-entering the fold of the
church. Wilson in Kennet, p. 786.
note by Wellwood. I have not
seen the original passage; but Dr.
Lingard puts by no means so strong
an interpretation on the king's
words, as related by the archbishop,
vol. ix. 323.
0 0 3
566
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VII.
1525-29.
to assist the French king in blocking up the port
of Rochelle; and with utter disregard of the na-
CHA. I. tional honour, ordered the admiral, who reported
that the sailors would not fight against protestants,
to sail to Dieppe, and give up his ships into the
possession of France.* His subsequent alliance
with the Hugonot party in consequence merely of
Buckingham's unwarrantable hostility to France,
founded on the most extraordinary motives, could
not redeem, in the eyes of the nation, this instance
of lukewarmness, to say the least, in the general
cause of the Reformation. Later ages have had
means of estimating the attachment of Charles the
First to protestantism, which his contemporaries
in that early period of his reign did not enjoy; and
this has led some to treat the apprehensions of
parliament as either insincere or preposterously
unjust. But can this be fairly pretended by any
one who has acquainted himself with the course of
proceedings on the Spanish marriage, the whole of
which was revealed by the earl of Bristol to the
house of lords? Was there nothing, again, to
excite alarm in the frequent conversions of per-
sons of high rank to popery, in the more dangerous
partialities of many more, in the evident bias of
certain distinguished churchmen to tenets rejected
at the Reformation? The course pursued with
respect to religious matters after the dissolution
of parliament in 1629, to which I shall presently
advert, did by no means show the misgivings of
that assembly to have been ill-founded.
Unconsti
tutional
tenets pro-
It was neither, however, the Arminian opinions
of the higher clergy, nor even their supposed lean-
* Kennet, p. vi. Rushworth. Lingard, ix. 353. Cabala, p. 144.
FROM HENRY VII. TO GEORGE II.
567
VII
by the high-
ing towards those of Rome, that chiefly rendered CHAP.
them obnoxious to the commons. They had stu-
diously inculcated that resistance to the commands CHA. I.
of rulers was in every conceivable instance a heinous 1625-29.
sin; a tenet so evidently subversive of all civil mulgated
liberty that it can be little worth while to argue church
about right and privilege, wherever it has obtained party.
a real hold on the understanding and conscience
of a nation. This had very early been adopted
by the Anglican reformers, as a barrier against the
disaffection of those who adhered to the ancient
religion, and in order to exhibit their own loyalty
in a more favourable light. The homily against
wilful disobedience and rebellion was written on
occasion of the rising of the northern earls in 1569,
and is full of temporary and even personal allu-
sions.* But the same doctrine is enforced in
*"God alloweth (it is said in
said in
this homily, among other passages
to the same effect) neither the dig-
nity of any person, nor the multi-
tude of any people, nor the weight
of any cause, as sufficient for the
which the subjects may move re-
bellion against their princes." The
next sentence contains a bold
po-
sition. "Turn over and read the
histories of all nations, look over
the chronicles of our own country,
call to mind so many rebellions of
old time, and some yet fresh in
memory; ye shall not find that
God ever prospered any rebellion
against their natural and lawful
prince, but contrariwise, that the
rebels were overthrown and slain,
and such as were taken prisoners
dreadfully executed." They illus-
trate their doctrine by the most
preposterous example I have ever
seen alledged in any book, that of
the Virgin Mary; who "being of
the royal blood of the ancient na-
tural kings of Jewry obeyed the
proclamation of Augustus to go to
Bethlehem. This obedience of
this most noble and most virtuous
lady to a foreign and pagan prince
doth well teach us, who in com-
parison of her are both base and
vile, what ready obedience we do
owe to our natural and gracious
sovereign."
In another homily entitled "On
Obedience," the duty of non-
resistance, even in defence of reli-
gion, is most decidedly maintained;
and in such a manner as might
have been inconvenient in case of
a popish successor. Nor was this
theory very consistent with the aid
and countenance given to the
United Provinces. Our learned
churchmen, however, cared very
little for the Dutch. They were
more puzzled about the Maccabees.
But that knot is cut in bishop
Overall's Convocation Book, by
denying that Antiochus Epiphanes
had lawful possession of Palestine;
a proposition not easy to be made
out.
568
THE CONSTITUTIONAL HISTORY OF ENGLAND
VII.
1625-29.
CHAP. others of those compositions, which enjoy a kind
of half authority in the English church. It is
CHA. I. laid down in the canons of convocation in 1606.
It is very frequent in the writings of English di-
vines, those especially who were much about the
court. And an unlucky preacher at Oxford,
named Knight, about 1622, having thrown out
some intimation that subjects oppressed by their
prince on account of religion might defend them-
selves by arms; that university, on the king's
highly resenting such heresy, not only censured
the preacher, (who had the audacity to observe
that the king by then sending aid to the French
Hugonots of Rochelle, as was rumoured to be de-
signed, had sanctioned his position,) but pro-
nounced a solemn decree that it is in no case
lawful for subjects to make use of force against
their princes, nor to appear offensively or defen-
sively in the field against them. All persons pro-
moted to degrees were to subscribe this article,
and to take an oath that they not only at present
detested the opposite opinion, but would at no
future time entertain it. A ludicrous display of
the folly and despotic spirit of learned aca-
demies! *
Those however who most strenuously denied
the abstract right of resistance to unlawful com-
mands, were by no means obliged to maintain the
In
duty of yielding them an active obedience.
the case of religion, it was necessary to admit that
* Collier, 724. Neal, 495.
Wood's History of the University
of Oxford, ii. 341. Knight was
sent to the Gate-house prison,
where he remained two years.
Laud was the chief cause of this
severity, if we may believe Wood;
and his own diary seems to con-
firm this.
}
FROM HENRY VII. TO GEORGE 11.
569
God was rather to be obeyed than man.
Nor had
CHAP.
VII.
1625-29.
it been pretended, except by the most servile
churchmen, that subjects had no positive rights, CHA. I
in behalf of which they might decline compliance
with illegal requisitions. This however was openly
asserted in the reign of Charles. Those who re-
fused the general loan of 1626, had to encounter
assaults from very different quarters, and were not
only imprisoned, but preached at. Two sermons
by Sibthorp and Mainwaring excited particular
attention. These men, eager for preferment
which they knew the readiest method to attain,
taught that the king might take the subject's
money at his pleasure, and that no one might re-
fuse his demand, on penalty of damnation. "Par-
liaments," said Mainwaring, "were not ordained
to contribute any right to the king, but for the
more equal imposing and more easy exacting of
that which unto kings doth appertain by natural
and original law and justice, as their proper inhe-
ritance annexed to their imperial crowns from
their birth.”* These extravagancies of rather
obscure men would have passed with less notice,
if the government had not given them the most
indecent encouragement. Abbot, archbishop of
Canterbury, a man of integrity, but upon that ac-
count as well as for his Calvinistic partialities,
long since obnoxious to the courtiers, refused to
license Sibthorp's sermon, alledging some unwar-
rantable passages which it contained. For no
* Parl. Hist. 877. 395. 410, &c.
Kennet, p. 30. Collier, 740. 743.
This historian, though a non-juror,
is Englishman enough to blame the
doctrines of Sibthorp and Main-
waring, and, consistently with his
high-church principles, is displeased
at the suspension of Abbot by the
king's authority.
570
THE CONSTITUTIONAL HISTORY OF ENGLAND
CHAP.
VII.
other cause than this, he was sequestered from
the exercise of his archiepiscopal jurisdiction, and
CHA. I. confined to a country-house in Kent.* The house
1625-29. of commons, after many complaints of those ec-
clesiastics, finally proceeded against Mainwaring
by impeachment at the bar of the lords. He was
condemned to pay a fine of £1000, to be sus-
pended for three years from his ministry, and to
be incapable of holding any ecclesiastical dignity.
Yet the king almost immediately pardoned Main-
waring, who became in a few years a bishop, as
Sibthorp was promoted to an inferior dignity.+
* State Trials, ii. 14419. A few
years before this, Abbot had the
misfortune, while hunting deer in
a nobleman's park, to shoot one of
the keepers with his cross-bow.
Williams and Laud, who then
acted together, with some other of
the servile crew, had the baseness
to affect scruples at the archbi-
shop's continuance in his function,
on pretence that, by some con-
temptible old canon, he had be-
come irregular in consequence of
this accidental homicide; and Spel-
man disgraced himself by writing
a treatise in support of this doc-
trine. James, however, had more
sense than the antiquary, and less
ill-nature than the churchmen;
and the civilians gave no counte-
nance to Williams's hypocritical
scruples. Hacket's Life of Wil-
liams, p. 651. Biograph. Britann.
art. Abbot. Spelman's Works,
part 2. p. 3. Aikin's James I., ii.
259. Williams's real object was
to succeed the archbishop on his
degradation.
It may be remarked that Abbot,
though a very worthy man, had
not always been untainted by the
air of a court. He had not scru-
pled grossly to flatter the king:
(see his article in Biograph. Brit.
and Aikin, i. 368.) and tells us
himself, that he introduced Vil-
liers, in order to supplant Somer-
set ; which, though well-meant,
did not become his function.
Even in the delicate business of
promising toleration to the catho-
lics by the secret articles of the
treaty with Spain, he gave satis-
faction to the king, (Hardwicke
Papers, i. 428.) which could only
be by compliance. This shows
that the letter in Rushworth, as-
scribed to the archbishop, depre-
cating all such concessions, is not
genuine. In Cabala, p. 13. it is
printed with the name of the arch-
bishop of York, Matthews.
The bishops were many of
them gross sycophants of Bucking-
ham. Besides Laud, Williams,
and Neile, one Field, bishop of
Landaff, was an abject courtier.
See a letter of his in Cabala, p. 118.
4to. edit. Mede says, (27th May,
1626,) “I am sorry to hear they
(the bishops) are so habituated
to flattery that they seem not to
know of any other duty that be-
longs to them." See Ellis's Let-
ters, iii. 228. for the account Mede
gives of the manner in which the
heads of houses forced the election
of Buckingham as Chancellor of
Cambridge, while the impeachment
was pending against him. Theju-
FROM HENRY VII. TO GEORGE II.
571
VII.
1625—29.
General
There seems on the whole to be very little ground CHAP.
for censure in the proceedings of this illustrious
parliament. I admit that, if we believe Charles CHA. I.
the First to have been a gentle and beneficent
monarch, incapable of harbouring any design remarks.
against the liberties of his people, or those who
stood forward in defence of their privileges, wise
in the choice of his counsellors, and patient in
listening to them, the commons may seem to have
carried their opposition to an unreasonable length.
But, if he had shown himself possessed with such
notions of his own prerogative, no matter how de-
rived, as could bear no effective control from fixed
law or from the nation's representatives; if he was
hasty and violent in temper, yet stooping to low
arts of equivocation and insincerity, whatever
might be his estimable qualities in other respects,
they could act, in the main, no otherwise than by
endeavouring to keep him in the power of parlia-
ment, lest his power should make parliament but
a name. Every popular assembly, truly zealous
in a great cause, will display more heat and pas-
sion than cool-blooded men after the lapse of cen-
turies may wholly approve.*
But so far were they
from encroaching, as our Tory writers pretend, on
the just powers of a limited monarch, that they do
nior masters of arts however made
a good stand; so that it was car-
ried against the earl of Berkshire
only by three voices.
*Those who may be inclined to
dissent from my text, will perhaps
bow to their favourite Clarendon.
He says that in the three first
parliaments, though there were
"several distempered speeches of
particular persons, not fit for the
reverence due to his majesty," yet
*
he "does not know any formed act
of either house (for neither the
remonstrance nor votes of the last
day were such), that was not agree-
able to the wisdom and justice of
great courts upon those extraor-
dinary occasions; and whoever
considers the acts of power and
injustice in the intervals of parlia-
ment, will not be much scandalized
at the warmth and vivacity of those
meetings." Vol. i. p. 8. edit. 1826.
572
THE CONSTITUTIONAL HISTORY OF ENGLAND.
CHAP.
VII.
1625-29.
not appear to have conceived, they at least never
hinted at, the securities without which all they
CHA. I had obtained or attempted would become ineffec-
tual. No one member of that house, in the utmost
warmth of debate, is recorded to have suggested
the abolition of the court of Star-chamber, or any
provision for the periodical meeting of parliament.
Though such remedies for the greatest abuses
were in reality consonant to the actual unrepealed
law of the land; yet, as they implied, in the appre-
hension of the generality, a retrenchment of the
king's prerogative, they had not yet become fami-
liar to their hopes. In asserting the illegality of
arbitrary detention, of compulsory loans, of ton-
nage and poundage levied without consent of par-
liament, they stood in defence of positive rights
won by their fathers, the prescriptive inheritance
of Englishmen. Twelve years more of repeated
aggressions taught the long parliament what a few
sagacious men might perhaps have already sus-
pected, that they must recover more of their an-
cient constitution from oblivion, that they must
sustain its partial weakness by new securities, that,
in order to render the existence of monarchy com-
patible with that of freedom, they must not only
strip it of all it had usurped, but of something that
was its own.
5672-0
ستا
END OF VOL. I.
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