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diff --git a/39711.txt b/39711.txt new file mode 100644 index 0000000..3a2e3af --- /dev/null +++ b/39711.txt @@ -0,0 +1,18962 @@ +The Project Gutenberg EBook of Constitutional History of England, Vol 1 of +3, by Henry Hallam + +This eBook is for the use of anyone anywhere at no cost and with +almost no restrictions whatsoever. You may copy it, give it away or +re-use it under the terms of the Project Gutenberg License included +with this eBook or online at www.gutenberg.org/license + + +Title: Constitutional History of England, Vol 1 of 3 + Henry VII to George II + +Author: Henry Hallam + +Release Date: May 16, 2012 [EBook #39711] + +Language: English + +Character set encoding: ASCII + +*** START OF THIS PROJECT GUTENBERG EBOOK CONSTITUTIONAL HISTORY OF ENGLAND (V.1/3) *** + + + + +Produced by Juliet Sutherland, Melissa McDaniel and the +Online Distributed Proofreading Team at http://www.pgdp.net + + + + + + + +Transcriber's Note: + + Inconsistent hyphenation and spelling in the original document have + been preserved. Obvious typographical errors have been corrected. + + Italic text is denoted by _underscores_ and bold text by =equal + signs=. + + + + + EVERYMAN'S LIBRARY + EDITED BY ERNEST RHYS + + HISTORY + + HALLAM'S + CONSTITUTIONAL HISTORY + WITH AN INTRODUCTION BY + PROFESSOR J. H. MORGAN + + VOLUME ONE + + THE PUBLISHERS OF _EVERYMAN'S LIBRARY_ WILL BE PLEASED TO + SEND FREELY TO ALL APPLICANTS A LIST OF THE PUBLISHED AND + PROJECTED VOLUMES TO BE COMPRISED UNDER THE FOLLOWING + THIRTEEN HEADINGS: + + TRAVEL SCIENCE FICTION + THEOLOGY & PHILOSOPHY + HISTORY CLASSICAL + FOR YOUNG PEOPLE + ESSAYS ORATORY + POETRY & DRAMA + BIOGRAPHY + REFERENCE + ROMANCE + + IN FOUR STYLES OF BINDING: CLOTH, FLAT BACK, COLOURED TOP; + LEATHER, ROUND CORNERS, GILT TOP; LIBRARY BINDING IN CLOTH, + & QUARTER PIGSKIN + + LONDON: J. M. DENT & SONS, LTD. + + NEW YORK: E. P. DUTTON & CO. + + CONSIDER + HISTORY + WITH THE + BEGINNINGS OF + IT STRETCHING + DIMLY INTO THE + REMOTE TIME; + EMERGING DARKLY + OVT OF THE + MYSTERIOVS ETERNITY: + THE TRVE EPIC + POEM AND VNIVERSAL + DIVINE SCRIPTVRE. + + CARLYLE + + + + + CONSTITUTIONAL HISTORY of ENGLAND + HENRY VII TO GEORGE II + BY HENRY HALLAM + VOL I + + LONDON: PUBLISHED by J.M.DENT.&.SONS.LTD + AND IN NEW YORK BY E.P.DUTTON & CO + + + + +INTRODUCTION + + +Few historical works have stood the test of time better than Hallam's +_Constitutional History_. It was written nearly a century ago--the first +edition was published in 1827--and at a time when historians were +nothing if not stout party men. The science of history, as we now know +it, was in its infancy; apologetics were preferred to exegesis; the +study of "sources," the editing of texts, the classification of +authorities were almost unknown. History was regarded as the handmaid of +politics, and the duty of the historian was conceived as being, in the +language of Macaulay, the impression of "general truths" upon his +generation as to the art of government and the progress of society. Whig +and Tory, Erastian and High Churchman, debated on the field of history. +The characters of Laud and Cromwell excited as much passion and +recrimination as if they were contemporary politicians. That a history +written in such times, and by a writer who was proud to call himself a +Whig, should still hold its place is not a little remarkable. The reason +for its vitality is to be found in the temperament and training of the +author. Hallam was a lawyer in the sense in which that term is used at +the Bar; that is to say, not so much a seductive advocate as a man +deeply versed in the law, accurate, judicious, and impartial. Macaulay, +who was as much the advocate as Hallam is the judge, described the +_Constitutional History_ as "the most impartial book we ever read," and +the tribute was not undeserved. Hallam is often didactic, but he is +never partisan. Although a Whig he was by no means concerned, like +Macaulay, to prove that the Whigs were never in the wrong, and, as he +shrewdly remarks, in his examination of the tenets of the two great +parties in the eighteenth century: "It is one thing to prefer the Whig +principles, another to justify, as an advocate, the party which bore +that name." No better illustration of his attitude of mind can be found +than the passage in which, treating of the outbreak of hostilities +between Charles I. and the Long Parliament, he sets himself to consider +"whether _a thoroughly upright and enlightened man_ would rather have +listed under the royal or the parliamentary standard." In these days +when, as the distinguished occupant of the chair of Modern History at +Cambridge tells us, "history has nothing to do with morality," Hallam's +grave anxiety to solve this problem may sound quaint and, indeed, +irrelevant; but there is no denying the high purpose, the sincerity, and +the passion for truth which characterise the passage in question. To-day +the historian's conception of truth is purely objective: his aim is to +discover what former generations thought rather than to concern himself +with what we should think of them. The late Lord Acton[1] stood almost +alone among the modern school of historians in insisting that it is the +duty of the historian to uphold "the authority of conscience" and "that +moral standard which the powers of earth and religion itself tend +constantly to depress." It is more fashionable to contend that the moral +standard is relative; that we cannot judge the men of the past by the +ethical rules of the present; that conscience itself is the product of +historical development. It may be questioned whether this scepticism has +not been carried too far. Hallam had no such doubts. For him "the +thoroughly upright and enlightened man" of the seventeenth century was +not intrinsically different from the thoroughly upright and enlightened +man of the nineteenth; the one concession he makes to time is that the +historian is probably in a better, not a worse, position to judge than +the men of whom he writes--if only because he is more detached. He +condemns the obsequiousness of Cranmer, the bigotry of Laud, the +tortuousness of Charles I., the ambition of Strafford, with the same +reprobation as he would have extended to similar obliquities in a +contemporary. Unless we are to exclude conduct altogether from our +consideration and to deny the personal factor in history, we shall find +it hard to say he is wrong. Gardiner, the latest historian of the +Stuarts, does not hesitate to pronounce similar judgments, though he +expresses himself more mildly. Sorel, perhaps the most illustrious of +the modern school of French historians and a scholar who spent his life +among the archives, has not hesitated--in writing on the Partition of +Poland--to speak of the Nemesis which always waits upon such "public +crimes." + +Hallam's predilection for moral judgments is the more intelligible if we +remember that his conception of "constitutional" history is somewhat +wider than ours is to-day. He included in it much that would now be +called "political" history. One has only to compare his work with the +latest of our authorities--the posthumous book of F. W. Maitland--to +realise how the term has become specialised. Maitland confines his +treatment to the results of political action as they are represented in +the growth of institutions; with political action itself he is, unlike +Hallam, not concerned. The rise and fall of parties, the issues of +Parliamentary debate, the progress of political speculation interest him +but little and disturb him not at all. But to Hallam these things were +hardly less important than the statute book and the law reports. This +liberal view of his subject is not a thing to be regretted. It enables +the reader to appreciate the large part played in the development of the +English constitution by those "conventions" which are a gloss upon the +law and without which the constitution itself is unintelligible. As +Bagehot has pointed out, the legal powers of the king are as large as +his actual authority is small. In strict legal theory the cabinet is +merely an informal group of ministers of the crown who hold office +during the king's pleasure. In fact and in practice it is a committee of +the House of Commons dependent upon the support of the majority of the +members. The fact is the outcome of a conventional modification of the +theory, and this convention is due to the political changes of the +eighteenth century and the growth of the party system. In the pages of +Hallam these changes receive their due recognition, and without it the +development of the English constitution is unintelligible. It was a +favourite doctrine of Hallam that so far as the law was concerned the +constitution was developed very early and that all that later +generations contributed to it was better administration of the law and a +more vigilant public opinion. He even goes so far as to say in his +chapter in the _Middle Ages_ that he doubts "whether there are any +essential privileges of our countrymen, any fundamental securities +against arbitrary power, so far as they depend upon positive +institutions, which may not be traced to the time of the Plantagenets." +This is something of an anachronism, but it represents a not +unjustifiable reaction against the high prerogative doctrines of writers +of his own day. What Hallam, however, was really concerned to prove was +that constitutional law in this country rests upon the common law--upon +the rules laid down by mediaeval judges as to the right of the subject to +trial by jury, his immunity from arbitrary arrest, his claim not to be +arbitrarily dispossessed of his property, and his right of action +against the servants of the crown when he has suffered wrong. In this +conception Hallam was undoubtedly right, and he urged it at a time when +no one had made it as familiar as it has now become in the classic pages +of Professor Dicey. But Hallam was perfectly well aware that these +securities for the liberty of the subject were often abused, that the +sheriffs who empanelled the jury were often corrupt and the judges who +directed it were not infrequently servile; also that so long as the Star +Chamber existed no jury could venture to give a verdict of "not guilty" +in a prosecution by the crown without running the risk of being heavily +punished. He is not insensible to these abuses and to the length of time +it took to correct them, as the reader of the following pages will +discover for himself, and he attaches due weight to the constitutional +importance of the Act for the Abolition of the Star Chamber. But the +truth of his main contention (as expressed in his chapter on "The +English Constitution" in an earlier work[2]), that what chiefly +distinguished our constitution from that of other countries was the +"security for personal freedom and property" enjoyed by the subject, is +undeniable. It was not so much the possession of representative +institutions as the enjoyment of equal rights at common law that +constituted the Englishman's advantage. Maitland[3] has recently pointed +this out in language almost identical with that of Hallam when he +insists that "Parliaments" or "Estates" were in no way peculiar to +England; every country in Western Europe possessed them in the Middle +Ages, but what those countries did not possess was a great school of law +like the Inns of Court determined to uphold at all costs the claims of +the customary law of the nation against the despotic doctrines of the +civil law of Rome. + +Hallam's attitude towards the constitution was that of Burke--he +regarded it with a veneration little short of superstition. He has +expressed himself in his earlier works in words which can hardly fail to +provoke a smile to-day:-- + + "No unbiassed observer, who derives pleasure from the welfare of his + species, can fail to consider the long and uninterruptedly + increasing prosperity of England as the most beautiful phenomenon in + the history of mankind. Climates more propitious may impart more + largely the mere enjoyments of existence; but in no other region + have the benefits that political institutions can confer been + diffused over so extended a population; nor have any people so well + reconciled the discordant elements of wealth, order, and liberty. + These advantages are surely not owing to the soil of this island, + nor to the latitude in which it is placed; but to the spirit of its + laws, from which, through various means, the characteristic + independence and industriousness of our nation have been derived. + The constitution, therefore, of England must be to inquisitive men + of all countries, far more to ourselves, an object of superior + interest; distinguished especially as it is from all free + governments of powerful nations which history has recorded by its + manifesting, after the lapse of several centuries, not merely no + symptom of irretrievable decay, but a more expansive energy."[4] + +If his language seems extravagant, I may remind the reader that there +would have been few in Hallam's day who were prepared to dispute it. +England, almost alone among the states of Europe, had escaped the +infection of the French Revolution. Its constitution had survived the +shock of a movement which, as De Tocqueville has remarked, was as widely +destructive of the old order in Europe as the Reformation itself. The +result was to give the English constitution such a prestige as it had +not enjoyed since the days of Montesquieu. A school of thinkers, +beginning with Guizot and hardly terminating with Gneist, grew up on the +continent who made it their duty to follow Burke's advice and "study the +British constitution" as the last word in political wisdom. Hallam's +complacency may be naive in its expression, but its sentiment is sound, +and Englishmen should be the last to disclaim it. Upon this rock many a +political church has been built; the "law and custom of our Parliament" +have, since he wrote, been studied in every university in Europe and +adopted in almost all the legislatures of the civilised world. Hallam, +like Thucydides, with whom in dignity and sententiousness he may not +unjustly be compared, had a noble pride in the constitution of his +country. + + J. H. MORGAN. + + +FOOTNOTES: + +[1] Cf. _Historical Essays and Studies_, vol. ii. p. 505. + +[2] _Europe during the Middle Ages_, Chapter VIII. Part 3. I may remind +the reader that Hallam regarded his _Constitutional History_ as a +continuation of this chapter, which sketches the development of the +constitution from the earliest times down to the accession of Henry +VII., the point at which the present work begins. + +[3] _English Law at the Renaissance_, p. 27. + +[4] _Middle Ages_ (12th ed.), ii. p. 267. + + + + +BIBLIOGRAPHY + + +A View of the State of Europe during the Middle Ages, 1818; 2nd edition, +1819; passed through twelve editions before 1855; revised and corrected, +1868; adapted to the use of students by W. Smith, 1871; edited by A. +Murray, 1872; translated into Italian by G. Carraro and published at +Firenze, 1874; Supplemental Notes to View of the State of Europe, 1848. +The Constitutional History of England from the Accession of Henry VIII. +to Death of George II., 1827; translated into German by F. A. Rueder and +published at Leipzig, 1828; translated into French by M. Guizot and +published in Paris, 1832; passed through eight editions before 1855; +adapted to the use of students by W. Smith, 1872. Edited (with preface +and memoir of his son) Remains in Verse and Prose of A. H. Hallam, 1834, +1863. The Introduction to the Literature of Europe during the 15th, +16th, and 17th Centuries, 1837-1839; 2nd edition, 1843; other editions, +1854, 1855, 1881. Contributed to J. C. Hare's Vindication of Luther +against his recent English assailants (2nd edition, enlarged), 1855. + +A Short Life and Criticism of Henry Hallam appears in F. A. M. Mignet's +_Eloges Historiques_, published in Paris in 1864. + + TO + HENRY MARQUIS OF LANSDOWNE + IN TOKEN OF HIGH ESTEEM + AND SINCERE REGARD + THIS WORK IS RESPECTFULLY INSCRIBED + BY + THE AUTHOR + + + + +CONTENTS + + + CHAPTER I + + ON THE ENGLISH CONSTITUTION FROM HENRY VII. TO MARY + + 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--Earl of 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 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 enhancing the Royal Power--Tendency of religious Disputes + to the same End Page 7 + + 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--Opposition + made by Part of the Nation--Cranmer--His Moderation in + introducing Changes not acceptable to the Zealots--Mary + --Persecution under her--Its Effect rather favourable to + Protestantism Page 58 + + CHAPTER III + + ON THE LAWS OF ELIZABETH'S REIGN RESPECTING THE + ROMAN CATHOLICS + + 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 Act 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--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 + Execution--Remarks upon it--Continued Persecution of Roman + Catholics--General Observations Page 105 + + CHAPTER IV + + ON THE LAWS OF ELIZABETH'S REIGN RESPECTING PROTESTANT + NONCONFORMISTS + + Origin of the Differences among the English Protestants + --Religious 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 Burleigh averse to Severity--Puritan + Libels--Attempt to set up a Presbyterian 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 Page 162 + + 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 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--The Commons continue to seek Redress of + ecclesiastical Grievances--Also of Monopolies, especially in + the Session of 1601--Influence of the Crown in Parliament + --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 + Contested Elections claimed by the House--The English + Constitution not admitted to be an absolute + Monarchy--Pretensions of the Crown Page 215 + + CHAPTER VI + + ON THE ENGLISH CONSTITUTION UNDER JAMES I. + + Quiet Accession of James--Question of his Title to the + Crown--Legitimacy 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--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 Merchandise without Consent of + Parliament--Remonstrances 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 resorted 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 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 Page 266 + + CHAPTER VII + + ON THE ENGLISH CONSTITUTION FROM THE ACCESSION OF CHARLES I. + TO THE DISSOLUTION OF HIS THIRD PARLIAMENT + + Parliament of 1625--Its Dissolution--Another Parliament + called--Prosecution of Buckingham--Arbitrary Proceedings + towards the Earls of Arundel and Bristol--Loan demanded by + the King--Several committed for Refusal to contribute--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 Puritans + by Bancroft--Growth of High-Church Tenets--Differences as to + the Observance of Sunday--Arminian Controversy--State + Catholics under James--Jealousy of the Court's Favour + towards them--Unconstitutional Tenets promulgated by the + High-Church Party--General Remarks Page 347 + + + + +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 intention to have prosecuted that undertaking +in a general continuation; and when experience taught me to abandon a +scheme projected 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 ourselves, and, +in many respects, the most congenial to my own studies and habits of +mind. + +The title which I have adopted, appears to exclude all matter not +referable 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 constitutional and general history of England, at some periods, +nearly coincide; and I presume that a few occasional deviations of this +nature will not be deemed unpardonable, especially where they tend, at +least indirectly, to illustrate the main topic of enquiry. Nor will the +reader, perhaps, be of opinion that I have forgotten my theme in those +parts of the following 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. 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 +indeed 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 importance 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 indeed were finished in 1820, before the +appearance of those publications which have led to so much controversy, +as to the ecclesiastical history of the sixteenth century; and I was +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. I 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 express my dissent; but I have seldom thought it necessary to +make more than a few verbal modifications in my text. + +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'Angleterre, depuis l'Avenement de Charles I. jusqu'a 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 illustrating 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 seventeenth 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, especially those connected with personal +character, which extend back through at least a large portion of that +reign. It is indeed vain to expect 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, 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 _Constitutional History of England_. + +_April 1832._ + + + + +LIST OF AUTHORITIES + + +_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 _Foedera_, 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 Whitgift, 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. Oxford, 1826. It is +to be regretted that the editor has not preserved the paging of the +folio in his margin, which is of great convenience 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_, folio. + +_Rushworth Abridged_, 6 vols. 8vo. 1703. This edition contains many +additions from works published since the folio edition in 1680. + +Whitelock's _Memorials_, 1732. + +_Memoirs of Col. Hutchinson_, 4to. 1806. + +May's _History of the Parliament_, 4to. 1812. + +Baxter's _Life_, folio. + +Rapin's _History of England_, 3 vols. folio, 1732. + +Burnet's _History of his own Times_, 2 vols. folio. 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. folio, 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. + + + + +CONSTITUTIONAL HISTORY OF ENGLAND + +FROM HENRY VII. TO GEORGE II. + + + + +CHAPTER I + +ON THE ENGLISH CONSTITUTION FROM HENRY VII. TO MARY + + +_Ancient government of England._--The government of England, in all +times recorded by history, has been one of those mixed or limited +monarchies which the Celtic and Gothic tribes appear universally to have +established, in preference to the coarse despotism of eastern nations, +to the more artificial tyranny of Rome and Constantinople, or to the +various models of republican polity which were tried upon the coasts of +the Mediterranean 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 prerogative 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 divergent +from each other, according to their peculiar dispositions, the +revolutions they underwent, or the influence of personal character. +England, more fortunate 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 industry which had been employed in its culture. I have +endeavoured, in a work of which this may in a 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 the principal +circumstances in the polity of England at the accession of Henry VII. + +_Limitations of royal authority._--The essential checks upon the royal +authority were five in number.--1. The king could levy no 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 +hereditary peers or temporal lords, who sat and voted promiscuously in +the same chamber, as of representatives from the freeholders of each +county, and from the burgesses of many towns and less considerable +places, forming the lower or commons' house. 2. The previous assent and +authority 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 determined 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 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, differed much in the degree of their effective +operation. 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 hundred years from every attempt to impose taxes without +consent of parliament; and their recent device of demanding +benevolences, or half-compulsory 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 former, 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 +assembly during seven or eight reigns after the conquest. They were +then, however, ingrafted upon it with plenary legislative authority; and +if the sanction of a statute were required for this fundamental axiom, +we might refer to one in the 15th of Edward II. (1322), which declares +that "the matters to be established for the estate of the king and of +his heirs, and for the estate of the realm and of the people, should be +treated, accorded, and established in parliament, by the king, and by +the assent of the prelates, earls, and barons, and the commonalty of the +realm, according as had been before accustomed."[5] + +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 +Plantagenet and Tudor to have had no effectual or unquestioned +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 extort it from the merchants, or that servile lawyers should be found +to vindicate these encroachments of power. Impositions, like other +arbitrary measures, 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 penalties of criminal offences. Was it ever +pretended that the king could empower his subjects to devise 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 statute? +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, however, 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. + +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 +chastise such aggressions; juries, through intimidation or ignorance, +returned such verdicts as were desired by the Crown; and, in general, +there was perhaps little effective restraint upon the government, except +in the two articles of levying money and enacting laws. + +_State of society and law._--The peers alone, a small body varying from +about fifty to eighty persons, enjoyed the privileges of aristocracy; +which, except that of sitting in parliament, were not very considerable, +far less oppressive. All below them, even their children, 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 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 considerable part, though not perhaps so very large a +proportion 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 possession 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 appellant jurisdiction over +the second, and the third being in a great measure confined to causes +affecting 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 the courts at Westminster, should travel +into each county, commonly twice a year, in order to try issues of fact, +so called in distinction from issues of law, where the suitors, +admitting all essential facts, disputed the rule applicable to them.[6] +By this device, which is as ancient as the reign of Henry II., the +fundamental privilege of trial by jury, and the convenience of private +suitors, as well as accused persons, was made consistent with an uniform +jurisprudence; and though the reference 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 +accustomed 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 palatine 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 quarterly sessions, +according to the same forms as the judges of gaol-delivery. The +chartered towns had their separate jurisdiction under the municipal +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 inhabitants +of London and Westminster not exceeding sixty or seventy thousand.[7] + +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 connected him with it, of +asserting a just right of inheritance, became master of the throne by +the defeat and death of his competitor at Bosworth, and by the general +submission of the kingdom. He assumed the royal title immediately after +his victory, 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 assembly 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 remain in Henry VII. and the +heirs of his body for ever, and in none other."[8] Words studiously +ambiguous, 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 give way. +They seem to make Henry the stock of a new dynasty. But, lest the +spectre of indefeasible right should stand once more in arms on 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 prerogatives to her posterity. + +_Statute for the security of the subject under a king_ de facto.--This +marriage, and the king's great vigilance in guarding his crown, caused +his reign to pass with considerable reputation, though not without +disturbance. 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 +proscriptions of Henry VI. and Edward IV. Such apprehensions 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 distinction 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 the king +and sovereign lord of this land for the time being, and doing him true +and faithful service, shall be convicted of high treason, by act of +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."[9] The endeavour to bind future parliaments was +of course nugatory; but the statute remains an unquestionable authority +for the constitutional 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 argument at the time of the revolution, and in the +subsequent period.[10] + +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 prerogative, 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 aera in our history. It began in revolution and a +change in the line of descent. It nearly coincides, which is more +material, with the commencement of what is termed 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 authority 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 degenerated 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 present, but out of providence for the +future, to make the estate of his people still more and more happy, +after the manner of the legislators in ancient and heroical times." But +when we consider how very few kings or statesmen have displayed this +prospective 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. + +In the first place it is remarkable that the statute of Henry VII. is +merely a transcript, with very little variation, from one of Richard +III., which is actually printed in most editions. It was re-enacted, as +we must presume, in order to obviate 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 monarch 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 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. + +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 English law as to the power of alienation. But I cannot explain the +present subject without mentioning that, by a statute in the reign of +Edward I, commonly called _de donis conditionalibus_, lands given to a +man and the heirs of his body, with remainder 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. Several attempts were successfully made to relax their +strictness; and finally, in the reign of Edward IV., it was held by the +judges in the famous case 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 succession, and become owner of the fee simple. Such a decision +was certainly far beyond the sphere of judicial authority. The +legislature, it was probably 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 which the +aristocracy might have indignantly reversed the insidious decision, had +gone wholly into disuse. It became by degrees a fundamental principle, +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 establishing 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 naturally 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 levied with proclamations in a +public court of justice shall after five years, except in particular +circumstances, 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.[11] + +_Exactions of Henry VII._--The two first of the Tudors rarely +experienced opposition but when they endeavoured to levy money. +Taxation, in the eyes of their subjects, was so far from being no +tyranny, that it seemed the only species worth a complaint. Henry VII. +obtained from his first parliament a grant of tonnage and poundage +during life, according to several precedents of former reigns. But when +general 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 imposition of burdens upon the +poorer classes of the community.[12] He had recourse accordingly to the +system of benevolences, or contributions apparently voluntary, though in +fact extorted from his richer subjects. These having become an +intolerable grievance under Edward IV., were abolished in the only +parliament of Richard III. with 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 Brittany with +Charles VIII., he was compelled by the national spirit to make a +demonstration of war, he ventured to try this unfair and +unconstitutional method of obtaining aid, which received afterwards too +much of a parliamentary sanction, by an act enforcing the payment of +arrears of money, which private men had thus been prevailed upon to +promise.[13] The statute 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 manifest by their rate of +expenditure. Those, again, 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. But, insatiate of accumulating treasure, he discovered +other methods of extortion, still more odious, and possibly more +lucrative. Many statutes had been enacted in preceding reigns, sometimes +rashly or from temporary motives, sometimes in opposition to prevailing +usages which they could not restrain, 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 treasury +with the dishonourable produce of amercements 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 +impeached. Hence the escheators taking hasty inquests, or sometimes +falsely pretending them, defeated the right heir of his succession. +Excessive fines were imposed on granting livery to the king's wards on +their majority. Informations for intrusion, criminal indictments, +outlawries on civil process, in short, the whole course of justice, +furnished 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 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.[14] The avarice of Henry VII., as it rendered his +government unpopular, which had always been penurious, must be deemed a +drawback from the wisdom ascribed to him; though by his good fortune 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 L15,000, 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 received money for conferring +bishoprics.[15] + +It is asserted by early writers, though perhaps only on conjecture, that +he left a sum thus amassed, of no less than L1,800,000 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 +necessary to abandon that neutrality which is generally the most +advantageous and laudable course, it is certain that his early +undertakings against France 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 +displayed the valour of our English infantry, seldom called into action +for fifty years before, and contributed with other circumstances to +throw a lustre over his reign, which prevented most of his +contemporaries from duly appreciating its character. But they naturally +drew the king into heavy expenses, and, together with his profusion and +love of magnificence, rendered his government very burthensome. At his +accession, however, the rapacity of his father's administration had +excited such universal discontent, that it was found expedient 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.[16] 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.[17] 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 laudable concession to the vindictive temper of an +injured people, seldom unwilling to see bad methods employed in +punishing bad men, that Empson and Dudley, who might perhaps by +stretching the prerogative have incurred the penalties of a misdemeanor, +were put to death on a frivolous charge of high treason.[18] + +_Taxes demanded by Henry VIII._--The demands made by Henry VIII. on +parliament were considerable both in frequency and amount. +Notwithstanding the servility of those times, they sometimes attempted +to make a stand against these inroads upon the public purse. Wolsey came +into the House of Commons in 1523, and asked for L800,000, to be raised +by a tax of one-fifth upon lands and goods, in order to prosecute the +war just commenced against France. Sir Thomas More, then speaker, is +said to have urged the House to acquiesce.[19] But the sum demanded was +so much beyond any precedent, that all the independent members opposed a +vigorous resistance. 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. +Wolsey, after giving an uncivil answer to the committee, came down again +to the House, on pretence 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 +haughtiest subject who had ever been known in England. But they made no +other answer to his harangue than that it was their usage to debate only +among themselves. These debates lasted fifteen or sixteen days. A +considerable part of the Commons appears to have consisted of the king's +household 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 people to pay up the whole +subsidy at once.[20] + +_Illegal exactions of Wolsey in 1522 and 1525._--No parliament was +assembled for nearly seven years after this time. Wolsey had already +resorted to more arbitrary methods of raising money by loans and +benevolences.[21] The year before this debate in the Commons, he +borrowed twenty thousand pounds of the city of London; yet so +insufficient 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 in +yearly value were taxed at one-third. Such unparalleled violations of +the clearest and most important privilege that belonged to Englishmen +excited a general apprehension.[22] Fresh commissioners 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.[23] This demand Wolsey made in person to the mayor and +chief citizens of London. They attempted to remonstrate, but were warned +to beware, lest "it might fortune to cost some their heads." Some were +sent to prison for hasty words, to which the smart of injury incited +them. The clergy, from whom, according to usage, a larger measure of +contribution was demanded, stood upon their privilege to grant their +money only in convocation, and denied 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 commission, +then it would be worse than the taxes of France, and England should be +bond, and not free."[24] Nor did their discontent terminate in +complaints. The commissioners met with forcible 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 commissions and remitting all sums demanded under +them. They now resorted to the more specious request of a voluntary +benevolence. This also the citizens of London endeavoured to repel, by +alleging the statute of Richard III. But it was answered 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. + +No very material attempt had been made since the reign of Edward III. to +levy a general imposition 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 Wolsey therefore could have procured the +acquiescence of the nation under this yoke, there would probably have +been an end of parliaments for all ordinary purposes; though, like the +States General of France, they might still be convoked to give weight +and security to great innovations. We cannot indeed doubt that the +unshackled condition of his friend, though rival, Francis I., afforded +a mortifying 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 possessed any. But the courage and +love of freedom natural to the English commons, speaking in the hoarse +voice of tumult, though very ill supported by their superiors, preserved +us in so great a peril.[25] + +_Acts of parliament releasing the king from his debts._--If we justly +regard with detestation the memory of those ministers who have aimed at +subverting 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 +contemporaries. 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 adversaries. His generosity +and magnificence seem rather to have dazzled succeeding ages than his +own. But, in fact, his best apology is the disposition 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 equitable to allow some praise to a minister for the mischief +which he may be presumed to have averted. Had a nobler spirit animated +the parliament 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 +minister. I can discover no better apology for Sir Thomas More's +participation in impeaching Wolsey on articles so frivolous that they +have served to redeem his fame with later times, than his knowledge of +weightier offences against the common weal which could not be alleged, +and especially the commissions of 1525.[26] But in truth this +parliament showed little outward disposition to object any injustice of +such a kind to the cardinal. They professed to take upon themselves to +give a sanction to his proceedings, as if in mockery of their own and +their country's liberties. They passed a statute, the most extraordinary +perhaps of those strange times, wherein "they do, for themselves and all +the whole body of the realm which they represent, freely, liberally, and +absolutely, give and grant unto the king's highness, by authority of +this present parliament, 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 taxation or other assessing, +by virtue of any commission or commissions, or by any other mean or +means, whatever it be, heretofore, passed for that purpose."[27] 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 Commons held offices under the +Crown. This illaudable 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.[28] + +_A benevolence again exacted._--Henry had once more recourse, about +1545, to a general exaction, miscalled benevolence. The council's +instructions to the commissioners employed in levying it leave no doubt +as to its compulsory character. They were directed to incite all 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 were of +less value than 40_s._ or whose chattels were less than L15. 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 movable 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 sovereign +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 +"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, enjoining +him silence in the meantime, that his evil example might not corrupt the +better disposed.[29] + +It is only through the accidental publication of some family papers, +that we have become acquainted with this document, so curiously +illustrative of the government of Henry VIII. From the same authority +may be exhibited a particular specimen of the consequences that awaited +the refusal of this benevolence. One Richard Reed, an alderman of +London, had stood alone, as is said, among his fellow-citizens, in +refusing to contribute. It was deemed expedient not to overlook this +disobedience; and the course adopted in pursuing 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 disobedience. "Finally," the letter concludes, "you must use him +in all things according to the sharpe disciplyne militar of the northern +wars."[30] It is natural to presume that few would expose themselves to +the treatment of this unfortunate citizen; and that the commissioners, +whom we find appointed 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.[31] + +_Severe and unjust executions for treason._--Such was the security that +remained against arbitrary taxation under the two Henries. Were men's +lives better protected from unjust measures, and less at the mercy of a +jealous court? It cannot be necessary to expatiate very much on this +subject in a work that supposes the reader's acquaintance 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. + +_Earl of Warwick._--The Duke of Clarence, attainted in the reign 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. + +_Earl of Suffolk._--The nearest heir to the house of York, after the +queen and her children, and the descendants of the Duke of Clarence, +was a son of Edward IV.'s sister, the Earl of Suffolk, whose elder +brother, the 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 +Netherlands; whence, being a man of a turbulent disposition, 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 shipwrecked 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 Buckingham._--The Duke of Buckingham, representing the ancient +family of Stafford, and hereditary high constable of England, stood the +first in rank and consequence, perhaps in riches, among the nobility. +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. 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.[32] + +_New treasons created by statutes._--The execution, however, of Suffolk +was at least not contrary to law; and even Buckingham was attainted on +evidence which, according to the 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 exasperated by +resistance, demanded more constant supplies of blood; and many perished +by sentences which we can hardly prevent ourselves from considering as +illegal, because the statutes to which they might be conformable seem, +from their temporary duration, their violence, and the passiveness of +the parliaments that enacted them, rather like arbitrary invasions of +the law than alterations of it. By 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 ecclesiastical supremacy of the Crown, which, till +about two years before, no one had ever ventured to 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 similar fate. He had offered to take the +oath to maintain 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 ecclesiastical, 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.[33] The insurgents laid +down their arms, on an unconditional promise of amnesty. But another +rising having occurred in a different quarter, the 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, unreasonable 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 rebellion,[34] against the abbots of +Reading and Glastonbury, and others who were implicated in charges of +treason at this period, we find so much haste, such neglect of judicial +forms, and so blood-thirsty a determination to obtain convictions, that +we are naturally tempted to reckon them among the victims of revenge or +rapacity. + +_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 commands +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 +proceeding 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 proceedings, it is said, took place +against the person intended, nor is it known who he was.[35] 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 viceregent in his ecclesiastical +supremacy, and recently created Earl of Essex, fell so suddenly, and so +totally without offence, that it has perplexed some writers to assign +the cause. But there seems little doubt that Henry's dissatisfaction +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 treason and heresy was hurried through parliament, +without hearing him in his defence.[36] The charges, indeed, at least of +the first kind, were so ungrounded, 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. + +_Duke of Norfolk._--The Duke of Norfolk had been, throughout Henry's +reign, one of his most confidential ministers. But as the king +approached his end, an inordinate jealousy of great men, rather than +mere caprice, appears to have prompted the resolution of destroying the +most conspicuous family in England. Norfolk's son, too, the Earl of +Surrey, though 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 who +sufficed to take away the life of the noblest and most accomplished man +in England. Surrey's treason seems to have consisted chiefly in +quartering the royal arms in his escutcheon; and this false heraldry, if +such it were, must have been considered 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 commonly 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. Continuing in prison during +Edward's reign, he just survived to be released and restored in blood +under Mary. + +_Anne Boleyn._--Among the victims of this monarch's ferocity, as we +bestow most of our admiration on Sir Thomas More, so we reserve our +greatest pity for Anne Boleyn. Few, very few, have in any age hesitated +to admit her innocence.[37] But her discretion was by no means +sufficient to preserve her steps on that dizzy height, which she had +ascended with more eager ambition than feminine delicacy could approve. +Henry was probably quick-sighted enough to perceive that he did not +possess her affections; and his own were soon transferred to another +object. Nothing in this detestable reign is worse 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 extend 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 attached the +same penalties to anything 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.[38] Henry seems to have thought his +honour too much sullied by the infidelity of a lawful wife. But for +this destiny he was yet reserved. I shall not impute to him as an act of +tyranny the execution of Catherine Howard, since it appears probable +that the licentious habits of that young woman had continued after her +marriage; and though we 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.[39] 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 virgin incurred the penalties of treason, if she did not previously +reveal any failings that had disqualified her for the service of +Diana.[40] + +_Fresh statutes enacting the penalties of treason._--These parliamentary +attainders, being intended rather as judicial than legislative +proceedings, were violations of reason and justice in the application of +law. But many general enactments of this reign bear the same character +of servility. New political offences were created in every parliament, +against which the severest penalties were denounced. The nation had +scarcely time to rejoice in the termination of those long debates +between the houses of York and Lancaster, when the king's divorce, and +the consequent illegitimacy of his eldest daughter, laid open the +succession to fresh questions. It was needlessly unnatural and unjust to +bastardise 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 adversaries 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 construction that would be put on this act, become liable to the +penalties of treason. In two years 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 licence 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."[41] + +_Act giving proclamations the force of law._--Henry's two divorces had +created an uncertainty as to the line of succession, which parliament +endeavoured 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 even reserving a preference to the descendants of +former sovereigns.[42] By a subsequent statute, the Princesses Mary and +Elizabeth were nominated in the entail, after the king's male issue, +subject, however, to such conditions as he should declare, by +non-compliance with which their right was to cease.[43] 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 +excluding, 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.[44] Such a provision not only tended to annihilate the +authority of a regency, and to expose the kingdom to a sort of +anarchical confusion during its continuance, but seemed to prepare the +way for a more absolute power of abrogating 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 +person's inheritance, offices, liberties, goods, and chattels, or +infringe the established laws. This has been often noticed as an +instance of servile compliance. 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 considerably limited.[45] + +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 abhorrence, 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 descend to posterity among those of the many tyrants and +oppressors of innocence, whom the wrath of Heaven has raised up, and the +servility 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 +deserve 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, +productive of no material advantage, they were uniformly successful, and +retrieved the honour of the English name. But the main cause of the +reverence 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.[46] + +_Government of Edward VI.'s counsellors._--The ill-assorted body of +counsellors who exercised the functions of regency by Henry's testament, +were sensible that they had not sinews to wield his iron sceptre, and +that some sacrifice must be made to a nation exasperated as well as +overawed 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 at +once abrogated.[47] 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 relieves the subject +from these terrors, contains also a repeal of that which had given +legislative validity to the king's proclamations. These provisions +appear like an elastic recoil of the constitution 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 +constitution. For, although proclamations had no longer the legal +character of statutes, we find several during Edward's reign enforced by +penalty of fine and imprisonment. Many of the ecclesiastical changes +were first established by no other authority, though afterwards +sanctioned by parliament. Rates were thus fixed for the price of +provisions; bad money was cried down, with penalties on those who should +buy it under a certain value, and the melting of the current coin +prohibited on pain of forfeiture.[48] 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.[49] One would imagine that +the late statute had been repealed, as too far restraining the royal +power, rather than as giving it an unconstitutional extension. + +_Attainder of Lord Seymour._--It soon became evident that, if the new +administration had not fully imbibed the sanguinary spirit of their late +master, they were as little scrupulous in bending the rules of law and +justice to their purpose in cases of treason. The Duke of Somerset, +nominated by Henry only as one of his sixteen executors, obtained almost +immediately afterwards a patent from the young king, who 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 destroy +by a bill of attainder. Seymour was apparently a dangerous and +unprincipled man; he had courted the favour of the young king by small +presents 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.[50] 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 prosecution against Lord Seymour, it was thought +expedient to follow the very worst of Henry's precedents, by not hearing +the accused in his defence. The 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 before the Lords might repeat their evidence +before the lower house. It rather appears that the Commons did not +insist on this any farther; but the bill of attainder was carried with a +few negative voices.[51] 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! + +_Attainder of Duke of Somerset._--But it was more easy to crush a single +competitor, than to keep in subjection the subtle and daring spirits +trained in Henry's councils, and jealous of the usurpation of an equal. +The protector, attributing his success, as is usual with men in power, +rather to skill than fortune, and confident 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 confederacy which he had neither the discretion to +prevent, nor the firmness to resist. Though 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 Northumberland, who, with no +ostensible title, had become 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 not seem legally insufficient. He demanded +on his trial to be confronted with the witnesses; a favour rarely +granted in that age to state criminals, 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 suspended, when the +private deposition of one suborned 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 treasons, one of the most important constitutional provisions +which the annals of the Tudor family afford. It is enacted, that "no +person shall be 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 confess the +charges."[52] 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. + +_Violence of Mary's reign._--It seems hardly necessary to mention the +momentary usurpation of Lady Jane Grey, founded 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.[53] The reign that immediately followed +is chiefly remembered as a period of sanguinary persecution; but though +I reserve for the next chapter all mention of ecclesiastical disputes, +some of Mary's proceedings 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 +anticipated the legal authority which her parliament was ready to +interpose for their abrogation; the Latin liturgy was restored, the +married clergy expelled 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.[54] The queen, +in fact, and those around her, acted and felt as a legitimate +government restored after an usurpation, and treated the recent statutes +as null and invalid. But even in matters of temporal government, the +stretches of prerogative were more violent and alarming than during her +brother's reign. It is due indeed to the memory of one who has left 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 +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 kings, she showed it to Gardiner, and on his expressing +indignation at the sophism, threw it herself into the fire. An act +passed, however, to settle such questions, which declares the queen to +have all the lawful prerogatives of the Crown.[55] But she was +surrounded by wicked counsellors, renegades of every faith and ministers +of every tyranny. We must, in candour, attribute to their advice her +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.[56] 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 of parliament; an encroachment unprecedented since the reign of +Richard II. Several proofs might be adduced from records of arbitrary +inquests for offences, and illegal modes of punishment. The torture is, +perhaps, more frequently mentioned in her short reign than in all former +ages of our history put together; and probably from that imitation of +foreign governments, which contributed not a little to deface our +constitution in the sixteenth century, seems deliberately to have been +introduced as part of the process in those dark and uncontrolled +tribunals which investigated offences against the state.[57] A +commission issued in 1557, authorising the persons 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 observed) 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 reign.[58] 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 reputed and taken for a rebel, and executed +according to martial law.[59] This had been provoked as well by a +violent libel written at Geneva by Goodman, a refugee, exciting the +people to dethrone the queen; as by the recent attempt of one Stafford, +a descendant of the house of Buckingham, who, having landed with a small +force at Scarborough, had vainly hoped that the general disaffection +would enable him to overthrow her government.[60] + +_The House of Commons recovers part of its independent power in these +two reigns._--Notwithstanding, however, this apparently uncontrolled +career of power, it is certain that the children of Henry VIII. did not +preserve his almost absolute dominion over parliament. I have only met +with one instance in his reign where the Commons refused to pass a bill +recommended by the Crown. This was in 1532; but so unquestionable were +the legislative rights of parliament, that, although much displeased, +even Henry was forced to yield.[61] 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 government, yet the dissent of no +small number is frequently recorded in the former reign. Thus the +Commons not only threw out a bill creating several new treasons, and +substituted one of a more moderate nature, with that memorable clause +for two witnesses to be produced in open court, which I have already +mentioned;[62] but rejected one attainting Tunstal Bishop of Durham for +misprision of treason, and were hardly brought to grant a subsidy.[63] +Their conduct in the two former instances, and probably in the third, +must be attributed 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.[64] Two reasons principally contributed +to this opposition; the one, a fear of entailing upon the country those +numerous exactions of which so many generations had complained, by +reviving the papal supremacy, and more especially of a restoration of +abbey lands; the other, an extreme repugnance to the queen's Spanish +connection.[65] If Mary could have obtained the consent of parliament, +she would have settled the crown on her husband, and sent her sister, +perhaps, to the scaffold.[66] + +_Attempt of the court to strengthen itself by creating new +boroughs._--There cannot be a stronger proof of the increased weight of +the Commons during these reigns, than the anxiety of the court to obtain +favourable elections. Many ancient boroughs undoubtedly have at no +period possessed sufficient importance to deserve the elective franchise +on the score of their riches or population; and it is most likely that +some temporary interest or partiality, which cannot now be traced, first +caused a writ to be addressed 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 +Commons. Twenty-two boroughs were created or restored in this short +reign; some of them, indeed, 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 representation, 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 circular +letter of Edward to all the sheriffs commands them to give notice to the +freeholders, citizens, and burgesses within their respective counties, +"that our pleasure and commandment is, that they shall choose and +appoint, as nigh as they possibly may, men of knowledge and experience +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 followed." Several persons +accordingly were recommended 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.[67] 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 sheriffs to admonish the electors to choose good catholics +and "inhabitants, as the old laws require," 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.[68] 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;[69] 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 assembly, who withstood the design of a besotted +woman and her unprincipled counsellors to transfer this kingdom under +the yoke of Spain.[70] + +_Causes of the high prerogative of the 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 acknowledged 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.[71] A government +that ruled by intimidation was absolutely destitute of force to +intimidate. Hence 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 independent 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 Henry's favour, the Cromwells, the +Riches, the Pagets, the Russells, and the Powletts, than of the +representatives of ancient and honourable houses, the Norfolks, the +Arundels, and the Shrewsburies. We trace the noble statesmen of those +reigns concurring in all the inconsistencies of their revolutions, +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 adherence to the present power. + +_Jurisdiction of the council of star-chamber._--I have noticed in a +former work that illegal and arbitrary jurisdiction exercised by the +council, which, in despite of several positive statutes, continued 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.[72] This usurped jurisdiction, carried +much farther and exercised more vigorously, was the principal grievance +under the Tudors; and the forced submission of our forefathers was +chiefly owing to the terrors of a tribunal, 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; yet, by intimidating jurors, it procured +convictions which it was not authorised to pronounce. We are naturally +astonished at the easiness with which verdicts were sometimes given +against persons accused of treason on evidence insufficient to support +the charge in point of law, or in its nature not competent to be +received, or unworthy of belief. 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 Commonwealth 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 commanded to +appear in the star-chamber, or before the privy council, for the matter. +But this threatening 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 pronouncing one not guilty of +treason contrary to such evidence as was brought in, were not only +imprisoned for a space, but a large fine set upon their heads, which +they were fain to pay; another inquest 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 custom of the realm of England."[73] One of the +instances to which he alludes was probably that of the jury who +acquitted Sir Nicholas Throckmorton in the second year of Mary. He had +conducted his own defence with singular boldness and dexterity. On +delivering their verdict, the court committed them to prison. Four, +having acknowledged their offence, were soon released; but the rest, +attempting to justify themselves before the council, were sentenced to +pay, some a fine of two thousand pounds, some of one thousand marks; a +part of which seems ultimately to have been remitted.[74] + +It is here to be observed that the council of which we have just heard, +or, as Lord Hale denominates it (though rather, I believe, for the sake +of distinction than upon any ancient authority), the king's ordinary +council, was something different 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 mention all temporal and spiritual peers, who, in +the opinion at least of some, had a right of suffrage therein), were not +necessarily of the former body.[75] 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 exercised 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 endeavoured to repress; a name +derived from the chamber wherein it sat, and which is found in many +precedents before the time of Henry VII., though not so specially +applied to the council of judicature as afterwards.[76] The statute of +this reign has a much more limited operation. I have observed in another +place, that the coercive jurisdiction of the council had great +convenience, in cases where the ordinary course of justice was so much +obstructed by one party, through writs, combinations of maintenance, or +overawing influence, that no inferior court would find its process +obeyed; and that such seem to have been reckoned necessary 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 untrue returns, the +taking of money by juries, the great riots and unlawful assemblies, +which almost annihilated the fair administration of justice, empowers +the chancellor, treasurer, and keeper of the privy seal, or any two of +them, with a bishop and temporal lord of the council, and the chief +justices of king's bench and common pleas, or two other 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 advantage, 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 misdemeanours. By a later act, +21 H. 8, c. 20, the president of the council 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 degree 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 offenders convicted of breaking such proclamations before +certain persons enumerated therein (being apparently the usual officers +of the privy council, together with some bishops and judges), "in the +star-chamber or elsewhere," shall suffer such penalties of fine and +imprisonment as they shall adjudge. "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 defend 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,[77] +which was at that time marvellous necessary to do to repress the +insolency of the noblemen and gentlemen in 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 another to his court, to answer before the persons before named, +after they had remonstrance showed them of their evil demeanour, and +been well disciplined, as well by words as by _fleeting_ [confinement in +the Fleet prison] a while, and thereby their pride and courage somewhat +assuaged, they began to range themselves in order, and to understand +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."[78] But as +the court erected by the statute of Henry VII. appears to have been in +activity 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 independent and supreme. It is obvious that +most, if not all, of the judges in the court held under that statute +were members of the council; so that it might in a certain sense be +considered as a committee from that body, who had long before been wont +to interfere with the punishment of similar misdemeanours. 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-chamber," which related to the limited court +erected by the statute.[79] + +In this half-barbarous state of manners we certainly 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 liberty, +to prefer the forms of trial to the attainment 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 habitually +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 cognisance principally, he +tells us, of four kinds of causes, "forces, frauds, crimes various of +stellionate, and the inchoations or middle acts towards crimes capital +or heinous, not actually committed or perpetrated."[80] 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 abundant proofs of +this department of their functions in the succeeding reigns. But this +was in violation of many ancient laws, and not in the least supported by +that of Henry VII.[81] + +_Influence of the authority of the star-chamber in enhancing the royal +power._--A tribunal so vigilant and severe as that of the star-chamber, +proceeding by modes of interrogatory 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 Commons who took part against the Crown; but it +would not be unreasonable to believe it, or at least that a man of +moderate courage would scarcely care to expose himself to the resentment +which the council might indulge after a dissolution. A knight was sent +to the Tower by Mary, for his conduct in parliament;[82] and Henry VIII. +is reported, not perhaps on very certain authority, to have talked of +cutting off the heads of refractory commoners. + +In the persevering struggles of earlier parliaments against Edward III., +Richard II., and Henry IV., it is a very probable conjecture, that many +considerable peers acted in union with, and encouraged the efforts of, +the Commons. But in the period now before us, the nobility were +precisely the class most deficient in that constitutional spirit, which +was far from being extinct in those below them. They knew what havoc had +been made among their fathers, by multiplied attainders during the +rivalry of the two Roses. They had seen terrible examples of the danger +of giving umbrage 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 unfortunately too true that, steadily employed and +combined 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 eminent services in the field, and of unceasing compliance in +council, could not rescue the Duke of Norfolk from the effects of a +dislike which we cannot 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, distributed 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 ecclesiastical +estates, and naturally thought that the king's favour would most readily +be gained by an implicit conformity to his will. Nothing however seems +more to have sustained the arbitrary rule of 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 doubtful 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 transitions, I have purposely kept them out of +sight in the present chapter, they will form the proper subject of the +next. + +FOOTNOTES: + +[5] This statute is not even alluded 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, published by authority, and is brought forward in +the First Report of the Lords' Committee, on the dignity of a Peer +(1819), p. 282. Nothing can be more evident than that it not only +establishes by a legislative declaration the present constitution of +parliament, but recognises it as already standing upon a custom of some +length of time. + +[6] 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, according 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 return, puts in his _plea_; which, if it amount to a +denial of the facts alleged in the declaration, must _conclude 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 justification of +it, it is said to _conclude to the court_; the effect of which is to +make it necessary for the plaintiff to reply; in which _replication_ he +may deny the facts pleaded in justification, and conclude to the +country; or allege some new matter in explanation, to show that they do +not meet all the circumstances, 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 case it becomes +an issue in law, and is determined by the judges without the +intervention of a jury; it being a principle, that by demurring, the +party acknowledges the truth of all matters alleged on the pleadings. +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 deduced to a disputed fact), a jury must be impanelled +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 entry of the +judgment itself, form the record. + +This is merely intended to explain 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 beyond all bounds. But it all rests upon the +ancient maxim: "De 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 modern 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 +annihilation, as it may be called, of written pleadings, by their +reduction to an unmeaning form, which has prevailed in three such +important and extensive forms of action, as _ejectment_, _general_ +_assumpsit_, and _trover_; both as it throws too 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 record. But great practical convenience, and almost +necessity, has generally been alleged as far more than a compensation +for these evils. + +[7] The population for 1485 is estimated by comparing a sort of census +in 1378, when the inhabitants 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 increase in the latter period. Three millions at the accession of +Henry VII. is probably not too low an estimate. + +[8] _Rot. Parl._ vi. 270. But the pope's bull of dispensation for the +king's marriage speaks of the realm of England as "jure haereditario ad +te legitimum in illo praedecessorum tuorum successorem pertinens." Rymer, +xii. 294. And all Henry's own instruments claim an hereditary right, of +which many proofs appear in Rymer. + +[9] Stat. 11 H. 7, c. 1. + +[10] Blackstone (vol. iv. c. 6) has some rather perplexed reasoning on +this statute, leaning a little towards 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 is himself +wrong in pretending that "the statute of Henry VII. does by no means +command any opposition to a king _de jure_, but excuses the obedience +paid to a king _de facto_." + +[11] For these observations on the statute of Fines, I am principally +indebted to Reeves's _History of the English Law_ (iv. 133), a work, +especially in the latter volumes, of great research and judgment; 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 philosopher's library. +That entails had been defeated by means of a common recovery before the +statute, 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. + +[12] 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 Margaret, at the advice of More, then but +twenty-two years old. "Forthwith 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 displeased Henry, who would +not, however, he says, "infringe the ancient liberties of that house, +which would have been odiously taken." Wordsworth's _Eccles. Biography_, +ii. 66. This story is also told by Roper. + +[13] Stat. 11 H. 7, c. 10. Bacon says the benevolence was granted by act +of parliament, which Hume shows to be a mistake. The preamble 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 ancestor's promise. + +[14] Hall, 502. + +[15] Turner's _History of England_, iii. 628, from a MS. document. A +vast number of persons paid fines for their share in the western +rebellion of 1497, from L200 down to 20_s._ Hall, 486. Ellis's _Letters +illustrative of English History_, i. 38. + +[16] 1 H. 8, c. 8. + +[17] 2 H. 7, c. 3. Rep. 1 H. 8, c. 6. + +[18] They were convicted by a jury, and afterwards attainted by +parliament, but not executed for more than a year after the king's +accession. If we may believe Holingshed, the council at Henry VIII.'s +accession made restitution to some who had been wronged by the extortion +of the late reign;--a singular 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 observes, was the common mode of +his oppressions. + +[19] Lord Hubert inserts an acute speech, which he seems to ascribe to +More, arguing more acquaintance with sound principles of political +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 unsuited 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. + +[20] Roper's _Life of More_; Hall, 656, 672. This chronicler, who wrote +under Edward VI., is our best witness for the events of Henry'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 incomplete, 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 valuable, is later than Hall. +Wolsey, the latter observes, gave offence to the Commons, by descanting +on the wealth and luxury of the nation, "as though he had repined or +disclaimed that any man should fare well, or be well clothed, but +himself." + +But the most authentic memorial 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 contrary, the highest poverty confessed, 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 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 fortune, +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 shillings 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. I have heard no man in my +life that can remember that ever there was given to any one of the +King's ancestors 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 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. Memorials_, vol. i. p. 49. +This is also printed in Ellis's _Letters illustrative of English +History_, i. 220. + +[21] 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. 1 H. 8, c. 20, as will be found even in Ruffhead's +table of contents, 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. + +[22] Hall, 645. This chronicler says the laity were assessed at a tenth +part. But this was only so of the smaller estates, namely, from L20 to +L300; for from L300 to L1000 the contribution demanded was twenty marks +for each L100, and for an estate of L1000, two hundred marks, and so in +proportion upwards. MS. Instructions to Commissioners, penes auctorem. +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 induce 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 commissioners, 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 Scotland; 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. + +[23] A letter in my possession from the Duke of Norfolk to Wolsey, +without the date of the year, relates, 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; whereas 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 cardinal, that from twenty +pounds upward there were not twenty in the county of Norfolk who had not +consented. "So that I see great likelihood that this grant shall be much +more than the loan was." It was done, however, very reluctantly, 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 fit to suppose; for in a very short time the insurrection of the +common 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 Pavia +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 letter 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 themselves, 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 children, and wives, as despoulit, +and not greatly caring what they do, or what becomes of them.... Further +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 promised 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 reported 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 verily 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, moreover, that when the +people be commanded 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 England than +profitable, and the keeping 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 invading 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; insomuch 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 expedient." 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 letter, 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." + +[24] 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. + +[25] Hall, 699. + +[26] 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 obtained his first +reputation." I am disposed to conjecture from Cromwell's character and +that of the House of Commons, as well as from some passages of Henry's +subsequent behaviour towards the cardinal, that it was not the king's +intention to follow up this prosecution, at least for the present. This +also I find to be Dr. Lingard's opinion. + +[27] _Rot. Parl._ vi. 164; Burnet, Appendix, No. 31. "When this release +of the loan," says Hall, "was known to the commons of the realm, Lord! +so they grudged and spake ill of the whole parliament; 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 murmur, but there was no remedy."--P. 767. + +[28] 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 L110,147 15_s._ 8_d._ There +was also a sum called _devotion money_, amounting only to L1,093 8_s._ +3_d._, levied in 1544, "of the devotion of his highnesse's subjects for +_Defence of Christendom against the Turk_." + +[29] 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 opulence. Somerset gave L6807; Kent L6471; Suffolk L4512; +Norfolk L4046; Devon L4527; Essex L5051; but Lancaster only L660; and +Cumberland, L574. The whole produced L119,581 7_s._ 6_d._ besides +arrears. In Haynes's _State Papers_, p. 54, we find a curious minute of +Secretary Paget, containing reasons why it was better to get the money +wanted by means of a benevolence than through parliament. But he does +not hint at any difficulty of obtaining a parliamentary grant. + +[30] Lodge, p. 80. Lord Herbert mentions this story, and observes, that +Reed having been taken by the Scots, was compelled to pay much more for +his ransom than the benevolence required of him. + +[31] Rhymer, xv. 84. These commissions bearing date 5th January 1546. + +[32] Hall, 622. Hume, who is favourable 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 reasonable 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 resentment, acting on the savage +temper of Henry. + +[33] Several letters that passed between the council and Duke of Norfolk +(_Hardwicke State Papers_, i. 28, etc.) 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 a free pardon. +Norfolk is told, "If you could, by any good means or possible dexterity, +reserve a very 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 indicate 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 inferior 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 +restrain the ascendency of great families; 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 contain a good deal +of interesting matter as to the northern rebellion, which gave Henry a +pretext for great severities towards the monasteries in that part of +England. + +[34] 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 exciting 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 +polished manners and temperate life. Philips, his able and artful +biographer, both proves and glories in the treason. _Life of Pole_, +sect. 3. + +[35] 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 hurried through parliament; but whether without hearing the +parties, does not appear. + +[36] Burnet observes, that Cranmer 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 second 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 attincturae Thomae Comitis Essex, +et communi omnium procerum tunc praesentium concessu nemine discrepante, +expedita est." And at the close of the session, we find a still more +remarkable testimony to the unanimity of parliament, in the following +words: "Hoc animadvertendum est, quod in hac sessione cum proceres +darent suffragia, et dicerent sententias super actibus praedictis, ea +erat concordia et sententiarum conformitas, ut singuli iis et eorum +singulis assenserint, nemine discrepante. Thomas de Soulemont, Cleric. +Parliamentorum." As far therefore as entries on the journals are +evidence, Cranmer 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 +apology for Cromwell, though it was full as much so for himself. + +[37] Burnet has taken much pains with the subject, and set her innocence +in a very clear light (i. 197 and iii. 114). See also Strype, i. 280, +and Ellis's _Letters_, ii. 52. But Anne had all the failings of a vain, +weak woman, raised suddenly to greatness. She behaved with unamiable +vindictiveness towards Wolsey, and perhaps (but this worst charge is not +fully authenticated) 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 repressed the +inveterate partiality of his profession, has used every oblique 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 extravagant lies of Sanders about her birth; without +vouching for them indeed, but without any reprobation 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 respected her memory" (p. 316); +though, had he read Burnet with any care, he would have found that they +were seen by that historian, and surely have not perished 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 +admitted 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 commencement of a note at the end of the same volume, +for not "rendering his book more interesting, by representing 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 contradicting 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 evidence, in the style of a judge who can hardly bear to +put for a moment the possibility of a prisoner's innocence. + +I regret very much to be compelled, 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 painstaking 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 belonged. _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 character. + +[38] The lords pronounced a singular sentence, that she should be burned +or beheaded at the king's pleasure. Burnet says the judges complained of +this as unprecedented. Perhaps in strictness the king's right to _alter_ +a sentence is questionable, or rather would be so, if a few precedents +were out of the way. In high treason committed by a man, the beheading +was part of the sentence, and the king only remitted the more cruel +preliminaries. Women, till 1791, were condemned to be burned. But the +two queens of Henry, the Countess of Salisbury, Lady Rochford, Lady Jane +Grey, and, in later times, Mrs. Lisle, were beheaded. Poor Mrs. Gaunt +was not thought noble enough to be rescued from the fire. In felony, +where beheading 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. + +[39] It is often difficult to understand the grounds of a parliamentary +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 depositions extend further. + +Dr. Lingard has made a curious observation on this case. "A plot was +woven by the industry 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." + +[40] Stat. 26 H. 8, c. 13. + +It may be here observed, that the act attainting Catherine Howard 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. + +[41] 22 H. 8, c. 18. + +[42] 28 H. 8, c. 7. + +[43] 35 H. 8, c. 1. + +[44] 28 H. 8, c. 17. + +[45] 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 persons. +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 disobedience of the king's proclamations by some "who did +not consider _what a king by his royal power might do_, which if it +continued would tend to the disobedience of the laws of God, and the +dishonour of the king's majesty, who might full ill bear it," etc. See +this act at length in the great edition of the statutes. There was one +singular provision; the clause protecting all persons, as mentioned, in +their inheritance or other property, proceeds, "nor shall by virtue of +the said act suffer any pains of death." But an exception 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 penalty of +death. + +[46] Gray has finely glanced at this bright point of Henry's character, +in that beautiful stanza where he has made the founders of Cambridge +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 employment of his art; but the partiality of +Burnet towards Henry VIII. is less warrantable; and he should have +blushed to excuse, by absurd and unworthy sophistry, the punishment of +those who refused to swear to the king's supremacy. 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, servile +enough to extol; not in the least more tyrannical and sanguinary, and of +better faith towards his neighbours. + +[47] 1 Edw. 6, c. 12. By this act it is provided that a lord of +parliament 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 aera. + +[48] 2 Strype, 147, 341, 491. + +[49] _Id._ 149. Dr. Lingard has remarked 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, etc., before the people were asked whether they +would consent to have him as their king. See the form observed at +Richard the Second's coronation in Rymer, vii. 158. But at Edward's +coronation, the archbishop presented the king to the people, as rightful +and undoubted inheritor by the laws of God and man to the royal dignity +and crown imperial of this realm, etc., 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, Appendix, p. +93. + +Few will pretend that the coronation, or the coronation oath, were +essential to the legal succession of the crown, or the exercise of its +prerogatives. But this alteration 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 popular origin. + +[50] Haynes's state papers contain many curious proofs of the incipient +amour between Lord Seymour and Elizabeth, and show much indecent +familiarity on one side, with a little childish coquetry on the other. +These documents also rather tend to confirm the story of our elder +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-dowager and the Duchess of Somerset aggravated at least those +of their husbands. P. 61, 69. It is alleged with absurd exaggeration, in +the articles against Lord Seymour, that, had the former proved +immediately with child after her marriage with him, it might have passed +for the king's. This marriage, however, did not take place before June, +Henry having died in January. Ellis's _Letters_, ii. 150. + +[51] Journals, Feb. 27, March 4, 1548-9. From these I am led to doubt +whether the commons actually heard witnesses against Seymour, which +Burnet and Strype have taken for granted. + +[52] Stat. 5 and 6 Edw. VI., c. 11, s. 12. + +[53] 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 +disquieted by traiterous rebellion and usurpation." + +It appears that the young king's original intention was to establish a +modified Salic law, excluding females 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 instance, except +Jane, excluding the female herself. Strype's _Cranmer_, Append. 164. A +late author, on consulting the original MS., in the king's handwriting, +found that it had been at first written, "the 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. + +[54] Burnet, Strype, iii. 50, 53; Carte, 290. I doubt whether we have +anything in our history more like conquest than the administration of +1553. The queen, in the month only of October, presented to 256 livings, +restoring all those turned out under the acts of uniformity. Yet the +deprivation of the bishops might be justified probably by the terms of +the commission they had taken out in Edward's reign, to hold their sees +during the king's pleasure, for which was afterwards substituted "during +good behaviour." Burnet, App. 257; Collier, 218. + +[55] 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 esteem quite as much as he does. If he had +attended to Burnet, he would have found a more sufficient voucher. + +[56] Carte, 330. + +[57] Haynes, 195; Burnet, ii. Appendix, 256, iii. 243. + +[58] Burnet, ii. 347. Collier, ii. 404, and Lingard, vii. 266 (who, by +the way, confounds this commission 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. + +[59] Strype, iii. 459. + +[60] See Stafford's proclamation from Scarborough Castle, Strype, iii. +Appendix, No. 71. It contains 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 printed, have afforded information to Dr. Lingard, and +with those of the imperial ambassador, Renard, 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 malcontents, and instigated the rebellion of Wyatt, +of which Dr. Lingard gives a very interesting account. Carte, indeed, +differs from him in many of these circumstances, though writing from the +same source, and particularly denies that Noailles gave any +encouragement to Wyatt. It is, however, evident from the tenor of his +despatches that he had gone great lengths in fomenting the discontent, +and was evidently desirous of the success of the insurrection (iii. 36, +43, etc.). 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 opposition of Gardiner; who, however, 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. + +[61] Burnet, i. 117. The king refused his assent to a bill which had +passed both houses, but apparently not of a political nature. _Lords' +Journals_, p. 162. + +[62] Burnet, 190. + +[63] _Id._ 195, 215. This was the parliament, in order to secure +favourable elections for which the council had written letters to the +sheriffs. These do not appear to have availed so much as they might +hope. + +[64] Carte, 311, 322; Noailles, v. 252. He says that she committed some +knights to the Tower for their language in the house. _Id._ 247. Burnet, +p. 324, mentions the same. + +[65] Burnet, 322; Carte, 296. Noailles says, that a third part of the +Commons in Mary's first parliament was hostile to the repeal of Edward's +laws about religion, and that the debates lasted a week. ii. 247. The +journals do not mention any division; though it is said in Strype, iii. +204, that one member, 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 repeatedly of the strength of the +protestant party, and of the enmity which the English nation, as he +expresses it, bore to the pope. But the aversion to the marriage with +Philip, and dread of falling under the yoke of Spain, was common to both +religions, with the exception of a few mere bigots to the church of +Rome. + +[66] Noailles, vol. 5, _passim_. + +[67] Strype, ii. 394. + +[68] Strype, iii. 155; Burnet, ii. 228. + +[69] Burnet, ii. 262, 277. + +[70] 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 counsellors, 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 degree, to secure both the protestant religion and the national +independence of our ancestors. + +[71] Henry VII. first established a band of fifty archers to wait on +him. Henry VIII. had fifty horse-guards, each with an archer, demilance +and couteiller, like the gendarmerie of France; but on account, +probably, of the expense it occasioned, their equipment being too +magnificent, this soon was given up. + +[72] _View of Middle Ages_, ch. 8. I must here acknowledge, that I did +not make the requisite distinction between the concilium secretum, or +privy council of state, and the concilium ordinarium, as Lord Hale calls +it, which alone exercised jurisdiction. + +[73] _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 appear before the president and council of the Welsh marches. +The partiality of Welsh jurors was notorious in that age; and the +reproach has not quite ceased. + +[74] _State Trials_, i. 901; Strype, ii. 120. In a letter to the Duke of +Norfolk (_Hardwicke Papers_, i. 46) at the time of the Yorkshire +rebellion in 1536, he is directed to question the jury who had acquitted +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. + +[75] _Hale's Jurisdiction of the Lords' House_, p. 5. Coke, 4th Inst. +65, where we have the following 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 majesty'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 matters of law, etc., and the two chief justices, or in their +absence other two justices, are standing judges of this court. 3. The +lords of parliament are properly de magno concilio 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 standing judges of the court." But +Hudson, 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-chamber; 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 calling of them in that case was not made legitimate by any +act of parliament; neither without their 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._ + +[76] The privy council sometimes met 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, recites a decree _by the king's council in +his star-chamber_, that no alien artificer shall keep more than two +alien servants, and other matters of the same kind. This could no way +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 +confirmation; so far was the government of Henry VIII. from arrogating a +legislative power in matters of private right. + +[77] Lord Hale thinks that the jurisdiction of the council was gradually +"brought into great disuse, though there remain some straggling +footsteps of their proceedings 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 contrary to Magna Charta and the known laws."--P. 39. He +seems to admit afterwards, however, that many instances of proceedings +before 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 council had intermitted in +a considerable degree, though not absolutely disused, their exercise of +jurisdiction for some time before the accession of the house of Tudor. + +Mr. Brodie, in his _History of the British Empire under Charles I._, i. +158, has treated at considerable length, and with much acuteness, this +subject of the antiquity of the star-chamber. I do not coincide 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 intellect which +none of those writers possessed. + +[78] _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 cardinal." 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." + +[79] 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. + +[80] _Hist. of Henry VII._ in Bacon's works, ii. p. 290. + +[81] The result of what has been said in the last pages may be summed 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 afterwards went into disuse. 3. The 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. + +[82] Burnet, ii. 324. + + + + +CHAPTER II + +ON THE ENGLISH CHURCH UNDER HENRY VIII., EDWARD VI., AND MARY + + +REFORMATION. _State of public opinion as to religion._--No revolution +has ever been more gradually prepared than that which separated almost +one-half of Europe from the communion of the Roman see; nor were Luther +and Zuingle any more than occasional instruments of that change which, +had they never existed, would at no great distance of time have been +effected under the names of some other reformers. At the beginning of +the sixteenth 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 Germany was +so far advanced on this course as England. 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 the +confluence of foreign streams, they swelled into the protestant church +of England. We hear indeed little of them during some part of the +fifteenth century; for they generally shunned persecution; and it is +chiefly through records of persecution 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 abjured their errors, +in the first years of Henry VIII.'s reign. Some of these (as usual among +ignorant 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 themselves with the +inordinate opulence and encroaching temper of the clergy. It had been +for two or three centuries the policy of our lawyers to restrain these +within some bounds. No ecclesiastical privilege had occasioned such +dispute, or proved so mischievous, as the immunity of all tonsured +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 conviction. +Henry VII. carried this much farther, by enacting that clerks convicted +of felony should be burned in the hand. And in 1513 (4 H. 8), the +benefit of clergy was entirely taken away from 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 benefit 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 exemption +from temporal jurisdiction. The temporal 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 citizen of London named Hun, having been confined +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, furnished each party with an +argument; for the clergy maintained that they should have no chance of +justice in a temporal court; one of the bishops declaring, that the +London juries were so prejudiced 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.[83] + +_Henry VIII.'s controversy with Luther._--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.[84] Kings who divest themselves of their robes +to mingle among polemical writers, have not perhaps a claim to much +deference from strangers; and Luther, intoxicated with arrogance, and +deeming himself a more prominent individual among the human species than +any monarch, treated Henry, in replying to his book, with the rudeness +that characterised 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 +impertinence, excited only contempt in Henry, and was published by him +with a severe commentary.[85] Whatever apprehension therefore for the +future might be grounded on the humour of the nation, no king in Europe +appeared so steadfast in his allegiance to Rome as Henry VIII. at the +moment when a storm sprang up that broke the chain for ever. + +_His divorce from Catherine._--It is certain that Henry's marriage with +his brother'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 originally considered by many persons in a very different light +from those unions which are merely prohibited 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.[86] It is true that in this very instrument we find no +mention of the impediment on the score of affinity; yet it is hard to +suggest any other objection, and possibly a common form had been adopted +in drawing up the protest. He did not cohabit with Catherine during 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 whether +they preceded his passion for Anne Boleyn.[87] This, however, seems the +more probable supposition; 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, according to the casuistry of the +catholic church and the principles of the canon law, the merits of that +famous process were so much against Henry, as out of dislike to him and +pity for his queen we are apt 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,[88] and those of the same import at +home, not given without a little intimidation, or the tedious +continuance of the process after its adjournment to Rome. More than five +years had elapsed from the first application to the pope, before Henry, +though by nature the most uncontrollable of mankind, though irritated by +perpetual chicanery and breach of promise, though stimulated by +impatient love, presumed 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 wife, and was finally divorced from Catherine by a sentence of +nullity, which would more decently, no doubt, have preceded his second +marriage.[89] But, determined as his mind had become, it was plainly +impossible for Clement to have conciliated him by anything 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 erroneous +allegations of fact contained therein might serve for an outward +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 treaty which was +afterwards partially renewed through the mediation of Francis I., during +his interview with the pope at Nice about the end of 1533, would have +led to a restoration of amity through the only possible means; when we +consider the weight of the imperial party in the conclave, 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 probably the aim of Clement to +delude Henry once more by his promises; but this was prevented by the +more violent measure into which the cardinals 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 23rd 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.[90] + +But long before this final cessation of intercourse with that court, +Henry had entered upon a course of measures which would have opposed +fresh obstacles 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 avocation +of the process to Rome, by which his duplicity and alienation from the +king's side was made evident, 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 separation of this kingdom from the supremacy of Rome. In +the progress of ecclesiastical usurpation, the papal and episcopal +powers had lent mutual 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 reprehended in the upper +house. This provoked the Commons to send a complaint to the king by +their speaker, demanding reparation; and Fisher explained away the words +that had given offence. An act passed to limit the fees on probates of +wills, a mode of ecclesiastical extortion much complained of, and upon +mortuaries.[91] 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 praemunire, 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 the +protector and supreme head of the church and clergy of England. Many of +that body were staggered at the unexpected introduction of a title that +seemed to strike at the supremacy they had always acknowledged in the +Roman see. And in the end it passed only with a very suspicious +qualification, "so far as is permitted by the law of Christ." Henry had +previously given the pope several intimations that he could proceed in +his divorce without 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 +universities 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 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 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 had rather +complied than concurred with the proceedings 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.[92] +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 rendered the king's second marriage, which had +preceded it, secure from being annulled by the papal court. Henry, +however, still advanced, very cautiously, and on the death of Warham, +Archbishop of Canterbury, not long before this time, applied 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 archbishops receive the pall, +without suing for the pope's bulls. All dispensations and licences +hitherto granted by that court were set aside by another statute, and +the power of issuing them in lawful cases transferred to the Archbishop +of Canterbury. 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 convocation. But this title was not formally declared by parliament +to appertain to the Crown till the ensuing session of parliament.[93] + +_Separation from the Church of Rome._--By these means was the church of +England altogether 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 attracted little peculiar attention at the time, and to +have dropped off as a dead branch, when the axe had lopped the fibres +that gave it nourishment. Like other momentous revolutions, this divided +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 inclinations, 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 unpopularity of the divorce.[94] Much +difficulty was found in procuring the judgments of Oxford and Cambridge +against the marriage; which was effected 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 Commons, 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 remained. + +The aversion entertained by a large part of the community, and +especially of the clerical order, towards the divorce, was not perhaps +so generally founded upon motives of justice and compassion, as on the +obvious tendency which its prosecution latterly manifested to bring +about a separation from Rome. Though the principal Lutherans of Germany +were far less favourably disposed to the king in their opinions on this +subject 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 annulled after +so many years' continuance;[95] yet in England the interests of Anne +Boleyn and of the Reformation were considered as the same. She 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 +divorce, and the recognition of the king's supremacy. The latter was, as +I imagine, by no means unacceptable to the nobility and gentry, who saw +in it the only effectual method of cutting off the papal exactions that +had so long impoverished the realm; nor yet to the citizens of London, +and other large towns, who, with the same dislike of the Roman court, +had begun to acquire some taste for the protestant doctrine. But the +common people, especially in remote counties, had been used to an +implicit reverence for the holy see, and had suffered 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 certainly 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.[96] 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.[97] 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 confessing, enjoyed a very considerable influence over the +poorer class. But they had to deal with a sovereign, whose policy as +well as temper dictated 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. + +_Dissolution of monasteries._--The enormous, and in a great measure +ill-gotten, opulence of the regular clergy had long since excited +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 licences of alienation, a larger proportion of +landed wealth was constantly accumulating, in hands which lost nothing +that they had grasped.[98] A writer much inclined to partiality 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.[99] 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 magnates of the realm. In other +foundations, the revenues did little more than afford a subsistence for +the monks, and defray the needful expenses. As they were in general +exempted 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 corporate bodies of men +leading almost of necessity useless and indolent lives, and in whom very +indistinct views of moral obligations were combined 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 +precincts in that of Henry VIII. Wolsey, as papal legate, at the +instigation of Fox, Bishop of Hereford, a favourer of the Reformation, +commenced a visitation of the professed as well as secular clergy in +1523, in consequence of the general complaint against their +manners.[100] 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 character, he obtained +bulls from Rome suppressing many convents (among which was that of St. +Frideswide at Oxford), in order to erect and endow a new college in that +university, his favourite work, which after his fall was more completely +established by the name of Christ Church.[101] A few more were +afterwards extinguished through his instigation; and thus the prejudice +against interference with this species of property was somewhat worn +off, and men's minds gradually prepared for the sweeping confiscations +of Cromwell. The king indeed was abundantly willing to replenish 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 subject's money and by a secret +partiality towards the Reformation, devised and carried on with complete +success, if not with the utmost prudence, a measure of no inconsiderable +hazard and difficulty. For such it surely was, under a system of +government 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 corruptions of monasteries, both to intimidate the regular 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 ecclesiastical supremacy, +many things were done in an arbitrary manner, and much was unfairly +represented.[102] Yet the reports of these visitors are so minute and +specific that it is rather a preposterous degree of incredulity to +reject their testimony, whenever it bears hard on the regulars. It is +always to be remembered that the vices to which 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 visitation were impeached for general falsehood +in that age, whatever exaggeration there might be in particular cases. +And surely the commendation 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.[103] + +The dread of these visitors soon induced a number 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 L200 a +year, were suppressed by act of parliament, to the number of three +hundred and seventy-six, and their estates vested in the crown. This +summary spoliation led to the great northern rebellion soon afterwards. +It was, in fact, not merely to wound the people's strongest impressions +of religion, and especially those connected with their departed friends, +for whose souls prayers were offered in the monasteries, but to deprive +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 immorality and neglect of discipline than was found for +abolishing the smaller convents.[104] 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 pensions not inadequate, and which are said +to have been pretty faithfully paid.[105] These however were voluntary +gifts on the part of the Crown. For the parliament which dissolved the +monastic foundations, while it took abundant care to preserve 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 proportions 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 parliaments, they always, joined to the +twenty-one bishops, preponderated over the temporal peers.[106] 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, remained; but, one +branch as ancient and venerable as their own thus lopped off, the +spiritual aristocracy was reduced to play a very secondary part in the +councils of the nation. Nor could the protestant religion have easily +been established by legal methods under Edward and Elizabeth without +this previous destruction of the monasteries. Those who, professing an +attachment to that religion, 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 reasoners. 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, +begets a sympathy for those who founded and inhabited them. In many, the +violent courses of confiscation 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, or at least as an +atrocious violation of the rights of property. Others again, who +acknowledge that the monastic discipline cannot be reconciled with the +modern system of religion, or with public utility, lament only that +these ample endowments were not bestowed upon ecclesiastical +corporations, freed from the monkish cowl, but still belonging 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 subject, 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 +conducted 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 beneficial 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 +inviolability to private and corporate property. The law of hereditary +succession, as ancient and universal as that of property itself, the law +of testamentary disposition, the complement of the former, so long +established in most countries as to seem a natural right, have invested +the individual possessor of the soil with such a fictitious immortality, +such anticipated enjoyment, as it were, of futurity, that his perpetual +ownership could not be limited to the term of his own existence, without +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 +defeat. Yet even this hereditary claim is set aside by the laws of +forfeiture, which have almost everywhere 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 property 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 gradually 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 indignation at the spirit in +which these proceedings were conducted. Besides the hardship sustained +by so many persons turned loose upon society for whose occupations they +were unfit, the indiscriminate destruction of convents produced several +public mischiefs. The visitors themselves strongly interceded for the +nunnery of Godstow, as irreproachable 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 preaching 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.[107] +And the total want of inns in many parts of the kingdom must have +rendered the loss of these hospitable places of reception a serious +grievance. These and probably other reasons ought to have checked the +destroying 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 attaining the beneficial effects which monastic institutions +had not failed to produce, and in preparing the people's minds for so +important an innovation. + +The suppression of monasteries poured in an instant 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 L131,607; but was 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.[108] The +movables of the smaller monasteries alone were reckoned at L100,000; +and, as the rents of these were less than a fourth of the whole, we may +calculate the aggregate value of movable 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 policy, it is to be considered, to what uses +these immense 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, having +annexed to their grants an implied condition of the continuance of +certain devotional services, and especially of prayers for the repose of +their souls, it were but equitable that, if the legislature rendered the +performance of this condition impossible, their heirs should re-enter +upon the lands that would not have been alienated from them on any 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 ecclesiastical persons, who were +frequently compelled by the Tudor princes to take them in exchange for +lands.[109] 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 L18,000 a year for eighteen new 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 independent of parliamentary aid. It may +perhaps be reckoned a providential circumstance that his thoughtless +humour should have rejected the obvious means of establishing an +uncontrollable despotism, by rendering unnecessary the only exertion of +power which his subjects were likely to withstand. Henry VII. would +probably have followed a very different course. Large sums, however, are +said to have been expended in the repair of highways, and in fortifying +ports in the Channel.[110] But the greater part was dissipated in +profuse grants to the courtiers, who frequently contrived to veil their +acquisitions under cover of a purchase from the crown. It has been +surmised that Cromwell, in his desire to promote the Reformation, +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.[111] In Mary's reign accordingly +her parliament, so obsequious in all matters of religion, adhered with a +firm grasp to the possession of church lands; nor could the papal +supremacy be re-established until a sanction was given to their +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 hypocritical 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 support, 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 indeed, 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 other ecclesiastical foundations. And +better it has been that these revenues should thus from age to age have +been expended in liberal hospitality, in 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 populace by superstitious pageantry, or +in the encouragement of idleness and mendicity.[112] + +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 the dissolution of those beneficent foundations. There can +be no doubt that many of the impotent poor derived support from their +charity. But the blind eleemosynary spirit inculcated by the Romish +church is notoriously the cause, not the cure, of beggary and +wretchedness. The monastic foundations, 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 tendency +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 extremities 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 43rd of Elizabeth, were almost insensibly converted into +compulsory assessments.[113] It is by no means probable that, however +some in particular districts may have had to lament the cessation of +hospitality in the convents, the poor in general were 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 century after that transference of +property, for their charity and munificence. + +These two great political measures, the separation 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 essential +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 incorporated with the public faith, Henry seemed to +prepare the road for the still more radical changes of the reformers. +These, a numerous and increasing sect, exulted by turns in the +innovations he promulgated, lamented their dilatoriness and +imperfection, or trembled at the reaction of his bigotry against +themselves. Trained in the school of theological controversy, and +drawing from those bitter waters fresh aliment for his sanguinary and +imperious 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 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 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 capricious 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 respects 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 +attentive to these questions, were acute enough to interpret.[114] + +_Progress of the reformed doctrine in England._--It was natural to +suspect, from the previous temper of the nation, that the revolutionary +spirit which blazed out in Germany should spread rapidly over England. +The enemies of ancient superstition at home, by frequent communication +with the Lutheran and Swiss reformers, acquired not only more enlivening +confidence, but a surer and more definite system of belief. Books +printed in Germany or in the Flemish provinces, where at first the +administration connived at the new religion, were imported and read with +that eagerness and delight which always compensate the risk of forbidden +studies.[115] Wolsey, who had no turn towards persecution, contented +himself with ordering heretical writings to be burned, and strictly +prohibiting their importation. But to withstand 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 reformers, in +the subsequent part of his 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 radical excision of +the diseased part; but falling 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 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 Bible, 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.[116] This measure had a +strong tendency to promote the Reformation, especially among those who +were capable of reading; not surely that the controverted doctrines of +the Romish church are so indisputably erroneous as to bear no sort of +examination, 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 discussion 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 theological 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. Plays and interludes were +represented in churches, of which the usual subject was the vices and +corruptions of the monks and clergy. These were disapproved of by the +graver sort, but no doubt served a useful purpose.[117] The press sent +forth its light hosts of libels; and though the catholic party did not +fail to try the same means of influence, they had both less liberty to +write as they pleased, and fewer readers than their antagonists. + +_Its establishment under Edward._--In this feverish state of the public +mind on the 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 capricious reign, the popish party, headed by Norfolk and +Gardiner, had gained an ascendant and several persons had been burned +for denying transubstantiation. But at the moment of his decease, +Norfolk was a prisoner attainted of treason, Gardiner in disgrace, and +the favour of Cranmer at its height. It is said that Henry had meditated +some further changes in religion. Of his executors, the greater part, as +their subsequent conduct evinces, were nearly indifferent to the two +systems, except so far as more might be gained by innovation. 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 Edward, 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.[118] 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 the chief points of difference between the two +religions._--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 congregation. 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 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, elevation, and simplicity, is in great measure +a translation from the catholic services; those portions 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 essentially different +from that in present use.[119] + +2. No part of exterior religion was more prominent, or more offensive to +those who had imbibed a protestant spirit, than the worship, or at least +veneration, of images, which in remote and barbarous 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, began 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.[120] But this order was executed +with a rigour which lovers of art and antiquity have long deplored. Our +churches bear witness to the devastation committed in the wantonness of +triumphant reform, by defacing statues and crosses on the exterior of +buildings intended for worship, or windows 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 ordinances, all that is palpable to common minds, +underwent 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 councils +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 prejudices of the people, or to the +immemorial antiquity of the practice. But such prayers, if not +necessarily implying the doctrine of purgatory (which yet in the main +they appear to do), are at 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;[121] 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 articles, 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 augment 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 determine +absolutely how far these benefits, which cannot 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 nothing else so likely) which keeps the +balance, as it were, of moral influence pretty even between the two +religions, and compensates for the ignorance 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 become 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 hesitation as to the expediency of discontinuing the +usage.[122] + +5. It has very rarely been the custom of theologians to measure the +importance of orthodox opinions 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 sixteenth century, that respecting the Lord's supper. No errors on +this point could have had any influence on men's moral conduct, nor +indeed much on the general nature of their faith; yet it was selected 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 +persecution, not to practise it in a somewhat less degree upon each +other, or by exposing the absurdities of transubstantiation, not to +contend for equal nonsense of their own. Four principal theories, 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 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 denominated substance, and which +alone was the subject of this conversion. But metaphysicians of later +ages might enquire whether material substances, abstractedly considered, +exist at all, or, if they exist, whether they can have any specific +distinction except 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 doctrine implied, was inconceivable, and even contradictory. +Luther, partly, as it seems, out of his determination to multiply +differences with the church, invented a theory somewhat different, +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 substances to be united in the sacramental elements, so that +they might be termed bread and wine, or the body and blood, with equal +propriety.[123] But it must be obvious that there is merely a scholastic +distinction between this doctrine and that of Rome; though, when it +suited the Lutherans to magnify, rather than dissemble, their deviations +from the mother church, it was raised into an important difference. A +simpler and more rational explication occurred to Zuingle and +Oecolampadius, from whom the Helvetian Protestants imbibed their faith. +Rejecting every notion of a real presence, and divesting the institution +of all its mystery, they saw only figurative symbols in the elements +which Christ had appointed as a commemoration 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 narrow +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 Strasburgh, a +man of much acuteness, but prone to metaphysical subtlety, and not, it +is said, of a very ingenuous character. His theory upon the sacrament 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 system (if indeed it is to be considered as a +genuine opinion, and not rather a politic device),[124] had no 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 +institution, wherein the former triumphed, as the Zuinglian +interpretation itself. It is not easy to state in language tolerably +perspicuous this obsolete metaphysical theology. But Bucer, as I +apprehend, 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 presence. It +can hardly fail to strike every unprejudiced 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 Edward, +and had a considerable share in advising the measures of reformation. +But Peter Martyr, a disciple of the Swiss school, had also no small +influence. In the forty-two articles set forth by authority, the real or +corporeal presence, using these words as synonymous, is explicitly +denied. This clause was omitted on the revision of the articles under +Elizabeth.[125] + +6. These various innovations were exceedingly inimical to the influence +and interests of the priesthood. But that order obtained a sort of +compensation 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 ordination of married persons, yet +they do not allow those already ordained to take wives. No very good +reason, however, could be given for this distinction; and the +constrained celibacy of the Latin clergy had given rise to mischiefs, of +which their general practice of retaining concubines might be reckoned +among the smallest.[126] The 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 its preamble cast such an imputation on the +practice it allowed, treating the marriage of priests as ignominious 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.[127] A great number of the clergy +availed themselves of their liberty; which may probably have had as +extensive 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 part of the nation._--But great as was the number of +those whom conviction or self-interest enlisted under the protestant +banner, it appears plain that the Reformation moved on with too +precipitate a step for the majority. The new doctrines prevailed in +London, in many large towns, and in the eastern counties. But in the +north and west of England, the body of the people were strictly +Catholics. The clergy, though not very scrupulous about conforming to +the innovations, were generally averse to most of them.[128] And, in +spite of the church lands, I imagine 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-establishment 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, +confesses that all endeavours were too weak to overcome the aversion of +the people towards reformation, and even intimates that German troops +were sent for from Calais on account of the bigotry with which the bulk +of the nation adhered to the old superstition.[129] This is somewhat a +humiliating admission, that the protestant faith was imposed upon our +ancestors by a foreign army. And as the reformers, though still the +fewer, were undeniably 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 profanation? 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 mystery. It +was found necessary in the very first act of the first protestant +parliament, to denounce penalties against such as spoke irreverently of +the sacrament, an indecency not unusual with those who held the +Zuinglian opinion in that age of coarse pleasantry and unmixed +invective.[130] Nor could the people repose much confidence in the +judgment and sincerity of their governors, whom they had seen submitting +without outward repugnance to Henry's various schemes of religion, and +whom they saw every day enriching themselves with the plunder of the +church they affected to reform. 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.[131] But this was entirely neglected, and the estates fell +into the hands of the courtiers. Nor did they content themselves with +this escheated 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 considerably. The Duke +of Somerset was much beloved; yet he had given no unjust offence by +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.[132] + +Tolerance in religion, it is well known, so unanimously 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 his reading becomes +more extensive. The Lutheran princes and cities in Germany constantly +refused to tolerate the use of the mass as an idolatrous service;[133] +and this name of idolatry, though 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.[134] 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 indulgence, 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.[135] Yet in +one memorable instance he had shown a milder spirit, struggling against +Cranmer to save a fanatical woman from the punishment of heresy. This is +a stain upon Cranmer's memory which nothing but his own death could have +lightened. In men hardly escaped from a similar peril, in men who had +nothing to plead but the right of private judgment, in men who had +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 extenuation, 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 Genevan lawgiver, yet I +regret to say that there is a peculiar circumstance of aggravation in +his pursuing 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 +preceding reign to the condemnation of Lambert, and perhaps some others, +for opinions concerning the Lord's supper which he had himself +afterwards embraced.[136] Such an evidence of the fallibility of human +judgment, such an example that persecutions for heresy, how +conscientiously soever managed, 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 adversaries under the pretext of religion; +yet are they wholly unjustifiable, particularly in the former instance; +and if the subsequent retaliation of those bad men was beyond all +proportion excessive, we should remember that such is the natural +consequence of tyrannical aggressions.[137] + +_Cranmer._--The person most conspicuous, though Ridley was perhaps the +most learned divine, in moulding the faith and discipline of the English +church, which has not been very materially altered since his time, was +Archbishop Cranmer.[138] Few men, about whose conduct there is so little +room for 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 abandoned 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 somewhat 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 turpitude 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 +consideration is rather weakened when we recollect that he consented to +place himself in a station where those circumstances occurred. At the +time of Cranmer's elevation to the see of Canterbury, Henry, though on +the point of separating for ever 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 consecration, that "he did not intend to restrain +himself thereby from anything 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."[139] 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 reduced 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 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, overpowered 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.[140] + +_Cranmer's moderation in introducing changes not acceptable to the +zealots._--Those who, with the habits of thinking that prevail in our +times, cast back their eyes on the reign of Edward VI. will generally be +disposed 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 everything to place the Anglican church in that middle position +which it has always preserved, between the Roman hierarchy and that of +other protestant denominations. It is manifest from the history of the +Reformation in Germany, that its predisposing cause was the covetous and +arrogant character of the superior ecclesiastics, founded upon vast +temporal authority; a yoke long borne with impatience, and which the +unanimous 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 rendered the superior +clergy in England less obnoxious than in Germany, there was this +important difference 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 succession 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 sees during pleasure.[141] +But when the necessity of compliance had passed by, they showed a +disposition not only to oppose the continual spoliations of church +property, but to maintain the jurisdiction which the canon law had +conferred upon them.[142] 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.[143] + +The policy, or it may be the prejudices, of Cranmer induced him also to +retain in the church a few ceremonial usages, which the Helvetic, though +not the Lutheran, reformers had swept away; such as the copes and +rochets of bishops, 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 +characteristic of religious factions. The foreign reformers then in +England, two of whom, Bucer and Peter Martyr, enjoyed a deserved +reputation, expressed their dissatisfaction at seeing these habits +retained, and complained, in general, of the backwardness of the English +reformation. Calvin and Bullinger wrote from Switzerland in the same +strain.[144] Nor was this sentiment by any means confined to strangers. +Hooper, an eminent divine, having been elected Bishop of Gloucester, +refused 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 adjusted.[145] 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. + +_Persecution under Mary._--It is certain that the re-establishment of +popery on Mary's accession must have been acceptable to a large part, or +perhaps to the majority, of the 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.[146] 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 excessive unpopularity, even +before her marriage with Philip had been resolved upon.[147] As for the +higher classes, they partook far less than their inferiors in the +religious zeal of that age. Henry, Edward, Mary, Elizabeth, found almost +an equal compliance with their varying schemes of faith. Yet the larger +proportion of the nobility and gentry 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 imprisonment on account of religion, the protestant +martyrology contains no confessor of superior rank.[148] The same +accommodating spirit characterised, upon the whole, the clergy; and +would have been far more general, if a considerable number 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.[149] Yet it was not the temper of Mary's parliaments, whatever +pains had been taken about their election, to second her bigotry in +surrendering the temporal fruits of their recent schism. The bill for +restoring first fruits and impropriations 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 Supremacy 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 possessors.[150] 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 Spaniards who accompanied him, +the unfortunate loss of Calais through that alliance, while it +thoroughly alienated the kingdom from Mary, created a prejudice against +the religion which the Spanish court so steadily favoured.[151] So +violent indeed was the hatred conceived by the English nation against +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 national +manners, so remote from our own, are not unfrequently the object of +ridicule. The prejudices of the populace, as much as the policy of our +counsellors, were far more directed against Spain. + +_Its effect rather favourable to protestantism._--But what had the +greatest efficacy in disgusting the English with Mary's system of faith, +was the cruelty by which it was accompanied. Though the privy council +were in fact continually urging the bishops forward in this +prosecution,[152] the latter bore the chief blame, and the abhorrence +entertained for them naturally extended to the doctrine they professed. +A sort of instinctive reasoning 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 evidences. And as the English were +constitutionally humane, and not hardened by continually witnessing the +infliction of barbarous punishments, there arose a sympathy for men +suffering torments with such meekness and patience, which the populace +of some other nations were perhaps less apt to display, especially in +executions on the score of heresy.[153] The theologian indeed and the +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 supersede 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 protestants under Mary, who, at her coming to the +throne, had retained the contrary persuasion.[154] 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 +concerns, during her long reign, will form the subject of the two +ensuing chapters. + +FOOTNOTES: + +[83] Burnet. Reeves's _History of the Law_, iv. p. 308. The contemporary +authority is Keilwey's Reports. Collier disbelieves the murder 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 ecclesiastic, +particularly complains of Standish as the author of periculosissimae +seditiones inter clericam et secularem potestatem. + +[84] Burnet is confident that the answer to Luther was not written by +Henry (vol. iii. 171), and others have been of the same opinion. The +king, however, in 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 disputation, 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 language. +Burnet mentions in another place, that he had seen a copy of the +_Necessary Erudition of a Christian Man_, full of interlineations by the +king. + +[85] Epist. Lutheri ad Henricum regem missa, etc. Lond. 1526. The letter +bears date at Wittenberg, September 1, 1525. It had no relation, +therefore, to Henry's quarrel with the Pope, though probably Luther +imagined that the king was becoming more favourably disposed. After +saying that he had written against the king "stultus ac praeceps," which +was true, he adds, "invitantibus iis qui majestati tuae parum favebant," +which was surely a pretence; since who, at Wittenberg, in 1521, could +have any motive to wish that Henry should be so scurrilously treated? He +then bursts out into the most absurd attack on Wolsey; "illud monstrum +et publicum odium Dei et hominum, Cardinalis Eboracensis, pestis illa +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, relapsing into his tone of abasement, he says, +"ita ut vehementer nunc pudefactus, metuam oculos coram majestate tua +levare, qui passus sim levitate ista me moveri in talem tantumque regem +per malignos istos operarios; praesertim cum sim foex et vermis, quem +solo contemptu oportuit victum aut neglectum esse," etc. Among the many +strange things which Luther said and wrote, I know not one more +extravagant than this letter, which almost justifies the supposition +that there was a vein of insanity in his very remarkable character. + +[86] Collier, vol. ii. Appendix, No. 2. In the _Hardwicke Papers_, i. +13, we have an account of the ceremonial 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 unlawful, 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 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 +in this of the tortuous policy of Henry VII.; but it shows that the +marriage had given offence to scrupulous minds. + +[87] See Burnet, Lingard, Turner, and the letters lately printed in +State Papers, temp. Henry VIII. pp. 194, 196. + +[88] Burnet wishes to disprove the bribery of these foreign doctors. But +there are strong presumptions that some opinions were got by money +(Collier, ii. 58); and the greatest difficulty was found, where +corruption perhaps had least influence, 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 university of +Oxford in case of non-compliance; 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. + +[89] The king's marriage is related by the earlier historians to have +taken place November 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 +solemnised till about the 25th of January (vol. iii. p. 70). This letter +has since been published in the _Archaeologia_, 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 September 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 beyond the limits of that character of an advocate +for one party which he has chosen to assume. It may not be unlikely, +though by no means evident, that Anne's prudence, 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 +scandal 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 Henry's patience with the pope's chicanery +to "the infecundity of 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. + +[90] The principal authority on the story of Henry's divorce from +Catherine is Burnet, in the first and third volumes of his _History of +the Reformation_; the latter correcting the former from additional +documents. Strype, in his _Ecclesiastical Memorials_, adds some +particulars not contained in Burnet, especially as to the negotiations +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 behaviour before the +legates at Dunstable is told by Cavendish and Hall, from whom later +historians have copied it. Burnet, however, 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, mentioning 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 considerable, if +they cannot be reconciled, 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 misstate. + +This is not altogether immaterial; for Catherine's appeal to Henry, de +integritate corporis usque ad secundas nuptias servata, without reply on +his part, is an important circumstance as to that part of the question. +It is however certain, that, whether on this occasion or not, she did +constantly declare this; and the evidence adduced to prove the contrary +is very defective, especially as opposed to the assertion of so virtuous +a woman. Dr. Lingard says that all the favourable answers which the king +obtained from foreign universities 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 Papers, temp. Henry VIII. p. 194; whence it appears +that the queen had been consistent in her denial. + +[91] 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 interfered, as legate, +with the prerogative court. + +[92] It is hard to say what were More's original sentiments about the +divorce. In a letter to Cromwell (Strype, i. 183, and App. No. 48; +Burnet, App. p. 280) he speaks of himself as always doubtful. 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 several 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 ministerially. +But there can be no doubt that he always considered the divorce 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 +commissioners, of whom the king should name one, either Sir Thomas More +or Stokesly, Bishop of London. Burnet, i. 126. + +[93] 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 assent on the +30th; whereas the determination of the conclave at Rome against the +divorce was on the 23rd; 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. + +[94] Burnet, iii. 44; and App. 24. + +[95] Conf. Burnet, i. 94, and App. No. 35; Strype, i. 230; Sleidan, +_Hist. de la Reformation_ (par Courayer), l. 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 +improbable by the well-authenticated fact that these divines, together +with Bucer, signed a permission to the landgrave of Hesse to take a wife +or concubine, on account of the drunkenness and disagreeable person of +his landgravine. 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 +divorce, which it would be easier for him to obtain in such +circumstances. This was as early as January, 1528 (Burnet, i., App. p. +27). But at a much later period, September 1530, he expressly suggested +the expedient of allowing the king to retain two wives. Though the +letter of Cassali, the king's ambassador at Rome, containing this +proposition, was not found by Burnet, it is quoted at length by an +author of unquestionable veracity, Lord Herbert. Henry had himself, at +one time, favoured this scheme, according to Burnet, who does not, +however, produce any authority for the instructions to that effect said +to have been given to Brian and Vannes, despatched to Rome at the end of +1528. But at the time when the pope made this proposal, the king had +become exasperated against Catherine, and little inclined to treat +either her or the holy see with any respect. + +[96] Strype, i. 151 _et alibi_. + +[97] Strype, _passim_. Tunstal, Gardiner, and Bonner wrote in favour of +the royal supremacy; all of them, no doubt, insincerely. The first of +these has escaped severe censure by the mildness of his general +character, but was full as much 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 premises. Collier, though with +many prejudices of his own, is, all things considered, the fairest of +our ecclesiastical writers as to this reign. + +[98] Burnet, 188. For the methods by which the regulars acquired 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. + +[99] Harmer's _Specimens of Errors in Burnet_. + +[100] Strype, i. Append. 19. + +[101] Burnet; Strype. Wolsey alleged as the ground for this suppression, +the great wickedness that prevailed therein. Strype says the number is +twenty; but Collier, ii. 19, reckons them at forty. + +[102] Collier, though not implicitly to be trusted, tells some hard +truths, and charges Cromwell with receiving bribes from several abbeys, +in order to spare them. P. 159. This is repeated by Lingard, on the +authority of some Cottonian manuscripts. Even Burnet speaks of the +violent proceedings of a Doctor Loudon towards the monasteries. This man +was of infamous character, and became afterwards a conspirator against +Cranmer, and a persecutor of protestants. + +[103] Burnet, 190; Strype, i. ch. 35, see especially p. 257; Ellis's +_Letters_, ii. 71. We should be on our guard against the Romanising +high-church men, such as Collier, and the whole class of antiquaries, +Wood, Hearne, Drake, Browne, Willis, etc., etc., who are, with hardly an +exception, partial to the monastic orders, and sometimes scarce keep on +the mask of protestantism. No one fact can be better supported by +current opinion, and that general testimony which carries conviction, +than the relaxed and vicious state of those foundations for many ages +before their fall. Ecclesiastical writers had not then learned, as they +have since, the trick of suppressing what might excite odium against +their church, but speak out boldly and bitterly. Thus we find in +Wilkins, iii. 630, a bull of Innocent VIII. for the reform of +monasteries 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. Alban'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_. + +[104] The preamble of 27 H. 8, c. 28, which gives the smaller +monasteries to the king, after reciting that "manifest sin, vicious, +carnal, and abominable living, is daily used and committed commonly in +such little and small abbeys, priories, and other religious houses of +monks, canons, and nuns, where the congregation of such religious +persons is under the number 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. + +[105] _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, appear to have varied from L266 to L6 per +annum. The priors of cells received generally L13. A few, whose services +had merited the distinction, obtained L20. To the other monks were +allotted pensions of six, four, or two pounds, with a small sum to each +at his departure, to provide for his immediate wants. The pensions to +nuns averaged about L4. Lingard, vi. 341. He admits that these were ten +times their present value in money; and surely they were not +unreasonably small. Compare them with those, generally and justly +thought munificent, which this country bestows on her veterans of +Chelsea and Greenwich. The monks had no right to expect more than the +means of that hard fare to which they ought by their rules to have been +confined 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. + +[106] 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 summons not +being supposed to give them personal seats. There are indeed so many +parallel instances among spiritual lords, and the principle 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 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 seat as a lord +of parliament; in consequence of which his resignation was not accepted. + +[107] Burnet, i. Append. 96. + +[108] P. 268. Dr. Lingard, on the authority of Nasmith's edition of +Tanner's _Notitia Monastica_, puts the annual revenue of all the +monastic houses at L142,914. 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 certainly 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 revenues above +L1000 per annum. St. Peter's, Westminster, was the richest, and valued +at L3977, Glastonbury at L3508, St. Alban's at L2510, etc. + +[109] An act entitling the queen to take into her hands, on the +avoidance of any bishopric, so much of the lands belonging to it as +should be equal in value to the impropriate rectories, etc., within the +same, belonging to the crown, and to give the latter in exchange, was +made (1 Eliz. c. 19). This bill passed on a division in the Commons by +104 to 90, and was ill taken by some of the bishops, who saw themselves +reduced to live on the lawful subsistence of the parochial clergy. +Strype's _Annals_, i. 68, 97. + +[110] Burnet, 268, 339. In Strype, i. 211, we have a paper drawn up by +Cromwell for the king's inspection, 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 more +attentively, of cunning corruption. + +[111] Burnet, i. 223. + +[112] It is a favourite theory with many who regret the absolute +secularisation 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, besides 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 pres_, adopted by the +court of chancery in cases of charitable bequests; according 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 +anticipation 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 waive this, and to revert to +the principle of public utility, it may possibly be true that, in one +instance, 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 monastic estates +could have been kept in mortmain with advantage. We may easily argue +that the Derwentwater 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 inundation of prebendaries and schoolmasters? + +[113] 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 collection was +to be made in every parish. The compulsory contributions, properly +speaking, began in 1572 (14 Eliz. c. 5). But by an earlier statute (1 +Edward 6, c. 3), the bishop was empowered to proceed in his court +against such as should refuse to contribute, or dissuade others from +doing so. + +[114] The _Institution_ was printed in 1537; the _Erudition_, according +to Burnet, in 1540; but in Collier and Strype's opinion, not till 1543. +They are both artfully drawn, probably in the main by Cranmer, but 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. + +[115] Strype, i. 165. A statute enacted 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 religion; but, like many other bad laws, +produced very little effect. + +[116] 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 defective. A letter of Strype in +Harleian MSS. 3782, which has been printed, is better; but the most +complete enumeration is in Cotton'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 former +injunctions for the same purpose, directs a large Bible to be set up in +every parish church. But, next year, the Duke of Norfolk and Gardiner +prevailing over Cranmer, Henry retraced a part of his steps; and the act +34 H. 8, c. 1. forbids the sale of Tindal's "false translation," and the +reading of the Bible in churches, or by yeomen, women, and other +incapable persons. 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. Gardiner 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 expediency), ought, in his opinion, to be left in Latin. +Tindal's translation may, I apprehend, be reckoned the basis of that now +in use, but has undergone several corrections before the last. It has +been a matter of dispute whether it were made from the original +languages or from the Vulgate. Hebrew and even Greek were very little +known in England at that time. + +The edition of 1537, called Matthews'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, commonly called +Cranmer's Bible, as having been revised by him, and in later editions. +In all these editions of Henry's reign, though the version is properly +Tindal's, there are, as I am informed, considerable 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 +government of a Christian society. + +[117] 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 entirely, than to suffer one reflection on the +clergy. These dramatic satires on that order had also an effect in +promoting the Reformation in Holland. Brandt's _History of Reformation +in Low Countries_, vol. i. p. 128. + +[118] I can hardly avoid doubting, whether Edward VI.'s journal, +published in the second volume of Burnet, be altogether his own; because +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 +intercourse with able men on serious subjects may force a royal plant of +such natural vigour; and his letters to his young friend Barnaby +Fitzpatrick, published by H. Walpole 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. Unfortunately, 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 religion, and had, I suspect, +too much Tudor blood in his veins. It is certain that he was a very +extraordinary 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. + +[119] The litany had been translated into English in 1542. Burnet, i. +331; Collier, III, where it may be read, not much differing from that +now in use. It was always held out by our church, when the object was +conciliation, that the liturgy was essentially the same with the +mass-book. Strype's _Annals_, ii. 39; Hollingshed, iii, 921 (4to +edition). + +[120] 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. + +[121] 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 Scripture, which the +reformers set up exclusively of all tradition, it contradicted the +doctrine of justification 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. + +[122] Collier, p. 248, descants, in the true spirit of a high churchman, +on the importance of confession. This also, as is well known, is one of +the points on which his party disagreed with the generality of +protestants. + +[123] Nostra sententia est, says Luther, _apud_ Burnet, 111, Appendix, +194, corpus ita cum pane, seu in pane esse, ut revera cum pane +manducetur, et quemcunque motum vel actionem panis habet, eundem et +corpus Christi. + +[124] "Bucer thought, that for avoiding contention, and for maintaining +peace and quietness in the church, somewhat more ambiguous words should +be used, that might have a respect to both persuasions concerning the +presence. But Martyr was of another judgment, 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 possible +that there should be more; for what can be predicated concerning a body, +in its relation to a given space, but presence and absence? + +[125] Burnet, ii. 105, App. 216; Strype, ii. 121, 208; Collier, etc. The +Calvinists certainly did not own a local presence in the elements. It is +the artifice of modern Romish writers, Dr. Milner, Mr. C. Butler, etc., +to disguise the incompatibility 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, incomprehensible presence of +Christ's body in the consecrated elements; which was never meant to be +asserted in any authorised exposition of faith; though in the +seventeenth century it was held by many distinguished churchmen. See the +27th, 28th, and 29th articles of religion. An eminent living writer, who +would be as useful as he is agreeable, if he could bring himself to +write with less heat and haste, says, that at Elizabeth's accession, +among other changes, "the language of the article which affirmed a real +presence was so framed as to allow latitude of belief for those who were +persuaded of an exclusive one." Southey's _Book of the Church_, vol. ii. +p. 247. The real presence was not affirmed, but denied, in the original +draft; and as to what Mr. S. calls "an exclusive one" (that is, +transubstantiation, if the words have any meaning), it is positively +rejected in the amended article. + +[126] It appears to have been common 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 consisted; for it seems unlikely that +marriages of priests were ever solemnised at so late a period; or if +they were, they were invalid. + +[127] Stat. 2 and 3 Edw. VI. c. 21; 5 and 6 Edw. VI. c. 12; Burnet, 89. + +[128] 2 Strype, 53. Latimer pressed the necessity of expelling these +temporising conformists.--"Out with them all! I require it in God's +behalf: make them _quondams_, all the pack of them." _Id._ 204; 2 +Burnet, 143. + +[129] Burnet, iii. 190, 196. "The use of the old religion," says Paget, +in remonstrating with Somerset on his rough treatment of some of the +gentry, and partiality to the commons, "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, whatever countenance men make outwardly to +please them in whom they see the power resteth." Strype, ii. Appendix, +H.H. This seems rather to refer to the upper classes, than to the whole +people. But at any rate it was an exaggeration of the fact, the +protestants being certainly in a much greater proportion. Paget was the +adviser of the scheme of sending for German troops in 1549, which, +however, was in order to quell a seditious spirit in the nation, not by +any means wholly founded upon religious grounds. Strype, xi. 169. + +[130] 2 Edward 6, c. 1; Strype, xi. 81. + +[131] 37 H. 8, c. 2; 1 Edw. 6, c. 14; Strype, ii. 63; Burnet, etc. +Cranmer, as well as the catholic bishops, protested against this act, +well knowing how little regard 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 endowed, as is well known, several excellent +foundations. + +[132] Strype, Burnet, Collier, _passim_; 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 enormous +wealth of the superior ecclesiastics 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 Cranmer had +written some years before to Cromwell, deprecating the establishment of +any prebends out of the conventual estates, and speaking of the +collegiate clergy as an idle, ignorant, and gormandising race, who +might, without any harm, be extinguished along with the regulars. +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. + +[133] They declared, in the famous protestation of Spire, which gave +them the name of Protestants, that their preachers having confuted the +mass by passages of Scripture, they could not permit their subjects to +go thither; since it would afford a bad example, to suffer two sorts of +service, directly opposite to each other, in their churches. Schmidt, +_Hist. des Allemands_, vi. 394, vii. 24. + +[134] Stat. 2 and 3 Edw. 6, c. 1; Strype's _Cranmer_, p. 233. + +[135] Burnet, 192. Somerset had always allowed her to exercise her +religion, though censured for this 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 intimidation; but +that excuse might be made for others. Cranmer is said to have persuaded +Henry not to put her to death, which we must in charity hope she did not +know. + +[136] When Joan Boucher was condemned, 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 burned her; and now you will needs burn me for a piece of +flesh, and in the end you will come to believe this also when you have +read the Scriptures and understand them." Strype, ii. 214. + +[137] 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 anything else in his life), he +dwells on the king's wanting power to command anything contrary to +common law, or to a statute, and brings authorities for this. Burnet, +ii. Append. 112. See also Lingard, vi. 387, for another instance. Nor +was this regard 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 connection, 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 +parliament that the queen should have the same power as her father to +dispose of the succession by will. _Ambassades de Noailles_, iii. 153, +etc., etc. 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_, contains an elaborate +and partial apology, at great length; and the historian 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 deserve some +punishment), what can be said for the imprisonment of the bishops Heath +and Day, worthy and moderate men, who had gone a great way with the +reformation, 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! + +[138] 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 of these, +condemning some novel opinions, were not renewed under Elizabeth, and a +few other variations were made; but upon the whole there is little +difference, and none perhaps in those tenets which have been most the +object of discussion. See the original Articles in Burnet, ii. App. N. +55. They were never confirmed by a convocation or a parliament, but +imposed by the king's supremacy on all the clergy, and on the +universities. His death however, ensued before they could be actually +subscribed. + +[139] Strype's _Cranmer_, Appendix, p. 9. I am sorry to find a +respectable writer inclining to vindicate Cranmer in this protestation, +which Burnet admits to agree better 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, unknown to the promisee, the pope at Rome. The question is, +whether, having obtained the bulls from Rome on an express stipulation +that he should take a certain oath, he had a right to offer a +limitation, not explanatory, but utterly inconsistent with it? We are +sure that Cranmer's views and intentions, which he very soon carried +into effect, were irreconcilable with any sort of obedience to the pope; +and if, under all the circumstances, his conduct was justifiable, there +would be an end of all promissory obligations whatever. + +[140] The character of Cranmer is summed up in no unfair manner by Mr. +C. Butler, _Memoirs of English Catholics_, vol. i. p. 139; except that +his obtaining from Anne Boleyn an acknowledgment of her supposed +pre-contract of marriage, having proceeded from motives of humanity, +ought not to incur much censure, though the sentence of nullity was a +mere mockery of law.--Poor Cranmer was compelled to subscribe not less +than six recantations. Strype (iii. 232) had the integrity to publish +all these, which were not fully known before. + +[141] Burnet, ii. 6. + +[142] There are two curious entries in the Lords' Jour., 14th and 18th +of November 1549, which point out the origin of the new code of +ecclesiastical law mentioned in the next note: "Hodie questi sunt +episcopi, contemni se a plebe, audere autem nihil pro potestate sua +administrare, eo quod per publicas quasdam denuntiationes quas +proclamationes vocant, sublata esset penitus sua jurisdictio, adeo ut +neminem judicio sistere, nullum scelus punire, neminem ad aedem sacram +cogere, neque caetera id genus munia ad eos pertinentia exequi auderent. +Haec querela ab omnibus proceribus non sine moerore audita est; et ut +quam citissime huic malo subveniretur, injunctum est episcopis ut +formulam aliquam statuti hac de re scriptam traderent: quae si consilio +postea praelecta omnibus ordinibus probaretur, pro lege omnibus +sententiis sanciri posset. + +"18 November. Hodie lecta est billa pro jurisdictione episcoporum et +aliorum ecclesiasticorum, quae cum proceribus, _eo quod episcopi nimis +sibi arrogare viderentur_, non placeret, visum est deligere prudentes +aliquot viros utriusque ordinis, qui habita matura tantae rei inter se +deliberatione, referrent toti consilio quid pro ratione temporis et rei +necessitate in hac causa agi expediret." Accordingly, the Lords appoint +the Archbishop of Canterbury, the Bishops of Ely, Durham, and Lichfield, +Lords Dorset, Wharton, and Stafford, with Chief Justice Montague. + +[143] It had been enacted, 3 Edw. 6, c. 11, that thirty-two +commissioners, half clergy, half lay, should be appointed to draw up a +collection 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 +preserving the equality of orders; and of those nominated in November +1551, five were ecclesiastics, three laymen. The influence of the former +shows itself in the collection, published with the title of _Reformatio +Legum Ecclesiasticum_, and intended as a complete code of protestant +canon law. This was referred for revisal to a new commission; 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, having been concerned in +it. This however is of small importance. The canons are founded on a +principle current among the clergy, that a rigorous discipline, enforced +by church censures and the aid of the civil power, is the best safeguard +of a christian commonwealth against vice. But it is easy to perceive +that its severity would never have been endured in this country, and +that this was the true reason why it was laid aside; not, according to +the improbable refinement with which Warburton has furnished 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 common +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 extension 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 punishments for this +offence were intended 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 contrary. 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. Yet it rather seems by one passage in the title, de judiciis +contra haereses, c. 10, that infamy and civil disability were the only +punishments intended to be kept up, except 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 provide, 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 magistrate, that he may _suffer death_ according to +law." The words to which he refers are these: Cum sic penitus insederit +error, et tam alte radices egerit, ut nec sententia quidem +excommunicationis ad veritatem reus inflecti possit, tum consumptis +omnibus aliis remediis, ad extremum ad civiles magistratus ablegetur +_puniendus_. _Id._ tit. c. 4. + +It is generally best, where the words are at all ambiguous, to give the +reader the power of judging 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 haeretico comburendo was in +force by law, and there is no hint of taking it away. Yet it seems +monstrous to conceive that the denial of predestination (which by the +way is asserted in this collection, tit. de haeresibus, 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 difficulty, that +Arianism, Pelagianism, popery, anabaptism, are all put on the same +footing; so that, if we deny that the papist or free-willer 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 perished in the flames which they had +prepared to kindle for the destruction of their opponents." + +Upon further consideration, I incline to suspect that the temporal +punishment of heresy was intended to be fixed by act of parliament; 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 inimicitiae_, 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 adulteress 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. + +[144] Strype, _passim_. Burnet, ii. 154; iii. Append. 200; Collier, 294, +303. + +[145] Strype, Burnet. The former is more accurate. + +[146] Burnet, 237, 246; 3 Strype, 10, 341. No part of England suffered +so much in the persecution. + +[147] _Ambassades de Noailles_, v. ii. _passim_. 3 Strype, 100. + +[148] Strype, iii. 107. He reckons the emigrants at 800. _Life of +Cranmer_, 314. Of these the most illustrious was the Duchess of Suffolk, +first cousin of the queen. In the parliament of 1555, a bill +sequestering the property of "the Duchess of Suffolk and others, +contemptuously gone over the seas," was rejected by the Commons on the +third reading. Journals, 6th December. + +It must not be understood that all the aristocracy were supple +hypocrites, though they did not expose themselves voluntarily to +prosecution. Noailles tells us that the Earls of Oxford and +Westmoreland, 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 office of chamberlain), which would be conferred +on the Earl of Pembroke, v. 319. Michele, the Venetian ambassador, in +his Relazione del Stato d'Inghilterra, Lansdowne 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 +L60,000 a year of revenue. + +[149] Parker had extravagantly reckoned the number of these at 12,000, +which Burnet reduces to 3000, vol. iii. 226. But upon this computation +they formed a very considerable body on the protestant side. Burnet's +calculation, however, 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 district, is not probable; and Dr. +Lingard, on Wharton's authority, who has taken his ratio from the +diocese of Canterbury, thinks they did not amount to more than about +1500. + +[150] Burnet, ii. 298; iii. 245. But see 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 nation, as +that which Henry left established, 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 believe, in all great +points, both as to what he renounced, and what he retained. Michele +(Relazione, etc.) is of this opinion. + +[151] 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 temptation 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 sanguinary; that, +although conscientious in some respects, she was as capable of +dissimulation as her sister, and of breach of faith as her husband; that +she obstinately and wilfully sacrificed her subjects' affections and +interests to a misplaced and discreditable attachment; and that the +words with which Carte has concluded the character of this unlamented +sovereign, 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 decease, to be restored by her admirable +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. + +[152] 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. 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, iii. 473. These numbers come so near to each +other, that they may be presumed also to approach the truth. But Carte, +on the authority of one of Noailles's letters, thinks many more were put +to death than our martyrologists have discovered. And the prefacer to +Ridley's _Treatise de Coena Domini_, supposed to be Bishop Grindal, says +that 800 suffered in this manner for religion. Burnet, ii. 364. I +incline, however, to the lower statements. + +[153] Burnet makes a very just observation on the cruelties of this +period, that "they raised that horror 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 aversion so +deeply rooted and raised upon such grounds, does upon every new +provocation or jealousy or returning to it break out in most violent and +convulsive symptoms."--P. 338. "Delicta majorum immeritus luis, +_Romane_." But those who would diminish this aversion, and prevent these +convulsive symptoms, will do better by avoiding for the future either +such panegyrics on Mary and her advisers, or such insidious extenuations +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 unsuspicious 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 +este faite la confirmation de 'alliance entre le pape et ce royaume par +un sacrifice publique et solemnel d'un docteur predicant nomme Rogerus, +le quel a ete brule tout vif pour estre Lutherien; 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 comforter son courage; et meme ses enfans y on +assiste, le consolant de telle facon qu'il semblait qu'on le menait aux +noces."--V. 173. + +[154] Strype, iii. 285. + + + + +CHAPTER III + +ON THE LAWS OF ELIZABETH'S REIGN RESPECTING THE ROMAN CATHOLICS + + +_Change of religion on the queen's accession._--The accession of +Elizabeth, gratifying to the whole nation on account of the late queen's +extreme unpopularity, infused peculiar joy into the hearts of all +well-wishers to the Reformation. Child of that famous marriage which had +severed the connection 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 reign, her +inclinations had continued steadfast to the opposite side.[155] Nor was +she long in manifesting this disposition sufficiently to alarm one +party, though not entirely to satisfy the other. Her great prudence, and +that of her advisers, which 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 alliance, joined with a certain tendency +in her religious sentiments not so thoroughly protestant as had been +expected, produced some complaints of 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, commanding her to lay down the title of royalty, +and to submit her pretentions 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 refusing to +officiate at her coronation.[156] 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 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 evident which +way she must incline.[157] 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.[158] +But the act restoring the royal supremacy 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 +interpretation 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 +happened 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 commission. In the summer +of 1559, the queen appointed 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.[159] Men +eminent for their zeal in the protestant cause, and most of them exiles +during the persecution, occupied the vacant sees. And thus, before the +end of 1559, the English church, so long contended for as a prize by the +two religions, was lost for ever to that of Rome. + +_Acts of supremacy and uniformity._--These two statutes, commonly +denominated the acts of supremacy and uniformity, form the basis of that +restrictive code of laws, deemed by some one of the fundamental +bulwarks, by others the reproach 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 jurisdiction 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.[160] The latter statute trenched more on the natural rights +of conscience; prohibiting, under pain of forfeiting goods and chattels +for the first offence, of a year's imprisonment for the second, and of +imprisonment during life for the third, the use by a minister, whether +beneficed or not, of any but the established liturgy; and imposed a fine +of one shilling on all who should absent themselves from church on +Sundays and holidays.[161] + +_Restraint of Roman catholic worship in the first years of +Elizabeth._--This act operated as an absolute interdiction of the +catholic rites, however privately celebrated. It has frequently been +asserted that the government connived at the domestic exercise of that +religion during these first years of Elizabeth's reign. 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.[162] 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 neither +he nor the servants would be sworn to answer to articles, saying they +would not accuse themselves; and, after a wise remark on this, that +"papistry 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 confess 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."[163] This commencement of persecution induced +many catholics to fly beyond sea, and gave rise to those reunions of +disaffected exiles, which never ceased to endanger the throne of +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 continuing to believe and worship as their fathers had +done before them. I request those who may hesitate 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 prudent man at Rome (and we shall not at least +deny that there were such) condemned the precipitate and insolent +behaviour of Paul IV. towards Elizabeth, as they did most other parts of +his administration. 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 indulgent Romanists of that age were not +very reluctant to make.[164] 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 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.[165] The means taken were chiefly the +same as had been adopted against themselves, the dispersion 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 +important 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.[166] +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 parliament of that year.[167] + +_Statute of 1562._--The act entitled, "for the assurance of the queen's +royal power over all estates and subjects within her dominions," enacts, +with an iniquitous and sanguinary retrospect, that all persons, who had +ever taken holy orders or any degree in the universities, 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 tendered +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 praemunire; +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.[168] + +_Speech of Lord Montague against it._--This harsh statute did not pass +without opposition. Two speeches against it have been preserved; one by +Lord Montagu in the House of Lords, the other by Mr. Atkinson in the +Commons, breathing such generous abhorrence of persecution 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 religion. 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 persuaded, 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 incommodity 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 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 defend themselves; whereby should ensue the contrary of what +every good prince and well advised commonwealth ought to seek and +pretend, that is, to keep their kingdom and government in peace."[169] + +_Statute of 1562 not fully enforced._--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 +certain 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 moderate 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.[170] 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 custody in the palaces of their +successors.[171] Bonner, the most justly obnoxious of them all, was +confined in the Marshalsea. Upon the occasion of this new statute, Horn, +Bishop of Winchester, indignant at the impunity of such a man, proceeded +to tender him the oath of supremacy, with an evident 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.[172] +This statute, and especially its preamble, 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.[173] + +_Application of the emperor in behalf of the English catholics._--It was +not long after the act imposing such heavy penalties on catholic priests +for refusing the oath of supremacy, that the Emperor Ferdinand addressed +two letters to Elizabeth, interceding for the adherents to that +religion, both with respect to those 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 concluded with an expression, which might possibly be designed to +intimate that his own conduct towards the protestants in his dominions +would be influenced by her concurrence in his request.[174] Such +considerations were not without great importance. 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 success, to obtain some concessions from the +pope, had shown a disposition to grant further indulgences to his +protestant subjects. His son, Maximilian, not only through his moderate +temper, but some real inclination towards the new doctrines, bade fair +to carry much farther the liberal policy of the reigning emperor.[175] +It was consulting very little 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 unprejudiced men might have entertained. In her +answer to Ferdinand, the queen declares that she cannot grant churches +to those who disagree from her religion, being against the laws of her +parliament, 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 disturb the +present tranquillity of the commonwealth. Yet enough had already +occurred in France to lead observing men to suspect that severities and +restrictions 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 enjoyed a pretty free use of their religion for the +first fourteen years of Elizabeth's reign. But this is not reconcilable +to many passages in Strype's collections. We find abundance of persons +harassed for recusancy, that is, for not attending the protestant +church, and driven to insincere promises of conformity. Others were +dragged before ecclesiastical commissions for harbouring priests, or for +sending money to those who had fled beyond sea.[176] 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.[177] The catholic +party were not always scrupulous about the usual artifices of an +oppressed people, meeting force by fraud, and concealing their heartfelt +wishes under the mask of ready submission, or even 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 complied with exterior ceremonies, retained in their +private devotions their accustomed mode of worship. It is an admitted +fact, that the catholics generally attended the church, till it came to +be reckoned a distinctive sign of their having renounced 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 obedience to the civil power.[178] The Romish scheme of +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 +preserved. 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 commonly called the old priests. They served as +chaplains in private families.[179] 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 rites, more impressive in such concealment than +if surrounded by all their former splendour. The strong predilection +indeed of mankind for mystery, which has probably led many to tamper in +political 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 probably without exaggeration, that, under +the directions 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.[180] + +_Persecution of the catholics in the ensuing period._--It is my thorough +conviction that the persecution, for it can obtain no better name,[181] +carried 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 hostility, 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 parliamentary +recognition. The act of 35 H. 8, c. 1 had settled the crown upon her, +and thus far restrained the previous statute, 28 H. 8, c. 7, which had +empowered her father to regulate the succession at his pleasure. Besides +this legislative authority, his testament had bequeathed the kingdom 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 reign, in the eyes of such catholics as preferred an +hereditary 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 power with which his +parliament, in too servile a spirit, yet in the plenitude of its +sovereign authority, had invested him, by settling the succession in +remainder upon the house of Suffolk, descendants 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 Cumberland, 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 presumptive 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, granddaughter of Margaret, was the indisputable +representative of her royal progenitors, and the next in succession to +Elizabeth. + +_Elizabeth's unwillingness to decide the succession, or to marry._--This +reversion, indeed, after a youthful princess, might well appear rather +an improbable contingency. It was to be expected that a fertile marriage +would defeat all speculations about her inheritance; nor had Elizabeth +been many weeks on the throne, before this began to occupy her subjects' +minds.[182] 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, sometime after created Earl +of Leicester; one recommended 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.[183] 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.[184] 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 expressions 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 Leicester, contrived, +about the end of 1564, to renew the treaty with the Archduke +Charles.[185] During 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.[186] +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 becoming her husband +seem rapidly to have vanished away. The pretext made for relinquishing +this treaty with the archduke was Elizabeth's constant refusal to +tolerate the exercise of his religion; a difficulty which, whether real +or ostensible, recurred in all her subsequent negotiations of a similar +nature.[187] + +In every parliament of Elizabeth the House of Commons was zealously +attached to the protestant interest. This, as well as an apprehension of +disturbance from a contested succession, led to those importunate +solicitations that she would choose a husband, which she so artfully +evaded. A determination 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 +consciousness that it was unlikely to be fruitful.[188] Whether these +conjectures were well founded, of 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 +pressing her to some decisive settlement on this subject, it would not +have been easy to content the two factions, who looked for a successor +to very different quarters.[189] It is evident that any confirmation of +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 +submit 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. + +_Imprisonment of Lady Catherine Grey._--She had, however, in one of the +first years of her reign, without any better motive than her own jealous +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, +proved with child by a private marriage, as they 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 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 impossible 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 indignity;[190] but the legitimacy of her +children was acknowledged by general consent, and, in a distant age, by +a legislative declaration. These proceedings 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 jealousy.[191] Hales, clerk of the +hanaper, a zealous protestant, having written in favour of Lady +Catherine's marriage, and of her title to the succession, was sent to +the Tower.[192] The lord keeper Bacon himself, 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;[193] and it is probable that he felt the imprudence of +entirely discountenancing 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, contains several +indications of a spirit unfriendly to the Scottish line;[194] and a +speech is extant, said to have been made as late as 1571, expressly +vindicating the rival pretension.[195] 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 descendants of Mary Brandon +derived from a parliamentary settlement. But the doubtful birth of Lord +Beauchamp and his brother, with an ignoble marriage, 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 throughout this reign. + +_Mary, Queen of Scotland._--We may well avoid the tedious and intricate +paths of Scottish history, where each fact must be sustained by a +controversial discussion. Every one will recollect, that Mary Stuart's +retention of the 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, although it might be difficult to find a +diplomatic answer to this, yet every one was sensible of an important +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 support.[196] If, however, after the death of +Francis II. had set the Queen of Scots free from all adverse +connections, she had with more readiness and apparent sincerity +renounced a pretension which could not be made compatible with +Elizabeth's friendship, she might perhaps have escaped some of the +consequences 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 lifetime, 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 satisfaction was fairly given +on this point to the English court. Elizabeth took a far more effective +revenge, by intriguing with all the malecontents of Scotland. But while +she was endeavouring to render Mary's throne uncomfortable and +insecure, she did not employ that influence against her in England, +which lay more fairly in her power. She certainly 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 Thornton 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.[197] + +The circumstances wherein Mary found herself placed on her arrival in +Scotland were sufficiently embarrassing to divert her attention from any +regular scheme against Elizabeth, though she may sometimes have indulged +visionary hopes; nor it is probable that with the most circumspect +management 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 imprudent marriage with Darnley, and the far greater +errors of her subsequent behaviour, by lowering both her resources and +reputation as far as possible, seemed to be pledges of perfect security +from that quarter. Yet it was precisely when Mary was become most feeble +and helpless, that Elizabeth'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. Reigning 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 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 appeared +rather dangerous; and policy was supposed, as frequently happens, to +indicate a measure absolutely repugnant to justice, that of detaining +her in perpetual custody.[198] Whether this policy had no other fault +than its want of justice, may reasonably be called in question. + +_Combination in favour of Mary._--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,[199] and again in 1568. Of all +possible competitors for the throne, Mary was incomparably the most +powerful, both among the nobility and the people. Besides the undivided +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 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."[200] 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 +principally directed in all her conduct with regard to Scotland and its +sovereign.[201] 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 substantiated by evidence at least that she +did not disprove, and the whole course of which proceedings created a +very unfavourable impression both 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 begun to demand her exclusion by an absolute +decision 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 marriage with that princess, might +well startle her cabinet. In this combination Westmoreland and +Northumberland, avowed catholics, Pembroke and Arundel, suspected ones, +were mingled with Sussex 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 forfeit 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.[202] There is abundant proof of his intrigues +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 +reconcilable with the statute; but much evidence is extant that his +prosecutors did not adduce; and no one fell by a sentence more amply +merited, or the execution of which was more indispensable.[203] + +_Bull of Pius V._--Norfolk was the dupe throughout all this intrigue 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 catholic party. Collateral to +Norfolk's conspiracy, but doubtless connected with it, was that of the +northern Earls of Northumberland and Westmoreland, long prepared, and +perfectly foreseen by the government, of which the ostensible and +manifest aim was the re-establishment of popery.[204] Pius V., who took +a far more active part than his predecessor in English affairs, and had +secretly instigated this insurrection, now published his celebrated +bull, excommunicating and deposing Elizabeth, in order to second the +efforts of her rebellious subjects.[205] This is, perhaps, with the +exception 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 government 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 punishment of the Duke of Norfolk, rendered +Elizabeth's throne more secure. But those events revealed the number of +her enemies, or at least of those in whom no confidence could be +reposed. The rebellion, though provided against by the ministry, and +headed by two peers of great family but no personal weight, had not only +assumed for a time a most formidable aspect in the north, but caused +many to waver in other parts of the kingdom.[206] Even in Norfolk, an +eminently protestant county, there was a slight insurrection in 1570, +out of attachment to the duke.[207] 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 contrary 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 establishment under a yet unknown +successor? This was the manifest and principal danger that her +counsellors had to dread. Her own great reputation, 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 occasion, "such a matter would drive me to the end of my wits." +And Sir Thomas Smith expresses his fears in equally strong +language.[208] 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 +difficult to have selected from the English nobility a 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 +restoration 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 interests. A union with any member of +that perfidious 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 Maximilian and some other +catholic princes, were parties, for the extirpation of the protestant +religion.[209] 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 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.[210] + +_Statutes for the queen's security._--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 governments, 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 continually 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 sovereign.[211] This produced the act of 13 +Eliz. c. 2; which, after reciting these mischiefs, enacts that 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 superstitious 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 priesthood, and in great +measure the laity, to the continual risk of martyrdom; for so many had +fallen away from their faith through a pliant spirit of conformity with +the times, that the regular discipline would exact their absolution and +reconciliation 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, +limitation, 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 parliament, +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 +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.[212] + +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 demonstrations against the unfortunate captive. Fear, +as 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 +proceed criminally against the pretended Scottish queen."[213] +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 securing 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 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 +parliament.[214] I do not think it admits of much question that, at this +juncture, the civil and religious institutions 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 dishonour. But the violent measures suggested against +her life were hardly, under all the circumstances of her case, to be +reconciled with justice; even admitting her privity to the northern +rebellion 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 better hope, and the +papists' daily expectation vanquished."[215] 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 safety and that of her subjects, +to add to God's providence her own policy, so far as might stand with +justice."[216] + +_Catholics more rigorously treated._--We cannot wonder to read that +these new statutes increased the dissatisfaction of the Roman catholics, +who perceived a systematic determination 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.[217] Many retired to foreign countries, and receiving for +their maintenance pensions from the court of Spain, became unhappy +instruments of its ambitious 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 parties 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 sentiments. But such of her advisers as leaned towards +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 idolaters; with the council +they were a dangerous and disaffected party; with the judges they were +refractory transgressors of statutes; on every side they were obnoxious +and oppressed. A few aged men having been set at liberty, Sampson, the +famous puritan, himself a sufferer for conscience sake, wrote a letter +of remonstrance to Lord Burleigh. He urged in this that they should be +compelled to hear sermons, though he would not at first oblige them to +communicate.[218] 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.[219] Even Parker, by +no means tainted with puritan bigotry, and who had been reckoned +moderate in his proceedings towards catholics, complained of what he +called "a Machiavel government;" that is, of the queen's lenity in not +absolutely rooting them out.[220] + +This indulgence, however, shown by Elizabeth, the topic of reproach in +those times, and sometimes of boast in our own, never extended to any +positive toleration, nor even to any general connivance 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.[221] Nor did the +government always abstain from an inquisition 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.[222] One Sir Richard +Shelley, who had long acted as a sort of spy for Cecil on the continent, +and given much useful information, requested only leave to enjoy his +religion without hindrance; but the queen did not accede to this without +much reluctance and delay.[223] She had indeed assigned no other +ostensible pretext for breaking off her own treaty of marriage with the +Archduke Charles, and subsequently with the Dukes of Anjou and Alencon, +than her determination not to suffer the mass to be celebrated 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 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-President 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 obstinate, he +might cause some kind of torture to be used upon him, and the like order +they prayed him to use with the others."[224] 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 +patient diligence of such a compiler as Strype, who thinks no fact below +his regard, could have preserved them from oblivion.[225] + +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 exclude them from the commission, on account of their wealth and +respectability.[226] The facility with which catholic rites can be +performed in secret, as before observed, was a still more important +circumstance. Nor did the voluntary exiles established in Flanders remit +their diligence in filling the kingdom with emissaries. The object of +many at least among them, it cannot for a moment be doubted, from the +aera 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, neither 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 +distrust: it is the extension of that jealousy to the peaceful and loyal +which we stigmatise as oppressive, and even as impolitic.[227] + +_Fresh laws against the catholic worship._--In concert with the +directing powers of the Vatican and Escurial, the refugees redoubled +their exertions about the year 1580. Mary was now wearing out her years +in hopeless captivity; her 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 L20 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.[228] These grievous penalties on recusancy, as the wilful +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 persecution 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 +perhaps a few families of high rank might enjoy a connivance.[229] + +_Execution of Campian and others._--It had certainly been the desire of +Elizabeth to 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 imprisonment for life.[230] 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.[231] But in 1581 several seminary priests from +Flanders having been arrested, whose projects were supposed (perhaps not +wholly without 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 +eminent was Campian, formerly a protestant, but long known as the boast +of Douay for his learning and virtues.[232] 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.[233] 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 connections, 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 +perhaps which can be found in our books.[234] 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, which he refused to +answer, in such a manner as betrayed his way of thinking. Most of those +interrogated at the same time, on being pressed whether the queen was +their lawful sovereign whom they were bound to obey, notwithstanding any +sentence of deprivation that the pope might pronounce, endeavoured, like +Campian, to evade the snare. A few, who unequivocally disclaimed the +deposing power of the Roman see, were pardoned.[235] 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 bull should be +considered as always in force against Elizabeth and the heretics, but +should only be binding on catholics when due execution of it could be +had.[236] This was designed to satisfy the consciences of some papists +in submitting 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 +tranquillise her council, or conciliate them towards the Romish party. +The distinction, however, between a king by possession and one by right, +was neither heard for the first, nor for the last time, in the reign of +Elizabeth. It is the lot of every government that is not founded on the +popular 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 +various times during this reign, are more chargeable with insincerity or +dissimulation than accused persons generally are. + +The public executions, numerous as they were, scarcely form the most +odious part of this persecution. 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 judicial 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.[237] 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 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 forefathers. + +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 everywhere from +Rome and Douay, not only as a usurper and heretic, but a tyrant more +ferocious than any heathen persecutor, for inadequate parallels to whom +they ransacked all former history.[238] These exaggerations, coming +from the very precincts of the inquisition, 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. + +_Defence of the queen, by Burleigh._--One of these, entitled "The +Execution of Justice in England for Maintenance of public and private +Peace," appears to 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 conspiracy. It is alleged that +a vast number of catholics, whether of the laity or priesthood, among +whom the deprived bishops are particularly enumerated, 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 condemnation +would renounce their traitorous principles, 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 conjectured, through a compulsive +inquiry, could sustain in law or justice a conviction for high treason, +is what the author of this pamphlet has not rendered manifest.[239] + +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 +imputation of excessive cruelty with which Europe was then resounding. +Those who revere the memory of Lord Burleigh must blush for this pitiful +apology. "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 offender, 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 perfectly 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 attended 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 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 confessions that he was guilty; nor was the torture ever +employed to wring out confessions at random; nor unless the party had +first refused to declare the truth at the queen's commandment." Such +miserable excuses serve only to mingle contempt with our +detestation.[240] 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.[241] + +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 advice. "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 unlawful +act, as without the special grace of God he cannot think otherwise, or +else, by refusing it, must become a traitor, which before some hurt done +seemeth hard; I humbly submit this to 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 papists, 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 dissemble 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 dispensation for the present oath, as well as for +the other. But this is certain, that whomsoever the conscience, or fear +of breaking an oath, both 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 theologians were then, or have +been since, accustomed to entertain. "I account," he says afterwards, +"that putting to death does no ways lessen them; 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 therefore they should never have the honour to +take any pretence of martyrdom in England, where the fullness 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 schoolmasters, are, "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 established religion."--"This," he says, "would greatly +bind the commons' hearts unto you, in whom indeed consisteth the power +and strength of your realm; and it will make them less, or nothing at +all, depend on their landlords. And, although 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 are nothing comparable to the danger of having +many thousands depending on the adverse party."[242] + +_Increased severity of the government._--The strictness used with +recusants, which much increased from 1579 or 1580, had the usual +consequence of persecution, that of multiplying hypocrites. For, in +fact, if men will once bring themselves to comply, to take all oaths, to +practise all conformity, to oppose simulation and dissimulation to +arbitrary inquiries, it is hardly possible that any government should +not be baffled. Fraud becomes an over-match for power. The real danger +meanwhile, the internal disaffection, remains as before, or is +aggravated. The laws enacted against popery were precisely calculated to +produce 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 +frequented by multitudes who secretly repined for a change; and the +council, whose fear of open enmity 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, seminary priests, and other priests, whether ordained +within or without the kingdom, to depart from it within forty days, on +pain of being adjudged traitors. The penalty of fine and imprisonment at +the queen's pleasure was inflicted on such as, knowing any priest to be +within the realm, should not discover it to a magistrate. This seemed to +fill up the measure of prosecution, 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 account of refraining from +the public worship, which they did to avoid sin; and that their priests +might not be banished from the kingdom.[243] And they all very justly +complained of this determined oppression. The queen, without any fault +of theirs, they alleged, 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 +become intolerable to continue in England. Camden 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.[244] A general +inquisition seems to have been made about this time; but whether it was +founded on sufficient grounds of previous suspicion, we cannot +absolutely determine. The Earl of Northumberland, brother of him who had +been executed for the rebellion 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 unfair methods +by which her ministry counteracted them, it was not long before schemes, +more formidable 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 +recusancy, which, as they alleged, showed a manifest purpose to reduce +them to poverty;[245] so some desperate men saw no surer means to rescue +their cause than the queen's assassination. One Somerville, 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.[246] + +_Plot in favour of Mary._--More deep-laid machinations were carried on +by several catholic laymen at home and abroad, among whom a brother of +Lord Paget was the most prominent.[247] These had in view two objects, +the deliverance of Mary, and the death of her enemy. Some perhaps 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 intercepted, every thread of these +conspiracies unravelled, every secret revealed to these wise counsellors +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 impute a participation in that crime to the most dangerous +enemy whom, for their mistress, their religion, 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 +gradually 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 very doubtful, +when we consider the increasing strength of the puritans, the antipathy +of the nation to Spain, the prevailing opinion of her consent to +Darnley's murder, and the obvious expedient of treating her son, now +advancing to manhood, as the representative of her claim. The new +projects imputed to her friends even against the queen's life, +exasperated the hatred of the protestants against Mary. An association +was formed in 1584, 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 manner of persons, of whatsoever state they shall be and +their abettors, that shall attempt any act, or counsel, or consent to +anything 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 +successor, 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 person or persons to death_, with our joint and +particular 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."[248] + +_Execution of Mary Queen of Scots._--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 anything 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.[249] 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 omitting 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 questionable might be her concern in it, I have +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 answers 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 famous sentence that brought Mary to +the scaffold, 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 +disproportioned censure. + +It is of course essential to any kind of apology for Elizabeth in this +matter, that Mary should have 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 conspiracy against the aggressor's power afford a moral +justification for her death. But though the proceedings 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 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 alleged 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),[250] and from the deep guilt that the falsehood of the charge +must inevitably attach to Sir Francis Walsingham.[251] Those at least +who cannot acquit the Queen of Scots of her husband's murder, will +hardly imagine that she would scruple to concur in a crime so much more +capable of extenuation, and so much more essential to her interests. 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 +public 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, however, does not appear +unquestionable. By one of those principles of law, which may be called +natural, as forming the basis of a just and rational jurisprudence, +every independent government is supreme within its own territory. +Strangers, voluntarily 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 unusual 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 societies and the prevailing +sentiments of mankind agree to point out. It is certainly true that an +exception to this rule, incorporated with the positive law of nations, +and established, no doubt, before the age of Elizabeth, has rendered the +ambassadors of sovereign princes exempt, in all ordinary cases at least, +from criminal process. Whether, however, an ambassador may not be +brought to punishment for such a flagrant abuse of the confidence 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 privileges with which courtesy and +convenience have invested him.[252] 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 +circumstances, frame plots for the prince's assassination 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 +exercise 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 +law is administered. I should be rather surprised to hear any one +assert that the parliament of Paris was incompetent to try Christina for +the murder of 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 acknowledged 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 sovereign 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 Stafford, rather than the special +commission; which Elizabeth noticed as a strange indignity. The +commission, however, was perfectly legal under the recent statute.[253] + +But, while we can hardly pronounce Mary's execution to have been so +wholly iniquitous and unwarrantable 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 and such precedents might not palliate the crime of +assassination imputed to her. Some might perhaps allege, 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 Elizabeth'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 +different 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 of Roman catholics_.--As the catholics endured +without any open 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 +Farnese, could achieve against the island-queen with her Drakes and +Cecils--in that agony of the protestant faith and English name, they +stood the 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-lieutenant, 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.[254] 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.[255] A statute was +enacted, restraining popish recusants, a distinctive name now first +imposed by law, to particular places of residence, and subjecting them +to other vexatious provisions.[256] All persons were forbidden, by +proclamation, to harbour any of whose conformity they were not +assured.[257] Some indulgence was doubtless shown during all Elizabeth'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 property.[258] There seems nevertheless to be good +reason 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,[259] positively assert the contrary; and I am not aware that +their assertion has been disproved. This certainly furnishes a +distinction between the persecution under Elizabeth (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 extenuation. But that which renders these +condemnations of popish priests so iniquitous, is, that the belief in, +or rather the refusal to disclaim, a speculative tenet, dangerous indeed +and incompatible 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 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 incurred the same penalty.[260] + +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 thirteenth century +had lent former popes a powerful aid towards subjecting both the laity +and the secular priesthood, by their superior learning and ability, +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 +reformation. 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 absolute, unhesitating obedience to its superior, no one could justly +complain that he was presumed capable 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.[261] This was manifestly +connected 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 distinction, by a proclamation issued in +1602, ordering all priests to depart from the kingdom, unless they +should come in and acknowledge their allegiance, with whom the queen +would take further order.[262] 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.[263] There were now two parties among the +English catholics; and those who, goaded by the sense of long +persecution, and inflamed by obstinate bigotry, regarded every heretical +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 endured +with fortitude. It is equally candid and reasonable to believe that, if +a fair and legal toleration, 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 occupied all her later years. Rome would not indeed +have been appeased, and some desperate fanatic might have sought her +life; but the English catholics collectively would have repaid her +protection 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 +persecution, 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 inclined 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.[264] 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 consistent friend of religious liberty, +whether the catholic 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 their protestantism by excessive harshness towards the old +religion's adherents. That bold bad man, whose favour is the great +reproach of Elizabeth's reign, the Earl of Leicester, and the sagacious, +disinterested, 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.[265] + +The restraints and penalties, by which civil governments have at various +times thought it expedient to limit the religious liberties of their +subjects, may be arranged in something like the following scale. The +first and slightest degree is the requisition of a test of conformity to +the established religion, as the condition of exercising offices of +civil trust. The next step is to restrain the free promulgation 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 +expressions of opinion. Finally, the last stage of persecution is to +enforce by legal penalties a conformity 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, though it be always incumbent on those who +maintain it to prove its necessity, may, under certain rare +circumstances, be conducive to the political well-being of a state; and +can then only be reckoned an encroachment on the principles of +toleration, when it ceases to produce a public benefit sufficient to +compensate for the privation it occasions 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 controverted doctrines might for a time at least be +subjected to some limitation for the sake of public tranquillity. I can +scarcely conceive the necessity 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 recesses, +and bend the reluctant conscience to an insincere profession of truth, +or extort from it an acknowledgment of error, for the purpose of +inflicting 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 acquiescence in whatever has been enacted, have offered for this +odious code the false pretext of political necessity. That necessity, I +am persuaded, 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 apprehension, +or by the arbitrary spirit with which our government was administered +under Elizabeth. + +FOOTNOTES: + +[155] Elizabeth was much suspected of a concern in the conspiracy of +1554, which was more extensive than appeared from Wyatt's insurrection, +and had in view the placing her on the throne, with the Earl of +Devonshire for her husband. Wyatt indeed at his execution acquitted 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 criminate 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. Lingard, 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 enemy. 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 penalties of heresy and treason. It appears by the memoir of the +Venetian ambassador, in 1557 (Lansdowne MSS. 840), as well as from the +letters of Noailles, that Mary was desirous to change the succession, +and would have done so, had it not been for Philip's reluctance, and the +impracticability of obtaining the consent of parliament. Though of a +dissembling character, she could not conceal the hatred she bore to one +who brought back the memory of her mother's and her own wrongs; +especially when she saw all eyes turned towards 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 conformity, 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 +equivocal answer. Yet Elizabeth's faith was constantly suspected. +"Accresce 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 cattolicamente, pure e opinione che +dissimuli e nell' interiore la ritenga piu che mai." + +[156] 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 virulence +against the protestant exiles, and expressed apprehension of their +return. Burnet, iii. 272. Directions to read part of the service in +English, and forbidding the elevation 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 Nicholas 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 Elizabeth's resolution was formed +independently 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 (January 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. + +[157] 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 Reformation_, or in the _Somers Tracts_. + +[158] _Parl. Hist._ vol. i. p. 394. In the reign of Edward, a prayer had +been inserted in the liturgy to deliver us "from the Bishop of Rome and +all his detestable enormities." This was now struck out; and, what was +more acceptable to the nation, the words used in distributing the +elements were so contrived by blending the two forms successively +adopted under Edward, as neither to offend the popish or Lutheran, nor +the Zuinglian communicant. A rubric directed against the doctrine of the +real or corporal presence was omitted. This was replaced after the +restoration. Burnet owns that the greater part of the nation still +adhered to this tenet though it was not the opinion of the rulers of the +church. ii. 390, 406. + +[159] Burnet; Strype's _Annals_, 169. Pensions were reserved for those +who quitted their benefices on account 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 visitors' reports seem the best authority. It is 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 preceding reign; which would of course considerably augment the +number of sufferers for popery. + +[160] 1 Eliz. c. i. The oath of supremacy 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 highness's +dominions and countries, as well in all spiritual and ecclesiastical +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 +spiritual, within this realm; and therefore I do utterly renounce and +forsake all foreign jurisdictions, 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 authorities, granted or belonging to the +queen's highness, her heirs and successors, or united and annexed to the +imperial crown of this realm." + +A remarkable passage in the injunctions to the ecclesiastical visitors +of 1559, which may be reckoned in the nature of a contemporaneous +exposition of the law, restrains the royal supremacy established 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 malicious persons, which most sinisterly 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 authority and power of ministry of divine +service in the church; wherein her said subjects be much abused by such +evil-disposed persons. For 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 meaning, 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 peremptorily or obstinately take the same oath." 1 +_Somers Tracts_, edit. Scott, 73. + +This interpretation was afterwards given in one of the thirty-nine +articles, which having been confirmed by parliament, it is undoubtedly +to be reckoned the true sense of the oath. Mr. Butler, in his _Memoirs +of English Catholics_, vol. i. p. 157, enters into a discussion of the +question, whether Roman catholics might conscientiously take the oath of +supremacy in this sense. It appears that in the seventeenth century some +contended for the affirmative; and this seems to explain the fact, that +several 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 rendered necessary to make their exclusion +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 authority of the +pope. No writer, as far as my slender knowledge extends, 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 +jurisdiction in ecclesiastical causes as vested in the holy see by +divine right. + +As to the exposition before given of the oath of supremacy, I conceive +that it was intended not only to relieve the scruples of catholics, but +of those who had imbibed from the school of Calvin an apprehension of +what is sometimes, though rather improperly, called Erastianism--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. + +[161] 1 Eliz. c. 2. + +[162] Strype's _Annals_, i. 233, 241. + +[163] 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 sustained by +the arbitrary power of the high commission court. + +[164] Strype, 220. + +[165] Questions of conscience were circulated, with answers, all tending +to show the unlawfulness of conformity. Strype, 228. There was nothing +more in this than the catholic clergy were bound in consistency with +their principles to do, though it seemed very atrocious to bigots. Mr. +Butler says, that some theologians at Trent were consulted as to the +lawfulness of occasional conformity to the Anglican rites, who +pronounced against it. _Mem. of Catholics_, i. 171. + +[166] 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. + +[167] 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 +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). + +Strype tells us (i. 374) of resolutions 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 information of a spy. + +[168] 5 Eliz. c. 1. + +[169] Strype, Collier, _Parliamentary History_. The original source is +the manuscript collections of Fox the martyrologist, a very unsuspicious +authority; so that there seems every reason to consider this speech, as +well as Mr. Atkinson's, authentic. The following is a specimen of the +sort of answer given to these arguments: "They say it touches +conscience, and it is a thing wherein a man ought to have a scruple; but +if any hath a conscience 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. + +[170] Strype's _Life of Parker_, 125. + +[171] Strype's _Annals_, 149. Tunstall was treated in a very handsome +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. + +[172] 8 Eliz. c. 1. Eleven peers dissented, all noted catholics, except +the Earl of Sussex. Strype, i. 492. + +[173] Even Dr. Lingard admits that Parker was consecrated at Lambeth, on +December 19, 1559; but conjectures 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. + +[174] Nobis vero factura est rem adeo gratam, ut omnem simus daturi +operam, quo possimus eam rem serenitati vestrae mutuis benevolentiae et +fraterni animi studiis cumulatissime 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 followed, to the year 1559, but bears date 24th September 1563. + +[175] For the dispositions of Ferdinand and Maximilian towards religious +toleration in Austria, which indeed for a time existed, see F. Paul, +_Concile de Trente_ (par Courayer), ii. 72, 197, 220, etc.; Schmidt, +_Hist. des Allemands_, viii. 120, 179, etc.; Flechier, _Vie de +Commendom_, 388; or Coxe's _House of Austria_. + +[176] Strype, 513, _et alibi_. + +[177] Strype, 522. He says the lawyers in most eminent places were +generally favourers of popery. P. 269. But, if he means the judges, they +did not long continue so. + +[178] Cum regina Maria moreretur, et religio in Anglia mutaret, post +episcopos et praelatos catholicos captos et fugatos, populus velut ovium +grex sine pastore in magnis tenebris et caligine animarum suarum +oberravit. Unde etiam factum est multi ut catholicorum superstitionibus +impiis dissimulationibus et gravibus juramentis contra sanctae sedis +apostolicae auctoritatem, cum admodum parvo aut plane nullo +conscientiarum suarum scrupulo assuescerent. Frequentabant ergo +haereticorum synagogas, intererant eorum concionibus, atque ad easdem +etiam audiendas filios et familiam suam compellabant. Videbatur illis ut +catholici essent, sufficere una cum haereticis eorum templa non adire, +ferri autem posse si ante vel post illos eadem intrassent. +Communicabatur de sacrilega Calvini coena, vel secreto et clanculum +intra privatos parietes. Missam qui audiverant, ac postea Calvinianos se +haberi volebant, sic se de praecepto satisfecisse existimabant. +Deferebantur filii catholicorum ad baptisteria haereticorum, ac inter +illorum manus matrimonia contrahebant. Atque haec omnia sine omni +scrupulo fiebant, facta propter catholicorum sacerdotum ignorantiam, qui +talia vel licere credebant, vel timore quodam praepediti dissimulabant. +Nunc autem per Dei misericordiam omnes catholici intelligunt, ut +salventur non satis esse corde fidem catholicam credere, sed eandem +etiam ore oportere confiteri. _Ribadeneira de Schismate_, p. 53. See +also Butler's _English Catholics_, vol. iii. p. 156. + +[179] Dodd's _Church His._ vol. ii. p. 8. + +[180] Thomas Heath, brother to the late Archbishop of York, was seized +at Rochester about 1570, well provided 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.; Introduction, p. +39, etc., from a pamphlet written also by Nalson, entitled, _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 passages 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 fanatic. His sect +appeared in the Netherlands about 1555. + +[181] "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." +Southey's _Book of the Church_, vol. ii. p. 285. If the second of these +sentences 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. Nor +to mention Sir Thomas More's _Utopia_, 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 toleration from those +of different sentiments 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 believe that many protestants never approved them. +Sleidan intimates (vol. iii. p. 263) that Calvin incurred odium by the +death of Servetus. And Melancthon says expressly the same thing, in the +letter which he unfortunately wrote to the reformer 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 +conviction. + +[182] The address of the House of Commons, begging the queen to marry, +was on February 6, 1559. + +[183] Haynes, 233. + +[184] See particularly two letters in the _Hardwicke State Papers_, i. +122 and 163, dated in October and November 1560, which show the alarm +excited by the queen's ill-placed partiality. + +[185] Cecil's earnestness for the Austrian marriage appears plainly +(Haynes, 430), and still more in a remarkable minute, where he has drawn +up, in parallel columns, according to a rather formal, but perspicuous, +method he much used, his reasons in favour of the archduke, and against +the Earl of Leicester. The former chiefly relate to foreign politics, +and may be conjectured by those acquainted with history. The latter are +as follows: 1. Nothing is increased by marriage 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 offices, +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._ 444. These suggestions, and especially the +second, if actually laid before the queen, show the plainness and +freedom which this great statesman ventured to use towards her. The +allusion to the death of Leicester'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 related there with great +anachronism and confusion of persons, may be frequently met with in +contemporary 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. + +[186] Elizabeth carried her dissimulation 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 marriage 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 magistratus exerceantur per naturales. Neque regina, neque +liberi sui educantur ex regno sine consensu regni, etc. 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 veracious 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, etc., etc. 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. + +[187] The council appear in general to have been as resolute against +tolerating the exercise of the catholic religion in any husband the +queen might choose, as herself. We find, however, that several divines +were consulted on two questions: 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 infant daughter, she would not permit him, though himself a +catholic, to be present at the mass on that occasion. ii. 171. + +[188] "The people," Camden says, "cursed Huic, the queen's physician, 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 everything that +female spite and mistrust could dictate. But in the long and +confidential correspondence of Cecil, Walsingham, and Sir Thomas Smith, +about the queen's marriage with the Duke of Anjou, in 1571, for which +they were evidently most anxious, I do not perceive the slightest +intimation that the prospect of her bearing children 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 marriage with Monsieur she is likely to have +children, _because of his youth_;" as if her age were no objection. + +[189] Camden, after telling us that the queen's disinclination to marry +raised great clamours, and that the Earls of Pembroke and Leicester had +professed their opinion that she ought to be obliged to take a husband, +or that a successor should be declared by act of parliament even against +her will, asserts some time after, as inconsistently as improperly, that +"very few but malcontents and traitors appeared very solicitous in the +business of a successor."--P. 401 (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 puritan. + +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. + +October 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. + +November 12. Messrs. Bell and Monson moved trouble in the parliament +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 Commons' house. + +24. Command given to the parliament not to treat of the succession. + +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 succession established. P. 762. + +[190] 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 Elizabeth's unfeeling +severity. Sorrow killed this poor young woman the next year, who was +never permitted to see her husband again. Strype, i. 391. The Earl of +Hertford underwent a long imprisonment, and continued in obscurity +during Elizabeth's reign; but had some public employments under her +successor. He was twice afterwards 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 faithfulness of an attachment rendered still more sacred by +misfortune and time. Quo desiderio veteres revocavit amores! I shall +revert to the question of this marriage in a subsequent chapter. + +[191] Haynes, 396. + +[192] _Id._ 413; Strype, 410. Hales's treatise in favour of the +authenticity 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. + +[193] 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 predilection for the house of Suffolk. But it was +more probably owing to their knowledge of his integrity and attachment +to his sovereign, which would steadfastly 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 +interest. 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 Suffolk succession, +which Cecil and Bacon favoured. Leicester betrayed his associates to the +queen. It had been intended that Norfolk should accuse the two +counsellors before the Lords, ea ratione ut e senatu regiaque abreptos +ad curiae januas in crucem agi praeciperet, eoque perfecto recte deinceps +ad forum progressus explicaret populo tum hujus facti rationem, tum +successionis etiam regnandi legitimam seriem, si quid forte reginae +humanitus accideret. P. 43. + +[194] D'Ewes, 81. + +[195] Strype, 11, Append. This speech seems to have been made while +Catherine Grey was living; perhaps therefore it was in a former +parliament, for no account that I have seen represents her as having +been alive so late as 1571. + +[196] There was something peculiar 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 England, 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 Throckmorton, the English ambassador in France, bear +continual testimony to the insulting and hostile manner in which Francis +II. and his queen displayed their pretensions to our crown. Forbes's +_State Papers_, vol. i. _passim_. The following is an instance. At the +entrance of the king and queen into Chatelherault, 23rd November 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 Mariae 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 malcontents, 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 instructions; and there +is much reason to believe that he did so. It is remarkable that no +modern French writer that I have seen, Anquetil, Garnier, Lacretelle, or +the editors of the _General Collection of Memoirs_, seem to have been +aware of Elizabeth's secret intrigues with the king of Navarre and other +protestant chiefs in 1559, which these letters, published by Forbes in +1740, demonstrate. + +[197] Burnet, i. Append. 266. Many letters, both of Mary herself and of +her secretary, the famous Maitland 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 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, yet where by a limitation men +had gone about to prevent the providence of God, and shift one into the +place due to another, the offended party could not but seek the redress +thereof."--P. 373. + +[198] A very remarkable letter of the Earl of Sussex, October 22, 1568, +contains these words: "I think surely no end can be made good for +England, except the person of the Scottish queen be detained, by one +means or other, in 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 ability. Yet he afterwards became an +advocate for the Duke of Norfolk's marriage with Mary. Lodge's +_Illustrations_, vol. ii. p. 4. + +[199] 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 suspected to be that disorder. + +[200] Haynes, 580. + +[201] 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 them +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 +passage is worth notice. Haynes, 447. See also Melvil's _Memoirs_, for +the dispositions of an English party towards Mary in 1566. + +[202] Murden's _State Papers_, 134, 180. Norfolk was a very weak man, +the dupe of some very cunning ones. We may observe that his submission, +to the queen (_Id._ 153) is expressed in a style which would now be +thought most pusillanimous in a man of much lower station, yet he died +with great intrepidity. But such was the tone of those times; an +exaggerated hypocrisy prevailed in everything. + +[203] _State Trials_, i. 957. He was interrogated by the queen's counsel +with the most insidious questions. 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 invade the kingdom. There is reason +to suspect that he feigned himself a catholic in order to secure Alva's +assistance. Murden, p. 10. + +[204] 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 their majesty's proceedings in the +cause of religion." Lingard, vii. 54. It was consequently the great +resort of the priests from the Netherlands, 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 +profession of conformity was required in 1569 from all justices of the +peace, which some refused, and others made against their consciences. +_Id._ i. 567. + +[205] Camden has quoted a long passage from Hieronymo Catena's _Life of +Pius V._, published at Rome in 1588, which illustrates the evidence to +the same effect contained in the _Burghley Papers_, and partly adduced +on the Duke of Norfolk's trial. + +[206] Strype, i. 546, 553, 556. + +[207] _Id._ 578; Camden, 428; Lodge, ii. 45. + +[208] Strype, ii. 88; _Life of Smith_, 152. + +[209] 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 apparently 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 England. It seems very unlikely that +Maximilian was concerned in such a league. + +[210] Strype, vol. ii. + +[211] The college of Douay for English refugee priests was established +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 Requesens, while governor of Flanders, 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. + +[212] 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 debate as "a precedent most perilous." 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 +observing 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. + +[213] Strype, ii. 133; D'Ewes, 207. + +[214] Strype, ii. 135. + +[215] _Life of Parker_, 354. + +[216] Strype's _Annals_, ii. 48. + +[217] Murden's _Papers_, p. 43, contain proofs of the increased +discontent among the catholics in consequence of the penal laws. + +[218] 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 puritanical 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 intolerance is well known. "One mass," he +declared in preaching against Mary's private chapel at Holyrood House, +"was more fearful unto him than if ten thousand armed enemies were +landed in any part of the realm, on purpose to suppress the whole +religion." M'Crie's _Life of Knox_, vol. ii. p. 24. In a conversation +with Maitland he asserted most explicitly the duty of putting idolaters +to death. _Id._ p. 120. Nothing can be more sanguinary than the +reformer's spirit in this remarkable interview. St. Dominic could not +have surpassed him. It is strange to see men, professing all the while +our modern creed of charity and toleration, extol these sanguinary +spirits of the sixteenth century. The English puritans, though I cannot +cite any passages so strong as the foregoing, were much the bitterest +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. + +[219] D'Ewes, 161, 177. + +[220] Strype's _Life of Parker_, 354. + +[221] Strype's _Annals_, i. 582. Honest old Strype, who thinks church +and state never in the wrong, calls this "a notable piece of favour." + +[222] _Id._ ii. 110, 408. + +[223] Strype's _Annals_, iii. 127. + +[224] _Life of Whitgift_, 83. See too p. 99, and _Annals of +Reformation_, ii. 631, etc.; also Holingshed, ann. 1574, _ad init._ + +[225] An almost incredible specimen of ungracious behaviour towards a +Roman catholic gentleman is mentioned 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 majesty hath served God +with great zeal and comfortable examples; for by her council two +notorious papists, young Rockwood, the master of Euston Hall, where her +majesty did lie upon Sunday now a fortnight, and one Downes, a +gentleman, 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 the Lovels, another Downes, one Beningfield, one +Parry, and two others not worth memory for badness 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; nevertheless, 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 +chamberlain nobly and gravely understanding that Rockwood was +excommunicated for papistry, called him before him, demanded of him how +he durst presume to attempt her royal presence, he, unfit to accompany +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 he was committed. And to dissyffer [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 gayness, and workmanship, I did never see a +match; and after a sort of country dances ended, in her majesty's sight +the idol was set behind 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 everyone but some one or two who had +sucked of the idol's poisoned milk. + +"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 papists: and the +gentlemen of those parts, being great and hot protestants, almost before +by policy discredited 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 Buxton," etc. +Lodge, ii. 188, 30 August 1578. + +This Topcliffe was the most implacable 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 prevalent spirit, especially among the puritans, +whom Topcliffe favoured. Instances of the ill-treatment experienced by +respectable families (the Fitzherberts and Foljambes), and even aged +ladies, without any other provocation than their recusancy, may be found +in Lodge, ii. 372, 462; iii. 22. But those farthest removed from +puritanism partook sometimes of the same tyrannous spirit. Aylmer, +bishop of London, renowned for his persecution of nonconformists, is +said by Rishton de Schismate, p. 319, to have sent a young catholic lady +to be whipped in Bridewell for refusing to conform. If the authority 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. + +[226] 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. + +[227] Allen's _Admonition to the Nobility and People of England_, +written in 1588, to promote the success of the Armada, is full of gross +lies against the queen. See an analysis of it in Lingard, note B. B. Mr. +Butler fully acknowledges, what indeed the whole tenor of historical +documents for this reign confirms, that Allen and Persons were actively +engaged in endeavouring to dethrone Elizabeth, 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 +argument may be drawn from hence against those who conceive the +political conduct of catholics to be entirely swayed by their priests, +when even in the sixteenth century the efforts of these able men, united +with the head of their church, could produce so little effect. Strype +owns that Allen's book gave offence to many catholics, iii. 560; _Life +of Whitgift_, 505. One Wright of Douay answered a case of conscience, +whether 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 actually 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 laboured attempts +of Dr. Lingard to represent it as perfectly Machiavelian, and without +any motive but wanton malignity, that, with respect to France and Spain, +and even Scotland, it was strictly defensive, 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. + +[228] 23 Eliz. c. 1 and 29 Eliz. c. 6. + +[229] Strype's _Whitgift_, p. 117, and other authorities _passim_. + +[230] Camden, Lingard. Two others suffered at Tyburn not long afterwards +for the same offence. Holingshed, 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. + +[231] Ribadeneira, _Continuatio Sanderi et Rishtoni de Schismate +Anglicano_, p. 111; Philopater, p. 247. This circumstance of Sherwood's +age is not mentioned by Stowe; nor does Dr. Lingard advert 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 Netherlands. + +[232] Strype's _Parker_, 375. + +[233] Strype's _Annals_, ii. 644. + +[234] _State Trials_, i. 1050; from the _Phoenix Britannicus_. + +[235] _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 translation, printed at Macerata in 1585, entitled +"Historia del glorioso martirio di diciotto sacerdoti e un secolare, +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 domando per qual regina egli +pregasse, se per Elisabetta? Al quale rispose, Si, per Elisabetta." Mr. +Butler quotes this tract in English. + +The trials and deaths of Campian 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 particularly p. 488, for the insulting manner in which this +writer describes the pious fortitude of these butchered ecclesiastics. + +[236] Strype, ii. 637; Butler's _Eng. Catholics_, i. 196. The Earl of +Southampton asked Mary's ambassador, 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 remarkable paragraph: "Hinc etiam infert universa +theologorum et jurisconsultorum schola, et est certum et de fide, +quemcunque principem christianum, si a religione catholica manifeste +deflexerit, et alios avocare voluerit, excidere statim omni potestate et +dignitate, ex ipsa vi juris tum divini tum humani, hocque ante omnem +sententiam supremi pastoris ac judicis contra ipsum prolatam; et +subditos quoscunque liberos esse ab omni juramenti obligatione, quod ei +de obedientia tanquam principi legitimo praestitissent, posseque et +debere (si vires habeant) istiusmodi hominem, tanquam apostatam, +haereticum, ac Christi domini desertorem, et inimicum reipublicae suae, +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 divines or +canonists. + +This broad duty, however, of expelling a heretic sovereign, he qualifies +by two conditions; first, that the subjects should have the power, "ut +vires habeant idoneas ad hoc subditi;" secondly, that the heresy be +undeniable. There can, in truth, be no doubt that the allegiance +professed to the queen by the seminary priests and jesuits, and, as far +as their influence extended, 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 watchfulness, but none for extermination. + +[237] 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 regard to civil +liberty than to approve 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 enormous 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 +_Whitgift_, p. 212. + +[238] 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 published in 1586: "Advertissement des catholiques, +Anglois aux Francois catholiques, du danger ou ils sont de perdre leur +religion et d'experimenter, comme en Angleterre, la cruaute des +ministres, s'ils recoivent a la couronne un roy qui soit heretique." It +is in the British Museum. + +One of the attacks on Elizabeth deserves some notice, as it has lately +been revived. In the statute 13 Eliz. an expression is used, "her +majesty, and the natural issue of her body," instead of the more common +legal phrase, "lawful issue." This probably was adopted by the queen out +of prudery, as if the usual term implied the possibility of her having +unlawful issue. But the papistical libellers put the most absurd +interpretation on the word "natural," as if it was meant to secure the +succession for some imaginary bastards by Leicester. And Dr. Lingard is +not ashamed to insinuate the same suspicion. Vol. viii. p. 81, note. +Surely what was congenial to the dark malignity of Persons, and the +blind frenzy of Whitaker, does not become the good sense, I cannot say +the candour, of this writer. + +It is true that some, not prejudiced 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 I must leave to +the reader's judgment. 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 +Hymen. 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 Faunt, an austere puritan, that her court was dissolute, +comparatively at least with the general character of courts; though +neither was it so virtuous as the enthusiasts of the Elizabethan period +suppose. + +[239] _Somers Tracts_, i 189; Strype, iii. 205, 265, 480. Strype says +that he had seen the manuscript of this tract in Lord Burleigh's +handwriting. It was answered by Cardinal Allen, to whom a reply was made +by poor Stubbe, after he had lost his right hand. An Italian translation +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. + +[240] _Somers Tracts_, p. 209. + +[241] _State Trials_, i. 1160. + +[242] _Somers Tracts_, 164. + +[243] Strype, iii. 298. Shelley, though notoriously loyal and frequently +employed by Burleigh, was taken up and examined before the council for +preparing this petition. + +[244] P. 591. Proofs of the text are too numerous for quotation, and +occur continually to a reader of Strype's 2nd and 3rd volumes. In vol. +iii. Append. 158, we have a letter to the queen from one Antony Tyrrel, +a priest, who seems to have acted as an informer, wherein he declares +all his accusations of catholics to be false. This man had formerly +professed himself a protestant, and returned afterwards 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 accusations he had given +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 become their dupes, and end by the most violent +injustice and tyranny. + +[245] The rich catholics compounded for their recusancy by annual +payments, which were of some consideration in the queen's rather scanty +revenue. A list of such recusants, and of the annual fines paid by them +in 1594, is published in Strype, iv. 197, but is plainly very imperfect. +The total was L3323 1_s_. 10_d_. A few paid as much as L140 per annum. +The average seems, however, to have been about L20. Vol. iii. Append. +153; see also p. 258. Probably these compositions, though oppressive, +were not quite so serious as the catholics pretended. + +[246] Parry seems to have been privately reconciled to the church of +Rome about 1580; after which he continued to correspond with Cecil, but +generally recommending some catholics to mercy. He says, in one letter, +that a book printed at Rome, _De Persecutione Anglicana_, had raised a +barbarous opinion of our cruelty; and that he could wish that in those +cases it might please her majesty to pardon the dismembering and +drawing. Strype, iii. 260. He sat afterwards in the parliament of 1584, +taking, of course, the oath of supremacy, 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 scaffold) 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 Elizabeth, though he will not confess any +particular instance. "There exist," he says, "in the archives at +Simancas several notices of such offers."--P. 384. + +[247] It might be inferred from some authorities that the catholics had +become in a great degree disaffected to the queen about 1584, in +consequence of the extreme rigour practised against them. In a memoir of +one Crichton, a Scots jesuit, intended to show the easiness 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 alteration 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 Persons 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 severe imprisonment and other ill-treatment. +Strype, iii. 412, and Append. 151. Rishton and Ribadeneira bear +testimony that the persecution had rendered the laity more zealous and +sincere. De Schismate, l. iii. 320, and l. iv. 53. + +Yet to all this we may oppose their good conduct in the year of the +Spanish Armada, and in general during the queen's reign; which 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 admitted, 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 liberty of +conscience. + +[248] _State Trials_, i. 1162. + +[249] 27 Eliz. c. i. + +[250] 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 assistance to the cause, for +the which I pray daily."--P. 530. In her answer 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. + +[251] 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 genuine, which +cannot perhaps be justly questioned (though it is so in the _Biog. +Brit._ art. WALSINGHAM, note O), it will be difficult to give him credit +for any scrupulousness with respect to Mary. But, without entirely +justifying this letter, it is proper to remark, what the Marian party +choose to overlook, that it was written after the sentence, during the +queen's odious scenes of grimace, 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 Elizabeth'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. + +[252] Questions were put to civilians by the queen's order in 1570, +concerning the extent of Lesley, Bishop of Ross's privilege, as Mary's +ambassador. _Murden Papers_, p. 18; _Somers Tracts_, i. 186. They +answered, 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 another substituted in his stead, the agent of +such a prince cannot challenge the privileges of an ambassador; since +none but absolute princes, and such as enjoy a royal prerogative, can +constitute ambassadors. These questions are so far curious, that they +show the _jus gentium_ to have been already reckoned in matter of +science, in which a particular class of lawyers was conversant. + +[253] Strype, 360, 362. Civilians were consulted about the legality of +trying Mary. _Idem_, Append. 138. + +[254] Butler's _English Catholics_, i. 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 +seminary 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 catholic 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 religion, 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 catholics, generally speaking, +in command. Sir William Stanley's recent treachery in giving up Deventer +to the Spaniards made it unreasonable for them to complain of exclusion +from trust. Nor do I know that they did so. But trust and toleration are +two different things. And even with respect 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. + +[255] Strype, vols. iii. and iv. _passim_; _Life of Whitgift_, 401, 505; +Murden, 667; Birch's _Memoirs of Elizabeth_, Lingard, etc. One hundred +and ten catholics suffered death between 1588 and 1603. Lingard, 513. + +[256] 33 Eliz. c. 2. + +[257] Camden, 566; Strype, iv. 56. This was the declaration of October +1591, which Andreas Philopater 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 ascendency. + +[258] Butler, 178. In Coke's famous 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 performed 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 gentleman 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 memorial among Lord Burleigh's papers, +written about 1586, it is recommended 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 Bacon, in his +observations on a libel written against Lord Burleigh in 1592, does not +deny the "bowellings" of catholics; but makes a sort of apology for it, +as "less cruel than the wheel or forcipation, or even simple burning." +Bacon's Works, vol. i. p. 534. + +[259] Burnet, ii. 418. + +[260] "Though no papists were in this reign put to death purely on +account of their religion, as numberless protestants had been in the +woeful 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 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 rebellion or conspiracy against the +government. If a statute is made, by which the celebration of certain +religious rites is subjected to the same penalties as rebellion or +conspiracy, would any man, free from prejudice, and not designing to +impose upon the uninformed, speak of persons convicted on such a statute +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 anything +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 depose her. But +the only evidence, so far as we know or have reason to suspect, that +could be brought against them, was their own admission, at least by +refusing to abjure it, of the pope's power to depose heretical princes. +I suppose it is unnecessary to prove that, without some overt act to +show a design of acting upon this principle, it could not fall within +the statute. + +[261] Watson's _Quodlibets_. True relation of the faction begun at +Wisbech, 1601. These tracts contain rather an uninteresting account of +the squabbles in Wisbech castle among the prisoners, but cast heavy +reproaches on the jesuits, as the "firebrands 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 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. + +[262] Rymer, xv. 473, 488. + +[263] Butler's _Engl. Catholics_, p. 261. + +[264] Ribadeneira says, that Hatton, "animo Catholicus, nihil perinde +quam innocentem illorum sanguinem adeo crudeliter perfundi dolebat." He +prevented Cecil from promulgating a more atrocious edict than any other, +which was published 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 conformity they should not be +well assured. + +[265] Birch, i. 84. + + + + +CHAPTER IV + +ON THE LAWS OF ELIZABETH'S REIGN RESPECTING PROTESTANT NONCONFORMISTS + + +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 prohibiting 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 involved 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. + +_Origin of the differences among the English protestants._--I have in +another place slightly mentioned the differences that began to spring up +under Edward VI. between the moderate reformers who established the new +Anglican church, and those who accused them of proceeding with too much +forbearance 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, intent on his +own system of dogmatic theology, had shown much indifference about +retrenching exterior 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.[266] Crucifixes and +images, tapers and priestly vestments, even for a time the elevation of +the host and the Latin mass-book, continued in the Lutheran churches; +while the disciples of Zuingle and Calvin were carefully eradicating +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 between 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, or because it was natural in the heat of +religious animosity to recede as far as possible, especially in such +exterior distinctions, from the opposite denomination. The death of +Edward seems to have prevented a further approach to the scheme of +Geneva in our ceremonies, and perhaps in our discipline. During the +persecution of Mary's reign, the most eminent protestant clergymen took +refuge in various cities of Germany and Switzerland. 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.[267] 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 disturbances 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 succeeded (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 recalled 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.[268] + +_Religious inclinations of the queen._--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 reformers had +not reckoned. Elizabeth, though resolute against submitting to the +papal supremacy, was not so averse to all the tenets abjured by +protestants, 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 reproved a divine who +preached against the real presence, and is even said to have used +prayers to the Virgin.[269] But her great struggle with the reformers +was about images, and particularly the crucifix, which she retained, +with lighted tapers before it, in her chapel; though in the injunctions +to the ecclesiastical visitors of 1559, they are directed to have them +taken away from churches.[270] This concession 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.[271] +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.[272] The crucifix was +even for a time removed from her own chapel, but replaced about +1570.[273] + +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 question. This was the 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.[274] +Accordingly, the bishops and clergy, though they married by connivance, +or rather by an ungracious permission,[275] saw, with very just +dissatisfaction, their children treated by the law as the offspring of +concubinage.[276] This continued, in legal strictness, till the first +year of James, when the statute of Mary was explicitly repealed; though +I cannot help suspecting that clerical marriages had been 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 between the sexes, which formed one of +the singularities of her character. + +Such a reluctance as the queen displayed to return 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.[277] They +disliked some other ceremonies for the same reason. These objections +were by no means confined, as is perpetually insinuated, to a few +discontented persons. Except Archbishop Parker, who had remained in +England during the late reign, and Cox, Bishop of Ely, who had taken a +strong part at Frankfort against innovation, all the most eminent +churchmen, such as Jewel, Grindal, Sandys, Nowell, were in favour of +leaving off the surplice and what were called the popish +ceremonies.[278] 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 establishment is ascribed. +Had her influence been withdrawn, 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 proceedings of the +convocation in 1562, when a proposition to abolish most of the usages +deemed objectionable was lost only by a vote, the numbers being 59 to +58.[279] + +In thus restraining the ardent zeal of reformation, Elizabeth may not +have been guided merely by her own prejudices, without far higher +motives of prudence and even of equity. It is difficult to pronounce in +what proportion the two conflicting 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 +ecclesiastical visitors of 1559 complain of any resistance, or even +unwillingness, among the people.[280] 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 +associations. It might be thought perhaps not very repugnant to wisdom +or to charity, that such persons should be won over to the reformed +faith by retaining a few indifferent usages, which gratified their eyes, +and took off the impression, so unpleasing to simple minds, of religious +innovation. It 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 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 compromise between two +intolerant and exclusive sects were perhaps insuperable. In maintaining +or altering 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 +receding 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 discontent that so soon endangered the new establishment. +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 discretion, 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 can at best only retard the progress +of that intrinsic decay which seems to be the law of all things human, +and through which every institution of man, like his earthly frame, must +one day crumble into ruin. + +_Unwillingness to comply with the established ceremonies._--The +repugnance felt by a large part of the protestant clergy to the +ceremonies with which Elizabeth would not consent to dispense, showed +itself in irregular transgressions of the uniformity prescribed 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 baptized 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 malcontents, insulted +such of the clergy as observed the prescribed order.[281] Many of the +bishops readily connived at deviations from ceremonies which they +disapproved. Some, who felt little objection to their use, were against +imposing them as necessary.[282] And this opinion, which led to very +momentous inferences, began so much to prevail, that we soon find the +objections to conformity 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 supremacy vested in the queen, of which fairest +flower of her prerogative she was abundantly tenacious. One thing was +evident, that the puritan malcontents 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 prevented 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 +distinguished 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, irritated 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.[283] 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 reconcile the +whole of his conduct to this supposition; and in the copious memorials +of Strype, we find the archbishop rather exciting the queen to rigorous +measures against the puritans than standing in need of her +admonition.[284] + +_Conformity enforced by the archbishop against the disposition of +others._--The unsettled state of exterior religion which has been +mentioned lasted till 1565. In the beginning of that year a +determination was taken by 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_, containing orders and regulations for +the discipline of the clergy. This modest title was taken in consequence +of the queen's withholding her sanction of its appearance through +Leicester's influence.[285] The primate's next step was to summon before +the ecclesiastical commission Sampson, Dean of Christchurch, 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 refusing to wear the customary habits, Sampson was +deprived of his deanery; but the other seems to have been +tolerated.[286] This instance of severity, as commonly happens, rather +irritated than intimidated 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, peremptorily requiring conformity in the use of the +clerical 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 sequestration. But these +unfortunately, as was the case in all this reign, were the most +conspicuous, both for their general character and for their talent in +preaching.[287] + +Whatever deviations from uniformity existed within the pale of the +Anglican church, no attempt 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 repugnance, as not only +to observe the ceremonies of the church, but, in some instances, to +employ compulsion towards others.[288] A more unexceptionable, because +more disinterested, judgment was pronounced by some of the Swiss +reformers to whom our own paid great respect--Beza, Gualter, and +Bullinger; who, while they regretted the continuance of a few +superfluous rites, and still more the severity used towards good men, +dissuaded their friends from deserting their vocation on that account. +Several of the most respectable opponents of the ceremonies were equally +adverse to any open schism.[289] But the animosities springing from +heated zeal, and the smart of what seemed oppression, would not suffer +the English puritans generally to acquiesce in such temperate counsels. +They began to form separate conventicles in London, not ostentatiously +indeed, but of course without the possibility of eluding notice. It was +doubtless 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 considerations derived +from the posture of religion and of the state, which might induce +cool-headed men to doubt the expediency of too much straightening 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 imperious humour of Parker, and that total disregard of the rights +of conscience which was common to all parties in the sixteenth century. +The first instance 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.[290] They behaved on their examination with a +rudeness as well as self-sufficiency, that had already begun to +characterise 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 London and Archbishops of York, were +naturally reckoned 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.[291] 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, Huntingdon, and +Warwick, regarded as the steadiest protestants among the aristocracy, +the wise and grave Lord Keeper Bacon, the sagacious Walsingham, the +experienced Sadler, the zealous Knollys, considered these objects of +Parker's severity, either as demanding a purer worship than had been +established in the church, or at least as worthy by their virtues and +services of more indulgent treatment.[292] Cecil himself, though on +intimate terms with the archbishop, and concurring generally in his +measures, 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 towards 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.[293] Such a deficiency of protestant +clergy 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.[294] 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.[295] Of the two universities, +Oxford had become so strongly attached to the Romish side during the +late reign, that, after the desertion or expulsion of the most zealous +of that party had almost emptied several colleges, it still for many +years abounded with adherents to the old religion.[296] But at +Cambridge, which had been equally popish at the queen's accession, the +opposite faction soon acquired the ascendant. The younger students, +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.[297] + +_A more determined opposition, about 1570, led by Cartwright._--The +first period in the history of puritanism includes the time from the +queen's accession to 1570, during which the retention of superstitious +ceremonies in the church had been the sole avowed ground of complaint. +But when these obnoxious rites came to be enforced with unsparing +rigour, and even those who voluntarily renounced the temporal advantages +of the establishment were hunted from their private conventicles, they +began to consider 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 Cambridge. He began about 1570 to inculcate the 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 inflexible self-confidence, +a vigorous, rude, and arrogant style, marked him as the formidable +leader of a religious faction.[298] In 1572 he published his celebrated +_Admonition to the Parliament_, calling on that assembly to reform the +various abuses subsisting in the church. In this treatise, such a hardy +spirit of innovation was displayed, and schemes 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 concessions had been suffered to pass away; the +archbishops' intolerant temper had taught men to question 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 throwing 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 supremacy, 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 during +the king's pleasure; and Cranmer had prostrated 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 asserting 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 +independence, 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 determiner; nor has he such authority +as that, without his consent, it should not be lawful for ecclesiastical +persons to make any church orders or ceremonies. Church matters ought +ordinarily to be handled by church officers. The principal direction 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 ordain 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 +no spiritual jurisdiction."[299] "It must be remembered," he says in +another place, "that civil magistrates 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."[300] It +is difficult to believe that I am transcribing the words of a +protestant writer; so much does this passage call to mind those tones of +infatuated arrogance, which had been heard from the lips of Gregory VII. +and of those who trod in his footsteps.[301] + +The strength of the protestant party had been derived, both in Germany +and in England, far less from their superiority in argument, however +decisive this might be, than from that desire which all classes, and +especially the higher, had long experienced to emancipate themselves +from the thraldom 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 therefore rather alarming +to such as had an acquaintance with ecclesiastical history, and knew the +encroachments 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 arrogance +at work, which had imposed a yoke on the necks of their fathers. With +whatever plausibility it might be maintained that a connection with +temporal magistrates could only corrupt the purity and shackle the +liberties of a Christian church, this argument 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 members; and while they disdained +to accept the prince's co-operation as their ally, claimed his service +as their minister. The protestant dissenters since the revolution, who +have almost unanimously, and, I doubt not, sincerely, declared their +averseness 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 whole ecclesiastical polity, to place the +different professions of religion on an equal footing, but to 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.[302] + +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 Cartwright, or +desired to take away the legal supremacy of the Crown.[303] 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 +ecclesiastical 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 ancient 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 +commonly make a numerical majority, and are counted along with the +dominant religion.[304] But by the 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 +betraying 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 counterbalance. + +_Puritans supported in the Commons._--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 retrenchment 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 +dispensation, which had occasioned so much clamour in former ages, +instead of being abolished or even reduced into bounds at the +reformation, had been 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 protestant church of England, that she retained all the +dispensations, the exemptions, the pluralities, which had been deemed +the peculiar corruptions of the worst times of popery.[305] In the reign +of 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 accordingly +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 ecclesiastical tribunals have +been always compelled to borrow a great part of their principles from +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 increasing 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 interference put a stop to this measure.[306] + +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 having undergone some +alteration, were finally reduced to their present form by the +convocation of 1562. But it seems to have been thought necessary that +they should have the sanction of parliament, 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 however 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 opposition was +strong enough to withhold the approbation of the legislature from this +part of the national symbol. The act of 13 Eliz. c. 12, accordingly +enacts, that every priest or minister shall 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_, etc. That the word _only_ +was inserted for the sake of excluding the articles which established +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," he says, "among others, the last parliament sent 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, 'because 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."[307] 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 centuries since so incessantly repeated, are here +curiously brought into contrast. As to the reservation itself, obliquely +insinuated rather than expressed in this statute, it proved of little +practical importance, the bishops having always exacted a subscription +to the whole thirty-nine articles.[308] + +It was not to be expected that the haughty 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 dissatisfied subjects of the church, were +become her downright rebels, with whom it was hardly practicable to make +any compromise that would avoid a schism, except by sacrificing the +splendour and jurisdiction of an established hierarchy. The archbishop +continued, therefore, to harass the puritan ministers, suppressing their +books, silencing them in churches, prosecuting them in private +meetings.[309] Sandys and Grindal, the moderate reformers of our +spiritual aristocracy, not only withdrew 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 +refusal to conform.[310] Strange that these prelates should not have +remembered their own magnanimous readiness to encounter suffering for +conscience sake in the days of Mary, or should have fondly arrogated to +their particular church that elastic force of resolution, which disdains +to acknowledge 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 +undoubtedly 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 succession. 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 religion, and respectable to a large proportion of the rest. +But deeming, as they did, that queen a convicted adulteress and +murderer, the determined enemy of their faith, and conscious that she +could never forgive those who had counselled her detention 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 pusillanimity of the multitude, and the specious pretext 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, +uncompromising spirit of puritanism; congenial to that of the Scottish +reformers, by whose aid the lords of the congregation had overthrown the +ancient religion 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 +ceremonies, 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 withstand idolatry. Nor had the puritans admitted, even in +theory, those extravagant notions of passive obedience which the church +of England had thought fit to mingle with her homilies. While the +victory was yet so uncertain, while contingencies 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 separate from the +church on account of them; and again, when the schism had already +ensued, thwarted as far as his credit in the council extended, that +harsh intolerance of the bishops which aggravated its mischiefs.[311] + +We should reason in as confined a manner as the puritans themselves, by +looking only at the captious frivolousness of their scruples, and +treating their sect either as wholly contemptible or as absolutely +mischievous. We do injustice to these wise counsellors of the maiden +queen, when we condemn, I do not mean on the maxims only of toleration, +but of civil prudence, their unwillingness 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 possess a well-instructed +pious clergy, able to contend against popery, than it was an evil to let +some prejudices 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 advantages +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 striking 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 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 passiveness among the people, a humble trust in authority, +however desirable in the eyes of churchmen, 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. + +_Prophecyings._--A matter very much connected with the present 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 prophecyings. 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 +determination upon it. These discussions were in public; and it was +contended that this sifting of the grounds of their faith, and habitual +argumentation, 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 unlikely that the +prophecyings 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 mankind, 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 these +exercises, so long as nothing 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 prophecyings were now put down.[312] + +Though many will be of opinion that Parker took a statesmanlike 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. Sandys' name +appears to the above-mentioned letter of the council to Parkhurst. Cox, +also, was inclined to favour the prophecyings. 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 respect 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 middle course, and insisted both that the prophecyings should +be discontinued, and that fewer licences for preaching should be +granted. For no parish priest could without a licence preach any +discourse except the regular homilies; and this was one of the points of +contention with the puritans. Grindal 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 prophecyings, which were never afterwards +renewed.[313] + +_Whitgift._--Whitgift, Bishop of Worcester, a person of a very opposite +disposition, was promoted, in 1583, to the primacy, on Grindal's +decease. He had distinguished himself some years before by an answer to +Cartwright's _Admonition_, written with much ability, but not falling +short of the work it undertook to confute in rudeness and asperity.[314] +It is seldom good policy to confer such eminent stations 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 disputes wherein they have been +engaged, and to turn whatever authority the laws or the influence of +their place may give them against their adversaries. 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 earnest of the rigour he had +determined to adopt, by promulgating articles for the observance of +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 the truth of the whole +thirty-nine articles, exacted from every minister of the church.[315] +These indeed were so far from novelties, that it might seem rather +supererogatory to demand them (if in fact the law required subscription +to all the articles); 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 +archbishop's peremptory requisition passed, perhaps justly, for an +illegal stretch of power.[316] It encountered the resistance of men +pertinaciously attached 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 +dissenters. The kingdom resounded with the clamour of those who were +suspended or deprived of their benefices, and of their numerous +abettors.[317] They appealed from the archbishop to the privy council. +The gentry of Kent and other countries strongly interposed in their +behalf. They had powerful friends at court, especially Knollys, who +wrote a warm letter to the archbishop.[318] But, secure 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. + +_High commission court._--The Act of Supremacy, while it restored all +ecclesiastical jurisdiction to the Crown, empowered 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 cognisance and are subject to the correction 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 +misdemeanours 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 +talk, slanderous words and sayings, etc., 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 heresies and schisms according to +law; to deprive all beneficed persons holding any doctrine contrary to +the thirty-nine articles; to punish incests, adulteries, 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 imprisonment; 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.[319] + +Master of such tremendous machinery, the archbishop 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.[320] 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 Burleigh averse to severity._--Lord Burleigh, who, though at first +rather friendly to Whitgift, was soon disgusted by his intolerant and +arbitrary behaviour, wrote in strong terms of remonstrance 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 alleging reasons in behalf of the mode of examination, but +very frivolous, and such as a man determined to persevere in an +unwarrantable course of action may commonly find.[321] 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.[322] But the extensive jurisdiction improvidently granted to +the ecclesiastical commissioners, and which the queen was not at all +likely to recall, placed Whitgift beyond the control of the temporal +administration. + +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;[323] but especially Aylmer of London, who has left a worse name +in this respect than any prelate of Elizabeth's reign.[324] The violence +of Aylmer's temper was not redeemed by many virtues; it is impossible to +exonerate his character from the imputations of covetousness and of +plundering the revenues of his see; faults very prevalent among the +bishops of that period. The privy council wrote sometimes to expostulate +with Aylmer, in a tone which could hardly have been employed 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, Leicester, 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 Benison a small living, or to +let him take his action at law. The result does not appear; but probably +the bishop did not yield.[325] He had worse success in an information +laid against him for felling his woods, which ended not only in an +injunction, but a sharp reprimand from Cecil in the star-chamber.[326] + +What Lord Burleigh thought of these proceedings may be seen in the +memorial to the queen on matters 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. Protesting 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 dangerous 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 consisted all her force, strength, and power, there was so great +a heart-burning and division; and secondly, "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 lessening and +diminishing the papistical numbers."[327] But this great minister's +knowledge of the queen's temper, 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 appliable to her majesty's +princely resolutions, endeavouring always after faithful propositions +and remonstrances, and these in the best words and the most grateful +manner, to rest upon such conclusions as her majesty in her own wisdom +determineth, and them to execute to the best; so far hath he been from +contestation, or drawing her majesty into any of his own courses."[328] +Statesmen who betray 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.[329] 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.[330] +From such a disposition we could not expect any decided resistance to +those measures of severity towards the puritans which fell in so +entirely with Elizabeth's temper. + +There is no middle course, in dealing with religious sectaries, between +the persecution that exterminates, and the toleration that satisfies. +They were wise in their generation, the Loaisas and Valdes of Spain, who +kindled the fires of the inquisition, 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 puritan minister set at nought the vexatious and arrogant +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 controversies 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 +accounted holy zeal in the mitred Bale and martyred Latimer, might plead +some apology from example in the aggrieved puritan. Pamphlets, chiefly +anonymous, were rapidly circulated throughout the kingdom, 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 movable press, shifted to different parts of the country as +the pursuit grew hot, and contained little serious argument, but the +unwarrantable invectives of angry men, who stuck at no calumny to +blacken their enemies.[331] If these insults upon authority are apt +sometimes to shock us even now, when long usage has rendered such +licentiousness of seditious 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 +addressing 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.[332] +This act, by one of those strained constructions 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.[333] Udal, a puritan minister, fell into the grasp of the +same statute for an alleged libel on the bishops, which had surely a +very indirect reference to the queen's administration. 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 received to convict him. So far +from being concerned 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.[334] + +_Attempt to set up a Presbyterian 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 common 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 associations 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.[335] It would be unjust to censure 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 several of his sect were +summoned before the ecclesiastical 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 to inflict any heavier judgment, it was thought fit the next +year to remove the proceedings into the court of star-chamber. The +judges, on being consulted, 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.[336] It may be observed that Cartwright explicitly +declared his disapprobation of the libels under the name of Martin +Mar-prelate.[337] Every political party, however honourable may be its +objects and character, is liable to be disgraced by the association of +such unscrupulous zealots. But, though it is an uncandid sophism to +charge the leaders with the excesses they profess to disapprove in their +followers, it must be confessed that few chiefs of faction have had the +virtue to condemn with sufficient 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 subversion 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 supremacy, carried to such lengths as I +have shown above, might justly be considered as a derogation of her +temporal sovereignty. Many of them asserted 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), adulterers, witches +and demoniacs, sabbath-breakers, and several other classes of offenders, +to death.[338] 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 general suffrage.[339] There are even passages in +Cartwright's Admonition, which intimate that the commonwealth ought to +be fashioned after the model of the church.[340] But these it would not +be candid to press against the more explicit declarations of all the +puritans in favour of a limited monarchy, though they grounded its +legitimacy on the republican principles of popular consent.[341] 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 +imprisoned ministers even acknowledging the queen's supremacy in as full +a manner as the law conferred it on her, and as she professed to claim +it.[342] + +The pretensions advanced by the school of Cartwright did not seem the +less dangerous to those who cast their eyes upon what was passing in +Scotland, where they received a practical illustration. In that kingdom, +a form of polity very nearly conforming to the puritanical platform had +become established at the reformation of 1560; except that the office of +bishop or superintendent still continued, 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, +individually 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 connection itself had probably given her such an +insight into their temper as well as their influence, that she must have +shuddered at the thought of seeing a republican 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. + +_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 Commons 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, according to the +irregular and imperfect course of parliamentary 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, and other things very hurtful to the +church."[343] 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 +accordingly been done, and a gracious answer, promising all convenient +reformation, by laying the blame of remissness upon some prelates, had +been received. This the house took with great thankfulness. 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 subscription to the three new articles, the abuses of +excommunication, 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 unnecessary, and that +others of them were already provided for; and that the uniformity of the +common prayer, the use of which the Commons had requested to leave in +certain respects to the minister's discretion, had been established by +parliament. The two archbishops, Whitgift and Sandys, made a more +particular answer to each article of the petition, in the name of their +brethren.[344] But, in order to show some willingness towards +reformation, they proposed themselves in convocation 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;[345] +the queen in fact maintaining an insuperable jealousy of all +intermeddling on the part 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 hierarchy in complaints of ecclesiastical +grievances, and measures to redress them; as to which, even with the low +notions of parliamentary right prevailing 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 assembly, 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. Another went to restrain +pluralities, as to which the prelates would very reluctantly admit of +any limitation.[346] A bill of the same nature passed the Commons in +1589, though not without some opposition. The clergy took so great alarm +at this measure, that the convocation addressed the queen in vehement +language against it; and the archbishop throwing all the weight of his +advice and authority into the same scale, the bill expired in the upper +house.[347] A similar proposition in the session of 1601 seems to have +miscarried in the Commons.[348] In the next chapter will be found other +instances of the Commons' reforming temper in ecclesiastical concerns, +and the queen's determined 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, attorney of the court of wards, not only +attacked its legality with arguments of no slight force, but introduced +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 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.[349] +But the judges, who found as much gratification in exerting 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 +prohibition. Nor did other abuses imputed to these obnoxious judicatures +fail to provoke censure, such as the unreasonable fees of their +officers, and the usage of granting licences, and commuting penances for +money.[350] The ecclesiastical courts indeed have generally been +reckoned more dilatory, vexatious, and expensive than those of the +common law. But in the present age that part of their jurisdiction, +which, though coercive, is professedly spiritual, and wherein the +greatest abuses have been alleged to exist, has gone very much into +disuse. In matrimonial and testamentary causes, their course of +proceeding may not be open to any censure, so far as the essential +administration of justice is concerned; though in the latter of these, a +most inconvenient 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. + +_Independents liable to severe laws._--Notwithstanding the tendency +towards puritanism which the House of Commons generally displayed, the +court succeeded in procuring an act, which eventually pressed with very +great severity upon that class. This passed in 1593, and enacted the +penalty of imprisonment against any person above the age of sixteen, who +should forbear for the space of a month to repair to some church, until +he should make such open submission and declaration of conformity as the +act appoints. Those who refused to submit to these conditions were to +abjure the realm, and if they should return without the queen's licence, +to suffer death as felons.[351] As this, on the one hand, like so many +former statutes, helped to crush the unfortunate adherents to the Romish +faith, so too did it bear an obvious application to such protestant +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.[352] The real separatists, 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 consequence still +more proper subjects for persecution. Multitudes of them fled to Holland +from the rigour of the bishops in enforcing this statute.[353] But two +of this persuasion, Barrow and Greenwood, experienced a still severer +fate. They were indicted on that perilous law of the 23rd of the queen, +mentioned 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.[354] + +_Hooker's "Ecclesiastical Polity." Its character._--But, while these +scenes of pride and persecution 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 Temple, published the first four books of his +_Ecclesiastical Polity_ in 1594; the fifth three years afterwards; and +dying in 1600, left behind three which did not see the light till 1647. +This eminent work may justly be reckoned to mark an aera in our +literature. For if passages of much good sense and even of a vigorous +eloquence are scattered 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 sixteenth century, had given few proofs in literature of that +intellectual 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 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 +admirably 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 Legibus, 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 sentiment. 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 matters of temporal policy, +much more would they deem the practice of the apostles an unerring and +immutable rule for the discipline of the Christian church.[355] To +encounter these adversaries, 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 concerning religion, could not be found to have its +authority, 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 scheme of +church government, and to the various ceremonies or usages which those +sectaries treated as either absolutely superstitious, or at least as +impositions without authority. It was maintained by this great writer, +not only that ritual observances are variable according to the +discretion of ecclesiastical rulers, but that no certain form of polity +is set down in scripture as generally indispensable 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 congregations. "If we +did seek," he says, "to maintain 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 scripture 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 principles he +had laid down as to its nature in the first 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 terseness or lucidity, which long habits of literary +warfare, and perhaps a natural turn of mind, have given to some expert +dialecticians. In respect of language, the three posthumous books, +partly from having never received the author's last touches, and partly, +perhaps, from his weariness of the labour, are beyond comparison less +elegantly written than the preceding. + +The better parts of the _Ecclesiastical Polity_ bear a resemblance to +the philosophical writings of antiquity, in their defects as well as +their excellencies. 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 original impulse of his own mind; somewhat also impeded, +like many other great men of that and the succeeding century, by too +much acquaintance with books, and too much deference for their authors. +It may be justly objected to some passages, that they elevate +ecclesiastical authority, even in matters of belief, with an +exaggeration not easily reconciled to the protestant right of private +judgment, and even of dangerous consequence in those 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.[356] 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 rendered 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, displayed in the dark precepts of Machiavel, +or lurking in the desultory sallies of Montaigne, and not always +rejected by writers of more apparent seriousness, threatened to destroy +the sense of intrinsic 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 almost 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 manifestation of this their +right, and men's more peaceable 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 +personally 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 tyranny. Laws they are not, therefore, which public +approbation hath not made so. But approbation 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 our 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 societies, 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.[357] For this surmise, however, I am persuaded that there is +no foundation. The three latter books are doubtless imperfect, and it is +possible that verbal changes may have been made by 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 consecutive 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 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 +sophistical interpretations by which it is usual to evade its meaning. +It will be more satisfactory and important 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. "I cannot choose," he says, "but commend +highly their wisdom, by whom the foundation of the commonwealth 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 particular 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 accomplished 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 principles in a writer of any later age, when +they had been openly sustained in the councils of the nation. But as the +reigns of the Tudor family were so inauspicious to liberty that some +have been apt to imagine its recollection to have been almost effaced, +it becomes of more importance to show that absolute 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 authority, 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 suspect 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. + +_Spoliation of church revenues._--The prelates of the English church, +while they inflicted so many severities on others, had not always cause +to exult in their own condition. From the time when Henry taught his +courtiers to revel in the spoil of monasteries, there had been a +perpetual appetite for ecclesiastical possessions. Endowed by a prodigal +superstition with pomp and wealth beyond all reasonable measure, and far +beyond 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.[358] 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.[359] 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.[360] But +an unfortunate reservation was introduced in favour of the Crown. 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 Walsingham, 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. Thus Cecil +surrounded his mansion-house at Burleigh 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.[361] This bishop, in +consequence of such vexations, was desirous of retiring 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.[362] These transactions denote +the mercenary and rapacious spirit which leavened almost all Elizabeth's +courtiers. + +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 of the +reformation are apt to conceive. In the plunder that went forward, they +took good care of themselves. Charges against them of simony, +corruption, covetousness, and especially destruction of their church +estates for the benefit of their families, are very common--sometimes no +doubt unjust, but too frequent to be absolutely without foundation.[363] +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 +example.[364] 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.[365] 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 Elizabeth in circumstances that +demanded applause for the policy of her rulers. After forty years of +constantly aggravated molestation of the nonconforming 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 +opinionated a class of sectaries could have been managed; nor are we +perhaps, at this distance of time, altogether competent to decide upon +the fittest course of policy in that respect.[366] But it is manifest +that the obstinacy 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 +tenaciousness 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, this +policy had lost a great deal of its application; or rather the same +principle of policy would have dictated numerous concessions in order to +satisfy 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 disinterestedness 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 produced. 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. + +_General remarks._--I am very sensible that such freedom as I have 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 +liberal 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 "Advertisement +touching the Controversies of the Church of England;" a treatise written +under Elizabeth, in that tone of dispassionate philosophy which the +precepts of Burleigh sown in his own deep and fertile mind had taught +him to apply. 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 +puritan teachers, their indecent and libellous style of writing, their +affected imitation of foreign churches, their extravagance of receding +from everything formerly practised, he animadverts with no less +plainness on the faults of the episcopal 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.[367] + +_Letter of Walsingham in defence of the queen's government._--Yet that +we may not deprive this great queen's administration, in what concerned +her dealings 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.[368] It is a very able 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 circumstances +of the writer, an advocate whose sovereign was his client. + +FOOTNOTES: + +[266] Sleidan, _Hist. de la Reformation_ (par Courayer), ii. 74. + +[267] Strype's _Cranmer_, 354. + +[268] 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 written, though with an avowed bias towards the +puritan party. Whatever we read in any historian on the subject, is +derived from this authority; but the refraction is of course very +different through the pages of Collier and of Neal. + +[269] 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 joining 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 volume, throw +considerable light on the first two years of Elizabeth's reign; and show +that famous prelate to have been what afterwards would have been called +a precisian or puritan. He even approved a scruple Elizabeth entertained +about her title of head of the church, as appertaining only to Christ. +But the unreasonableness 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. + +[270] Roods and relics accordingly were broken to pieces and burned +throughout the kingdom, of which Collier makes loud complaint. This, +Strype says, gave much offence to the catholics; and it was not the most +obvious method of inducing them to conform. + +[271] Burnet, iii. Appendix, 290; Strype's _Parker_, 46. + +[272] Quantum auguror, non scribam ad te posthac episcopus. Eo enim jam +res pervenit, ut aut cruces argenteae et stanneae, quas nos ubique +confregimus, restituendae sint, aut episcopatus relinquendi. Burnet, 294. +Sandys writes, that he had nearly been deprived for expressing himself +warmly against images. _Id._ 296. Other proofs of the text may be found +in the same collection, as well as in Strype's _Annals_, and his _Life +of Parker_. Even Parker seems, on one occasion, to have expected the +queen to make such a retrograde movement in religion as would compel +them all to disobey her. _Life of Parker_, Appendix, 29; a very +remarkable letter. + +[273] 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. + +[274] Burnet, ii. 395. + +[275] 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 +without the allowance of the bishops, and two justices of the peace, +dwelling near the woman's abode, nor without the consent of her parents +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 commissioners 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 released from the +obligation to celibacy, many of them would abuse their liberty +improvidently, or even scandalously; and this probably had increased +Elizabeth's prejudice against clerical matrimony. But I do not suppose +that this injunction was ever much regarded. Some time afterwards (Aug. +1561) she put forth another extraordinary injunction, that no member of +a college or cathedral should have his wife living within its precincts, +under pain of forfeiting all his preferments. Cecil sent this to Parker, +telling him at the same time that it was with great difficulty he had +prevented the queen from altogether forbidding the marriage of priests. +_Life of P._ 107. And the archbishop himself says, in the letter above +mentioned, "I was in a horror to hear such words to come from her mild +nature and Christianly learned conscience, as she spake concerning God's +holy ordinance and institution of matrimony." + +[276] 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 decisive 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 following courtesy: "_Madam_ (the style of a married +lady) I may not call you; _mistress_ (the appellation at that time of an +unmarried woman) I am loth to call you; but, however, I thank you for +your good cheer." The lady is styled, in deeds made while her husband +was archbishop, _Parker_, alias _Harleston_; which was her maiden name. +And she dying before her husband, her brother is called her heir-at-law, +though she left children. But the archbishop procured letters of +legitimation, in order to render them capable of inheritance. _Life of +Parker_, 511. Others did the same. _Annals_, i. 8. Yet such letters +were, I conceive, beyond the queen's power to grant, and could not have +obtained 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. + +[277] Burnet, iii. 305. + +[278] Jewel's letters to Bullinger, in Burnet, are full of proofs of his +dissatisfaction; and those who feel any doubts may easily satisfy +themselves from the same collection, and from Strype as to the others. +The current opinion, that these scruples were imbibed during the +banishment 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 documents 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. + +[279] It was proposed on this occasion 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. Burnet, 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. + +[280] Jewel, one of these visitors, writes afterwards to Martyr: +"Invenimus ubique animos multitudinis satis propensos ad religionem; ibi +etiam, ubi omnia putabantur fore difficillima.... Si quid erat obstinatae +malitiae, id totum erat in presbyteris, illis praesertim, qui aliquando +stetissent a nostra sententia." Burnet, iii. Append. 289. The common +people in London and elsewhere, Strype says, took an active part in +demolishing images; the pleasure of destruction, I suppose, mingling +with their abhorrence of idolatry. And during the conferences held in +Westminster Abbey, Jan. 1559, between the catholic and protestant +divines, the populace who had been admitted as spectators, testified +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 reformation, as necessitated a +proclamation, 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 religion. +_Mem. of Eng. Catholics_, i. 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 continuator of Sanders de +Schismate, whom he quotes, says that one-third of the nation was +protestant, we may surely double the calculation of so determined a +papist. As to the influence which Mr. B. alleges the court to have +employed in elections for Elizabeth's first parliament, the argument +would equally prove that the majority was protestant under Mary, since +she had recourse to the same means. The whole tenor of historical +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 England, where their strength lay, was in every respect the +least important 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, misstated a passage he cites from Murden's _State +Papers_, p. 605, and confounded the persons suspected 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 paradoxical a notion on this subject, that he +literally maintains the catholics 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 +consummated. 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 +indifference, if it were once established. _Opere di Bentivoglio_, p. +83, edit. Paris, 1645. But I presume neither 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, a useful memoir writer, but no authority on a matter of +calculation. The stern spirit of Coligni, _atrox animus Catonis_, rising +above all misfortune, and unconquerable, except by the darkest +treachery, is sufficiently admirable without reducing 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. + +[281] Strype's _Parker_, 152, 153; Collier, 508. In the Lansdowne +Collection, vol. viii. 47, is a letter from Parker, Apr. 1565, +complaining of Turner, dean of Wells, for having made a man do penance +for adultery in a square cap. + +[282] Strype's _Parker_, 157, 173. + +[283] This apprehension of Elizabeth's taking a disgust to protestantism +is intimated in a letter of Bishop Cox. Strype's _Parker_, 229. + +[284] Parker sometimes declares himself willing to see some indulgence +as to the habits and other matters; but, the queen's commands 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 wavering conduct, partly owing to +caprice, partly to insincerity, was naturally vexatious to a man of his +firm and ardent temper. Possibly 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 afterwards. + +[285] Strype's _Annals_, 416; _Parker_, 159. Some years after, these +advertisements obtained the queen's sanction, and got the name of +Articles and Ordinances. _Id._ 160. + +[286] Strype's _Annals_, 416, 430; _Life of Parker_, 184. Sampson had +refused a bishopric on account of these ceremonies. Burnet, iii. 292. + +[287] _Life of Parker_, 214. Strype says (p. 223) that the suspended +ministers preached again after a little time by connivance. + +[288] Jewel is said to have become strict in enforcing the use of the +surplice. _Annals_, 421. + +[289] Strype's _Annals_, i. 423, ii. 316; _Life of Parker_, 243, 348; +Burnet, iii. 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, +etc. 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. + +[290] Strype's _Life of Parker_, 242; _Life of Grindal_, 114. + +[291] Burnet, iii. 316; Strype's _Parker_, 155 _et alibi_. + +[292] _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. + +[293] 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 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 multiply 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 looseness of living. +_Annals_, i. 166. + +[294] 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 foreign 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 calculation allows. + +It appears from an account sent in to the privy council by Parkhurst, +Bishop of Norwich, in 1562, that in his diocese more than one-third of +the benefices were vacant. _Annals_, i. 323. But in Ely, out of 152 +cures only 52 were served in 1560. _L. of Parker_, 72. + +[295] Parker wrote in 1561 to the bishops 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; Latine aliqua verba +intelligit, Latine utcunque intelligit; Latine pauca intelligit," etc. +Sometimes, however, we find doctus. _L. of Parker_, 95. But if the +clergy could not read the language in which their very prayers 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 _generally_ 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. 154, mentioning a catalogue he had found +of the clergy in the archdeaconry of Middlesex, A.D. 1563, with their +qualifications annexed. Three only are described as docti Latine et +Graece; twelve are called docti simply; nine, Latine docti; thirty-one, +Latine mediocriter intelligentes; forty-two, Latine perperam, utcunque +aliquid, pauca verba, etc., intelligentes; seventeen are non docti or +indocti. If this was the case in London, what can we think of more +remote parts? + +[296] 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 previously 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 Grindal_, p. 50. And +Wood's _Antiquities of the University of Oxford_ contain many proofs of +its attachment 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 disposition of the times, and the long continuance of the Earl of +Leicester, the principal patron of the puritanical faction, in the place +of Chancellor of Oxford, the face of the university was so much altered +that there was little to be seen in it of the church of England, +according to the principles and positions upon which it was first +reformed." _Hist. of Oxford_, vol. ii. p. 228. Previously, however, to +this change towards puritanism, the university had not been Anglican, +but popish; which Wood liked much better than the first, and nearly as +well as the second. + +A letter from the University of Oxford to Elizabeth on her accession +(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 consoled by the thought of her excellent +successor. One sentence is curious: "Cum _patri_, _fratri_, _sorori_, +nihil fuerit republica carius, _religione optatius_, vera gloria +dulcius; cum in hac familia hae laudes floruerint, vehementer confidimus, +etc., quae 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 acquiescence 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. + +[297] The fellows and scholars of St. John's College, to the number of +three hundred, threw off their hoods and surplices, in 1565, without any +opposition from the master, till Cecil, as chancellor of the university, +took up the matter, and insisted on their conformity to the established +regulations. This gave much dissatisfaction to the university; not only +the more intemperate party, but many heads of colleges and grave men, +among whom we are rather surprised to find the name of Whitgift, +interceding with their chancellor for some mitigation as to these +unpalatable observances. Strype's _Annals_, i. 441; _Life of Parker_, +194. Cambridge had, however, her catholics, 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 disapproved. Strype, _passim_. + +[298] Strype's _Annals_, i. 583; _Life of Parker_, 312, 347; _Life of +Whitgift_, 27. + +[299] Cartwright's _Admonition_, quoted in Neal's _Hist. of Puritans_, +i. 88. + +[300] Madox's _Vindication of Church of England against Neal_, p. 122. +This writer quotes several very extravagant passages from Cartwright, +which go to prove irresistibly that he would have made no compromise +short of the overthrow of the established church. P. 111, etc. "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 licences, which were to fortify their Romish +practices; but, as you fight the Lord's fight, be valiant." Madox, p. +287. + +[301] These principles had already been broached by those who called +Calvin master; he had himself become a sort of prophet-king at Geneva. +And Collier quotes passages from Knox's _Second Blast_, inconsistent +with any government, except one slavishly subservient to the church. P. +444. The nonjuring historian holds out the hand of fellowship to the +puritans he abhors, when they preach up ecclesiastical independence. +Collier liked the royal supremacy as little as Cartwright; and in giving +an account of Bancroft's attack on the nonconformists for denying it, +enters upon a long discussion in favour of an absolute emancipation from +the control of laymen. P. 610. He does not even approve the +determination of the judges in Cawdrey's case (5 Coke's Reports), though +against the nonconformists, as proceeding on a wrong principle of +setting up the state above the church. P. 634. + +[302] The school of Cartwright were as little disposed as the +episcopalians 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 impropriations +with sin. Bancroft takes delight in quoting his bitter phrases from the +ecclesiastical discipline. + +[303] The old friends and protectors of our reformers at Zurich, +Bullinger and Gualter, however they had favoured the principles of the +first nonconformists, write in strong disapprobation of the innovators +of 1574. Strype's _Annals_, ii. 316. And Fox, the martyrologist, 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 subscribed the articles with a reservation, "so far +as agreeable to the word of God;" but was wholly opposed to the new +reform of church discipline. _Carleton's Life of Gilpin_, and +Wordsworth's _Ecclesiastical Biography_, vol. iv. Neal has not reported +the matter faithfully. + +[304] "The puritan," says Persons the jesuit, in 1594, "is more +generally 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 ecclesiastical +livings, or other preferments depending of the state, are more affected +commonly to the puritans, or easily are to be induced to pass that way +for the same reason." Doleman's _Conference 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 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. The 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 gentry in the queen's days. It is +agreed on all hands, and is quite manifest, 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 religious +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 unaccountable means, in despite of the government +and the nation, formed a majority of all parliaments under Elizabeth and +her two successors. + +[305] 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 themselves, taken as a body, any +pluralities 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 ecclesiastics, the difficulty is none at all. + +[306] D'Ewes, p. 156; _Parliament. Hist._ i. 733, etc. + +[307] D'Ewes, p. 239; _Parl. Hist._ 790; Strype's _Life of Parker_, 394. + +In a debate between Cardinal Carvajal and Rockisane, the famous Calixtin +archbishop of Prague, at the council of Basle, the former said he would +reduce the whole argument to two syllables; Crede. The latter replied he +would do the same, and confine himself to two others; Proba. Lenfant +makes a very just observation on this: "Si la gravite de l'histoire le +permettoit, on diroit avec le comique: C'est tout comme ici. Il y a long +tems que le 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'heresie_." _Concile de Basle_, p. 193. + +[308] Several ministers were deprived, in 1572, for refusing to +subscribe the articles. Strype, ii. 186. Unless these were papists, +which indeed is possible, their objection must have been to the articles +touching discipline; for the puritans liked the rest very well. + +[309] Neal, 187; Strype's _Parker_, 325. Parker wrote to Lord Burleigh +(June 1573), exciting the council to proceed against some of those men +who had been called before the star-chamber. "He knew them," he said, +"to be 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 authorities," +etc. _Id._ p. 421; Cartwright's _Admonition_ was now prohibited to be +sold. _Ibid._ + +[310] Neal, 210. + +[311] Strype's _Annals_, i. 433. + +[312] Strype's _Annals_, ii. 219, 232; _Life of Parker_, 461. + +[313] Strype's _Life of Grindal_, 219, 230, 272. The archbishop's letter +to the queen, declaring his unwillingness to obey her requisition, is in +a far bolder strain than the prelates were wont to use in this reign, +and perhaps contributed to the severity she showed towards him. Grindal +was a very honest, conscientious 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. + +[314] Strype's _Whitgift_, 27 _et alibi_. He did not disdain to reflect +on Cartwright for his poverty, the consequence of a scrupulous adherence +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 libellers have hardly matched. Whitgift 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 scholarship +of that age. + +[315] Strype's _Whitgift_, 115. + +[316] Neal, 266; Birch's _Memoirs of Elizabeth_, vol. i. p. 42, 47, etc. + +[317] According to a paper in the appendix to Strype's _Life of +Whitgift_, p. 60, the number of conformable ministers in eleven +dioceses, not including those of London and Norwich, the strongholds of +puritanism, 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 Essex. P. 268. The puritans formed so much the more +learned and diligent part of the clergy, that a great scarcity of +preachers was experienced 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-informed 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 of supplying their deficiences by +preaching the discourses of others; and we shall see little cause for +doubting Neal's statement, though founded on a puritan document. + +[318] _Life of Whitgift_, 137 _et alibi pluries_; _Annals_, iii. 183. + +[319] Neal, 274; Strype's _Annals_, iii. 180. + +The germ of the high commission 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 discretions and consciences should direct them; and to use all +such means as they could invent, for the searching of the premises, to +call witnesses, and force them to make oath of such things as might +discover what they sought after. Burnet, ii. 347. But the primary model +was the inquisition itself. + +It was questioned whether the power of deprivation for not reading the +common prayer, granted to the high commissioners, were legal; the Act of +Uniformity having annexed a much smaller penalty. But it was held by the +judges in the case of Cawdrey (5 Coke Reports), that the act did not +take away the ecclesiastical jurisdiction and supremacy which had ever +appertained to the crown, and by virtue of which it might erect courts +with as full spiritual jurisdiction as the archbishops and bishops +exercised. + +[320] Strype's _Whitgift_, 135; and Appendix, 49. + +[321] _Id._ 157, 160. + +[322] _Id._ 163, 166 _et alibi_; Birch's _Memoirs_, i. 62. There was +said to be a scheme on foot, about 1590, to make all persons in office +subscribe a declaration that episcopacy was lawful by the word of God, +which Burleigh prevented. + +[323] Neal, 325, 385. + +[324] _Id._ 290; Strype's _Life of Aylmer_, p. 59, etc. His biographer +is here, as in all his writings, too partial to condemn, but too honest +to conceal. + +[325] Neal, 294. + +[326] 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, etc., he literally proposed to sell his bishopric +to Bancroft. _Id._ 169. The other, however, waited for his death, and +had above L4000 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. + +[327] _Somers' Tracts_, i. 166. + +[328] Bacon's Works, i. 532. + +[329] Birch's _Memoirs_, ii. 146, + +[330] _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 nephews of the treasurer. + +[331] The first of Martin Mar-prelate'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 authors +and printers. Strype's _Whitgift_, 288. These pamphlets are scarce; but +a few extracts from them may be found in Strype, and other authors. The +abusive language 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. _State +Trials_, i. 1263. + +[332] 23 Eliz. c. 2. + +[333] Penry's protestation at his death is in a style of the most +affecting and simple eloquence. _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 were never fully discovered; +but Penry seems not to deny his concern in it. + +[334] _State Trials_, 1271. It may be remarked on this as on other +occasions, that Udal's trial is evidently published by himself; and a +defendant, especially in a political proceeding, is apt to give a +partial colour to his own case. _Life of Whitgift_, 314; _Annals of +Reformation_, 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 splenetic +mode of speaking. But Warburton, in his short notes on Neal's history, +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 circumstances. I will +here observe that Warburton, in his self-conceit, has paid a much higher +compliment to Neal than he intended, speaking of his own comments as "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 anything 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 written by +some puritan about the time. It was answered by Madox, afterwards bishop +of Worcester, in a _Vindication of the Church of England_, published +anonymously in 1733. Neal replied with tolerable success; but Madox's +book is still an useful corrective. Both, however, were, like most +controversialists, prejudiced men, loving the interests of their +respective factions better than truth, and not very 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. + +[335] _Life of Whitgift_, 328. + +[336] _Id._ 336, 360, 366, Append. 142, 159. + +[337] _Id._ Append. 135; _Annals_, iv. 52. + +[338] This predilection for the Mosaic polity was not uncommon among the +reformers; Collier quotes passages from Martin Bucer as strong as could +well be found in the puritan writings. P. 303. + +[339] _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 +representation made by hostile pens, though I conceive it to be not very +far from the truth. + +[340] _Ibid_. Madox's _Vindication of the Ch. of Eng. against Neal_, p. +212; Strype's _Annals_, iv. 142. + +[341] The large views of civil government entertained by the puritans +were sometimes imputed to them as a crime by their more courtly +adversaries, who reproached them with the writings of Buchanan and +Languet. _Life of Whitgift_, 258; _Annals_, iv. 142. + +[342] See a declaration to this effect, at which no one could cavil, in +Strype's _Annals_, iv. 85. The puritans, 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 claims of +episcopacy, as a divine institution, which had been covertly insinuated +by Bancroft, on the ground of its incompatibility with the prerogative, +and urged Lord Burleigh to make the bishops acknowledge they had no +superiority over the clergy, except by statute, as the only means to +save her majesty from the extreme danger into which she was brought by +the machinations 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 become a private man. This bold letter he +desires to have shown to the queen. _Lansdowne Catalogue_, vol. lxviii. +84. + +[343] D'Ewes, 302; Strype's _Whitgift_, 92, Append. 32. + +[344] D'Ewes, 339 _et post_; Strype's _Whitgift_, 176, etc., Append. 70. + +[345] Strype's _Annals_, iii. 228. + +[346] Strype's _Annals_, iii. 186, 192. Compare Append. 35. + +[347] Strype's _Whitgift_, 279; _Annals_, iii. 543. + +[348] _Parl. Hist._ 921. + +[349] Strype's _Whitgift_, 521, 537, App. 136. The archbishop could not +disguise his dislike to the lawyers. "The temporal lawyer," he says in a +letter to Cecil, "_whose learning is no learning anywhere 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 annum, and oftentimes much more, whereof there are +at this day many examples."--P. 215. + +[350] Strype's _Whitgift_, and D'Ewes, _passim_. In a convocation held +during 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 _bona fide_ or not, it produced no +reformation. Strype's _Whitgift_, 419. + +[351] 35 Eliz. c. 1; _Parl. Hist._ 863. + +[352] 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, +provided he was only the head of the presbyters, and acted in +conjunction with them. P. 398. But this was in effect to demand +everything. For if the office could be so far lowered in eminence, there +were many waiting to clip the temporal revenues and dignity in +proportion. + +In another passage, Neal states clearly, if not quite fairly, the main +points of difference between the church and nonconforming 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 +magistrates for the support and defence of the several principles, which +they made an ill use of in their turns, as they could grasp the power +into their hands. The standard of uniformity, 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 admitting +that liberty of conscience and freedom of profession which is every +man's right, as far as is consistent with the peace of the government he +lives under." + +[353] Neal, 253, 386. + +[354] Strype's _Whitgift_, 414; Neal, 373. Several years before, in +1583, two men called anabaptists, Thacker and Copping, were hanged at +the same place on the same statute for denying the queen's +ecclesiastical 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 according 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 contrary to +all common sense, in order to take away men's lives. + +[355] "The discipline of Christ's church," said Cartwright, "that is +necessary for all times, is delivered 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 answer 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 another. + +[356] "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 presume to build somewhat upon their judgment; what +reason have we to think but that even in matters divine, the like wits, +furnished with necessary helps, exercised in scripture with like +diligence, and assisted with the grace of Almighty God, may grow unto so +much perfection of knowledge, that men shall have just cause, when +anything 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," etc. But Hooker's +mistake was to exaggerate the weight of such men's judgment; 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 ecclesiastical authority. + +It is well known that the preface 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. + +[357] 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 in Hooker's +style. But the question is rather with respect to interpolations than +omissions. And of the former I see no evidence or likelihood. If it be +true, as is alleged, 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 convince 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 conjectures to +have been a marginal memorandum of the author for his own use on +revising the manuscript. M'Crie's _Life of Melvil_, vol. i. p. 471. + +[358] 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 irregularity, and +nothing more than a consequence of the tenure. Collier, 544. This will +not cover our modern _colonial_ bishops, on whom the same title has, +without any good reason, been conferred. + +[359] Strype's _Annals_, i. 159. + +[360] 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. + +[361] It was couched in the following 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 +_Annals_, vol. ii. Append. 84. The names of Hatton Garden and Ely Place +(Mantua vae miserae nimium vicina Cremonae) still bear witness to the +encroaching lord keeper, and the elbowed bishop. + +[362] Strype, iv. 246. See also p. 15 of the same volume. By an act in +the first year of James, c. 3, conveyances of bishops' lands to the +crown are made void; a concession much to the king's honour. + +[363] Harrington's "State of the Church," in _Nugae Antiquae_, 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. c. 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 aristocracy; +as Sandys twice experienced. + +[364] Birch's _Memoirs_, i. 48. Elizabeth seems to have fancied herself +entitled by her supremacy to dispose of bishops as she pleased, though +they did not hold commissions _durante bene placito_, as in her +brother's time. Thus she suspended Fletcher, Bishop of London, 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 +_Nugae Antiquae_, i. 170; see too p. 217. It will of course not appear +surprising that Hutton, Archbishop 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 message. P. 250. + +[365] D'Ewes, 328. + +[366] Collier says (p. 586) on Heylin's authority, that Walsingham +offered the puritans, about 1583, in the queen's name, to give up the +ceremony of kneeling at the communion, the cross in baptism, and the +surplice; but that they answered, "ne ungulam quidem esse relinquendam." +But I am not aware of any better testimony to the fact; and it is by no +means agreeable to the queen's general conduct. + +[367] Bacon, ii. 375. See also another paper concerning the pacification +of the church, written under James, p. 387. "The wrongs," he says, "of +those which are possessed 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 puritans. In truth, Elizabeth and +James were personally the great support of the high church interest; it +had few real friends among their counsellors. + +[368] 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 sovereign princes ought distinctly to punish their practices and +contempt, though coloured with the pretence of conscience and religion." +Bacon has repeated the same words, as well as some more of Walsingham's +letter, in his observations on the libel on Lord Burleigh, 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 religious 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 thinking, were as incumbent upon the +catholic and puritan, as they had been upon the primitive church: nor +were they more chargeable with faction, or with exceeding the bounds of +conscience, when they persisted in the use of them, notwithstanding any +prohibitory statute, than the early Christians. + +The generality of statesmen, and churchmen themselves not unfrequently, +have argued upon the principles of what, in the seventeenth century, was +called Hobbism, towards which the Erastian system, which is that of the +church of England, though excellent in some points of view, had a +tendency 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 +countenance from the false and mischievous position of Hooker, that the +church and commonwealth are but different denominations of the same +society. Warburton has sufficiently exposed the sophistry of this +theory; though I do not think him equally successful in what he +substitutes for it. + + + + +CHAPTER V + +ON THE CIVIL GOVERNMENT OF ELIZABETH + + +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 prerogatives, has +already afforded us many illustrations of what may more strictly be +reckoned the constitutional history of her reign. The tone and temper of +her administration have been displayed in a vigilant execution of severe +statutes, especially towards the catholics, and sometimes in stretches +of power beyond the law. And as Elizabeth had no domestic enemies or +refractory subjects who did 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 exercise of government in this +reign, and then proceed to show how the queen's high assumptions of +prerogative were encountered by a resistance in parliament, not quite +uniform, but insensibly becoming more vigorous. + +Elizabeth ascended the throne with all the advantages 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 +progenitors 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 unaffectedly dreaded, her temper of mind, above +all, at once fiery and inscrutably dissembling, would in any +circumstances have ensured her more real sovereignty than weak monarchs, +however nominally 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 popular odium by an unusual or misplaced exertion of it. The most +eminent instances, as I have remarked, 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 exasperated +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 according to known laws truly interpreted, and +fair constructions of evidence; and the right of parliament, 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 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 looked +merely to the letter of our statutes or other authorities, while another +have been almost exclusively struck by the instances of arbitrary +government they found on record, that such incompatible systems have +been laid down with equal positiveness on the character of that +constitution. + +_Trials for treason and other political offences unjustly conducted._--I +have found it impossible not to anticipate, in more places than one, +some of those glaring transgressions of natural as well as positive law, +that rendered our courts of justice in cases of treason little better +than the caverns of murderers. Whoever was arraigned at their bar was +almost certain to meet a virulent prosecutor, a judge hardly +distinguishable from the prosecutor except by his ermine, and a passive +pusillanimous jury. Those 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 evidence 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.[369] In the case of Captain Lee, a partisan of Essex and +Southampton, the court appear to have denied the right of peremptory +challenge.[370] 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 reconciliation to the church of +Rome.[371] + +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 23rd of +Elizabeth; the former of which, especially, 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 punishment 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, Elizabeth 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, with more real loyalty, wrote her a spirited +remonstrance, which she had the magnanimity never to resent.[372] 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 swallowed 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 affairs, 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 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.[373] + +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.[374] 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 primaeval 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 enjoying with security those civil privileges +which it held forth.[375] + +_Illegal commitments._--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 +always been a matter of right. But as may naturally 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 imprisonment, 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 irregular 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.[376] This is contained in a passage +from Chief Justice Anderson's _Reports_. But as there is an original +manuscript in the British Museum, differing in some material points from +the print, I shall follow it in preference.[377] + +_Remonstrance of judges against them._--"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 nobleman or counsellor, against the laws of the +realm, to the grievous charges and oppression of her majesty'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 detained 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, and not in common +and ordinary known prisons, as the Marshalsea, Fleet, King's Bench, +Gatehouse, nor the custodie of any sheriff, so as upon complaint made +for their delivery, the queen's court 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 pursuivants 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, illegible +to me), which causes being generally returned into any court, is good +cause for the same court to leave the person committed in custody. + +"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. + +_Proclamations unwarranted by law._--It was a natural consequence, not +more of the high notions entertained of prerogative than of the very +irregular and infrequent meeting of parliament, that an extensive and +somewhat indefinite authority should be arrogated to proclamations of +the king in council. Temporary ordinances, bordering 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, wherever +the constitution of the commonwealth does not, directly or in effect, +provide for frequent assemblies of the body in whom the right of making +or consenting to laws has been vested. Since the 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 redundance, 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 +proclamations 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 beyond 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,[378] 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 increase of the city, under the +penalty of imprisonment and forfeiture of the materials.[379] This is +repeated at other times, and lastly (I mean during her reign) in 1602, +with additional restrictions.[380] Some proclamations in this reign hold +out menaces, 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 possibly +be construed into assisting the queen's enemies) incurred the penalty of +treason. And persons 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.[381] Notwithstanding these +instances, it cannot perhaps be said on the whole that Elizabeth +stretched her authority very outrageously in this respect. Many of her +proclamations, which may at first sight appear illegal, are warrantable +by statutes then in force, or by ancient 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 several +statutes of Edward VI. and of her own.[382] And it has been argued by +some not at all inclined to diminish any popular rights, that the king +did possess a prerogative by common law of restraining the export of +corn and other commodities.[383] + +_Restrictions on printing._--It is natural to suppose that a government +thus arbitrary and vigilant must have looked with extreme jealousy on +the diffusion of free enquiry through the press. The trades of printing +and bookselling, in fact, though not absolutely licensed, were always +subject to a sort of peculiar superintendence. Besides protecting the +copyright of authors,[384] the council frequently issued proclamations +to restrain the importation of books, or to regulate their sale.[385] 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 utmost strictness 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.[386] Stowe, the well-known chronicler of England, who lay under +suspicion of an attachment to popery, had his library searched by +warrant, and his unlawful books taken away; several of which were but +materials for his history.[387] Whitgift, in this, as in every other +respect, aggravated the rigour of preceding times. At his instigation, +the star-chamber, in 1585, published ordinances for the regulation of +the press. The preface of 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 enjoined 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, whenever 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 whatsoever, +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, who +shall require the licence only of the chief justices. Every one selling +books printed contrary to the intent of this ordinance, to suffer three +months' imprisonment. The Stationers' Company empowered to search houses +and shops of printers and booksellers, and to seize all books printed in +contravention of this ordinance, to destroy and deface the presses, and +to arrest and bring before the council those who shall have offended +therein.[388] + +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 necessary that they +should be the arbiters of his fate. Delays 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 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 indispensable 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 governments are prone, to introduce too soon, to +extend 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 occasion. One Pete Burchell, a fanatical puritan, and perhaps +insane, conceiving that Sir Christopher Hatton was an enemy to true +religion, determined to assassinate him. But by mistake he wounded +instead a famous seaman, Captain Hawkins. For this ordinary crime, the +queen could hardly be prevented from directing him to be tried instantly +by martial law. Her council, however (and this it is important to +observe), resisted this illegal proposition with spirit and +success.[389] 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 majesty'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 anything +to be done or executed in the punishment of any such offender, according +to the said martial law, and the tenor of this proclamation, any law or +statute to the contrary in any wise notwithstanding.[390] 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 prospectively 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 precedents to serve the purposes of +arbitrary power. + +_Martial law._--No other measure of Elizabeth's reign can be compared, +in point of violence and illegality, to a commission in July 1595, +directed to Sir Thomas Wilford; whereby upon no other allegation than +that there had been of late sundry great unlawful assemblies 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 +commission empowers him also "to repair to all common highways near to +the city, which any vagrant persons do haunt, and, with the assistance +of justices and constables, to apprehend all such vagrant and suspected +persons, and them to deliver to the said justices, by them to be +committed and examined of the causes of their wandering, and finding +them notoriously culpable in their unlawful manner of life, as +incorrigible, and so certified by 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 +condemned to death for former offences, and had the queen's pardon for +the same."[391] + +This peremptory style of superseding the common 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.[392] 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 +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 watchfulness 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 perhaps illegal. +Letters were written to the sheriffs and justices of divers counties in +1569, directing them to apprehend, on a certain night, all vagabonds 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 repeated +several times; and no less than 13,000 persons were thus apprehended, +chiefly in the north, which, as Strype says, very much broke the +rebellion attempted in that year.[393] + +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 violence of +his son. Nor was it ever disputed in theory by Elizabeth. She retained, +indeed, notwithstanding 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 levying +internal taxes, except that the clergy were called upon, in 1586, for an +aid not granted in convocation, but assessed by the archdeacon according +to the value of their benefices; to which they naturally showed no +little reluctance.[394] By dint of singular frugality she continued to +steer the true course, so as to keep her popularity undiminished and her +prerogative unimpaired; asking very little of her subjects' money in +parliaments, 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. + +_Loans of money not quite voluntary._--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 doubt that such loans were so +far obtained by compulsion, that any gentleman or citizen of sufficient +ability refusing compliance would have 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.[395] But the queen seems to have been punctual +in their speedy repayment according to stipulation; a virtue somewhat +unusual with royal debtors. Thus we find a proclamation in 1571, that +such as had lent the queen money in the last summer should receive +repayment in November and December.[396] Such loans 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 +recompensed 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. + +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, +appears to warrant the conclusion that he had revolved 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 +meeting parliament, on account of the factions leagued against himself. +But as nothing further was done in this matter, we must presume that he +perceived the impracticability of so unconstitutional a scheme.[397] + +_Character of Lord Burleigh's administration._--Those whose curiosity +has led them to somewhat more acquaintance with the details of English +history under Elizabeth than the pages of Camden or Hume will afford, +cannot but have been struck with the perpetual interference of men in +power with matters of private concern. I am far from pretending to know +how far the solicitations 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 connection, in reconciling family +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 Burleigh's letters in the Museum is full of +such petty matters, too insignificant, for the most part, to be +mentioned even by Strype.[398] They exhibit, however, 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 relaxation 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 his table by appearing +better acquainted with their manors, parks, and woods, than +themselves.[399] Such knowledge was not sought by the crafty Cecil for +mere diversion's sake. It was a main 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 deserted him, through sense of the perils of his +sovereign 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 +respect 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 possession, may be said +to consist. It appears probable, 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 constitution, 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. + +_Disposition of the House of Commons._--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 administration of affairs, during the +reigns of Edward III., Richard II., and the princes of the line of +Lancaster. This energy of parliament was quelled by the civil wars of +the fifteenth century; and, whatever 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 +privileges (though not quite, in his modern language, as undoubted +rights), at 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 between the crown and parliament; +wherein, if 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 contemporaries, 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 her administration. Camden, writing to the next +generation, though far from an ingenuous historian, is somewhat 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 convents, reckless of the +censure of courts, because independent of their permission. Grosser +ignorance of public transactions is undoubtedly found in the chronicles +of the middle ages; but far less of that deliberate mendacity, or of +that insidious suppression, by which fear, and flattery, and hatred, and +the thirst of gain, have, since the invention of printing, corrupted so +much of historical literature throughout Europe. We begin however to +find in Elizabeth's reign more copious and unquestionable 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 other 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 parliaments 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.[400] + +_Addresses concerning the succession._--There was no peril more alarming +to this kingdom during the queen's reign than the precariousness 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 manifesting +much displeasure, though not sparing a hint that it was a little beyond +the province of parliament. 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 +declaring 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 sickness +the queen had just experienced, and which is said to have been the cause +of summoning parliament. 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 +necessity;"[401] offering at the same time to concur in provisions to +guarantee her personal safety against any one who might be limited in +remainder. Elizabeth gave them a tolerably courteous answer, though not +without some intimation of her dislike to this address.[402] But at +their next meeting, which was not till 1566, the hope of her own +marriage having grown fainter, and the circumstances of the kingdom +still more powerfully demanding some security, both houses of parliament +united, with a boldness of which there had perhaps been no example 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 husband, 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.[403] But this great princess +wanted not skill and courage to resist this unusual importunity of +parliament. The peers, who had forgotten their customary respectfulness, +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 unpalatable alternative of naming +her successor; and when this request was presented, gave them fair +words, and a sort of assurance that their desires should by some means +be fulfilled.[404] When they continued to dwell on the same topic in +their speeches, she sent messages through her ministers, 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.[405] But, more probably having passed than +we know at present, the queen, whose haughty temper and tenaciousness of +prerogative 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.[406] + +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, 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 faction 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 precipitation 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 deliberate 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, +however she had yielded for the moment in revoking her prohibition, ever +designed to concede to them. Such was her frugality, that, although she +had remitted a subsidy granted in this session, alleging 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 +implied condition had not been fulfilled, she was able to pass five +years without again convoking her people. + +_Session of 1571._--A parliament met in April 1571, when the lord keeper +Bacon,[407] in answer to the speaker's customary request for freedom of +speech in the Commons, said that "her majesty having experience of late +of some disorder and certain offences, which, though they were not +punished, yet were they offences still, and so must be accounted, they +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." + +_Influence of the puritans in parliament._--The Commons so far attended +to this intimation, that no proceedings about the succession appear to +have taken place in this parliament, except such 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 +indeed resolved, upon reading a bill the first time for reformation of +the common prayer, that petition be made to the queen's majesty for her +licence 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 +confinement. This was noticed as an infringement of their liberties. The +ministers endeavoured to excuse his detention, as not intended to lead +to any severity, nor occasioned by anything 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 all 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 +treason to deny. Princes were to have their prerogatives, 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 uttering 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 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.[408] + +This session is also remarkable for the first marked complaints against +some notorious abuses, which defaced the civil government of +Elizabeth.[409] 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 licences granted by the Crown and +other abuses galled the people, intimating also, that the subsidy should +be accompanied by a redress of grievances.[410] This occasion of +introducing the subject, though strictly constitutional, was likely to +cause displeasure. The speaker informed them a few days after of a +message from the queen to spend little time in motions, and make no long +speeches.[411] 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.[412] It became the common whisper, that no one must +speak against licences, 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 pertaining to them, nor within the capacity of their +understanding.[413] + +The parliament of 1572 seemed to give evidence of their inheriting the +spirit of the last by choosing Mr. Bell for their speaker.[414] 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 circumstances are the following. The Commons were +desirous of absolutely excluding Mary from inheriting 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 disabled to succeed, and willed that the bill respecting her +should be drawn by her council: and that, in the meantime, the house +should not enter on any speeches or arguments on that matter.[415] +Another circumstance worthy of note in this session is a signification, +through the speaker, of her majesty's pleasure that no bills concerning +religion should be received, unless they should be first considered 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, she would not conceive an ill opinion of the +house, or of the parties by whom they were preferred.[416] + +_Speech of Mr. Wentworth in 1576._--The submissiveness of this +parliament was doubtless 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 +mentioned, broke out, in a speech of uncommon boldness, 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 injurious 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 acrimony. 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 ingratitude 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.[417] + +This direct attack upon the sovereign, in matters 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 understood 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 parliament 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 +interference by sequestering their member, and appointing a committee of +all the privy counsellors in the house to examine him. Wentworth +declined 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, according 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 his knees.[418] In this commitment of Wentworth, it can +hardly be said that there was anything, as to the main point, by which +the house sacrificed its acknowledged privileges. In later instances, +and even in the reign of George I., members 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 sessions. +The next was in 1581, when the chancellor, on confirming a new speaker, +did not fail to admonish him that the House of Commons should not +intermeddle in anything touching her majesty's person or estate, or +church government. They were supposed to disobey this injunction and +fell under the queen's displeasure, by appointing 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.[419] 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 respecting 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 that her majesty had commanded them not to meddle in this +matter. Several members however 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 member of the +same, freely and without control, by bill or speech, to utter any of the +griefs of this commonwealth? Whether there be any council that can make, +add, or diminish from the laws of the realm, but only this council of +parliament? Whether 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 without this +council of parliament, not altering the government of the state? These +questions Serjeant 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.[420] Yet +the Commons were so set on displaying an ineffectual hankering after +reform, that they appointed a committee to address the queen for a +learned ministry. + +_The Commons continue to seek redress of ecclesiastical grievances._--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,[421] 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 executed by some +ecclesiastical governors contrary both to their purport and the intent +of the legislature, 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 inhibition from +dealing with ecclesiastical causes, declared to them by the chancellor +at the commencement 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 of any further redress than +by exculpating him to this great personage, apparently one of the +ministers, and admonishing their members not to repeat elsewhere +anything uttered in their debates.[422] For the bill itself, as well as +one intended to restrain 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 majesty about +their proceedings. They received afterwards a gracious answer to their +address, the queen declaring her willingness to afford a remedy for the +alleged grievances.[423] + +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 estates, which will meddle with reforming +the church and transforming the commonwealth, and do exhibit such bills +to such purpose, that you receive them not, until they be viewed and +considered 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.[424] A few days afterwards a bill for reforming the +abuses of ecclesiastical courts was presented by Morice, attorney of the +court of wards, and underwent some discussion in the house.[425] 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.[426] It was the custom at that time for the +speaker to read and expound to the house 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 liberties of his country."[427] 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 opposed 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.[428] 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."[429] Some difficulty was made by this House of Commons about +their grant of subsidies, which was uncommonly large, though rather in +appearance than truth, so great had been the depreciation of silver for +some years past.[430] + +_Monopolies, especially in the session of 1601._--The admonitions not to +abuse freedom of speech, 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 remarkable 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 courtiers, +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 prerogative, 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 disposition, +promising to examine all patents, and to abide the touchstone of the +law."[431] This answer, though less stern than had been usual, was +merely evasive; and in the session of 1601, a bolder and more successful +attack was made on the administration than this reign had witnessed. The +grievance of monopolies had gone on continually increasing; 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 unloosed; each as if emulously descanting on the injuries of +the place he represented. It was vain for the courtiers to withstand +this torrent. Raleigh, 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 parliament. 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 themselves the mortification +of being overcome. Elizabeth 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 +satisfactory by an assurance that the existing patents should all be +repealed, and no more be granted. This victory filled the Commons with +joy, perhaps the more from being rather unexpected.[432] They addressed +the queen with rapturous and hyperbolical acknowledgments, to which she +answered in an affectionate strain, glancing only with an oblique irony +at some of those movers in the debate, whom in her earlier and more +vigorous years she would have keenly reprimanded. She repeated this a +little more plainly at the close of the session, but still with +commendation of the body of the Commons. So 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 listless melancholy the +last scenes of her illustrious life.[433] + +The discontent that vented itself against monopolies 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 +unusual grants, made to a most excellent princess on a most pressing and +extraordinary occasion, should not at any time hereafter be drawn into a +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, exhibit +a lurking ill-humour, which would find a better occasion to break forth. + +_Influence of the Crown in Parliament._--The House of Commons, upon a +review of Elizabeth's reign, was very far, on the one hand, 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 so servile and +submissive an assembly as an artful historian has represented it. If +many of its members 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 +hurried them beyond their colleagues, there was still a considerable +party sometimes carrying the house along with them, who with patient +resolution and inflexible aim recurred in every session to the assertion +of that one great privilege which their sovereign contested, the right +of parliament to enquire 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 subservient 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 representation; as well from places which had in earlier times +discontinued their franchise, as from those to which it was first +granted;[434] a very large proportion 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 ministry took much pains with +elections, of which many proofs remain.[435] The house accordingly 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 manliness 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 perceived 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 government, and would +never be employed till some deficiency of strength was experienced in +the other. + +_Debate on election of non-resident burgesses._--D'Ewes has preserved a +somewhat remarkable debate on a bill presented in the session of 1571, +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 innovation that time had wrought; while others +contended 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 positive +law, strangers to their several boroughs had been chosen: that persons +able and fit for so great an employment ought to be preferred without +regard 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 respected than any +private regard of place or person. This is a remarkable, and perhaps the +earliest assertion, of an important constitutional principle, 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 parliament and such deputations of +the estates as were assembled in several continental kingdoms; a +principle to which the House of Commons is indebted for its weight and +dignity, as well as its beneficial efficiency, and which none but the +servile 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 election 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 mechanical 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 consideration of that country hath taught, can more +perfectly 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 noblemen with elections; +lords' letters, it was said, would from henceforth bear the sway; +instances of which, so late as the days of Mary, were alleged, though no +one cared to allude particularly to anything of a more recent date. +Some proposed to impose a fine of forty pounds on any 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.[436] + +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 precedent on record for the punishment of bribery +in elections.[437] + +_Assertion of privileges by Commons._--We shall find an additional proof +that the House of Commons under the Tudor princes, and especially +Elizabeth, was not so feeble and insignificant an assembly as has been +often insinuated, if we look at their frequent assertion and gradual +acquisition of those peculiar authorities and immunities which +constitute what is called privilege of parliament. Of these the first, +in order of time if not of importance, was their exemption from arrest +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 parliament, or at least by a +writ of privilege out of chancery. The House of Commons for the first +time took upon themselves to avenge their own injury in 1543, when the +remarkable case of George Ferrers occurred. This is related in detail by +Holingshed, and is perhaps the only piece of constitutional information +we owe to him. Without repeating all the circumstances, it will be +sufficient here to mention, that the Commons sent their serjeant with +his mace to demand the release of Ferrers, a burgess who had been +arrested on his way to the house; that the gaolers and sheriffs of +London 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 assertion +of privilege by the Commons. It was however, 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 arrest at the mere demand of the serjeant, or +of any one being committed to prison by the sole authority of the House +of Commons. With respect to the first, "the chancellor," says +Holingshed, "offered 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 committing to prison persons +refusing obedience to lawful process, which our law attributes to all +courts of justice, as essential to the discharge of their duties. The +king's behaviour is worthy of notice: while he dexterously endeavours to +insinuate that the offence was rather against him than the Commons, +Ferrers happening to be in his service, he displays that cunning +flattery towards them in their moment of exasperation, which his +daughter knew so well how to employ.[438] + +_Other cases of privilege._--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 disputations," 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.[439] It is to be observed, that +the privilege of immunity 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.[440] 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.[441] 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 +discharge him, making his humble submission on his knees.[442] 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 subpoenas," 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."[443] 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 established law of privilege that "no subpoena or +summons 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 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."[444] The great importance of such a privilege +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 contempt, 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 parliament +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 following 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 satisfactory, for it is not +till the 2nd of March that we have an entry of a letter from Mr. Storie +in the Tower with his submission. And an order immediately 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 virulence 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 government, as well as to the house. +But it is worthy of notice, that the Commons by their single authority +commit their burgess first to their own officer, and next to the Tower; +and that upon his submission 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 first instance of a member's commitment by order of the +house, the earlier journals not being in existence. 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 members for indecent abuse +of the liberty of speech, may be thought the result naturally from the +king's concession of that liberty; and its right to preserve order in +debate is plainly incident to that of debating 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 +committed 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 examined as to the cause of +his behaviour. A prorogation followed the same day, and of course no +more took place in this affair.[445] + +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 burgess for Grantham, was charged with +having caused to be published a book against the present parliament, on +account of certain proceedings in the last session, wherein he was +privately interested, "not only reproaching some particular good members +of the house, but also very much slanderous and derogatory to its +general authority, power, and state, and prejudicial to the validity of +its proceedings 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 resentment 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 design of the Commons that his imprisonment should then +terminate; but their own dissolution, which ensued, put an end to the +business.[446] 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.[447] They exercised it with no small violence in the +session of 1585 against the famous Dr. Parry, who having spoken warmly +against the bill inflicting the penalty of death on jesuits and seminary +priests, as being cruel and bloody, the Commons not only ordered 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 house.[448] The year afterwards Bland, a currier, 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.[449] 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. + +_Privilege of determining contested elections claimed by the +house._--The Commons asserted in this reign, perhaps for 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 pronounce, on +account of the unsatisfactory state of the rolls and journals of +parliament under Edward IV., Henry VII. and Henry VIII. One remarkable +entry, however, may be found in the reign of Mary, when a committee is +appointed "to inquire if Alexander Nowell, prebendary of Westminster, +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 house, and the queen's writ to be directed for another +burgess in his place."[450] Nothing farther appears on record till in +1586 the house appointed a committee to examine the state and +circumstances of the returns for the county of Norfolk. The fact was, +that the chancellor had issued a second 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 belonging to the charge and office of +the lord chancellor, 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 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."[451] 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.[452] 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.[453] 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.[454] 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 1593, reminding them of the queen's want of a +supply, and requesting that a committee of conference 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 subsidy, 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 by 217 to 128.[455] It +was by his opposition to the ministry in this session, that Bacon, who +acted perhaps 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 reinstated +himself in her favour.[456] + +_The English constitution not admitted to be an absolute +monarchy._--That the government of England was a monarchy, bounded by +law, far unlike the actual state of the principal kingdoms on the +Continent, appears 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 passage in Raleigh's preface to his _History of the 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 Netherlands, like unto the kings and sovereigns of +England 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 unexceptionable witness on such a question? +Unscrupulous 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 exaggerate and +distort the liberties of the people.[457] The sentence itself, if +designed to carry the full 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 unrescinded 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 ordinances 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 authority than a royal +ordinance. If a few nobler spirits had protested against the excessive +despotism of the house of Valois; if La Boetie had drunk at the springs +of classical republicanism; if 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;[458] 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 paradoxes availed little with the nation, which, after the +wild fascination 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 adulation 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 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."[459] + +In the first months of Elizabeth's reign, Aylmer, afterwards Bishop of +London, published an answer to a book by John Knox, against female +monarchy, or, as he termed it, _Blast of the Trumpet against 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 answer relies, among other arguments, 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 England! Better in England than anywhere, as it shall well +appear to him that without affection will consider the kind of regimen. +While I compare 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 +consideration think, nor a mere oligarchy nor democracy, 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 monarchy, 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 permitting 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 justices 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 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 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 peradventure make me to fear the matter the more, and +the less to defend the cause."[460] + +This passage, notwithstanding some slight mistakes it contains, affords +a proof of the doctrine current among Englishmen in 1559, and may +perhaps 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 Elizabeth'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 sentence above quoted from +Raleigh. Sir Thomas Smith, secretary of state to Elizabeth, has +bequeathed us a valuable legacy in his treatise on the commonwealth of +England. But undoubtedly he evades, as far as possible, all great +constitutional principles, and treats them, if at all, with a vagueness +and timidity very different from the 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 England, by virtue whereof all +these things be established whereof I spoke before, and no other means +accounted available to make any new _forfeiture of life, members, or +lands_, of any Englishman, where there was no law ordered for it +before."[461] This leaves no small latitude for the authority of royal +proclamations, which the phrase, I make no question, was studiously +adopted in order to preserve. + +_Pretensions of the crown._--There was unfortunately a notion very +prevalent in the cabinet of Elizabeth, though it was not quite so +broadly or at least so frequently promulgated 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 analogous to the dictatorial power, which might be said to reside +in the Roman senate, since it could confer it upon an individual. And we +all must, in fact, admit that self-preservation is the first necessity +of commonwealths as well as persons, which may justify, in Montesquieu's +poetical language, the veiling of the statues of liberty. Thus martial +law is proclaimed during an invasion, and houses are destroyed in +expectation of a siege. But few governments are to be trusted with this +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 ancient 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.[462] +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 associates. 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 unacquainted with the animated +sketch that Hume has delineated of the English constitution under +Elizabeth. It has been partly the object of the present chapter to +correct his exaggerated outline; 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 everything he has written on our +constitution is to have sought for evidence upon one side only of the +question. Thus the remonstrance of the judges against arbitrary +imprisonment by the council is infinitely more conclusive 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 fallacious in the +negative argument which he perpetually uses, that because we find no +mention of any umbrage being taken at certain strains of prerogative, +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 applied 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 adequate to correct. It may be added, that the practical +exercise of authority seems to have been less frequently violent and +oppressive, and its legal limitations better understood in the reign of +Elizabeth, than for some preceding ages; and that sufficient indications +had become distinguishable 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.[463] + +FOOTNOTES: + +[369] _State Trials_, i. 1148. + +[370] _Id._ 1256. + +[371] _Id._ 1403. + +[372] Murden, 337. Dr. Lingard has fully established, what indeed no one +could reasonably have disputed, Elizabeth's passion for Anjou; 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 obsequiousness 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 evident that he does not, and cannot, +answer his own objections to the match. When the council waited on her +with this resolution in favour 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, "greater dishonour than I dare commit to paper." +Strype's _Annals_, 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 understanding, overcame a +disgraceful inclination. + +[373] Strype, iii. 480. Stubbe always signed himself Scaeva, in these +left-handed productions. + +[374] Lodge, ii. 412; iii. 49. + +[375] Several volumes of the Harleian 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 accurate, +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 Sussex, 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," Ashburnham being to attend the +council to prefer his complaint. See also vols. 6995, 6996, 6997, and +many others. The Lansdowne catalogue will furnish other evidences. + +[376] Anderson's _Reports_, i. 297. It may be found also in the +_Biographia Britannica_, and the _Biographical Dictionary_, art. +Anderson. + +[377] Lansdowne MSS. lviii. 87. The Harleian MS. 6846 is a mere +transcript from Anderson's _Reports_, and consequently of no value. +There is another in the same collection, at which I have not looked. + +[378] Hume says, "that the queen had taken a dislike to the smell of +this useful plant." But this reason, if it existed, would hardly have +induced her to prohibit its cultivation throughout the kingdom. The real +motive appears in several letters of the Lansdowne collection. By the +domestic culture of woad, the customs on its importation were reduced; +and this led to a project of levying a sort of excise upon it at home. +_Catalogue of Lansdowne MSS._ xlix. 32-60. The same principle has since +caused the prohibition of sowing tobacco. + +[379] Camden, 476. + +[380] Rymer, xvi. 448. + +[381] Many of these proclamations are scattered through Rymer; and the +whole have been collected in a volume. + +[382] By a proclamation in 1560, butchers killing flesh in Lent are made +subject to a specific penalty of L20; which was levied upon one man. +Strype's _Annals_, i. 235. This seems to have been illegal. + +[383] Lord Camden in 1766. Hargrave, in preface to "Hale de Jure +Coronae," in _Law Tracts_, vol. i. + +[384] 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 (Rymer, xv. 620); and to Richard Wright to +print his translation of Tacitus during his natural life; any one +infringing this privilege to forfeit 40_s._ for every printed copy. +_Id._ xvi. 97. + +[385] 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 council or ordinary. + +[386] A proclamation, dated February 1589, against seditious and +schismatical books and writings, commands 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_, Appendix 126. This has probably been one cause of the extreme +scarcity of these puritanical pamphlets. + +[387] Strype's _Grindal_, 124, and Append. 43, where a list of these +books is given. + +[388] Strype's _Whitgift_, 222, and Append. 94. The archbishop exercised +his power over the press, as may be supposed, with little moderation. +Not confining himself 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 Whitgift about Christ's descent to +hell. It is amusing to read that ultimately the primate came over to +Broughton's opinion; which, if it prove some degree of candour, is a +glaring evidence of the advantages of that free enquiry he had sought to +suppress. P. 384, 431. + +[389] Camden, 449; Strype's _Annals_, 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 sufficient necessity even in that instance to +justify the proceeding by martial law. But bad precedents always beget +"progeniem vitiosiorem." + +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 asserted that a papist might lawfully be killed. He +put an end, however, to this dilemma, by cleaving the skull of one of +the keepers in the Tower, and was hanged in a common way. + +[390] Strype's _Annals_, iii. 570; _Life of Whitgift_, Append. 126. + +[391] Rymer, xvi. 279. + +[392] Carte, 693, from Stowe. + +[393] Strype's _Annals_, i. 535. + +[394] Strype, iii. Append. 147. This was exacted in order to raise men +for service in the Low Countries. But the beneficed clergy were always +bound to furnish horses and armour, or their value, for the defence 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 maintenance +of recusants in custody. This, though very nearly borne out by the +letter of a recent statute (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 entertained of anything approaching to taxation without +consent of parliament, and the caution of the ministry in not pushing +any exertion of prerogative farther than would readily be endured. + +[395] Murden, 632. That some degree of intimidation was occasionally +made use of, may be inferred from the following letter of Sir Henry +Cholmley to the mayor and aldermen of Chester, in 1597. He informs them +of letters received by him from the council, "whereby I am commanded in +all haste to require you that you and every of you send in your several +sums of money unto Torpley (Tarporly) on Friday next the 23rd 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 forthwith before their lordships, to show cause wherefore you +and every of you should refuse to pay her majesty 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." Harl. MSS. 2173, +10. + +[396] Strype, ii. 102. In Haynes, p. 518, is the form of a circular +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 application was made through the lord-lieutenants in +their several counties, to the wealthy and well disposed, 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 statue +of 2nd Richard III. was pressed, yet it went so far, that by commission +and direction money 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 +shillings 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. + +[397] Haynes, 518. Hume has exaggerated this, like other facts, in his +very able, but partial, sketch of the constitution in Elizabeth's reign. + +[398] The following are a few specimens, 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 acquaintance, whom Mr. Stanhope was desirous to marry."--Jan. +25, 1563, lxxi. 73. "Sir John Mason to Sir William Cecil, that he fears +his young landlord, Spelman, has intentions 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 +Burleigh, 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 interposition to +reconcile Lord Zouch her husband, who had forsaken her through +jealousy."--1593, lxxiv. 72. + +[399] _Biographia Britannica_, art. Cecil. + +[400] Townsend's manuscript has been separately published; but I do not +find that D'Ewes has omitted anything of consequence. + +[401] D'Ewes, p. 82; Strype, i. 258, from which latter passage it seems +that Cecil was rather adverse to the proposal. + +[402] D'Ewes, p. 85. The speech which Hume, on D'Ewes's authority, has +put into the queen's mouth at the end of this session, is but an +imperfect copy or abridgment of one which she made in 1566; as D'Ewes +himself afterwards confesses. Her real answer to the speaker in 1563 is +in Harrington's _Nugae Antiquae_, vol. i. p. 80. + +[403] Camden, p. 400. + +[404] 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. + +[405] D'Ewes, p. 128. + +[406] _Id._ p. 116; Journals, 8th Oct., 25th Nov., 2nd Jan. + +[407] D'Ewes, p. 141. + +[408] D'Ewes, 156, etc. There is no mention of Strickland's business in +the journal. + +[409] 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 patent in question. _Id._ 115. + +[410] _Id._ 158; Journals, 7 Apr. + +[411] Journals, 9 and 10 Apr. + +[412] D'Ewes, 159. + +[413] D'Ewes, 151. + +[414] Bell, I suppose, had reconciled himself to the court, which would +have approved no speaker chosen without its recommendation. There was +always an understanding 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 instructions for the +speaker's speech in 1592, drawn up by Lord Burleigh, as might very +likely be the case on other occasions. + +[415] D'Ewes, 219. + +[416] _Id._, 213, 214. + +[417] D'Ewes, 236. + +[418] D'Ewes, 260. + +[419] _Id._ 282. + +[420] D'Ewes, 410. + +[421] P. 438. Townsend calls this gentleman Davenport, which no doubt +was his true name. + +[422] D'Ewes, 433. + +[423] _Id. 440 et post._ + +[424] _Id._ 470. + +[425] D'Ewes, 474; Townsend, 60. + +[426] _Id._ 62. + +[427] See the letter in Lodge's _Illustrations_, vol. iii. 34. Townsend +says he was committed to Sir John Fortescue's keeping, a gentler sort of +imprisonment. P. 61. + +[428] D'Ewes, 470. + +[429] Birch's _Memoirs of Elisabeth_, i. 96. + +[430] Strype has published, from Lord Burleigh's manuscripts, a speech +made in the parliament of 1589 against the subsidy then proposed. +_Annals_, vol. iii. Append. 238. Not a word about this occurs 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 parliament at this +period. + +[431] D'Ewes, 547. + +[432] 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. + +[433] D'Ewes, 619, 644, etc. + +The speeches made in this parliament are reported more fully than usual +by Heywood Townsend, from whose journal those of most importance have +been transcribed 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, according 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 adulatory 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 attributes 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 attribute, 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 prerogative. But it is +erroneous to assert, with Hume, that it came equally from the courtiers +and country gentlemen, and was admitted by both. It will chiefly be +found in the speeches of Secretary Cecil, the official defender of +prerogative, and of some lawyers. Hume, after quoting an extravagant +speech ascribed to Sergeant Heyle, that "all we have is her majesty's, +and she may lawfully at any time take it from us; yea, 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 defendant in a great suit, and +themselves 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 prerogative, but so grossly to transcend all +limits of truth and decency seems even beyond a lawyer seeking office. +Townsend and D'Ewes write with a sort of sarcastic humour, 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 remarks, +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 consuls 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 valued by the +house, was yet unknown; and the members called confusedly for the +business they wished to have brought forward. + +[434] _Parl. Hist._ 958. In the session of 1571, a committee was +appointed to confer with the attorney and solicitor-general about the +return of burgesses from nine places which had not been presented 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 paying 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 bearing their own charges, many of those towns which had thus +discontinued their privilege, renewed it both in Elizabeth's reign and +that of James. P. 80. This could only have been, it is hardly necessary +to say, by obtaining writs out of chancery for that purpose. As 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; +alleging that, as well by reason of his negligent attendance and some +other offences by him committed 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 appointed to enquire into this, reported that +they had requested Mr. Hall to remit his claim for wages, which he had +freely done. D'Ewes, p. 417. + +[435] 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 nominate +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 directs the Sheriff of Surrey to make no return without +instructions from himself; and afterwards orders him to cancel the name +of Francis Bacon in his indenture, he being returned for another place, +and to substitute Edward Brown. Harl. MSS. DCCIII. 16. + +I will introduce in this place, though not belonging to the present +reign, a proof that Henry VIII. did not trust altogether to the +intimidating 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, 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 +instructions 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 bishopric of Winchester." Cotton MSS. Cleopatra +E. iv. 178. Thus we see that the practice of our government has always +been alike; and we may add the same of the nobility, who interfered with +elections 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 Tudors, did by express letters to +the returning officer; and that the operating 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 "historic +truth requires to be mentioned," that for the first parliament of +Elizabeth, "five candidates 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 candidates." Butler's +_Book of the Roman Catholic Church_, p. 225. I never met with any +tolerable authority for this, and believe it to be a mere fabrication; +not certainly of Mr. Butler, who is utterly incapable of a wilful +deviation from truth, but of some of those whom he too implicitly +follows. + +[436] D'Ewes, 168. + +[437] Journals, p. 88. + +[438] Holingshed, vol. iii. p. 824 (4to edit.); Hatsell's _Precedents_, +vol. i. p. 53. Mr. Hatsell inclines too much, in my opinion, to +depreciate 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 +delivered. But, though Henry artfully endeavours to rest it chiefly on +this ground, it appears to me that the Commons claim the privilege as +belonging to themselves, without the least reference to this +circumstance. If they did not always assert it afterwards, this negative +presumption is very weak, when we consider how common it was to overlook +or recede from precedents, 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 +invention. 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. + +[439] Journals, Feb. 22nd and 27th. + +[440] Hatsell, 73, 92, 119. + +[441] _Id._ 90. + +[442] _Id._ 97. + +[443] _Id._ 96. + +[444] _Id._ 119. + +[445] Journals, 5th and 7th March 1557-8. + +[446] D'Ewes, 291; Hatsell, 93. The latter says, "I cannot but suspect, +that there was some private history in this affair, some particular +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 Commons, 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 entry records him to have been "charged +with seven several articles, but having humbly submitted 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. + +[447] Hatsell, 80. + +[448] D'Ewes, 341. + +[449] 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 punished the authors of +libels derogatory to their privileges. P. 127. Though he speaks only of +libels, certainly the punishment of words spoken is at least as strong +an exercise of power. + +[450] Journals, 1 Mary, p. 27. + +[451] D'Ewes, 393, etc. + +[452] _Id._ 430. + +[453] _Id._ 539. + +[454] _Id._ 596. + +[455] 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 Edward 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. + +[456] Birch's _Memoirs_, i. 97, 120, 152, etc., ii. 129; Bacon's Works, +vol. ii. p. 416, 435. + +[457] Raleigh's _Dedication of his Prerogative of Parliaments to James +I._ contains terrible things. "The bonds of subjects to their kings +should always be wrought out of iron, the bonds of kings unto subjects +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 instruments being no other than the surviving witnesses of +his unconstrained will." The object, however, 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 towards +James, a more reasonable language. "In every just state some part of the +government is or ought to be impartial to the people; 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 his +subjects, the matter rightly may be propounded to a parliament, that the +tax may seem to have proceeded from themselves." + +[458] _Le Contre Un_ of La Boetie, the friend of Montaigne, is, as the +title intimates, a vehement philippic against monarchy. It is subjoined +to some editions of the latter's essays. The _Franco-Gallia_ of Hottoman +contains little more than extracts from Fredegarius, Aimoin, and other +ancient writers, to prove the elective character and general freedom of +the monarchy under the two first races. This made a considerable +impression at the time, though the passages in question have been so +often quoted since, that we are almost surprised to find the book so +devoid of novelty. Hubert Languet's _Vindicae contra Tyrannos_, published +under the name of Junius Brutus, is a more argumentative discussion of +the rights of governors and their subjects. + +[459] D'Ewes, p. 115. + +I have already adverted to Gardiner'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 allowing the queen's right +to grant some dispensation in a case of marriage, 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 established by herself and +her three estates, whether that subject be in surety at all times +afterwards: specially seeing there be parliament 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 certain writs, +and directed the judges to admit him to it, which they neglected (that +is, did not think fit) to do. 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 respecting 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 justice 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 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 reasons, 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 +interested therein. This was certainly a little feeble, but they soon +recovered 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 command. 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 transgressed 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 Empson, 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 commanded in these +letters. + +All this was repeated to her majesty for her good allowance of the said +reasons, and which her majesty, as I have heard, says the reporter, took +well; but nothing farther was heard of the business.--Such was the law +and the government, 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. + +[460] _Harborowe of True and Faithful Subjects_, 1559. 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. + +[461] _Commonwealth of England_, b. ii. c. 3. + +[462] Bodin says the English ambassador, M. Dail (Mr. Dale), 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 a son plaisir, et +centre la volonte des estats, comme on a vu Henry VIII. avoir toujours +use de sa puissance souveraine. He admitted, however, that taxes could +only be imposed in parliament. _De la Republique_, l. i. c. 8. + +[463] The misrepresentations of Hume as to the English constitution +under Elizabeth, and the general administration of her reign, have been +exposed since the present chapter was written, by Mr. Brodie, in his +_History of the British 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. + + + + +CHAPTER VI + +ON THE ENGLISH CONSTITUTION UNDER JAMES I + + +_Quiet accession of James._--It might afford an illustration of the +fallaciousness of political speculations, to contrast the hopes and +inquietudes that agitated the minds of men concerning the inheritance of +the Crown during Elizabeth's lifetime, while not less than fourteen +titles were idly or mischievously reckoned up, with the perfect +tranquillity that accompanied the accession of her successor.[464] The +house of Suffolk, whose claim was legally indisputable, if we admit the +testament of Henry VIII. to have been duly executed, appear, though no +public enquiry had been made into that fact, to have lost ground in +popular opinion, partly through an unequal marriage of Lord Beauchamp +with a private gentleman's daughter, but still more from a natural +disposition to favour the hereditary line rather than the capricious +disposition of a sovereign long since dead, as soon as it became +consistent with the preservation 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 education, +sought to gain support to a pretended title in the King of Spain, or his +daughter the infanta, who afterwards married the Archduke Albert, +governor 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 primogeniture by her birth within the +realm, according 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-establishment of the catholic faith in England, and had the judgment +to perceive that the ascendency of Spain would neither be endured by the +nation, nor permitted by the French king, favoured this claim of +Arabella, who though apparently of the reformed religion, was rather +suspected at home of wavering in her faith; and entertained a hope of +marrying her to the Cardinal Farnese, brother of the Duke of Parma.[465] +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 +expectation of what was to follow, as well from conviction 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.[466] + +_Question of his title to the crown._--The popular voice in favour of +James was undoubtedly raised in consequence of a natural opinion that he +was the lawful heir to the throne. But this was only according to vulgar +notions of right, which respect hereditary succession as something +indefeasible. In point of fact, it is at least very doubtful whether +James I. or any of his posterity 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 recognised. No private man could have recovered an acre of land +without proving 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 children usurpers? He had that which the flatterers of +his family most affected to disdain, the will of the people; not +certainly expressed in regular 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 capable of satisfactory proof. This proof consists of four +propositions: 1. That a lawful king of England, 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 executed 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 require no support; the first +being one that it would be perilous to deny, and the second asserting a +notorious 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 required by the act of parliament. In the reign of +Elizabeth, it was asserted by the Queen of Scots' ministers, that the +king being at the last extremity, some one had put a stamp for him to +the instrument. 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, but that they are not the +impressions of any stamp, the marks of the pen being very clearly +discernible.[467] It is more difficult to pronounce that they may not be +feigned; but such is not the opinion of some who are best acquainted +with Henry's handwriting;[468] 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 partisans 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 Suffolk, 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.[469] It is somewhat +more questionable, from which of his two daughters we are to derive the +hereditary stock. This depends on the legitimacy of Lord Beauchamp, son +of the Earl of Hertford by Catherine Grey. I have mentioned in another +place the process before a commission appointed by Elizabeth, which +ended in declaring that their marriage was not proved, and that their +cohabitation had been illicit. The parties alleged themselves to have +been married clandestinely in the Earl of 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 protect 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 mentioning adduced on +the other side; so that, unless the rules of the ecclesiastical law are +scandalously repugnant to common justice, their oaths entitled them to +credit on the merits of the case.[470] 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 legitimacy and the +honour of one who had been the victim of their unhappy loves, petitioned +the king for a review of the proceedings, alleging 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 +solemnised the marriage.[471] A commission 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.[472] 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 impanelled 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.[473] The house of Seymour was now compelled to seek a renewal +of their honours by another channel. Lord Beauchamp, 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.[474] 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 anything) the +validity of the disputed marriage.[475] + +The descent from Eleanor, the younger daughter of Mary Brandon, who +married the Earl of Cumberland, 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 +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 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.[476] 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 +generally 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 consciousness of this defect in +his parliamentary title put James on magnifying, still more than from +his natural temper he was prone to do, the inherent 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.[477] 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, +acknowledging 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."[478] 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 descendants of the house of Suffolk to have +withstood. + +James left a kingdom where his authority was incessantly thwarted and +sometimes openly assailed, 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 +rebellion and hardly of tumult. Such a posture of the English +commonwealth, as well as the general satisfaction testified at his +accession, seemed favourable 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 induced a prince who really +possessed the king-craft wherein James prided himself, to take his +measures with caution. The late queen's popularity had remarkably abated +during her last years.[479] 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 realise and +discontents that they will not assuage. If Elizabeth lost a great deal +of that affection her subjects had entertained for her, this may be +ascribed, not so much to Essex's death, though that no doubt had its +share, as to weightier taxation, to some oppressions of her government, +and above all to her inflexible tenaciousness in every point of +ecclesiastical 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 +alleged abuses in the church, against which the greater and stronger +part of the nation had so long and so loudly raised its voice. + +_Early unpopularity of the king._--The new king's character, +notwithstanding the vicinity of Scotland, seems to have been little +understood 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.[480] The kingdom was full of 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 +unable to wield the sceptre of the great princess whom he ridiculously +affected to despise,[481] so as to keep under that rising spirit, which +might perhaps have grown too strong even for her control. He committed +an important error in throwing away the best opportunity that had +offered itself for healing the wounds of the church of England. In his +way to London, the malcontent clergy presented to him what was commonly +called the Millenary Petition, as if signed by 1000 ministers, though +the real number was not so great.[482] 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 unnaturally taken an extreme disgust at the presbyterian +clergy of his native kingdom, by whom his life had been perpetually +harassed, showed no disposition to treat these petitioners with +favour.[483] The bishops had promised him an obsequiousness to which he +had been little accustomed, and a zeal to enhance his prerogative which +they afterwards too well displayed. His measures towards the +nonconformist party had evidently been resolved upon before he summoned +a few of their divines to the famous conference at Hampton Court. In the +accounts that we read of this meeting, we are alternately struck with +wonder at the indecent and partial behaviour of the king, and at the +abject baseness of the bishops, mixed, according to the custom of +servile natures, with insolence towards their opponents.[484] 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 adversaries.[485] A very few alterations were made in the +church service after this conference, but not of such moment as to +reconcile probably a single minister to the established discipline.[486] +The king 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 determined 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 inconvenience of admitting +innovation in things once settled by mature deliberation."[487] And he +had already strictly enjoined the bishops to proceed against all their +clergy who did not observe the prescribed order;[488] a command which +Bancroft, 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 those who had +presented the Millenary Petition; the judges having declared in the +star-chamber, that it was an offence finable at discretion, and very +near to treason and felony, as it tended to sedition and rebellion.[489] +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 circulation, reflecting with a sharpness +never before known on the king's personal behaviour, which presented an +extraordinary contrast to that of Elizabeth.[490] 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 subjects 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 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 true pattern of divinity, and proving the duty of +passive obedience, rather singularly, from that passage 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 advice 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."[491] 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 favourite practice, on a series of rather +common truths in very good language, charges all persons interested in +the choice of knights for the shire to select them out of the principal +knights or gentlemen within the county; and for the burgesses, that +choice be made of men of sufficiency and discretion, without desire to +please parents and 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 other ways. We do +command, he says, that no bankrupts or outlaws be chosen, but men of +known good behaviour and sufficient livelihood. 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 insufficient, 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.[492] + +_Question of Fortescue and Goodwin's election._--Such an assumption of +control over parliamentary 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 contesting this important point. At the election for the +county of Buckingham, Sir Francis Goodwin had been chosen in preference +to Sir John Fortescue, a privy counsellor, and the writ returned into +chancery. Goodwin having been some years before outlawed, the return was +sent back to the sheriff, as contrary to the late proclamation; and, 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 Goodwin 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 conceived 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 conference 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 directing the house to confer with the judges. After a debate +which seems, from the minutes in the journals, to have been rather warm, +it was unanimously 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 alleged. 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, desired 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 command 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."[493] It was resolved to confer with the +judges in presence of the king and council. In this second conference, +the king, after some favourable expressions 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, after the +dispute had lasted nearly three weeks.[494] They have been considered as +victorious, upon the whole, in this contest, though they 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.[495] + +_Shirley's case of privilege._--The Commons were engaged during this +session in the defence of another privilege, to which they 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 deliver 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 committed 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 own +authority was insufficient, "the vice-chamberlain, according to a +memorandum in the journals, 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 gracious +judgment." By this stratagem, if we may so term it, they saved the point +of honour, and recovered their member.[496] The warden's apprehensions, +however, of exposing himself to an action for the escape gave rise to a +statute, which empowers 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.[497] The most important part of +the whole is a proviso subjoined to the act, "That nothing therein +contained shall extend to the diminishing of any punishment 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 +aforesaid." The right of commitment, in such cases at least, by a vote +of the House of Commons, is here unequivocally maintained. + +_Complaints of grievances._--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 anticipated that +he would go farther than his predecessor, whose uncertain humour, as +well as the inclinations of some of her advisers, had materially +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 +securities in certain cases from the laity, and aiming at the exclusion +of nonconformists from all civil rights.[498] Against these canons, as +well as various other grievances, the Commons remonstrated in a +conference with the upper house, but with little immediate effect.[499] +They made a more remarkable effort in attacking some public mischiefs of +a temporal 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 Elizabeth 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 to derive a pecuniary advantage. The two principal grievances +were, purveyance and the incidents 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 +without the owners' consent, and commanding labour with little or no +recompense.[500] 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 king, since it could not be called a wrong, having been patiently +endured by their ancestors as well as themselves, and being warranted by +the law of the land. In the end the Lords advised to drop the matter for +the present, as somewhat unseasonable in the king's first +parliament.[501] + +In the midst of these testimonies of dissatisfaction with the civil and +ecclesiastical administration, the House of Commons had not felt much +willingness 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 money. They had even passed the usual bill granting tonnage and +poundage for life, with certain reservations that gave the court +offence, and which apparently they afterwards omitted. But there was so +little disposition to do anything 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.[502] + +_Commons' vindication of themselves._--The king's discontent at the +proceedings of this session, which he seems to have rather strongly +expressed in some speech to the Commons that has not been recorded,[503] +gave rise to a very remarkable vindication, prepared by a committee at +the house's command, and entitled "A Form of Apology and 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 umbrage, 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 Plantagenets and Tudors as Hume has endeavoured to +make it appear, the Commons of 1604 must have made a surprising advance +in their notions of freedom 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, renewed every parliament on petition; that they are no court +of record, nor yet a court that can command view of records; that the +examination of the returns of writs for knights and burgesses is without +their compass, and belonging to the chancery: assertions, they say, +"tending directly and apparently to the utter overthrow of the very +fundamental 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 +authority of parliament, desiring "that such their protestation might be +recorded to all posterity;" they maintain, on the contrary, "1. That +their privileges and liberties are their right and inheritance, no less +than their very lands and goods; 2. That they cannot be withheld from +them, denied or impaired, but with apparent wrong to the whole state of +the realm; 3. That their making request, at the beginning 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 authority, 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 privileges of the +house have been more universally and dangerously impugned than ever, as +they suppose, 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 impeach the quiet of +his majesty's right in the succession, those actions were then passed +over which they hoped in succeeding times to redress and rectify; +whereas, on the contrary, in this parliament, 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 +princes may easily and do daily grow. The privileges of the subject are +for the most part at an everlasting stand. They may be by good +providence 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 Goodwin'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 +privileges 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 absolute 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 concerning 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 governor in both."[504] Such was the voice of the 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 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.[505] + +_Session_, 1605.--The next session, which is remarkable on account 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 probably to suppress, +purveyance was thrown out by the Lords. The Commons sent up another bill +to the same effect, which the upper house rejected without discussion, +by a rule then perhaps first established, that the same bill could not +be proposed twice in one session.[506] 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 L400,000, 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 grievances was ready to be presented. No +notice was taken of these till the next session beginning in November +1606, when the king returned an answer to each of the sixteen articles +in which matters of grievance were alleged. Of these the greater part +refer to certain grants made to particular persons in the nature of +monopolies; the king either defending these in his answer, or remitting +the parties to the courts of law to try their legality. + +_Union with Scotland debated._--The principal business of this third +session, as it had been of the last, was James's favourite scheme of a +perfect union between England and Scotland. It may be collected, though +this was never explicitly brought forward, that his views extended to a +legislative incorporation.[507] But in 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 evident, +had no inclination to adopt. Wherefore then was delay to be imputed to +our English parliament, 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 naturalisation of the +ante-nati, or Scots born before the king's accession to our throne, +which could only have a temporary effect?[508] Yet Hume, ever prone to +eulogise this monarch at the expense of his people, while he bestows +merited praise on his speech in favour of the union, which is upon the +whole a well-written and judicious performance, charges the parliament +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 +constitution 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 +endeavoured to defeat by interposing delays and impediments, gave much +offence to the king, which he 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 kingdoms, or to keep his court at +York; and alluded, with peculiar acrimony, to certain speeches made in +the house, wherein probably his own fame had not been spared.[509] "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."[510] + +_Continual bickerings between the Crown and Commons._--It is most +probable, as experience had shown, that such a demonstration of +displeasure from Elizabeth would have ensured the repentant submission +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 government is seldom observant enough to watch. Two springs had +kept in play the machine of her administration, affection and fear; +attachment arising from the sense of dangers endured, and glory achieved +for her people, tempered, though not subdued, by the dread of her stern +courage and 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 sentiments 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.[511] 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.[512] 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 to himself, concerning which it was needless to press him. +This interference provoked some members to resent it, as an infringement +of their liberties. 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 second 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 properly 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 concession, 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.[513] + +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 much against the general wish,[514] had neither +removed all grounds of dispute between the governments, 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 sometimes 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.[515] 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 upon the +grievances they sustained from Spain, entering into such a detail of +alleged cruelties as was likely to exasperate that assembly. Nothing +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 +unusual matter 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 circumstance 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 good construction of +the Commons' desire, that it sprang from a forwardness to assist his +majesty's 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 proceedings. The Earl of +Northampton, who also bore a part in this conference, gave as one reason +among others, why the Lords could not concur in forwarding the petition +to the Crown, that the composition of the House of Commons was in its +first foundation intended merely to be of those that have their +residence 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 insight into matters +of state, yet that was the accident of the person, and not the +intention of the place; and things were to be taken in the institution, +and not in the practice. The Commons seemed to have acquiesced in this +rather contemptuous 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 warrant such an interference. It was however rather +a bold assertion, that they were not the proper channel through which +public grievances, or those of so large a portion of the community as +the merchants, ought to be represented to the throne.[516] + +_Impositions on merchandise without consent of parliament._--During the +interval of two years and a half that elapsed before the commencement of +the next session, a decision had occurred in the court of exchequer, +which threatened the entire overthrow of our constitution. It had always +been deemed the indispensable characteristic of a limited monarchy, +however irregular and inconsistent might be the exercise of some +prerogatives, that no money could be raised from the subject without the +consent 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 explicitly renouncing the custom he had lately set +on wool. Thus the letter of the statute and the history of the times +conspire to prove, that impositions 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 movable property, known in that age by the appellations of +aids and tallages. But as the former could be assessed with great ease, +and with no risk of immediate resistance, and especially as certain +ancient customs were preserved by the statute,[517] so that a train of +fiscal officers, and a scheme of regulations and restraints upon the +export and import 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 exactions upon wool, by +which, if they did not obtain more than a promise of effectual redress, +they kept up their claim, and perpetuated the recognition of its +justice, for the sake of posterity. They became powerful enough to +enforce it under Richard 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. + +Henry VII., the most rapacious, and Henry VIII., the most despotic, of +English monarchs, did not presume to violate this acknowledged right. +The first who had again recourse to this means of enhancing 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 manufactured, could pass +free, there would be a fraud on the revenue. The merchants however did +not acquiesce in this arbitrary imposition, and as soon as Elizabeth's +accession gave hopes of a restoration 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.[518] 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 majority 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 absolutely +against the law.[519] The administration, however, would not release +this duty, which continued to be paid under Elizabeth. She also imposed +one upon sweet wines. We read of no complaint 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 alleged by her enemies. He +defends it, as laid only on a foreign merchandise, and a delicacy which +might be forborne.[520] But considering Elizabeth's unwillingness to +require subsidies from the common, and the rapid increase of foreign +traffic during her reign, it might be asked why she did not extend these +duties to other commodities, and secure 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 wanted +hitherto the stamp of time to give them prescriptive validity?[521] + +James had imposed a duty of five shillings per hundredweight on +currants, over and above that of two shillings and sixpence, which was +granted by the statute of tonnage and poundage.[522] Bates, a Turkey +merchant, having refused payment, an information was exhibited against +him in the exchequer. 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 removal, 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 absolute 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 according to his wisdom for the common good; and all things done +within those rules are lawful. The matter in question is matter of +state, to be ruled according to policy by the king's extraordinary +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 seaports are the +king's gates, which he may open and shut to whom he pleases." The +ancient customs on wine and wool are asserted 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 subsequently controlled this prerogative. But +these judges impugned the authority of statutes derogatory 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 insolence shown in disputing so undeniable a claim. +Nor could any judges be more peremptory in resisting an attempt to +overthrow the most established precedents, than were these barons of +King James's exchequer, in giving away those fundamental liberties in +which every Englishman was inherited.[523] + +_Remonstrances against impositions in session of 1610._--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 upon +almost all merchandise.[524] But the judgment of the court of exchequer +did not satisfy men jealous of the Crown's encroachments. The imposition +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 themselves, which is worthy of +remark, do not appear to have entertained any clear persuasion that the +impost was contrary to law.[525] In the session, 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 remonstrate 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 impositions +was shown in two elaborate speeches by Hakewill and Yelverton.[526] And +the country gentlemen, who, though less deeply versed in precedents, had +too good sense not to discern that 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 message, +and afterwards in a speech, his command not to enter on the subject, +couched in that arrogant tone of despotism which this absurd prince +affected,[527] they presented a strong remonstrance against this +inhibition; claiming "as an ancient, general, and undoubted right of +parliament to debate freely all matters which do probably 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 +apprehended that the reasons of that judgment extended much farther, +even to the utter ruin of the ancient liberty of this kingdom, and of +the subjects' right of property in their lands and goods."[528] "The +policy and constitution of this your kingdom (they say) appropriates +unto the kings of this realm, with the assent of the parliament, as well +the sovereign power of making laws, as that of taxing, or imposing upon +the subjects' goods or merchandises, as may not, without their consents, +be altered or changed. This is the cause that the people of this +kingdom, as they ever showed themselves faithful and loving to their +kings, and ready to aid them, in all their just occasions, with +voluntary contributions; so have they been ever careful to preserve +their own liberties and rights, when anything 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 prerogative in that point. And though the law of +property 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 people, without their +common consent, as may appear by sundry records of former times. We, +therefore, your majesty's most humble Commons assembled in parliament, +following the example of 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 impositions, 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 merchandises, save only by +common assent in parliament, are and shall be void."[529] They proceeded +accordingly, after a pretty long time occupied in searching for +precedents, 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 inculcated by clergy._--The Commons +had reason for their apprehensions. This doctrine of the king's absolute +power beyond the law had become current with all who 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 +authentically published till a later age, could not have been secret. +They consist of a series of propositions or paragraphs, to each of which +an anathema of the opposite error is attached; deducing the origin of +government from the patriarchal regimen 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 prerogatives 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 primogeniture. +Passive obedience in all cases without exception to the established +monarch is inculcated.[530] + +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 monarchy. But its +tendency was evidently in a contrary direction. The king's power was of +God, that of the parliament only of man, obtained perhaps by rebellion; +but out of rebellion what right could spring? Or were it even by +voluntary concession, could a king alienate a divine gift, and infringe +the order of Providence? Could his grants, if not in themselves null, +avail against his posterity, heirs like himself under the great +feoffment of creation? These consequences were at least plausible; 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 unrestrained 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 corrupt, procedure of the +ecclesiastical tribunals. But the civilians, supported by the prelates, +loudly complained of these prohibitions, which seem to 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 the +star-chamber, in 1605, a series of petitions in the name of the clergy, +which Lord Coke has denominated Articuli Cleri, by analogy to some +similar representations of that order under Edward II.[531] In these it +was complained that the courts of law interfered by continual +prohibitions with a jurisdiction 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 encroachment of the king's bench and common +pleas, and that they could regularly issue only out of chancery. To each +of these articles of complaint, extending 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; vindicating in every instance their +right to take cognisance of every collateral matter springing out of an +ecclesiastical suit, and repelling the attack upon their power to issue +prohibitions, as a strange presumption. Nothing was done, nor, thanks to +the firmness of the judges, could be done, by the council in this +respect. For the clergy had begun by advancing that the king's authority +was sufficient to reform what was amiss in any of his own courts, all +jurisdiction spiritual and temporal being annexed to his Crown. But it +was positively and repeatedly denied in reply, that anything less than +an act of parliament could alter the course of justice 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 common 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 suspend any particular law that seemeth +hurtful to 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 Parliament, Cowell observes: "Of these two one must be true, +either that the king is above the parliament, that is, the positive laws +of his kingdom, or else that he is not an absolute king. And therefore +though it be a merciful policy and also a politic mercy, not alterable +without great peril, to make laws by the consent of the whole realm, +because 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 constitution 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."[532] + +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 the lower house; a remarkable proof of his adroitness and +pliancy. James now discovered that it was 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.[533] + +It is the evident policy of every administration, in dealing with the +House of Commons, to humour them in everything 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 +understood 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 essential a part +of their mystery. He wanted a considerable sum of money to defray the +king's debts, which, on his coming into the office of lord treasurer +after Lord Buckhurst's death, he had found to amount to L1,300,000, +about one-third of which was still undischarged. The ordinary expense +also surpassed the revenue by L81,000. It was impossible that this could +continue, without involving 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 L200,000, to be +granted once for all by parliament; and the better to incline the house +to this high and extraordinary demand, he promised in the king's name to +give all the redress and satisfaction in his power for any grievances +they might bring forward.[534] + +_Renewed complaints of the Commons._--This offer on the part of +government seemed to make an opening for a prosperous adjustment of the +differences which had subsisted ever since 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 ecclesiastical 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 ecclesiastical 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 character 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 uncertain or arbitrary form of government, +which, as it hath proceeded from the original good constitution 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, +beloved, happy, and glorious, and the kingdom itself 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, respect, 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 contribution 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 parliament. +Nevertheless, it is apparent, both that proclamations have been of late +years much more frequent than heretofore, and that they are extended, +not only to the liberty, but also to the goods, inheritances, 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 courts of arbitrary discretion, which have +laid heavy and grievous censures upon the delinquents; some, as the +proclamation for starch, accompanied with letters commanding enquiry to +be made against the transgressors at the quarter-sessions; and some +vouching former proclamations to countenance and warrant the later, as +by a catalogue here underwritten more particularly appeareth. By reason +whereof there is a general fear conceived 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 +parliament formerly have been, and still are used to be, which seemeth +to imply a purpose to give them more reputation and more establishment +than heretofore they have had."[535] + +They proceed, after a list of these illegal proclamations, to enumerate +other grievances, such as the delay of courts of law in granting writs +of prohibition and habeas corpus, the jurisdiction of the council of +Wales over the four bordering shires of Gloucester, Worcester, Hereford, +and Salop,[536] some patents of monopolies, and a tax under the name of +a licence recently set upon victuallers. The king answered these +remonstrances with civility, making, as usual, no concession with +respect to the ecclesiastical commission, and evading some of their +other requests; but promising that his proclamations should go no +farther than was warranted by law, and that the royal licences to +victuallers should be revoked. + +_Negotiation for giving up the feudal revenue._--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 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 thought connected with the honour of the monarchy, was +induced, with some real or pretended reluctance, to give up its +lucrative incidents, relief, primer seisin, and wardship, as well as the +right of purveyance. But material difficulties recurred 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 capite, should still remain. The king's demands, too, +seemed exorbitant. He asked L200,000 as a yearly revenue over and above +L100,000, 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 conference, +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 +burthen 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 L200,000 per annum, which +the Commons 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 be bound by sixty +years' prescription. Two points yet remained, of no small moment; +namely, by 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.[537] 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 +prodigal humour, the rapacity of the Scots in his service, and the +probability that this additional revenue 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 redress 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 coldness accordingly was displayed in +their proceedings; and in a short time, this distinguished parliament, +after sitting nearly seven years, was dissolved by proclamation.[538] + +_Dissolution of parliament--Character of James._--It was now perhaps too +late for the king, by any reform or concession, to regain that public +esteem which he had forfeited. Deceived by an overweening 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 confirmed in this delusion by the disgraceful +flattery of his courtiers and bishops, he had wholly overlooked 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 admirably +to wield.[539] The people were proud of martial glory, he spoke only of +the blessing of the peacemakers; they abhorred the court of Spain, he +sought its friendship; they asked indulgence for scrupulous consciences, +he would bear no deviation from conformity; they writhed under 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 treasure, 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;[540] 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 imprescriptible rights of +monarchy.[541] + +_Death of Lord Salisbury._--James lost in 1611 his son Prince Henry, and +in 1612 the lord treasurer Salisbury. He showed little regret for the +former, whose high spirit and great popularity afforded a mortifying +contrast; especially as the young prince had not taken sufficient pains +to disguise his contempt for his father.[542] Salisbury was a very able +man, to whom perhaps his contemporaries did some injustice. The +ministers 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 elevation. It was believed that the desire shown by the House of +Commons to abolish the feudal wardships, proceeded in a great measure +from the circumstance that this obnoxious minister was master of the +court of wards; an office both lucrative and productive of much +influence. But he came into the scheme of abolishing it with a readiness +that did him credit. His chief praise, however, was his 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 favourable +dispositions, affected a tone in the conferences held in 1604, about a +treaty of peace, which Elizabeth would have resented in a very different +manner.[543] On this occasion, he not only deserted the United +Provinces, but gave hopes to Spain that he might, if they persevered in +their obstinacy, take part against them. Nor have I any doubt that his +blind attachment to that power would have precipitated him into a +ruinous connection, 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 firmness and prudence as his master's temper +would allow; the mediation of England was of considerable 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 +throughout Europe,[544] our councils were full of a vigour and +promptitude unusual in this reign; nor did anything but the +assassination of Henry IV. prevent the appearance of an English army in +the Netherlands. 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.[545] + +_Lord Coke's alienation from the court._--The administration found an +important disadvantage, about this time, in a sort of defection of 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, Coke, from various causes, began to steer a more independent +course. He was little formed to endure 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 revenge +by the other's fall. Coke was also much offended by the attempts of the +bishops to emancipate their ecclesiastical courts from the civil +jurisdiction. 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 motives 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 churchmen and +civilians, threatened to subvert.[546] In 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 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.[547] He now performed a great service +to his country. 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 prohibit 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 proclamations. Coke replied, that it was a +matter of great importance, on which he would confer 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 prerogative, +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 commencement. To which I answered, that true +it is that every precedent ought to have a commencement; but when +authority and precedent is wanting, there is need of great consideration +before that anything 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 desired 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 +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 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 it +so. After this resolution, the report goes on to remark, no proclamation +imposing fine and imprisonment was made.[548] + +_Means resorted to in order to avoid the meeting of parliament._--By the +abrupt dissolution of parliament James was left nearly in the same +necessity as before; their subsidy, being by no means sufficient to +defray his expenses, far less to discharge his debts. He had frequently +betaken himself to the usual resource 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 bordering 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 be assured +of everything 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 excuse.[549] 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 attempted as +usual to obtain loans; but the merchants, grown bolder with the spirit +of the times, refused him the accommodation.[550] He had recourse to +another method of raising money, unprecedented, I believe, before his +reign, though long practised in France, the sale of honours. He sold +several peerages for considerable sums, and created a new order of +hereditary knights, called baronets, who paid L1,000 each for their +patents.[551] + +Such resources, however, being evidently insufficient 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 of success. 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 forward 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 literae vocales of the house, and drawing the chief constituent +bodies of the assembly, the country gentlemen, 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 smallest injury be conceded, lest they +should be first demanded, and in order to save more important +points.[552] This advice was seconded by Sir Henry Neville, an ambitious +man, who had narrowly escaped in the queen's time for having tampered in +Essex's conspiracy, and had much promoted 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.[553] 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_.[554] 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. + +Neville, however, and his associates had deceived the courtiers with +promises they could not realise. It was resolved to announce certain +intended 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 amendments of the +law, though eleven in number, failed altogether of giving the content +that had been fully expected. Except the repeal of a strange act of +Henry VIII., allowing the king to make such laws as he should think fit +for the principality of Wales without consent of parliament,[555] none +of them could perhaps be reckoned of any constitutional importance. In +all domanial and fiscal causes, and wherever the private interests of +the Crown stood in competition with those of a subject, the former +enjoyed enormous and superior advantages, whereof what is strictly +called its prerogative 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 with a very few of +these invidious and oppressive distinctions, that the Crown could be +allowed to keep on foot still more momentous abuses. + +_Parliament of 1614._--The Commons of 1614 accordingly went at once to +the characteristic grievance of this reign, the customs at the outports. +They had grown so confident in their cause by ransacking ancient +records, that an unanimous vote passed against the king's right of +imposition; not that there were no courtiers in the house, but the cry +was too obstreperous to be withstood.[556] They demanded a conference on +the subject with the Lords, who preserved a kind of mediating neutrality +throughout this reign.[557] In the course of their debate, Neyle, Bishop +of Lichfield, 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' Journals inform us), denying the most offensive words imputed +to him; and the affair went no farther.[558] 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 project considerably +aggravated the prevailing discontent.[559] 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 undertake for all the Commons of England.[560] That +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 +his former denial, expressly confessed it on opening the session of +1621. + +Amidst these heats little progress was made; 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.[561] Aware of the impossibility of conquering their +resolution, the king carried his measure into effect by a +dissolution.[562] 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 arrested after the dissolution, and kept for a short +time in custody; a manifest violation of that freedom of speech, without +which no assembly can be independent, and which is the stipulated +privilege of the House of Commons.[563] + +_Benevolences._--It was now evident that James could never expect 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 monarchy, but from which he derived an income that he had no +means of replacing. He went on accordingly for six years, supplying his +exigencies by such precarious sources 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 exchequer. It +is said by Carte that some Dutch merchants paid fines to the amount of +L133,000 for exporting gold coin.[564] But still greater profit was +hoped from the requisition of that more than half involuntary +contribution, miscalled a benevolence. 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 +language 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 distinguish 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 afterwards retracted his opinion and pronounced in +favour of its legality. To this second opinion he adheres in his +Reports.[565] While this business was 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 +judgment, to the Commons in parliament, who had refused 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 +sentenced to a fine of L5000, and to imprisonment during pleasure.[566] + +_Prosecution of Peacham._--Coke, though still much at the council-board, +was regarded with increasing dislike on account of his uncompromising +humour. This he had occasion to display in perhaps the worst and most +tyrannical act of King James's reign, the prosecution 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 published, would have amounted to a +seditious libel. But common sense revolted at construing it into +treason, under the statute of Edward III., as a compassing of the king's +death. James, however, took it up with indecent eagerness. Peacham was +put to the rack, and examined upon various interrogatories, as it is +expressed by secretary Winwood, "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 probably but an intemperate effusion, so common among the +puritan clergy. It was necessary therefore 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 according to the custom of this +realm."[567] 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, and found guilty, but not executed, dying in prison a few +months after.[568] + +_Dispute about the jurisdiction of the court of chancery._--It was not +long before the intrepid chief justice incurred again the council's +displeasure. This will require, for the sake of part of my readers, some +little previous explanation. The equitable jurisdiction, 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 jurisdiction 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 +jurisdiction. This originated in the practice of feoffments to uses, by +which the feoffee, who had 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 detaining 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 proceeding, as he might do, to obtain possession; and this gave +rise to injunctions, that is, prohibitions 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 personal 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 produced 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 tribunal +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 of contract, which would otherwise have escaped from them. They +made too an apparently successful effort to recover their exclusive +authority over real property, by obtaining a statute for turning 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 +chancellor's control), they threw away by one of those timid and narrow +constructions which had already turned so much to their prejudice; and +they permitted 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 jurisdiction were as yet +exceedingly indefinite. The chancellors were generally prone to extend +them; and being at the same time ministers of state in a government of +very arbitrary temper, regarded too little that course of precedent by +which the other judges held themselves too strictly bound. The cases +reckoned cognisable in chancery grew silently 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 jealousy of this irregular and encroaching jurisdiction +which all lawyers seem to have felt, but 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 +verdict, 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. Indictments were upon this preferred, at +Coke's instigation, 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 alleged to be contrary to the +statute of praemunire. 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 execution. The +attorney-general was directed to prosecute in the star-chamber those who +had preferred the indictments; and as Coke had not been ostensibly +implicated in the business, the king contented himself with making an +order in the council-book, declaring the chancellor not to have exceeded +his jurisdiction.[569] + +_Case of commendams._--The chief justice almost at the same time gave +another provocation, which exposed him more directly to the court's +resentment. A cause happened to be argued in the court of the king's +bench, wherein the validity of a particular grant of a benefice 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 assembled, 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 +private persons; that it had already been more boldly dealt with in +Westminster Hall than in the reigns of preceding princes, which popular +and unlawful liberty he would no longer endure; that their oath 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 misdemeanours, both in substance and in the tone of +their letter. He observed that the judges ought to check those advocates +who presume to argue against his prerogative; 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 interest, 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; certifying 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 knees, and acknowledged +their error as to the form of the letter. But Coke entered on a defence +of the substance, maintaining the delay required to be against the law +and their oaths. The king 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 +question 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 consult with them, +and that they should stay proceedings in the meantime, 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 command 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.[570] + +The behaviour of the judges in this inglorious contention was such as to +deprive them of every shadow of that confidence which ought to be +reposed in their integrity. Hobart, Doddridge, and 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 discharge of cannon; and prostituted their +integrity and their fame, through dread of losing their offices, 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.[571] +Having however, fortunately in this respect, married his daughter to a +brother of the Duke of Buckingham, he was restored in about three years +to the privy council, where his great experience in business rendered +him useful; and had the satisfaction of voting for an enormous fine on +his enemy the Earl of Suffolk, late high-treasurer, convicted in the +star-chamber of embezzlement.[572] 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 an intrepid and +patriotic old age, the faults which we cannot avoid perceiving in his +earlier life. + +_Arbitrary proceedings of the star-chamber._--The unconstitutional and +usurped authority of the star-chamber over-rode every personal right, +though an assembled parliament might assert its general privileges. +Several remarkable instances in history illustrate its tyranny and +contempt of all known laws and liberties. Two puritans having 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 (whether 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 constantly opposing his +discharge for which he petitioned.[573] 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.[574] Such too was the fate of a more distinguished person +on a still more preposterous accusation. Selden, in his _History of +Tithes_, had indirectly weakened the claim of divine right, which the +high church faction pretended, and had attacked the argument from +prescription, deriving their legal institution from the age of +Charlemagne, or even a later aera. 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. +Selden, like the great Florentine astronomer, bent to the rod of power, +and made rather too submissive an apology for entering on this purely +historical discussion.[575] + +_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 violation 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 evidence 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.[576] At the trial of +Raleigh she was present; and Cecil openly acquitted her of any share in +the conspiracy.[577] She enjoyed afterwards a pension from the king, and +might have died in peace and obscurity, had she not conceived an unhappy +attachment for Mr. Seymour, grandson of that Earl of Hertford, himself +so memorable an example of 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.[578] They both made their escape; +but Arabella was arrested and brought back. Long and hopeless calamity +broke down her mind; imploring in vain the just privileges of an +Englishwoman, and nearly in want of necessaries, she died in prison, and +in a state of lunacy, some years afterwards.[579] And this through the +oppression of a kinsman, whose advocates are always vaunting his good +nature! Her husband became the famous Marquis of Hertford, the faithful +counsellor of Charles the First and partaker of his adversity. 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 L20,000, +and discretionary imprisonment.[580] + +_Somerset and Overbury._--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 revealed 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 Northampton, accomplices in that +deep-laid and deliberate atrocity. Nor was it only that men so +flagitious should have swayed the councils of this country, and rioted +in the king's favour. Strange things were whispered, as if the death of +Overbury was connected with something that did not yet transpire, and +which every effort was employed to conceal. The people, who had already +attributed Prince Henry's death to poison, now laid it at the door of +Somerset; but for that conjecture, however highly countenanced at the +time, there could be no foundation. The symptoms of the prince's +illness, and the appearances on dissection, are not such as could result +from any poison, and manifestly indicate a malignant fever, aggravated +perhaps by injudicious treatment.[581] Yet it is certain that a mystery +hangs over this scandalous tale of Overbury's murder. The insolence 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 suspect, 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 discover no probable clue. +But it is evident that he was master of some secret, which it would have +highly prejudiced the king's honour to divulge.[582] + +_Sir Walter Raleigh._--Sir Walter Raleigh's execution was another stain +upon the reputation of James I. It is needless to mention that he fell +under a sentence passed fifteen years before, on a charge of high +treason, in plotting to raise Arabella Stuart to the throne. It is very +probable that this charge was, partly at least, founded in truth;[583] +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 accusation. 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.[584] For Raleigh's +conduct in the expedition to Guiana, there is not much excuse to make. +Rashness and want of foresight were always among his failings; else he +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.[585] 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 renowned of Englishmen +to the vengeance of Spain.[586] + +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 that he fixed his hopes on the union of his +son with the infanta,[587] the popular dislike to Spain increased in +proportion to his blind preference. If 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 +protestant 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 instance 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 dominions, and the king was sincerely desirous to restore +him to the Palatinate; but he unreasonably expected that he could effect +this through the friendly mediation of Spain, while the nation, not +perhaps less unreasonably, were clamorous for his attempting it by force +of arms. In this agitation of the public mind, he summoned the +parliament that met in February 1621.[588] + +_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.[589] 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 monopoly, including licences for exclusively +carrying on certain trades. Though the government was principally +responsible for the exactions they connived 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 Giles Mompesson, who, +having obtained a patent 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 House of +Commons proceeded to investigate Mompesson's delinquency. Conscious that +the Crown had withdrawn its protection, he fled beyond sea. 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.[590] Entertaining, +however, upon second thoughts, as we must presume, some doubts about +their competence to inflict this punishment, especially the former part +of it, they took the more prudent course with respect to Mompesson, of +appointing Noy and Hakewill to search for precedents in order to show +how far and for what offences their power extended to punish delinquents +against the state as well as those who offended 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."[591] + +The earliest instance of parliamentary impeachment, 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 instance of +parliamentary impeachment, does not by any means support that privilege +of the Commons.[592] It had fallen into disuse, partly from the loss of +that control which the Commons had obtained under Richard II. and the +Lancastrian kings; and 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 Mompesson, though a +remarkable event in our constitutional annals, does not appear to have +been noticed as an anomaly. It was not indeed conducted according to all +the forms of an impeachment. The Commons, requesting a conference with +the other house, informed them generally of that person's offence, but +did not exhibit any distinct articles at their bar. The Lords took up +themselves the inquiry; and having become satisfied 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 misdemeanour; to which the king, by a stretch of prerogative, which +no one was then inclined to call in question, was pleased to add +perpetual banishment.[593] + +The impeachment of Mompesson was followed up by others against Michell, +the associate in his iniquities; against Sir John Bennet, judge of the +prerogative court, for corruption in his office; and against Field, +Bishop of Landaff, for being concerned in a matter of bribery.[594] The +first of these was punished; but the prosecution of Bennet seems to have +dropped in consequence of the adjournment, and that of the bishop ended +in a slight censure. But the wrath of the Commons was justly roused +against that shameless corruption, which characterises the reign of +James beyond every other in our history. + +_Proceedings against Lord Bacon._--It is too well known, how deeply the +greatest man of that age was tarnished by the prevailing iniquity. +Complaints poured in against the chancellor Bacon for receiving 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.[595] 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 conscious +pusillanimity of his defence do not afford a more irresistible +presumption of his misconduct than anything specially alleged. He was +abandoned 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 L40,000 imposed by the Lords, which he was +wholly unable to pay.[596] + +There was much to commend in the severity practised by the house towards +public delinquents; 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 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 aggravation, 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 cognisance of an +ordinary court, grew at once into a portentous offence, which they +ransacked their invention to chastise. After sundry novel and monstrous +propositions, they fixed upon the most degrading punishment they could +devise. Next day, however, the chancellor of the exchequer delivered a +message, that the king, thanking them for their zeal, but desiring that +it should not transport them to inconveniences, would have them consider +whether 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 +sentence a denying party, without the oath of witnesses; 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 embarrassment. They had come to a vote +in Mompesson's case, in the very words employed in the king's message, +confessing themselves to have no jurisdiction, except over offences +against themselves. The warm speakers now controverted this proposition +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.[597] They returned a message by the speaker, +excepting 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.[598] The king replied mildly; urging them to show +precedents, which they were manifestly incapable of doing. The Lords +requested a conference, which they managed with more temper, and +notwithstanding the solicitude displayed by the Commons to maintain +their pretended right, succeeded in withdrawing the matter to their own +jurisdiction.[599] This conflict of privileges was by no means of +service to the unfortunate culprit; the Lords perceived that they could +not mitigate the sentence of the lower house without reviving their +dispute, 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 offence; to be whipped at the cart's tail from the Fleet +to Westminster Hall; to pay a fine of L5000, 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. There is surely no instance in the annals of our own, and +hardly of any civilised 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.[600] + +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 +principles of equity and moderation, by which, however the sophistry of +contemporary factions may set them aside, a calm judging posterity will +never fail to measure their proceedings. It has contributed at least, +along with several others of the same kind, to inspire me with a jealous +distrust of that indefinable, uncontrollable privilege of parliament, +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 theoretical principles have +been carried, without insinuating that the privileges of the House of +Commons 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 character of a popular assembly, then +taught the Commons to assume; and the greater humanity of modern ages +has made us revolt from such disproportionate punishments as were +inflicted on Floyd.[601] + +Everything had hitherto proceeded with harmony between the king and +parliament. His ready concurrence in their animadversion on Mompesson +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 occurring in any debate.[602] 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.[603] They were going on with some +bills for reformation of abuses, to which the king was willing to +accede, when they received an intimation that he expected them to +adjourn over the summer. It 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.[604] 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 religion and of +the Palatinate. This solemn protestation and pledge was entered on +record in the journals.[605] + +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.[606] 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 necessary 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 require L900,000; which was left to +their consideration.[607] But now it was seen that men's promises to +spend their fortunes in a cause not essentially 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 subsidy, +amounting to L70,000; a sum manifestly insufficient for the first +equipment of such a force.[608] 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. + +_Disagreement between the king and Commons._--James was probably not +much displeased at 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 appeased by the secretary Calvert's +declaration that he had not been committed for any parliamentary +matter),[609] till the Commons drew up a petition and remonstrance +against the growth of popery; suggesting, among other remedies for this +grievance, that the prince should marry one of our own religion, and +that the king would direct his efforts against the power (meaning Spain) +which first maintained the war in the Palatinate. This petition 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 inserted, +declaring that the house "did not mean to press on the king's most +undoubted and royal prerogative."[610] 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 pleasure that none therein should presume to meddle with +anything concerning his government or mysteries 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 be informed, was not for any +misdemeanour in parliament. But to put them out of doubt of any question +of that nature that may arise among them hereafter, he let them know +that he thought himself very free and able to punish any man's +misdemeanours 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.[611] + +The house received this message with unanimous 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 displeasure, contained a defence of their former +proceedings, 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 ancestors, which +they again prayed him to confirm.[612] His answer, though considerably +milder than what he had designed, gave indications of a resentment not +yet subdued. He dwelt at length on their unfitness for entering on +matters of government, and commented with some asperity even on their +present apologetical petition. In the conclusion he observed that +"although he could not allow of the style, calling their privileges an +undoubted right 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 +precedent which rather shows a toleration than inheritance); 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."[613] + +This explicit assertion that the privileges of the Commons existed only +by sufferance, and conditionally 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.[614] 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 Calvert, much influence; wherein, while he reiterated his +assurances of respecting their privileges, and tacitly withdrew the +menace that rendered them precarious, he said that he could not with +patience endure his subjects to use such anti-monarchical words to him +concerning their liberties, as "ancient and undoubted right and +inheritance," without subjoining that they were granted by the grace and +favour of his predecessors.[615] After a long and warm debate, they +entered on record in the Journals 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 +jurisdictions 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 +undoubted 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: and that every such member of the said house hath like freedom +from all impeachment, imprisonment, and molestation (other than by the +censure 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 anything 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, before the king give credence to any +private information."[616] + +_Dissolution of the Commons, after a strong remonstrance._--This +protestation was not likely to pacify the king's anger. He had already +pressed the Commons to make an end of the business before them, under +pretence of wishing to adjourn them before Christmas, 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 protestation with his +own hand; and published a declaration of the causes which had provoked +him to this unusual measure, alleging the unfitness of such a protest, +after his ample assurance of maintaining 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 +prerogatives annexed to the imperial Crown. In his proclamation for +dissolving the parliament, James recapitulated all his grounds of +offences; but finally 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 parliament again on the first convenient +occasion.[617] He immediately followed up this dissolution of parliament +by dealing his vengeance on its most conspicuous leaders: Sir Edward +Coke and Sir Robert Philips were committed to the Tower; Mr. Pym, and +one or two more, to other prisons; Sir Dudley Digges, and several who +were somewhat less obnoxious than the former, were sent on a commission +to Ireland, as a sort of honourable banishment.[618] 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 was at work in the spirit of the nation, and by which no +rank could be wholly unaffected.[619] + +_Marriage treaty with Spain._--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 confidence 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 succeeding 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 alarming +pitch of discontent. Libels were in circulation about 1621, so bitterly +malignant in their censures of his person and administration, than two +hundred years might seem, as we read them, to have been mistaken in +their date.[620] Heedless, however, 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.[621] It is +only necessary to remind the reader that the king was induced, during +the residence of Prince Charles and the Duke of Buckingham 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 toleration. 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 a thousand +pretences, became the dupe of its own artifices; the resentment of a +haughty minion overthrowing 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 L300,000;[622] 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 consideration, but promising not to treat for +peace without their advice. They, on the other hand, acknowledged +themselves most bound to his majesty for having been pleased to require +their humble advice in a case so important, not meaning, we may be sure, +by these courteous and loyal expressions, to recede from what they had +claimed in the last parliament as their undoubted right.[623] + +_Impeachment of Middlesex._--The most remarkable affair in this session +was the impeachment of the Earl of Middlesex, actually lord treasurer of +England, for bribery and other misdemeanours. 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 _viva voce_ examination, being as yet unknown, or +dispensed with in political trials. Nothing is more worthy of notice 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 L3 per ton on French wines, for taking off which he +received a gratuity. Sandys, 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 revenue.[624] Such cautious and temperate language, far from +indicating any disposition to recede from their pretensions, is rather a +proof of such united steadiness and discretion as must ensure their +success. Middlesex was unanimously convicted by the peers.[625] 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 insufficient 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 +thirteen years was too long for any civilised country. Several statutes +were enacted in the present session, but none so material as that for +abolishing monopolies for the sale of merchandise, or for using any +trade.[626] This is of a declaratory nature, and recites that they are +already contrary to the ancient and fundamental laws of the realm. +Scarce any difference arose between the Crown and the Commons. This +singular calm might probably have been interrupted, had not the king put +an end to the session. They expressed some little dissatisfaction at +this step,[627] and presented a list of grievances, one only of which is +sufficiently considerable to deserve notice; namely, the proclamations +already mentioned in restraint of building about London, whereof they +complain in very gentle terms, considering their obvious illegality and +violation of private right.[628] + +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 legislative 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 secured beyond controversy their exclusive privilege +of determining contested elections of their members. 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 require the most vigorous exertions of future parliaments +to realise them. But such exertions the increased energy of the nation +gave abundant cause to anticipate. A deep and lasting love of freedom +had taken hold of every class except perhaps the clergy; from which, +when viewed together with the rash pride of the court, and the +uncertainty 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 perhaps +end without confusion. + +FOOTNOTES: + +[464] Father Persons, a subtle and lying Jesuit, published in 1594, +under the name of Doleman, a treatise entitled _Conference about the +next Succession to the Crown of England_. This book is dedicated 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 succession, and to +perplex men's minds by multiplying the number of competitors. This, +however, is but the second part of his _Conference_, the aim of the +first being to prove the right of commonwealths 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 consequently 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 Hertford, but of late have gone more towards Arabella, whose +claim the Lord Burleigh is supposed to countenance. P. 241. The drift of +the whole is to recommend the infanta, by means of perverted history and +bad law, yet ingeniously contrived to ensnare ignorant persons. In his +former and more celebrated treatise, _Leicester's Commonwealth_, though +he harps much on the embarrassments attending the succession, Persons +argues with all his power in favour of the Scottish 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 catholic +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 foreigners, 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 afterwards agree on any project for the succession. +Winwood's _Memorials_, i. 57; _Lettres du Cardinal d'Ossat_, ii. 501. + +For the life and character of the famous Father Persons, or Parsons, +above mentioned, see Dodd's _Church History_, the _Biographia +Britannica_, or Miss Aikin's _James I._, i. 360. Mr. Butler is too +favourably inclined towards a man without patriotism or veracity. Dodd +plainly thinks worse of him than he dares speak. + +[465] D'Ossat, _ubi supra_. Clement had, some years before, indulged the +idle hope that France and Spain might unite to conquer England, and +either bestow the kingdom on some catholic prince or divide it between +themselves, as Louis XII. and Ferdinand had done with Naples in 1501; an +example 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 especially 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 project of setting up Arabella, which +he declared to be both unjust and chimerical. _Mem. de Sully_, l. 15. A +knot of protestants were also busy about the interests of Arabella, or +suspected of being so; Raleigh, Cobham, Northumberland, though perhaps +the last was catholic. Their intrigues occupy a great part of the +letters of other intriguers, Cecil and Lord Henry Howard, in the _Secret +Correspondence with King James_, published by Sir David Dalrymple, vol. +i. _passim_. + +[466] The explicit declaration on her death-bed ascribed to her by Hume +and most other writers, that her kingsman the King of Scots should +succeed her, is not confirmed 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 Elizabeth's conduct towards James in his own +kingdom. What is best to be said for it is, that his indiscretion, 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, rendered it necessary to keep a very strict watch over his +proceedings. If she excited the peers and presbyters 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 +England 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 22nd +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 assistance 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. + +[467] 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 contradiction it never received, that those +who lay too much stress on this very equivocal species of presumption +would, if the will had perished, have reckoned its forgery beyond +question. The king's death approaching, 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 attestation of the late Lord +Paget in parliament, and requests the depositions 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 _Hereditary Right_, p. 197. A treatise of Hales, +for which he suffered imprisonment, in defence of the Suffolk title +under the will, of which there is a manuscript in the British Museum, +Harl. MSS. 537, and which is also printed in the appendix 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 +supposition 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." Everyone who has seen the will must bear witness to the +correctness of this information. The reappearance of this very +remarkable instrument was, as I conceive, after the Revolution; for +Collier mentions that he had heard it was in existence; and it is also +described in a note to the _Acta Regia_. + +[468] 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 presumption turns +much in its favour. + +[469] Bedford's (Harbin's) _Hereditary Right Asserted_, p. 204. + +[470] 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 variances in their depositions (not very +material ones), that their allegations of matrimony could not be +admitted, and that they had incurred 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 conclusion in the text. Their ignorance of the clergyman +who performed the ceremony is not perhaps very extraordinary; he seems +to have been one of those vagabond ecclesiastics, who, till the marriage +act of 1752, were always ready to do that service for a fee. + +[471] "Hereupon I shall add, what I have heard related from persons of +great credit, which is, that the validity of this marriage was +afterwards 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 happened in the court of +wards. + +[472] I derive this fact from a Cotton MS. Vitellius C. xvi. 412, etc.; +but the volume is much burned, and the papers confused with others +relative to Lord Essex's divorce. 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. + +[473] "The same day a great cause between the Lord Beauchamp and +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 Hertford'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 gracious to both lords. But thereby +both land and legitimation remain undecided." The same to the same March +7. Sloane MSS. 4176. + +[474] Dugdale's _Baronage_; Luders' _Essay on the Right of Succession to +the Crown in the Reign of Elizabeth_. 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 support. +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 declaring 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. + +[475] Luders, _ubi supra_. + +[476] The representative of the title of Mary Brandon, Duchess of +Suffolk, 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 Commonwealth_, and the _Conference_, to the +legitimacy of the Seymours. Catherine Grey had been betrothed, or +perhaps married, to Lord Herbert, 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 divorce 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 divorced 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. + +[477] Bolingbroke is of this opinion; considering the act of recognition +as "the aera of hereditary right, and of all those exalted notions +concerning the power of prerogative of kings and the sacredness of their +persons." _Dissertation on Parties_, Letter II. + +[478] Stat. 1 Jac. c. 1. + +[479] 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 affords a good contemporary illustration of the +various feelings which influenced men at this crisis, and is written in +a dispassionate manner. The author ascribes the loss of Elizabeth's +popularity to the impoverishment of the realm, and to the abuses which +prevailed. Carte says, "foreigners were 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 servants." 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. + +[480] Carte, no foe surely to the house of Stuart, says: "By the time he +reached London, the admiration of the intelligent world was turned into +contempt." On this journey he gave a remarkable proof of his hasty +temper and disregard of law, in ordering a pickpocket taken in the fact +to be hanged without trial. The historian 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 notorious guilt might +prevent any open complaint of so illegal a proceeding, it did not fail +to excite observation. "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?" _Nugae Antiquae_, vol. i. p. 180. + +Birch and Carte tell us, on the authority of the French ambassador's +despatches, that on this journey he expressed a great contempt for +women, suffering them to be presented on their knees, and indiscreetly +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 unlike the affable manners +of the late queen. This is confirmed by Wilson, in Kennet's _Complete +History_, vol. ii. p. 667. + +[481] Sully, being sent over to compliment 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 ou il sembloit qu'on eut si fort affecte de mettre en +oubli cette grande reine qu'on n'y faisoit jamais mention d'elle, et +qu'on evitoit meme de prononcer son nom." _Mem. de Sully_, l. 14. James +afterwards spoke slightingly to Sully of his predecessor, and said that +he had long ruled England through her ministers. + +[482] It was subscribed by 825 ministers from twenty-five counties. 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, confirmation, the ring in marriage, the reading of the +Apocrypha, bowing at the name of Jesus, etc.; to non-residence and +incapable ministers, the commendams held by bishops, unnecessary +excommunications, and other usual topics. Neal, p. 408; Fuller, part ii. +p. 22. + +[483] 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 adherence 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, +however, was all his life rather a bold liar than a good dissembler. It +seems strange that they should not have attended to his _Basilicon +Doron_, 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 request anything of that kind. + +[484] Strype's _Whitgift_, p. 571; Collier, p. 675; Neal, p. 411; +Fuller, part ii. p. 7.; _State Trials_, vol. ii. p. 69; _Phoenix +Britannicus_, 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 _Nugae Antiquae_, i. 181, which I +would quote as the best evidence of James's behaviour, were the passage +quite decent. + +[485] Reynolds, the principal disputant 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 +representation in Barlow's account. _Hist. and Ant. of Oxford_, ii. 293. +James wrote a conceited letter to one Blake, boasting of his own +superior logic and learning. Strype's _Whitgift_, Append. 239. + +[486] Rymer, xvi. 565. + +[487] Strype's _Whitgift_, 587. How desirous men not at all connected in +faction with the puritans were of amendments in the church, appears by a +tract of Bacon, written, as it seems, about the end of 1603, vol. i. p. +387.--He excepts to several matters of ceremony; the cap and surplice, +the ring in marriage, the use of organs, the form of absolution, +lay-baptism, etc.; and inveighs against the abuse of excommunication, +against non-residence and pluralities, the oath _ex officio_, the sole +exercise of ordination and jurisdiction by the bishop, conceiving that +the dean and chapter should always assent, etc. 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 ecclesiastical state should still +continue upon the dregs of time, and receive no alteration now for these +forty-five years or more?" + +[488] _Id. ibid._ + +[489] Neal, 432; Winwood, ii. 36. + +[490] See one of the _Somers Tracts_, vol. ii. p. 144, entitled +"Advertisements of a Loyal Subject, drawn from the Observation of the +People's Speeches." This appears to have been written before the meeting +of parliament. The French ambassadors, Sully and La Boderie, thought +most contemptibly of the king. Lingard, vol. ix. p. 107. His own +courtiers, as their private letters show, disliked and derided him. + +[491] King James's Works, p. 207. + +[492] _Parl. Hist._ i. 967. + +[493] Commons' Journals, i. 166. + +[494] It appears that some of the more eager patriots were dissatisfied +at the concession made by vacating 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. + +[495] Commons' Journals, 147, etc.; _Parl. Hist._ 997; Carte, iii. 730, +who gives, on this occasion, a review of the earlier cases where the +house had entered on matters of election. See also a rather curious +letter of Cecil in Winwood's _Memorials_, ii. 18, where he artfully +endeavours to treat the matter as of little importance. + +[496] Commons' Journals, page 155, etc.; _Parl. Hist._ 1028; Carte, 734. + +[497] 1 Jac. i. c. 13. + +[498] By one of these canons, all persons affirming any of the +thirty-nine articles to be erroneous are excommunicated _ipso facto_; +consequently become incapable of being witnesses, of suing for their +debts, etc. Neal, 428. But the courts of law disregarded these _ipso +facto_ excommunications. + +[499] _Somers Tracts_, ii. 14; Journals, 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 frequency. I cannot trace such a bill in the journals +beyond the committee, 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. + +[500] Bacon's Works, i. 624; Journals, 190, 215. + +[501] Commons' Journals, 150, etc. + +[502] Journals, 246. + +[503] Journals, 230. + +[504] _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 ignorant of it. It is just alluded +to by Rapin. + +It is remarked that the attendance of members in this session was more +frequent than had ever been known, so that fresh seats were required. +Journals, 141. + +[505] "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 council's next meeting with me, I think no ways convenient, +especially for three reasons. First, ye see it has bin already longest +delayd of anything, and yet yee see the lower house are ever the longer +the further from it; and (as in everything that concerns mee) delay of +time does never turn them towards mee, but, by the contrary, every hour +breedeth a new trick of contradiction 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 petition, 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 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 concern mee, wrack both me and all my Posterity. Yee +may impart this to little 10 and bigg Suffolk. And so Farewell from my +Wildernesse, wch I had rather live in (as God shall judge mee) like an +Hermite 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; perhaps +the Earl of Dunbar. By 10 we must doubtless understand Salisbury. + +[506] _Parl. Hist. Journals_, 274, 278, etc. 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 Museum, +Sloane MSS. 4161, "that Hare and Hyde represented two tribunes of the +people." But the Commons resented this infringement on their privileges, +and after voting that Mr. Hare did not err in his employment in the +committee with the Lords, sent a message to inform the other house of +their vote, and to request that they "would forbear hereafter any +taxations and reprehensions in their conferences." Journals, 20th and +22nd Feb. + +[507] Journals, 316. + +An acute historical critic doubts whether James aimed at an union of +legislatures, though suggested by Bacon. Laing's _Hist. of Scotland_, +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 incorporation could +have been complete without it. Bacon not only contemplates the formation +of a single parliament, but the alterations necessary to give it effect +(vol. i. p. 638), suggesting that the previous commission 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 parliament. 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 naturalising the ante-nati. In this +he asserts the kingdom not to be fully peopled; "the territories 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 heptarchy. + +[508] 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 +natural subjects of the King of England. This is laid down, and +irresistibly demonstrated, by Coke, then chief justice, with his +abundant legal learning. _State Trials_, vol. ii. 559. + +It may be observed, that the high-flying creed of prerogative mingled +itself intimately with this question of naturalisation; which was much +argued on the monarchical principle of personal allegiance 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 dimension 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 subject +to the sovereign cannot be altered; ergo, natural legiance or obedience +to the sovereign is not due by the law or constitution of man."--652. + +There are many doubtful positions scattered through the judgment in this +famous case. Its surest basis is the long series of precedents, evincing +that the natives 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. + +[509] The house had lately expelled Sir Christopher Pigott for +reflecting on the Scots nation in a speech. Journals, 13th Feb. 1607. + +[510] Commons' Journals, 366. + +The journals are full of notes of these long discussions about the union +in 1604, 1606, 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 succeed, by what the +lawyers call _remitter_, to the prerogatives of the British kings before +Julius Caesar, 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; Rymer, xvi. 603. But it was, not long afterwards, +abandoned. + +[511] Commons' Journals, p. 370. + +[512] P. 377. + +[513] Commons' Journals, p. 384. + +[514] James entertained the strange notion that the war with Spain +ceased by his accession to the throne. By a proclamation dated 23rd 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 +partiality still more outrageously. Carte, iii. 714. All the council, +except this minister, are said to have been favourable to peace. _Id._ +938. + +[515] Winwood, vol. ii. 100, 152, etc.; Birch's _Negotiations of +Edmondes_. If we may believe Sir Charles Cornwallis, our ambassador at +Madrid, "England never lost such an opportunity of winning honour and +wealth, as by relinquishing the war." The Spaniards were astonished how +peace could have been obtained on such advantageous conditions. Winwood, +p. 75. + +[516] Bacon, i. 663; Journals, p. 341. Carte says, on the authority of +the French ambassador's despatches, that the ministry secretly put +forward this petition of the Commons in order to frighten the Spanish +court into making compensation to the merchants, wherein they succeeded. +iii. 766. This is rendered very improbable by Salisbury's behaviour. It +was Carte's mistake to rely too much on the despatches he was permitted +to read in the Depot des Affaires Etrangeres; 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. + +[517] There was a duty on wool, woolfells, and leather, called magna, 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 imposed 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 priere des comunes des marchants de tout +Engleterre. Hale, 146. The prisage of wines, or duty of two tons from +every vessel, is considerably more ancient; but how the Crown came by +this right does not appear. + +[518] 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 handwriting +permitted me to judge, adverse to the prerogative. + +[519] This case I have had the good fortune to discover in one of Mr. +Hargrave's MSS. in the Museum, 132, fol. 66. It is in the handwriting 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 written 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. +"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 elsewhere, 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 realm (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 deliberandum_. 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." + +[520] Bacon, i. 521. + +[521] Hale's _Treatise on the Customs_, part 3; in Hargrave's +_Collection of Law Tracts_. See also the preface by Hargrave to Bates's +case, in the _State Trials_, where this most important question is +learnedly argued. + +[522] He had previously published 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. Rymer, xvi. 602. + +[523] _State Trials_, ii. 371. + +[524] Hale's _Treatise on the Customs_. These were perpetual, "to be for +ever hereafter paid to the king and his successors, on pain of his +displeasure." _State Trials_, 481. + +[525] Journals, 295, 297. + +[526] Mr. Hakewill's speech, though long, will repay the diligent +reader's trouble, as being a very luminous and masterly statement of +this great argument. _State Trials_, ii. 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 prohibit foreign trade altogether. + +As to the king's prerogative of restraining foreign trade, see extracts +from Hale's MS. Treatise de Jure Coronae, in Hargrave's Preface to +_Collection of Law Tracts_, p. xxx. etc. It seems to have been chiefly +as to exportation of corn. + +[527] Aikin's _Memoirs of James I._ i. 350. This speech justly gave +offence. "The 21st of this present (May 1610)," says a correspondent of +Sir Ralph Winwood, "he made another speech to both the houses, but so +little to their satisfaction that I hear it bred generally much +discomfort to see our monarchical power and royal prerogative strained +so high, and made so transcendent every way, that if the practice should +follow the positions, we are not likely to leave to our successors that +freedom we received from our forefathers; nor make account of anything +we have, longer than they list that govern." Winwood, iii. 175. The +traces of this discontent appear in short notes of the debate. Journals, +p. 430. + +[528] Journals, 431. + +[529] _Somers Tracts_, vol. ii. 159; in the Journals much shorter. + +[530] These canons were published in 1690 from a copy belonging to +Bishop Overall, with Sancroft's imprimatur. The title-page runs in an +odd expression: "Bishop Overall'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, etc., until they +were taught by experience 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, jurisdiction, and authority, was first derived from the +people and disordered multitude, or either is originally still in them, +or else is deduced by their consent naturally from them, and is not +God's ordinance, originally descending from him and depending upon him, +he doth greatly err."--P. 3. + +[531] Coke's 2nd Institute, 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. + +[532] Cowell's _Interpreter, or Law Dictionary_; edit. 1607. These +passages are expunged in the later editions of this useful book. What +the author says of the writ of prohibition, and the statutes of +praemunire, under these words, was very invidious towards the common +lawyers, treating such restraints upon the ecclesiastical jurisdiction +as necessary in former ages, but now become useless since the annexation +of the supremacy of the Crown. + +[533] 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, overlooking the most important circumstance, 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. + +[534] Winwood, iii. 123. + +[535] _Somers Tracts_, ii. 162; _State Trials_, ii. 519. + +[536] 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 implies a +previous existence of some such jurisdiction. It was pretended, 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 inhabitants of these counties, +and on reference to the twelve judges, according to Lord Coke, it was +resolved that they were ancient English shires, and not within the +jurisdiction of the council of Wales; "and yet," he subjoins, "the +commission was not after reformed in all points as it ought to have +been." Fourth Inst. 242. An elaborate argument in defence of the +jurisdiction 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 alleged 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 furnish a reason for continuing to exclude them from +the general privileges of the common law, after the necessity had +ceased. The king, however, was determined not to concede this point. +Carte, iii. 794. + +[537] Commons' Journals for 1610, _passim_; Lords' Journals, 7th May, +_et post_; _Parl. Hist._ 1124, _et post_; Bacon, i. 676; Winwood, iii. +119, _et post_. + +[538] 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 privileges, 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." + +[539] "Your queen," says Lord Thos. Howard, in a letter, "did talk of +her subjects' love and good affection, and in good truth she aimed well; +our king talketh of his subjects' fear and subjection, and herein I +think he doth well too, as long as it holdeth good." _Nugae Antiquae_, i. +395. + +[540] The court of James I. was incomparably 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 respects. Gross drunkenness is imputed even to +some of the ladies who acted in the court pageants (_Nugae Antiquae_, i. +348), which Mr. Gifford, who seems absolutely enraptured with this age +and its manners, might as well have remembered. _Life of Ben Jonson_, p. +231, etc. The king's prodigality is notorious. + +[541] "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 presumption 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 +rodomontade, disgusting and contemptible from so wretched a pedant, as +well as offensive to the indignant ears of those who knew and valued +their liberties. The story of Bishops Neile and Andrews is far too trite +for repetition. + +[542] 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 declined to enter on such an affair at that moment. + +[543] Winwood, vol. ii.; Carte, iii. 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 adhering +to Elizabeth's principles of policy. But he was placed in a difficult +position, not feeling himself 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_, l. 14, and _Nugae. Antiquae_, i. 345. +It may be said that Cecil was as little Spanish, just as Walpole was as +little Hanoverian, as the partialities of their respective sovereigns +would permit for their own reputation. It is hardly necessary to +observe, that James and the kingdom were chiefly indebted to Cecil for +the tranquillity that attended the accession of the former to the +throne. I will take this opportunity of noticing that the learned and +worthy compiler of the catalogue of the Lansdowne manuscripts 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." _Lands. 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 so to charge a man with being +corrupted because an attempt is made to corrupt him, as the +catalogue-maker has done in this place. I would not offend this +respectable gentleman; 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 document before him. + +[544] A great part of Winwood's third volume relates to this business, +which, as is well known, attracted a prodigious degree of attention +throughout Europe. The question, as Winwood wrote to Salisbury, was "not +of the succession 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 Brandenburg, the chief protestant +competitor. + +[545] Winwood, vols. ii. and iii. _passim_. Birch, that accurate master +of this part of English history, has done justice to Salisbury's +character. _Negotiations of Edmondes_, p. 347. Miss Aikin, looking 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. + +[546] "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 majesty 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 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 admiralty) 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 highness 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. The letter is dated 25th November 1608, which shows how early Coke +had begun to give offence by his zeal for the law. + +[547] 12 Reports. In his second Institute, p. 57, written a good deal +later, he speaks in a very different manner of Bates's case, and +declares the judgment of the court of exchequer to be contrary to law. + +[548] 12 Reports. There were, however, several proclamations afterwards +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-chamber. +Rymer, xvii. 107 (1618), 144 (1619), 607 (1624). London nevertheless +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 proclamations 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 memoirs 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 constitutional point of view, we may be +startled at proclamations commanding them to return to their +country-houses and maintain hospitality, on pain of condign punishment. +Rymer, xvi. 517 (1604); xvii. 417 (1622), 632 (1624). + +I neglected, in the first chapter, the reference I had made to an +important dictum of the judges in the reign of Mary, which is decisive +as to the legal character of proclamations 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, forefeiture, or imprisonment; for no proclamation can +make a new law, but only confirm and ratify an ancient one." Dalison's +Reports, 20. + +[549] Winwood, iii. 193. + +[550] Carte, iii. 805. + +[551] The number of these was intended 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 L40 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. + +[552] MS. penes autorem. + +[553] Carte, iv. 17. + +[554] Wilson, in Kennet, ii. 696. + +[555] This act (34 H. 8, c. 26) was repealed a few years afterwards. 21 +J. 1, c. 10. + +[556] Commons' Journals, 466, 472, 481, 486. Sir Henry Wotton at length +muttered something in favour of the prerogative of laying impositions, +as belonging to hereditary though not to elective princes. _Id._ 493. +This silly argument is only worth notice, as a proof what erroneous +notions of government were sometimes imbibed from an intercourse with +foreign nations. Dudley Digges and Sandys answered him very properly. + +[557] The judges having been called upon by the House of Lords to +deliver their opinions on the subject of impositions, previous to the +intended 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 consult them, and proceeded from Coke's +dislike to him and to the court. It induced the house to decline the +conference. Lords' Journals, 23rd May. + +[558] Lords' Journals, May 31; Commons' Journals, 496, 498. + +[559] Carte, iv. 23. Neville's memorial above mentioned was read in the +house, May 14. + +[560] Carte, iv. 19, 20; Bacon, i. 695; C. J. 462. + +[561] C. J. 506; Carte, 23. This writer absurdly defends the prerogative +of laying impositions on merchandise as part of the _law of nations_. + +[562] It is said that, previously to taking this step, the king sent for +the Commons, and tore all their bills before their faces in the +banqueting-house at Whitehall. D'Israeli's _Character of James_, p. 158, +on the authority of an unpublished letter. + +[563] Carte; Wilson; Camden's _Annals of James I._ (in Kennet, ii. 643). + +[564] Carte, iv. p. 56. + +[565] 12 Reports, 119. + +[566] _State Trials_, ii. 889. + +[567] There had, however, been instances of it, as in Sir Walter +Raleigh's case (Lodge, iii. 172, 173); and I have found proofs of it in +the queen's reign; though I cannot 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. + +[568] _State Trials_, ii. 869; Bacon, ii. 483, etc.; Dalrymple's +_Memorials of James I._, vol. i. p. 56. Some other very unjustifiable +constructions of the law of treason took place in this reign. Thomas +Owen was indicted and found guilty, under the statute of Edward III., +for saying, that "the king, being excommunicated (_i.e._ if he should be +excommunicated) by the pope, might be lawfully deposed and killed by any +one, which killing would not be murder, being the execution of the +supreme sentence of the pope;" a position very atrocious, but not +amounting to treason. _State Trials_, ii. 879. And Williams, another +papist, was convicted 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. + +[569] Bacon, ii. 500, 518, 522; Cro. Jac. 335, 343. + +[570] Bacon, ii. 517, etc.; 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. + +[571] See D'Israeli, _Character of James I._, p. 125. He was too much +affected by his dismissal from office. + +[572] Camden's _Annals of James I._ in Kennet, vol. ii.; Wilson, +_ibid._, 704, 705; Bacon's Works, ii. 574. The fine imposed was L30,000; +Coke voted for L100,000. + +[573] Fuller's _Church Hist._ 56; Neal, i. 435; Lodge, iii. 344. + +[574] _State Trials_, ii. 765. + +[575] Collier, 712, 717; Selden's Life in _Biographia Brit._ + +[576] Carte, iii. 698. + +[577] _State Trials_, ii. 23; Lodge's _Illustrations_, iii. 217. + +[578] Winwood, iii. 201, 279. + +[579] _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 +proposed that she should walk at the queen's funeral, she answered with +spirit that, as she had been debarred her majesty's presence while +living, 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 handwriting, among the same MSS. 4161. +Those have already assisted Mr. D'Israeli in his interesting 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 before them by habeas corpus, +being informed that it is designed to remove her far from those courts +of justice where she ought to be tried and condemned, or cleared, to +remote 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 distressed subject, then I beseech you become humble intercessors to +his majesty that I may receive such benefit of justice, as both his +majesty by his oath hath promised, and the laws of this realm afford to +all others, those of his blood not excepted. And though, unfortunate +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 deserving so +long restraint or separation from my lawful husband." + +Arabella did not profess the Roman catholic religion, but that party +seem to have relied upon her; and so late as 1610, she incurred some +"suspicion of being collapsed." Winwood, ii. 117. + +This had been also conjectured in the queen's life-time. _Secret +Correspondence of Cecil with James I._, p. 118. + +[580] _State Trials_, ii. 769. + +[581] Sir Charles Cornwallis's _Memoir 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 typhus +fever. The report of his physicians 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 bleeding him. He had no +other murderer. We need not even have recourse to Hume's acute and +decisive remark that, if Somerset had been so experienced in this trade, +he would not have spent five months in bungling about Overbury's death. + +Carte says (vol. iv. 33) that the queen charged Somerset with designing +to poison her, Prince Charles, and the elector palatine, in 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 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 remarkable letter from Sir +Robert Naunton 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. + +[582] The circumstances to which I allude are well known to the curious +in English history, and might furnish materials for a separate +dissertation, 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 edition of the _State +Trials_, and various passages in Lord Bacon's _Letters_, may form for +themselves the best judgment they can. A few conclusions may, perhaps, +be laid down as established, 1. That Overbury's death was occasioned, +not merely by Lady Somerset's revenge, but by his possession of +important secrets, which in his passion he had threatened Somerset to +divulge. 2. That Somerset conceived himself to have a hold over the king +by the possession of the same or some other secrets, and used indirect +threats of revealing them. 3. That the king was in the utmost terror at +hearing of these measures; 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 _Archaeologia_, vol. +xviii. 4. That Bacon was in the king's confidence, and employed by him +so to manage Somerset's trial, as to prevent him from making any +imprudent disclosure, or the judges from getting any insight into that +which it was not meant to reveal. See particularly 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 satisfy myself in any manner as to this +mystery. Prince Henry's death, as I have observed, is out of the +question; nor does a different solution, hinted by Harris and others, +and which may have suggested itself to the reader, appear probable to my +judgment on weighing the whole case. Overbury was an ambitious, +unprincipled man; and it seems more likely than anything else, that +James had listened too much to some criminal suggestion from him and +Somerset; but of what nature I cannot pretend even to conjecture; and +that through apprehension of this being disclosed, he had +pusillanimously acquiesced in the scheme of Overbury's murder. + +It is a remarkable fact, mentioned by Burnet, and perhaps little +believed, but which, like the former, has lately been confirmed by +documents printed in the _Archaeologia_, that James in the last year of +his reign, while dissatisfied with Buckingham, privately renewed his +correspondence with Somerset, 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 Somerset, evidently at the king's +command, and most probably after the clandestine interview reported by +Burnet, contains strong charges against Buckingham. _Archaeologia_, vol. +xvii. 280. But no consequences resulted from this; James was either +reconciled to his favourite 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 famous proposal for bridling the +impertinences of parliament. Kennet, iii. 62. The patriots, however, 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. + +[583] Raleigh made an attempt to destroy himself on being committed to +the Tower; which of course affords a presumption of his consciousness +that something could be 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 connection +of the conspirators with the Spanish plenipotentiary. But it may be +questioned whether he knew any more than the government 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 +remembered 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 overlooked 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 hostility 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 containing 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. + +[584] This estate was Sherborn Castle, which Raleigh had not very fairly +obtained from the see of Salisbury. He settled this before his +conviction upon his son; but an accidental flaw in the deed enabled the +king to wrest it from him, and bestow 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, L12,000 instead. But the estate was worth L5000 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 +speculations. Cayley, 89, etc.; _Somers Tracts_, ii. p. 22, etc.; +_Curiosities 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 certainly such under +Elizabeth. This is a striking, but by no means solitary, instance of the +impolicy of political persecution. + +[585] Rymer, xvi. 789. He was empowered to name officers, to use martial +law, etc. + +[586] 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 is even reason to suspect that he +betrayed the secret of Raleigh's voyage to Gondomar, before 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 +difficulty at least about granting it. + +[587] 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, Weston, Calvert, as well as Buckingham, whose connections 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. + +[588] The proclamation for this parliament contains many of the +unconstitutional directions to the electors, contained, as has been +seen, in that of 1604, though shorter. Rymer, xvii. 270. + +[589] "Deal with me, as I shall desire at your hands," etc. "He 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 the last parliament there was "a strange kind of +beast called undertaker," etc. _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 granting the speaker's petitions, took the high tone so usual in this +reign, and directed the House of Commons like a schoolmaster. Bacon's +Works, i. 701. + +[590] 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_. + +[591] _Id._ 103, 109. + +[592] The Commons in this session complained to the Lords, that the +Bishop of London (Stokesley) had imprisoned one Philips on suspicion of +heresy. Some time afterwards, they called upon him to answer their +complaint. The bishop laid the matter before the Lords, who all declared +that it was unbecoming for any lord of parliament to make answer to any +one in that place; "quod non consentaneum fuit aliquem procerum +praedictorum alicui in eo loco responsorum." Lords' Journals, i. 71. The +lords, however, in 1701 (_State Trials_, xiv. 275), seem to have +recognised this as a case of impeachment. + +[593] Debates in 1621, p. 114, 228, 229. + +[594] _Id. passim._ + +[595] Carte. + +[596] Clarendon speaks of this impeachment as an unhappy precedent, made +to gratify a private displeasure. This expression seems rather to point +to Buckingham than to Coke; and some letters of Bacon to the favourite +at the time of his fall display a consciousness of having offended him. +Yet Buckingham had much more reason to thank Bacon as his wisest +counsellor, 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 kingdom love the laws +thereof, and nothing will oblige them more than a confidence of the free +enjoying of them: what the nobles upon an occasion once said in +parliament, 'Nolumus leges Angliae 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 political +writings than we should expect. His practice was servile, but his +principles were not unconstitutional. 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 refused 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 feeling 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 characters. "Surely," says the latter, "never so many +parts and so base and abject a spirit tenanted together 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 acknowledged in his own age +amidst so much that should excite contempt. He had indeed ingratiated +himself with every preceding parliament through his incomparable +ductility; having take an active part in their complaints of grievances +in 1604, before he became attorney-general, and even on many occasions +afterwards while he held that office, having been intrusted with the +management of conferences on the most delicate subjects. In 1614, the +Commons, after voting that the attorney-general 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 interest 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 produced. + +[597] Debates in 1621, vol. ii. p. 7. + +[598] Debates, p. 14. + +[599] 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 parliament, the Lords +sent them word that they would never acknowledge 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 commons' court of parliament; "because all +your house together, without theirs, doth make no court of parliament." +4th March, 1606. Lords' Journals. Nevertheless 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 members for the cinque ports, whose denomination is +recognised in several statutes. + +[600] Debates in 1621, vol. i. p. 355, etc.; vol. ii. p. 5, etc. 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. + +[601] The following observation on Floyd's case, written by Mr. Harley, +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 written 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 neglected by King James, and +consequently in opposition to him, will carry people against common +justice and humanity." And again at the bottom: "For the honour of +Englishmen, and indeed of human nature, it were to be hoped these +debates were not truly taken, there being so many motions contrary 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 observations, 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 of +Floyd, but much beyond what can be deemed their legitimate extent. + +[602] In a much later period of the session, when the Commons had lost +their good humour, some heat was very justly excited by a petition from +some brewers, complaining of an imposition of four-pence on the quarter +of malt. The courtiers defended this as a composition in lieu of +purveyance. But it was answered that it was compulsory, 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 examined before the house, the +petitioners 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 nothing +further seems to have taken place, whether on account of the magnitude +of the business which occupied them during the short remainder 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. + +[603] Debates of 1621, p. 14; Hatsell's _Precedents_, i. 133. + +[604] Debates, p. 114, _et alibi, passim_. + +[605] Vol. ii. 170, 172. + +[606] _Id._ p. 186. + +[607] P. 189. Lord Cranfield told the Commons there were three reasons +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 +20_s._ were now 30_s._ 3. That corn had risen from 26_s._ to 36_s._ 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 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 endeavoured to keep +up. But corn, probably through good seasons, was rather lower in 1621 +than it had been--about 30_s._ a quarter. + +[608] P. 242, etc. + +[609] _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 hardly doubt that Sandys was really committed for no other +cause than his behaviour in parliament. It was taken up again +afterwards. P. 259. + +[610] P. 261, etc. + +[611] P. 284. + +[612] P. 289. + +[613] P. 317. + +[614] P. 330. + +[615] P. 339. + +[616] P. 359. + +[617] Rymer, xvii. 344; _Parl. Hist._ Carte, 93; Wilson. + +[618] 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. + +[619] 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 petition to the king which they refused to deliver to +the council, as he desired, nor even to the prince, unless he would say +he did not receive it as a counsellor; whereupon the king sent for Lord +Oxford, 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, unless they were +admitted all together. Whereupon his majesty, wonderfully incensed, sent +them all away, _re infecta_, 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 grievances, but to a question of their own +privileges, as to their precedence of Scots peers. Wilson, _ubi supra_. +But several of this large number were inspired by more generous +sentiments; and the commencement of an aristocratic opposition deserves +to be noticed. In another letter, written in March, Mede speaks of the +good understanding between the king and parliament; he promised they +should sit as long as they like, and hereafter he would have a +parliament every three years. "Is not this good if it be true?... But +certain it is that the Lords stick wonderful fast to the Commons and all +take great pains." + +The entertaining and sensible biographer of James has sketched the +characters of these Whig peers. Aikin's _James I._, ii. 238. + +[620] One of these may be found in the _Somers Tracts_, ii. 470, +entitled Tom Tell-truth, a most malignant ebullition of disloyalty, +which the author must have risked his neck as well as ears in +publishing. Some outrageous reflections on the personal character of the +king could hardly be excelled by modern licentiousness. Proclamations +about this time against excess of lavish speech in matters of state +(Rymer, xvii. 275, 514), and against printing or uttering seditious and +scandalous pamphlets (_Id._ 522, 616) show the tone and temper of the +nation. + +[621] 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 _Letters_, being written from Madrid during the +Prince of Wales's residence, deserve notice. See also Wilson in Kennet, +p. 750, _et post_. Dr. Lingard has illustrated the subject lately (ix. +271). + +[622] Hume, and many other writers on the side of the Crown, assert the +value of a subsidy to have fallen from L70,000, at which it had been +under the Tudors, to L55,000, or a less sum. But though I will not +assert a negative too boldly, I have no recollection of having found any +good authority 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 diminution 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 underrate 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_ L80,000; and that the assessors were directed +(this was in 1621) not to follow former books, but value every man's +estate according to their knowledge, and not his own confession. + +[623] _Parl. Hist._ 1383, 1388, 1390; Carte, 119. The king seems to have +acted pretty fairly in this parliament, bating a gross falsehood in +denying the intended toleration 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. + +[624] _Parl. Hist._ 1421. + +[625] Clarendon blames the impeachment of Middlesex for the very reason +which makes me deem it a fortunate event for the constitution, and seems +to consider him as a sacrifice to Buckingham's resentment. Hacket also, +the biographer 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 Farrar" in Wordsworth's _Ecclesiastical Biography_, +vol. iv.; where it appears that that pious and conscientious man was one +of the treasurer's most forward accusers, having been deeply injured by +him. It is difficult to determine the question from the printed trial. + +[626] 21 Jac. 1, c. 3. See what Lord Coke says on this act, and on the +general subject of monopolies. 3 Inst. 181. + +[627] _P. H._ 1483. + +[628] _Id._ 1488. + + + + +CHAPTER VII + +ON THE ENGLISH CONSTITUTION FROM THE ACCESSION OF CHARLES I. TO THE +DISSOLUTION OF HIS THIRD PARLIAMENT + +1625-1629 + + +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 serious deportment, a disinclination to all licentiousness, +and a sense of religion that seemed more real than in his father.[629] +These qualities we might suppose to have raised some expectation of him, +and to have procured at his accession some of that popularity, which is +rarely withheld from untried princes. Yet it does not appear that he +enjoyed 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 benevolences were +exhausted, it had always been found necessary, in the most arbitrary +times of the Tudors, to fall back on the representatives of the people. +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 imprudences, or rather of his blind +compliances with Buckingham, to have not only commenced hostilities +against Spain which he might easily have avoided,[630] and persisted in +them for four years, but entered on a fresh war with France, though he +had abundant experience to demonstrate the impossibility of defraying +its charges. + +_Parliament of 1625._--The first parliament of this reign has been +severely censured on account of the penurious supply 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 assemblies, it was +preposterous to expect subsidies equal to the occasion, until a +foundation of confidence should be laid between the Crown and +parliament. 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.[631] 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 reformation. Hence they made their +grant of tonnage and poundage to last but for a year instead of the +king's life, as had for two centuries been the practice; on which +account the upper house rejected the bill.[632] Nor would they have +refused a further supply, beyond the two subsidies (about L140,000) +which they had granted, had some tender of redress been made by the +Crown; and were actually in debate upon the matter, when interrupted by +a sudden dissolution.[633] + +Nothing could be more evident, by the experience of the late reign as +well as by observing the state of public spirit, than that hasty and +premature dissolutions or prorogations of parliament served but to +aggravate the Crown's embarrassments. Every successive House of Commons +inherited 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 nominating them sheriffs for the +year, failed altogether of the expected success; as it naturally must in +an age when all ranks partook in a common enthusiasm.[634] Hence the +prosecution against Buckingham, to avert which Charles had dissolved his +first parliament, was commenced with redoubled vigour in the second. It +was too late, 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 message so provoked the Commons that, having +no 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 presumption, 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 himself, bidding +them remember that parliaments were altogether in his power for their +calling, sitting, and dissolution; therefore, as he found the fruits of +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 +decorous language, but asserting "the ancient, constant, and undoubted +right and usage of parliaments to question and complain of all persons, +of what degree soever, found grievous to the commonwealth, in abusing +the power and trust committed to them by their sovereign."[635] 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 evidence in support of them, it was rather unreasonable in them to +request that he might be committed 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 popular party, though not exempt from some +oblique views towards promotion, gave such offence by words spoken, or +alleged to be spoken, in derogation 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.[636] He +had already broken in upon the privileges of the House of Lords, by +committing the Earl of Arundel 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 committee, came to a +resolution, "that no lord of parliament, the parliament sitting, or +within the usual times of privilege of parliament, is to be imprisoned +or restrained without sentence or order of the house, unless it be for +treason or felony, or for refusing to give surety for the peace." This +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.[637] + +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 irregularities or +uncertainty of legal principle might be found in earlier times as to +persons summoned only by writ without patents of creation, concerning +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 constitutional will expressed in the +writ ought to outweigh his private command, and laid the secretary's +letter before the House of Lords. The king prevented any further +interference in his behalf by causing articles of charge to be exhibited +against him by the attorney-general, whereon he was committed to the +Tower. These assaults on the pride and consequence of an aristocratic +assembly, from whom alone the king could expect effectual support, +display his unfitness not only for the government of England, but of any +other nation. Nor was his conduct towards Bristol less oppressive 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,[638] and his sanction of charges +which, if Bristol's defence 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 maintain, like Clarendon and Hume, the +integrity and innocence of Lord Bristol, together with the sincerity and +humanity of Charles I. Such inconsistencies betray a determination in +the historian to speak of men according to his preconceived affection or +prejudice, without so much as attempting to reconcile these sentiments +to the facts which he can neither deny nor excuse.[639] + +Though the Lords petitioned against a dissolution, the king was +determined to protect his favourite, and rescue himself from the +importunities of so refractory a House of Commons.[640] 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 complaints, 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 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 capable, mentioning the sum they were +required to lend, with a promise of repayment in eighteen months.[641] +This specification of a particular sum was reckoned an unusual +encroachment, and a manifest breach of the statute against arbitrary +benevolences; especially as the name 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 subsidy but by +authority of parliament.[642] This course, therefore, was abandoned for +one hardly less unconstitutional. A general loan was demanded from every +subject, according to the rate at which he was assessed in the last +subsidy. The commissioners appointed for the collection of this loan +received 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 certify the +names of refractory persons to the privy council, and to admit of no +excuse for abatement of the sum required.[643] + +_Arbitrary taxation._--This arbitrary taxation (for the name of loan +could not disguise the extreme improbability that the money would be +repaid), so general and systematic as well as so weighty, could not be +endured without establishing a precedent that must have shortly put an +end to the existence of parliaments. 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 supplies 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 imprisonment of its promoters, every +denial of subsidy to furnish a justification for extorted loans, our +free-born high-minded gentry would not long have brooked to give their +attendance in such an ignominious assembly, and an English parliament +would have become as idle a mockery of national representation as the +cortes of Castile. But this kingdom was not in a temper to put up with +tyranny. The king's advisers were as little disposed to recede from +their attempt. They prepared to enforce it by the arm of power.[644] The +common people who refused to contribute were impressed to serve in the +navy. The gentry were bound by recognisance to appear at the +council-table, where many of them were committed to prison.[645] Among +these were five knights, Darnel, Carbet, 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 made return that they were +detained by a warrant from the privy council, informing him of no +particular cause of imprisonment, but that they were committed by the +special command of his majesty. This gave rise to a most important +question, whether 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 ultimate 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 material grievance. Thus in the 25th of Edward III. it is provided +that "no one shall be taken by petition or suggestion to the king or his +counsel, unless it be (_i.e._ but only) by indictment or presentment, 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 of +the same reign. It was never understood, whatever the loose language of +these old statutes might suggest, that no man could be kept in custody +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 +magistrate 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 determine whether it should +release or remand the prisoners brought before them by habeas corpus. + +The advocates for this principal alleged 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 or the other, they are to be brought back unto the laws by +which the kingdom is governed." 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 commitment; 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 command 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 Edward +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 recognise as sufficient 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 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 attorney-general, replied in +a speech of considerable ability, full of those high principles of +prerogative which, trampling as it were on all statute and precedent, +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 +notoriously 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 observed, with the supporters of +despotism. "Shall we make inquiries," he says, "whether his commands 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 commitment, 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 mere political jealousy. "Some there were," he +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 precedents of the other side, and condescending to admit their +validity, however contrary to the tenor of his former argument, he +evades their application by such distinctions as I have already +mentioned. + +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 alleged to show the practice of the court in bailing persons +committed by the king's special command. He endeavoured also to prove +that, where no cause had been expressed in the warrant, except 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 hundred 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_.[646] 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 commitment as to require no further cause to be +expressed, and to prevent the judges from discharging the party from +custody, either absolutely or upon bail. Yet it was evidently the +consequence of this decision, that every statute from the time of 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 efficacy. And this wound was the more deadly, in +that the notorious cause of these gentlemen's imprisonment was their +withstanding an illegal exaction of money. Everything that distinguished +our constitutional laws, all that rendered the name of England valuable, +was at stake on this issue. If the judgment in the case of ship-money +was more flagrantly iniquitous, it was not so extensively destructive as +the present.[647] + +_A parliament called in 1628._--Neither of these measures, however, of +illegal severity towards the uncompliant, backed as they were by a timid +court of justice, nor the exhortations of a more prostitute and +shameless band of churchmen, could divert the nation from its cardinal +point of faith in its own prescriptive franchises. 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.[648] Previously to its assembling, he released a +considerable number of gentlemen and others who had been committed for +their refusal of the loan. These were, in many cases, elected to the new +parliament; coming thither 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 hazarded;"[649] and the +levying of ship-money was already debated in the council. Anticipating, +as indeed was natural, that this House of Commons would correspond as +ill to the king's wishes as their predecessors, 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 suspicious, +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 contribution was going +forward.[650] Shall it be imputed as a reproach to the Cokes, the +Seldens, the Glanvils, the Pyms, the Eliots, the Philipses, of this +famous parliament, that they endeavoured to devise more effectual +restraints than the law had hitherto imposed 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 +expenditure of government, as the surest pledge of his obedience to the +laws? + +_Petition of Right._--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 +decision 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, whether for convenience or for purposes of intimidation and +annoyance; and the commissions to try military offenders by martial +law--a procedure necessary 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.[651] These four +grievances or abuses form the foundation of the Petition of Right, +presented by the Commons in the shape of a declaratory statute. Charles +had recourse to many subterfuges in hopes to elude the passing of this +law; rather perhaps through wounded pride, as we may judge from his +subsequent conduct, than such 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 receding from the patriot banner they had lately +joined, lent him their aid by proposing amendments (insidious in those +who suggested them, though not in the body of the house), which the +Commons firmly rejected.[652] 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 harshness towards Charles his advocates have said so much, +immediately passed a bill for granting five subsidies, about L350,000; a +sum not too great for the wealth of the kingdom or for his exigencies, +but considerable according to the precedents of former times, to which +men naturally look.[653] + +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 justices, Hyde and Richardson, to Whitehall; and +propounded certain questions, directing that the other judges should be +assembled in order to answer 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 +without showing the cause for a convenient time." The king then +delivered them a second question, and required them to keep it very +secret, as the former: "Whether, in case a habeas corpus be 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 committed 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 of 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 restraining a subject for any +time or cause whatsoever, without showing a cause?" The judges returned +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."[654] + +The king, a very few days afterwards gave his _first_ answer to the +Petition of Right. For even this indirect promise of compliance, which +the judges gave him, did not relieve him from apprehensions that he +might lose the prerogative of arbitrary commitment. And though, after +being beaten from this evasion, he was compelled to accede in general +terms to the petition, he had the insincerity to circulate one thousand +five hundred copies of it through the country, after the prorogation, +with his first answer annexed; an attempt to deceive without the +possibility of success.[655] But instances 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 essential privileges of +the subject, and enumerating the violations of them which had recently +occurred, in the four points of illegal exactions, arbitrary +commitments, quartering of soldiers or sailors, and infliction 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 +confined or otherwise molested or disquieted concerning the same, or for +refusal thereof; and that no freeman in any such manner as is before +mentioned be imprisoned or detained; and that your majesty would be +pleased to remove the said soldiers and marines, and that your people +may not be so burthened in time to come; and that the aforesaid +commissions for proceeding by martial law may be revoked and annulled; +and that hereafter no commissions of the like nature may issue forth to +any person or persons whatever, to be executed as aforesaid, 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."[656] + +_Tonnage and poundage disputed._--It might not unreasonably be +questioned whether the language of this statute were sufficiently +general to comprehend duties charged on merchandise at the outports, 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 +poundage, the customary grant of every reign, had been taken by the +present king without consent 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 remonstrate with the king against his unconstitutional +anticipation of their consent. They declared "that there ought not any +imposition to be laid upon the goods of merchants, exported or imported, +without common consent by act of parliament; 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 +fundamental liberties of this kingdom, and contrary to the late petition +of right, with most humbly beseeching his majesty to forbear any further +receiving 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.[657] + +The king anticipated the delivery of this remonstrance 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 merchants, among whom Chambers, Rolls, and +Vassal are particularly to be remembered with honour, who gallantly +refused to comply with the demands 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 established in the case of Bates, could no +longer be disputed.[658] Thus the Commons re-assembled, by no means less +inflamed against the king's administration than at the commencement of +the preceding session. Their proceedings were conducted with more than +usual warmth.[659] 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 poundage, 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 impositions 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 +parliament. + +_Religious differences._--The religious disputes to which I have just +alluded are chiefly to be considered, for the present purpose, in their +relation to those jealousies and resentments springing out of the +ecclesiastical administration, which during the reigns of the two first +Stuarts furnished unceasing food to political discontent. James having +early shown his inflexible determination to restrain the puritans, the +bishops 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. It had +been solemnly decided by the judges in the queen's reign, and in 1604, +that, although the statute establishing the high commission court did +not authorise it to deprive ministers of their benefices, 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 principle, Archbishop Bancroft deprived a +considerable number of puritan clergymen;[660] while 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 were careless +or irregular, learned as a body comparatively with the opposite party, +implacably averse to everything 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 disposition, as well +as by a certain tendency to equivocation 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 naturally 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. + +_Growth of high church tenets._--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 caprice, +are ever found to pursue. They studiously aggravated every difference, +and irritated every wound. As the characteristic prejudice of the +puritans was so bigoted an abhorrence of the Romish faith, that they +hardly deemed its followers to deserve 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 +began by preaching the divine right, as it is called, or absolute +indispensability, of episcopacy;[661] a doctrine of which the first +traces, as I apprehend, are found about the end of Elizabeth's reign. +They insisted on the necessity of episcopal succession regularly derived +from the apostles. They 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 except their own, the Lutherans not +having preserved 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 distinguished +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 they were not at all +related, and schismatics with whom they held no communion; nay, as +wanting the very essence of a Christian society. This again brought them +nearer, by irresistible consequence, to the disciples of Rome, with +becoming 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 appellation, +expressly or by inference, from Heidelberg and Geneva. + +_Differences as to the observance of Sunday._--The founders of the +English reformation, after 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.[662] 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 observance 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 affording a new theme of censure +on the vices of the great.[663] Those who opposed them on the high +church side, not only derided the extravagance of the Sabbatarians, as +the others were called, but pretended that the commandment having been +confined to the Hebrews, the modern observance of the first day of the +week as a season of rest and devotion was an ecclesiastical institution, +and in no degree more venerable than that of the other festivals or the +season of Lent, which the puritans stubbornly despised.[664] Such a +controversy might well have been left to the usual weapons. But James +I., or some of the bishops to whom he listened, bethought themselves +that this might serve as a test of puritan ministers. He published +accordingly a declaration to be read in churches, permitting all lawful +recreations on Sunday after divine service, such as dancing, archery, +May-games, and morrice-dances, and other usual sports; but with a +prohibition of bear-hunting and other unlawful games. No recusant, or +any one who had not attended the church service, was entitled 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 explain so unnecessary an insult on the precise clergy, but +by supposing an intention to harass those who should refuse +compliance.[665] But this intention, from whatever cause, perhaps +through the influence of Archbishop Abbot, was not carried into effect; +nor was the declaration itself enforced till the following reign. + +The House of Commons displayed their attachment to the puritan maxims, +or their dislike of the prelatical clergy, by bringing in bills to +enforce a greater strictness in this respect. A circumstance 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 +entitled a bill for the observance of Saturday, commonly 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.[666] Yet when the upper house sent +down their bill with "the Lord's day" substituted for "the Sabbath," +observing, "that people do now much incline to words of Judaism," the +Commons took no exception.[667] The use of the word Sabbath instead of +Sunday became in that age a distinctive mark of the puritan party. + +_Arminian controversy._--A far more permanent controversy sprang up +about the end of the same reign, which afforded a new pretext for +intolerance and a fresh source of mutual hatred. Every one of my readers +is acquainted more or less with the theological tenets of original sin, +free will, and predestination, variously taught in the schools, and +debated by polemical 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 +controversy about their meaning has long been carried on with a +pertinacity which could not have continued on so limited a topic, had +the combatants 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 +considerable ambiguity; whether we attribute this to the intrinsic +obscurity of the subject, to the additional difficulties with which it +had been entangled by theological systems, to discrepancy of opinion in +the compilers, or to their solicitude to prevent 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 predestination, and wisely reprehended those +who turned their attention to a system so pregnant with objections, and +so dangerous, when needlessly 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 seventeenth +article, or to give any reasonable interpretation 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 depravation of human nature, the articles, after +making every allowance for want of precision, seem totally +irreconcilable with the scheme usually denominated 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 of contemporary and other early authorities, to which +recourse has been had in order to invalidate 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 explicit proofs that Jewel, Nowell, Sandys, Cox, professed to +concur with the reformers of Zurich and Geneva in every point of +doctrine.[668] The works of Calvin and Bullinger became textbooks in the +English universities.[669] Those who did not hold the predestinarian +theory were branded with reproach by the names of free-willers and +Pelagians.[670] 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.[671] + +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.[672] Still the novel opinions +passed for heterodox, and were promulgated with much vacillation and +indistinctness. When they were published in unequivocal propositions by +Arminius and his school, James declared himself with vehemence against +this heresy.[673] 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.[674] 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 maintain 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 +controverted points; a measure by no means unwise, if it had been fairly +acted upon. It is alleged, however, that the preachers on one side only +were silenced, the printers of books on one side censured in the +star-chamber, while full scope was indulged to the opposite sect.[675] + +The House of Commons, especially in their last session, took up the +increase of Arminianism as a public grievance. It was coupled in their +remonstrances with popery, as a new danger to religion, hardly less +terrible than the former. This bigoted clamour arose in part from the +nature of their own Calvinistic tenets, which, being still 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, connection that subsisted +between the partisans of these new speculative tenets and those of +arbitrary power; the churchmen who receded most from Calvinism being +generally the zealots of prerogative. They conceived also that these +theories, conformable in the main to those most countenanced 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 +dialectics, 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 coquetry +with the pope, which he fancied to be a politic means of disarming +enmity.[676] Some knowledge of this, probably, as well as his avowed +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 +interpreted." But the temper of those he addressed was very different. +The catholics were disappointed by an act inflicting new penalties on +recusants, and especially debarring them from educating their children +according to their consciences.[677] The administration took a sudden +turn towards severity; the prisons were filled, the penalties exacted, +several suffered death,[678] 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 extending +beyond those who appeared in it.[679] We cannot wonder that a +parliament so narrowly rescued from personal destruction endeavoured to +draw the cord still tighter round these dangerous enemies. The statute +passed on this occasion is by no means more harsh than might be +expected. It required not only attendance on worship, but participation +in the communion, as a test of conformity, and gave an option to the +king of taking a penalty of L20 a month from recusants, or two-thirds of +their lands. It prescribed also an oath of allegiance, the refusal of +which incurred the penalties of a praemunire. 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 subjects, or any other +whatsoever; and that he did not believe that the pope or any other could +absolve him from this oath.[680] + +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 connivance in the exercise of +their ministry, and aware how much the good work of reclaiming their +apostate countrymen was retarded by the political obloquy they incurred, +would have willingly acquiesced in the oath. But the court of Rome, not +yet receding an inch from her proudest claims, absolutely forbade all +catholics to abjure her deposing power by this test, and employed +Bellarmine to prove its unlawfulness. The king stooped to a literary +controversy with this redoubted champion, and was prouder of no exploit +of his life than his answer to the cardinal's book; by which he incurred +the contempt of foreign courts and of all judicious men.[681] 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 anything 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;[682] 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 discontented 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 +received prejudices of that age, had not determined him against an +express toleration.[683] + +In the course, however, of that impolitic negotiation, which exposed him +to all eyes as the dupe and tool of the court of Madrid, James was led +on to promise concessions for which his protestant subjects were ill +prepared. That court had wrought on his feeble mind by affected coyness +about the infanta's marriage, with two private aims; to secure his +neutrality in the war of the Palatinate, and to obtain better terms for +the English catholics. Fully successful in both ends, it would probably +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 negotiation.[684] The king acted with such culpable +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 acknowledge the pope's spiritual supremacy, as the +surest means of success. James professed to be much shocked at this, but +offered to recognise his jurisdiction as patriarch of the west, to whom +ecclesiastical appeals might ultimately be made; a concession as +incompatible with the code of our protestant 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 they should agree upon +with the court of Madrid.[685] On the treaty being almost concluded, the +king, 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 catholics, 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 confirm and ratify these +articles, and revoke all laws (as it is with strange latitude expressed) +containing anything repugnant to the Roman catholic religion, 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 children from ten years to twelve, if it should be in +his own power. He promised also to listen to catholic divines, whenever +the infanta should desire it.[686] + +These secret assurances, when they were whispered in England, might not +unreasonably excite suspicion of the prince's wavering in his religion, +which he contrived to aggravate by an act as imprudent as it was +reprehensible. During his stay at Madrid, while his inclinations were +still bent on concluding the marriage, the sole apparent obstacle being +the pope's delay in forwarding the dispensation, he wrote a letter to +Gregory XV., in reply to one received from him, in language evidently +intended to give an impression of his favourable dispositions towards +the Romish 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 +deception. It would perhaps be uncandid to judge severely a want of +ingenuousness, which youth, love, and bad counsels may extenuate; yet I +cannot 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.[687] + +James, impatient for this ill-omened alliance, lost no time in +fulfilling his private stipulations with Spain. He published a general +pardon of all penalties already incurred for recusancy. It was designed +to follow this up by a proclamation prohibiting 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.[688] And, the rupture 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 religion; he never permitted or yielded, he never did think it +with his heart, nor spoke it with his mouth."[689] + +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 advantages for the English catholics than +had been promised in the former negotiation. Henrietta was to have the +education of her children till they 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 which, by the treaty of Spain, the +mother's superintendence was to cease.[690] 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.[691] 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 incurred the scandal of this engagement, since the +articles, though called private, must be expected to transpire, without +any real intentions of performing it, is an additional instance of that +arrogant contempt of public opinion which distinguished 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.[692] These promises were irregularly fulfilled, +according to the terms on which Charles stood with his brother-in-law. +Sometimes general orders were issued to suspend all penal laws against +papists; again, by a capricious change of policy, all officers and +judges 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 protestants. 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 exercise, which the other was zealous to +eradicate. But, had they been capable of more liberal reasoning upon +this subject, there was enough to justify their indignation at this +attempt to sweep away the restrictive code established by so many +statutes, 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 wavering 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 to assist the French king in blocking up the +port of Rochelle; and with utter disregard of the national 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.[693] 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 persons 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. + +It was neither, however, the Arminian opinions of the higher clergy, nor +even their supposed leaning towards those of Rome, that chiefly +rendered them obnoxious to the Commons. They had studiously inculcated +that resistance to the commands of rulers was in every conceivable +instance a heinous sin; a tenet so evidently subversive of all civil +liberty that it can be little worth while to argue about right and +privilege, wherever it has obtained 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 allusions.[694] But the +same doctrine is enforced in others of those compositions, which enjoy a +kind of half authority in the English church. It is laid down in the +canons of convocation in 1606. It is very frequent in the writings of +English divines, 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 themselves 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 designed, had sanctioned +his position), but pronounced 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 defensively in the field against them. All persons +promoted 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 academies![695] + +Those, however, who most strenuously denied the abstract right of +resistance to unlawful commands, were by no means obliged to maintain +the duty of yielding them an active obedience. In the case of religion, +it was necessary to admit that God was rather to be obeyed than man. Nor +had it been pretended, except by the most servile churchmen, that +subjects had no positive rights, in behalf of which they might decline +compliance with illegal requisitions. This, however, was openly asserted +in the reign of Charles. Those who refused 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 refuse his +demand, on penalty of damnation. "Parliaments," 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 inheritance +annexed to their imperial Crowns from their birth."[696] These +extravagances 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 +account as well as for his Calvinistic partialities, long since +obnoxious to the courtiers, refused to license Sibthorp's sermon, +alleging some unwarrantable passages which it contained. For no other +cause than this, he was sequestered from the exercise of his +archiepiscopal jurisdiction, and confined to a country-house in +Kent.[697] The House of Commons, after many complaints of those +ecclesiastics, finally proceeded against Mainwaring by impeachment at +the bar of the Lords. He was condemned to pay a fine of L1000, to be +suspended for three years from his ministry, and to be incapable of +holding any ecclesiastical dignity. Yet the king almost immediately +pardoned Mainwaring, who became in a few years a bishop, as Sibthorp was +promoted to an inferior dignity.[698] + +_General remarks._--There seems on the whole to be very little ground +for censure in the proceedings of this illustrious parliament. I admit +that, if we believe Charles the First to have been a gentle and +beneficient monarch, incapable of harbouring any design 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 derived, 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 parliament, +lest his power should make parliament but a name. Every popular +assembly, truly zealous in a great cause, will display more heat and +passion than cool-blooded men after the lapse of centuries may wholly +approve.[699] But so far were they from encroaching, as our Tory writers +pretend, on the just powers of a limited monarch, that they do not +appear to have conceived, they at least never hinted at, the securities +without which all they had obtained or attempted would become +ineffectual. 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 +apprehension of the generality, a retrenchment of the king's +prerogative, they had not yet become familiar to their hopes. In +asserting the illegality of arbitrary detention, of compulsory loans, of +tonnage and poundage levied without consent of parliament, 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 suspected, that they must recover more of their ancient +constitution from oblivion, that they must sustain its partial weakness +by new securities, that, in order to render the existence of monarchy +compatible with that of freedom, they must not only strip it of all it +had usurped, but of something that was its own. + +FOOTNOTES: + +[629] The general temperance and chastity of Charles, and the effect +those virtues had in reforming the outward face of the court, are +attested by many writers, and especially by Mrs. Hutchinson, whose good +word he would not have undeservedly obtained. _Mem. of Col. Hutchinson_, +p. 65. I am aware that he was not the perfect saint as well as martyr +which his panegyrists represent him to have been; but it is an unworthy +office, even for the purpose of throwing ridicule on exaggerated praise, +to turn the microscope of history on private life. + +[630] War had not been declared at Charles's accession, nor at the +dissolution of the first parliament. In fact, he was much more set upon +it than his subjects. Hume and all his school keep this out of sight. + +[631] Hume has disputed this, but with little success, even on his own +showing. He observes, on an assertion of Wilson, that Buckingham lost +his popularity after Bristol arrived, because he proved that 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 parliament 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. + +[632] _Parl. Hist._ vol. ii. p. 6. + +[633] _Id._ 33. + +[634] The language of Lord-Keeper Coventry in opening the session was +very ill calculated for the spirit of the Commons: "If we consider +aright, and think of that incomparable distance between the supreme +height and majesty of a mighty monarch and the submissive awe and +lowliness of loyal subjects, we cannot but receive exceeding comfort and +contentment in the frame and constitution of this highest court, wherein +not only the prelates, nobles, and grandees, but the commons of all +degrees, have their part; and wherein that high majesty doth descend to +admit, or rather to invite, the humblest of his subjects to conference +and counsel with him," etc. He gave them a distinct hint afterwards that +they must not expect to sit long. _Parl. Hist._ 39. + +[635] _Parl. Hist._ 60. I know of nothing 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 messages he had told them +that he must then use new councils. In all Christian kingdoms there were +parliaments anciently, till the monarchs 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 beyond 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 +determination to maintain them. + +[636] _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 Pembroke, who had been rather conspicuous in the +late reign, and whose character is drawn by Clarendon in the first book +of history. He held ten proxies in the king's first parliament, as +Buckingham did thirteen. Lingard, ix. 328. In the second Pembroke had +had only five, but the duke still came with thirteen. Lords' Journals, +p. 491. This enormous accumulation of suffrages in one person led to an +order of the house, which is now its established regulation, that no +peer can hold more than two proxies. Lords' Journals, p. 507. + +[637] _Parl. Hist._ 125; Hatsell, 141. + +[638] Mr. Brodie has commented rather too severely on Bristol's conduct. +Vol. ii. p. 109. That he was "actuated merely by motives of +self-aggrandisement," 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, however, is by no +means proved; for the king's word is no proof in my eyes. + +[639] See the proceedings on the mutual charges of Buckingham and +Bristol in Rushworth, or the _Parliamentary History_. Charles's +behaviour is worth noticing. He sent a message to the house, desiring +that they would not comply with the earl's request of being allowed +counsel; and yielded ungraciously, when the Lords remonstrated 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 precedent might be; and thereon +most humbly to move his majesty for the declining, at least, of his +majesty's accusation and testimony." _Id._ 98. The house ordered two +questions on this to be put to the judges: 1. Whether, in 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 communicated 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 Buckingham, when +he corroborated his favourite's narrative by his testimony." But no +assertion can be more gratuitous; the supposition indeed is impossible. + +[640] _Parl. Hist._ 193. If the following 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 +dissolution of it; and to-day, when the lord keeper drew out the +commission 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 parliament 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. + +[641] Rushworth, Kennet. + +[642] Mede's Letters--"On Monday 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 parliament, 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 +parliament! a parliament!' etc. The same was done in Middlesex on Monday +also, in five or six places, but far more are said to have refused 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 without any answer affirmative or negative. 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 lieutenant and justices of every county, informing them that he +had dissolved the last parliament because the disordered passion 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, where they had promised; he therefore enjoins the +deputy lieutenants 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 defence; 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, 1626. It is evident that the pretext of invasion, which was +utterly improbable, was made use of in order to shelter the king's +illegal proceedings. + +[643] Rushworth's Abr. i. 270. + +[644] The 321st volume of Hargrave MSS. p. 300, contains minutes of a +debate at the council-table during the interval between the second 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 fundamental constitutions of the kingdom. The +last resort was to a proclamation; for in star-chamber it might be +punishable, and thereupon it rested." There follows much more; it seemed +to be agreed that there was such a necessity as might justify the +imposition; yet a sort of reluctance is visible even among these timid +counsellors. The king pressed it forward much. In the same volume (p. +393) we find other proceedings at the council-table, whereof the subject +was, the censuring or punishing of some one who had refused to +contribute to the loan of 1626 on the ground of its illegality. The +highest language is held by some of the conclave in this debate. + +Mr. D'Israeli has collected from the same copious reservoir, the +manuscripts of the British Museum, several more illustrations, both of +the arbitrary proceedings of the council, and of the bold spirit with +which they were resisted. _Curiosities of Literature_, New Series, iii. +381. But this ingenious 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. + +[645] Rushworth, Kennet. + +[646] 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 parliament, but that he had misgrounded his opinion upon a +certain precedent, which being nothing to the purpose, he was now +assured his opinion was as little to the purpose. _Id._ 325; _State +Trials_, iii. 81. + +[647] _State Trials_, iii. 1-234; _Parl. Hist._ 246, 259, etc.; +Rushworth. + +[648] At the council-table, some proposing a parliament, the king said, +he did abominate the name. Mede's Letters, 30th Sept. 1626. + +[649] Rushworth; Mede's Letters in Harl. MSS. _passim_. + +[650] Rushworth's Abr. i. 304; Cabala, part ii. 217. See what is said of +this by Mr. Brodie, ii. 158. + +[651] A commission addressed to Lord Wimbledon, 28th Dec. 1625, empowers +him to proceed against soldiers or dissolute persons joining with them, +who should commit any robberies, etc., which by martial law ought to be +punished with death, by such summary course as is agreeable to martial +law, etc. Rymer, xviii. 254. Another, in 1626, may be found. P. 763. It +is unnecessary to point out how unlike these commissions are to our +present mutiny-bills. + +[652] 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 suspicion 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 reconciled; and +"his grace had the bishop's consent with a little asking, 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_, pp. +77, 80. With such instances of baseness and treachery in the public men +of this age, surely the distrust of the Commons was not so extravagant +as the school of Hume pretend. + +[653] The debates and conferences on this momentous subject, especially +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, Serjeant +Ashley, having argued in behalf of the prerogative in a high tone, such +as had been usual in the late reign, was ordered into custody; and the +Lords assured the other house, that he had no authority from them for +what he had said. _Id._ 327. A remarkable proof of the rapid growth of +popular principles! + +[654] Hargrave MSS. xxxii. 97. + +[655] _Parl. Hist._ 436. + +[656] Stat. 3 Car. I. c. 1. 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. + +[657] _Parl. Hist._ 431. + +[658] Rushworth Abr. i. 409. + +[659] _Parl. Hist._ 441, etc. + +[660] Cawdrey's Case, 5 Reports; Cro. Jac. 37; Neal, p. 432. The latter +says, above three hundred were deprived; but Collier reduces them to +forty-nine. P. 687. The former writer states the nonconformist 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 contained the more exemplary +portion of the clergy; no scandalous or absolutely illiterate incumbent, +of whom there was a very large number, being a nonconformist. This +general enforcement of conformity, however it might compel the +majority's obedience, rendered the separation of the incompliant more +decided. Neal, 446. Many retired to Holland, especially of the Brownist, +or Independent denomination. _Id._ 436. And Bancroft, like his successor +Laud, interfered to stop some who were setting out for Virginia. _Id._ +454. + +[661] Lord Bacon, in his advertisement respecting the _Controversies of +the Church of England_, written under Elizabeth, speaks of this notion +as newly broached. "Yea and some indiscreet persons have been bold in +open preaching to use dishonourable 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 admitted to hold preferment in England; the first bishop +who objected to them seems to have been Aylmer. Instances, however, of +foreigners holding preferment without any re-ordination, may be found +down to the civil wars. _Annals of Reformation_, ii. 522, and Appendix, +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 anything in it to that effect. It is, however, pretty distinctly +asserted, if I mistake not the sense, in the canons of 1606. Overall's +_Convocation Book_, 179, etc. Yet Laud had been reproved by the +university of Oxford in 1604, for maintaining, in his exercise for +bachelor of divinity, that there could be no true church without +bishops, which was thought to cast a bone of contention between the +church of England and the reformed upon the Continent. Heylin's _Life of +Laud_, 54. + +Cranmer and some of the original founders of the Anglican church, so far +from maintaining the divine and indispensable right of episcopal +government, held bishops and priests to be the same order. + +[662] See the queen's injunctions of 1559 (_Somers Tracts_, i. 65), and +compare preamble of 5 and 6 of Edw. VI. c. 3. + +[663] The first of these Sabbatarians was a Dr. Bound, whose sermon was +suppressed by Whitgift's order. But some years before, one of Martin +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 Elizabeth, though by no means so usual as afterwards. +One of Bound's recommendations was that no feasts should be given on +that day, "except by lords, knights, and persons of quality;" for which +unlucky reservation 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 produced by this new doctrine; and +remarks, what a slight acquaintance 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 _Whitgift_, 530; May's _Hist. of +Parliament_, 16. + +[664] Heylin's _Life of Laud_, 15; Fuller, part ii. p. 76. + +The regulations enacted at various times since the Reformation for the +observance of abstinence 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 +divers of the king's subjects, turning their knowledge therein to +gratify 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 virtue and to subdue men's bodies to their soul +and spirit, and considering 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 forbidden seasons shall incur a penalty of ten +shillings, or ten days' imprisonment _without flesh_, and a double +penalty for the second offence. + +The next statute relating to abstinence is one (5th Eliz. c. 5) entirely +for the increase of the fishery. It enacts (Sec. 15, etc.) that no one, +unless having a licence, shall eat flesh on fish-days, or on Wednesdays, +now made an additional fish-day, under a penalty of L3, or three months' +imprisonment. Except 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 statute," 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 (Sec. 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 Saturdays, under a penalty. The 35th +Eliz. c. 7, Sec. 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 enforce an +observance so little congenial to the propensities of Englishmen. One of +those in the first year of Edward was before any statute; and its very +words respecting the indifference of meats in a religious 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 eating 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, +etc., "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 +observed, 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 letters to the bishops of his province, to take +order that the fasting-days, Wednesday and Friday, should be kept, and +no suppers eaten, especially 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, +notwithstanding the pretext about the fishery, there is no doubt that +the dominant ecclesiastics maintained the observance of Lent as an +ordinance of the church. But I suspect 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, however, was only compulsory on the poor. +Licences were easily obtained by others from the privy-council in +Edward's days, and afterwards from the bishop. They were empowered, with +their guests, to eat flesh on all fasting-days for life. Sometimes the +number of guests was limited. Thus the Marquis of Winchester had +permission for twelve friends; and John Sanford, draper of Gloucester, +for two. Strype's _Memorials_, ii. 82. The act above mentioned for +encouragement of the fishery, 5th Eliz. c. 5, provides that L1 6_s._ +8_d._ shall be paid for granting every licence, and 6_s._ 8_d._ annually +afterwards, to the poor of the parish. But no licence was to be granted +for eating beef at any time of the year, or veal from Michaelmas to the +first of May. A melancholy privation to our countrymen! but, I have no +doubt, little regarded. Strype makes known to us the interesting fact, +that Ambrose Potter, of Gravesend, and his wife, had permission from +Archbishop Whitgift "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 6_s._ 8_d._ +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 similar proclamations are found after the +Restoration, I know not how long. Kennet's Register, p. 367 and 558. And +some orthodox Anglicans continued to make a show of fasting. The +following extracts from Pepys' 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 try whether I can keep it or +no." Feb. 27, 1661. "Notwithstanding my resolution, yet for want of +other victuals, I did eat flesh this Lent, but am resolved to eat as +little as I can." + +[665] Wilson, 709. + +[666] Debates in parliament, 1621, vol. i. pp. 45, 52. The king +requested them not to pass this bill, being so directly against his +proclamation. _Id._ 60. Shepherd's expulsion is mentioned in Mede's +Letters, Harl. MSS. 389. + +[667] 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 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 required, 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 consequence it was we shall see hereafter." +_Life of Laud_, p. 129. Yet this statute permits the people lawful +sports and pastimes on Sundays within their own parishes. + +[668] 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. Appendix +275. + +[669] Collier, 568. + +[670] Strype's _Annals_, i. 207, 294. + +[671] Strype's _Whitgift_, 434-472. + +[672] It is admitted on all hands that the Greek fathers did not +inculcate the predestinarian system. Elizabeth having begun to read some +of the fathers, Bishop Cox writes of it with some disapprobation, +adverting especially to the Pelagianism of Chrysostom and the other +Greeks. Strype's _Annals_, i. 324. + +[673] Winwood, iii. 293. The intemperate and even impertinent behaviour +of James in pressing the states of Holland to inflict some censure or +punishment on Vorstius, 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 certain propositions +as to the nature of the Deity, which James called atheistical, but which +were in fact Arian. The letters on this subject in Winwood are curious. +Even at this time, the king is said to have spoken moderately of +predestination 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. + +[674] 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. + +[675] 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 statesman, 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 letters 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-converted +Archbishop of Spalato, is said to have invented the name of doctrinal +puritans for those who distinguished 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 divines on Charles's accession, distinguishing their names +by O. and P. for orthodox and puritan; including several tenets in the +latter denomination, besides those of the quinquarticular controversy; +such as the indispensable observance of the Lord's day, the +indiscrimination of bishops and presbyters, etc. _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, +incurred punishment in any rank. Davenant, Bishop of Salisbury, one of +the divines sent to Dort, and reckoned among the principal theologians +of that age, was reprimanded on his knees before the privy-council for +this offence. Collier, p. 750. But in James's reign the University of +Oxford was decidedly Calvinistic. A preacher, about 1623, having used +some suspicious expressions, was compelled to recant them, and to +maintain the following theses in the divinity school: Decretum +praedestinationis non est conditionale--Gratia sufficiens 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. + +[676] Winwood, vol. i. pp. 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_, etc. 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 +consistency or sincerity that it is difficult to solve the problem of +this clandestine intercourse. But it might very likely proceed from his +dread of being excommunicated, and, in consequence, assassinated. In a +proclamation, commanding all jesuits and priests to quit the realm, +dated in 1603, he declares himself personally "so 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 explained by a passage in the memoirs +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, probably, some other courtesies. There is a letter from the +king addressed to the pope, and probably written in 1603, among the +Cottonian MSS. Nero B. vi. 9, which shows his disposition to coax and +coquet with the Babylonian, 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 educated 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 practically +mitigated. Winwood, ii. 78. Archbishop Hutton wrote to Cecil, +complaining of the toleration granted to papists, while the puritans +were severely treated. _Id._ p. 40; Lodge, iii. 251. "The 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."--"If the gospel shall quail, and popery prevail, it will be +imputed principally unto your great counsellors, who either procure or +yield to grant toleration to some." James told some gentlemen who +petitioned for toleration, that the utmost they could expect was +connivance. Carte, iii. 711. This seems to have been what he intended +through his reign, till importuned by Spain and France to promise more. + +[677] 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 parliament, 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 alternative afterwards, by 7 Jac. I. c. 6, of letting their +wives lie in prison or paying L10 a month. + +[678] Lingard, ix. 41, 55. + +[679] From comparing some passages in Sir Charles Cornwallis's +despatches, (Winwood, vol. ii. pp. 143, 144, 153, with others in Birch's +account of Sir Thomas Edmondes'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 remarkable: "Our priests are very busy +about petitions to be exhibited to the king's majesty at this +parliament, 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 present in +hand amongst these desperate hypocrites, which I trust God shall divert +by the vigilant care of his majesty's faithful servants and friends +abroad, and prudence 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 conspiracy, except by having heard it in confession. +But this rests altogether on his word; and the prevarication of which he +has been proved to be guilty (not to mention the damning circumstance +that he was taken at Hendlip in concealment along with the other +conspirators), makes it difficult for a candid man to acquit him of a +thorough participation in their guilt. Compare Townsend's _Accusations +of History against the Church of Rome_ (1825), p. 247, containing +extracts from some important documents in the State Paper-Office, not as +yet published, with _State Trials_, vol. ii.; and see Lingard, ix. 160, +etc. 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 contrived 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 +allusions in the letter to Monteagle, of which he was courtier enough to +let the king take the credit? James's admirers have always reckoned +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. He might +have recollected the circumstances of his father's catastrophe, which +would naturally put him on the scent of gunpowder. In point of fact, +however, the happy conjecture appears to be Cecil's. Winwood, ii. 170. +But had he no previous 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 L11,000 (by composition for L30,000), before he was released. +Lingard, ix. 89. It appears almost incredible that a man of his ability, +though certainly of a dangerous and discontented spirit, and rather +destitute of religion than a zealot for popery, which he did not, I +believe, openly profess, should have mingled in so flagitious a design. +There is indeed a remarkable letter in Winwood, vol. iii. p. 287, which +tends to corroborate the suspicions 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 imprisonment, a participation in +one of the most atrocious conspiracies recorded in history was, if +proved, to be more severely punished; if unproved, not at all. + +[680] 3 Jac. I. c. 4, 5. + +[681] 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 +Allegiance_ (edit. 1619), p. 46, that Bellarmine plainly confounds the +oath of allegiance with that of supremacy. But this cannot be the whole +of the case; it is notorious that Bellarmine protested against any +denial of the pope's deposing power. + +[682] Lingard, ix. 215. Drury, executed in 1607, was one of the twelve +priests who, in 1602, had signed a declaration of the queen's right to +the crown, notwithstanding 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. + +[683] Lord Bacon, wise in all things, always recommended mildness +towards recusants. In a letter to Villiers, in 1616, he advises that the +oath of supremacy should by no means be tendered to recusant magistrates +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 following 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 opinion; 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 "to +account it a baseness in a prince to show such a desire of the match +[this was in 1617] as to slack anything 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 contrast to +the behaviour of this same king six years afterwards! The Commons were +always dissatisfied with lenity, and complained that the lands of +recusants were undervalued; as they must have been, if the king got only +L6000 per annum by the compositions. Debates in 1621, vol. i. pp. 24, +91. But he valued those in England and Ireland at L36,000. Lingard, 215, +from _Hardwicke Papers_. + +[684] The absurd and highly blamable conduct of Buckingham has created a +prejudice in favour of the court of Madrid. That they desired 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 probable by the general +policy of that government, nor by the conduct it pursued in the +negotiation. Compare _Hardwicke State Papers_, vol. i.; Cabala, 1, _et +post_; Howell's _Letters_; _Clarendon State Papers_, vol. i. _ad +initium_, especially p. 13. + +A very curious paper in the latter collection (p. 14) may be thought, +perhaps, to throw light on Buckingham's projects, and account in some +measure for his sudden enmity to Spain. During his residence at Madrid +in 1623, a secretary 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 having +made such a settlement, it 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 afterwards in 1628, +he entered into a contract with Gustavus Adolphus, who bound himself to +defend 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 unpopularity in England, and that sooner or +later he must fall, and led away, as so many were, by the expectation of +immense wealth in America, had contrived this arrangement, 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 expose the whole to some suspicion. It +is not clear how this came among the Clarendon papers; but the +indorsement 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. + +[685] _Hardwicke Papers_, pp. 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 published (Ellis, +iii. 154), that the king was in great distress at the engagement for a +complete immunity from penal laws for the catholics, entered into by the +prince and Buckingham; but, on full deliberation in the council, it was +agreed that he must adhere to his promise. This rash promise was the +cause of his subsequent prevarications. + +[686] _Hardwicke Papers_; Rushworth. + +[687] _Hardwicke Papers_, p. 452, where the letter is printed in Latin. +The translation in Wilson, Rushworth, and Cabala, p. 214, is not by any +means exact, going in several places much beyond the original. 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 Charles's +letter. He answered it, of course, in a style of approbation, and so as +to give the utmost meaning to the prince's compliments, expressing his +satisfaction, "cum pontificem Romanum ex officii genere colere princeps +Britannus inciperet," etc. Rushworth, vol. i. p. 98. + +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, etc., had been sent over. Howell's +_Letters_, p. 140. Bristol and Buckingham charged each other with +advising Charles to embrace the Romish religion; and he himself, in a +letter to Bristol, Jan. 21, 1625-6, imputes this to him in the most +positive terms. Cabal p. 17, 4to edit. As to Buckingham's willingness to +see this step taken, there can, I presume, be little doubt. + +[688] Rushworth; Cabala, p. 19. + +[689] _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. + +[690] Rushworth. + +[691] See a series of letters from Lord Kensington (better known +afterwards as Earl of Holland), the king's ambassador at Paris for this +marriage-treaty; in the appendix to _Clarendon State Papers_, vol. ii. +pp. v. viii. ix. + +[692] _Hardwicke Papers_, i. 536. Birch, in one of those volumes given +by him to the British Museum (and which ought to be published according +to his own intention), has made several extracts from the MS. despatches +of Tillieres, the French ambassador, which illustrate this negotiation. +The pope, it seems, stood off from granting the dispensation, requiring +that the English catholic clergy should represent to him their +approbation of the marriage. He was informed that the cardinal had +obtained terms much more favourable for the catholics than in the +Spanish treaty. In short, they evidently fancied themselves to have +gained a full assurance of toleration; nor could the match have been +effected on any other terms. The French minister writes to Louis XIII. +from London, October 6, 1624, that he had obtained a supersedeas of all +prosecutions, more than themselves expected, or could have believed +possible; "en somme, un acte tres publique, et qui fut resolu en plein +conseil, le dit roi l'ayant assemble expres 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 +stumbling-block; the king could not change it by his own authority, and +establish another in parliament, "ou la faction des puritains predomine, +de sorte qu'ils peuvent ce qu'ils veulent." Buckingham, however, +promised "de nous faire obtenir l'assurance que votre majeste desire +tant, que les catholiques de ce pais ne seront jamais inquietes pour le +raison du serment de fidelite, du quel votre majeste a si souvent oui +parler." Dec. 22. He speaks the same day of an audience 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 reconnoissance de la domination temporelle qui +Dieu lui a donnee, et qu'ils auroient en consideration de votre majeste, +et de la confiance que vous prenez en sa parole, beaucoup plus de +liberte qu'ils n'auroient eu en vertu des articles du traite d'Espagne." +The French advised that no parliament should be called till Henrietta +should come over, "de qui la presence serviroit de bride aux puritains." +It is not wonderful, with all this good-will on the part of their court, +that the English 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 prosecution of catholics, the enlargement 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 23rd of +January to request six or eight ships of war to employ against Soubise, +the chief of the Hugonots; with which, as is well known, Charles +complied in the ensuing summer. + +The king's letter above mentioned does not, I believe, appear. But his +ambassadors, Carlisle and Holland, had promised in his name that he +would give a written promise, on the word and honour of a king, which +the prince and a secretary of state should also sign, that all his Roman +catholic subjects 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 religion, provided they used their liberty with moderation, and +rendered 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 "a direct and public toleration, not by +connivance, promise, or _ecrit_ secret, but by a public notification to +all the Roman catholics, and that of all his majesty's kingdoms +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 proposal, 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 would +assist in the recovery of the Palatinate, towards which, in spite of +promises, she took no steps. Richlieu had said, "donnez-nous des +pretres, 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 desirous of +re-entering the fold of the church. Wilson in Rennet, 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. + +[693] Rennet, p. vi.; Rushworth; Lingard, ix. 353; Cabala, p. 144. + +[694] "God alloweth (it is said in this homily, among other passages to +the same effect) neither the dignity of any person, nor the multitude of +any people, nor the weight of any cause, as sufficient for the which the +subjects may move rebellion against their princes." The next sentence +contains a bold position. "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 +illustrate their doctrine by the most preposterous example I have ever +seen alleged in any book, that of the Virgin Mary; who "being of the +royal blood of the ancient natural 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 comparison 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 religion, 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. + +[695] 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 confirm this. + +[696] _Parl. Hist._ 877, 395, 410, etc.; Kennet, p. 30; Collier, 740, +743. This historian, though a non-juror, is Englishman enough to blame +the doctrines of Sibthorp and Mainwaring, and, consistently with his +high-church principles, is displeased at the suspension of Abbot by the +king's authority. + +[697] _State Trials_, ii. 1449. 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 archbishop's continuance in his function, on pretence that, by +some contemptible old canon, he had become irregular in consequence of +this accidental homicide; and Spelman disgraced himself by writing a +treatise in support of this doctrine. James, however, had more sense +than the antiquary, and less ill-nature than the churchmen; and the +civilians gave no countenance to Williams's hypocritical scruples. +Hacket's _Life of Williams_, 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 scrupled grossly to +flatter the king: (see his article in _Biograph. Brit._ and Aikin, i. +368) and tells us himself, that he introduced Villiers, in order to +supplant Somerset; which, though well-meant, did not become his +function. Even in the delicate business of promising toleration to the +catholics by the secret articles of the treaty with Spain, he gave +satisfaction to the king (_Hardwicke Papers_, i. 428), which could only +be by compliance. This shows that the letter in Rushworth, ascribed to +the archbishop, deprecating all such concessions, is not genuine. In +Cabala, p. 13, it is printed with the name of the Archbishop of York, +Matthews. + +[698] The bishops were many of them gross sycophants of Buckingham. +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 +belongs to them." See Ellis's _Letters_, 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. The junior masters of arts, however, made a good stand; so +that it was carried against the Earl of Berkshire only by three voices. + +[699] 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 +agreeable to the wisdom and justice of great courts upon those +extraordinary occasions; and whoever considers the acts of power and +injustice in the intervals of parliament, will not be much scandalised +at the warmth and vivacity of those meetings." 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