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<pre>

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: ISO-8859-1

*** 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






</pre>


<div class="tnbox">
<p class="center"><b>Transcriber's Note:</b></p>
<p>Obvious typographical errors have been corrected.
Inconsistent spelling and hyphenation in the original
document have been preserved.</p>
</div>

<div class="title_block">
<p class="b12 center p6">EVERYMAN'S LIBRARY<br />
EDITED BY ERNEST RHYS</p>

<p class="b12 center p6">HISTORY</p>

<p class="p6 center b12">HALLAM'S<br />
CONSTITUTIONAL HISTORY<br />
WITH AN INTRODUCTION BY<br />
<span class="smcap">Professor</span> J. H. MORGAN<br />
VOLUME ONE</p>

<p class="p6 bjust">THE PUBLISHERS OF <i>EVERYMAN'S
LIBRARY</i> 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:</p>

<hr class="l15" />

<p class="center">TRAVEL &#42; SCIENCE &#42;FICTION<br />

THEOLOGY &amp; PHILOSOPHY<br />

HISTORY &#42; CLASSICAL<br />

FOR YOUNG PEOPLE<br />

ESSAYS &#42; ORATORY<br />

POETRY &amp; DRAMA<br />

BIOGRAPHY<br />

REFERENCE<br />

ROMANCE</p>

<hr class="l15" />

<p class="bjust">
IN FOUR STYLES OF BINDING: CLOTH,
FLAT BACK, COLOURED TOP; LEATHER,
ROUND CORNERS, GILT TOP; LIBRARY
BINDING IN CLOTH, &amp; QUARTER PIGSKIN</p>

<hr class="l15" />

<p class="center"><span class="smcap">London</span>: <span class="b12">J. M. DENT &amp; SONS,</span> <span class="smcap">Ltd.</span><br />
<span class="smcap">New York</span>: E. P. DUTTON &amp; CO.</p>
</div>

<div class="figleft p6">
<img src="images/frontis.jpg" width="292" height="450" alt="Frontispiece" />
<p class="caption">

CONSIDER<br />
HISTORY<br />
WITH THE<br />
BEGINNINGS OF<br />
IT STRETCHING<br />
DIMLY INTO THE<br />
REMOTE TIME; EMERGING<br />
DARKLY<br />
OVT OF THE<br />
MYSTERIOVS<br />
ETERNITY:<br />
THE TRVE EPIC<br />
POEM AND VNIVERSAL<br />
DIVINE<br />
SCRIPTVRE.<br />
<br />
CARLYLE</p>
</div>

<div class="figright p6">
<img src="images/titlepage.jpg" width="281" height="450" alt="Title Page" />
<p class="caption">
CONSTITUTIONAL<br />
HISTORY of<br />
ENGLAND<br />
HENRY VII TO<br />
GEORGE II<br />
BY HENRY<br />
HALLAM VOL I<br />
<br />

LONDON: PUBLISHED<br />
by J·M·DENT·&amp;·SONS·LTD<br />
AND IN NEW YORK<br />
BY E·P·DUTTON &amp; CO</p>
</div>

<p><span class="pagenum"><a name="Page_vii" id="Page_vii"></a></span></p>
<h2 class="p6">INTRODUCTION</h2>

<p>Few historical works have stood the test of time better than
Hallam's <i>Constitutional History</i>. It was written nearly a
century ago&mdash;the first edition was published in 1827&mdash;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 <i>Constitutional History</i> 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
<i>a thoroughly upright and enlightened man</i> would rather have
<span class="pagenum"><a name="Page_VIII" id="Page_VIII">viii</a></span>
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<a name="FNanchor_1" id="FNanchor_1" href="#Footnote_1" class="fnanchor">[1]</a> 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&mdash;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&mdash;in writing on
the Partition of Poland&mdash;to speak of the Nemesis which always
waits upon such "public crimes."</p>

<p>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
<span class="pagenum"><a name="Page_IX" id="Page_IX">ix</a></span>
included in it much that would now be called "political"
history. One has only to compare his work with the latest
of our authorities&mdash;the posthumous book of F. W. Maitland&mdash;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 <i>Middle Ages</i> 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&mdash;upon the rules laid down by mediæval judges
as to the right of the subject to trial by jury, his immunity
<span class="pagenum"><a name="Page_X" id="Page_X">x</a></span>
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<a name="FNanchor_2" id="FNanchor_2" href="#Footnote_2" class="fnanchor">[2]</a>), 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<a name="FNanchor_3" id="FNanchor_3" href="#Footnote_3" class="fnanchor">[3]</a> 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.</p>

<p>Hallam's attitude towards the constitution was that of
Burke&mdash;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:&mdash;</p>

<div class="blockquot">
<p>
"No unbiassed observer, who derives pleasure from the
welfare of his species, can fail to consider the long and uninterruptedly
<span class="pagenum"><a name="Page_XI" id="Page_XI">xi</a></span>
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."<a name="FNanchor_4" id="FNanchor_4" href="#Footnote_4" class="fnanchor">[4]</a>
</p>
</div>

<p>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.</p>

<p><span class="left65">
J. H. MORGAN.</span></p>

<p><span class="pagenum"><a name="Page_XII" id="Page_XII">xii</a></span></p>

<h2 class="p6">BIBLIOGRAPHY</h2>

<p>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. Rüder 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.</p>

<p>A Short Life and Criticism of Henry Hallam appears in F. A. M. Mignet's
<i>Eloges Historiques</i>, published in Paris in 1864.
<span class="pagenum"><a name="Page_XIII" id="Page_XIII">xiii</a></span></p>

<p class="center p6">TO<br />
<br />
<span class="b12">HENRY MARQUIS OF LANSDOWNE</span><br />
<br />
IN TOKEN OF HIGH ESTEEM<br />
<br />
AND SINCERE REGARD<br />
<br />
THIS WORK IS RESPECTFULLY INSCRIBED<br />
<br />
BY<br />
<br />
<span class="b11">THE AUTHOR</span></p>

<h2 class="p6">CONTENTS</h2>
<p><span class="pagenum"><a name="Page_XV" id="Page_XV">xv</a></span></p>

<p class="center">CHAPTER I</p>

<p class="center">ON THE ENGLISH CONSTITUTION FROM HENRY VII. TO MARY</p>

<p class="i1"><span class="o2">Ancient</span> Government of England&mdash;Limitations of Royal Authority&mdash;Difference
in the Effective Operation of these&mdash;Sketch of the State of
Society and Law&mdash;Henry VII.&mdash;Statute for the Security of the Subject
under a King <i>de facto</i>&mdash;Statute of Fines&mdash;Discussion of its Effect and
Motive&mdash;Exactions of Money under Henry VII.&mdash;Taxes demanded by
Henry VIII.&mdash;Illegal Exactions of Wolsey in 1523 and 1525&mdash;Acts of
Parliament releasing the King from his Debts&mdash;A Benevolence again
exacted&mdash;Oppressive Treatment of Reed&mdash;Severe and unjust Executions
for Treason&mdash;Earl of Warwick&mdash;Earl of Suffolk&mdash;Duke of
Buckingham&mdash;New Treasons created by Statute&mdash;Executions of
Fisher and More&mdash;Cromwell&mdash;Duke of Norfolk&mdash;Anne Boleyn&mdash;Fresh
Statutes enacting the Penalties of Treason&mdash;Act giving Proclamations
the Force of Law&mdash;Government of Edward VI.'s Counsellors&mdash;Attainder
of Lord Seymour and Duke of Somerset&mdash;Violence of Mary's
Reign&mdash;The House of Commons recovers part of its independent
Power in these two Reigns&mdash;Attempt of the Court to strengthen itself
by creating new Boroughs&mdash;Causes of the High Prerogative of the
Tudors&mdash;Jurisdiction of the Council of Star-Chamber&mdash;This not the
same with the Court erected by Henry VII.&mdash;Influence of the Authority
of the Star-Chamber in enhancing the Royal Power&mdash;Tendency of
religious Disputes to the same End <span class="flright"><a href="#Page_7">Page 7</a></span></p>

<p class="center p4">CHAPTER II</p>

<p class="center">ON THE ENGLISH CHURCH UNDER HENRY VIII., EDWARD VI.,
AND MARY</p>

<p class="i1"><span class="o2">State</span> of public Opinion as to Religion&mdash;Henry VIII.'s Controversy with
Luther&mdash;His Divorce from Catherine&mdash;Separation from the Church of
Rome&mdash;Dissolution of Monasteries&mdash;Progress of the Reformed Doctrine
in England&mdash;Its Establishment under Edward&mdash;Sketch of the
chief Points of Difference between the two Religions&mdash;Opposition
made by Part of the Nation&mdash;Cranmer&mdash;His Moderation in introducing
Changes not acceptable to the Zealots&mdash;Mary&mdash;Persecution under her&mdash;Its
Effect rather favourable to Protestantism <span class="flright"><a href="#Page_58">Page 58</a></span>
<span class="pagenum"><a name="Page_XVI" id="Page_XVI">xvi</a></span></p>

<p class="center p4">CHAPTER III</p>

<p class="center">ON THE LAWS OF ELIZABETH'S REIGN RESPECTING THE
ROMAN CATHOLICS</p>

<p class="i1"><span class="o2">Change</span> of Religion on the Queen's Accession&mdash;Acts of Supremacy and
Uniformity&mdash;Restraint of Roman Catholic Worship in the first Years
of Elizabeth&mdash;Statute of 1562&mdash;Speech of Lord Montague against it&mdash;This
Act not fully enforced&mdash;Application of the Emperor in behalf
of the English Catholics&mdash;Persecution of this Body in the ensuing
Period&mdash;Uncertain Succession of the Crown between the Families of
Scotland and Suffolk&mdash;The Queen's Unwillingness to decide this, or
to marry&mdash;Imprisonment of Lady Catherine Grey&mdash;Mary Queen of
Scotland&mdash;Combination in her Favour&mdash;Bull of Pius V.&mdash;Statutes for
the Queen's Security&mdash;Catholics more rigorously treated&mdash;Refugees
in the Netherlands&mdash;Their Hostility to the Government&mdash;Fresh Laws
against the Catholic Worship&mdash;Execution of Campion and others&mdash;Defence
of the Queen by Burleigh&mdash;Increased Severity of the Government&mdash;Mary&mdash;Plot
in her Favour&mdash;Her Execution&mdash;Remarks upon
it&mdash;Continued Persecution of Roman Catholics&mdash;General Observations
<span class="flright"><a href="#Page_105">Page 105</a></span></p>

<p class="center p4">CHAPTER IV</p>

<p class="center">ON THE LAWS OF ELIZABETH'S REIGN RESPECTING PROTESTANT
NONCONFORMISTS</p>

<p class="i1"><span class="o2">Origin</span> of the Differences among the English Protestants&mdash;Religious
Inclinations of the Queen&mdash;Unwillingness of many to comply with the
established Ceremonies&mdash;Conformity enforced by the Archbishop&mdash;Against
the Disposition of others&mdash;A more determined Opposition,
about 1570, led by Cartwright&mdash;Dangerous Nature of his Tenets&mdash;Puritans
supported in the Commons&mdash;and in some Measure by the
Council&mdash;Prophesyings&mdash;Archbishops Grindal and Whitgift&mdash;Conduct
of the latter in enforcing Conformity&mdash;High Commission Court&mdash;Lord
Burleigh averse to Severity&mdash;Puritan Libels&mdash;Attempt to set up a
Presbyterian System&mdash;House of Commons averse to episcopal
Authority&mdash;Independents liable to severe Laws&mdash;Hooker's <i>Ecclesiastical
Polity</i>&mdash;Its Character&mdash;Spoliation of Church Revenues&mdash;General
Remarks&mdash;Letter of Walsingham in Defence of the Queen's Government
<span class="flright"><a href="#Page_162">Page 162</a></span></p>

<p class="center p4">CHAPTER V</p>

<p class="center">ON THE CIVIL GOVERNMENT OF ELIZABETH</p>

<p class="i1"><span class="o2">General</span> Remarks&mdash;Defective Security of the Subject's Liberty&mdash;Trials for
Treason and other Political Offences unjustly conducted&mdash;Illegal
Commitments&mdash;Remonstrance of Judges against them&mdash;Proclamations
unwarranted by Law&mdash;Restrictions on Printing&mdash;Martial Law&mdash;Loans
<span class="pagenum"><a name="Page_XVII" id="Page_XVII">xvii</a></span>
of Money not quite voluntary&mdash;Character of Lord Burleigh's
Administration&mdash;Disposition of the House of Commons&mdash;Addresses
concerning the Succession&mdash;Difference on this between the Queen and
Commons in 1566&mdash;Session of 1571&mdash;Influence of the Puritans in
Parliament&mdash;Speech of Mr. Wentworth in 1576&mdash;The Commons continue
to seek Redress of ecclesiastical Grievances&mdash;Also of Monopolies,
especially in the Session of 1601&mdash;Influence of the Crown in Parliament&mdash;Debate
on Election of non-resident Burgesses&mdash;Assertion of
Privileges by Commons&mdash;Case of Ferrers, under Henry VIII.&mdash;Other
Cases of Privilege&mdash;Privilege of determining Contested Elections
claimed by the House&mdash;The English Constitution not admitted to be
an absolute Monarchy&mdash;Pretensions of the Crown <span class="flright"><a href="#Page_215">Page 215</a></span></p>

<p class="center p4">CHAPTER VI</p>

<p class="center">ON THE ENGLISH CONSTITUTION UNDER JAMES I.</p>

<p class="i1"><span class="o2">Quiet</span> Accession of James&mdash;Question of his Title to the Crown&mdash;Legitimacy
of the Earl of Hertford's Issue&mdash;Early Unpopularity of the King&mdash;Conduct
towards the Puritans&mdash;Parliament convoked by an irregular
Proclamation&mdash;Question of Fortescue and Goodwin's Election&mdash;Shirley's
Case of Privilege&mdash;Complaints of Grievances&mdash;Commons'
Vindication of themselves&mdash;Session of 1605&mdash;Union with Scotland
debated&mdash;Continual Bickerings between the Crown and Commons&mdash;Impositions
on Merchandise without Consent of Parliament&mdash;Remonstrances
against these in Session of 1610&mdash;Doctrine of King's absolute
Power inculcated by Clergy&mdash;Articuli Cleri&mdash;Cowell's Interpreter&mdash;Renewed
Complaints of the Commons&mdash;Negotiation for giving up the
Feudal Revenue&mdash;Dissolution of Parliament&mdash;Character of James&mdash;Death
of Lord Salisbury&mdash;Foreign Politics of the Government&mdash;Lord
Coke's Alienation from the Court&mdash;Illegal Proclamations&mdash;Means
resorted to in order to avoid the Meeting of Parliament&mdash;Parliament
of 1614&mdash;Undertakers&mdash;It is dissolved without passing a single Act&mdash;Benevolences&mdash;Prosecution
of Peacham&mdash;Dispute about the Jurisdiction
of the Court of Chancery&mdash;Case of Commendams&mdash;Arbitrary
Proceedings in Star-Chamber&mdash;Arabella Stuart&mdash;Somerset and Overbury&mdash;Sir
Walter Raleigh&mdash;Parliament of 1621&mdash;Proceedings against
Mompesson and Lord Bacon&mdash;Violence in the Case of Floyd&mdash;Disagreement
between the King and Commons&mdash;Their Dissolution, after
a strong Remonstrance&mdash;Marriage-Treaty with Spain&mdash;Parliament of
1624&mdash;Impeachment of Middlesex <span class="flright"><a href="#Page_266">Page 266</a></span></p>

<p class="center p4">CHAPTER VII</p>

<p class="center">ON THE ENGLISH CONSTITUTION FROM THE ACCESSION OF CHARLES I.
TO THE DISSOLUTION OF HIS THIRD PARLIAMENT</p>

<p class="i1"><span class="o2">Parliament</span> of 1625&mdash;Its Dissolution&mdash;Another Parliament called&mdash;Prosecution
of Buckingham&mdash;Arbitrary Proceedings towards the
Earls of Arundel and Bristol&mdash;Loan demanded by the King&mdash;Several
<span class="pagenum"><a name="Page_XVIII" id="Page_XVIII">xviii</a></span>
committed for Refusal to contribute&mdash;They sue for a Habeas Corpus&mdash;Arguments
on this Question, which is decided against them&mdash;A
Parliament called in 1628&mdash;Petition of Right&mdash;King's Reluctance to
grant it&mdash;Tonnage and Poundage disputed&mdash;King dissolves Parliament&mdash;Religious
Differences&mdash;Prosecution of Puritans by Bancroft&mdash;Growth
of High-Church Tenets&mdash;Differences as to the Observance of
Sunday&mdash;Arminian Controversy&mdash;State Catholics under James&mdash;Jealousy
of the Court's Favour towards them&mdash;Unconstitutional
Tenets promulgated by the High-Church Party&mdash;General Remarks <span class="flright"><a href="#Page_347">Page 347</a></span></p>

<h2 class="p6">PREFACE</h2>
<p><span class="pagenum"><a name="Page_1" id="Page_1">1</a></span>
</p>

<p>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.</p>

<p>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
<span class="pagenum"><a name="Page_2" id="Page_2">2</a></span>
both so disproportionate to the interest and importance of their
subjects.</p>

<p>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
<i>History of the British Empire from the Accession of Charles I. to
the Restoration</i>, 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.</p>

<p>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,
<i>Histoire de la Revolution d'Angleterre, depuis l'Avenement de
Charles I. jusqu'à la Chute de Jacques II.</i>, 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.</p>

<p>In terminating the <i>Constitutional History of England</i> 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
<span class="pagenum"><a name="Page_3" id="Page_3">3</a></span>
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.</p>

<p><span class="i2"><i>June 1827.</i></span></p>

<p class="center p6"><span class="b12">ADVERTISEMENT</span><br />
<br />
TO THE<br />
<br />
<span class="b11">THIRD EDITION</span></p>
<p><span class="pagenum"><a name="Page_4" id="Page_4">4</a></span></p>

<p>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 <i>Constitutional History of England</i>.</p>

<p><span class="i2"><i>April 1832.</i></span></p>

<div class="authorities">
<p class="center p6 b12">LIST OF AUTHORITIES</p>
<p><span class="pagenum"><a name="Page_5" id="Page_5">5</a></span></p>

<p class="center"><i>The following Editions have been used for the References in these
Volumes</i></p>

<p class="p2">
<i>Statutes at Large</i>, by Ruffhead, except where the late edition of <i>Statutes
of the Realm</i> is expressly quoted.</p>

<p><i>State Trials</i>, by Howell.</p>

<p>Rymer's <i>F&oelig;dera</i>, London, 20 vols.</p>
<p class="sub">The paging of this edition is preserved in the margin of the Hague
edition in 10 vols.</p>

<p><i>Parliamentary History</i>, new edition.</p>

<p>Burnet's <i>History of the Reformation</i>, 3 vols. folio, 1681.</p>

<p>Strype's <i>Ecclesiastical Memorials</i>, <i>Annals of Reformation</i>, and Lives of
Archbishops Cranmer, Parker, Grindal, and Whitgift, folio.</p>
<p class="sub">The paging of these editions is preserved in those lately published
in 8vo.</p>

<p>Hall's <i>Chronicles of England</i>.</p>

<p>Holingshed's <i>Chronicles of England, Scotland, and Ireland</i>.</p>
<p class="sub">The edition in 4to published in 1808.</p>

<p><i>Somers Tracts</i>, by Walter Scott, 13 vols. 4to.</p>

<p><i>Harleian Miscellany</i>, 8 vols. 4to.</p>

<p>Neal's <i>History of the Puritans</i>, 2 vols. 4to.</p>

<p>Bacon's Works, by Mallet, 3 vols. folio, 1753.</p>

<p>Kennet's <i>Complete History of England</i>, 3 vols. folio, 1719.</p>

<p>Wood's <i>History of University of Oxford</i>, by Gutch, 4 vols. 4to.</p>

<p>Lingard's <i>History of England</i>, 10 vols. 8vo.</p>

<p>Butler's <i>Memoirs of English Catholics</i>, 4 vols. 1819.</p>

<p>Harris's <i>Lives of James I., Charles I., Cromwell, and Charles II.</i>, 5 vols. 1814.</p>

<p>Clarendon's <i>History of the Rebellion</i>, 8 vols. 8vo. Oxford, 1826.</p>
<p class="sub">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.</p>

<p>Clarendon's <i>Life</i>, folio.</p>

<p><i>Rushworth Abridged</i>, 6 vols. 8vo. 1703.</p>
<p class="sub">This edition contains many additions from works published since the
folio edition in 1680.</p>

<p>Whitelock's <i>Memorials</i>, 1732.</p>

<p><i>Memoirs of Col. Hutchinson</i>, 4to. 1806.</p>

<p>May's <i>History of the Parliament</i>, 4to. 1812.</p>

<p>Baxter's <i>Life</i>, folio.</p>

<p>Rapin's <i>History of England</i>, 3 vols. folio, 1732.
<span class="pagenum"><a name="Page_6" id="Page_6">6</a></span></p>

<p>Burnet's <i>History of his own Times</i>, 2 vols. folio.</p>
<p class="sub">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.</p>

<p><i>Life of William Lord Russell</i>, by Lord John Russell, 4to.</p>

<p>Temple's <i>Works</i>, 2 vols. folio, 1720.</p>

<p>Coxe's <i>Life of Marlborough</i>, 3 vols. 4to.</p>

<p>Coxe's <i>Memoirs of Sir Robert Walpole</i>, 3 vols. 4to.</p>

<p>Robertson's <i>History of Scotland</i>, 2 vols. 8vo. 1794.</p>

<p>Laing's <i>History of Scotland</i>, 4 vols. 8vo.</p>

<p>Dalrymple's <i>Annals of Scotland</i>, 2 vols. 4to.</p>

<p>Leland's <i>History of Ireland</i>, 3 vols. 4to.</p>

<p>Spenser's <i>Account of State of Ireland</i>, in 8th volume of Todd's edition of
  Spenser's works.</p>

<p>These are, I believe, almost all the works quoted in the following volumes,
concerning which any uncertainty could arise from the mode of reference.</p>
</div>

<h1 class="p6">CONSTITUTIONAL HISTORY<br />
OF ENGLAND<br />
<br /><br />
<span class="s08">FROM HENRY VII. TO GEORGE II.</span></h1>

<p><span class="pagenum"><a name="Page_7" id="Page_7">7</a></span></p>

<h3 class="p6">CHAPTER I</h3>

<p class="center">ON THE ENGLISH CONSTITUTION FROM HENRY VII. TO MARY</p>

<p><i>Ancient government of England.</i>&mdash;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.</p>

<p>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
<span class="pagenum"><a name="Page_8" id="Page_8">8</a></span>
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.</p>

<p><i>Limitations of royal authority.</i>&mdash;The essential checks upon the
royal authority were five in number.&mdash;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.</p>

<p>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.</p>

<p>The necessary concurrence of the two houses of parliament
in legislation, though it could not be more unequivocally established
<span class="pagenum"><a name="Page_9" id="Page_9">9</a></span>
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."<a name="FNanchor_5" id="FNanchor_5" href="#Footnote_5" class="fnanchor">[5]</a></p>

<p>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?
<span class="pagenum"><a name="Page_10" id="Page_10">10</a></span>
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.</p>

<p>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.</p>

<p><i>State of society and law.</i>&mdash;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.</p>

<p>The three courts at Westminster&mdash;the King's Bench, Common
Pleas, and Exchequer&mdash;consisting each of four or five judges,
<span class="pagenum"><a name="Page_11" id="Page_11">11</a></span>
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.<a name="FNanchor_6" id="FNanchor_6" href="#Footnote_6" class="fnanchor">[6]</a> By this device, which is as ancient as the
<span class="pagenum"><a name="Page_12" id="Page_12">12</a></span>
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.</p>

<p>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
<span class="pagenum"><a name="Page_13" id="Page_13">13</a></span>
Cumberland, being very ill peopled, and the inhabitants of
London and Westminster not exceeding sixty or seventy
thousand.<a name="FNanchor_7" id="FNanchor_7" href="#Footnote_7" class="fnanchor">[7]</a></p>

<p>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.</p>

<p>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."<a name="FNanchor_8" id="FNanchor_8" href="#Footnote_8" class="fnanchor">[8]</a> 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
<span class="pagenum"><a name="Page_14" id="Page_14">14</a></span>
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.</p>

<p><i>Statute for the security of the subject under a king</i> de facto.&mdash;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 <i>de jure</i> and <i>de facto</i>. 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."<a name="FNanchor_9" id="FNanchor_9" href="#Footnote_9" class="fnanchor">[9]</a> 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.<a name="FNanchor_10" id="FNanchor_10" href="#Footnote_10" class="fnanchor">[10]</a>
<span class="pagenum"><a name="Page_15" id="Page_15">15</a></span></p>

<p>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 æra 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.</p>

<p><i>Statute of Fines.</i>&mdash;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
<span class="pagenum"><a name="Page_16" id="Page_16">16</a></span>
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.</p>

<p>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.</p>

<p>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 <i>de donis conditionalibus</i>, 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
<span class="pagenum"><a name="Page_17" id="Page_17">17</a></span>
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.</p>

<p>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.<a name="FNanchor_11" id="FNanchor_11" href="#Footnote_11" class="fnanchor">[11]</a></p>

<p><i>Exactions of Henry VII.</i>&mdash;The two first of the Tudors rarely
<span class="pagenum"><a name="Page_18" id="Page_18">18</a></span>
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.<a name="FNanchor_12" id="FNanchor_12" href="#Footnote_12" class="fnanchor">[12]</a> 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.<a name="FNanchor_13" id="FNanchor_13" href="#Footnote_13" class="fnanchor">[13]</a> 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.</p>

<p>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
<span class="pagenum"><a name="Page_19" id="Page_19">19</a></span>
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.<a name="FNanchor_14" id="FNanchor_14" href="#Footnote_14" class="fnanchor">[14]</a> 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
<span class="pagenum"><a name="Page_20" id="Page_20">20</a></span>
the payment of £15,000, 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.<a name="FNanchor_15" id="FNanchor_15" href="#Footnote_15" class="fnanchor">[15]</a></p>

<p>It is asserted by early writers, though perhaps only on conjecture,
that he left a sum thus amassed, of no less than £1,800,000
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.<a name="FNanchor_16" id="FNanchor_16" href="#Footnote_16" class="fnanchor">[16]</a> 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.<a name="FNanchor_17" id="FNanchor_17" href="#Footnote_17" class="fnanchor">[17]</a> 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
<span class="pagenum"><a name="Page_21" id="Page_21">21</a></span>
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.<a name="FNanchor_18" id="FNanchor_18" href="#Footnote_18" class="fnanchor">[18]</a></p>

<p><i>Taxes demanded by Henry VIII.</i>&mdash;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 £800,000, 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.<a name="FNanchor_19" id="FNanchor_19" href="#Footnote_19" class="fnanchor">[19]</a> 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
<span class="pagenum"><a name="Page_22" id="Page_22">22</a></span>
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.<a name="FNanchor_20" id="FNanchor_20" href="#Footnote_20" class="fnanchor">[20]</a></p>

<p><i>Illegal exactions of Wolsey in 1522 and 1525.</i>&mdash;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.<a name="FNanchor_21" id="FNanchor_21" href="#Footnote_21" class="fnanchor">[21]</a> The year before this debate in
<span class="pagenum"><a name="Page_23" id="Page_23">23</a></span>
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.<a name="FNanchor_22" id="FNanchor_22" href="#Footnote_22" class="fnanchor">[22]</a>
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.<a name="FNanchor_23" id="FNanchor_23" href="#Footnote_23" class="fnanchor">[23]</a>
This demand Wolsey made in person to the mayor and
<span class="pagenum"><a name="Page_24" id="Page_24">24</a></span>
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,
<span class="pagenum"><a name="Page_25" id="Page_25">25</a></span>
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."<a name="FNanchor_24" id="FNanchor_24" href="#Footnote_24" class="fnanchor">[24]</a> 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.</p>

<p>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,
<span class="pagenum"><a name="Page_26" id="Page_26">26</a></span>
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.<a name="FNanchor_25" id="FNanchor_25" href="#Footnote_25" class="fnanchor">[25]</a></p>

<p><i>Acts of parliament releasing the king from his debts.</i>&mdash;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.<a name="FNanchor_26" id="FNanchor_26" href="#Footnote_26" class="fnanchor">[26]</a> But in truth this
<span class="pagenum"><a name="Page_27" id="Page_27">27</a></span>
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."<a name="FNanchor_27" id="FNanchor_27" href="#Footnote_27" class="fnanchor">[27]</a> 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.<a name="FNanchor_28" id="FNanchor_28" href="#Footnote_28" class="fnanchor">[28]</a></p>

<p><i>A benevolence again exacted.</i>&mdash;Henry had once more recourse,
about 1545, to a general exaction, miscalled benevolence. The
council's instructions to the commissioners employed in levying
<span class="pagenum"><a name="Page_28" id="Page_28">28</a></span>
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<i>s.</i> or whose chattels were less than £15. It is intimated that
the least which his majesty could reasonably accept would be
twenty pence in the pound, on the yearly value of land, and
half that sum on 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.<a name="FNanchor_29" id="FNanchor_29" href="#Footnote_29" class="fnanchor">[29]</a></p>

<p>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
<span class="pagenum"><a name="Page_29" id="Page_29">29</a></span>
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."<a name="FNanchor_30" id="FNanchor_30" href="#Footnote_30" class="fnanchor">[30]</a> 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.<a name="FNanchor_31" id="FNanchor_31" href="#Footnote_31" class="fnanchor">[31]</a></p>

<p><i>Severe and unjust executions for treason.</i>&mdash;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.</p>

<p><i>Earl of Warwick.</i>&mdash;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.</p>

<p><i>Earl of Suffolk.</i>&mdash;The nearest heir to the house of York, after
the queen and her children, and the descendants of the Duke
<span class="pagenum"><a name="Page_30" id="Page_30">30</a></span>
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.</p>

<p><i>Duke of Buckingham.</i>&mdash;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.<a name="FNanchor_32" id="FNanchor_32" href="#Footnote_32" class="fnanchor">[32]</a>
<span class="pagenum"><a name="Page_31" id="Page_31">31</a></span></p>

<p><i>New treasons created by statutes.</i>&mdash;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.</p>

<p>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.<a name="FNanchor_33" id="FNanchor_33" href="#Footnote_33" class="fnanchor">[33]</a> The insurgents laid down their arms, on an
<span class="pagenum"><a name="Page_32" id="Page_32">32</a></span>
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,<a name="FNanchor_34" id="FNanchor_34" href="#Footnote_34" class="fnanchor">[34]</a> 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.</p>

<p><i>Cromwell.</i>&mdash;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
<span class="pagenum"><a name="Page_33" id="Page_33">33</a></span>
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.<a name="FNanchor_35" id="FNanchor_35" href="#Footnote_35" class="fnanchor">[35]</a> 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.<a name="FNanchor_36" id="FNanchor_36" href="#Footnote_36" class="fnanchor">[36]</a> 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.
<span class="pagenum"><a name="Page_34" id="Page_34">34</a></span></p>

<p><i>Duke of Norfolk.</i>&mdash;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.</p>

<p><i>Anne Boleyn.</i>&mdash;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.<a name="FNanchor_37" id="FNanchor_37" href="#Footnote_37" class="fnanchor">[37]</a> But her
<span class="pagenum"><a name="Page_35" id="Page_35">35</a></span>
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.<a name="FNanchor_38" id="FNanchor_38" href="#Footnote_38" class="fnanchor">[38]</a> Henry seems to have thought his honour too
<span class="pagenum"><a name="Page_36" id="Page_36">36</a></span>
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.<a name="FNanchor_39" id="FNanchor_39" href="#Footnote_39" class="fnanchor">[39]</a>
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.<a name="FNanchor_40" id="FNanchor_40" href="#Footnote_40" class="fnanchor">[40]</a></p>

<p><i>Fresh statutes enacting the penalties of treason.</i>&mdash;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
<span class="pagenum"><a name="Page_37" id="Page_37">37</a></span>
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."<a name="FNanchor_41" id="FNanchor_41" href="#Footnote_41" class="fnanchor">[41]</a></p>

<p><i>Act giving proclamations the force of law.</i>&mdash;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.<a name="FNanchor_42" id="FNanchor_42" href="#Footnote_42" class="fnanchor">[42]</a> 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.<a name="FNanchor_43" id="FNanchor_43" href="#Footnote_43" class="fnanchor">[43]</a> 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
<span class="pagenum"><a name="Page_38" id="Page_38">38</a></span>
attained the age of twenty-four years, might repeal any statutes
made since his accession.<a name="FNanchor_44" id="FNanchor_44" href="#Footnote_44" class="fnanchor">[44]</a> 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.<a name="FNanchor_45" id="FNanchor_45" href="#Footnote_45" class="fnanchor">[45]</a></p>

<p>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.
<span class="pagenum"><a name="Page_39" id="Page_39">39</a></span>
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.<a name="FNanchor_46" id="FNanchor_46" href="#Footnote_46" class="fnanchor">[46]</a></p>

<p><i>Government of Edward VI.'s counsellors.</i>&mdash;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.<a name="FNanchor_47" id="FNanchor_47" href="#Footnote_47" class="fnanchor">[47]</a>
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
<span class="pagenum"><a name="Page_40" id="Page_40">40</a></span>
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.<a name="FNanchor_48" id="FNanchor_48" href="#Footnote_48" class="fnanchor">[48]</a>
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.<a name="FNanchor_49" id="FNanchor_49" href="#Footnote_49" class="fnanchor">[49]</a> 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.</p>

<p><i>Attainder of Lord Seymour.</i>&mdash;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
<span class="pagenum"><a name="Page_41" id="Page_41">41</a></span>
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.<a name="FNanchor_50" id="FNanchor_50" href="#Footnote_50" class="fnanchor">[50]</a> 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.<a name="FNanchor_51" id="FNanchor_51" href="#Footnote_51" class="fnanchor">[51]</a> How striking a picture it affords of the sixteenth
<span class="pagenum"><a name="Page_42" id="Page_42">42</a></span>
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!</p>

<p><i>Attainder of Duke of Somerset.</i>&mdash;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.</p>

<p>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
<span class="pagenum"><a name="Page_43" id="Page_43">43</a></span>
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."<a name="FNanchor_52" id="FNanchor_52" href="#Footnote_52" class="fnanchor">[52]</a> 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.</p>

<p><i>Violence of Mary's reign.</i>&mdash;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.<a name="FNanchor_53" id="FNanchor_53" href="#Footnote_53" class="fnanchor">[53]</a> 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.<a name="FNanchor_54" id="FNanchor_54" href="#Footnote_54" class="fnanchor">[54]</a> The queen, in fact,
<span class="pagenum"><a name="Page_44" id="Page_44">44</a></span>
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.<a name="FNanchor_55" id="FNanchor_55" href="#Footnote_55" class="fnanchor">[55]</a> 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.<a name="FNanchor_56" id="FNanchor_56" href="#Footnote_56" class="fnanchor">[56]</a> 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.<a name="FNanchor_57" id="FNanchor_57" href="#Footnote_57" class="fnanchor">[57]</a> A commission
issued in 1557, authorising the persons named in it to enquire,
<span class="pagenum"><a name="Page_45" id="Page_45">45</a></span>
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.<a name="FNanchor_58" id="FNanchor_58" href="#Footnote_58" class="fnanchor">[58]</a> 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.<a name="FNanchor_59" id="FNanchor_59" href="#Footnote_59" class="fnanchor">[59]</a> 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.<a name="FNanchor_60" id="FNanchor_60" href="#Footnote_60" class="fnanchor">[60]</a></p>

<p><i>The House of Commons recovers part of its independent power
in these two reigns.</i>&mdash;Notwithstanding, however, this apparently
<span class="pagenum"><a name="Page_46" id="Page_46">46</a></span>
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.<a name="FNanchor_61" id="FNanchor_61" href="#Footnote_61" class="fnanchor">[61]</a> 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;<a name="FNanchor_62" id="FNanchor_62" href="#Footnote_62" class="fnanchor">[62]</a> but rejected one attainting Tunstal Bishop
of Durham for misprision of treason, and were hardly brought
to grant a subsidy.<a name="FNanchor_63" id="FNanchor_63" href="#Footnote_63" class="fnanchor">[63]</a> 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.<a name="FNanchor_64" id="FNanchor_64" href="#Footnote_64" class="fnanchor">[64]</a> 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.<a name="FNanchor_65" id="FNanchor_65" href="#Footnote_65" class="fnanchor">[65]</a> If Mary could
<span class="pagenum"><a name="Page_47" id="Page_47">47</a></span>
have obtained the consent of parliament, she would have settled
the crown on her husband, and sent her sister, perhaps, to the
scaffold.<a name="FNanchor_66" id="FNanchor_66" href="#Footnote_66" class="fnanchor">[66]</a></p>

<p><i>Attempt of the court to strengthen itself by creating new boroughs.</i>&mdash;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.<a name="FNanchor_67" id="FNanchor_67" href="#Footnote_67" class="fnanchor">[67]</a> 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
<span class="pagenum"><a name="Page_48" id="Page_48">48</a></span>
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.<a name="FNanchor_68" id="FNanchor_68" href="#Footnote_68" class="fnanchor">[68]</a> 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;<a name="FNanchor_69" id="FNanchor_69" href="#Footnote_69" class="fnanchor">[69]</a> 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.<a name="FNanchor_70" id="FNanchor_70" href="#Footnote_70" class="fnanchor">[70]</a></p>

<p><i>Causes of the high prerogative of the Tudors.</i>&mdash;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,
<span class="pagenum"><a name="Page_49" id="Page_49">49</a></span>
an armed man receiving pay throughout England.<a name="FNanchor_71" id="FNanchor_71" href="#Footnote_71" class="fnanchor">[71]</a> 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.</p>

<p><i>Jurisdiction of the council of star-chamber.</i>&mdash;I have noticed in
a former work that illegal and arbitrary jurisdiction exercised
by the council, which, in despite of several positive statutes,
<span class="pagenum"><a name="Page_50" id="Page_50">50</a></span>
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.<a name="FNanchor_72" id="FNanchor_72" href="#Footnote_72" class="fnanchor">[72]</a> 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
<i>Treatise on the Commonwealth of England</i>, "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."<a name="FNanchor_73" id="FNanchor_73" href="#Footnote_73" class="fnanchor">[73]</a> One of the instances to which he alludes was
<span class="pagenum"><a name="Page_51" id="Page_51">51</a></span>
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.<a name="FNanchor_74" id="FNanchor_74" href="#Footnote_74" class="fnanchor">[74]</a></p>

<p>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.<a name="FNanchor_75" id="FNanchor_75" href="#Footnote_75" class="fnanchor">[75]</a> This cannot
<span class="pagenum"><a name="Page_52" id="Page_52">52</a></span>
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.<a name="FNanchor_76" id="FNanchor_76" href="#Footnote_76" class="fnanchor">[76]</a> 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
<span class="pagenum"><a name="Page_53" id="Page_53">53</a></span>
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.</p>

<p>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,<a name="FNanchor_77" id="FNanchor_77" href="#Footnote_77" class="fnanchor">[77]</a> which was at that time
<span class="pagenum"><a name="Page_54" id="Page_54">54</a></span>
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 <i>fleeting</i> [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."<a name="FNanchor_78" id="FNanchor_78" href="#Footnote_78" class="fnanchor">[78]</a> 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
<span class="pagenum"><a name="Page_55" id="Page_55">55</a></span>
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.<a name="FNanchor_79" id="FNanchor_79" href="#Footnote_79" class="fnanchor">[79]</a></p>

<p>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."<a name="FNanchor_80" id="FNanchor_80" href="#Footnote_80" class="fnanchor">[80]</a> 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.<a name="FNanchor_81" id="FNanchor_81" href="#Footnote_81" class="fnanchor">[81]</a>
<span class="pagenum"><a name="Page_56" id="Page_56">56</a></span></p>

<p><i>Influence of the authority of the star-chamber in enhancing the
royal power.</i>&mdash;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;<a name="FNanchor_82" id="FNanchor_82" href="#Footnote_82" class="fnanchor">[82]</a> and Henry VIII. is
reported, not perhaps on very certain authority, to have talked
of cutting off the heads of refractory commoners.</p>

<p>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
<span class="pagenum"><a name="Page_57" id="Page_57">57</a></span>
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.</p>
<p><span class="pagenum"><a name="Page_58" id="Page_58">58</a></span></p>

<h3 class="p6">CHAPTER II</h3>

<p class="center">ON THE ENGLISH CHURCH UNDER HENRY VIII., EDWARD VI.,
AND MARY</p>

<p><span class="smcap">Reformation.</span> <i>State of public opinion as to religion.</i>&mdash;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.</p>

<p>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
<span class="pagenum"><a name="Page_59" id="Page_59">59</a></span>
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.<a name="FNanchor_83" id="FNanchor_83" href="#Footnote_83" class="fnanchor">[83]</a></p>

<p><span class="pagenum"><a name="Page_60" id="Page_60">60</a></span></p>

<p><i>Henry VIII.'s controversy with Luther.</i>&mdash;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.<a name="FNanchor_84" id="FNanchor_84" href="#Footnote_84" class="fnanchor">[84]</a> 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.<a name="FNanchor_85" id="FNanchor_85" href="#Footnote_85" class="fnanchor">[85]</a> Whatever apprehension
<span class="pagenum"><a name="Page_61" id="Page_61">61</a></span>
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.</p>

<p><i>His divorce from Catherine.</i>&mdash;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.<a name="FNanchor_86" id="FNanchor_86" href="#Footnote_86" class="fnanchor">[86]</a> 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.<a name="FNanchor_87" id="FNanchor_87" href="#Footnote_87" class="fnanchor">[87]</a> 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.</p>

<p>It would be unnecessary to repeat, what is told by so many
<span class="pagenum"><a name="Page_62" id="Page_62">62</a></span>
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,<a name="FNanchor_88" id="FNanchor_88" href="#Footnote_88" class="fnanchor">[88]</a> 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.<a name="FNanchor_89" id="FNanchor_89" href="#Footnote_89" class="fnanchor">[89]</a> But, determined as his mind had become, it was
<span class="pagenum"><a name="Page_63" id="Page_63">63</a></span>
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.<a name="FNanchor_90" id="FNanchor_90" href="#Footnote_90" class="fnanchor">[90]</a>
<span class="pagenum"><a name="Page_64" id="Page_64">64</a></span></p>

<p>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.<a name="FNanchor_91" id="FNanchor_91" href="#Footnote_91" class="fnanchor">[91]</a> The next proceeding was
<span class="pagenum"><a name="Page_65" id="Page_65">65</a></span>
of a far more serious nature. It was pretended, that Wolsey's
exercise of authority as papal legate contravened a statute of
Richard II., and that both himself and the whole body of the
clergy, by their submission to him, had incurred the penalties
of a præmunire, that is, the forfeiture of their movable estate,
besides imprisonment at discretion. These old statutes in
restraint of the papal jurisdiction had been so little regarded,
and so many legates had acted in England without objection,
that Henry's prosecution of the church on this occasion was
extremely harsh and unfair. The clergy, however, now felt
themselves to be the weaker party. In convocation they
implored the king's clemency, and obtained it by paying a large
sum of money. In their petition he was styled 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.</p>

<p>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
<span class="pagenum"><a name="Page_66" id="Page_66">66</a></span>
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.<a name="FNanchor_92" id="FNanchor_92" href="#Footnote_92" class="fnanchor">[92]</a> 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
<span class="pagenum"><a name="Page_67" id="Page_67">67</a></span>
title was not formally declared by parliament to appertain to
the Crown till the ensuing session of parliament.<a name="FNanchor_93" id="FNanchor_93" href="#Footnote_93" class="fnanchor">[93]</a></p>

<p><i>Separation from the Church of Rome.</i>&mdash;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.<a name="FNanchor_94" id="FNanchor_94" href="#Footnote_94" class="fnanchor">[94]</a> 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.</p>

<p>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.
<span class="pagenum"><a name="Page_68" id="Page_68">68</a></span>
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;<a name="FNanchor_95" id="FNanchor_95" href="#Footnote_95" class="fnanchor">[95]</a> 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.<a name="FNanchor_96" id="FNanchor_96" href="#Footnote_96" class="fnanchor">[96]</a> They complied indeed with all the
<span class="pagenum"><a name="Page_69" id="Page_69">69</a></span>
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.<a name="FNanchor_97" id="FNanchor_97" href="#Footnote_97" class="fnanchor">[97]</a> 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.</p>

<p><i>Dissolution of monasteries.</i>&mdash;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.<a name="FNanchor_98" id="FNanchor_98" href="#Footnote_98" class="fnanchor">[98]</a> 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.<a name="FNanchor_99" id="FNanchor_99" href="#Footnote_99" class="fnanchor">[99]</a> 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
<span class="pagenum"><a name="Page_70" id="Page_70">70</a></span>
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.<a name="FNanchor_100" id="FNanchor_100" href="#Footnote_100" class="fnanchor">[100]</a> 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.<a name="FNanchor_101" id="FNanchor_101" href="#Footnote_101" class="fnanchor">[101]</a> 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
<span class="pagenum"><a name="Page_71" id="Page_71">71</a></span>
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.<a name="FNanchor_102" id="FNanchor_102" href="#Footnote_102" class="fnanchor">[102]</a> 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.<a name="FNanchor_103" id="FNanchor_103" href="#Footnote_103" class="fnanchor">[103]</a></p>

<p>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 £200 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
<span class="pagenum"><a name="Page_72" id="Page_72">72</a></span>
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.<a name="FNanchor_104" id="FNanchor_104" href="#Footnote_104" class="fnanchor">[104]</a>
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.<a name="FNanchor_105" id="FNanchor_105" href="#Footnote_105" class="fnanchor">[105]</a> These however were voluntary gifts on the part of
the Crown. For the parliament which dissolved the monastic
<span class="pagenum"><a name="Page_73" id="Page_73">73</a></span>
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.</p>

<p>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.<a name="FNanchor_106" id="FNanchor_106" href="#Footnote_106" class="fnanchor">[106]</a> 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
<span class="pagenum"><a name="Page_74" id="Page_74">74</a></span>
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.</p>

<p>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,
<span class="pagenum"><a name="Page_75" id="Page_75">75</a></span>
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.</p>

<p>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.<a name="FNanchor_107" id="FNanchor_107" href="#Footnote_107" class="fnanchor">[107]</a> 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.</p>

<p>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 £131,607; 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.<a name="FNanchor_108" id="FNanchor_108" href="#Footnote_108" class="fnanchor">[108]</a> The movables
<span class="pagenum"><a name="Page_76" id="Page_76">76</a></span>
of the smaller monasteries alone were reckoned at £100,000;
and, as the rents of these were less than a fourth of the whole,
we may calculate the aggregate value of 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.</p>

<p>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.<a name="FNanchor_109" id="FNanchor_109" href="#Footnote_109" class="fnanchor">[109]</a>
It was

<span class="pagenum"><a name="Page_77" id="Page_77">77</a></span>
not in the spirit of Henry's policy, or in that of the times, to
preserve much of these revenues to the church, though he had
designed to allot £18,000 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.<a name="FNanchor_110" id="FNanchor_110" href="#Footnote_110" class="fnanchor">[110]</a> 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.<a name="FNanchor_111" id="FNanchor_111" href="#Footnote_111" class="fnanchor">[111]</a> 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.</p>

<p>But, if the participation of so many persons in the spoils of
ecclesiastical property gave stability to the new religion, by
<span class="pagenum"><a name="Page_78" id="Page_78">78</a></span>
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.<a name="FNanchor_112" id="FNanchor_112" href="#Footnote_112" class="fnanchor">[112]</a>
<span class="pagenum"><a name="Page_79" id="Page_79">79</a></span></p>

<p>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.<a name="FNanchor_113" id="FNanchor_113" href="#Footnote_113" class="fnanchor">[113]</a> 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.</p>

<p>These two great political measures, the separation from the
Roman see, and the suppression of monasteries, so broke the
<span class="pagenum"><a name="Page_80" id="Page_80">80</a></span>
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 <i>Institution</i>,
and the <i>Erudition of a Christian Man</i>, 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.<a name="FNanchor_114" id="FNanchor_114" href="#Footnote_114" class="fnanchor">[114]</a>
<span class="pagenum"><a name="Page_81" id="Page_81">81</a></span></p>

<p><i>Progress of the reformed doctrine in England.</i>&mdash;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.<a name="FNanchor_115" id="FNanchor_115" href="#Footnote_115" class="fnanchor">[115]</a> 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.</p>

<p>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
<span class="pagenum"><a name="Page_82" id="Page_82">82</a></span>
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.<a name="FNanchor_116" id="FNanchor_116" href="#Footnote_116" class="fnanchor">[116]</a> 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.
<span class="pagenum"><a name="Page_83" id="Page_83">83</a></span></p>

<p>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.<a name="FNanchor_117" id="FNanchor_117" href="#Footnote_117" class="fnanchor">[117]</a> 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.</p>

<p><i>Its establishment under Edward.</i>&mdash;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.<a name="FNanchor_118" id="FNanchor_118" href="#Footnote_118" class="fnanchor">[118]</a> Under
<span class="pagenum"><a name="Page_84" id="Page_84">84</a></span>
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.</p>

<p><i>Sketch of the chief points of difference between the two religions.</i>&mdash;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.<a name="FNanchor_119" id="FNanchor_119" href="#Footnote_119" class="fnanchor">[119]</a></p>

<p>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
<span class="pagenum"><a name="Page_85" id="Page_85">85</a></span>
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.<a name="FNanchor_120" id="FNanchor_120" href="#Footnote_120" class="fnanchor">[120]</a>
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.</p>

<p>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 <i>popular</i> 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;<a name="FNanchor_121" id="FNanchor_121" href="#Footnote_121" class="fnanchor">[121]</a> and several other changes made, to eradicate the
vestiges of the ancient superstition.
<span class="pagenum"><a name="Page_86" id="Page_86">86</a></span></p>

<p>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
<span class="pagenum"><a name="Page_87" id="Page_87">87</a></span>
in temporal affairs, there cannot be the least hesitation as to
the expediency of discontinuing the usage.<a name="FNanchor_122" id="FNanchor_122" href="#Footnote_122" class="fnanchor">[122]</a></p>

<p>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
<span class="pagenum"><a name="Page_88" id="Page_88">88</a></span>
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.<a name="FNanchor_123" id="FNanchor_123" href="#Footnote_123" class="fnanchor">[123]</a> 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 &OElig;colampadius,
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),<a name="FNanchor_124" id="FNanchor_124" href="#Footnote_124" class="fnanchor">[124]</a> 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
<span class="pagenum"><a name="Page_89" id="Page_89">89</a></span>
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&mdash;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.<a name="FNanchor_125" id="FNanchor_125" href="#Footnote_125" class="fnanchor">[125]</a></p>

<p>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;
<span class="pagenum"><a name="Page_90" id="Page_90">90</a></span>
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.<a name="FNanchor_126" id="FNanchor_126" href="#Footnote_126" class="fnanchor">[126]</a> 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.<a name="FNanchor_127" id="FNanchor_127" href="#Footnote_127" class="fnanchor">[127]</a> 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.</p>

<p><i>Opposition made by part of the nation.</i>&mdash;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.<a name="FNanchor_128" id="FNanchor_128" href="#Footnote_128" class="fnanchor">[128]</a> 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
<span class="pagenum"><a name="Page_91" id="Page_91">91</a></span>
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.<a name="FNanchor_129" id="FNanchor_129" href="#Footnote_129" class="fnanchor">[129]</a> 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
<span class="pagenum"><a name="Page_92" id="Page_92">92</a></span>
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.<a name="FNanchor_130" id="FNanchor_130" href="#Footnote_130" class="fnanchor">[130]</a> 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.<a name="FNanchor_131" id="FNanchor_131" href="#Footnote_131" class="fnanchor">[131]</a> 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.<a name="FNanchor_132" id="FNanchor_132" href="#Footnote_132" class="fnanchor">[132]</a>
<span class="pagenum"><a name="Page_93" id="Page_93">93</a></span></p>

<p>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;<a name="FNanchor_133" id="FNanchor_133" href="#Footnote_133" class="fnanchor">[133]</a> 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.<a name="FNanchor_134" id="FNanchor_134" href="#Footnote_134" class="fnanchor">[134]</a> 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.<a name="FNanchor_135" id="FNanchor_135" href="#Footnote_135" class="fnanchor">[135]</a>
<span class="pagenum"><a name="Page_94" id="Page_94">94</a></span>
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.<a name="FNanchor_136" id="FNanchor_136" href="#Footnote_136" class="fnanchor">[136]</a> 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.<a name="FNanchor_137" id="FNanchor_137" href="#Footnote_137" class="fnanchor">[137]</a>
<span class="pagenum"><a name="Page_95" id="Page_95">95</a></span></p>

<p><i>Cranmer.</i>&mdash;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.<a name="FNanchor_138" id="FNanchor_138" href="#Footnote_138" class="fnanchor">[138]</a> 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
<span class="pagenum"><a name="Page_96" id="Page_96">96</a></span>
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."<a name="FNanchor_139" id="FNanchor_139" href="#Footnote_139" class="fnanchor">[139]</a> 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
<span class="pagenum"><a name="Page_97" id="Page_97">97</a></span>
Cranmer; but his fame has brightened in the fire that consumed
him.<a name="FNanchor_140" id="FNanchor_140" href="#Footnote_140" class="fnanchor">[140]</a></p>

<p><i>Cranmer's moderation in introducing changes not acceptable to
the zealots.</i>&mdash;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
<span class="pagenum"><a name="Page_98" id="Page_98">98</a></span>
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.<a name="FNanchor_141" id="FNanchor_141" href="#Footnote_141" class="fnanchor">[141]</a> 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.<a name="FNanchor_142" id="FNanchor_142" href="#Footnote_142" class="fnanchor">[142]</a> 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.<a name="FNanchor_143" id="FNanchor_143" href="#Footnote_143" class="fnanchor">[143]</a>
<span class="pagenum"><a name="Page_99" id="Page_99">99</a></span></p>

<p>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;
<span class="pagenum"><a name="Page_100" id="Page_100">100</a></span>
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.<a name="FNanchor_144" id="FNanchor_144" href="#Footnote_144" class="fnanchor">[144]</a> 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.<a name="FNanchor_145" id="FNanchor_145" href="#Footnote_145" class="fnanchor">[145]</a> 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.</p>

<p><i>Persecution under Mary.</i>&mdash;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.<a name="FNanchor_146" id="FNanchor_146" href="#Footnote_146" class="fnanchor">[146]</a> 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
<span class="pagenum"><a name="Page_101" id="Page_101">101</a></span>
resolved upon.<a name="FNanchor_147" id="FNanchor_147" href="#Footnote_147" class="fnanchor">[147]</a> 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.<a name="FNanchor_148" id="FNanchor_148" href="#Footnote_148" class="fnanchor">[148]</a> 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.<a name="FNanchor_149" id="FNanchor_149" href="#Footnote_149" class="fnanchor">[149]</a> 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
<span class="pagenum"><a name="Page_102" id="Page_102">102</a></span>
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.<a name="FNanchor_150" id="FNanchor_150" href="#Footnote_150" class="fnanchor">[150]</a> 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.<a name="FNanchor_151" id="FNanchor_151" href="#Footnote_151" class="fnanchor">[151]</a> 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,
<span class="pagenum"><a name="Page_103" id="Page_103">103</a></span>
as much as the policy of our counsellors, were far more directed
against Spain.</p>

<p><i>Its effect rather favourable to protestantism.</i>&mdash;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,<a name="FNanchor_152" id="FNanchor_152" href="#Footnote_152" class="fnanchor">[152]</a> 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.<a name="FNanchor_153" id="FNanchor_153" href="#Footnote_153" class="fnanchor">[153]</a>
<span class="pagenum"><a name="Page_104" id="Page_104">104</a></span>
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.<a name="FNanchor_154" id="FNanchor_154" href="#Footnote_154" class="fnanchor">[154]</a> 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.</p>
<p><span class="pagenum"><a name="Page_105" id="Page_105">105</a></span></p>

<h3 class="p6">CHAPTER III</h3>

<p class="center">ON THE LAWS OF ELIZABETH'S REIGN RESPECTING THE
ROMAN CATHOLICS</p>

<p><i>Change of religion on the queen's accession.</i>&mdash;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.<a name="FNanchor_155" id="FNanchor_155" href="#Footnote_155" class="fnanchor">[155]</a> Nor was she long in manifesting this disposition sufficiently
<span class="pagenum"><a name="Page_106" id="Page_106">106</a></span>
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.<a name="FNanchor_156" id="FNanchor_156" href="#Footnote_156" class="fnanchor">[156]</a> 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
<span class="pagenum"><a name="Page_107" id="Page_107">107</a></span>
incomparably superior in talents to the other counsellors, that
it was evident which way she must incline.<a name="FNanchor_157" id="FNanchor_157" href="#Footnote_157" class="fnanchor">[157]</a> 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.<a name="FNanchor_158" id="FNanchor_158" href="#Footnote_158" class="fnanchor">[158]</a> 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.</p>

<p>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
<span class="pagenum"><a name="Page_108" id="Page_108">108</a></span>
formularies. It appears from their reports that only about one
hundred dignitaries, and eighty parochial priests, resigned their
benefices, or were deprived.<a name="FNanchor_159" id="FNanchor_159" href="#Footnote_159" class="fnanchor">[159]</a> 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.</p>

<p><i>Acts of supremacy and uniformity.</i>&mdash;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.<a name="FNanchor_160" id="FNanchor_160" href="#Footnote_160" class="fnanchor">[160]</a> The latter statute trenched
<span class="pagenum"><a name="Page_109" id="Page_109">109</a></span>
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.<a name="FNanchor_161" id="FNanchor_161" href="#Footnote_161" class="fnanchor">[161]</a></p>

<p><i>Restraint of Roman catholic worship in the first years of Elizabeth.</i>&mdash;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
<span class="pagenum"><a name="Page_110" id="Page_110">110</a></span>
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.<a name="FNanchor_162" id="FNanchor_162" href="#Footnote_162" class="fnanchor">[162]</a> 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."<a name="FNanchor_163" id="FNanchor_163" href="#Footnote_163" class="fnanchor">[163]</a>
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.</p>

<p>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
<span class="pagenum"><a name="Page_111" id="Page_111">111</a></span>
few concessions which the more indulgent Romanists of that
age were not very reluctant to make.<a name="FNanchor_164" id="FNanchor_164" href="#Footnote_164" class="fnanchor">[164]</a> 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.<a name="FNanchor_165" id="FNanchor_165" href="#Footnote_165" class="fnanchor">[165]</a> 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.<a name="FNanchor_166" id="FNanchor_166" href="#Footnote_166" class="fnanchor">[166]</a> 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.<a name="FNanchor_167" id="FNanchor_167" href="#Footnote_167" class="fnanchor">[167]</a>
<span class="pagenum"><a name="Page_112" id="Page_112">112</a></span></p>

<p><i>Statute of 1562.</i>&mdash;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 præmunire; 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.<a name="FNanchor_168" id="FNanchor_168" href="#Footnote_168" class="fnanchor">[168]</a></p>

<p><i>Speech of Lord Montague against it.</i>&mdash;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
<span class="pagenum"><a name="Page_113" id="Page_113">113</a></span>
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&mdash;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."<a name="FNanchor_169" id="FNanchor_169" href="#Footnote_169" class="fnanchor">[169]</a></p>

<p><i>Statute of 1562 not fully enforced.</i>&mdash;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.<a name="FNanchor_170" id="FNanchor_170" href="#Footnote_170" class="fnanchor">[170]</a> 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.<a name="FNanchor_171" id="FNanchor_171" href="#Footnote_171" class="fnanchor">[171]</a> Bonner,
the most justly obnoxious of them all, was confined in the
<span class="pagenum"><a name="Page_114" id="Page_114">114</a></span>
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.<a name="FNanchor_172" id="FNanchor_172" href="#Footnote_172" class="fnanchor">[172]</a>
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.<a name="FNanchor_173" id="FNanchor_173" href="#Footnote_173" class="fnanchor">[173]</a></p>

<p><i>Application of the emperor in behalf of the English catholics.</i>&mdash;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.<a name="FNanchor_174" id="FNanchor_174" href="#Footnote_174" class="fnanchor">[174]</a> 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,
<span class="pagenum"><a name="Page_115" id="Page_115">115</a></span>
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.<a name="FNanchor_175" id="FNanchor_175" href="#Footnote_175" class="fnanchor">[175]</a> 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.</p>

<p>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.<a name="FNanchor_176" id="FNanchor_176" href="#Footnote_176" class="fnanchor">[176]</a>
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
<span class="pagenum"><a name="Page_116" id="Page_116">116</a></span>
to the Fleet.<a name="FNanchor_177" id="FNanchor_177" href="#Footnote_177" class="fnanchor">[177]</a> 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.<a name="FNanchor_178" id="FNanchor_178" href="#Footnote_178" class="fnanchor">[178]</a> 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
<span class="pagenum"><a name="Page_117" id="Page_117">117</a></span>
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.<a name="FNanchor_179" id="FNanchor_179" href="#Footnote_179" class="fnanchor">[179]</a> 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.<a name="FNanchor_180" id="FNanchor_180" href="#Footnote_180" class="fnanchor">[180]</a></p>

<p><i>Persecution of the catholics in the ensuing period.</i>&mdash;It is my
thorough conviction that the persecution, for it can obtain no
better name,<a name="FNanchor_181" id="FNanchor_181" href="#Footnote_181" class="fnanchor">[181]</a> carried on against the English catholics, however
<span class="pagenum"><a name="Page_118" id="Page_118">118</a></span>
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&mdash;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
<span class="pagenum"><a name="Page_119" id="Page_119">119</a></span>
Margaret, was the indisputable representative of her royal
progenitors, and the next in succession to Elizabeth.</p>

<p><i>Elizabeth's unwillingness to decide the succession, or to marry.</i>&mdash;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.<a name="FNanchor_182" id="FNanchor_182" href="#Footnote_182" class="fnanchor">[182]</a>
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.<a name="FNanchor_183" id="FNanchor_183" href="#Footnote_183" class="fnanchor">[183]</a>
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.<a name="FNanchor_184" id="FNanchor_184" href="#Footnote_184" class="fnanchor">[184]</a> 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.<a name="FNanchor_185" id="FNanchor_185" href="#Footnote_185" class="fnanchor">[185]</a>
<span class="pagenum"><a name="Page_120" id="Page_120">120</a></span>
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.<a name="FNanchor_186" id="FNanchor_186" href="#Footnote_186" class="fnanchor">[186]</a>
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.<a name="FNanchor_187" id="FNanchor_187" href="#Footnote_187" class="fnanchor">[187]</a></p>

<p>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
<span class="pagenum"><a name="Page_121" id="Page_121">121</a></span>
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.<a name="FNanchor_188" id="FNanchor_188" href="#Footnote_188" class="fnanchor">[188]</a> 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.</p>

<p>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.<a name="FNanchor_189" id="FNanchor_189" href="#Footnote_189" class="fnanchor">[189]</a>
<span class="pagenum"><a name="Page_122" id="Page_122">122</a></span>
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.</p>

<p><i>Imprisonment of Lady Catherine Grey.</i>&mdash;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
<span class="pagenum"><a name="Page_123" id="Page_123">123</a></span>
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;<a name="FNanchor_190" id="FNanchor_190" href="#Footnote_190" class="fnanchor">[190]</a> 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.<a name="FNanchor_191" id="FNanchor_191" href="#Footnote_191" class="fnanchor">[191]</a> 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.<a name="FNanchor_192" id="FNanchor_192" href="#Footnote_192" class="fnanchor">[192]</a> 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;<a name="FNanchor_193" id="FNanchor_193" href="#Footnote_193" class="fnanchor">[193]</a> and it is
<span class="pagenum"><a name="Page_124" id="Page_124">124</a></span>
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;<a name="FNanchor_194" id="FNanchor_194" href="#Footnote_194" class="fnanchor">[194]</a>
and a speech is extant, said to have been made as late as 1571,
expressly vindicating the rival pretension.<a name="FNanchor_195" id="FNanchor_195" href="#Footnote_195" class="fnanchor">[195]</a> 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.</p>

<p><i>Mary, Queen of Scotland.</i>&mdash;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
<span class="pagenum"><a name="Page_125" id="Page_125">125</a></span>
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.<a name="FNanchor_196" id="FNanchor_196" href="#Footnote_196" class="fnanchor">[196]</a> 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
<span class="pagenum"><a name="Page_126" id="Page_126">126</a></span>
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.<a name="FNanchor_197" id="FNanchor_197" href="#Footnote_197" class="fnanchor">[197]</a></p>

<p>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.</p>

<p>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
<span class="pagenum"><a name="Page_127" id="Page_127">127</a></span>
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.<a name="FNanchor_198" id="FNanchor_198" href="#Footnote_198" class="fnanchor">[198]</a>
Whether this policy had no other fault than its want of justice,
may reasonably be called in question.</p>

<p><i>Combination in favour of Mary.</i>&mdash;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,<a name="FNanchor_199" id="FNanchor_199" href="#Footnote_199" class="fnanchor">[199]</a> 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."<a name="FNanchor_200" id="FNanchor_200" href="#Footnote_200" class="fnanchor">[200]</a> 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
<span class="pagenum"><a name="Page_128" id="Page_128">128</a></span>
others adverse to Cecil, by whose counsels the queen had been
principally directed in all her conduct with regard to Scotland
and its sovereign.<a name="FNanchor_201" id="FNanchor_201" href="#Footnote_201" class="fnanchor">[201]</a> 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.</p>

<p>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.<a name="FNanchor_202" id="FNanchor_202" href="#Footnote_202" class="fnanchor">[202]</a> There is abundant proof of his
intrigues with the Duke of Alva, who had engaged to invade
<span class="pagenum"><a name="Page_129" id="Page_129">129</a></span>
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.<a name="FNanchor_203" id="FNanchor_203" href="#Footnote_203" class="fnanchor">[203]</a></p>

<p><i>Bull of Pius V.</i>&mdash;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.<a name="FNanchor_204" id="FNanchor_204" href="#Footnote_204" class="fnanchor">[204]</a> 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.<a name="FNanchor_205" id="FNanchor_205" href="#Footnote_205" class="fnanchor">[205]</a>
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
<span class="pagenum"><a name="Page_130" id="Page_130">130</a></span>
his predecessors, and absolve her subjects from their allegiance,
as the just and necessary punishment of her heresy.</p>

<p>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.<a name="FNanchor_206" id="FNanchor_206" href="#Footnote_206" class="fnanchor">[206]</a> Even in Norfolk, an eminently protestant county,
there was a slight insurrection in 1570, out of attachment to
the duke.<a name="FNanchor_207" id="FNanchor_207" href="#Footnote_207" class="fnanchor">[207]</a> 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.<a name="FNanchor_208" id="FNanchor_208" href="#Footnote_208" class="fnanchor">[208]</a> 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
<span class="pagenum"><a name="Page_131" id="Page_131">131</a></span>
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.<a name="FNanchor_209" id="FNanchor_209" href="#Footnote_209" class="fnanchor">[209]</a> 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.<a name="FNanchor_210" id="FNanchor_210" href="#Footnote_210" class="fnanchor">[210]</a></p>

<p><i>Statutes for the queen's security.</i>&mdash;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&mdash;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
<span class="pagenum"><a name="Page_132" id="Page_132">132</a></span>
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.<a name="FNanchor_211" id="FNanchor_211" href="#Footnote_211" class="fnanchor">[211]</a> 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
<span class="pagenum"><a name="Page_133" id="Page_133">133</a></span>
half his goods; and for the second to incur the penalties of a
premunire.<a name="FNanchor_212" id="FNanchor_212" href="#Footnote_212" class="fnanchor">[212]</a></p>

<p>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."<a name="FNanchor_213" id="FNanchor_213" href="#Footnote_213" class="fnanchor">[213]</a> 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.<a name="FNanchor_214" id="FNanchor_214" href="#Footnote_214" class="fnanchor">[214]</a> 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
<span class="pagenum"><a name="Page_134" id="Page_134">134</a></span>
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&mdash;"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."<a name="FNanchor_215" id="FNanchor_215" href="#Footnote_215" class="fnanchor">[215]</a> 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."<a name="FNanchor_216" id="FNanchor_216" href="#Footnote_216" class="fnanchor">[216]</a></p>

<p><i>Catholics more rigorously treated.</i>&mdash;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.<a name="FNanchor_217" id="FNanchor_217" href="#Footnote_217" class="fnanchor">[217]</a>
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
<span class="pagenum"><a name="Page_135" id="Page_135">135</a></span>
to hear sermons, though he would not at first oblige them
to communicate.<a name="FNanchor_218" id="FNanchor_218" href="#Footnote_218" class="fnanchor">[218]</a> 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.<a name="FNanchor_219" id="FNanchor_219" href="#Footnote_219" class="fnanchor">[219]</a> 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.<a name="FNanchor_220" id="FNanchor_220" href="#Footnote_220" class="fnanchor">[220]</a></p>

<p>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.<a name="FNanchor_221" id="FNanchor_221" href="#Footnote_221" class="fnanchor">[221]</a> 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.<a name="FNanchor_222" id="FNanchor_222" href="#Footnote_222" class="fnanchor">[222]</a> One Sir Richard Shelley, who
had long acted as a sort of spy for Cecil on the continent, and
<span class="pagenum"><a name="Page_136" id="Page_136">136</a></span>
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.<a name="FNanchor_223" id="FNanchor_223" href="#Footnote_223" class="fnanchor">[223]</a> 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 Alençon, 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."<a name="FNanchor_224" id="FNanchor_224" href="#Footnote_224" class="fnanchor">[224]</a> 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.<a name="FNanchor_225" id="FNanchor_225" href="#Footnote_225" class="fnanchor">[225]</a>
<span class="pagenum"><a name="Page_137" id="Page_137">137</a></span></p>

<p>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.<a name="FNanchor_226" id="FNanchor_226" href="#Footnote_226" class="fnanchor">[226]</a> 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 æra of the bull of Pius V.,
<span class="pagenum"><a name="Page_138" id="Page_138">138</a></span>
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.<a name="FNanchor_227" id="FNanchor_227" href="#Footnote_227" class="fnanchor">[227]</a></p>

<p><i>Fresh laws against the catholic worship.</i>&mdash;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
<span class="pagenum"><a name="Page_139" id="Page_139">139</a></span>
any of her majesty's subjects, or to be reconciled to the church
of Rome, imposes a penalty of £20 a month on all persons absenting
themselves from church, unless they shall hear the English
service at home: such as could not pay the same within three
months after judgment were to be imprisoned until they should
conform. The queen, by a subsequent act, had the power of
seizing two-thirds of the party's land, and all his goods, for
default of payment.<a name="FNanchor_228" id="FNanchor_228" href="#Footnote_228" class="fnanchor">[228]</a> 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.<a name="FNanchor_229" id="FNanchor_229" href="#Footnote_229" class="fnanchor">[229]</a></p>

<p><i>Execution of Campian and others.</i>&mdash;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.<a name="FNanchor_230" id="FNanchor_230" href="#Footnote_230" class="fnanchor">[230]</a> 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.<a name="FNanchor_231" id="FNanchor_231" href="#Footnote_231" class="fnanchor">[231]</a> 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
<span class="pagenum"><a name="Page_140" id="Page_140">140</a></span>
Campian, formerly a protestant, but long known as the boast
of Douay for his learning and virtues.<a name="FNanchor_232" id="FNanchor_232" href="#Footnote_232" class="fnanchor">[232]</a> 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.<a name="FNanchor_233" id="FNanchor_233" href="#Footnote_233" class="fnanchor">[233]</a>
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.<a name="FNanchor_234" id="FNanchor_234" href="#Footnote_234" class="fnanchor">[234]</a> 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 <i>de facto</i> and
<i>de jure</i>. 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.<a name="FNanchor_235" id="FNanchor_235" href="#Footnote_235" class="fnanchor">[235]</a> It is more honourable to Campian's
memory that we should reject these pretended declarations,
<span class="pagenum"><a name="Page_141" id="Page_141">141</a></span>
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.<a name="FNanchor_236" id="FNanchor_236" href="#Footnote_236" class="fnanchor">[236]</a> 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
<span class="pagenum"><a name="Page_142" id="Page_142">142</a></span>
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.</p>

<p>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.<a name="FNanchor_237" id="FNanchor_237" href="#Footnote_237" class="fnanchor">[237]</a> 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.</p>

<p>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.<a name="FNanchor_238" id="FNanchor_238" href="#Footnote_238" class="fnanchor">[238]</a> These exaggerations, coming
<span class="pagenum"><a name="Page_143" id="Page_143">143</a></span>
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.</p>

<p><i>Defence of the queen, by Burleigh.</i>&mdash;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
<span class="pagenum"><a name="Page_144" id="Page_144">144</a></span>
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.<a name="FNanchor_239" id="FNanchor_239" href="#Footnote_239" class="fnanchor">[239]</a></p>

<p>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.<a name="FNanchor_240" id="FNanchor_240" href="#Footnote_240" class="fnanchor">[240]</a> But it is due
to Elizabeth to observe, that she ordered the torture to be
disused; and upon a subsequent occasion, the quartering of
<span class="pagenum"><a name="Page_145" id="Page_145">145</a></span>
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.<a name="FNanchor_241" id="FNanchor_241" href="#Footnote_241" class="fnanchor">[241]</a></p>

<p>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.</p>

<p>"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."</p>

<p>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:
<span class="pagenum"><a name="Page_146" id="Page_146">146</a></span>
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."&mdash;"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."<a name="FNanchor_242" id="FNanchor_242" href="#Footnote_242" class="fnanchor">[242]</a></p>

<p><i>Increased severity of the government.</i>&mdash;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
<span class="pagenum"><a name="Page_147" id="Page_147">147</a></span>
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.<a name="FNanchor_243" id="FNanchor_243" href="#Footnote_243" class="fnanchor">[243]</a> 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.<a name="FNanchor_244" id="FNanchor_244" href="#Footnote_244" class="fnanchor">[244]</a> 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
<span class="pagenum"><a name="Page_148" id="Page_148">148</a></span>
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;<a name="FNanchor_245" id="FNanchor_245" href="#Footnote_245" class="fnanchor">[245]</a> 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.<a name="FNanchor_246" id="FNanchor_246" href="#Footnote_246" class="fnanchor">[246]</a></p>

<p><i>Plot in favour of Mary.</i>&mdash;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.<a name="FNanchor_247" id="FNanchor_247" href="#Footnote_247" class="fnanchor">[247]</a>
<span class="pagenum"><a name="Page_149" id="Page_149">149</a></span>
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.</p>

<p>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
<span class="pagenum"><a name="Page_150" id="Page_150">150</a></span>
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 <i>prosecute such person or persons to death</i>,
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."<a name="FNanchor_248" id="FNanchor_248" href="#Footnote_248" class="fnanchor">[248]</a></p>

<p><i>Execution of Mary Queen of Scots.</i>&mdash;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
<span class="pagenum"><a name="Page_151" id="Page_151">151</a></span>
relating thereto; after which judgment all persons
against whom it should be published should be disabled for
ever to make any such claim.<a name="FNanchor_249" id="FNanchor_249" href="#Footnote_249" class="fnanchor">[249]</a> 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.</p>

<p>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
<span class="pagenum"><a name="Page_152" id="Page_152">152</a></span>
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),<a name="FNanchor_250" id="FNanchor_250" href="#Footnote_250" class="fnanchor">[250]</a> and from the deep guilt that the falsehood of the
charge must inevitably attach to Sir Francis Walsingham.<a name="FNanchor_251" id="FNanchor_251" href="#Footnote_251" class="fnanchor">[251]</a>
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.</p>

<p>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
<span class="pagenum"><a name="Page_153" id="Page_153">153</a></span>
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.<a name="FNanchor_252" id="FNanchor_252" href="#Footnote_252" class="fnanchor">[252]</a> 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.</p>

<p>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.
<span class="pagenum"><a name="Page_154" id="Page_154">154</a></span>
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.<a name="FNanchor_253" id="FNanchor_253" href="#Footnote_253" class="fnanchor">[253]</a></p>

<p>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.
<span class="pagenum"><a name="Page_155" id="Page_155">155</a></span></p>

<p><i>Continued persecution of Roman catholics</i>.&mdash;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&mdash;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.<a name="FNanchor_254" id="FNanchor_254" href="#Footnote_254" class="fnanchor">[254]</a> It would have been a sign of gratitude if the laws
depriving them of the free exercise of their religion had been,
if not repealed, yet suffered to sleep, after these proofs of loyalty.
But the execution of priests and of other catholics became on
the contrary more frequent, and the fines for recusancy exacted
as rigorously as before.<a name="FNanchor_255" id="FNanchor_255" href="#Footnote_255" class="fnanchor">[255]</a> 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
<span class="pagenum"><a name="Page_156" id="Page_156">156</a></span>
vexatious provisions.<a name="FNanchor_256" id="FNanchor_256" href="#Footnote_256" class="fnanchor">[256]</a> All persons were forbidden, by proclamation,
to harbour any of whose conformity they were not
assured.<a name="FNanchor_257" id="FNanchor_257" href="#Footnote_257" class="fnanchor">[257]</a> 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.</p>

<p>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.<a name="FNanchor_258" id="FNanchor_258" href="#Footnote_258" class="fnanchor">[258]</a> 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 <i>Execution of Justice</i>, and Walsingham
<span class="pagenum"><a name="Page_157" id="Page_157">157</a></span>
in a letter published by Burnet,<a name="FNanchor_259" id="FNanchor_259" href="#Footnote_259" class="fnanchor">[259]</a> 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.<a name="FNanchor_260" id="FNanchor_260" href="#Footnote_260" class="fnanchor">[260]</a></p>

<p>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
<span class="pagenum"><a name="Page_158" id="Page_158">158</a></span>
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.<a name="FNanchor_261" id="FNanchor_261" href="#Footnote_261" class="fnanchor">[261]</a> 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.<a name="FNanchor_262" id="FNanchor_262" href="#Footnote_262" class="fnanchor">[262]</a> Thirteen
priests came forward on this, with a declaration of allegiance
<span class="pagenum"><a name="Page_159" id="Page_159">159</a></span>
as full as could be devised. Some of the more violent papists
blamed them for this; and the Louvain divines concurred in
the censure.<a name="FNanchor_263" id="FNanchor_263" href="#Footnote_263" class="fnanchor">[263]</a> 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.</p>

<p>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.<a name="FNanchor_264" id="FNanchor_264" href="#Footnote_264" class="fnanchor">[264]</a> 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
<span class="pagenum"><a name="Page_160" id="Page_160">160</a></span>
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.<a name="FNanchor_265" id="FNanchor_265" href="#Footnote_265" class="fnanchor">[265]</a></p>

<p>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.</p>

<p>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
<span class="pagenum"><a name="Page_161" id="Page_161">161</a></span>
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.</p>
<p><span class="pagenum"><a name="Page_162" id="Page_162">162</a></span></p>

<h3 class="p6">CHAPTER IV</h3>

<p class="center">ON THE LAWS OF ELIZABETH'S REIGN RESPECTING PROTESTANT
NONCONFORMISTS</p>

<p>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.</p>

<p><i>Origin of the differences among the English protestants.</i>&mdash;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.<a name="FNanchor_266" id="FNanchor_266" href="#Footnote_266" class="fnanchor">[266]</a> 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
<span class="pagenum"><a name="Page_163" id="Page_163">163</a></span>
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.<a name="FNanchor_267" id="FNanchor_267" href="#Footnote_267" class="fnanchor">[267]</a> 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.<a name="FNanchor_268" id="FNanchor_268" href="#Footnote_268" class="fnanchor">[268]</a></p>

<p><i>Religious inclinations of the queen.</i>&mdash;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
<span class="pagenum"><a name="Page_164" id="Page_164">164</a></span>
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.<a name="FNanchor_269" id="FNanchor_269" href="#Footnote_269" class="fnanchor">[269]</a> 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.<a name="FNanchor_270" id="FNanchor_270" href="#Footnote_270" class="fnanchor">[270]</a> 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.<a name="FNanchor_271" id="FNanchor_271" href="#Footnote_271" class="fnanchor">[271]</a> 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.<a name="FNanchor_272" id="FNanchor_272" href="#Footnote_272" class="fnanchor">[272]</a> The crucifix was even for a time removed from
her own chapel, but replaced about 1570.<a name="FNanchor_273" id="FNanchor_273" href="#Footnote_273" class="fnanchor">[273]</a>
<span class="pagenum"><a name="Page_165" id="Page_165">165</a></span></p>

<p>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.<a name="FNanchor_274" id="FNanchor_274" href="#Footnote_274" class="fnanchor">[274]</a> Accordingly, the bishops and
clergy, though they married by connivance, or rather by an
ungracious permission,<a name="FNanchor_275" id="FNanchor_275" href="#Footnote_275" class="fnanchor">[275]</a> saw, with very just dissatisfaction,
their children treated by the law as the offspring of concubinage.<a name="FNanchor_276" id="FNanchor_276" href="#Footnote_276" class="fnanchor">[276]</a>
<span class="pagenum"><a name="Page_166" id="Page_166">166</a></span>
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.</p>

<p>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.<a name="FNanchor_277" id="FNanchor_277" href="#Footnote_277" class="fnanchor">[277]</a> 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.<a name="FNanchor_278" id="FNanchor_278" href="#Footnote_278" class="fnanchor">[278]</a>
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
<span class="pagenum"><a name="Page_167" id="Page_167">167</a></span>
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.<a name="FNanchor_279" id="FNanchor_279" href="#Footnote_279" class="fnanchor">[279]</a></p>

<p>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.<a name="FNanchor_280" id="FNanchor_280" href="#Footnote_280" class="fnanchor">[280]</a> Still the Romish party
<span class="pagenum"><a name="Page_168" id="Page_168">168</a></span>
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,&mdash;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.</p>

<p>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,
<span class="pagenum"><a name="Page_169" id="Page_169">169</a></span>
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.</p>

<p><i>Unwillingness to comply with the established ceremonies.</i>&mdash;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.<a name="FNanchor_281" id="FNanchor_281" href="#Footnote_281" class="fnanchor">[281]</a> 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.<a name="FNanchor_282" id="FNanchor_282" href="#Footnote_282" class="fnanchor">[282]</a> 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
<span class="pagenum"><a name="Page_170" id="Page_170">170</a></span>
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.<a name="FNanchor_283" id="FNanchor_283" href="#Footnote_283" class="fnanchor">[283]</a> 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.<a name="FNanchor_284" id="FNanchor_284" href="#Footnote_284" class="fnanchor">[284]</a></p>

<p><i>Conformity enforced by the archbishop against the disposition of
<span class="pagenum"><a name="Page_171" id="Page_171">171</a></span>
others.</i>&mdash;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 <i>Advertisements</i>, 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.<a name="FNanchor_285" id="FNanchor_285" href="#Footnote_285" class="fnanchor">[285]</a> 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.<a name="FNanchor_286" id="FNanchor_286" href="#Footnote_286" class="fnanchor">[286]</a> 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.<a name="FNanchor_287" id="FNanchor_287" href="#Footnote_287" class="fnanchor">[287]</a></p>

<p>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
<span class="pagenum"><a name="Page_172" id="Page_172">172</a></span>
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.<a name="FNanchor_288" id="FNanchor_288" href="#Footnote_288" class="fnanchor">[288]</a> A more unexceptionable,
because more disinterested, judgment was pronounced
by some of the Swiss reformers to whom our own paid great
respect&mdash;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.<a name="FNanchor_289" id="FNanchor_289" href="#Footnote_289" class="fnanchor">[289]</a> 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
<span class="pagenum"><a name="Page_173" id="Page_173">173</a></span>
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.<a name="FNanchor_290" id="FNanchor_290" href="#Footnote_290" class="fnanchor">[290]</a> 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.</p>

<p>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.<a name="FNanchor_291" id="FNanchor_291" href="#Footnote_291" class="fnanchor">[291]</a>
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.<a name="FNanchor_292" id="FNanchor_292" href="#Footnote_292" class="fnanchor">[292]</a> 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.<a name="FNanchor_293" id="FNanchor_293" href="#Footnote_293" class="fnanchor">[293]</a>
<span class="pagenum"><a name="Page_174" id="Page_174">174</a></span>
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.<a name="FNanchor_294" id="FNanchor_294" href="#Footnote_294" class="fnanchor">[294]</a> 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.<a name="FNanchor_295" id="FNanchor_295" href="#Footnote_295" class="fnanchor">[295]</a> 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.<a name="FNanchor_296" id="FNanchor_296" href="#Footnote_296" class="fnanchor">[296]</a> But at Cambridge, which had been equally
<span class="pagenum"><a name="Page_175" id="Page_175">175</a></span>
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.<a name="FNanchor_297" id="FNanchor_297" href="#Footnote_297" class="fnanchor">[297]</a></p>

<p><span class="pagenum"><a name="Page_176" id="Page_176">176</a></span></p>

<p><i>A more determined opposition, about 1570, led by Cartwright.</i>&mdash;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.<a name="FNanchor_298" id="FNanchor_298" href="#Footnote_298" class="fnanchor">[298]</a> In 1572 he published his celebrated <i>Admonition
to the Parliament</i>, 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.</p>

<p>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
<span class="pagenum"><a name="Page_177" id="Page_177">177</a></span>
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
<i>Admonition</i>, "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."<a name="FNanchor_299" id="FNanchor_299" href="#Footnote_299" class="fnanchor">[299]</a> "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."<a name="FNanchor_300" id="FNanchor_300" href="#Footnote_300" class="fnanchor">[300]</a> It is
difficult to believe that I am transcribing the words of a
<span class="pagenum"><a name="Page_178" id="Page_178">178</a></span>
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.<a name="FNanchor_301" id="FNanchor_301" href="#Footnote_301" class="fnanchor">[301]</a></p>

<p>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
<span class="pagenum"><a name="Page_179" id="Page_179">179</a></span>
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.<a name="FNanchor_302" id="FNanchor_302" href="#Footnote_302" class="fnanchor">[302]</a></p>

<p>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.<a name="FNanchor_303" id="FNanchor_303" href="#Footnote_303" class="fnanchor">[303]</a> 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
<span class="pagenum"><a name="Page_180" id="Page_180">180</a></span>
counted along with the dominant religion.<a name="FNanchor_304" id="FNanchor_304" href="#Footnote_304" class="fnanchor">[304]</a> 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.</p>

<p><i>Puritans supported in the Commons.</i>&mdash;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
<span class="pagenum"><a name="Page_181" id="Page_181">181</a></span>
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.<a name="FNanchor_305" id="FNanchor_305" href="#Footnote_305" class="fnanchor">[305]</a> 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."<a name="FNanchor_306" id="FNanchor_306" href="#Footnote_306" class="fnanchor">[306]</a></p>

<p>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
<span class="pagenum"><a name="Page_182" id="Page_182">182</a></span>
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 <i>only</i> concern the confession of the true christian
faith, and the doctrine of the sacraments, comprised in a book
entitled <i>Articles whereupon it was agreed</i>, etc. That the word
<i>only</i> 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."<a name="FNanchor_307" id="FNanchor_307" href="#Footnote_307" class="fnanchor">[307]</a> 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
<span class="pagenum"><a name="Page_183" id="Page_183">183</a></span>
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.<a name="FNanchor_308" id="FNanchor_308" href="#Footnote_308" class="fnanchor">[308]</a></p>

<p>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.<a name="FNanchor_309" id="FNanchor_309" href="#Footnote_309" class="fnanchor">[309]</a> 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.<a name="FNanchor_310" id="FNanchor_310" href="#Footnote_310" class="fnanchor">[310]</a> 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!</p>

<p>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
<span class="pagenum"><a name="Page_184" id="Page_184">184</a></span>
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.<a name="FNanchor_311" id="FNanchor_311" href="#Footnote_311" class="fnanchor">[311]</a></p>

<p>We should reason in as confined a manner as the puritans
themselves, by looking only at the captious frivolousness of
<span class="pagenum"><a name="Page_185" id="Page_185">185</a></span>
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.</p>

<p><i>Prophecyings.</i>&mdash;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
<span class="pagenum"><a name="Page_186" id="Page_186">186</a></span>
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.<a name="FNanchor_312" id="FNanchor_312" href="#Footnote_312" class="fnanchor">[312]</a></p>

<p>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
<span class="pagenum"><a name="Page_187" id="Page_187">187</a></span>
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.<a name="FNanchor_313" id="FNanchor_313" href="#Footnote_313" class="fnanchor">[313]</a></p>

<p><i>Whitgift.</i>&mdash;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 <i>Admonition</i>, written with
much ability, but not falling short of the work it undertook to
confute in rudeness and asperity.<a name="FNanchor_314" id="FNanchor_314" href="#Footnote_314" class="fnanchor">[314]</a> 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
<span class="pagenum"><a name="Page_188" id="Page_188">188</a></span>
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.<a name="FNanchor_315" id="FNanchor_315" href="#Footnote_315" class="fnanchor">[315]</a> 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.<a name="FNanchor_316" id="FNanchor_316" href="#Footnote_316" class="fnanchor">[316]</a> 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.<a name="FNanchor_317" id="FNanchor_317" href="#Footnote_317" class="fnanchor">[317]</a> 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.<a name="FNanchor_318" id="FNanchor_318" href="#Footnote_318" class="fnanchor">[318]</a> 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
<span class="pagenum"><a name="Page_189" id="Page_189">189</a></span>
relented not a jot of his resolution, and went far greater lengths
than Parker had ever ventured, or perhaps had desired, to
proceed.</p>

<p><i>High commission court.</i>&mdash;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.<a name="FNanchor_319" id="FNanchor_319" href="#Footnote_319" class="fnanchor">[319]</a>
<span class="pagenum"><a name="Page_190" id="Page_190">190</a></span></p>

<p>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 <i>ex officio</i>, 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.<a name="FNanchor_320" id="FNanchor_320" href="#Footnote_320" class="fnanchor">[320]</a> 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.</p>

<p><i>Lord Burleigh averse to severity.</i>&mdash;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.<a name="FNanchor_321" id="FNanchor_321" href="#Footnote_321" class="fnanchor">[321]</a> 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.<a name="FNanchor_322" id="FNanchor_322" href="#Footnote_322" class="fnanchor">[322]</a> 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.</p>

<p>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
<span class="pagenum"><a name="Page_191" id="Page_191">191</a></span>
same uncharitable course;<a name="FNanchor_323" id="FNanchor_323" href="#Footnote_323" class="fnanchor">[323]</a> but especially Aylmer of London,
who has left a worse name in this respect than any prelate of
Elizabeth's reign.<a name="FNanchor_324" id="FNanchor_324" href="#Footnote_324" class="fnanchor">[324]</a> 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.<a name="FNanchor_325" id="FNanchor_325" href="#Footnote_325" class="fnanchor">[325]</a> 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.<a name="FNanchor_326" id="FNanchor_326" href="#Footnote_326" class="fnanchor">[326]</a></p>

<p>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
<span class="pagenum"><a name="Page_192" id="Page_192">192</a></span>
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."<a name="FNanchor_327" id="FNanchor_327" href="#Footnote_327" class="fnanchor">[327]</a>
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."<a name="FNanchor_328" id="FNanchor_328" href="#Footnote_328" class="fnanchor">[328]</a> 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.<a name="FNanchor_329" id="FNanchor_329" href="#Footnote_329" class="fnanchor">[329]</a> 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.<a name="FNanchor_330" id="FNanchor_330" href="#Footnote_330" class="fnanchor">[330]</a> 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.</p>

<p>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
<span class="pagenum"><a name="Page_193" id="Page_193">193</a></span>
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.<a name="FNanchor_331" id="FNanchor_331" href="#Footnote_331" class="fnanchor">[331]</a> 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?</p>

<p>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.<a name="FNanchor_332" id="FNanchor_332" href="#Footnote_332" class="fnanchor">[332]</a> 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.<a name="FNanchor_333" id="FNanchor_333" href="#Footnote_333" class="fnanchor">[333]</a> Udal, a puritan minister, fell into the
<span class="pagenum"><a name="Page_194" id="Page_194">194</a></span>
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.<a name="FNanchor_334" id="FNanchor_334" href="#Footnote_334" class="fnanchor">[334]</a></p>

<p><i>Attempt to set up a Presbyterian system.</i>&mdash;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
<span class="pagenum"><a name="Page_195" id="Page_195">195</a></span>
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.<a name="FNanchor_335" id="FNanchor_335" href="#Footnote_335" class="fnanchor">[335]</a> 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 <i>ex officio</i>, 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.<a name="FNanchor_336" id="FNanchor_336" href="#Footnote_336" class="fnanchor">[336]</a> It may be observed that Cartwright
explicitly declared his disapprobation of the libels under the
name of Martin Mar-prelate.<a name="FNanchor_337" id="FNanchor_337" href="#Footnote_337" class="fnanchor">[337]</a> 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.</p>

<p>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
<span class="pagenum"><a name="Page_196" id="Page_196">196</a></span>
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.<a name="FNanchor_338" id="FNanchor_338" href="#Footnote_338" class="fnanchor">[338]</a> 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.<a name="FNanchor_339" id="FNanchor_339" href="#Footnote_339" class="fnanchor">[339]</a> There are even passages in
Cartwright's Admonition, which intimate that the commonwealth
ought to be fashioned after the model of the church.<a name="FNanchor_340" id="FNanchor_340" href="#Footnote_340" class="fnanchor">[340]</a>
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.<a name="FNanchor_341" id="FNanchor_341" href="#Footnote_341" class="fnanchor">[341]</a> 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.<a name="FNanchor_342" id="FNanchor_342" href="#Footnote_342" class="fnanchor">[342]</a></p>

<p>The pretensions advanced by the school of Cartwright did
<span class="pagenum"><a name="Page_197" id="Page_197">197</a></span>
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.</p>

<p><i>House of Commons averse to episcopal authority.</i>&mdash;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."<a name="FNanchor_343" id="FNanchor_343" href="#Footnote_343" class="fnanchor">[343]</a>
<span class="pagenum"><a name="Page_198" id="Page_198">198</a></span>
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.</p>

<p>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 <i>ex officio</i>, 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.<a name="FNanchor_344" id="FNanchor_344" href="#Footnote_344" class="fnanchor">[344]</a> 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;<a name="FNanchor_345" id="FNanchor_345" href="#Footnote_345" class="fnanchor">[345]</a> 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
<span class="pagenum"><a name="Page_199" id="Page_199">199</a></span>
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.<a name="FNanchor_346" id="FNanchor_346" href="#Footnote_346" class="fnanchor">[346]</a> 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.<a name="FNanchor_347" id="FNanchor_347" href="#Footnote_347" class="fnanchor">[347]</a> A similar proposition in the session of
1601 seems to have miscarried in the Commons.<a name="FNanchor_348" id="FNanchor_348" href="#Footnote_348" class="fnanchor">[348]</a> 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.</p>

<p>The oath <i>ex officio</i>, 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.<a name="FNanchor_349" id="FNanchor_349" href="#Footnote_349" class="fnanchor">[349]</a> But the judges, who found as much
<span class="pagenum"><a name="Page_200" id="Page_200">200</a></span>
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.<a name="FNanchor_350" id="FNanchor_350" href="#Footnote_350" class="fnanchor">[350]</a> 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.</p>

<p><i>Independents liable to severe laws.</i>&mdash;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.<a name="FNanchor_351" id="FNanchor_351" href="#Footnote_351" class="fnanchor">[351]</a> 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
<span class="pagenum"><a name="Page_201" id="Page_201">201</a></span>
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.<a name="FNanchor_352" id="FNanchor_352" href="#Footnote_352" class="fnanchor">[352]</a> 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.<a name="FNanchor_353" id="FNanchor_353" href="#Footnote_353" class="fnanchor">[353]</a> 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.<a name="FNanchor_354" id="FNanchor_354" href="#Footnote_354" class="fnanchor">[354]</a></p>

<p><i>Hooker's "Ecclesiastical Polity." Its character.</i>&mdash;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
<span class="pagenum"><a name="Page_202" id="Page_202">202</a></span>
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
<i>Ecclesiastical Polity</i> 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 æra 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 <i>Arcadia</i>, 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 <i>Ecclesiastical Polity</i> 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.</p>

<p>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
<span class="pagenum"><a name="Page_203" id="Page_203">203</a></span>
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.<a name="FNanchor_355" id="FNanchor_355" href="#Footnote_355" class="fnanchor">[355]</a> 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
<span class="pagenum"><a name="Page_204" id="Page_204">204</a></span>
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."</p>

<p>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.</p>

<p>The better parts of the <i>Ecclesiastical Polity</i> 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
<span class="pagenum"><a name="Page_205" id="Page_205">205</a></span>
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.<a name="FNanchor_356" id="FNanchor_356" href="#Footnote_356" class="fnanchor">[356]</a> 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 <i>Ecclesiastical Polity</i>, 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.</p>

<p>Nothing perhaps is more striking to a reader of the <i>Ecclesiastical Polity</i>
<span class="pagenum"><a name="Page_206" id="Page_206">206</a></span>
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."</p>

<p>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
<span class="pagenum"><a name="Page_207" id="Page_207">207</a></span>
sometimes repeated, that the posthumous portion of his work
had been interpolated or altered by the puritans.<a name="FNanchor_357" id="FNanchor_357" href="#Footnote_357" class="fnanchor">[357]</a> 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 <i>Ecclesiastical Polity</i>, 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
<span class="pagenum"><a name="Page_208" id="Page_208">208</a></span>
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."</p>

<p>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'&mdash;the
king's grant of any favour made contrary to the law is void;-'Rex
nihil potest nisi quod jure potest'&mdash;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
<span class="pagenum"><a name="Page_209" id="Page_209">209</a></span>
than the law gives to them, cannot in conscience bind any man
to obedience.</p>

<p>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.</p>

<p><i>Spoliation of church revenues.</i>&mdash;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.<a name="FNanchor_358" id="FNanchor_358" href="#Footnote_358" class="fnanchor">[358]</a> I have mentioned in another
<span class="pagenum"><a name="Page_210" id="Page_210">210</a></span>
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.<a name="FNanchor_359" id="FNanchor_359" href="#Footnote_359" class="fnanchor">[359]</a> 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.<a name="FNanchor_360" id="FNanchor_360" href="#Footnote_360" class="fnanchor">[360]</a> 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.<a name="FNanchor_361" id="FNanchor_361" href="#Footnote_361" class="fnanchor">[361]</a> 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.<a name="FNanchor_362" id="FNanchor_362" href="#Footnote_362" class="fnanchor">[362]</a> These transactions denote
the mercenary and rapacious spirit which leavened almost all
Elizabeth's courtiers.</p>

<p>The bishops of this reign do not appear, with some distinguished
<span class="pagenum"><a name="Page_211" id="Page_211">211</a></span>
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&mdash;sometimes no doubt unjust,
but too frequent to be absolutely without foundation.<a name="FNanchor_363" id="FNanchor_363" href="#Footnote_363" class="fnanchor">[363]</a> 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.<a name="FNanchor_364" id="FNanchor_364" href="#Footnote_364" class="fnanchor">[364]</a> 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.<a name="FNanchor_365" id="FNanchor_365" href="#Footnote_365" class="fnanchor">[365]</a> For there seems to have been no question in that age
but that this might be done by virtue of the Crown's supremacy.</p>

<p>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,
<span class="pagenum"><a name="Page_212" id="Page_212">212</a></span>
at this distance of time, altogether competent to decide upon
the fittest course of policy in that respect.<a name="FNanchor_366" id="FNanchor_366" href="#Footnote_366" class="fnanchor">[366]</a> 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.</p>

<p><i>General remarks.</i>&mdash;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
<span class="pagenum"><a name="Page_213" id="Page_213">213</a></span>
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.<a name="FNanchor_367" id="FNanchor_367" href="#Footnote_367" class="fnanchor">[367]</a></p>

<p><i>Letter of Walsingham in defence of the queen's government.</i>&mdash;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.<a name="FNanchor_368" id="FNanchor_368" href="#Footnote_368" class="fnanchor">[368]</a> It is a very able apology for her government; and
<span class="pagenum"><a name="Page_214" id="Page_214">214</a></span>
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.</p>
<p><span class="pagenum"><a name="Page_215" id="Page_215">215</a></span></p>

<h3 class="p6">CHAPTER V</h3>

<p class="center">ON THE CIVIL GOVERNMENT OF ELIZABETH</p>

<p>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.</p>

<p>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,
<span class="pagenum"><a name="Page_216" id="Page_216">216</a></span>
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.</p>

<p>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.</p>

<p><i>Trials for treason and other political offences unjustly conducted.</i>&mdash;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
<span class="pagenum"><a name="Page_217" id="Page_217">217</a></span>
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.<a name="FNanchor_369" id="FNanchor_369" href="#Footnote_369" class="fnanchor">[369]</a> In
the case of Captain Lee, a partisan of Essex and Southampton,
the court appear to have denied the right of peremptory challenge.<a name="FNanchor_370" id="FNanchor_370" href="#Footnote_370" class="fnanchor">[370]</a>
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.<a name="FNanchor_371" id="FNanchor_371" href="#Footnote_371" class="fnanchor">[371]</a></p>

<p>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.<a name="FNanchor_372" id="FNanchor_372" href="#Footnote_372" class="fnanchor">[372]</a> But she poured
<span class="pagenum"><a name="Page_218" id="Page_218">218</a></span>
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.<a name="FNanchor_373" id="FNanchor_373" href="#Footnote_373" class="fnanchor">[373]</a></p>

<p>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.<a name="FNanchor_374" id="FNanchor_374" href="#Footnote_374" class="fnanchor">[374]</a> 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
<span class="pagenum"><a name="Page_219" id="Page_219">219</a></span>
escape, on humble retractation, with sharp words, instead of
enormous fines and indefinite imprisonment. The control of
this arbitrary tribunal bound down and rendered impotent
all the minor jurisdictions. That primæval institution, those
inquests by twelve true men, the unadulterated voice of the
people responsible alone to God and their conscience, which
should have been heard in the sanctuaries of justice, as fountains
springing fresh from the lap of earth, became, like waters constrained
in their course by art, stagnant and impure. Until
this weight that hung upon the constitution should be taken off,
there was literally no prospect of enjoying with security those
civil privileges which it held forth.<a name="FNanchor_375" id="FNanchor_375" href="#Footnote_375" class="fnanchor">[375]</a></p>

<p><i>Illegal commitments.</i>&mdash;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.<a name="FNanchor_376" id="FNanchor_376" href="#Footnote_376" class="fnanchor">[376]</a> This is contained in a passage from Chief Justice
Anderson's <i>Reports</i>. 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.<a name="FNanchor_377" id="FNanchor_377" href="#Footnote_377" class="fnanchor">[377]</a>
<span class="pagenum"><a name="Page_220" id="Page_220">220</a></span></p>

<p><i>Remonstrance of judges against them.</i>&mdash;"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,&mdash;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.</p>

<p>"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.</p>

<p>"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.</p>

<p>"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.</p>

<p>"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.</p>

<p>"And whereas it pleased your lordships to will divers of us
<span class="pagenum"><a name="Page_221" id="Page_221">221</a></span>
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:</p>

<p>"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.</p>

<p>"But if any person shall be committed for any other cause,
then the same ought specially to be returned."</p>

<p>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.</p>

<p><i>Proclamations unwarranted by law.</i>&mdash;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
<span class="pagenum"><a name="Page_222" id="Page_222">222</a></span>
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,<a name="FNanchor_378" id="FNanchor_378" href="#Footnote_378" class="fnanchor">[378]</a> 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.<a name="FNanchor_379" id="FNanchor_379" href="#Footnote_379" class="fnanchor">[379]</a> This
is repeated at other times, and lastly (I mean during her reign)
in 1602, with additional restrictions.<a name="FNanchor_380" id="FNanchor_380" href="#Footnote_380" class="fnanchor">[380]</a> 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.<a name="FNanchor_381" id="FNanchor_381" href="#Footnote_381" class="fnanchor">[381]</a> 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.<a name="FNanchor_382" id="FNanchor_382" href="#Footnote_382" class="fnanchor">[382]</a> And it has been
argued by some not at all inclined to diminish any popular
<span class="pagenum"><a name="Page_223" id="Page_223">223</a></span>
rights, that the king did possess a prerogative by common law
of restraining the export of corn and other commodities.<a name="FNanchor_383" id="FNanchor_383" href="#Footnote_383" class="fnanchor">[383]</a></p>

<p><i>Restrictions on printing.</i>&mdash;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,<a name="FNanchor_384" id="FNanchor_384" href="#Footnote_384" class="fnanchor">[384]</a>
the council frequently issued proclamations to restrain the importation
of books, or to regulate their sale.<a name="FNanchor_385" id="FNanchor_385" href="#Footnote_385" class="fnanchor">[385]</a> 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.<a name="FNanchor_386" id="FNanchor_386" href="#Footnote_386" class="fnanchor">[386]</a> 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.<a name="FNanchor_387" id="FNanchor_387" href="#Footnote_387" class="fnanchor">[387]</a> 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.
<span class="pagenum"><a name="Page_224" id="Page_224">224</a></span>
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.<a name="FNanchor_388" id="FNanchor_388" href="#Footnote_388" class="fnanchor">[388]</a></p>

<p>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
<span class="pagenum"><a name="Page_225" id="Page_225">225</a></span>
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.<a name="FNanchor_389" id="FNanchor_389" href="#Footnote_389" class="fnanchor">[389]</a> 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,
<span class="pagenum"><a name="Page_226" id="Page_226">226</a></span>
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.<a name="FNanchor_390" id="FNanchor_390" href="#Footnote_390" class="fnanchor">[390]</a>
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.</p>

<p><i>Martial law.</i>&mdash;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
<span class="pagenum"><a name="Page_227" id="Page_227">227</a></span>
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."<a name="FNanchor_391" id="FNanchor_391" href="#Footnote_391" class="fnanchor">[391]</a></p>

<p>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.<a name="FNanchor_392" id="FNanchor_392" href="#Footnote_392" class="fnanchor">[392]</a> 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.<a name="FNanchor_393" id="FNanchor_393" href="#Footnote_393" class="fnanchor">[393]</a></p>

<p>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
<span class="pagenum"><a name="Page_228" id="Page_228">228</a></span>
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.<a name="FNanchor_394" id="FNanchor_394" href="#Footnote_394" class="fnanchor">[394]</a> 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.</p>

<p><i>Loans of money not quite voluntary.</i>&mdash;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
<span class="pagenum"><a name="Page_229" id="Page_229">229</a></span>
for refusing to pay the money demanded of them.<a name="FNanchor_395" id="FNanchor_395" href="#Footnote_395" class="fnanchor">[395]</a> 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.<a name="FNanchor_396" id="FNanchor_396" href="#Footnote_396" class="fnanchor">[396]</a> 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.</p>

<p>A letter quoted by Hume from Lord Burleigh's papers,
though not written by him, as the historian asserts, and somewhat
<span class="pagenum"><a name="Page_230" id="Page_230">230</a></span>
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.<a name="FNanchor_397" id="FNanchor_397" href="#Footnote_397" class="fnanchor">[397]</a></p>

<p><i>Character of Lord Burleigh's administration.</i>&mdash;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.<a name="FNanchor_398" id="FNanchor_398" href="#Footnote_398" class="fnanchor">[398]</a> 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
<span class="pagenum"><a name="Page_231" id="Page_231">231</a></span>
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.<a name="FNanchor_399" id="FNanchor_399" href="#Footnote_399" class="fnanchor">[399]</a>
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.</p>

<p><i>Disposition of the House of Commons.</i>&mdash;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
<span class="pagenum"><a name="Page_232" id="Page_232">232</a></span>
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.</p>

<p>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
<span class="pagenum"><a name="Page_233" id="Page_233">233</a></span>
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.<a name="FNanchor_400" id="FNanchor_400" href="#Footnote_400" class="fnanchor">[400]</a></p>

<p><i>Addresses concerning the succession.</i>&mdash;There was no peril more
alarming to this kingdom during the queen's reign than the
precariousness of her life&mdash;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;"<a name="FNanchor_401" id="FNanchor_401" href="#Footnote_401" class="fnanchor">[401]</a> offering at
the same time to concur in provisions to guarantee her personal
<span class="pagenum"><a name="Page_234" id="Page_234">234</a></span>
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.<a name="FNanchor_402" id="FNanchor_402" href="#Footnote_402" class="fnanchor">[402]</a> 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.<a name="FNanchor_403" id="FNanchor_403" href="#Footnote_403" class="fnanchor">[403]</a> 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.<a name="FNanchor_404" id="FNanchor_404" href="#Footnote_404" class="fnanchor">[404]</a> 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
<span class="pagenum"><a name="Page_235" id="Page_235">235</a></span>
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.<a name="FNanchor_405" id="FNanchor_405" href="#Footnote_405" class="fnanchor">[405]</a> 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.<a name="FNanchor_406" id="FNanchor_406" href="#Footnote_406" class="fnanchor">[406]</a></p>

<p>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<span class="pagenum"><a name="Page_236" id="Page_236">236</a></span>
accept it when that implied condition had not been fulfilled, she
was able to pass five years without again convoking her people.</p>

<p><i>Session of 1571.</i>&mdash;A parliament met in April 1571, when the
lord keeper Bacon,<a name="FNanchor_407" id="FNanchor_407" href="#Footnote_407" class="fnanchor">[407]</a> 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."</p>

<p><i>Influence of the puritans in parliament.</i>&mdash;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
<span class="pagenum"><a name="Page_237" id="Page_237">237</a></span>
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.<a name="FNanchor_408" id="FNanchor_408" href="#Footnote_408" class="fnanchor">[408]</a></p>

<p>This session is also remarkable for the first marked complaints
against some notorious abuses, which defaced the civil government
of Elizabeth.<a name="FNanchor_409" id="FNanchor_409" href="#Footnote_409" class="fnanchor">[409]</a> 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.<a name="FNanchor_410" id="FNanchor_410" href="#Footnote_410" class="fnanchor">[410]</a> 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.<a name="FNanchor_411" id="FNanchor_411" href="#Footnote_411" class="fnanchor">[411]</a> 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.<a name="FNanchor_412" id="FNanchor_412" href="#Footnote_412" class="fnanchor">[412]</a> It
<span class="pagenum"><a name="Page_238" id="Page_238">238</a></span>
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.<a name="FNanchor_413" id="FNanchor_413" href="#Footnote_413" class="fnanchor">[413]</a></p>

<p>The parliament of 1572 seemed to give evidence of their
inheriting the spirit of the last by choosing Mr. Bell for their
speaker.<a name="FNanchor_414" id="FNanchor_414" href="#Footnote_414" class="fnanchor">[414]</a> 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.<a name="FNanchor_415" id="FNanchor_415" href="#Footnote_415" class="fnanchor">[415]</a> 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.<a name="FNanchor_416" id="FNanchor_416" href="#Footnote_416" class="fnanchor">[416]</a></p>

<p><i>Speech of Mr. Wentworth in 1576.</i>&mdash;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
<span class="pagenum"><a name="Page_239" id="Page_239">239</a></span>
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.<a name="FNanchor_417" id="FNanchor_417" href="#Footnote_417" class="fnanchor">[417]</a></p>

<p>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
<span class="pagenum"><a name="Page_240" id="Page_240">240</a></span>
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.<a name="FNanchor_418" id="FNanchor_418" href="#Footnote_418" class="fnanchor">[418]</a> 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.<a name="FNanchor_419" id="FNanchor_419" href="#Footnote_419" class="fnanchor">[419]</a> 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
<span class="pagenum"><a name="Page_241" id="Page_241">241</a></span>
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.<a name="FNanchor_420" id="FNanchor_420" href="#Footnote_420" class="fnanchor">[420]</a> 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.</p>

<p><i>The Commons continue to seek redress of ecclesiastical grievances.</i>&mdash;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,<a name="FNanchor_421" id="FNanchor_421" href="#Footnote_421" class="fnanchor">[421]</a>
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
<span class="pagenum"><a name="Page_242" id="Page_242">242</a></span>
him to this great personage, apparently one of the ministers,
and admonishing their members not to repeat elsewhere anything
uttered in their debates.<a name="FNanchor_422" id="FNanchor_422" href="#Footnote_422" class="fnanchor">[422]</a> 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.<a name="FNanchor_423" id="FNanchor_423" href="#Footnote_423" class="fnanchor">[423]</a></p>

<p>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.<a name="FNanchor_424" id="FNanchor_424" href="#Footnote_424" class="fnanchor">[424]</a> A few
<span class="pagenum"><a name="Page_243" id="Page_243">243</a></span>
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.<a name="FNanchor_425" id="FNanchor_425" href="#Footnote_425" class="fnanchor">[425]</a> 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.<a name="FNanchor_426" id="FNanchor_426" href="#Footnote_426" class="fnanchor">[426]</a> 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."<a name="FNanchor_427" id="FNanchor_427" href="#Footnote_427" class="fnanchor">[427]</a> 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.<a name="FNanchor_428" id="FNanchor_428" href="#Footnote_428" class="fnanchor">[428]</a> 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."<a name="FNanchor_429" id="FNanchor_429" href="#Footnote_429" class="fnanchor">[429]</a> 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.<a name="FNanchor_430" id="FNanchor_430" href="#Footnote_430" class="fnanchor">[430]</a></p>

<p><i>Monopolies, especially in the session of 1601.</i>&mdash;The admonitions
not to abuse freedom of speech, which had become almost
as much matter of course as the request for it, were repeated
<span class="pagenum"><a name="Page_244" id="Page_244">244</a></span>
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."<a name="FNanchor_431" id="FNanchor_431" href="#Footnote_431" class="fnanchor">[431]</a> 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
<span class="pagenum"><a name="Page_245" id="Page_245">245</a></span>
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.<a name="FNanchor_432" id="FNanchor_432" href="#Footnote_432" class="fnanchor">[432]</a> 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.<a name="FNanchor_433" id="FNanchor_433" href="#Footnote_433" class="fnanchor">[433]</a>
<span class="pagenum"><a name="Page_246" id="Page_246">246</a></span></p>

<p>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.</p>

<p><i>Influence of the Crown in Parliament.</i>&mdash;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
<span class="pagenum"><a name="Page_247" id="Page_247">247</a></span>
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;<a name="FNanchor_434" id="FNanchor_434" href="#Footnote_434" class="fnanchor">[434]</a> 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.<a name="FNanchor_435" id="FNanchor_435" href="#Footnote_435" class="fnanchor">[435]</a>
<span class="pagenum"><a name="Page_248" id="Page_248">248</a></span>
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.</p>

<p><i>Debate on election of non-resident burgesses.</i>&mdash;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
<span class="pagenum"><a name="Page_249" id="Page_249">249</a></span>
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.</p>

<p>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
<span class="pagenum"><a name="Page_250" id="Page_250">250</a></span>
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.<a name="FNanchor_436" id="FNanchor_436" href="#Footnote_436" class="fnanchor">[436]</a></p>

<p>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.<a name="FNanchor_437" id="FNanchor_437" href="#Footnote_437" class="fnanchor">[437]</a></p>

<p><i>Assertion of privileges by Commons.</i>&mdash;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
<span class="pagenum"><a name="Page_251" id="Page_251">251</a></span>
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.<a name="FNanchor_438" id="FNanchor_438" href="#Footnote_438" class="fnanchor">[438]</a></p>

<p><i>Other cases of privilege.</i>&mdash;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.<a name="FNanchor_439" id="FNanchor_439" href="#Footnote_439" class="fnanchor">[439]</a> It is to be observed,
<span class="pagenum"><a name="Page_252" id="Page_252">252</a></span>
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.<a name="FNanchor_440" id="FNanchor_440" href="#Footnote_440" class="fnanchor">[440]</a>
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.<a name="FNanchor_441" id="FNanchor_441" href="#Footnote_441" class="fnanchor">[441]</a> One also, who had served a subp&oelig;na 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.<a name="FNanchor_442" id="FNanchor_442" href="#Footnote_442" class="fnanchor">[442]</a> 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 subp&oelig;nas," 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."<a name="FNanchor_443" id="FNanchor_443" href="#Footnote_443" class="fnanchor">[443]</a>
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 subp&oelig;na 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."<a name="FNanchor_444" id="FNanchor_444" href="#Footnote_444" class="fnanchor">[444]</a> 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.</p>

<p>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
<span class="pagenum"><a name="Page_253" id="Page_253">253</a></span>
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."</p>

<p>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
<span class="pagenum"><a name="Page_254" id="Page_254">254</a></span>
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.</p>

<p>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.<a name="FNanchor_445" id="FNanchor_445" href="#Footnote_445" class="fnanchor">[445]</a></p>

<p>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
<span class="pagenum"><a name="Page_255" id="Page_255">255</a></span>
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.<a name="FNanchor_446" id="FNanchor_446" href="#Footnote_446" class="fnanchor">[446]</a> 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.<a name="FNanchor_447" id="FNanchor_447" href="#Footnote_447" class="fnanchor">[447]</a> 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.<a name="FNanchor_448" id="FNanchor_448" href="#Footnote_448" class="fnanchor">[448]</a> 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.<a name="FNanchor_449" id="FNanchor_449" href="#Footnote_449" class="fnanchor">[449]</a> In this case they perhaps stretched
<span class="pagenum"><a name="Page_256" id="Page_256">256</a></span>
their power somewhat farther than in the case of Arthur Hall,
who, as one of their body, might seem more amenable to their
jurisdiction.</p>

<p><i>Privilege of determining contested elections claimed by the
house.</i>&mdash;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."<a name="FNanchor_450" id="FNanchor_450" href="#Footnote_450" class="fnanchor">[450]</a> 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
<span class="pagenum"><a name="Page_257" id="Page_257">257</a></span>
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."<a name="FNanchor_451" id="FNanchor_451" href="#Footnote_451" class="fnanchor">[451]</a> 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.<a name="FNanchor_452" id="FNanchor_452" href="#Footnote_452" class="fnanchor">[452]</a> And several instances of the house's deciding on
elections occur in subsequent parliaments.</p>

<p>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.<a name="FNanchor_453" id="FNanchor_453" href="#Footnote_453" class="fnanchor">[453]</a> 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.<a name="FNanchor_454" id="FNanchor_454" href="#Footnote_454" class="fnanchor">[454]</a> 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
<span class="pagenum"><a name="Page_258" id="Page_258">258</a></span>
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.<a name="FNanchor_455" id="FNanchor_455" href="#Footnote_455" class="fnanchor">[455]</a>
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.<a name="FNanchor_456" id="FNanchor_456" href="#Footnote_456" class="fnanchor">[456]</a></p>

<p><i>The English constitution not admitted to be an absolute monarchy.</i>&mdash;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
<i>History of the World</i> (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.<a name="FNanchor_457" id="FNanchor_457" href="#Footnote_457" class="fnanchor">[457]</a> The sentence itself, if designed to
<span class="pagenum"><a name="Page_259" id="Page_259">259</a></span>
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;<a name="FNanchor_458" id="FNanchor_458" href="#Footnote_458" class="fnanchor">[458]</a> if the jesuits and partisans of the League
<span class="pagenum"><a name="Page_260" id="Page_260">260</a></span>
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."<a name="FNanchor_459" id="FNanchor_459" href="#Footnote_459" class="fnanchor">[459]</a>
<span class="pagenum"><a name="Page_261" id="Page_261">261</a></span></p>

<p>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, <i>Blast of
the Trumpet against the Monstrous Regiment of Women</i>; 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
<span class="pagenum"><a name="Page_262" id="Page_262">262</a></span>
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."<a name="FNanchor_460" id="FNanchor_460" href="#Footnote_460" class="fnanchor">[460]</a></p>

<p>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
<span class="pagenum"><a name="Page_263" id="Page_263">263</a></span>
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 <i>forfeiture of life, members, or lands</i>, of any
Englishman, where there was no law ordered for it before."<a name="FNanchor_461" id="FNanchor_461" href="#Footnote_461" class="fnanchor">[461]</a>
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.</p>

<p><i>Pretensions of the crown.</i>&mdash;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.
<span class="pagenum"><a name="Page_264" id="Page_264">264</a></span>
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.<a name="FNanchor_462" id="FNanchor_462" href="#Footnote_462" class="fnanchor">[462]</a> 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.</p>

<p>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
<span class="pagenum"><a name="Page_265" id="Page_265">265</a></span>
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.<a name="FNanchor_463" id="FNanchor_463" href="#Footnote_463" class="fnanchor">[463]</a>
</p>
<p><span class="pagenum"><a name="Page_266" id="Page_266">266</a></span></p>

<h3 class="p6">CHAPTER VI</h3>

<p class="center">ON THE ENGLISH CONSTITUTION UNDER JAMES I</p>

<p><i>Quiet accession of James.</i>&mdash;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.<a name="FNanchor_464" id="FNanchor_464" href="#Footnote_464" class="fnanchor">[464]</a> The house of Suffolk, whose claim was legally
<span class="pagenum"><a name="Page_267" id="Page_267">267</a></span>
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.<a name="FNanchor_465" id="FNanchor_465" href="#Footnote_465" class="fnanchor">[465]</a> Considerations
<span class="pagenum"><a name="Page_268" id="Page_268">268</a></span>
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.<a name="FNanchor_466" id="FNanchor_466" href="#Footnote_466" class="fnanchor">[466]</a></p>

<p><i>Question of his title to the crown.</i>&mdash;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
<span class="pagenum"><a name="Page_269" id="Page_269">269</a></span>
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.</p>

<p>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;&mdash;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;&mdash;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;&mdash;4.
That such descendants of Mary were living at the decease
of Elizabeth.</p>

<p>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
<span class="pagenum"><a name="Page_270" id="Page_270">270</a></span>
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.<a name="FNanchor_467" id="FNanchor_467" href="#Footnote_467" class="fnanchor">[467]</a> 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;<a name="FNanchor_468" id="FNanchor_468" href="#Footnote_468" class="fnanchor">[468]</a> 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.</p>

<p>The fourth proposition is in itself undeniable. There were
descendants of Mary, Duchess of Suffolk, by her two daughters,
<span class="pagenum"><a name="Page_271" id="Page_271">271</a></span>
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.<a name="FNanchor_469" id="FNanchor_469" href="#Footnote_469" class="fnanchor">[469]</a> 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.<a name="FNanchor_470" id="FNanchor_470" href="#Footnote_470" class="fnanchor">[470]</a> 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
<span class="pagenum"><a name="Page_272" id="Page_272">272</a></span>
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.<a name="FNanchor_471" id="FNanchor_471" href="#Footnote_471" class="fnanchor">[471]</a>
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.<a name="FNanchor_472" id="FNanchor_472" href="#Footnote_472" class="fnanchor">[472]</a>
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.<a name="FNanchor_473" id="FNanchor_473" href="#Footnote_473" class="fnanchor">[473]</a> 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
<span class="pagenum"><a name="Page_273" id="Page_273">273</a></span>
denominated his father in the patent.<a name="FNanchor_474" id="FNanchor_474" href="#Footnote_474" class="fnanchor">[474]</a> 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.<a name="FNanchor_475" id="FNanchor_475" href="#Footnote_475" class="fnanchor">[475]</a></p>

<p>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.<a name="FNanchor_476" id="FNanchor_476" href="#Footnote_476" class="fnanchor">[476]</a> In neither case could the house of Stuart
have a lawful claim. But I may, perhaps, have dwelled too
<span class="pagenum"><a name="Page_274" id="Page_274">274</a></span>
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.</p>

<p>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.<a name="FNanchor_477" id="FNanchor_477" href="#Footnote_477" class="fnanchor">[477]</a> 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."<a name="FNanchor_478" id="FNanchor_478" href="#Footnote_478" class="fnanchor">[478]</a> 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.</p>

<p>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,
<span class="pagenum"><a name="Page_275" id="Page_275">275</a></span>
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.<a name="FNanchor_479" id="FNanchor_479" href="#Footnote_479" class="fnanchor">[479]</a> 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.</p>

<p><i>Early unpopularity of the king.</i>&mdash;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.<a name="FNanchor_480" id="FNanchor_480" href="#Footnote_480" class="fnanchor">[480]</a> The kingdom
<span class="pagenum"><a name="Page_276" id="Page_276">276</a></span>
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,<a name="FNanchor_481" id="FNanchor_481" href="#Footnote_481" class="fnanchor">[481]</a> 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.<a name="FNanchor_482" id="FNanchor_482" href="#Footnote_482" class="fnanchor">[482]</a> 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.<a name="FNanchor_483" id="FNanchor_483" href="#Footnote_483" class="fnanchor">[483]</a> The bishops
<span class="pagenum"><a name="Page_277" id="Page_277">277</a></span>
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.<a name="FNanchor_484" id="FNanchor_484" href="#Footnote_484" class="fnanchor">[484]</a> 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.<a name="FNanchor_485" id="FNanchor_485" href="#Footnote_485" class="fnanchor">[485]</a> 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.<a name="FNanchor_486" id="FNanchor_486" href="#Footnote_486" class="fnanchor">[486]</a> 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."<a name="FNanchor_487" id="FNanchor_487" href="#Footnote_487" class="fnanchor">[487]</a> And he
<span class="pagenum"><a name="Page_278" id="Page_278">278</a></span>
had already strictly enjoined the bishops to proceed against all
their clergy who did not observe the prescribed order;<a name="FNanchor_488" id="FNanchor_488" href="#Footnote_488" class="fnanchor">[488]</a> 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.<a name="FNanchor_489" id="FNanchor_489" href="#Footnote_489" class="fnanchor">[489]</a>
By such beginnings did the house of Stuart indicate the course
it would steer.</p>

<p>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.<a name="FNanchor_490" id="FNanchor_490" href="#Footnote_490" class="fnanchor">[490]</a> 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,
<span class="pagenum"><a name="Page_279" id="Page_279">279</a></span>
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."<a name="FNanchor_491" id="FNanchor_491" href="#Footnote_491" class="fnanchor">[491]</a> 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.</p>

<p>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.<a name="FNanchor_492" id="FNanchor_492" href="#Footnote_492" class="fnanchor">[492]</a></p>

<p><i>Question of Fortescue and Goodwin's election.</i>&mdash;Such an assumption
of control over parliamentary elections was a glaring
<span class="pagenum"><a name="Page_280" id="Page_280">280</a></span>
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;
<span class="pagenum"><a name="Page_281" id="Page_281">281</a></span>
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."<a name="FNanchor_493" id="FNanchor_493" href="#Footnote_493" class="fnanchor">[493]</a> 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.<a name="FNanchor_494" id="FNanchor_494" href="#Footnote_494" class="fnanchor">[494]</a> 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.<a name="FNanchor_495" id="FNanchor_495" href="#Footnote_495" class="fnanchor">[495]</a></p>

<p><i>Shirley's case of privilege.</i>&mdash;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
<span class="pagenum"><a name="Page_282" id="Page_282">282</a></span>
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.<a name="FNanchor_496" id="FNanchor_496" href="#Footnote_496" class="fnanchor">[496]</a>
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.<a name="FNanchor_497" id="FNanchor_497" href="#Footnote_497" class="fnanchor">[497]</a> 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.</p>

<p><i>Complaints of grievances.</i>&mdash;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.<a name="FNanchor_498" id="FNanchor_498" href="#Footnote_498" class="fnanchor">[498]</a> Against these canons, as well as various other
<span class="pagenum"><a name="Page_283" id="Page_283">283</a></span>
grievances, the Commons remonstrated in a conference with
the upper house, but with little immediate effect.<a name="FNanchor_499" id="FNanchor_499" href="#Footnote_499" class="fnanchor">[499]</a> 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.<a name="FNanchor_500" id="FNanchor_500" href="#Footnote_500" class="fnanchor">[500]</a> 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
<span class="pagenum"><a name="Page_284" id="Page_284">284</a></span>
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.<a name="FNanchor_501" id="FNanchor_501" href="#Footnote_501" class="fnanchor">[501]</a></p>

<p>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.<a name="FNanchor_502" id="FNanchor_502" href="#Footnote_502" class="fnanchor">[502]</a></p>

<p><i>Commons' vindication of themselves.</i>&mdash;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,<a name="FNanchor_503" id="FNanchor_503" href="#Footnote_503" class="fnanchor">[503]</a> 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
<span class="pagenum"><a name="Page_285" id="Page_285">285</a></span>
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&mdash;the business of
<span class="pagenum"><a name="Page_286" id="Page_286">286</a></span>
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."<a name="FNanchor_504" id="FNanchor_504" href="#Footnote_504" class="fnanchor">[504]</a> 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.<a name="FNanchor_505" id="FNanchor_505" href="#Footnote_505" class="fnanchor">[505]</a>
<span class="pagenum"><a name="Page_287" id="Page_287">287</a></span></p>

<p><i>Session</i>, 1605.&mdash;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.<a name="FNanchor_506" id="FNanchor_506" href="#Footnote_506" class="fnanchor">[506]</a> They voted a
liberal subsidy, which the king, who had reigned three years
without one, had just cause to require. For though he had
concluded a peace with Spain soon after his accession, yet the
late queen had left a debt of £400,000, and other charges had
fallen on the Crown. But the bill for this subsidy lay a good
while in the House of Commons, who came to a vote that it
should not pass till their list of 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.</p>

<p><i>Union with Scotland debated.</i>&mdash;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
<span class="pagenum"><a name="Page_288" id="Page_288">288</a></span>
forward, that his views extended to a legislative incorporation.<a name="FNanchor_507" id="FNanchor_507" href="#Footnote_507" class="fnanchor">[507]</a>
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?<a name="FNanchor_508" id="FNanchor_508" href="#Footnote_508" class="fnanchor">[508]</a> Yet Hume, ever prone
to eulogise this monarch at the expense of his people, while he
<span class="pagenum"><a name="Page_289" id="Page_289">289</a></span>
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.<a name="FNanchor_509" id="FNanchor_509" href="#Footnote_509" class="fnanchor">[509]</a> "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."<a name="FNanchor_510" id="FNanchor_510" href="#Footnote_510" class="fnanchor">[510]</a></p>

<p><i>Continual bickerings between the Crown and Commons.</i>&mdash;It is
most probable, as experience had shown, that such a demonstration
of displeasure from Elizabeth would have ensured the
<span class="pagenum"><a name="Page_290" id="Page_290">290</a></span>
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.<a name="FNanchor_511" id="FNanchor_511" href="#Footnote_511" class="fnanchor">[511]</a> 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.<a name="FNanchor_512" id="FNanchor_512" href="#Footnote_512" class="fnanchor">[512]</a> 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
<span class="pagenum"><a name="Page_291" id="Page_291">291</a></span>
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.<a name="FNanchor_513" id="FNanchor_513" href="#Footnote_513" class="fnanchor">[513]</a></p>

<p>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,<a name="FNanchor_514" id="FNanchor_514" href="#Footnote_514" class="fnanchor">[514]</a> 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.<a name="FNanchor_515" id="FNanchor_515" href="#Footnote_515" class="fnanchor">[515]</a> 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
<span class="pagenum"><a name="Page_292" id="Page_292">292</a></span>
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,
<span class="pagenum"><a name="Page_293" id="Page_293">293</a></span>
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.<a name="FNanchor_516" id="FNanchor_516" href="#Footnote_516" class="fnanchor">[516]</a></p>

<p><i>Impositions on merchandise without consent of parliament.</i>&mdash;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
<span class="pagenum"><a name="Page_294" id="Page_294">294</a></span>
customs were preserved by the statute,<a name="FNanchor_517" id="FNanchor_517" href="#Footnote_517" class="fnanchor">[517]</a> 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.</p>

<p>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.<a name="FNanchor_518" id="FNanchor_518" href="#Footnote_518" class="fnanchor">[518]</a> But we
<span class="pagenum"><a name="Page_295" id="Page_295">295</a></span>
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.<a name="FNanchor_519" id="FNanchor_519" href="#Footnote_519" class="fnanchor">[519]</a> 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.<a name="FNanchor_520" id="FNanchor_520" href="#Footnote_520" class="fnanchor">[520]</a>
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?<a name="FNanchor_521" id="FNanchor_521" href="#Footnote_521" class="fnanchor">[521]</a>
<span class="pagenum"><a name="Page_296" id="Page_296">296</a></span></p>

<p>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.<a name="FNanchor_522" id="FNanchor_522" href="#Footnote_522" class="fnanchor">[522]</a>
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&mdash;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
<span class="pagenum"><a name="Page_297" id="Page_297">297</a></span>
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.<a name="FNanchor_523" id="FNanchor_523" href="#Footnote_523" class="fnanchor">[523]</a></p>

<p><i>Remonstrances against impositions in session of 1610.</i>&mdash;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.<a name="FNanchor_524" id="FNanchor_524" href="#Footnote_524" class="fnanchor">[524]</a> 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.<a name="FNanchor_525" id="FNanchor_525" href="#Footnote_525" class="fnanchor">[525]</a>
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.<a name="FNanchor_526" id="FNanchor_526" href="#Footnote_526" class="fnanchor">[526]</a> 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
<span class="pagenum"><a name="Page_298" id="Page_298">298</a></span>
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,<a name="FNanchor_527" id="FNanchor_527" href="#Footnote_527" class="fnanchor">[527]</a> 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."<a name="FNanchor_528" id="FNanchor_528" href="#Footnote_528" class="fnanchor">[528]</a> "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
<span class="pagenum"><a name="Page_299" id="Page_299">299</a></span>
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."<a name="FNanchor_529" id="FNanchor_529" href="#Footnote_529" class="fnanchor">[529]</a> 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.</p>

<p><i>Doctrine of king's absolute power inculcated by clergy.</i>&mdash;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,
<span class="pagenum"><a name="Page_300" id="Page_300">300</a></span>
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.<a name="FNanchor_530" id="FNanchor_530" href="#Footnote_530" class="fnanchor">[530]</a></p>

<p>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.</p>

<p>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
<span class="pagenum"><a name="Page_301" id="Page_301">301</a></span>
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.<a name="FNanchor_531" id="FNanchor_531" href="#Footnote_531" class="fnanchor">[531]</a> 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
<span class="pagenum"><a name="Page_302" id="Page_302">302</a></span>
aggravated that jealousy of the ecclesiastical courts which the
common lawyers had long entertained.</p>

<p><i>Cowell's Interpreter.</i>&mdash;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:&mdash;"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."<a name="FNanchor_532" id="FNanchor_532" href="#Footnote_532" class="fnanchor">[532]</a></p>

<p>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
<span class="pagenum"><a name="Page_303" id="Page_303">303</a></span>
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.<a name="FNanchor_533" id="FNanchor_533" href="#Footnote_533" class="fnanchor">[533]</a></p>

<p>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 £1,300,000, about one-third of which was still undischarged.
The ordinary expense also surpassed the revenue by
£81,000. It was impossible that this could continue, without
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 £200,000, 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.<a name="FNanchor_534" id="FNanchor_534" href="#Footnote_534" class="fnanchor">[534]</a></p>

<p><i>Renewed complaints of the Commons.</i>&mdash;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
<span class="pagenum"><a name="Page_304" id="Page_304">304</a></span>
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
<span class="pagenum"><a name="Page_305" id="Page_305">305</a></span>
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."<a name="FNanchor_535" id="FNanchor_535" href="#Footnote_535" class="fnanchor">[535]</a></p>

<p>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,<a name="FNanchor_536" id="FNanchor_536" href="#Footnote_536" class="fnanchor">[536]</a> some patents of
monopolies, and a tax under the name of a licence recently set
<span class="pagenum"><a name="Page_306" id="Page_306">306</a></span>
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.</p>

<p><i>Negotiation for giving up the feudal revenue.</i>&mdash;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 £200,000 as a yearly revenue
over and above £100,000, at which his wardships were valued,
and which the Commons were content to give. After some
days' pause upon this proposition, they represented to the
Lords, with whom, through committees of 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 £200,000 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
<span class="pagenum"><a name="Page_307" id="Page_307">307</a></span>
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.<a name="FNanchor_537" id="FNanchor_537" href="#Footnote_537" class="fnanchor">[537]</a> 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.<a name="FNanchor_538" id="FNanchor_538" href="#Footnote_538" class="fnanchor">[538]</a></p>

<p><i>Dissolution of parliament&mdash;Character of James.</i>&mdash;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
<span class="pagenum"><a name="Page_308" id="Page_308">308</a></span>
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.<a name="FNanchor_539" id="FNanchor_539" href="#Footnote_539" class="fnanchor">[539]</a> 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;<a name="FNanchor_540" id="FNanchor_540" href="#Footnote_540" class="fnanchor">[540]</a>
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.<a name="FNanchor_541" id="FNanchor_541" href="#Footnote_541" class="fnanchor">[541]</a></p>

<p><i>Death of Lord Salisbury.</i>&mdash;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.<a name="FNanchor_542" id="FNanchor_542" href="#Footnote_542" class="fnanchor">[542]</a> Salisbury was a very able man, to whom
<span class="pagenum"><a name="Page_309" id="Page_309">309</a></span>
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.<a name="FNanchor_543" id="FNanchor_543" href="#Footnote_543" class="fnanchor">[543]</a>
On this occasion, he not only deserted the United Provinces,
but gave hopes to Spain that he might, if they persevered in
<span class="pagenum"><a name="Page_310" id="Page_310">310</a></span>
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,<a name="FNanchor_544" id="FNanchor_544" href="#Footnote_544" class="fnanchor">[544]</a> 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.<a name="FNanchor_545" id="FNanchor_545" href="#Footnote_545" class="fnanchor">[545]</a></p>

<p><i>Lord Coke's alienation from the court.</i>&mdash;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
<span class="pagenum"><a name="Page_311" id="Page_311">311</a></span>
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.</p>

<p>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.<a name="FNanchor_546" id="FNanchor_546" href="#Footnote_546" class="fnanchor">[546]</a>
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
<span class="pagenum"><a name="Page_312" id="Page_312">312</a></span>
not be cited in favour of any fresh encroachments.<a name="FNanchor_547" id="FNanchor_547" href="#Footnote_547" class="fnanchor">[547]</a> 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
<span class="pagenum"><a name="Page_313" id="Page_313">313</a></span>
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.<a name="FNanchor_548" id="FNanchor_548" href="#Footnote_548" class="fnanchor">[548]</a></p>

<p><i>Means resorted to in order to avoid the meeting of parliament.</i>&mdash;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
<span class="pagenum"><a name="Page_314" id="Page_314">314</a></span>
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.<a name="FNanchor_549" id="FNanchor_549" href="#Footnote_549" class="fnanchor">[549]</a> 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.<a name="FNanchor_550" id="FNanchor_550" href="#Footnote_550" class="fnanchor">[550]</a> 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 £1,000 each for their patents.<a name="FNanchor_551" id="FNanchor_551" href="#Footnote_551" class="fnanchor">[551]</a></p>

<p>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
literæ 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
<span class="pagenum"><a name="Page_315" id="Page_315">315</a></span>
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.<a name="FNanchor_552" id="FNanchor_552" href="#Footnote_552" class="fnanchor">[552]</a> 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.<a name="FNanchor_553" id="FNanchor_553" href="#Footnote_553" class="fnanchor">[553]</a> 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 <i>undertakers</i>.<a name="FNanchor_554" id="FNanchor_554" href="#Footnote_554" class="fnanchor">[554]</a> 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.</p>

<p>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,<a name="FNanchor_555" id="FNanchor_555" href="#Footnote_555" class="fnanchor">[555]</a> 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.
<span class="pagenum"><a name="Page_316" id="Page_316">316</a></span></p>

<p><i>Parliament of 1614.</i>&mdash;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.<a name="FNanchor_556" id="FNanchor_556" href="#Footnote_556" class="fnanchor">[556]</a> They demanded a conference on the subject with
the Lords, who preserved a kind of mediating neutrality throughout
this reign.<a name="FNanchor_557" id="FNanchor_557" href="#Footnote_557" class="fnanchor">[557]</a> 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.<a name="FNanchor_558" id="FNanchor_558" href="#Footnote_558" class="fnanchor">[558]</a> 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.<a name="FNanchor_559" id="FNanchor_559" href="#Footnote_559" class="fnanchor">[559]</a>
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.<a name="FNanchor_560" id="FNanchor_560" href="#Footnote_560" class="fnanchor">[560]</a> 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.</p>

<p>Amidst these heats little progress was made; and no one
<span class="pagenum"><a name="Page_317" id="Page_317">317</a></span>
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.<a name="FNanchor_561" id="FNanchor_561" href="#Footnote_561" class="fnanchor">[561]</a>
Aware of the impossibility of conquering their resolution, the
king carried his measure into effect by a dissolution.<a name="FNanchor_562" id="FNanchor_562" href="#Footnote_562" class="fnanchor">[562]</a> 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.<a name="FNanchor_563" id="FNanchor_563" href="#Footnote_563" class="fnanchor">[563]</a></p>

<p><i>Benevolences.</i>&mdash;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 £133,000 for
exporting gold coin.<a name="FNanchor_564" id="FNanchor_564" href="#Footnote_564" class="fnanchor">[564]</a> 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
<span class="pagenum"><a name="Page_318" id="Page_318">318</a></span>
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.<a name="FNanchor_565" id="FNanchor_565" href="#Footnote_565" class="fnanchor">[565]</a> 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 £5000, and to imprisonment
during pleasure.<a name="FNanchor_566" id="FNanchor_566" href="#Footnote_566" class="fnanchor">[566]</a></p>

<p><i>Prosecution of Peacham.</i>&mdash;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
<span class="pagenum"><a name="Page_319" id="Page_319">319</a></span>
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."<a name="FNanchor_567" id="FNanchor_567" href="#Footnote_567" class="fnanchor">[567]</a> 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.<a name="FNanchor_568" id="FNanchor_568" href="#Footnote_568" class="fnanchor">[568]</a></p>

<p><i>Dispute about the jurisdiction of the court of chancery.</i>&mdash;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
<span class="pagenum"><a name="Page_320" id="Page_320">320</a></span>
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 subp&oelig;na, 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 subp&oelig;na
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
<span class="pagenum"><a name="Page_321" id="Page_321">321</a></span>
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.</p>

<p>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 præmunire.
But the grand jury, though pressed, as is said, by one of the
judges, threw out these indictments. The king, already incensed
with Coke, and stimulated by Bacon, thought this too
great an insult upon his chancellor to be passed over. He first
directed Bacon and others to search for precedents of cases
where relief had been given in chancery after judgment at law.
They reported that there was a series of such precedents from
the time of Henry VIII.; and some where the chancellor had
entertained suits even after 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.<a name="FNanchor_569" id="FNanchor_569" href="#Footnote_569" class="fnanchor">[569]</a></p>

<p><i>Case of commendams.</i>&mdash;The chief justice almost at the same
<span class="pagenum"><a name="Page_322" id="Page_322">322</a></span>
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.</p>

<p>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&mdash;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,
<span class="pagenum"><a name="Page_323" id="Page_323">323</a></span>
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.</p>

<p>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.<a name="FNanchor_570" id="FNanchor_570" href="#Footnote_570" class="fnanchor">[570]</a></p>

<p>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.
<span class="pagenum"><a name="Page_324" id="Page_324">324</a></span></p>

<p>The government had nothing to fear from such recreants;
but Coke was suspended from his office, and not long afterwards
dismissed.<a name="FNanchor_571" id="FNanchor_571" href="#Footnote_571" class="fnanchor">[571]</a> 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.<a name="FNanchor_572" id="FNanchor_572" href="#Footnote_572" class="fnanchor">[572]</a> 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.</p>

<p><i>Arbitrary proceedings of the star-chamber.</i>&mdash;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 <i>ex officio</i>, 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.<a name="FNanchor_573" id="FNanchor_573" href="#Footnote_573" class="fnanchor">[573]</a>
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.<a name="FNanchor_574" id="FNanchor_574" href="#Footnote_574" class="fnanchor">[574]</a> Such too was the fate of
<span class="pagenum"><a name="Page_325" id="Page_325">325</a></span>
a more distinguished person on a still more preposterous accusation.
Selden, in his <i>History of Tithes</i>, 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 æra. Not content with letting loose on him some
stanch polemical writers, the bishops prevailed on James to
summon the author before the council. This proceeding is as
much the disgrace of England, as that against Galileo nearly at
the same time is of Italy. 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.<a name="FNanchor_575" id="FNanchor_575" href="#Footnote_575" class="fnanchor">[575]</a></p>

<p><i>Arabella Stuart.</i>&mdash;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.<a name="FNanchor_576" id="FNanchor_576" href="#Footnote_576" class="fnanchor">[576]</a>
At the trial of Raleigh she was present; and Cecil openly acquitted
her of any share in the conspiracy.<a name="FNanchor_577" id="FNanchor_577" href="#Footnote_577" class="fnanchor">[577]</a> 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.<a name="FNanchor_578" id="FNanchor_578" href="#Footnote_578" class="fnanchor">[578]</a>
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.<a name="FNanchor_579" id="FNanchor_579" href="#Footnote_579" class="fnanchor">[579]</a> And this
<span class="pagenum"><a name="Page_326" id="Page_326">326</a></span>
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 £20,000, and
discretionary imprisonment.<a name="FNanchor_580" id="FNanchor_580" href="#Footnote_580" class="fnanchor">[580]</a></p>

<p><i>Somerset and Overbury.</i>&mdash;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
<span class="pagenum"><a name="Page_327" id="Page_327">327</a></span>
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.<a name="FNanchor_581" id="FNanchor_581" href="#Footnote_581" class="fnanchor">[581]</a> 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.<a name="FNanchor_582" id="FNanchor_582" href="#Footnote_582" class="fnanchor">[582]</a>
<span class="pagenum"><a name="Page_328" id="Page_328">328</a></span></p>

<p><i>Sir Walter Raleigh.</i>&mdash;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;<a name="FNanchor_583" id="FNanchor_583" href="#Footnote_583" class="fnanchor">[583]</a> but his conviction was
<span class="pagenum"><a name="Page_329" id="Page_329">329</a></span>
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.<a name="FNanchor_584" id="FNanchor_584" href="#Footnote_584" class="fnanchor">[584]</a>
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.<a name="FNanchor_585" id="FNanchor_585" href="#Footnote_585" class="fnanchor">[585]</a> 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.<a name="FNanchor_586" id="FNanchor_586" href="#Footnote_586" class="fnanchor">[586]</a>
<span class="pagenum"><a name="Page_330" id="Page_330">330</a></span></p>

<p>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,<a name="FNanchor_587" id="FNanchor_587" href="#Footnote_587" class="fnanchor">[587]</a> 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 <i>Basilicon Doron</i>, 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.<a name="FNanchor_588" id="FNanchor_588" href="#Footnote_588" class="fnanchor">[588]</a></p>

<p><i>Parliament of 1621.</i>&mdash;The king's speech on opening the session
<span class="pagenum"><a name="Page_331" id="Page_331">331</a></span>
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.<a name="FNanchor_589" id="FNanchor_589" href="#Footnote_589" class="fnanchor">[589]</a> 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.<a name="FNanchor_590" id="FNanchor_590" href="#Footnote_590" class="fnanchor">[590]</a> 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."<a name="FNanchor_591" id="FNanchor_591" href="#Footnote_591" class="fnanchor">[591]</a>
<span class="pagenum"><a name="Page_332" id="Page_332">332</a></span></p>

<p>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.<a name="FNanchor_592" id="FNanchor_592" href="#Footnote_592" class="fnanchor">[592]</a> 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.<a name="FNanchor_593" id="FNanchor_593" href="#Footnote_593" class="fnanchor">[593]</a></p>

<p>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.<a name="FNanchor_594" id="FNanchor_594" href="#Footnote_594" class="fnanchor">[594]</a> 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
<span class="pagenum"><a name="Page_333" id="Page_333">333</a></span>
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.</p>

<p><i>Proceedings against Lord Bacon.</i>&mdash;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.<a name="FNanchor_595" id="FNanchor_595" href="#Footnote_595" class="fnanchor">[595]</a> 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 £40,000 imposed by the Lords, which
he was wholly unable to pay.<a name="FNanchor_596" id="FNanchor_596" href="#Footnote_596" class="fnanchor">[596]</a>
<span class="pagenum"><a name="Page_334" id="Page_334">334</a></span></p>

<p>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.
<span class="pagenum"><a name="Page_335" id="Page_335">335</a></span></p>

<p>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.<a name="FNanchor_597" id="FNanchor_597" href="#Footnote_597" class="fnanchor">[597]</a> 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.<a name="FNanchor_598" id="FNanchor_598" href="#Footnote_598" class="fnanchor">[598]</a> 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.<a name="FNanchor_599" id="FNanchor_599" href="#Footnote_599" class="fnanchor">[599]</a> 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
<span class="pagenum"><a name="Page_336" id="Page_336">336</a></span>
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
£5000, and to be a prisoner in Newgate during his life. The
whipping was a few days after remitted on Prince Charles's
motion; but he seems to have undergone the rest of the sentence.
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.<a name="FNanchor_600" id="FNanchor_600" href="#Footnote_600" class="fnanchor">[600]</a></p>

<p>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.<a name="FNanchor_601" id="FNanchor_601" href="#Footnote_601" class="fnanchor">[601]</a>
<span class="pagenum"><a name="Page_337" id="Page_337">337</a></span></p>

<p>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.<a name="FNanchor_602" id="FNanchor_602" href="#Footnote_602" class="fnanchor">[602]</a> 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.<a name="FNanchor_603" id="FNanchor_603" href="#Footnote_603" class="fnanchor">[603]</a> 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.<a name="FNanchor_604" id="FNanchor_604" href="#Footnote_604" class="fnanchor">[604]</a>
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
<span class="pagenum"><a name="Page_338" id="Page_338">338</a></span>
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.<a name="FNanchor_605" id="FNanchor_605" href="#Footnote_605" class="fnanchor">[605]</a></p>

<p>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.<a name="FNanchor_606" id="FNanchor_606" href="#Footnote_606" class="fnanchor">[606]</a> 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 £900,000; which was left to their consideration.<a name="FNanchor_607" id="FNanchor_607" href="#Footnote_607" class="fnanchor">[607]</a> 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 £70,000; a sum manifestly insufficient
for the first equipment of such a force.<a name="FNanchor_608" id="FNanchor_608" href="#Footnote_608" class="fnanchor">[608]</a> 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.</p>

<p><i>Disagreement between the king and Commons.</i>&mdash;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
<span class="pagenum"><a name="Page_339" id="Page_339">339</a></span>
he had not been committed for any parliamentary matter),<a name="FNanchor_609" id="FNanchor_609" href="#Footnote_609" class="fnanchor">[609]</a>
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."<a name="FNanchor_610" id="FNanchor_610" href="#Footnote_610" class="fnanchor">[610]</a>
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.<a name="FNanchor_611" id="FNanchor_611" href="#Footnote_611" class="fnanchor">[611]</a></p>

<p>The house received this message with unanimous firmness,
but without any undue warmth. A committee was appointed
<span class="pagenum"><a name="Page_340" id="Page_340">340</a></span>
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.<a name="FNanchor_612" id="FNanchor_612" href="#Footnote_612" class="fnanchor">[612]</a> 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."<a name="FNanchor_613" id="FNanchor_613" href="#Footnote_613" class="fnanchor">[613]</a></p>

<p>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.<a name="FNanchor_614" id="FNanchor_614" href="#Footnote_614" class="fnanchor">[614]</a> 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
<span class="pagenum"><a name="Page_341" id="Page_341">341</a></span>
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.<a name="FNanchor_615" id="FNanchor_615" href="#Footnote_615" class="fnanchor">[615]</a> After a
long and warm debate, they entered on record in the Journals
their famous protestation of December 18th, 1621, in the
following words:&mdash;</p>

<p>"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:&mdash;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."<a name="FNanchor_616" id="FNanchor_616" href="#Footnote_616" class="fnanchor">[616]</a></p>

<p><i>Dissolution of the Commons, after a strong remonstrance.</i>&mdash;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
<span class="pagenum"><a name="Page_342" id="Page_342">342</a></span>
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.<a name="FNanchor_617" id="FNanchor_617" href="#Footnote_617" class="fnanchor">[617]</a> 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.<a name="FNanchor_618" id="FNanchor_618" href="#Footnote_618" class="fnanchor">[618]</a> 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.<a name="FNanchor_619" id="FNanchor_619" href="#Footnote_619" class="fnanchor">[619]</a>
<span class="pagenum"><a name="Page_343" id="Page_343">343</a></span></p>

<p><i>Marriage treaty with Spain.</i>&mdash;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.<a name="FNanchor_620" id="FNanchor_620" href="#Footnote_620" class="fnanchor">[620]</a>
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.<a name="FNanchor_621" id="FNanchor_621" href="#Footnote_621" class="fnanchor">[621]</a> 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
<span class="pagenum"><a name="Page_344" id="Page_344">344</a></span>
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.</p>

<p><i>Parliament of 1624.</i>&mdash;Buckingham obtained a transient and
unmerited popularity by thus averting a great public mischief,
which rendered the next parliament unexpectedly peaceable.
The Commons voted three subsidies and three-fifteenths, in
value about £300,000;<a name="FNanchor_622" id="FNanchor_622" href="#Footnote_622" class="fnanchor">[622]</a> 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.<a name="FNanchor_623" id="FNanchor_623" href="#Footnote_623" class="fnanchor">[623]</a>
<span class="pagenum"><a name="Page_345" id="Page_345">345</a></span></p>

<p><i>Impeachment of Middlesex.</i>&mdash;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 <i>vivâ voce</i> 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 £3 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.<a name="FNanchor_624" id="FNanchor_624" href="#Footnote_624" class="fnanchor">[624]</a> 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.<a name="FNanchor_625" id="FNanchor_625" href="#Footnote_625" class="fnanchor">[625]</a> 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.</p>

<p>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,
<span class="pagenum"><a name="Page_346" id="Page_346">346</a></span>
but none so material as that for abolishing monopolies for the
sale of merchandise, or for using any trade.<a name="FNanchor_626" id="FNanchor_626" href="#Footnote_626" class="fnanchor">[626]</a> 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,<a name="FNanchor_627" id="FNanchor_627" href="#Footnote_627" class="fnanchor">[627]</a> 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.<a name="FNanchor_628" id="FNanchor_628" href="#Footnote_628" class="fnanchor">[628]</a></p>

<p>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.</p>
<p><span class="pagenum"><a name="Page_347" id="Page_347">347</a></span></p>

<h3 class="p6">CHAPTER VII</h3>

<p class="center">ON THE ENGLISH CONSTITUTION FROM THE ACCESSION OF
CHARLES I. TO THE DISSOLUTION OF HIS THIRD PARLIAMENT</p>

<p class="center">1625-1629</p>

<p>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.<a name="FNanchor_629" id="FNanchor_629" href="#Footnote_629" class="fnanchor">[629]</a> 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.</p>

<p>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
<span class="pagenum"><a name="Page_348" id="Page_348">348</a></span>
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,<a name="FNanchor_630" id="FNanchor_630" href="#Footnote_630" class="fnanchor">[630]</a>
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.</p>

<p><i>Parliament of 1625.</i>&mdash;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.<a name="FNanchor_631" id="FNanchor_631" href="#Footnote_631" class="fnanchor">[631]</a> 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.<a name="FNanchor_632" id="FNanchor_632" href="#Footnote_632" class="fnanchor">[632]</a> Nor would they have refused
a further supply, beyond the two subsidies (about £140,000)
which they had granted, had some tender of redress been made
<span class="pagenum"><a name="Page_349" id="Page_349">349</a></span>
by the Crown; and were actually in debate upon the matter,
when interrupted by a sudden dissolution.<a name="FNanchor_633" id="FNanchor_633" href="#Footnote_633" class="fnanchor">[633]</a></p>

<p>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.<a name="FNanchor_634" id="FNanchor_634" href="#Footnote_634" class="fnanchor">[634]</a> 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
<span class="pagenum"><a name="Page_350" id="Page_350">350</a></span>
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."<a name="FNanchor_635" id="FNanchor_635" href="#Footnote_635" class="fnanchor">[635]</a> 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.</p>

<p>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
<span class="pagenum"><a name="Page_351" id="Page_351">351</a></span>
asserting that he had not spoken them, the king admitted that
he was mistaken, and released both their members.<a name="FNanchor_636" id="FNanchor_636" href="#Footnote_636" class="fnanchor">[636]</a> 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.<a name="FNanchor_637" id="FNanchor_637" href="#Footnote_637" class="fnanchor">[637]</a></p>

<p>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
<span class="pagenum"><a name="Page_352" id="Page_352">352</a></span>
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,<a name="FNanchor_638" id="FNanchor_638" href="#Footnote_638" class="fnanchor">[638]</a> 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.<a name="FNanchor_639" id="FNanchor_639" href="#Footnote_639" class="fnanchor">[639]</a>
<span class="pagenum"><a name="Page_353" id="Page_353">353</a></span></p>

<p>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.<a name="FNanchor_640" id="FNanchor_640" href="#Footnote_640" class="fnanchor">[640]</a>
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.<a name="FNanchor_641" id="FNanchor_641" href="#Footnote_641" class="fnanchor">[641]</a> 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.<a name="FNanchor_642" id="FNanchor_642" href="#Footnote_642" class="fnanchor">[642]</a> This course, therefore, was
<span class="pagenum"><a name="Page_354" id="Page_354">354</a></span>
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.<a name="FNanchor_643" id="FNanchor_643" href="#Footnote_643" class="fnanchor">[643]</a></p>

<p><i>Arbitrary taxation.</i>&mdash;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&mdash;functions which the Tudors and Stuarts were well
pleased that they should exercise&mdash;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
<span class="pagenum"><a name="Page_355" id="Page_355">355</a></span>
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.<a name="FNanchor_644" id="FNanchor_644" href="#Footnote_644" class="fnanchor">[644]</a> 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.<a name="FNanchor_645" id="FNanchor_645" href="#Footnote_645" class="fnanchor">[645]</a> 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
<span class="pagenum"><a name="Page_356" id="Page_356">356</a></span>
lawyers, on behalf of the claimants, and by the attorney-general
Heath for the Crown.</p>

<p>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>i.e.</i> 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.</p>

<p>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
<span class="pagenum"><a name="Page_357" id="Page_357">357</a></span>
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 <i>suspicion</i> 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.</p>

<p>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?&mdash;who shall call in
<span class="pagenum"><a name="Page_358" id="Page_358">358</a></span>
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.</p>

<p>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 <i>Reports</i>.<a name="FNanchor_646" id="FNanchor_646" href="#Footnote_646" class="fnanchor">[646]</a> 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
<span class="pagenum"><a name="Page_359" id="Page_359">359</a></span>
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.<a name="FNanchor_647" id="FNanchor_647" href="#Footnote_647" class="fnanchor">[647]</a></p>

<p><i>A parliament called in 1628.</i>&mdash;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.<a name="FNanchor_648" id="FNanchor_648" href="#Footnote_648" class="fnanchor">[648]</a>
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;"<a name="FNanchor_649" id="FNanchor_649" href="#Footnote_649" class="fnanchor">[649]</a> 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
<span class="pagenum"><a name="Page_360" id="Page_360">360</a></span>
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.<a name="FNanchor_650" id="FNanchor_650" href="#Footnote_650" class="fnanchor">[650]</a> 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?</p>

<p><i>Petition of Right.</i>&mdash;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&mdash;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.<a name="FNanchor_651" id="FNanchor_651" href="#Footnote_651" class="fnanchor">[651]</a> 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
<span class="pagenum"><a name="Page_361" id="Page_361">361</a></span>
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.<a name="FNanchor_652" id="FNanchor_652" href="#Footnote_652" class="fnanchor">[652]</a> 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 £350,000;
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.<a name="FNanchor_653" id="FNanchor_653" href="#Footnote_653" class="fnanchor">[653]</a></p>

<p>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
<span class="pagenum"><a name="Page_362" id="Page_362">362</a></span>
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."<a name="FNanchor_654" id="FNanchor_654" href="#Footnote_654" class="fnanchor">[654]</a></p>

<p>The king, a very few days afterwards gave his <i>first</i> 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.<a name="FNanchor_655" id="FNanchor_655" href="#Footnote_655" class="fnanchor">[655]</a> But instances of such ill faith, accumulated
as they are through the life of Charles, render the assertion of
<span class="pagenum"><a name="Page_363" id="Page_363">363</a></span>
his sincerity a proof either of historical ignorance, or of a want
of moral delicacy.</p>

<p>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."<a name="FNanchor_656" id="FNanchor_656" href="#Footnote_656" class="fnanchor">[656]</a></p>

<p><i>Tonnage and poundage disputed.</i>&mdash;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
<span class="pagenum"><a name="Page_364" id="Page_364">364</a></span>
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.<a name="FNanchor_657" id="FNanchor_657" href="#Footnote_657" class="fnanchor">[657]</a></p>

<p>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.<a name="FNanchor_658" id="FNanchor_658" href="#Footnote_658" class="fnanchor">[658]</a> 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.<a name="FNanchor_659" id="FNanchor_659" href="#Footnote_659" class="fnanchor">[659]</a> 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,
<span class="pagenum"><a name="Page_365" id="Page_365">365</a></span>
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.</p>

<p><i>Religious differences.</i>&mdash;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;<a name="FNanchor_660" id="FNanchor_660" href="#Footnote_660" class="fnanchor">[660]</a> 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
<span class="pagenum"><a name="Page_366" id="Page_366">366</a></span>
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.</p>

<p><i>Growth of high church tenets.</i>&mdash;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;<a name="FNanchor_661" id="FNanchor_661" href="#Footnote_661" class="fnanchor">[661]</a> a
<span class="pagenum"><a name="Page_367" id="Page_367">367</a></span>
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.</p>

<p><i>Differences as to the observance of Sunday.</i>&mdash;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.<a name="FNanchor_662" id="FNanchor_662" href="#Footnote_662" class="fnanchor">[662]</a> 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.<a name="FNanchor_663" id="FNanchor_663" href="#Footnote_663" class="fnanchor">[663]</a> Those who opposed them
<span class="pagenum"><a name="Page_368" id="Page_368">368</a></span>
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.<a name="FNanchor_664" id="FNanchor_664" href="#Footnote_664" class="fnanchor">[664]</a> Such
<span class="pagenum"><a name="Page_369" id="Page_369">369</a></span>
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
<span class="pagenum"><a name="Page_370" id="Page_370">370</a></span>
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.<a name="FNanchor_665" id="FNanchor_665" href="#Footnote_665" class="fnanchor">[665]</a> 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.</p>

<p>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.<a name="FNanchor_666" id="FNanchor_666" href="#Footnote_666" class="fnanchor">[666]</a>
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.<a name="FNanchor_667" id="FNanchor_667" href="#Footnote_667" class="fnanchor">[667]</a> The use of the word Sabbath
<span class="pagenum"><a name="Page_371" id="Page_371">371</a></span>
instead of Sunday became in that age a distinctive mark of the
puritan party.</p>

<p><i>Arminian controversy.</i>&mdash;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.</p>

<p>The force of those conclusions, which we must, in my judgment,
<span class="pagenum"><a name="Page_372" id="Page_372">372</a></span>
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.<a name="FNanchor_668" id="FNanchor_668" href="#Footnote_668" class="fnanchor">[668]</a> The works of Calvin and Bullinger became textbooks
in the English universities.<a name="FNanchor_669" id="FNanchor_669" href="#Footnote_669" class="fnanchor">[669]</a> Those who did not hold the
predestinarian theory were branded with reproach by the names
of free-willers and Pelagians.<a name="FNanchor_670" id="FNanchor_670" href="#Footnote_670" class="fnanchor">[670]</a> 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.<a name="FNanchor_671" id="FNanchor_671" href="#Footnote_671" class="fnanchor">[671]</a></p>

<p>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.<a name="FNanchor_672" id="FNanchor_672" href="#Footnote_672" class="fnanchor">[672]</a> 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.<a name="FNanchor_673" id="FNanchor_673" href="#Footnote_673" class="fnanchor">[673]</a> He not
<span class="pagenum"><a name="Page_373" id="Page_373">373</a></span>
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.<a name="FNanchor_674" id="FNanchor_674" href="#Footnote_674" class="fnanchor">[674]</a> 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.<a name="FNanchor_675" id="FNanchor_675" href="#Footnote_675" class="fnanchor">[675]</a>
<span class="pagenum"><a name="Page_374" id="Page_374">374</a></span></p>

<p>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.</p>

<p><i>State of catholics under James.</i>&mdash;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.<a name="FNanchor_676" id="FNanchor_676" href="#Footnote_676" class="fnanchor">[676]</a> Some knowledge of
<span class="pagenum"><a name="Page_375" id="Page_375">375</a></span>
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.<a name="FNanchor_677" id="FNanchor_677" href="#Footnote_677" class="fnanchor">[677]</a> The administration took a
sudden turn towards severity; the prisons were filled, the
<span class="pagenum"><a name="Page_376" id="Page_376">376</a></span>
penalties exacted, several suffered death,<a name="FNanchor_678" id="FNanchor_678" href="#Footnote_678" class="fnanchor">[678]</a> 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.<a name="FNanchor_679" id="FNanchor_679" href="#Footnote_679" class="fnanchor">[679]</a> We cannot wonder that a parliament
<span class="pagenum"><a name="Page_377" id="Page_377">377</a></span>
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 £20 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 præmunire. This imported that, notwithstanding any
sentence of deprivation or excommunication by the pope, the
taker would bear true allegiance to the king, and defend him
against any conspiracies which should be made by reason of
such sentence or otherwise, and do his best endeavour to disclose
them; that he from his heart abhorred, detested, and
abjured as impious and heretical, the damnable doctrine and
position that princes, excommunicated or deprived by the pope,
may be deposed or murdered by their subjects, or any other
whatsoever; and that he did not believe that the pope or any
other could absolve him from this oath.<a name="FNanchor_680" id="FNanchor_680" href="#Footnote_680" class="fnanchor">[680]</a></p>

<p>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
<span class="pagenum"><a name="Page_378" id="Page_378">378</a></span>
judicious men.<a name="FNanchor_681" id="FNanchor_681" href="#Footnote_681" class="fnanchor">[681]</a> 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;<a name="FNanchor_682" id="FNanchor_682" href="#Footnote_682" class="fnanchor">[682]</a> 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.<a name="FNanchor_683" id="FNanchor_683" href="#Footnote_683" class="fnanchor">[683]</a></p>

<p>In the course, however, of that impolitic negotiation, which
exposed him to all eyes as the dupe and tool of the court of
<span class="pagenum"><a name="Page_379" id="Page_379">379</a></span>
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.<a name="FNanchor_684" id="FNanchor_684" href="#Footnote_684" class="fnanchor">[684]</a> 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,
<span class="pagenum"><a name="Page_380" id="Page_380">380</a></span>
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.<a name="FNanchor_685" id="FNanchor_685" href="#Footnote_685" class="fnanchor">[685]</a> 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.<a name="FNanchor_686" id="FNanchor_686" href="#Footnote_686" class="fnanchor">[686]</a></p>

<p>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
<span class="pagenum"><a name="Page_381" id="Page_381">381</a></span>
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.<a name="FNanchor_687" id="FNanchor_687" href="#Footnote_687" class="fnanchor">[687]</a></p>

<p>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.<a name="FNanchor_688" id="FNanchor_688" href="#Footnote_688" class="fnanchor">[688]</a> 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."<a name="FNanchor_689" id="FNanchor_689" href="#Footnote_689" class="fnanchor">[689]</a>
<span class="pagenum"><a name="Page_382" id="Page_382">382</a></span></p>

<p>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.<a name="FNanchor_690" id="FNanchor_690" href="#Footnote_690" class="fnanchor">[690]</a>
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.<a name="FNanchor_691" id="FNanchor_691" href="#Footnote_691" class="fnanchor">[691]</a> 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.<a name="FNanchor_692" id="FNanchor_692" href="#Footnote_692" class="fnanchor">[692]</a> These promises were irregularly fulfilled,
<span class="pagenum"><a name="Page_383" id="Page_383">383</a></span>
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
<span class="pagenum"><a name="Page_384" id="Page_384">384</a></span>
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.<a name="FNanchor_693" id="FNanchor_693" href="#Footnote_693" class="fnanchor">[693]</a> 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.</p>

<p>It was neither, however, the Arminian opinions of the higher
clergy, nor even their supposed leaning towards those of Rome,
<span class="pagenum"><a name="Page_385" id="Page_385">385</a></span>
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.<a name="FNanchor_694" id="FNanchor_694" href="#Footnote_694" class="fnanchor">[694]</a> 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,
<span class="pagenum"><a name="Page_386" id="Page_386">386</a></span>
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!<a name="FNanchor_695" id="FNanchor_695" href="#Footnote_695" class="fnanchor">[695]</a></p>

<p>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."<a name="FNanchor_696" id="FNanchor_696" href="#Footnote_696" class="fnanchor">[696]</a> 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
<span class="pagenum"><a name="Page_387" id="Page_387">387</a></span>
to a country-house in Kent.<a name="FNanchor_697" id="FNanchor_697" href="#Footnote_697" class="fnanchor">[697]</a> 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 £1000, 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.<a name="FNanchor_698" id="FNanchor_698" href="#Footnote_698" class="fnanchor">[698]</a></p>

<p><i>General remarks.</i>&mdash;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
<span class="pagenum"><a name="Page_388" id="Page_388">388</a></span>
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.<a name="FNanchor_699" id="FNanchor_699" href="#Footnote_699" class="fnanchor">[699]</a> 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.</p>

<p class="p6 center">THE TEMPLE PRESS, PRINTERS, LETCHWORTH</p>

<div class="footnotes p6">
<h3>FOOTNOTES</h3>

<p class="footnote"><a name="Footnote_1" id="Footnote_1" href="#FNanchor_1"><span class="label">[1]</span></a> Cf. <i>Historical Essays and Studies</i>, vol. ii. p. 505</p>

<p class="footnote"><a name="Footnote_2" id="Footnote_2" href="#FNanchor_2"><span class="label">[2]</span></a> <i>Europe during the Middle Ages</i>, Chapter VIII. Part 3. I may remind the
reader that Hallam regarded his <i>Constitutional History</i> 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.</p>

<p class="footnote"><a name="Footnote_3" id="Footnote_3" href="#FNanchor_3"><span class="label">[3]</span></a> <i>English Law at the Renaissance</i>, p. 27.</p>

<p class="footnote"><a name="Footnote_4" id="Footnote_4" href="#FNanchor_4"><span class="label">[4]</span></a> <i>Middle Ages</i> (12th ed.), ii. p. 267.</p>

<p class="footnote"><a name="Footnote_5" id="Footnote_5" href="#FNanchor_5"><span class="label">[5]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_6" id="Footnote_6" href="#FNanchor_6"><span class="label">[6]</span></a> The pleadings, as they are called, or written allegations of both parties,
which form the basis of a judicial enquiry, commence with the <i>declaration</i>,
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 <i>plea</i>; which, if it amount to a denial of the facts alleged in the
declaration, must <i>conclude to the country</i>, 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 <i>conclude to the court</i>; the effect of which
is to make it necessary for the plaintiff to reply; in which <i>replication</i> 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 <i>postea</i>, that is, an indorsement by the clerk
of the court wherein the trial has been, reciting that <i>afterwards</i> the cause
was so tried, and such a verdict returned, with the subsequent entry of
the judgment itself, form the record.</p>

<p class="footnote">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&mdash;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 <i>ejectment</i>, <i>general</i>
<i>assumpsit</i>, and <i>trover</i>; 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.</p>

<p class="footnote"><a name="Footnote_7" id="Footnote_7" href="#FNanchor_7"><span class="label">[7]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_8" id="Footnote_8" href="#FNanchor_8"><span class="label">[8]</span></a> <i>Rot. Parl.</i> vi. 270. But the pope's bull of dispensation for the king's
marriage speaks of the realm of England as "jure hæreditario ad te
legitimum in illo prædecessorum tuorum successorem pertinens." Rymer,
xii. 294. And all Henry's own instruments claim an hereditary right, of
which many proofs appear in Rymer.</p>

<p class="footnote"><a name="Footnote_9" id="Footnote_9" href="#FNanchor_9"><span class="label">[9]</span></a> Stat. 11 H. 7, c. 1.</p>

<p class="footnote"><a name="Footnote_10" id="Footnote_10" href="#FNanchor_10"><span class="label">[10]</span></a> Blackstone (vol. iv. c. 6) has some rather perplexed reasoning on this
statute, leaning a little towards the <i>de jure</i> doctrine, and at best confounding
<i>moral</i> with <i>legal</i> 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 <i>de jure</i>, but excuses the obedience paid to a king <i>de facto</i>.</p>

<p class="footnote"><a name="Footnote_11" id="Footnote_11" href="#FNanchor_11"><span class="label">[11]</span></a> For these observations on the statute of Fines, I am principally
indebted to Reeves's <i>History of the English Law</i> (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.</p>

<p class="footnote">The principle of breaking down the statute <i>de donis</i> 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. <i>Id.</i> p. 159, from the year-book.</p>

<p class="footnote"><a name="Footnote_12" id="Footnote_12" href="#FNanchor_12"><span class="label">[12]</span></a> 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 <i>Eccles. Biography</i>, ii.
66. This story is also told by Roper.</p>

<p class="footnote"><a name="Footnote_13" id="Footnote_13" href="#FNanchor_13"><span class="label">[13]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_14" id="Footnote_14" href="#FNanchor_14"><span class="label">[14]</span></a> Hall, 502.</p>

<p class="footnote"><a name="Footnote_15" id="Footnote_15" href="#FNanchor_15"><span class="label">[15]</span></a> Turner's <i>History of England</i>, iii. 628, from a MS. document. A vast
number of persons paid fines for their share in the western rebellion of
1497, from £200 down to 20<i>s.</i> Hall, 486. Ellis's <i>Letters illustrative of
English History</i>, i. 38.</p>

<p class="footnote"><a name="Footnote_16" id="Footnote_16" href="#FNanchor_16"><span class="label">[16]</span></a> 1 H. 8, c. 8.</p>

<p class="footnote"><a name="Footnote_17" id="Footnote_17" href="#FNanchor_17"><span class="label">[17]</span></a> 2 H. 7, c. 3. Rep. 1 H. 8, c. 6.</p>

<p class="footnote"><a name="Footnote_18" id="Footnote_18" href="#FNanchor_18"><span class="label">[18]</span></a> 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;&mdash;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.</p>

<p class="footnote"><a name="Footnote_19" id="Footnote_19" href="#FNanchor_19"><span class="label">[19]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_20" id="Footnote_20" href="#FNanchor_20"><span class="label">[20]</span></a> Roper's <i>Life of More</i>; 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."</p>

<p class="footnote">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.</p>

<p class="footnote">"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 <i>Eccles. Memorials</i>, vol. i. p. 49. This
is also printed in Ellis's <i>Letters illustrative of English History</i>, i. 220.</p>

<p class="footnote"><a name="Footnote_21" id="Footnote_21" href="#FNanchor_21"><span class="label">[21]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_22" id="Footnote_22" href="#FNanchor_22"><span class="label">[22]</span></a> Hall, 645. This chronicler says the laity were assessed at a tenth
part. But this was only so of the smaller estates, namely, from £20 to
£300; for from £300 to £1000 the contribution demanded was twenty
marks for each £100, and for an estate of £1000, 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."&mdash;<i>Ib.</i> "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 &mdash;&mdash;, 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 &mdash;&mdash; day of &mdash;&mdash;, the fourteenth year of our
reign."&mdash;<i>Ib.</i> The rate fixed on the clergy I collect by analogy, from that
imposed in 1525, which I find in another manuscript letter.</p>

<p class="footnote"><a name="Footnote_23" id="Footnote_23" href="#FNanchor_23"><span class="label">[23]</span></a> 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.</p>

<p class="footnote">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."</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_24" id="Footnote_24" href="#FNanchor_24"><span class="label">[24]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_25" id="Footnote_25" href="#FNanchor_25"><span class="label">[25]</span></a> Hall, 699.</p>

<p class="footnote"><a name="Footnote_26" id="Footnote_26" href="#FNanchor_26"><span class="label">[26]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_27" id="Footnote_27" href="#FNanchor_27"><span class="label">[27]</span></a> <i>Rot. Parl.</i> 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."&mdash;P. 767.</p>

<p class="footnote"><a name="Footnote_28" id="Footnote_28" href="#FNanchor_28"><span class="label">[28]</span></a> Stat. 35 H. 8, c. 12. I find in a manuscript, which seems to have been
copied from an original in the exchequer, that the monies thus received by
way of loan in 1543 amounted to £110,147 15<i>s.</i> 8<i>d.</i> There was also a sum
called <i>devotion money</i>, amounting only to £1,093 8<i>s.</i> 3<i>d.</i>, levied in 1544,
"of the devotion of his highnesse's subjects for <i>Defence of Christendom
against the Turk</i>.</p>

<p class="footnote"><a name="Footnote_29" id="Footnote_29" href="#FNanchor_29"><span class="label">[29]</span></a> Lodge's <i>Illustrations of British History</i>, i. 711; Strype's <i>Eccles.
Memorials</i>, Appendix, n. 119. The sums raised from different counties
for this benevolence afford a sort of criterion of their relative opulence.
Somerset gave £6807; Kent £6471; Suffolk £4512; Norfolk £4046;
Devon £4527; Essex £5051; but Lancaster only £660; and Cumberland,
£574. The whole produced £119,581 7<i>s.</i> 6<i>d.</i> besides arrears. In Haynes's
<i>State Papers</i>, 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.</p>

<p class="footnote"><a name="Footnote_30" id="Footnote_30" href="#FNanchor_30"><span class="label">[30]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_31" id="Footnote_31" href="#FNanchor_31"><span class="label">[31]</span></a> Rhymer, xv. 84. These commissions bearing date 5th January 1546.</p>

<p class="footnote"><a name="Footnote_32" id="Footnote_32" href="#FNanchor_32"><span class="label">[32]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_33" id="Footnote_33" href="#FNanchor_33"><span class="label">[33]</span></a> Several letters that passed between the council and Duke of Norfolk
(<i>Hardwicke State Papers</i>, 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."&mdash;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
<i>et alibi</i>. 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.</p>

<p class="footnote"><a name="Footnote_34" id="Footnote_34" href="#FNanchor_34"><span class="label">[34]</span></a> 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. <i>Life of Pole</i>, sect. 3.</p>

<p class="footnote"><a name="Footnote_35" id="Footnote_35" href="#FNanchor_35"><span class="label">[35]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_36" id="Footnote_36" href="#FNanchor_36"><span class="label">[36]</span></a> 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 attincturæ Thomæ Comitis Essex, et communi
omnium procerum tunc præsentium 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 h<sup>a</sup>ac sessione cum proceres darent suffragia,
et dicerent sententias super actibus prædictis, 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.</p>

<p class="footnote"><a name="Footnote_37" id="Footnote_37" href="#FNanchor_37"><span class="label">[37]</span></a> 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 <i>Letters</i>, 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 <i>Life of Wolsey</i>, p. 103, edit. 1667, strongly displays her
indiscretion.</p>

<p class="footnote">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 <i>Hist.
of England</i>, 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.</p>

<p class="footnote">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.</p>

<p class="footnote">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. <i>Odit damnatos.</i> 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.</p>

<p class="footnote"><a name="Footnote_38" id="Footnote_38" href="#FNanchor_38"><span class="label">[38]</span></a> 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 <i>alter</i> 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.</p>

<p class="footnote"><a name="Footnote_39" id="Footnote_39" href="#FNanchor_39"><span class="label">[39]</span></a> 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.</p>

<p class="footnote">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."&mdash;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>i.e.</i> wish to insinuate] both were sacrificed to the
manes of Anne Boleyn.</p>

<p class="footnote"><a name="Footnote_40" id="Footnote_40" href="#FNanchor_40"><span class="label">[40]</span></a> Stat. 26 H. 8, c. 13.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_41" id="Footnote_41" href="#FNanchor_41"><span class="label">[41]</span></a> 22 H. 8, c. 18.</p>

<p class="footnote"><a name="Footnote_42" id="Footnote_42" href="#FNanchor_42"><span class="label">[42]</span></a> 28 H. 8, c. 7.</p>

<p class="footnote"><a name="Footnote_43" id="Footnote_43" href="#FNanchor_43"><span class="label">[43]</span></a> 35 H. 8, c. 1.</p>

<p class="footnote"><a name="Footnote_44" id="Footnote_44" href="#FNanchor_44"><span class="label">[44]</span></a> 28 H. 8, c. 17.</p>

<p class="footnote"><a name="Footnote_45" id="Footnote_45" href="#FNanchor_45"><span class="label">[45]</span></a> 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
<i>what a king by his royal power might do</i>, 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.</p>

<p class="footnote"><a name="Footnote_46" id="Footnote_46" href="#FNanchor_46"><span class="label">[46]</span></a> 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:</p>

<div class="poem">
<p class="footnote"><span class="i15">"the majestic lord,</span></p>
<p class="footnote"><span class="i10">Who broke the bonds of Rome."</span></p>
</div>

<p class="footnote">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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_47" id="Footnote_47" href="#FNanchor_47"><span class="label">[47]</span></a> 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 æra.</p>

<p class="footnote"><a name="Footnote_48" id="Footnote_48" href="#FNanchor_48"><span class="label">[48]</span></a> 2 Strype, 147, 341, 491.</p>

<p class="footnote"><a name="Footnote_49" id="Footnote_49" href="#FNanchor_49"><span class="label">[49]</span></a> <i>Id.</i> 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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_50" id="Footnote_50" href="#FNanchor_50"><span class="label">[50]</span></a> 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 <i>Letters</i>, ii. 150.</p>

<p class="footnote"><a name="Footnote_51" id="Footnote_51" href="#FNanchor_51"><span class="label">[51]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_52" id="Footnote_52" href="#FNanchor_52"><span class="label">[52]</span></a> Stat. 5 and 6 Edw. VI., c. 11, s. 12.</p>

<p class="footnote"><a name="Footnote_53" id="Footnote_53" href="#FNanchor_53"><span class="label">[53]</span></a> 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."</p>

<p class="footnote">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 <i>Lady Jane and her heirs male</i>; then to
the heirs male of Lady Katharine; and in every instance, except Jane,
excluding the female herself. Strype's <i>Cranmer</i>, 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 <i>Memoirs of Lord
Burghley</i>, 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.</p>

<p class="footnote"><a name="Footnote_54" id="Footnote_54" href="#FNanchor_54"><span class="label">[54]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_55" id="Footnote_55" href="#FNanchor_55"><span class="label">[55]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_56" id="Footnote_56" href="#FNanchor_56"><span class="label">[56]</span></a> Carte, 330.</p>

<p class="footnote"><a name="Footnote_57" id="Footnote_57" href="#FNanchor_57"><span class="label">[57]</span></a> Haynes, 195; Burnet, ii. Appendix, 256, iii. 243.</p>

<p class="footnote"><a name="Footnote_58" id="Footnote_58" href="#FNanchor_58"><span class="label">[58]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_59" id="Footnote_59" href="#FNanchor_59"><span class="label">[59]</span></a> Strype, iii. 459.</p>

<p class="footnote"><a name="Footnote_60" id="Footnote_60" href="#FNanchor_60"><span class="label">[60]</span></a> 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, <i>passim</i>;
but with some degree of allowance for his own antipathy to her.</p>

<p class="footnote"><a name="Footnote_61" id="Footnote_61" href="#FNanchor_61"><span class="label">[61]</span></a> Burnet, i. 117. The king refused his assent to a bill which had passed
both houses, but apparently not of a political nature. <i>Lords' Journals</i>,
p. 162.</p>

<p class="footnote"><a name="Footnote_62" id="Footnote_62" href="#FNanchor_62"><span class="label">[62]</span></a> Burnet, 190.</p>

<p class="footnote"><a name="Footnote_63" id="Footnote_63" href="#FNanchor_63"><span class="label">[63]</span></a> <i>Id.</i> 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.</p>

<p class="footnote"><a name="Footnote_64" id="Footnote_64" href="#FNanchor_64"><span class="label">[64]</span></a> Carte, 311, 322; Noailles, v. 252. He says that she committed some
knights to the Tower for their language in the house. <i>Id.</i> 247. Burnet,
p. 324, mentions the same.</p>

<p class="footnote"><a name="Footnote_65" id="Footnote_65" href="#FNanchor_65"><span class="label">[65]</span></a> 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 <i>Life of Pole</i>.
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.</p>

<p class="footnote"><a name="Footnote_66" id="Footnote_66" href="#FNanchor_66"><span class="label">[66]</span></a> Noailles, vol. 5, <i>passim</i>.</p>

<p class="footnote"><a name="Footnote_67" id="Footnote_67" href="#FNanchor_67"><span class="label">[67]</span></a> Strype, ii. 394.</p>

<p class="footnote"><a name="Footnote_68" id="Footnote_68" href="#FNanchor_68"><span class="label">[68]</span></a> Strype, iii. 155; Burnet, ii. 228.</p>

<p class="footnote"><a name="Footnote_69" id="Footnote_69" href="#FNanchor_69"><span class="label">[69]</span></a> Burnet, ii. 262, 277.</p>

<p class="footnote"><a name="Footnote_70" id="Footnote_70" href="#FNanchor_70"><span class="label">[70]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_71" id="Footnote_71" href="#FNanchor_71"><span class="label">[71]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_72" id="Footnote_72" href="#FNanchor_72"><span class="label">[72]</span></a> <i>View of Middle Ages</i>, 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.</p>

<p class="footnote"><a name="Footnote_73" id="Footnote_73" href="#FNanchor_73"><span class="label">[73]</span></a> <i>Commonwealth of England</i>, 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.</p>

<p class="footnote"><a name="Footnote_74" id="Footnote_74" href="#FNanchor_74"><span class="label">[74]</span></a> <i>State Trials</i>, i. 901; Strype, ii. 120. In a letter to the Duke of Norfolk
(<i>Hardwicke Papers</i>, 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.</p>

<p class="footnote"><a name="Footnote_75" id="Footnote_75" href="#FNanchor_75"><span class="label">[75]</span></a> <i>Hale's Jurisdiction of the Lords' House</i>, 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 <i>Treatise of the Court
of Star-chamber</i>, 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."
<i>Collectanea Juridica</i>, 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. <i>Ibid.</i></p>

<p class="footnote"><a name="Footnote_76" id="Footnote_76" href="#FNanchor_76"><span class="label">[76]</span></a> 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 <i>by the king's council in his star-chamber</i>, 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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_77" id="Footnote_77" href="#FNanchor_77"><span class="label">[77]</span></a> 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."&mdash;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."&mdash;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.</p>

<p class="footnote">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.</p>

<p class="footnote">Mr. Brodie, in his <i>History of the British Empire under Charles I.</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.</p>

<p class="footnote">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.</p>
<p class="footnote"><a name="Footnote_78" id="Footnote_78" href="#FNanchor_78"><span class="label">[78]</span></a> <i>Commonwealth of England</i>, 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 <i>Illustrations</i>, 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.</p>

<p class="footnote"><a name="Footnote_79" id="Footnote_79" href="#FNanchor_79"><span class="label">[79]</span></a> Plowden's <i>Commentaries,</i> 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.</p>

<p class="footnote"><a name="Footnote_80" id="Footnote_80" href="#FNanchor_80"><span class="label">[80]</span></a> <i>Hist. of Henry VII.</i> in Bacon's works, ii. p. 290.</p>

<p class="footnote"><a name="Footnote_81" id="Footnote_81" href="#FNanchor_81"><span class="label">[81]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_82" id="Footnote_82" href="#FNanchor_82"><span class="label">[82]</span></a> Burnet, ii. 324.</p>

<p class="footnote"><a name="Footnote_83" id="Footnote_83" href="#FNanchor_83"><span class="label">[83]</span></a> Burnet. Reeves's <i>History of the Law</i>, 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 periculosissimæ seditiones inter
clericam et secularem potestatem.</p>

<p class="footnote"><a name="Footnote_84" id="Footnote_84" href="#FNanchor_84"><span class="label">[84]</span></a> 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 <i>Necessary Erudition of a
Christian Man</i>, full of interlineations by the king.</p>

<p class="footnote"><a name="Footnote_85" id="Footnote_85" href="#FNanchor_85"><span class="label">[85]</span></a> 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 præceps," which was true,
he adds, "invitantibus iis qui majestati tuæ 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 tuâ levare,
qui passus sim levitate istâ me moveri in talem tantumque regem per
malignos istos operarios; præsertim cum sim f&oelig;x 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.</p>

<p class="footnote"><a name="Footnote_86" id="Footnote_86" href="#FNanchor_86"><span class="label">[86]</span></a> Collier, vol. ii. Appendix, No. 2. In the <i>Hardwicke Papers</i>, 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.</p>

<p class="footnote"><a name="Footnote_87" id="Footnote_87" href="#FNanchor_87"><span class="label">[87]</span></a> See Burnet, Lingard, Turner, and the letters lately printed in State
Papers, temp. Henry VIII. pp. 194, 196.</p>

<p class="footnote"><a name="Footnote_88" id="Footnote_88" href="#FNanchor_88"><span class="label">[88]</span></a> 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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_89" id="Footnote_89" href="#FNanchor_89"><span class="label">[89]</span></a> 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 <i>Archæologia</i>, vol. xviii., and in Ellis's <i>Letters</i>, 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.</p>

<p class="footnote"><a name="Footnote_90" id="Footnote_90" href="#FNanchor_90"><span class="label">[90]</span></a> The principal authority on the story of Henry's divorce from Catherine
is Burnet, in the first and third volumes of his <i>History of the Reformation</i>;
the latter correcting the former from additional documents. Strype, in
his <i>Ecclesiastical Memorials</i>, 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.</p>

<p class="footnote">This is not altogether immaterial; for Catherine's appeal to Henry,
de integritate corporis usque ad secundas nuptias servatâ, 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.</p>

<p class="footnote"><a name="Footnote_91" id="Footnote_91" href="#FNanchor_91"><span class="label">[91]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_92" id="Footnote_92" href="#FNanchor_92"><span class="label">[92]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_93" id="Footnote_93" href="#FNanchor_93"><span class="label">[93]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_94" id="Footnote_94" href="#FNanchor_94"><span class="label">[94]</span></a> Burnet, iii. 44; and App. 24.</p>

<p class="footnote"><a name="Footnote_95" id="Footnote_95" href="#FNanchor_95"><span class="label">[95]</span></a> Conf. Burnet, i. 94, and App. No. 35; Strype, i. 230; Sleidan, <i>Hist.
de la Réformation</i> (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,
<i>Hist. des Var. des Egl. Protest</i>. 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.</p>

<p class="footnote"><a name="Footnote_96" id="Footnote_96" href="#FNanchor_96"><span class="label">[96]</span></a> Strype, i. 151 <i>et alibi</i>.</p>

<p class="footnote"><a name="Footnote_97" id="Footnote_97" href="#FNanchor_97"><span class="label">[97]</span></a> Strype, <i>passim</i>. 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.</p>

<p class="footnote"><a name="Footnote_98" id="Footnote_98" href="#FNanchor_98"><span class="label">[98]</span></a> Burnet, 188. For the methods by which the regulars acquired wealth,
fair and unfair, I may be allowed to refer to the <i>View of the Middle Ages</i>,
ch. 7, or rather to the sources from which the sketch there given was derived.</p>

<p class="footnote"><a name="Footnote_99" id="Footnote_99" href="#FNanchor_99"><span class="label">[99]</span></a> Harmer's <i>Specimens of Errors in Burnet</i>.</p>

<p class="footnote"><a name="Footnote_100" id="Footnote_100" href="#FNanchor_100"><span class="label">[100]</span></a> Strype, i. Append. 19.</p>

<p class="footnote"><a name="Footnote_101" id="Footnote_101" href="#FNanchor_101"><span class="label">[101]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_102" id="Footnote_102" href="#FNanchor_102"><span class="label">[102]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_103" id="Footnote_103" href="#FNanchor_103"><span class="label">[103]</span></a> Burnet, 190; Strype, i. ch. 35, see especially p. 257; Ellis's <i>Letters</i>,
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
<i>British Monachism, passim</i>.</p>

<p class="footnote"><a name="Footnote_104" id="Footnote_104" href="#FNanchor_104"><span class="label">[104]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_105" id="Footnote_105" href="#FNanchor_105"><span class="label">[105]</span></a> <i>Id. ibid.</i> 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 £266 to £6 per
annum. The priors of cells received generally £13. A few, whose services
had merited the distinction, obtained £20. To the other monks were
allotted 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 £4. 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.</p>

<p class="footnote"><a name="Footnote_106" id="Footnote_106" href="#FNanchor_106"><span class="label">[106]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_107" id="Footnote_107" href="#FNanchor_107"><span class="label">[107]</span></a> Burnet, i. Append. 96.</p>

<p class="footnote"><a name="Footnote_108" id="Footnote_108" href="#FNanchor_108"><span class="label">[108]</span></a> P. 268. Dr. Lingard, on the authority of Nasmith's edition of Tanner's
<i>Notitia Monastica</i>, puts the annual revenue of all the monastic houses at
£142,914. This would only be one-twentieth part of the rental of the
kingdom, if Hume were right in estimating that at three millions. But
this is certainly by much too high. The author of Harmer's <i>Observations
on Burnet</i>, 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.</p>

<p class="footnote">According to a valuation in Speed's <i>Catalogue of Religious Houses,
apud</i> Collier, Append. p. 34, sixteen mitred abbots had revenues above
£1000 per annum. St. Peter's, Westminster, was the richest, and valued
at £3977, Glastonbury at £3508, St. Alban's at £2510, etc.</p>

<p class="footnote"><a name="Footnote_109" id="Footnote_109" href="#FNanchor_109"><span class="label">[109]</span></a> 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 <i>Annals</i>, i. 68, 97.</p>

<p class="footnote"><a name="Footnote_110" id="Footnote_110" href="#FNanchor_110"><span class="label">[110]</span></a> 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&mdash;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.</p>

<p class="footnote"><a name="Footnote_111" id="Footnote_111" href="#FNanchor_111"><span class="label">[111]</span></a> Burnet, i. 223.</p>

<p class="footnote"><a name="Footnote_112" id="Footnote_112" href="#FNanchor_112"><span class="label">[112]</span></a> 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 <i>cy près</i>, 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.</p>

<p class="footnote"><a name="Footnote_113" id="Footnote_113" href="#FNanchor_113"><span class="label">[113]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_114" id="Footnote_114" href="#FNanchor_114"><span class="label">[114]</span></a> The <i>Institution</i> was printed in 1537; the <i>Erudition</i>, 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.</p>

<p class="footnote"><a name="Footnote_115" id="Footnote_115" href="#FNanchor_115"><span class="label">[115]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_116" id="Footnote_116" href="#FNanchor_116"><span class="label">[116]</span></a> The accounts of early editions of the English Bible in Burnet, Collier,
Strype, and an essay by Johnson in Watson's <i>Theological Tracts,</i> 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.</p>

<p class="footnote">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 <i>ecclesia</i> 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.</p>

<p class="footnote"><a name="Footnote_117" id="Footnote_117" href="#FNanchor_117"><span class="label">[117]</span></a> Burnet, 318; Strype's <i>Life of Parker</i>, 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 <i>History of Reformation in Low Countries</i>,
vol. i. p. 128.</p>

<p class="footnote"><a name="Footnote_118" id="Footnote_118" href="#FNanchor_118"><span class="label">[118]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_119" id="Footnote_119" href="#FNanchor_119"><span class="label">[119]</span></a> 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
<i>Annals</i>, ii. 39; Hollingshed, iii, 921 (4to edition).</p>

<p class="footnote"><a name="Footnote_120" id="Footnote_120" href="#FNanchor_120"><span class="label">[120]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_121" id="Footnote_121" href="#FNanchor_121"><span class="label">[121]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_122" id="Footnote_122" href="#FNanchor_122"><span class="label">[122]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_123" id="Footnote_123" href="#FNanchor_123"><span class="label">[123]</span></a> Nostra sententia est, says Luther, <i>apud</i> 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.</p>

<p class="footnote"><a name="Footnote_124" id="Footnote_124" href="#FNanchor_124"><span class="label">[124]</span></a> "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.</p>

<p class="footnote"><a name="Footnote_125" id="Footnote_125" href="#FNanchor_125"><span class="label">[125]</span></a> 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 <i>Book of the Church</i>, 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.</p>

<p class="footnote"><a name="Footnote_126" id="Footnote_126" href="#FNanchor_126"><span class="label">[126]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_127" id="Footnote_127" href="#FNanchor_127"><span class="label">[127]</span></a> Stat. 2 and 3 Edw. VI. c. 21; 5 and 6 Edw. VI. c. 12; Burnet, 89.</p>

<p class="footnote"><a name="Footnote_128" id="Footnote_128" href="#FNanchor_128"><span class="label">[128]</span></a> 2 Strype, 53. Latimer pressed the necessity of expelling these temporising
conformists.&mdash;"Out with them all! I require it in God's behalf:
make them <i>quondams</i>, all the pack of them." <i>Id.</i> 204; 2 Burnet, 143.</p>

<p class="footnote"><a name="Footnote_129" id="Footnote_129" href="#FNanchor_129"><span class="label">[129]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_130" id="Footnote_130" href="#FNanchor_130"><span class="label">[130]</span></a> 2 Edward 6, c. 1; Strype, xi. 81.</p>

<p class="footnote"><a name="Footnote_131" id="Footnote_131" href="#FNanchor_131"><span class="label">[131]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_132" id="Footnote_132" href="#FNanchor_132"><span class="label">[132]</span></a> Strype, Burnet, Collier, <i>passim</i>; Harmer's <i>Specimens</i>, 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.</p>

<p class="footnote"><a name="Footnote_133" id="Footnote_133" href="#FNanchor_133"><span class="label">[133]</span></a> They declared, in the famous protestation of Spire, which gave them the
name of Protestants, that their preachers having confuted the mass by
passages 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, <i>Hist. des Allemands</i>,
vi. 394, vii. 24.</p>

<p class="footnote"><a name="Footnote_134" id="Footnote_134" href="#FNanchor_134"><span class="label">[134]</span></a> Stat. 2 and 3 Edw. 6, c. 1; Strype's <i>Cranmer</i>, p. 233.</p>

<p class="footnote"><a name="Footnote_135" id="Footnote_135" href="#FNanchor_135"><span class="label">[135]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_136" id="Footnote_136" href="#FNanchor_136"><span class="label">[136]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_137" id="Footnote_137" href="#FNanchor_137"><span class="label">[137]</span></a> 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. <i>Ambassades de Noailles</i>, 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
<span class="smcap">Gardiner</span>, in the <i>Biographia Britannica</i>, 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.</p>

<p class="footnote">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 <i>no rigour was used towards
them</i>." <i>Book of the Church</i>, ii. 111. Liberty and property being trifles.</p>

<p class="footnote"><a name="Footnote_138" id="Footnote_138" href="#FNanchor_138"><span class="label">[138]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_139" id="Footnote_139" href="#FNanchor_139"><span class="label">[139]</span></a> Strype's <i>Cranmer</i>, 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 <i>Cranmer's Defence of the True
Doctrine of the Sacrament</i> (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.</p>

<p class="footnote"><a name="Footnote_140" id="Footnote_140" href="#FNanchor_140"><span class="label">[140]</span></a> The character of Cranmer is summed up in no unfair manner by
Mr. C. Butler, <i>Memoirs of English Catholics</i>, 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.&mdash;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.</p>

<p class="footnote"><a name="Footnote_141" id="Footnote_141" href="#FNanchor_141"><span class="label">[141]</span></a> Burnet, ii. 6.</p>

<p class="footnote"><a name="Footnote_142" id="Footnote_142" href="#FNanchor_142"><span class="label">[142]</span></a> 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 suâ 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 ædem sacram cogere, neque cætera id genus munia ad
eos pertinentia exequi auderent. Hæc querela ab omnibus proceribus non
sine m&oelig;rore audita est; et ut quam citissimè huic malo subveniretur,
injunctum est episcopis ut formulam aliquam statuti hâc de re scriptam
traderent: quæ si consilio postea prælecta omnibus ordinibus probaretur,
pro lege omnibus sententiis sanciri posset.</p>

<p class="footnote">"18 November. Hodie lecta est billa pro jurisdictione episcoporum
et aliorum ecclesiasticorum, quæ cum proceribus, <i>eo quod episcopi nimis
sibi arrogare viderentur</i>, non placeret, visum est deligere prudentes aliquot
viros utriusque ordinis, qui habitâ maturâ tantæ 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.</p>

<p class="footnote"><a name="Footnote_143" id="Footnote_143" href="#FNanchor_143"><span class="label">[143]</span></a> 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 <i>Reformatio Legum Ecclesiasticûm</i>, 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 <i>Letters to Hurd</i>,
p. 192, with the latter's <i>Moral and Political Dialogues</i>, p. 308, 4th edit.</p>

<p class="footnote">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 hæreses, 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 <i>suffer death</i> according to law." The words
to which he refers are these: Cum sic penitus insederit error, et tam alte
radices egerit, ut nec sententiâ quidem excommunicationis ad veritatem
reus inflecti possit, tum consumptis omnibus aliis remediis, ad extremum
ad civiles magistratus ablegetur <i>puniendus</i>. <i>Id.</i> tit. c. 4.</p>

<p class="footnote">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 hæretico 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 hæresibus, c. 22, with a shade more of
Calvinism than in the articles) was to subject any one to be burned alive.
And on the other hand, there is this 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."</p>

<p class="footnote">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."</p>

<p class="footnote">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 <i>incompatibility of temper</i>. 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, <i>capitales inimicitiæ</i>, 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 <i>privilegia</i>, 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.</p>

<p class="footnote"><a name="Footnote_144" id="Footnote_144" href="#FNanchor_144"><span class="label">[144]</span></a> Strype, <i>passim</i>. Burnet, ii. 154; iii. Append. 200; Collier, 294, 303.</p>

<p class="footnote"><a name="Footnote_145" id="Footnote_145" href="#FNanchor_145"><span class="label">[145]</span></a> Strype, Burnet. The former is more accurate.</p>

<p class="footnote"><a name="Footnote_146" id="Footnote_146" href="#FNanchor_146"><span class="label">[146]</span></a> Burnet, 237, 246; 3 Strype, 10, 341. No part of England suffered so
much in the persecution.</p>

<p class="footnote"><a name="Footnote_147" id="Footnote_147" href="#FNanchor_147"><span class="label">[147]</span></a> <i>Ambassades de Noailles</i>, v. ii. <i>passim</i>. 3 Strype, 100.</p>

<p class="footnote"><a name="Footnote_148" id="Footnote_148" href="#FNanchor_148"><span class="label">[148]</span></a> Strype, iii. 107. He reckons the emigrants at 800. <i>Life of Cranmer</i>,
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.</p>

<p class="footnote">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 <i>for religion</i>; 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."&mdash;Fol.
176. This restitution of church lands in the hands of the Crown cost the
queen £60,000 a year of revenue.</p>

<p class="footnote"><a name="Footnote_149" id="Footnote_149" href="#FNanchor_149"><span class="label">[149]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_150" id="Footnote_150" href="#FNanchor_150"><span class="label">[150]</span></a> Burnet, ii. 298; iii. 245. But see Philips's <i>Life of Pole</i>, sect. ix. <i>contra</i>;
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.</p>

<p class="footnote"><a name="Footnote_151" id="Footnote_151" href="#FNanchor_151"><span class="label">[151]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_152" id="Footnote_152" href="#FNanchor_152"><span class="label">[152]</span></a> 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 <i>Treatise
de C&oelig;nâ Domini</i>, supposed to be Bishop Grindal, says that 800 suffered in
this manner for religion. Burnet, ii. 364. I incline, however, to the lower
statements.</p>

<p class="footnote"><a name="Footnote_153" id="Footnote_153" href="#FNanchor_153"><span class="label">[153]</span></a> 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."&mdash;P.
338. "Delicta majorum immeritus luis, <i>Romane</i>." 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.</p>

<p class="footnote">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 esté faite
la confirmation de 'alliance entre le pape et ce royaume par un sacrifice
publique et solemnel d'un docteur predicant nommé Rogerus, le quel a
eté brulé 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 assisté, le consolant de telle façon qu'il
semblait qu'on le menait aux noces."&mdash;V. 173.</p>

<p class="footnote"><a name="Footnote_154" id="Footnote_154" href="#FNanchor_154"><span class="label">[154]</span></a> Strype, iii. 285.</p>

<p class="footnote"><a name="Footnote_155" id="Footnote_155" href="#FNanchor_155"><span class="label">[155]</span></a> 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 è opinione che dissimuli e nell' interiore la
ritenga più che mai.</p>

<p class="footnote"><a name="Footnote_156" id="Footnote_156" href="#FNanchor_156"><span class="label">[156]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_157" id="Footnote_157" href="#FNanchor_157"><span class="label">[157]</span></a> 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 <i>Annals
of the Reformation</i>, or in the <i>Somers Tracts</i>.</p>

<p class="footnote"><a name="Footnote_158" id="Footnote_158" href="#FNanchor_158"><span class="label">[158]</span></a> <i>Parl. Hist.</i> 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.</p>

<p class="footnote"><a name="Footnote_159" id="Footnote_159" href="#FNanchor_159"><span class="label">[159]</span></a> Burnet; Strype's <i>Annals</i>, 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.</p>

<p class="footnote"><a name="Footnote_160" id="Footnote_160" href="#FNanchor_160"><span class="label">[160]</span></a> 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."</p>

<p class="footnote">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 <i>Somers Tracts</i>, edit. Scott, 73.</p>

<p class="footnote">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 <i>Memoirs of English
Catholics</i>, 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 <i>in toto</i> 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 (<i>Book of the Roman Catholic Church</i>, p. 120), seems to consider
even the appellant jurisdiction in ecclesiastical causes as vested in the
holy see by divine right.</p>

<p class="footnote">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&mdash;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.</p>

<p class="footnote"><a name="Footnote_161" id="Footnote_161" href="#FNanchor_161"><span class="label">[161]</span></a> 1 Eliz. c. 2.</p>

<p class="footnote"><a name="Footnote_162" id="Footnote_162" href="#FNanchor_162"><span class="label">[162]</span></a> Strype's <i>Annals</i>, i. 233, 241.</p>

<p class="footnote"><a name="Footnote_163" id="Footnote_163" href="#FNanchor_163"><span class="label">[163]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_164" id="Footnote_164" href="#FNanchor_164"><span class="label">[164]</span></a> Strype, 220.</p>

<p class="footnote"><a name="Footnote_165" id="Footnote_165" href="#FNanchor_165"><span class="label">[165]</span></a> 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.
<i>Mem. of Catholics</i>, i. 171.</p>

<p class="footnote"><a name="Footnote_166" id="Footnote_166" href="#FNanchor_166"><span class="label">[166]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_167" id="Footnote_167" href="#FNanchor_167"><span class="label">[167]</span></a> 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).</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_168" id="Footnote_168" href="#FNanchor_168"><span class="label">[168]</span></a> 5 Eliz. c. 1.</p>

<p class="footnote"><a name="Footnote_169" id="Footnote_169" href="#FNanchor_169"><span class="label">[169]</span></a> Strype, Collier, <i>Parliamentary History</i>. 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.</p>

<p class="footnote"><a name="Footnote_170" id="Footnote_170" href="#FNanchor_170"><span class="label">[170]</span></a> Strype's <i>Life of Parker</i>, 125.</p>

<p class="footnote"><a name="Footnote_171" id="Footnote_171" href="#FNanchor_171"><span class="label">[171]</span></a> Strype's <i>Annals</i>, 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 <i>Church History</i>, 178.</p>

<p class="footnote"><a name="Footnote_172" id="Footnote_172" href="#FNanchor_172"><span class="label">[172]</span></a> 8 Eliz. c. 1. Eleven peers dissented, all noted catholics, except the
Earl of Sussex. Strype, i. 492.</p>

<p class="footnote"><a name="Footnote_173" id="Footnote_173" href="#FNanchor_173"><span class="label">[173]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_174" id="Footnote_174" href="#FNanchor_174"><span class="label">[174]</span></a> Nobis vero factura est rem adeo gratam, ut omnem simus daturi
operam, quo possimus eam rem serenitati vestræ mutuis benevolentiæ et
fraterni animi studiis cumulatissimè compensare. See the letter in the
additions to the first volume of Strype's <i>Annals</i>, 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.</p>

<p class="footnote"><a name="Footnote_175" id="Footnote_175" href="#FNanchor_175"><span class="label">[175]</span></a> For the dispositions of Ferdinand and Maximilian towards religious
toleration in Austria, which indeed for a time existed, see F. Paul, <i>Concile
de Trente</i> (par Courayer), ii. 72, 197, 220, etc.; Schmidt, <i>Hist. des Allemands</i>,
viii. 120, 179, etc.; Flechier, <i>Vie de Commendom</i>, 388; or Coxe's <i>House of
Austria</i>.</p>

<p class="footnote"><a name="Footnote_176" id="Footnote_176" href="#FNanchor_176"><span class="label">[176]</span></a> Strype, 513, <i>et alibi</i>.</p>

<p class="footnote"><a name="Footnote_177" id="Footnote_177" href="#FNanchor_177"><span class="label">[177]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_178" id="Footnote_178" href="#FNanchor_178"><span class="label">[178]</span></a> Cum regina Maria moreretur, et religio in Angliâ mutaret, post episcopos
et prælatos 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 sanctæ sedis apostolicæ
auctoritatem, cum admodum parvo aut plane nullo conscientiarum suarum
scrupulo assuescerent. Frequentabant ergo hæreticorum synagogas, intererant
eorum concionibus, atque ad easdem etiam audiendas filios et
familiam suam compellabant. Videbatur illis ut catholici essent, sufficere
una cum hæreticis eorum templa non adire, ferri autem posse si ante vel
post illos eadem intrassent. Communicabatur de sacrilegâ Calvini c&oelig;nâ,
vel secreto et clanculum intra privatos parietes. Missam qui audiverant,
ac postea Calvinianos se haberi volebant, sic se de præcepto satisfecisse
existimabant. Deferebantur filii catholicorum ad baptisteria hæreticorum,
ac inter illorum manus matrimonia contrahebant. Atque hæc omnia sine
omni scrupulo fiebant, facta propter catholicorum sacerdotum ignorantiam,
qui talia vel licere credebant, vel timore quodam præpediti dissimulabant.
Nunc autem per Dei misericordiam omnes catholici intelligunt, ut salventur
non satis esse corde fidem catholicam credere, sed eandem etiam ore
oportere confiteri. <i>Ribadeneira de Schismate</i>, p. 53. See also Butler's
<i>English Catholics</i>, vol. iii. p. 156.</p>

<p class="footnote"><a name="Footnote_179" id="Footnote_179" href="#FNanchor_179"><span class="label">[179]</span></a> Dodd's <i>Church His.</i> vol. ii. p. 8.</p>

<p class="footnote"><a name="Footnote_180" id="Footnote_180" href="#FNanchor_180"><span class="label">[180]</span></a> 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; <i>Life of
Parker</i>, 244; Nalson's <i>Collections</i>, vol. i.; Introduction, p. 39, etc., from a
pamphlet written also by Nalson, entitled, <i>Foxes and Firebrands</i>. 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 (<i>Hist. of Reformation
in Low Countries</i>, vol. i. p. 105) does not suspect Nicolas of being other
than a fanatic. His sect appeared in the Netherlands about 1555.</p>

<p class="footnote"><a name="Footnote_181" id="Footnote_181" href="#FNanchor_181"><span class="label">[181]</span></a> "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 <i>Book of the
Church</i>, 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
<i>Utopia</i>, 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 <i>capital</i> 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.</p>

<p class="footnote"><a name="Footnote_182" id="Footnote_182" href="#FNanchor_182"><span class="label">[182]</span></a> The address of the House of Commons, begging the queen to marry,
was on February 6, 1559.</p>

<p class="footnote"><a name="Footnote_183" id="Footnote_183" href="#FNanchor_183"><span class="label">[183]</span></a> Haynes, 233.</p>

<p class="footnote"><a name="Footnote_184" id="Footnote_184" href="#FNanchor_184"><span class="label">[184]</span></a> See particularly two letters in the <i>Hardwicke State Papers</i>, i. 122 and
163, dated in October and November 1560, which show the alarm excited
by the queen's ill-placed partiality.</p>

<p class="footnote"><a name="Footnote_185" id="Footnote_185" href="#FNanchor_185"><span class="label">[185]</span></a> 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. <i>Id.</i> 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 <i>Kenilworth</i>, 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 <i>Hardwicke Papers</i>, it appears that those who disliked Leicester had
spoken freely of this report to the queen.</p>

<p class="footnote"><a name="Footnote_186" id="Footnote_186" href="#FNanchor_186"><span class="label">[186]</span></a> 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.</p>

<p class="footnote">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 <i>foreigner</i>, 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.</p>

<p class="footnote"><a name="Footnote_187" id="Footnote_187" href="#FNanchor_187"><span class="label">[187]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_188" id="Footnote_188" href="#FNanchor_188"><span class="label">[188]</span></a> "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, <i>because of his youth</i>;" as if her
age were no objection.</p>

<p class="footnote"><a name="Footnote_189" id="Footnote_189" href="#FNanchor_189"><span class="label">[189]</span></a> 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."&mdash;P. 401 (in Kennet's <i>Complete Hist. of England</i>, 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.</p>

<p class="footnote">At the end of Murden's <i>State Papers</i> 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.</p>

<p class="footnote">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.</p>

<p class="footnote">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.</p>

<p class="footnote">November 12. Messrs. Bell and Monson moved trouble in the parliament
about the succession.</p>

<p class="footnote">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.</p>

<p class="footnote">24. Command given to the parliament not to treat of the succession.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_190" id="Footnote_190" href="#FNanchor_190"><span class="label">[190]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_191" id="Footnote_191" href="#FNanchor_191"><span class="label">[191]</span></a> Haynes, 396.</p>

<p class="footnote"><a name="Footnote_192" id="Footnote_192" href="#FNanchor_192"><span class="label">[192]</span></a> <i>Id.</i> 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 <i>Hereditary Right Asserted</i>, fol. 1713.</p>

<p class="footnote"><a name="Footnote_193" id="Footnote_193" href="#FNanchor_193"><span class="label">[193]</span></a> 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.</p>

<p class="footnote">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, eâ ratione ut è senatu regiâque abreptos ad curiæ januas in
crucem agi præciperet, eoque perfecto rectè deinceps ad forum progressus
explicaret populo tum hujus facti rationem, tum successionis etiam
regnandi legitimam seriem, si quid forte reginæ humanitus accideret. P. 43.</p>

<p class="footnote"><a name="Footnote_194" id="Footnote_194" href="#FNanchor_194"><span class="label">[194]</span></a> D'Ewes, 81.</p>

<p class="footnote"><a name="Footnote_195" id="Footnote_195" href="#FNanchor_195"><span class="label">[195]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_196" id="Footnote_196" href="#FNanchor_196"><span class="label">[196]</span></a> 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.</p>

<p class="footnote">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 <i>State Papers</i>, vol. i. <i>passim</i>. 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:</p>

<div class="poem">
<p class="footnote"><span class="i8">"Gallia perpetuis pugnaxque Britannia bellis</span></p>
<p class="footnote"><span class="i9">Olim odio inter se dimicuere pari.</span></p>
<p class="footnote"><span class="i8">Nunc Gallos totoque remotos orbe Britannos</span></p>
<p class="footnote"><span class="i9">Unum dos Mariæ cogit in imperium.</span></p>
<p class="footnote"><span class="i8">Ergo pace potes, Francisce, quod omnibus armis</span></p>
<p class="footnote"><span class="i9">Mille patres annis non potuere tui."</span></p>
</div>
<p class="footnote">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
<i>General Collection of Memoirs</i>, 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.</p>

<p class="footnote"><a name="Footnote_197" id="Footnote_197" href="#FNanchor_197"><span class="label">[197]</span></a> Burnet, i. Append. 266. Many letters, both of Mary herself and of
her secretary, the famous Maitland of Lethington, occur in Haynes's <i>State
Papers</i>, 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."&mdash;P. 373.</p>

<p class="footnote"><a name="Footnote_198" id="Footnote_198" href="#FNanchor_198"><span class="label">[198]</span></a> 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 <i>Illustrations</i>, vol.
ii. p. 4.</p>

<p class="footnote"><a name="Footnote_199" id="Footnote_199" href="#FNanchor_199"><span class="label">[199]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_200" id="Footnote_200" href="#FNanchor_200"><span class="label">[200]</span></a> Haynes, 580.</p>

<p class="footnote"><a name="Footnote_201" id="Footnote_201" href="#FNanchor_201"><span class="label">[201]</span></a> 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 <i>Memoirs</i>, for
the dispositions of an English party towards Mary in 1566.</p>

<p class="footnote"><a name="Footnote_202" id="Footnote_202" href="#FNanchor_202"><span class="label">[202]</span></a> Murden's <i>State Papers</i>, 134, 180. Norfolk was a very weak man, the
dupe of some very cunning ones. We may observe that his submission,
to the queen (<i>Id.</i> 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.</p>

<p class="footnote"><a name="Footnote_203" id="Footnote_203" href="#FNanchor_203"><span class="label">[203]</span></a> <i>State Trials</i>, 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 <i>Burghley Papers</i>, 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.</p>

<p class="footnote"><a name="Footnote_204" id="Footnote_204" href="#FNanchor_204"><span class="label">[204]</span></a> 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, <i>et post</i>; 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. <i>Id.</i> i. 567.</p>

<p class="footnote"><a name="Footnote_205" id="Footnote_205" href="#FNanchor_205"><span class="label">[205]</span></a> Camden has quoted a long passage from Hieronymo Catena's <i>Life of
Pius V.</i>, published at Rome in 1588, which illustrates the evidence to the
same effect contained in the <i>Burghley Papers</i>, and partly adduced on the
Duke of Norfolk's trial.</p>

<p class="footnote"><a name="Footnote_206" id="Footnote_206" href="#FNanchor_206"><span class="label">[206]</span></a> Strype, i. 546, 553, 556.</p>

<p class="footnote"><a name="Footnote_207" id="Footnote_207" href="#FNanchor_207"><span class="label">[207]</span></a> <i>Id.</i> 578; Camden, 428; Lodge, ii. 45.</p>

<p class="footnote"><a name="Footnote_208" id="Footnote_208" href="#FNanchor_208"><span class="label">[208]</span></a> Strype, ii. 88; <i>Life of Smith</i>, 152.</p>

<p class="footnote"><a name="Footnote_209" id="Footnote_209" href="#FNanchor_209"><span class="label">[209]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_210" id="Footnote_210" href="#FNanchor_210"><span class="label">[210]</span></a> Strype, vol. ii.</p>

<p class="footnote"><a name="Footnote_211" id="Footnote_211" href="#FNanchor_211"><span class="label">[211]</span></a> 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. <i>Annals</i>, 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.</p>

<p class="footnote"><a name="Footnote_212" id="Footnote_212" href="#FNanchor_212"><span class="label">[212]</span></a> 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 <i>ex post facto</i> words were
levelled at Mary.</p>

<p class="footnote"><a name="Footnote_213" id="Footnote_213" href="#FNanchor_213"><span class="label">[213]</span></a> Strype, ii. 133; D'Ewes, 207.</p>

<p class="footnote"><a name="Footnote_214" id="Footnote_214" href="#FNanchor_214"><span class="label">[214]</span></a> Strype, ii. 135.</p>

<p class="footnote"><a name="Footnote_215" id="Footnote_215" href="#FNanchor_215"><span class="label">[215]</span></a> <i>Life of Parker</i>, 354.</p>

<p class="footnote"><a name="Footnote_216" id="Footnote_216" href="#FNanchor_216"><span class="label">[216]</span></a> Strype's <i>Annals</i>, ii. 48.</p>

<p class="footnote"><a name="Footnote_217" id="Footnote_217" href="#FNanchor_217"><span class="label">[217]</span></a> Murden's <i>Papers</i>, p. 43, contain proofs of the increased discontent among
the catholics in consequence of the penal laws.</p>

<p class="footnote"><a name="Footnote_218" id="Footnote_218" href="#FNanchor_218"><span class="label">[218]</span></a> 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
<i>Life of Knox</i>, vol. ii. p. 24. In a conversation with Maitland he asserted
most explicitly the duty of putting idolaters to death. <i>Id.</i> 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.</p>

<p class="footnote"><a name="Footnote_219" id="Footnote_219" href="#FNanchor_219"><span class="label">[219]</span></a> D'Ewes, 161, 177.</p>

<p class="footnote"><a name="Footnote_220" id="Footnote_220" href="#FNanchor_220"><span class="label">[220]</span></a> Strype's <i>Life of Parker</i>, 354.</p>

<p class="footnote"><a name="Footnote_221" id="Footnote_221" href="#FNanchor_221"><span class="label">[221]</span></a> Strype's <i>Annals</i>, i. 582. Honest old Strype, who thinks church and
state never in the wrong, calls this "a notable piece of favour."</p>

<p class="footnote"><a name="Footnote_222" id="Footnote_222" href="#FNanchor_222"><span class="label">[222]</span></a> <i>Id.</i> ii. 110, 408.</p>

<p class="footnote"><a name="Footnote_223" id="Footnote_223" href="#FNanchor_223"><span class="label">[223]</span></a> Strype's <i>Annals</i>, iii. 127.</p>

<p class="footnote"><a name="Footnote_224" id="Footnote_224" href="#FNanchor_224"><span class="label">[224]</span></a> <i>Life of Whitgift</i>, 83. See too p. 99, and <i>Annals of Reformation</i>, ii. 631,
etc.; also Holingshed, ann. 1574, <i>ad init.</i></p>

<p class="footnote"><a name="Footnote_225" id="Footnote_225" href="#FNanchor_225"><span class="label">[225]</span></a> 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.</p>

<p class="footnote">"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.</p>

<p class="footnote">"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.</p>

<p class="footnote">"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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_226" id="Footnote_226" href="#FNanchor_226"><span class="label">[226]</span></a> Strype's <i>Life of Smith</i>, 171; <i>Annals</i>, 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.</p>

<p class="footnote"><a name="Footnote_227" id="Footnote_227" href="#FNanchor_227"><span class="label">[227]</span></a> Allen's <i>Admonition to the Nobility and People of England</i>, 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; <i>Life of Whitgift</i>, 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. <i>Id.</i> 251;
<i>Annals</i>, 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 <i>Memoirs</i>, vol. ii. p. 71 <i>et alibi</i>. 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.</p>

<p class="footnote"><a name="Footnote_228" id="Footnote_228" href="#FNanchor_228"><span class="label">[228]</span></a> 23 Eliz. c. 1 and 29 Eliz. c. 6.</p>

<p class="footnote"><a name="Footnote_229" id="Footnote_229" href="#FNanchor_229"><span class="label">[229]</span></a> Strype's <i>Whitgift</i>, p. 117, and other authorities <i>passim</i>.</p>

<p class="footnote"><a name="Footnote_230" id="Footnote_230" href="#FNanchor_230"><span class="label">[230]</span></a> Camden, Lingard. Two others suffered at Tyburn not long afterwards
for the same offence. Holingshed, 344. See in Butler's <i>Mem. of Catholics</i>,
vol. iii. p. 382, an affecting narrative, from Dodd's <i>Church History</i>, of the
sufferings of Mr. Tregian and his family, the gentleman whose chaplain
Mayne had been. I see no cause to doubt its truth.</p>

<p class="footnote"><a name="Footnote_231" id="Footnote_231" href="#FNanchor_231"><span class="label">[231]</span></a> Ribadeneira, <i>Continuatio Sanderi et Rishtoni de Schismate Anglicano</i>,
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.</p>

<p class="footnote"><a name="Footnote_232" id="Footnote_232" href="#FNanchor_232"><span class="label">[232]</span></a> Strype's <i>Parker</i>, 375.</p>

<p class="footnote"><a name="Footnote_233" id="Footnote_233" href="#FNanchor_233"><span class="label">[233]</span></a> Strype's <i>Annals</i>, ii. 644.</p>

<p class="footnote"><a name="Footnote_234" id="Footnote_234" href="#FNanchor_234"><span class="label">[234]</span></a> <i>State Trials</i>, i. 1050; from the <i>Ph&oelig;nix Britannicus</i>.</p>

<p class="footnote"><a name="Footnote_235" id="Footnote_235" href="#FNanchor_235"><span class="label">[235]</span></a> <i>Id.</i> 1078; Butler's <i>English Catholics</i>, 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 <i>de jure</i>, but rather
that he refused to give an opinion as to her right. He prayed, however, for
her as a queen. "Io ho pregato, e prego per lei. All' ora il Signor
Howardo li domandò per qual regina egli pregasse, se per Elisabetta? Al
quale rispose, Si, per Elisabetta." Mr. Butler quotes this tract in English.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_236" id="Footnote_236" href="#FNanchor_236"><span class="label">[236]</span></a> Strype, ii. 637; Butler's <i>Eng. Catholics</i>, 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 catholicâ manifestè deflexerit, et alios avocare voluerit, excidere
statim omni potestate et dignitate, ex ipsâ 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 obedientiâ tanquam principi legitimo præstitissent, posseque
et debere (si vires habeant) istiusmodi hominem, tanquam apostatam,
hæreticum, ac Christi domini desertorem, et inimicum reipublicæ suæ,
hostemque ex hominum christianorum dominatu ejicere, ne alios inficiat,
vel suo exemplo aut imperio a fide avertat."&mdash;P. 149. He quotes four
authorities for this in the margin, from the works of divines or canonists.</p>

<p class="footnote">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&mdash;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.</p>

<p class="footnote"><a name="Footnote_237" id="Footnote_237" href="#FNanchor_237"><span class="label">[237]</span></a> Rishton and Ribadeneira. See in Lingard, note U, a specification of
the different kinds of torture used in this reign.</p>

<p class="footnote">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 <i>Whitgift</i>,
p. 212.</p>

<p class="footnote"><a name="Footnote_238" id="Footnote_238" href="#FNanchor_238"><span class="label">[238]</span></a> 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 François catholiques, du danger où ils sont de perdre leur
religion et d'expérimenter, comme en Angleterre, la cruauté des ministres,
s'ils reçoivent à la couronne un roy qui soit hérétique." It is in the
British Museum.</p>

<p class="footnote">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.</p>

<p class="footnote">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 <i>Memoirs of the Court of Elizabeth</i>,
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.</p>

<p class="footnote"><a name="Footnote_239" id="Footnote_239" href="#FNanchor_239"><span class="label">[239]</span></a> <i>Somers Tracts</i>, 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
<i>Execution of Justice</i> 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.</p>

<p class="footnote"><a name="Footnote_240" id="Footnote_240" href="#FNanchor_240"><span class="label">[240]</span></a> <i>Somers Tracts</i>, p. 209.</p>

<p class="footnote"><a name="Footnote_241" id="Footnote_241" href="#FNanchor_241"><span class="label">[241]</span></a> <i>State Trials</i>, i. 1160.</p>

<p class="footnote"><a name="Footnote_242" id="Footnote_242" href="#FNanchor_242"><span class="label">[242]</span></a> <i>Somers Tracts</i>, 164.</p>

<p class="footnote"><a name="Footnote_243" id="Footnote_243" href="#FNanchor_243"><span class="label">[243]</span></a> Strype, iii. 298. Shelley, though notoriously loyal and frequently
employed by Burleigh, was taken up and examined before the council for
preparing this petition.</p>

<p class="footnote"><a name="Footnote_244" id="Footnote_244" href="#FNanchor_244"><span class="label">[244]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_245" id="Footnote_245" href="#FNanchor_245"><span class="label">[245]</span></a> 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 £3323 1<i>s</i>. 10<i>d</i>. A few paid as much as £140 per annum. The average
seems, however, to have been about £20. Vol. iii. Append. 153; see also
p. 258. Probably these compositions, though oppressive, were not quite
so serious as the catholics pretended.</p>

<p class="footnote"><a name="Footnote_246" id="Footnote_246" href="#FNanchor_246"><span class="label">[246]</span></a> 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, <i>De Persecutione Anglicanâ</i>, 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. <i>Parl. Hist.</i> 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."&mdash;P. 384.</p>

<p class="footnote"><a name="Footnote_247" id="Footnote_247" href="#FNanchor_247"><span class="label">[247]</span></a> 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." <i>Somers Tracts</i>, 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 <i>Memoirs of Elizabeth</i>, i. 82 <i>et alibi</i>.</p>

<p class="footnote">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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_248" id="Footnote_248" href="#FNanchor_248"><span class="label">[248]</span></a> <i>State Trials</i>, i. 1162.</p>

<p class="footnote"><a name="Footnote_249" id="Footnote_249" href="#FNanchor_249"><span class="label">[249]</span></a> 27 Eliz. c. i.</p>

<p class="footnote"><a name="Footnote_250" id="Footnote_250" href="#FNanchor_250"><span class="label">[250]</span></a> In Murden's <i>State Papers</i> 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."&mdash;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.</p>

<p class="footnote"><a name="Footnote_251" id="Footnote_251" href="#FNanchor_251"><span class="label">[251]</span></a> 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 <i>Biog. Brit.</i> art.
<span class="smcap">Walsingham</span>, 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.</p>

<p class="footnote"><a name="Footnote_252" id="Footnote_252" href="#FNanchor_252"><span class="label">[252]</span></a> 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.
<i>Murden Papers</i>, p. 18; <i>Somers Tracts</i>, 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 <i>jus gentium</i> to have been already
reckoned in matter of science, in which a particular class of lawyers was
conversant.</p>

<p class="footnote"><a name="Footnote_253" id="Footnote_253" href="#FNanchor_253"><span class="label">[253]</span></a> Strype, 360, 362. Civilians were consulted about the legality of trying
Mary. <i>Idem</i>, Append. 138.</p>

<p class="footnote"><a name="Footnote_254" id="Footnote_254" href="#FNanchor_254"><span class="label">[254]</span></a> Butler's <i>English Catholics</i>, i. 259; Hume. This is strongly confirmed
by a letter printed not long after, and republished in the Harleian <i>Miscellany</i>,
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.</p>

<p class="footnote"><a name="Footnote_255" id="Footnote_255" href="#FNanchor_255"><span class="label">[255]</span></a> Strype, vols. iii. and iv. <i>passim</i>; <i>Life of Whitgift</i>, 401, 505; Murden,
667; Birch's <i>Memoirs of Elizabeth</i>, Lingard, etc. One hundred and ten
catholics suffered death between 1588 and 1603. Lingard, 513.</p>

<p class="footnote"><a name="Footnote_256" id="Footnote_256" href="#FNanchor_256"><span class="label">[256]</span></a> 33 Eliz. c. 2.</p>

<p class="footnote"><a name="Footnote_257" id="Footnote_257" href="#FNanchor_257"><span class="label">[257]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_258" id="Footnote_258" href="#FNanchor_258"><span class="label">[258]</span></a> 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. <i>State Trials</i>, ii. 179.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_259" id="Footnote_259" href="#FNanchor_259"><span class="label">[259]</span></a> Burnet, ii. 418.</p>

<p class="footnote"><a name="Footnote_260" id="Footnote_260" href="#FNanchor_260"><span class="label">[260]</span></a> "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 <i>Life of
Nowell</i>, 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 <i>Accusations of History against the Church of Rome</i>, has
laboured to defend the capital, as well as other, punishments of catholics
under Elizabeth, on the same pretence of their treason.</p>

<p class="footnote">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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_261" id="Footnote_261" href="#FNanchor_261"><span class="label">[261]</span></a> Watson's <i>Quodlibets</i>. 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."&mdash;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.</p>

<p class="footnote"><a name="Footnote_262" id="Footnote_262" href="#FNanchor_262"><span class="label">[262]</span></a> Rymer, xv. 473, 488.</p>

<p class="footnote"><a name="Footnote_263" id="Footnote_263" href="#FNanchor_263"><span class="label">[263]</span></a> Butler's <i>Engl. Catholics</i>, p. 261.</p>

<p class="footnote"><a name="Footnote_264" id="Footnote_264" href="#FNanchor_264"><span class="label">[264]</span></a> 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. <i>De Schismate Anglic.</i> 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.</p>

<p class="footnote"><a name="Footnote_265" id="Footnote_265" href="#FNanchor_265"><span class="label">[265]</span></a> Birch, i. 84.</p>

<p class="footnote"><a name="Footnote_266" id="Footnote_266" href="#FNanchor_266"><span class="label">[266]</span></a> Sleidan, <i>Hist. de la Réformation</i> (par Courayer), ii. 74.</p>

<p class="footnote"><a name="Footnote_267" id="Footnote_267" href="#FNanchor_267"><span class="label">[267]</span></a> Strype's <i>Cranmer</i>, 354.</p>

<p class="footnote"><a name="Footnote_268" id="Footnote_268" href="#FNanchor_268"><span class="label">[268]</span></a> 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 <i>The Ph&oelig;nix</i>. 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.</p>

<p class="footnote"><a name="Footnote_269" id="Footnote_269" href="#FNanchor_269"><span class="label">[269]</span></a> 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. <i>Id.</i> 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.</p>

<p class="footnote"><a name="Footnote_270" id="Footnote_270" href="#FNanchor_270"><span class="label">[270]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_271" id="Footnote_271" href="#FNanchor_271"><span class="label">[271]</span></a> Burnet, iii. Appendix, 290; Strype's <i>Parker</i>, 46.</p>

<p class="footnote"><a name="Footnote_272" id="Footnote_272" href="#FNanchor_272"><span class="label">[272]</span></a> Quantum auguror, non scribam ad te posthac episcopus. Eo enim jam
res pervenit, ut aut cruces argenteæ et stanneæ, quas nos ubique confregimus,
restituendæ sint, aut episcopatus relinquendi. Burnet, 294. Sandys
writes, that he had nearly been deprived for expressing himself warmly
against images. <i>Id.</i> 296. Other proofs of the text may be found in the
same collection, as well as in Strype's <i>Annals</i>, and his <i>Life of Parker</i>. 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.
<i>Life of Parker</i>, Appendix, 29; a very remarkable letter.</p>

<p class="footnote"><a name="Footnote_273" id="Footnote_273" href="#FNanchor_273"><span class="label">[273]</span></a> Strype's <i>Parker</i>, 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
<i>Annals</i>, i. 471.</p>

<p class="footnote"><a name="Footnote_274" id="Footnote_274" href="#FNanchor_274"><span class="label">[274]</span></a> Burnet, ii. 395.</p>

<p class="footnote"><a name="Footnote_275" id="Footnote_275" href="#FNanchor_275"><span class="label">[275]</span></a> 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. <i>Somers Tracts</i>, 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. <i>Life of P.</i> 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.</p>

<p class="footnote"><a name="Footnote_276" id="Footnote_276" href="#FNanchor_276"><span class="label">[276]</span></a> 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: "<i>Madam</i> (the style of a married lady) I may not call you;
<i>mistress</i> (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, <i>Parker</i>, alias
<i>Harleston</i>; 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. <i>Life of Parker</i>, 511. Others did the same.
<i>Annals</i>, 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.</p>

<p class="footnote">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 <i>Parker</i>, 203.</p>

<p class="footnote"><a name="Footnote_277" id="Footnote_277" href="#FNanchor_277"><span class="label">[277]</span></a> Burnet, iii. 305.</p>

<p class="footnote"><a name="Footnote_278" id="Footnote_278" href="#FNanchor_278"><span class="label">[278]</span></a> 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 <i>Grindal</i>,
29.</p>

<p class="footnote"><a name="Footnote_279" id="Footnote_279" href="#FNanchor_279"><span class="label">[279]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_280" id="Footnote_280" href="#FNanchor_280"><span class="label">[280]</span></a> 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 obstinatæ malitiæ, id
totum erat in presbyteris, illis præsertim, qui aliquando stetissent à nostrâ
sententiâ." 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.</p>

<p class="footnote">Mr. Butler says, from several circumstances it is evident that a great
majority of the nation then inclined to the Roman catholic religion. <i>Mem.
of Eng. Catholics</i>, 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
<i>State Papers</i>, 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.</p>

<p class="footnote">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. <i>Opere di Bentivoglio</i>, p. 83, edit. Paris, 1645. But I presume
neither Mr. Butler nor Dr. Lingard would own these <i>adiaphorists</i>.</p>

<p class="footnote">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, <i>atrox animus Catonis</i>, 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
(<i>ubi supra</i>) at one-fifteenth.</p>

<p class="footnote"><a name="Footnote_281" id="Footnote_281" href="#FNanchor_281"><span class="label">[281]</span></a> Strype's <i>Parker</i>, 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.</p>

<p class="footnote"><a name="Footnote_282" id="Footnote_282" href="#FNanchor_282"><span class="label">[282]</span></a> Strype's <i>Parker</i>, 157, 173.</p>

<p class="footnote"><a name="Footnote_283" id="Footnote_283" href="#FNanchor_283"><span class="label">[283]</span></a> This apprehension of Elizabeth's taking a disgust to protestantism is
intimated in a letter of Bishop Cox. Strype's <i>Parker</i>, 229.</p>

<p class="footnote"><a name="Footnote_284" id="Footnote_284" href="#FNanchor_284"><span class="label">[284]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_285" id="Footnote_285" href="#FNanchor_285"><span class="label">[285]</span></a> Strype's <i>Annals</i>, 416; <i>Parker</i>, 159. Some years after, these advertisements
obtained the queen's sanction, and got the name of Articles and
Ordinances. <i>Id.</i> 160.</p>

<p class="footnote"><a name="Footnote_286" id="Footnote_286" href="#FNanchor_286"><span class="label">[286]</span></a> Strype's <i>Annals</i>, 416, 430; <i>Life of Parker</i>, 184. Sampson had refused
a bishopric on account of these ceremonies. Burnet, iii. 292.</p>

<p class="footnote"><a name="Footnote_287" id="Footnote_287" href="#FNanchor_287"><span class="label">[287]</span></a> <i>Life of Parker</i>, 214. Strype says (p. 223) that the suspended ministers
preached again after a little time by connivance.</p>

<p class="footnote"><a name="Footnote_288" id="Footnote_288" href="#FNanchor_288"><span class="label">[288]</span></a> Jewel is said to have become strict in enforcing the use of the surplice.
<i>Annals</i>, 421.</p>

<p class="footnote"><a name="Footnote_289" id="Footnote_289" href="#FNanchor_289"><span class="label">[289]</span></a> Strype's <i>Annals</i>, i. 423, ii. 316; <i>Life of Parker</i>, 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 <i>Annals</i>, 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.</p>

<p class="footnote">Beza was more dissatisfied than the Helvetic divines with the state of
the English church (<i>Annals</i>, i. 452; Collier, 503); but dissuaded the
puritans from separation, and advised them rather to comply with the
ceremonies. <i>Id.</i> 511.</p>

<p class="footnote"><a name="Footnote_290" id="Footnote_290" href="#FNanchor_290"><span class="label">[290]</span></a> Strype's <i>Life of Parker</i>, 242; <i>Life of Grindal</i>, 114.</p>

<p class="footnote"><a name="Footnote_291" id="Footnote_291" href="#FNanchor_291"><span class="label">[291]</span></a> Burnet, iii. 316; Strype's <i>Parker</i>, 155 <i>et alibi</i>.</p>

<p class="footnote"><a name="Footnote_292" id="Footnote_292" href="#FNanchor_292"><span class="label">[292]</span></a> <i>Id.</i> 226. The church had but two or three friends, Strype says, in
the council about 1572, of whom Cecil was the chief. <i>Id.</i> 388.</p>

<p class="footnote"><a name="Footnote_293" id="Footnote_293" href="#FNanchor_293"><span class="label">[293]</span></a> 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. <i>Annals</i>, i. 166.</p>

<p class="footnote"><a name="Footnote_294" id="Footnote_294" href="#FNanchor_294"><span class="label">[294]</span></a> Strype's <i>Annals</i>, 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.</p>

<p class="footnote">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. <i>Annals</i>, i. 323. But in Ely, out of 152 cures only
52 were served in 1560. <i>L. of Parker</i>, 72.</p>

<p class="footnote"><a name="Footnote_295" id="Footnote_295" href="#FNanchor_295"><span class="label">[295]</span></a> 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; Latinè aliqua verba intelligit, Latinè
utcunque intelligit; Latinè pauca intelligit," etc. Sometimes, however,
we find doctus. <i>L. of Parker</i>, 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 <i>generally</i> taught in the universities or public schools till the Reformation,
and perhaps not so soon.</p>

<p class="footnote">Since this note was written, a letter of Gibson has been published in
Pepys's <i>Memoirs</i>, vol. ii. p. 154, mentioning a catalogue he had found of
the clergy in the archdeaconry of Middlesex, <span class="smcap">a.d.</span> 1563, with their qualifications
annexed. Three only are described as docti Latinè et Græcè; twelve
are called docti simply; nine, Latinè docti; thirty-one, Latinè mediocriter
intelligentes; forty-two, Latinè 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</p>

<p class="footnote"><a name="Footnote_296" id="Footnote_296" href="#FNanchor_296"><span class="label">[296]</span></a> 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.</p>

<p class="footnote">Strype says, the universities were so addicted to popery that for some
years few educated in them were ordained. <i>Life of Grindal</i>, p. 50. And
Wood's <i>Antiquities of the University of Oxford</i> 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
<i>Annals</i>, 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." <i>Hist. of Oxford</i>, 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.</p>

<p class="footnote">A letter from the University of Oxford to Elizabeth on her accession
(Hearne's edition of Roper's <i>Life of More</i>, 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 <i>patri</i>, <i>fratri</i>, <i>sorori</i>, nihil fuerit republicâ carius, <i>religione
optatius</i>, verâ gloriâ dulcius; cum in hâc familiâ hæ laudes floruerint,
vehementer confidimus, etc., quæ ejusdem stirpis sis, easdem cupidissime
prosecuturam." It was a singular strain of complaisance to praise
Henry's, Edward's, and Mary's religious sentiments in the same breath;
but the queen might at least learn this from it, that whether she fixed on
one of their creeds, or devised a new one for herself, she was sure of the
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.</p>

<p class="footnote"><a name="Footnote_297" id="Footnote_297" href="#FNanchor_297"><span class="label">[297]</span></a> 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 <i>Annals</i>, i. 441; <i>Life of Parker</i>, 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.
<i>Id.</i> 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, <i>passim</i>.</p>

<p class="footnote"><a name="Footnote_298" id="Footnote_298" href="#FNanchor_298"><span class="label">[298]</span></a> Strype's <i>Annals</i>, i. 583; <i>Life of Parker</i>, 312, 347; <i>Life of Whitgift</i>, 27.</p>

<p class="footnote"><a name="Footnote_299" id="Footnote_299" href="#FNanchor_299"><span class="label">[299]</span></a> Cartwright's <i>Admonition</i>, quoted in Neal's <i>Hist. of Puritans</i>, i. 88.</p>

<p class="footnote"><a name="Footnote_300" id="Footnote_300" href="#FNanchor_300"><span class="label">[300]</span></a> Madox's <i>Vindication of Church of England against Neal</i>, 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.</p>

<p class="footnote"><a name="Footnote_301" id="Footnote_301" href="#FNanchor_301"><span class="label">[301]</span></a> 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 <i>Second Blast</i>, 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.</p>

<p class="footnote"><a name="Footnote_302" id="Footnote_302" href="#FNanchor_302"><span class="label">[302]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_303" id="Footnote_303" href="#FNanchor_303"><span class="label">[303]</span></a> 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
<i>Annals</i>, ii. 316. And Fox, the martyrologist, a refuser to conform, speaks,
in a remarkable letter quoted by Fuller in his <i>Church History</i>, 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. <i>Carleton's Life of Gilpin</i>,
and Wordsworth's <i>Ecclesiastical Biography</i>, vol. iv. Neal has not reported
the matter faithfully.</p>

<p class="footnote"><a name="Footnote_304" id="Footnote_304" href="#FNanchor_304"><span class="label">[304]</span></a> "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 <i>Conference
about the next Succession to the Crown of England</i>, 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."&mdash;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.</p>

<p class="footnote"><a name="Footnote_305" id="Footnote_305" href="#FNanchor_305"><span class="label">[305]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_306" id="Footnote_306" href="#FNanchor_306"><span class="label">[306]</span></a> D'Ewes, p. 156; <i>Parliament. Hist.</i> i. 733, etc.</p>

<p class="footnote"><a name="Footnote_307" id="Footnote_307" href="#FNanchor_307"><span class="label">[307]</span></a> D'Ewes, p. 239; <i>Parl. Hist.</i> 790; Strype's <i>Life of Parker</i>, 394.</p>

<p class="footnote">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 gravité 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
<i>l'Eglise</i>, et que le second est le langage de ce qu'on appelle <i>l'heresie</i>."
<i>Concile de Basle</i>, p. 193.</p>

<p class="footnote"><a name="Footnote_308" id="Footnote_308" href="#FNanchor_308"><span class="label">[308]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_309" id="Footnote_309" href="#FNanchor_309"><span class="label">[309]</span></a> Neal, 187; Strype's <i>Parker</i>, 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"&mdash;a very great mistake&mdash;"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. <i>Id.</i> p. 421; Cartwright's <i>Admonition</i> was now prohibited to be sold.
<i>Ibid.</i></p>

<p class="footnote"><a name="Footnote_310" id="Footnote_310" href="#FNanchor_310"><span class="label">[310]</span></a> Neal, 210.</p>

<p class="footnote"><a name="Footnote_311" id="Footnote_311" href="#FNanchor_311"><span class="label">[311]</span></a> Strype's <i>Annals</i>, i. 433.</p>

<p class="footnote"><a name="Footnote_312" id="Footnote_312" href="#FNanchor_312"><span class="label">[312]</span></a> Strype's <i>Annals</i>, ii. 219, 232; <i>Life of Parker</i>, 461.</p>

<p class="footnote"><a name="Footnote_313" id="Footnote_313" href="#FNanchor_313"><span class="label">[313]</span></a> Strype's <i>Life of Grindal</i>, 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.</p>

<p class="footnote"><a name="Footnote_314" id="Footnote_314" href="#FNanchor_314"><span class="label">[314]</span></a> Strype's <i>Whitgift</i>, 27 <i>et alibi</i>. 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 <i>Biographia Britannica</i> 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.</p>

<p class="footnote"><a name="Footnote_315" id="Footnote_315" href="#FNanchor_315"><span class="label">[315]</span></a> Strype's <i>Whitgift</i>, 115.</p>

<p class="footnote"><a name="Footnote_316" id="Footnote_316" href="#FNanchor_316"><span class="label">[316]</span></a> Neal, 266; Birch's <i>Memoirs of Elizabeth</i>, vol. i. p. 42, 47, etc.</p>

<p class="footnote"><a name="Footnote_317" id="Footnote_317" href="#FNanchor_317"><span class="label">[317]</span></a> According to a paper in the appendix to Strype's <i>Life of Whitgift</i>,
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. <i>Id</i>. p. 320.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_318" id="Footnote_318" href="#FNanchor_318"><span class="label">[318]</span></a> <i>Life of Whitgift</i>, 137 <i>et alibi pluries</i>; <i>Annals</i>, iii. 183.</p>

<p class="footnote"><a name="Footnote_319" id="Footnote_319" href="#FNanchor_319"><span class="label">[319]</span></a> Neal, 274; Strype's <i>Annals</i>, iii. 180.</p>

<p class="footnote">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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_320" id="Footnote_320" href="#FNanchor_320"><span class="label">[320]</span></a> Strype's <i>Whitgift</i>, 135; and Appendix, 49.</p>

<p class="footnote"><a name="Footnote_321" id="Footnote_321" href="#FNanchor_321"><span class="label">[321]</span></a> <i>Id.</i> 157, 160.</p>

<p class="footnote"><a name="Footnote_322" id="Footnote_322" href="#FNanchor_322"><span class="label">[322]</span></a> <i>Id.</i> 163, 166 <i>et alibi</i>; Birch's <i>Memoirs</i>, 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.</p>

<p class="footnote"><a name="Footnote_323" id="Footnote_323" href="#FNanchor_323"><span class="label">[323]</span></a> Neal, 325, 385.</p>

<p class="footnote"><a name="Footnote_324" id="Footnote_324" href="#FNanchor_324"><span class="label">[324]</span></a> <i>Id.</i> 290; Strype's <i>Life of Aylmer</i>, p. 59, etc. His biographer is here,
as in all his writings, too partial to condemn, but too honest to conceal.</p>

<p class="footnote"><a name="Footnote_325" id="Footnote_325" href="#FNanchor_325"><span class="label">[325]</span></a> Neal, 294.</p>

<p class="footnote"><a name="Footnote_326" id="Footnote_326" href="#FNanchor_326"><span class="label">[326]</span></a> Strype's <i>Aylmer</i>, 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.
<i>Id.</i> 169. The other, however, waited for his death, and had above £4000
awarded to him; but the crafty old man having laid out his money in land,
this sum was never paid. Bancroft tried to get an act of parliament in
order to render the real estate liable, but without success. P. 194.</p>

<p class="footnote"><a name="Footnote_327" id="Footnote_327" href="#FNanchor_327"><span class="label">[327]</span></a> <i>Somers' Tracts</i>, i. 166.</p>

<p class="footnote"><a name="Footnote_328" id="Footnote_328" href="#FNanchor_328"><span class="label">[328]</span></a> Bacon's Works, i. 532.</p>

<p class="footnote"><a name="Footnote_329" id="Footnote_329" href="#FNanchor_329"><span class="label">[329]</span></a> Birch's <i>Memoirs</i>, ii. 146.</p>

<p class="footnote"><a name="Footnote_330" id="Footnote_330" href="#FNanchor_330"><span class="label">[330]</span></a> <i>Id. ibid.</i> 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.</p>

<p class="footnote"><a name="Footnote_331" id="Footnote_331" href="#FNanchor_331"><span class="label">[331]</span></a> 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 <i>Whitgift</i>, 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 <i>Annals</i>, ii. 193. See the trial of Sir Richard Knightley
of Northamptonshire for dispersing puritanical libels. <i>State Trials</i>, i. 1263.</p>

<p class="footnote"><a name="Footnote_332" id="Footnote_332" href="#FNanchor_332"><span class="label">[332]</span></a> 23 Eliz. c. 2.</p>

<p class="footnote"><a name="Footnote_333" id="Footnote_333" href="#FNanchor_333"><span class="label">[333]</span></a> Penry's protestation at his death is in a style of the most affecting and
simple eloquence. <i>Life of Whitgift</i>, 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.</p>

<p class="footnote"><a name="Footnote_334" id="Footnote_334" href="#FNanchor_334"><span class="label">[334]</span></a> <i>State Trials</i>, 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. <i>Life of Whitgift</i>, 314; <i>Annals of Reformation</i>, iv. 21; Fuller's
<i>Church History</i>, 122; Neal, 340. This writer says: "Among the divines
who <i>suffered death</i> 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.</p>

<p class="footnote">Neal's <i>History of the Puritans</i> 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 <i>Vindication of the Church of England</i>, 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.</p>

<p class="footnote"><a name="Footnote_335" id="Footnote_335" href="#FNanchor_335"><span class="label">[335]</span></a> <i>Life of Whitgift</i>, 328.</p>

<p class="footnote"><a name="Footnote_336" id="Footnote_336" href="#FNanchor_336"><span class="label">[336]</span></a> <i>Id.</i> 336, 360, 366, Append. 142, 159.</p>

<p class="footnote"><a name="Footnote_337" id="Footnote_337" href="#FNanchor_337"><span class="label">[337]</span></a> <i>Id.</i> Append. 135; <i>Annals</i>, iv. 52.</p>

<p class="footnote"><a name="Footnote_338" id="Footnote_338" href="#FNanchor_338"><span class="label">[338]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_339" id="Footnote_339" href="#FNanchor_339"><span class="label">[339]</span></a> <i>Life of Whitgift</i>, p. 61, 333, and Append. 138; <i>Annals</i>, 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.</p>

<p class="footnote"><a name="Footnote_340" id="Footnote_340" href="#FNanchor_340"><span class="label">[340]</span></a> <i>Ibid</i>. Madox's <i>Vindication of the Ch. of Eng. against Neal</i>, p. 212;
Strype's <i>Annals</i>, iv. 142.</p>

<p class="footnote"><a name="Footnote_341" id="Footnote_341" href="#FNanchor_341"><span class="label">[341]</span></a> 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. <i>Life
of Whitgift</i>, 258; <i>Annals</i>, iv. 142.</p>

<p class="footnote"><a name="Footnote_342" id="Footnote_342" href="#FNanchor_342"><span class="label">[342]</span></a> See a declaration to this effect, at which no one could cavil, in Strype's
<i>Annals</i>, 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. <i>Life of Whitgift</i>, 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. <i>Lansdowne
Catalogue</i>, vol. lxviii. 84.</p>

<p class="footnote"><a name="Footnote_343" id="Footnote_343" href="#FNanchor_343"><span class="label">[343]</span></a> D'Ewes, 302; Strype's <i>Whitgift</i>, 92, Append. 32.</p>

<p class="footnote"><a name="Footnote_344" id="Footnote_344" href="#FNanchor_344"><span class="label">[344]</span></a> D'Ewes, 339 <i>et post</i>; Strype's <i>Whitgift</i>, 176, etc., Append. 70.</p>

<p class="footnote"><a name="Footnote_345" id="Footnote_345" href="#FNanchor_345"><span class="label">[345]</span></a> Strype's <i>Annals</i>, iii. 228.</p>

<p class="footnote"><a name="Footnote_346" id="Footnote_346" href="#FNanchor_346"><span class="label">[346]</span></a> Strype's <i>Annals</i>, iii. 186, 192. Compare Append. 35.</p>

<p class="footnote"><a name="Footnote_347" id="Footnote_347" href="#FNanchor_347"><span class="label">[347]</span></a> Strype's <i>Whitgift</i>, 279; <i>Annals</i>, iii. 543.</p>

<p class="footnote"><a name="Footnote_348" id="Footnote_348" href="#FNanchor_348"><span class="label">[348]</span></a> <i>Parl. Hist.</i> 921.</p>

<p class="footnote"><a name="Footnote_349" id="Footnote_349" href="#FNanchor_349"><span class="label">[349]</span></a> Strype's <i>Whitgift</i>, 521, 537, App. 136. The archbishop could not
disguise his dislike to the lawyers. "The temporal lawyer," he says in a
letter to Cecil, "<i>whose learning is no learning anywhere but here at home</i>,
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."&mdash;P. 215.</p>

<p class="footnote"><a name="Footnote_350" id="Footnote_350" href="#FNanchor_350"><span class="label">[350]</span></a> Strype's <i>Whitgift</i>, and D'Ewes, <i>passim</i>. 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
<i>Grindal</i>, 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 <i>bonâ fide</i> or not, it produced no reformation. Strype's
<i>Whitgift</i>, 419.</p>

<p class="footnote"><a name="Footnote_351" id="Footnote_351" href="#FNanchor_351"><span class="label">[351]</span></a> 35 Eliz. c. 1; <i>Parl. Hist.</i> 863.</p>

<p class="footnote"><a name="Footnote_352" id="Footnote_352" href="#FNanchor_352"><span class="label">[352]</span></a> 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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_353" id="Footnote_353" href="#FNanchor_353"><span class="label">[353]</span></a> Neal, 253, 386.</p>

<p class="footnote"><a name="Footnote_354" id="Footnote_354" href="#FNanchor_354"><span class="label">[354]</span></a> Strype's <i>Whitgift</i>, 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 <i>Annals</i>, 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.</p>

<p class="footnote"><a name="Footnote_355" id="Footnote_355" href="#FNanchor_355"><span class="label">[355]</span></a> "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 <i>Admonition</i>, 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.</p>

<p class="footnote"><a name="Footnote_356" id="Footnote_356" href="#FNanchor_356"><span class="label">[356]</span></a> "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.</p>

<p class="footnote">It is well known that the preface to the <i>Ecclesiastical Polity</i> 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.</p>

<p class="footnote"><a name="Footnote_357" id="Footnote_357" href="#FNanchor_357"><span class="label">[357]</span></a> 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 <i>Life of Hooker</i>, 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.</p>

<p class="footnote">A late writer has produced a somewhat ridiculous proof of the carelessness
with which all editions of the <i>Ecclesiastical Polity</i> 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 <i>Life of Melvil</i>, vol. i. p. 471.</p>

<p class="footnote"><a name="Footnote_358" id="Footnote_358" href="#FNanchor_358"><span class="label">[358]</span></a> 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
<i>Parker</i>, 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
<i>colonial</i> bishops, on whom the same title has, without any good reason,
been conferred.</p>

<p class="footnote"><a name="Footnote_359" id="Footnote_359" href="#FNanchor_359"><span class="label">[359]</span></a> Strype's <i>Annals</i>, i. 159.</p>

<p class="footnote"><a name="Footnote_360" id="Footnote_360" href="#FNanchor_360"><span class="label">[360]</span></a> 1 Eliz. c. 19; 13 Eliz. c. 10; Blackstone's <i>Commentaries</i>, vol. ii. c. 28.
The exception in favour of the Crown was repealed in the first year of
James.</p>

<p class="footnote"><a name="Footnote_361" id="Footnote_361" href="#FNanchor_361"><span class="label">[361]</span></a> It was couched in the following terms:&mdash;</p>

<p class="footnote">"<span class="smcap">Proud Prelate</span>,&mdash;You know what you were before I made you what
you are: if you do not immediately comply with my request, by G&mdash;&mdash; I
will unfrock you.</p>

<p class="footnote"><span class="smcap i10">Elizabeth.</span>"</p>

<p class="footnote">Poor Cox wrote a very good letter before this, printed in Strype's <i>Annals</i>,
vol. ii. Append. 84. The names of Hatton Garden and Ely Place (Mantua
væ miseræ nimium vicina Cremonæ) still bear witness to the encroaching
lord keeper, and the elbowed bishop.</p>

<p class="footnote"><a name="Footnote_362" id="Footnote_362" href="#FNanchor_362"><span class="label">[362]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_363" id="Footnote_363" href="#FNanchor_363"><span class="label">[363]</span></a> Harrington's "State of the Church," in <i>Nugæ Antiquæ</i>, vol. ii. <i>passim</i>;
Wilkins's <i>Concilia</i>, iv. 256; Strype's <i>Annals</i>, iii. 620 <i>et alibi</i>; <i>Life of
Parker</i>, 454; <i>of Whitgift</i>, 220; <i>of Aylmer, passim</i>. 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.</p>

<p class="footnote"><a name="Footnote_364" id="Footnote_364" href="#FNanchor_364"><span class="label">[364]</span></a> Birch's <i>Memoirs</i>, 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 <i>durante bene placito</i>, 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 <i>Whitgift</i>, 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 <i>Nugæ Antiquæ</i>, 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.</p>

<p class="footnote"><a name="Footnote_365" id="Footnote_365" href="#FNanchor_365"><span class="label">[365]</span></a> D'Ewes, 328.</p>

<p class="footnote"><a name="Footnote_366" id="Footnote_366" href="#FNanchor_366"><span class="label">[366]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_367" id="Footnote_367" href="#FNanchor_367"><span class="label">[367]</span></a> 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."&mdash;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.</p>

<p class="footnote"><a name="Footnote_368" id="Footnote_368" href="#FNanchor_368"><span class="label">[368]</span></a> 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
(<i>Book of the Church</i>, ii. 291) seems to adopt them as his own.</p>

<p class="footnote">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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_369" id="Footnote_369" href="#FNanchor_369"><span class="label">[369]</span></a> <i>State Trials</i>, i. 1148.</p>

<p class="footnote"><a name="Footnote_370" id="Footnote_370" href="#FNanchor_370"><span class="label">[370]</span></a> <i>Id.</i> 1256.</p>

<p class="footnote"><a name="Footnote_371" id="Footnote_371" href="#FNanchor_371"><span class="label">[371]</span></a> <i>Id.</i> 1403.</p>

<p class="footnote"><a name="Footnote_372" id="Footnote_372" href="#FNanchor_372"><span class="label">[372]</span></a> 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."&mdash;P. 149. It was altogether repugnant
to sound policy. Persons, the jesuit, indeed says, in his famous libel,
<i>Leicester's Commonwealth</i>, 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 <i>Annals</i>,
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.</p>

<p class="footnote"><a name="Footnote_373" id="Footnote_373" href="#FNanchor_373"><span class="label">[373]</span></a> Strype, iii. 480. Stubbe always signed himself Scæva, in these left-handed
productions.</p>

<p class="footnote"><a name="Footnote_374" id="Footnote_374" href="#FNanchor_374"><span class="label">[374]</span></a> Lodge, ii. 412; iii. 49.</p>

<p class="footnote"><a name="Footnote_375" id="Footnote_375" href="#FNanchor_375"><span class="label">[375]</span></a> 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, <i>inter
alia</i>, 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.</p>

<p class="footnote"><a name="Footnote_376" id="Footnote_376" href="#FNanchor_376"><span class="label">[376]</span></a> Anderson's <i>Reports</i>, i. 297. It may be found also in the <i>Biographia
Britannica</i>, and the <i>Biographical Dictionary</i>, art. Anderson.</p>

<p class="footnote"><a name="Footnote_377" id="Footnote_377" href="#FNanchor_377"><span class="label">[377]</span></a> Lansdowne MSS. lviii. 87. The Harleian MS. 6846 is a mere transcript
from Anderson's <i>Reports</i>, and consequently of no value. There is another
in the same collection, at which I have not looked.</p>

<p class="footnote"><a name="Footnote_378" id="Footnote_378" href="#FNanchor_378"><span class="label">[378]</span></a> 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. <i>Catalogue of
Lansdowne MSS.</i> xlix. 32-60. The same principle has since caused the
prohibition of sowing tobacco.</p>

<p class="footnote"><a name="Footnote_379" id="Footnote_379" href="#FNanchor_379"><span class="label">[379]</span></a> Camden, 476.</p>

<p class="footnote"><a name="Footnote_380" id="Footnote_380" href="#FNanchor_380"><span class="label">[380]</span></a> Rymer, xvi. 448.</p>

<p class="footnote"><a name="Footnote_381" id="Footnote_381" href="#FNanchor_381"><span class="label">[381]</span></a> Many of these proclamations are scattered through Rymer; and the
whole have been collected in a volume.</p>

<p class="footnote"><a name="Footnote_382" id="Footnote_382" href="#FNanchor_382"><span class="label">[382]</span></a> By a proclamation in 1560, butchers killing flesh in Lent are made
subject to a specific penalty of £20; which was levied upon one man.
Strype's <i>Annals</i>, i. 235. This seems to have been illegal.</p>

<p class="footnote"><a name="Footnote_383" id="Footnote_383" href="#FNanchor_383"><span class="label">[383]</span></a> Lord Camden in 1766. Hargrave, in preface to "Hale de Jure
Coronæ," in <i>Law Tracts</i>, vol. i.</p>

<p class="footnote"><a name="Footnote_384" id="Footnote_384" href="#FNanchor_384"><span class="label">[384]</span></a> We find an exclusive privilege granted in 1563 to Thomas Cooper,
afterwards Bishop of Winchester, to print his <i>Thesaurus</i>, 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<i>s.</i> for every printed copy. <i>Id.</i> xvi. 97.</p>

<p class="footnote"><a name="Footnote_385" id="Footnote_385" href="#FNanchor_385"><span class="label">[385]</span></a> Strype's <i>Parker</i>, 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.</p>

<p class="footnote"><a name="Footnote_386" id="Footnote_386" href="#FNanchor_386"><span class="label">[386]</span></a> 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. <i>Life of Whitgift</i>,
Appendix 126. This has probably been one cause of the extreme scarcity
of these puritanical pamphlets.</p>

<p class="footnote"><a name="Footnote_387" id="Footnote_387" href="#FNanchor_387"><span class="label">[387]</span></a> Strype's <i>Grindal</i>, 124, and Append. 43, where a list of these books
is given.</p>

<p class="footnote"><a name="Footnote_388" id="Footnote_388" href="#FNanchor_388"><span class="label">[388]</span></a> Strype's <i>Whitgift</i>, 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.</p>

<p class="footnote"><a name="Footnote_389" id="Footnote_389" href="#FNanchor_389"><span class="label">[389]</span></a> Camden, 449; Strype's <i>Annals</i>, 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."</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_390" id="Footnote_390" href="#FNanchor_390"><span class="label">[390]</span></a> Strype's <i>Annals</i>, iii. 570; <i>Life of Whitgift</i>, Append. 126.</p>

<p class="footnote"><a name="Footnote_391" id="Footnote_391" href="#FNanchor_391"><span class="label">[391]</span></a> Rymer, xvi. 279.</p>

<p class="footnote"><a name="Footnote_392" id="Footnote_392" href="#FNanchor_392"><span class="label">[392]</span></a> Carte, 693, from Stowe.</p>

<p class="footnote"><a name="Footnote_393" id="Footnote_393" href="#FNanchor_393"><span class="label">[393]</span></a> Strype's <i>Annals</i>, i. 535.</p>

<p class="footnote"><a name="Footnote_394" id="Footnote_394" href="#FNanchor_394"><span class="label">[394]</span></a> 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 <i>Parker</i>, 273; and Rymer
will supply many others in earlier times.</p>

<p class="footnote">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 <i>Annals</i>, 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.</p>

<p class="footnote"><a name="Footnote_395" id="Footnote_395" href="#FNanchor_395"><span class="label">[395]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_396" id="Footnote_396" href="#FNanchor_396"><span class="label">[396]</span></a> 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." <i>State Trials</i>, iii. 1199.</p>

<p class="footnote"><a name="Footnote_397" id="Footnote_397" href="#FNanchor_397"><span class="label">[397]</span></a> Haynes, 518. Hume has exaggerated this, like other facts, in his very
able, but partial, sketch of the constitution in Elizabeth's reign.</p>

<p class="footnote"><a name="Footnote_398" id="Footnote_398" href="#FNanchor_398"><span class="label">[398]</span></a> 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."&mdash;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."&mdash;Feb. 4, 1566, <i>id.</i> 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.'"&mdash;lxviii. 20. "Lady
Zouch to Lord Burleigh, for his friendly interposition to reconcile Lord
Zouch her husband, who had forsaken her through jealousy."&mdash;1593,
lxxiv. 72.</p>

<p class="footnote"><a name="Footnote_399" id="Footnote_399" href="#FNanchor_399"><span class="label">[399]</span></a> <i>Biographia Britannica</i>, art. Cecil.</p>

<p class="footnote"><a name="Footnote_400" id="Footnote_400" href="#FNanchor_400"><span class="label">[400]</span></a> Townsend's manuscript has been separately published; but I do not
find that D'Ewes has omitted anything of consequence.</p>

<p class="footnote"><a name="Footnote_401" id="Footnote_401" href="#FNanchor_401"><span class="label">[401]</span></a> D'Ewes, p. 82; Strype, i. 258, from which latter passage it seems that
Cecil was rather adverse to the proposal.</p>

<p class="footnote"><a name="Footnote_402" id="Footnote_402" href="#FNanchor_402"><span class="label">[402]</span></a> 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
<i>Nugæ Antiquæ</i>, vol. i. p. 80.</p>

<p class="footnote"><a name="Footnote_403" id="Footnote_403" href="#FNanchor_403"><span class="label">[403]</span></a> Camden, p. 400.</p>

<p class="footnote"><a name="Footnote_404" id="Footnote_404" href="#FNanchor_404"><span class="label">[404]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_405" id="Footnote_405" href="#FNanchor_405"><span class="label">[405]</span></a> D'Ewes, p. 128.</p>

<p class="footnote"><a name="Footnote_406" id="Footnote_406" href="#FNanchor_406"><span class="label">[406]</span></a> <i>Id.</i> p. 116; Journals, 8th Oct., 25th Nov., 2nd Jan.</p>

<p class="footnote"><a name="Footnote_407" id="Footnote_407" href="#FNanchor_407"><span class="label">[407]</span></a> D'Ewes, p. 141.</p>

<p class="footnote"><a name="Footnote_408" id="Footnote_408" href="#FNanchor_408"><span class="label">[408]</span></a> D'Ewes, 156, etc. There is no mention of Strickland's business in the
journal.</p>

<p class="footnote"><a name="Footnote_409" id="Footnote_409" href="#FNanchor_409"><span class="label">[409]</span></a> 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. <i>Id.</i> 115.</p>

<p class="footnote"><a name="Footnote_410" id="Footnote_410" href="#FNanchor_410"><span class="label">[410]</span></a> <i>Id.</i> 158; Journals, 7 Apr.</p>

<p class="footnote"><a name="Footnote_411" id="Footnote_411" href="#FNanchor_411"><span class="label">[411]</span></a> Journals, 9 and 10 Apr.</p>

<p class="footnote"><a name="Footnote_412" id="Footnote_412" href="#FNanchor_412"><span class="label">[412]</span></a> D'Ewes, 159.</p>

<p class="footnote"><a name="Footnote_413" id="Footnote_413" href="#FNanchor_413"><span class="label">[413]</span></a> D'Ewes, 151.</p>

<p class="footnote"><a name="Footnote_414" id="Footnote_414" href="#FNanchor_414"><span class="label">[414]</span></a> 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 <i>Annals</i>, 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.</p>

<p class="footnote"><a name="Footnote_415" id="Footnote_415" href="#FNanchor_415"><span class="label">[415]</span></a> D'Ewes, 219.</p>

<p class="footnote"><a name="Footnote_416" id="Footnote_416" href="#FNanchor_416"><span class="label">[416]</span></a> <i>Id.</i>, 213, 214.</p>

<p class="footnote"><a name="Footnote_417" id="Footnote_417" href="#FNanchor_417"><span class="label">[417]</span></a> D'Ewes, 236.</p>

<p class="footnote"><a name="Footnote_418" id="Footnote_418" href="#FNanchor_418"><span class="label">[418]</span></a> D'Ewes, 260.</p>

<p class="footnote"><a name="Footnote_419" id="Footnote_419" href="#FNanchor_419"><span class="label">[419]</span></a> <i>Id.</i> 282.</p>

<p class="footnote"><a name="Footnote_420" id="Footnote_420" href="#FNanchor_420"><span class="label">[420]</span></a> D'Ewes, 410.</p>

<p class="footnote"><a name="Footnote_421" id="Footnote_421" href="#FNanchor_421"><span class="label">[421]</span></a> P. 438. Townsend calls this gentleman Davenport, which no doubt
was his true name.</p>

<p class="footnote"><a name="Footnote_422" id="Footnote_422" href="#FNanchor_422"><span class="label">[422]</span></a> D'Ewes, 433.</p>

<p class="footnote"><a name="Footnote_423" id="Footnote_423" href="#FNanchor_423"><span class="label">[423]</span></a> <i>Id. 440 et post.</i></p>

<p class="footnote"><a name="Footnote_424" id="Footnote_424" href="#FNanchor_424"><span class="label">[424]</span></a> <i>Id.</i> 470.</p>

<p class="footnote"><a name="Footnote_425" id="Footnote_425" href="#FNanchor_425"><span class="label">[425]</span></a> D'Ewes, 474; Townsend, 60.</p>

<p class="footnote"><a name="Footnote_426" id="Footnote_426" href="#FNanchor_426"><span class="label">[426]</span></a> <i>Id.</i> 62.</p>

<p class="footnote"><a name="Footnote_427" id="Footnote_427" href="#FNanchor_427"><span class="label">[427]</span></a> See the letter in Lodge's <i>Illustrations</i>, vol. iii. 34. Townsend says he
was committed to Sir John Fortescue's keeping, a gentler sort of imprisonment.</p>

<p class="footnote"><a name="Footnote_428" id="Footnote_428" href="#FNanchor_428"><span class="label">[428]</span></a> D'Ewes, 470.</p>

<p class="footnote"><a name="Footnote_429" id="Footnote_429" href="#FNanchor_429"><span class="label">[429]</span></a> Birch's <i>Memoirs of Elisabeth</i>, i. 96.</p>

<p class="footnote"><a name="Footnote_430" id="Footnote_430" href="#FNanchor_430"><span class="label">[430]</span></a> Strype has published, from Lord Burleigh's manuscripts, a speech made
in the parliament of 1589 against the subsidy then proposed. <i>Annals</i>,
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.</p>

<p class="footnote"><a name="Footnote_431" id="Footnote_431" href="#FNanchor_431"><span class="label">[431]</span></a> D'Ewes, 547.</p>

<p class="footnote"><a name="Footnote_432" id="Footnote_432" href="#FNanchor_432"><span class="label">[432]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_433" id="Footnote_433" href="#FNanchor_433"><span class="label">[433]</span></a> D'Ewes, 619, 644, etc.</p>

<p class="footnote">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&mdash;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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_434" id="Footnote_434" href="#FNanchor_434"><span class="label">[434]</span></a> <i>Parl. Hist.</i> 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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_435" id="Footnote_435" href="#FNanchor_435"><span class="label">[435]</span></a> Strype mentions letters from the council to Mildmay, Sheriff of Essex,
in 1559, about the choice of knights. <i>Annals</i>, 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. <span class="smcap">DCCIII.</span> 16.</p>

<p class="footnote">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 <i>room</i> 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.</p>

<p class="footnote">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 <i>Book of the Roman Catholic
Church</i>, 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.</p>

<p class="footnote"><a name="Footnote_436" id="Footnote_436" href="#FNanchor_436"><span class="label">[436]</span></a> D'Ewes, 168.</p>

<p class="footnote"><a name="Footnote_437" id="Footnote_437" href="#FNanchor_437"><span class="label">[437]</span></a> Journals, p. 88.</p>

<p class="footnote"><a name="Footnote_438" id="Footnote_438" href="#FNanchor_438"><span class="label">[438]</span></a> Holingshed, vol. iii. p. 824 (4to edit.); Hatsell's <i>Precedents</i>, 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.</p>

<p class="footnote"><a name="Footnote_439" id="Footnote_439" href="#FNanchor_439"><span class="label">[439]</span></a> Journals, Feb. 22nd and 27th.</p>

<p class="footnote"><a name="Footnote_440" id="Footnote_440" href="#FNanchor_440"><span class="label">[440]</span></a> Hatsell, 73, 92, 119.</p>

<p class="footnote"><a name="Footnote_441" id="Footnote_441" href="#FNanchor_441"><span class="label">[441]</span></a> <i>Id.</i> 90.</p>

<p class="footnote"><a name="Footnote_442" id="Footnote_442" href="#FNanchor_442"><span class="label">[442]</span></a> <i>Id.</i> 97.</p>

<p class="footnote"><a name="Footnote_443" id="Footnote_443" href="#FNanchor_443"><span class="label">[443]</span></a> <i>Id.</i> 96.</p>

<p class="footnote"><a name="Footnote_444" id="Footnote_444" href="#FNanchor_444"><span class="label">[444]</span></a> <i>Id.</i> 119.</p>

<p class="footnote"><a name="Footnote_445" id="Footnote_445" href="#FNanchor_445"><span class="label">[445]</span></a> Journals, 5th and 7th March 1557-8.</p>

<p class="footnote"><a name="Footnote_446" id="Footnote_446" href="#FNanchor_446"><span class="label">[446]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_447" id="Footnote_447" href="#FNanchor_447"><span class="label">[447]</span></a> Hatsell, 80.</p>

<p class="footnote"><a name="Footnote_448" id="Footnote_448" href="#FNanchor_448"><span class="label">[448]</span></a> D'Ewes, 341.</p>

<p class="footnote"><a name="Footnote_449" id="Footnote_449" href="#FNanchor_449"><span class="label">[449]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_450" id="Footnote_450" href="#FNanchor_450"><span class="label">[450]</span></a> Journals, 1 Mary, p. 27.</p>

<p class="footnote"><a name="Footnote_451" id="Footnote_451" href="#FNanchor_451"><span class="label">[451]</span></a> D'Ewes, 393, etc.</p>

<p class="footnote"><a name="Footnote_452" id="Footnote_452" href="#FNanchor_452"><span class="label">[452]</span></a> <i>Id.</i> 430.</p>

<p class="footnote"><a name="Footnote_453" id="Footnote_453" href="#FNanchor_453"><span class="label">[453]</span></a> <i>Id.</i> 539.</p>

<p class="footnote"><a name="Footnote_454" id="Footnote_454" href="#FNanchor_454"><span class="label">[454]</span></a> <i>Id.</i> 596.</p>

<p class="footnote"><a name="Footnote_455" id="Footnote_455" href="#FNanchor_455"><span class="label">[455]</span></a> 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 <i>attend</i> 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. <i>Id.</i> 627.</p>

<p class="footnote"><a name="Footnote_456" id="Footnote_456" href="#FNanchor_456"><span class="label">[456]</span></a> Birch's <i>Memoirs</i>, i. 97, 120, 152, etc., ii. 129; Bacon's Works, vol. ii.
p. 416, 435.</p>

<p class="footnote"><a name="Footnote_457" id="Footnote_457" href="#FNanchor_457"><span class="label">[457]</span></a> Raleigh's <i>Dedication of his Prerogative of Parliaments to James I.</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."&mdash;"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 <i>The Prince; or, Thesaurus of State</i>, 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.</p>

<p class="footnote"><a name="Footnote_458" id="Footnote_458" href="#FNanchor_458"><span class="label">[458]</span></a> <i>Le Contre Un</i> 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 <i>Franco-Gallia</i> 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 <i>Vindicæ contra Tyrannos</i>, published under the name of
Junius Brutus, is a more argumentative discussion of the rights of governors
and their subjects.</p>

<p class="footnote"><a name="Footnote_459" id="Footnote_459" href="#FNanchor_459"><span class="label">[459]</span></a> D'Ewes, p. 115.</p>

<p class="footnote">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 <i>Parker</i>, 177.</p>

<p class="footnote">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 <i>Reports</i>, 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."&mdash;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.</p>

<p class="footnote">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.&mdash;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.</p>

<p class="footnote"><a name="Footnote_460" id="Footnote_460" href="#FNanchor_460"><span class="label">[460]</span></a> <i>Harborowe of True and Faithful Subjects</i>, 1559. Most of this passage
is quoted by Dr. M'Crie, in his <i>Life of Knox</i>, vol. i. note BB, to whom I
am indebted for pointing it out.</p>

<p class="footnote"><a name="Footnote_461" id="Footnote_461" href="#FNanchor_461"><span class="label">[461]</span></a> <i>Commonwealth of England</i>, b. ii. c. 3.</p>

<p class="footnote"><a name="Footnote_462" id="Footnote_462" href="#FNanchor_462"><span class="label">[462]</span></a> 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 à son plaisir, et centre la volonté des
estats, comme on a vu Henry VIII. avoir toujours usé de sa puissance
souveraine. He admitted, however, that taxes could only be imposed in
parliament. <i>De la République</i>, l. i. c. 8.</p>

<p class="footnote"><a name="Footnote_463" id="Footnote_463" href="#FNanchor_463"><span class="label">[463]</span></a> 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 <i>History of the
British Empire from the Accession of Charles I. to the Restoration</i>, 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.</p>

<p class="footnote"><a name="Footnote_464" id="Footnote_464" href="#FNanchor_464"><span class="label">[464]</span></a> Father Persons, a subtle and lying Jesuit, published in 1594, under the
name of Doleman, a treatise entitled <i>Conference about the next Succession
to the Crown of England</i>. 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. <i>Sidney Papers</i>, i. 357;
Birch's <i>Memoirs</i>, 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
<i>Conference</i>, 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."&mdash;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, <i>Leicester's Commonwealth</i>, 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.</p>

<p class="footnote">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 <i>Memoirs</i>, 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 <i>Memorials</i>, i. 57; <i>Lettres du Cardinal
d'Ossat</i>, ii. 501.</p>

<p class="footnote">For the life and character of the famous Father Persons, or Parsons,
above mentioned, see Dodd's <i>Church History</i>, the <i>Biographia Britannica</i>,
or Miss Aikin's <i>James I.</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.</p>

<p class="footnote"><a name="Footnote_465" id="Footnote_465" href="#FNanchor_465"><span class="label">[465]</span></a> D'Ossat, <i>ubi suprà</i>. 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. <i>Mem. de Sully</i>, 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 <i>Secret Correspondence
with King James</i>, published by Sir David Dalrymple, vol. i. <i>passim</i>.</p>

<p class="footnote"><a name="Footnote_466" id="Footnote_466" href="#FNanchor_466"><span class="label">[466]</span></a> 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 <i>Memoirs</i>, p. 176. But her uniform conduct shows her
intentions. See, however, D'Israeli's <i>Curiosities of Literature</i>, iii. 107.</p>

<p class="footnote">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 <i>Secret Correspondence</i>, 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.</p>

<p class="footnote"><a name="Footnote_467" id="Footnote_467" href="#FNanchor_467"><span class="label">[467]</span></a> 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 <i>Hereditary Right</i>, 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 <i>Acta
Regia</i>.</p>

<p class="footnote"><a name="Footnote_468" id="Footnote_468" href="#FNanchor_468"><span class="label">[468]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_469" id="Footnote_469" href="#FNanchor_469"><span class="label">[469]</span></a> Bedford's (Harbin's) <i>Hereditary Right Asserted</i>, p. 204.</p>

<p class="footnote"><a name="Footnote_470" id="Footnote_470" href="#FNanchor_470"><span class="label">[470]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_471" id="Footnote_471" href="#FNanchor_471"><span class="label">[471]</span></a> "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." <i>Baronage of England</i>, 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.</p>

<p class="footnote"><a name="Footnote_472" id="Footnote_472" href="#FNanchor_472"><span class="label">[472]</span></a> 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 <i>Negotiations</i>, p. 219, or Aikin's
<i>James I.</i> i. 225.</p>

<p class="footnote"><a name="Footnote_473" id="Footnote_473" href="#FNanchor_473"><span class="label">[473]</span></a> "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.</p>

<p class="footnote"><a name="Footnote_474" id="Footnote_474" href="#FNanchor_474"><span class="label">[474]</span></a> Dugdale's <i>Baronage</i>; Luders' <i>Essay on the Right of Succession to the
Crown in the Reign of Elizabeth</i>. 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.</p>

<p class="footnote"><a name="Footnote_475" id="Footnote_475" href="#FNanchor_475"><span class="label">[475]</span></a> Luders, <i>ubi suprà</i>.</p>

<p class="footnote"><a name="Footnote_476" id="Footnote_476" href="#FNanchor_476"><span class="label">[476]</span></a> 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, <i>Leicester's Commonwealth</i>,
and the <i>Conference</i>, 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.</p>

<p class="footnote"><a name="Footnote_477" id="Footnote_477" href="#FNanchor_477"><span class="label">[477]</span></a> Bolingbroke is of this opinion; considering the act of recognition as
"the æra of hereditary right, and of all those exalted notions concerning
the power of prerogative of kings and the sacredness of their persons."
<i>Dissertation on Parties</i>, Letter II.</p>

<p class="footnote"><a name="Footnote_478" id="Footnote_478" href="#FNanchor_478"><span class="label">[478]</span></a> Stat. 1 Jac. c. 1.</p>

<p class="footnote"><a name="Footnote_479" id="Footnote_479" href="#FNanchor_479"><span class="label">[479]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_480" id="Footnote_480" href="#FNanchor_480"><span class="label">[480]</span></a> 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?" <i>Nugæ
Antiquæ</i>, vol. i. p. 180.</p>

<p class="footnote">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 <i>Complete History</i>,
vol. ii. p. 667.</p>

<p class="footnote"><a name="Footnote_481" id="Footnote_481" href="#FNanchor_481"><span class="label">[481]</span></a> 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
où il sembloit qu'on eût si fort affecté de mettre en oubli cette grande reine
qu'on n'y faisoit jamais mention d'elle, et qu'on évitoit même de prononcer
son nom." <i>Mém. de Sully</i>, l. 14. James afterwards spoke slightingly to
Sully of his predecessor, and said that he had long ruled England through
her ministers.</p>

<p class="footnote"><a name="Footnote_482" id="Footnote_482" href="#FNanchor_482"><span class="label">[482]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_483" id="Footnote_483" href="#FNanchor_483"><span class="label">[483]</span></a> 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 <i>Basilicon Doron</i>,
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.</p>

<p class="footnote"><a name="Footnote_484" id="Footnote_484" href="#FNanchor_484"><span class="label">[484]</span></a> Strype's <i>Whitgift</i>, p. 571; Collier, p. 675; Neal, p. 411; Fuller, part ii.
p. 7.; <i>State Trials</i>, vol. ii. p. 69; <i>Ph&oelig;nix Britannicus</i>, 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 <i>Nugæ Antiquæ</i>, i. 181, which I would quote as the best evidence
of James's behaviour, were the passage quite decent.</p>

<p class="footnote"><a name="Footnote_485" id="Footnote_485" href="#FNanchor_485"><span class="label">[485]</span></a> 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. <i>Hist. and Ant. of Oxford</i>, ii. 293.
James wrote a conceited letter to one Blake, boasting of his own superior
logic and learning. Strype's <i>Whitgift</i>, Append. 239.</p>

<p class="footnote"><a name="Footnote_486" id="Footnote_486" href="#FNanchor_486"><span class="label">[486]</span></a> Rymer, xvi. 565.</p>

<p class="footnote"><a name="Footnote_487" id="Footnote_487" href="#FNanchor_487"><span class="label">[487]</span></a> Strype's <i>Whitgift</i>, 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.&mdash;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 <i>ex officio</i>, 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?</p>

<p class="footnote"><a name="Footnote_488" id="Footnote_488" href="#FNanchor_488"><span class="label">[488]</span></a> <i>Id. ibid.</i></p>

<p class="footnote"><a name="Footnote_489" id="Footnote_489" href="#FNanchor_489"><span class="label">[489]</span></a> Neal, 432; Winwood, ii. 36.</p>

<p class="footnote"><a name="Footnote_490" id="Footnote_490" href="#FNanchor_490"><span class="label">[490]</span></a> See one of the <i>Somers Tracts</i>, 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.</p>

<p class="footnote"><a name="Footnote_491" id="Footnote_491" href="#FNanchor_491"><span class="label">[491]</span></a> King James's Works, p. 207.</p>

<p class="footnote"><a name="Footnote_492" id="Footnote_492" href="#FNanchor_492"><span class="label">[492]</span></a> <i>Parl. Hist.</i> i. 967.</p>

<p class="footnote"><a name="Footnote_493" id="Footnote_493" href="#FNanchor_493"><span class="label">[493]</span></a> Commons' Journals, i. 166.</p>

<p class="footnote"><a name="Footnote_494" id="Footnote_494" href="#FNanchor_494"><span class="label">[494]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_495" id="Footnote_495" href="#FNanchor_495"><span class="label">[495]</span></a> Commons' Journals, 147, etc.; <i>Parl. Hist.</i> 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 <i>Memorials</i>, ii. 18, where he artfully endeavours to treat the
matter as of little importance.</p>

<p class="footnote"><a name="Footnote_496" id="Footnote_496" href="#FNanchor_496"><span class="label">[496]</span></a> Commons' Journals, page 155, etc.; <i>Parl. Hist.</i> 1028; Carte, 734.</p>

<p class="footnote"><a name="Footnote_497" id="Footnote_497" href="#FNanchor_497"><span class="label">[497]</span></a> 1 Jac. i. c. 13.</p>

<p class="footnote"><a name="Footnote_498" id="Footnote_498" href="#FNanchor_498"><span class="label">[498]</span></a> By one of these canons, all persons affirming any of the thirty-nine
articles to be erroneous are excommunicated <i>ipso facto</i>; consequently
become incapable of being witnesses, of suing for their debts, etc. Neal,
428. But the courts of law disregarded these <i>ipso facto</i> excommunications.</p>

<p class="footnote"><a name="Footnote_499" id="Footnote_499" href="#FNanchor_499"><span class="label">[499]</span></a> <i>Somers Tracts</i>, ii. 14; Journals, 199, 235, 238; <i>Parl. Hist.</i> 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.</p>

<p class="footnote"><a name="Footnote_500" id="Footnote_500" href="#FNanchor_500"><span class="label">[500]</span></a> Bacon's Works, i. 624; Journals, 190, 215.</p>

<p class="footnote"><a name="Footnote_501" id="Footnote_501" href="#FNanchor_501"><span class="label">[501]</span></a> Commons' Journals, 150, etc.</p>

<p class="footnote"><a name="Footnote_502" id="Footnote_502" href="#FNanchor_502"><span class="label">[502]</span></a> Journals, 246.</p>

<p class="footnote"><a name="Footnote_503" id="Footnote_503" href="#FNanchor_503"><span class="label">[503]</span></a> Journals, 230.</p>

<p class="footnote"><a name="Footnote_504" id="Footnote_504" href="#FNanchor_504"><span class="label">[504]</span></a> <i>Parl. Hist.</i> 1030, from Petyt's <i>Jus Parliamentarium</i>, 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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_505" id="Footnote_505" href="#FNanchor_505"><span class="label">[505]</span></a> "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.
<span class="flright">
J. R."</span></p>

<p class="footnote center">MS. penes autorem.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_506" id="Footnote_506" href="#FNanchor_506"><span class="label">[506]</span></a> <i>Parl. Hist. Journals</i>, 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.</p>

<p class="footnote"><a name="Footnote_507" id="Footnote_507" href="#FNanchor_507"><span class="label">[507]</span></a> Journals, 316.</p>

<p class="footnote">An acute historical critic doubts whether James aimed at an union of
legislatures, though suggested by Bacon. Laing's <i>Hist. of Scotland</i>, 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.</p>

<p class="footnote"><a name="Footnote_508" id="Footnote_508" href="#FNanchor_508"><span class="label">[508]</span></a> 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. <i>State Trials</i>,
vol. ii. 559.</p>

<p class="footnote">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." <i>Id.</i> 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."&mdash;652.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_509" id="Footnote_509" href="#FNanchor_509"><span class="label">[509]</span></a> The house had lately expelled Sir Christopher Pigott for reflecting on
the Scots nation in a speech. Journals, 13th Feb. 1607.</p>

<p class="footnote"><a name="Footnote_510" id="Footnote_510" href="#FNanchor_510"><span class="label">[510]</span></a> Commons' Journals, 366.</p>

<p class="footnote">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
<i>remitter</i>, to the prerogatives of the British kings before Julius Cæsar, which
would supersede Magna Charta. P. 185.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_511" id="Footnote_511" href="#FNanchor_511"><span class="label">[511]</span></a> Commons' Journals, p. 370.</p>

<p class="footnote"><a name="Footnote_512" id="Footnote_512" href="#FNanchor_512"><span class="label">[512]</span></a> P. 377.</p>

<p class="footnote"><a name="Footnote_513" id="Footnote_513" href="#FNanchor_513"><span class="label">[513]</span></a> Commons' Journals, p. 384.</p>

<p class="footnote"><a name="Footnote_514" id="Footnote_514" href="#FNanchor_514"><span class="label">[514]</span></a> 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. <i>Id.</i> 938.</p>

<p class="footnote"><a name="Footnote_515" id="Footnote_515" href="#FNanchor_515"><span class="label">[515]</span></a> Winwood, vol. ii. 100, 152, etc.; Birch's <i>Negotiations of Edmondes</i>. 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.</p>

<p class="footnote"><a name="Footnote_516" id="Footnote_516" href="#FNanchor_516"><span class="label">[516]</span></a> 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 Dépôt des Affaires Etrangères; as if an ambassador were not liable to
be deceived by rumours in a country of which he has in general too little
knowledge to correct them.</p>

<p class="footnote"><a name="Footnote_517" id="Footnote_517" href="#FNanchor_517"><span class="label">[517]</span></a> 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 prière 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.</p>

<p class="footnote"><a name="Footnote_518" id="Footnote_518" href="#FNanchor_518"><span class="label">[518]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_519" id="Footnote_519" href="#FNanchor_519"><span class="label">[519]</span></a> 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, <i>which is merely against the law</i>; also the prohibition above
said was held to be private, and not public. But Baron Lake <i>e contra</i>,
and Browne J. <i>censuit deliberandum</i>. 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.</p>

<p class="footnote"><a name="Footnote_520" id="Footnote_520" href="#FNanchor_520"><span class="label">[520]</span></a> Bacon, i. 521.</p>

<p class="footnote"><a name="Footnote_521" id="Footnote_521" href="#FNanchor_521"><span class="label">[521]</span></a> Hale's <i>Treatise on the Customs</i>, part 3; in Hargrave's <i>Collection of Law
Tracts</i>. See also the preface by Hargrave to Bates's case, in the <i>State
Trials</i>, where this most important question is learnedly argued.</p>

<p class="footnote"><a name="Footnote_522" id="Footnote_522" href="#FNanchor_522"><span class="label">[522]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_523" id="Footnote_523" href="#FNanchor_523"><span class="label">[523]</span></a> <i>State Trials</i>, ii. 371.</p>

<p class="footnote"><a name="Footnote_524" id="Footnote_524" href="#FNanchor_524"><span class="label">[524]</span></a> Hale's <i>Treatise on the Customs</i>. These were perpetual, "to be for ever
hereafter paid to the king and his successors, on pain of his displeasure."
<i>State Trials</i>, 481.</p>

<p class="footnote"><a name="Footnote_525" id="Footnote_525" href="#FNanchor_525"><span class="label">[525]</span></a> Journals, 295, 297.</p>

<p class="footnote"><a name="Footnote_526" id="Footnote_526" href="#FNanchor_526"><span class="label">[526]</span></a> 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. <i>State Trials</i>, ii. 407. The extreme inferiority of Bacon, who
sustained the cause of prerogative, must be apparent to every one. <i>Id.</i>
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. <i>Id.</i> 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.</p>

<p class="footnote">As to the king's prerogative of restraining foreign trade, see extracts
from Hale's MS. Treatise de Jure Coronæ, in Hargrave's Preface to
<i>Collection of Law Tracts</i>, p. xxx. etc. It seems to have been chiefly as to
exportation of corn.</p>

<p class="footnote"><a name="Footnote_527" id="Footnote_527" href="#FNanchor_527"><span class="label">[527]</span></a> Aikin's <i>Memoirs of James I.</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.</p>

<p class="footnote"><a name="Footnote_528" id="Footnote_528" href="#FNanchor_528"><span class="label">[528]</span></a> Journals, 431.</p>

<p class="footnote"><a name="Footnote_529" id="Footnote_529" href="#FNanchor_529"><span class="label">[529]</span></a> <i>Somers Tracts</i>, vol. ii. 159; in the Journals much shorter.</p>

<p class="footnote"><a name="Footnote_530" id="Footnote_530" href="#FNanchor_530"><span class="label">[530]</span></a> 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."&mdash;P. 3.</p>

<p class="footnote"><a name="Footnote_531" id="Footnote_531" href="#FNanchor_531"><span class="label">[531]</span></a> Coke's 2nd Institute, 601; Collier, 688; <i>State Trials</i>, ii. 131. See too
an angry letter of Bancroft, written about 1611 (Strype's <i>Life of Whitgift</i>,
Append. 227), wherein he inveighs against the common lawyers and the
parliament.</p>

<p class="footnote"><a name="Footnote_532" id="Footnote_532" href="#FNanchor_532"><span class="label">[532]</span></a> Cowell's <i>Interpreter, or Law Dictionary</i>; 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 præmunire, 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.</p>

<p class="footnote"><a name="Footnote_533" id="Footnote_533" href="#FNanchor_533"><span class="label">[533]</span></a> Commons' Journals, 339, and afterwards to 415. The authors of the
<i>Parliamentary History</i> 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
<i>Memorials</i>, to which I refer the curious reader. Vol. iii. p. 125, 129, 131,
136, 137, 145.</p>

<p class="footnote"><a name="Footnote_534" id="Footnote_534" href="#FNanchor_534"><span class="label">[534]</span></a> Winwood, iii. 123.</p>

<p class="footnote"><a name="Footnote_535" id="Footnote_535" href="#FNanchor_535"><span class="label">[535]</span></a> <i>Somers Tracts</i>, ii. 162; <i>State Trials</i>, ii. 519.</p>

<p class="footnote"><a name="Footnote_536" id="Footnote_536" href="#FNanchor_536"><span class="label">[536]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_537" id="Footnote_537" href="#FNanchor_537"><span class="label">[537]</span></a> Commons' Journals for 1610, <i>passim</i>; Lords' Journals, 7th May, <i>et
post</i>; <i>Parl. Hist.</i> 1124, <i>et post</i>; Bacon, i. 676; Winwood, iii. 119, <i>et post</i>.</p>

<p class="footnote"><a name="Footnote_538" id="Footnote_538" href="#FNanchor_538"><span class="label">[538]</span></a> It appears by a letter of the king, in Murden's <i>State Papers</i>, 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.</p>

<p class="footnote"><a name="Footnote_539" id="Footnote_539" href="#FNanchor_539"><span class="label">[539]</span></a> "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." <i>Nugæ Antiquæ</i>, i. 395.</p>

<p class="footnote"><a name="Footnote_540" id="Footnote_540" href="#FNanchor_540"><span class="label">[540]</span></a> 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 (<i>Nugæ Antiquæ</i>, i. 348), which Mr. Gifford,
who seems absolutely enraptured with this age and its manners, might as
well have remembered. <i>Life of Ben Jonson</i>, p. 231, etc. The king's
prodigality is notorious.</p>

<p class="footnote"><a name="Footnote_541" id="Footnote_541" href="#FNanchor_541"><span class="label">[541]</span></a> "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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_542" id="Footnote_542" href="#FNanchor_542"><span class="label">[542]</span></a> Carte, iii. 747; Birch's <i>Life of P. Henry</i>, 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.</p>

<p class="footnote"><a name="Footnote_543" id="Footnote_543" href="#FNanchor_543"><span class="label">[543]</span></a> Winwood, vol. ii.; Carte, iii. 749; Watson's <i>Hist. of Philip III.</i>
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 <i>Memoirs of Sully</i>,
l. 14, and <i>Nugæ. Antiquæ</i>, 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." <i>Lands. Cat.</i> 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.</p>

<p class="footnote"><a name="Footnote_544" id="Footnote_544" href="#FNanchor_544"><span class="label">[544]</span></a> 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."&mdash;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.</p>

<p class="footnote"><a name="Footnote_545" id="Footnote_545" href="#FNanchor_545"><span class="label">[545]</span></a> Winwood, vols. ii. and iii. <i>passim</i>. Birch, that accurate master of this
part of English history, has done justice to Salisbury's character. <i>Negotiations
of Edmondes</i>, 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? <i>Memoirs of James</i>,
i. 395.</p>

<p class="footnote"><a name="Footnote_546" id="Footnote_546" href="#FNanchor_546"><span class="label">[546]</span></a> "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.</p>

<p class="footnote"><a name="Footnote_547" id="Footnote_547" href="#FNanchor_547"><span class="label">[547]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_548" id="Footnote_548" href="#FNanchor_548"><span class="label">[548]</span></a> 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.</p>

<p class="footnote">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).</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_549" id="Footnote_549" href="#FNanchor_549"><span class="label">[549]</span></a> Winwood, iii. 193.</p>

<p class="footnote"><a name="Footnote_550" id="Footnote_550" href="#FNanchor_550"><span class="label">[550]</span></a> Carte, iii. 805.</p>

<p class="footnote"><a name="Footnote_551" id="Footnote_551" href="#FNanchor_551"><span class="label">[551]</span></a> 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
<i>Somers Tracts</i>. In the first part of his reign he had availed himself of an old
feudal resource, calling on all who held £40 a year in chivalry (whether of
the crown or not, as it seems) to receive knighthood, or to pay a composition.
Rymer, xvi. 530. The object of this was of course to raise
money from those who thought the honour troublesome and expensive,
but such as chose to appear could not be refused; and this accounts for
his having made many hundred knights in the first year of his reign.
Harris's <i>Life of James</i>, 69.</p>

<p class="footnote"><a name="Footnote_552" id="Footnote_552" href="#FNanchor_552"><span class="label">[552]</span></a> MS. penes autorem.</p>

<p class="footnote"><a name="Footnote_553" id="Footnote_553" href="#FNanchor_553"><span class="label">[553]</span></a> Carte, iv. 17.</p>

<p class="footnote"><a name="Footnote_554" id="Footnote_554" href="#FNanchor_554"><span class="label">[554]</span></a> Wilson, in Kennet, ii. 696.</p>

<p class="footnote"><a name="Footnote_555" id="Footnote_555" href="#FNanchor_555"><span class="label">[555]</span></a> This act (34 H. 8, c. 26) was repealed a few years afterwards. 21 J. 1,
c. 10.</p>

<p class="footnote"><a name="Footnote_556" id="Footnote_556" href="#FNanchor_556"><span class="label">[556]</span></a> 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. <i>Id.</i> 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.</p>

<p class="footnote"><a name="Footnote_557" id="Footnote_557" href="#FNanchor_557"><span class="label">[557]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_558" id="Footnote_558" href="#FNanchor_558"><span class="label">[558]</span></a> Lords' Journals, May 31; Commons' Journals, 496, 498.</p>

<p class="footnote"><a name="Footnote_559" id="Footnote_559" href="#FNanchor_559"><span class="label">[559]</span></a> Carte, iv. 23. Neville's memorial above mentioned was read in the
house, May 14.</p>

<p class="footnote"><a name="Footnote_560" id="Footnote_560" href="#FNanchor_560"><span class="label">[560]</span></a> Carte, iv. 19, 20; Bacon, i. 695; C. J. 462.</p>

<p class="footnote"><a name="Footnote_561" id="Footnote_561" href="#FNanchor_561"><span class="label">[561]</span></a> C. J. 506; Carte, 23. This writer absurdly defends the prerogative of
laying impositions on merchandise as part of the <i>law of nations</i>.</p>

<p class="footnote"><a name="Footnote_562" id="Footnote_562" href="#FNanchor_562"><span class="label">[562]</span></a> 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 <i>Character of James</i>, p. 158, on the authority of
an unpublished letter.</p>

<p class="footnote"><a name="Footnote_563" id="Footnote_563" href="#FNanchor_563"><span class="label">[563]</span></a> Carte; Wilson; Camden's <i>Annals of James I.</i> (in Kennet, ii. 643).</p>

<p class="footnote"><a name="Footnote_564" id="Footnote_564" href="#FNanchor_564"><span class="label">[564]</span></a> Carte, iv. p. 56.</p>

<p class="footnote"><a name="Footnote_565" id="Footnote_565" href="#FNanchor_565"><span class="label">[565]</span></a> 12 Reports, 119.</p>

<p class="footnote"><a name="Footnote_566" id="Footnote_566" href="#FNanchor_566"><span class="label">[566]</span></a> <i>State Trials</i>, ii. 889.</p>

<p class="footnote"><a name="Footnote_567" id="Footnote_567" href="#FNanchor_567"><span class="label">[567]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_568" id="Footnote_568" href="#FNanchor_568"><span class="label">[568]</span></a> <i>State Trials</i>, ii. 869; Bacon, ii. 483, etc.; Dalrymple's <i>Memorials of
James I.</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>i.e.</i> 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. <i>State Trials</i>, 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. <i>Id.</i> 1085.</p>

<p class="footnote"><a name="Footnote_569" id="Footnote_569" href="#FNanchor_569"><span class="label">[569]</span></a> Bacon, ii. 500, 518, 522; Cro. Jac. 335, 343.</p>

<p class="footnote"><a name="Footnote_570" id="Footnote_570" href="#FNanchor_570"><span class="label">[570]</span></a> Bacon, ii. 517, etc.; Carte, iv. 35; <i>Biograph. Brit.</i>, 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.</p>

<p class="footnote"><a name="Footnote_571" id="Footnote_571" href="#FNanchor_571"><span class="label">[571]</span></a> See D'Israeli, <i>Character of James I.</i>, p. 125. He was too much affected
by his dismissal from office.</p>

<p class="footnote"><a name="Footnote_572" id="Footnote_572" href="#FNanchor_572"><span class="label">[572]</span></a> Camden's <i>Annals of James I.</i> in Kennet, vol. ii.; Wilson, <i>ibid.</i>, 704, 705;
Bacon's Works, ii. 574. The fine imposed was £30,000; Coke voted for
£100,000.</p>

<p class="footnote"><a name="Footnote_573" id="Footnote_573" href="#FNanchor_573"><span class="label">[573]</span></a> Fuller's <i>Church Hist.</i> 56; Neal, i. 435; Lodge, iii. 344.</p>

<p class="footnote"><a name="Footnote_574" id="Footnote_574" href="#FNanchor_574"><span class="label">[574]</span></a> <i>State Trials</i>, ii. 765.</p>

<p class="footnote"><a name="Footnote_575" id="Footnote_575" href="#FNanchor_575"><span class="label">[575]</span></a> Collier, 712, 717; Selden's Life in <i>Biographia Brit.</i></p>

<p class="footnote"><a name="Footnote_576" id="Footnote_576" href="#FNanchor_576"><span class="label">[576]</span></a> Carte, iii. 698.</p>

<p class="footnote"><a name="Footnote_577" id="Footnote_577" href="#FNanchor_577"><span class="label">[577]</span></a> <i>State Trials</i>, ii. 23; Lodge's <i>Illustrations</i>, iii. 217.</p>

<p class="footnote"><a name="Footnote_578" id="Footnote_578" href="#FNanchor_578"><span class="label">[578]</span></a> Winwood, iii. 201, 279.</p>

<p class="footnote"><a name="Footnote_579" id="Footnote_579" href="#FNanchor_579"><span class="label">[579]</span></a> <i>Id.</i> 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.</p>

<p class="footnote">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 <i>Curiosities of Literature</i>, 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."</p>

<p class="footnote">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.</p>

<p class="footnote">This had been also conjectured in the queen's life-time. <i>Secret Correspondence
of Cecil with James I.</i>, p. 118.</p>

<p class="footnote"><a name="Footnote_580" id="Footnote_580" href="#FNanchor_580"><span class="label">[580]</span></a> <i>State Trials</i>, ii. 769.</p>

<p class="footnote"><a name="Footnote_581" id="Footnote_581" href="#FNanchor_581"><span class="label">[581]</span></a> Sir Charles Cornwallis's <i>Memoir of Prince Henry</i>, 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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_582" id="Footnote_582" href="#FNanchor_582"><span class="label">[582]</span></a> 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 <i>State Trials</i>, and various
passages in Lord Bacon's <i>Letters</i>, 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 <i>Memoirs</i>, 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 <i>Archæologia</i>, 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."</p>

<p class="footnote">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.</p>

<p class="footnote">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 <i>Archæologia</i>, 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. <i>Archæologia</i>, 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 (<i>Parl. Hist.</i> 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.</p>

<p class="footnote"><a name="Footnote_583" id="Footnote_583" href="#FNanchor_583"><span class="label">[583]</span></a> 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 <i>Life of Raleigh</i>,
vol. ii. p. 10. Hume says, it appears from Sully's <i>Memoirs</i> 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 <i>Life of Raleigh</i>, 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.</p>

<p class="footnote"><a name="Footnote_584" id="Footnote_584" href="#FNanchor_584"><span class="label">[584]</span></a> 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,
£12,000 instead. But the estate was worth £5000 per annum. This ruin
of the prospects of a man far too intent on aggrandisement impelled him
once more into the labyrinth of fatal and dishonest speculations. Cayley,
89, etc.; <i>Somers Tracts</i>, ii. p. 22, etc.; <i>Curiosities of Literature</i>, 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.</p>

<p class="footnote"><a name="Footnote_585" id="Footnote_585" href="#FNanchor_585"><span class="label">[585]</span></a> Rymer, xvi. 789. He was empowered to name officers, to use martial
law, etc.</p>

<p class="footnote"><a name="Footnote_586" id="Footnote_586" href="#FNanchor_586"><span class="label">[586]</span></a> 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.
<i>Somers Tracts</i>, ii. 437. There is even reason to suspect that he betrayed
the secret of Raleigh's voyage to Gondomar, before he sailed. Hardwicke,
<i>State Papers</i>, i. 398. It is said in Mr. Cayley's <i>Life of Raleigh</i> 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.</p>

<p class="footnote"><a name="Footnote_587" id="Footnote_587" href="#FNanchor_587"><span class="label">[587]</span></a> 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. <i>Id.</i> 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.</p>

<p class="footnote">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. <i>Id.</i> and Rushworth, i. 19.</p>

<p class="footnote"><a name="Footnote_588" id="Footnote_588" href="#FNanchor_588"><span class="label">[588]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_589" id="Footnote_589" href="#FNanchor_589"><span class="label">[589]</span></a> "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;"&mdash;he
owns that at the last parliament there was "a strange kind of beast
called undertaker," etc. <i>Parl. Hist.</i> 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.</p>

<p class="footnote"><a name="Footnote_590" id="Footnote_590" href="#FNanchor_590"><span class="label">[590]</span></a> 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 <i>Parliamentary
History</i>.</p>

<p class="footnote"><a name="Footnote_591" id="Footnote_591" href="#FNanchor_591"><span class="label">[591]</span></a> <i>Id.</i> 103, 109.</p>

<p class="footnote"><a name="Footnote_592" id="Footnote_592" href="#FNanchor_592"><span class="label">[592]</span></a> 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 prædictorum
alicui in eo loco responsorum." Lords' Journals, i. 71. The lords, however,
in 1701 (<i>State Trials</i>, xiv. 275), seem to have recognised this as a case
of impeachment.</p>

<p class="footnote"><a name="Footnote_593" id="Footnote_593" href="#FNanchor_593"><span class="label">[593]</span></a> Debates in 1621, p. 114, 228, 229.</p>

<p class="footnote"><a name="Footnote_594" id="Footnote_594" href="#FNanchor_594"><span class="label">[594]</span></a> <i>Id. passim.</i></p>

<p class="footnote"><a name="Footnote_595" id="Footnote_595" href="#FNanchor_595"><span class="label">[595]</span></a> Carte.</p>

<p class="footnote"><a name="Footnote_596" id="Footnote_596" href="#FNanchor_596"><span class="label">[596]</span></a> 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
Angliæ mutari,' is imprinted in the hearts of all the people." I may add
that with all Bacon's pliancy, there are fewer over-strained expressions
about the prerogative in his 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.</p>

<p class="footnote">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."&mdash;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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_597" id="Footnote_597" href="#FNanchor_597"><span class="label">[597]</span></a> Debates in 1621, vol. ii. p. 7.</p>

<p class="footnote"><a name="Footnote_598" id="Footnote_598" href="#FNanchor_598"><span class="label">[598]</span></a> Debates, p. 14.</p>

<p class="footnote"><a name="Footnote_599" id="Footnote_599" href="#FNanchor_599"><span class="label">[599]</span></a> 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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_600" id="Footnote_600" href="#FNanchor_600"><span class="label">[600]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_601" id="Footnote_601" href="#FNanchor_601"><span class="label">[601]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_602" id="Footnote_602" href="#FNanchor_602"><span class="label">[602]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_603" id="Footnote_603" href="#FNanchor_603"><span class="label">[603]</span></a> Debates of 1621, p. 14; Hatsell's <i>Precedents</i>, i. 133.</p>

<p class="footnote"><a name="Footnote_604" id="Footnote_604" href="#FNanchor_604"><span class="label">[604]</span></a> Debates, p. 114, <i>et alibi, passim</i>.</p>

<p class="footnote"><a name="Footnote_605" id="Footnote_605" href="#FNanchor_605"><span class="label">[605]</span></a> Vol. ii. 170, 172.</p>

<p class="footnote"><a name="Footnote_606" id="Footnote_606" href="#FNanchor_606"><span class="label">[606]</span></a> <i>Id.</i> p. 186.</p>

<p class="footnote"><a name="Footnote_607" id="Footnote_607" href="#FNanchor_607"><span class="label">[607]</span></a> 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<i>s.</i> were now 30<i>s.</i> 3. That corn had risen from 26<i>s.</i> to 36<i>s.</i> the quarter.
<i>Ibid.</i> 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&mdash;about 30<i>s.</i> a
quarter.</p>

<p class="footnote"><a name="Footnote_608" id="Footnote_608" href="#FNanchor_608"><span class="label">[608]</span></a> P. 242, etc.</p>

<p class="footnote"><a name="Footnote_609" id="Footnote_609" href="#FNanchor_609"><span class="label">[609]</span></a> <i>Id.</i> 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.</p>

<p class="footnote"><a name="Footnote_610" id="Footnote_610" href="#FNanchor_610"><span class="label">[610]</span></a> P. 261, etc.</p>

<p class="footnote"><a name="Footnote_611" id="Footnote_611" href="#FNanchor_611"><span class="label">[611]</span></a> P. 284.</p>

<p class="footnote"><a name="Footnote_612" id="Footnote_612" href="#FNanchor_612"><span class="label">[612]</span></a> P. 289.</p>

<p class="footnote"><a name="Footnote_613" id="Footnote_613" href="#FNanchor_613"><span class="label">[613]</span></a> P. 317.</p>

<p class="footnote"><a name="Footnote_614" id="Footnote_614" href="#FNanchor_614"><span class="label">[614]</span></a> P. 330.</p>

<p class="footnote"><a name="Footnote_615" id="Footnote_615" href="#FNanchor_615"><span class="label">[615]</span></a> P. 339.</p>

<p class="footnote"><a name="Footnote_616" id="Footnote_616" href="#FNanchor_616"><span class="label">[616]</span></a> P. 359.</p>

<p class="footnote"><a name="Footnote_617" id="Footnote_617" href="#FNanchor_617"><span class="label">[617]</span></a> Rymer, xvii. 344; <i>Parl. Hist.</i> Carte, 93; Wilson.</p>

<p class="footnote"><a name="Footnote_618" id="Footnote_618" href="#FNanchor_618"><span class="label">[618]</span></a> Besides the historians, see Cabala, part ii. p. 155 (4to edit.); D'Israeli's
<i>Character of James I.</i>, p. 125; and Mede's Letters, Harl. MSS. 389.</p>

<p class="footnote"><a name="Footnote_619" id="Footnote_619" href="#FNanchor_619"><span class="label">[619]</span></a> Wilson's <i>Hist. of James I.</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, <i>re
infectâ</i>, 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, <i>ubi supra</i>. 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."</p>

<p class="footnote">The entertaining and sensible biographer of James has sketched the
characters of these Whig peers. Aikin's <i>James I.</i>, ii. 238.</p>

<p class="footnote"><a name="Footnote_620" id="Footnote_620" href="#FNanchor_620"><span class="label">[620]</span></a> One of these may be found in the <i>Somers Tracts</i>, 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 (<i>Id.</i> 522, 616)
show the tone and temper of the nation.</p>

<p class="footnote"><a name="Footnote_621" id="Footnote_621" href="#FNanchor_621"><span class="label">[621]</span></a> The letters on this subject, published by Lord Hardwicke (<i>State Papers</i>,
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 <i>Somers Tracts</i>, may be read with interest; and
Howell's <i>Letters</i>, being written from Madrid during the Prince of Wales's
residence, deserve notice. See also Wilson in Kennet, p. 750, <i>et post</i>.
Dr. Lingard has illustrated the subject lately (ix. 271).</p>

<p class="footnote"><a name="Footnote_622" id="Footnote_622" href="#FNanchor_622"><span class="label">[622]</span></a> Hume, and many other writers on the side of the Crown, assert the
value of a subsidy to have fallen from £70,000, at which it had been under
the Tudors, to £55,000, or a less sum. 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 <i>not
above</i> £80,000; 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.</p>

<p class="footnote"><a name="Footnote_623" id="Footnote_623" href="#FNanchor_623"><span class="label">[623]</span></a> <i>Parl. Hist.</i> 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. <i>Parl. Hist.</i> 1396.</p>

<p class="footnote"><a name="Footnote_624" id="Footnote_624" href="#FNanchor_624"><span class="label">[624]</span></a> <i>Parl. Hist.</i> 1421.</p>

<p class="footnote"><a name="Footnote_625" id="Footnote_625" href="#FNanchor_625"><span class="label">[625]</span></a> 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 <i>Ecclesiastical Biography</i>,
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.</p>

<p class="footnote"><a name="Footnote_626" id="Footnote_626" href="#FNanchor_626"><span class="label">[626]</span></a> 21 Jac. 1, c. 3. See what Lord Coke says on this act, and on the
general subject of monopolies. 3 Inst. 181.</p>

<p class="footnote"><a name="Footnote_627" id="Footnote_627" href="#FNanchor_627"><span class="label">[627]</span></a> <i>P. H.</i> 1483.</p>

<p class="footnote"><a name="Footnote_628" id="Footnote_628" href="#FNanchor_628"><span class="label">[628]</span></a> <i>Id.</i> 1488.</p>

<p class="footnote"><a name="Footnote_629" id="Footnote_629" href="#FNanchor_629"><span class="label">[629]</span></a> 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. <i>Mem. of Col. Hutchinson</i>, 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.</p>

<p class="footnote"><a name="Footnote_630" id="Footnote_630" href="#FNanchor_630"><span class="label">[630]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_631" id="Footnote_631" href="#FNanchor_631"><span class="label">[631]</span></a> 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&mdash;that it is false, and <i>was
never said by Bristol</i>. 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.</p>

<p class="footnote"><a name="Footnote_632" id="Footnote_632" href="#FNanchor_632"><span class="label">[632]</span></a> <i>Parl. Hist.</i> vol. ii. p. 6.</p>

<p class="footnote"><a name="Footnote_633" id="Footnote_633" href="#FNanchor_633"><span class="label">[633]</span></a> <i>Id.</i> 33.</p>

<p class="footnote"><a name="Footnote_634" id="Footnote_634" href="#FNanchor_634"><span class="label">[634]</span></a> 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. <i>Parl. Hist.</i> 39.</p>

<p class="footnote"><a name="Footnote_635" id="Footnote_635" href="#FNanchor_635"><span class="label">[635]</span></a> <i>Parl. Hist.</i> 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.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_636" id="Footnote_636" href="#FNanchor_636"><span class="label">[636]</span></a> <i>Parl. Hist.</i> 119; Hatsell, i. 147; Lords' Journals. A few peers refused
to join in this.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_637" id="Footnote_637" href="#FNanchor_637"><span class="label">[637]</span></a> <i>Parl. Hist.</i> 125; Hatsell, 141.</p>

<p class="footnote"><a name="Footnote_638" id="Footnote_638" href="#FNanchor_638"><span class="label">[638]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_639" id="Footnote_639" href="#FNanchor_639"><span class="label">[639]</span></a> See the proceedings on the mutual charges of Buckingham and Bristol
in Rushworth, or the <i>Parliamentary History</i>. 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. <i>Parl.
Hist.</i> 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." <i>Id.</i> 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.
<i>Id.</i> 103, 106.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_640" id="Footnote_640" href="#FNanchor_640"><span class="label">[640]</span></a> <i>Parl. Hist.</i> 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&mdash;he answered not a minute."&mdash;15 June, 1626. Mede's
Letters, <i>ubi supra</i>. 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.</p>

<p class="footnote"><a name="Footnote_641" id="Footnote_641" href="#FNanchor_641"><span class="label">[641]</span></a> Rushworth, Kennet.</p>

<p class="footnote"><a name="Footnote_642" id="Footnote_642" href="#FNanchor_642"><span class="label">[642]</span></a> Mede's Letters&mdash;"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, <i>et post</i>. 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.</p>

<p class="footnote"><a name="Footnote_643" id="Footnote_643" href="#FNanchor_643"><span class="label">[643]</span></a> Rushworth's Abr. i. 270.</p>

<p class="footnote"><a name="Footnote_644" id="Footnote_644" href="#FNanchor_644"><span class="label">[644]</span></a> 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.</p>

<p class="footnote">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. <i>Curiosities of Literature</i>, 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.</p>

<p class="footnote"><a name="Footnote_645" id="Footnote_645" href="#FNanchor_645"><span class="label">[645]</span></a> Rushworth, Kennet.</p>

<p class="footnote"><a name="Footnote_646" id="Footnote_646" href="#FNanchor_646"><span class="label">[646]</span></a> 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. <i>Parl. Hist.</i> 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. <i>Id.</i> 325; <i>State Trials</i>, iii. 81.</p>

<p class="footnote"><a name="Footnote_647" id="Footnote_647" href="#FNanchor_647"><span class="label">[647]</span></a> <i>State Trials</i>, iii. 1-234; <i>Parl. Hist.</i> 246, 259, etc.; Rushworth.</p>

<p class="footnote"><a name="Footnote_648" id="Footnote_648" href="#FNanchor_648"><span class="label">[648]</span></a> At the council-table, some proposing a parliament, the king said, he
did abominate the name. Mede's Letters, 30th Sept. 1626.</p>

<p class="footnote"><a name="Footnote_649" id="Footnote_649" href="#FNanchor_649"><span class="label">[649]</span></a> Rushworth; Mede's Letters in Harl. MSS. <i>passim</i>.</p>

<p class="footnote"><a name="Footnote_650" id="Footnote_650" href="#FNanchor_650"><span class="label">[650]</span></a> Rushworth's Abr. i. 304; Cabala, part ii. 217. See what is said of this
by Mr. Brodie, ii. 158.</p>

<p class="footnote"><a name="Footnote_651" id="Footnote_651" href="#FNanchor_651"><span class="label">[651]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_652" id="Footnote_652" href="#FNanchor_652"><span class="label">[652]</span></a> 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 <i>Life of Williams</i>, 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.</p>

<p class="footnote"><a name="Footnote_653" id="Footnote_653" href="#FNanchor_653"><span class="label">[653]</span></a> The debates and conferences on this momentous subject, especially on
the article of the habeas corpus, occupy near two hundred columns in the
<i>New Parliamentary History</i>, to which I refer the reader.</p>

<p class="footnote">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.
<i>Id.</i> 327. A remarkable proof of the rapid growth of popular principles!</p>

<p class="footnote"><a name="Footnote_654" id="Footnote_654" href="#FNanchor_654"><span class="label">[654]</span></a> Hargrave MSS. xxxii. 97.</p>

<p class="footnote"><a name="Footnote_655" id="Footnote_655" href="#FNanchor_655"><span class="label">[655]</span></a> <i>Parl. Hist.</i> 436.</p>

<p class="footnote"><a name="Footnote_656" id="Footnote_656" href="#FNanchor_656"><span class="label">[656]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_657" id="Footnote_657" href="#FNanchor_657"><span class="label">[657]</span></a> <i>Parl. Hist.</i> 431.</p>

<p class="footnote"><a name="Footnote_658" id="Footnote_658" href="#FNanchor_658"><span class="label">[658]</span></a> Rushworth Abr. i. 409.</p>

<p class="footnote"><a name="Footnote_659" id="Footnote_659" href="#FNanchor_659"><span class="label">[659]</span></a> <i>Parl. Hist.</i> 441, etc.</p>

<p class="footnote"><a name="Footnote_660" id="Footnote_660" href="#FNanchor_660"><span class="label">[660]</span></a> 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. <i>Id.</i> 436. And Bancroft, like his successor
Laud, interfered to stop some who were setting out for Virginia. <i>Id.</i> 454.</p>

<p class="footnote"><a name="Footnote_661" id="Footnote_661" href="#FNanchor_661"><span class="label">[661]</span></a> Lord Bacon, in his advertisement respecting the <i>Controversies of the
Church of England</i>, 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."&mdash;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. <i>Annals of Reformation</i>, ii. 522, and Appendix, 116; <i>Life of
Grindal</i>, 271; Collier, ii. 594; Neal, i. 258.</p>

<p class="footnote">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 <i>Convocation Book</i>, 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 <i>Life of Laud</i>, 54.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_662" id="Footnote_662" href="#FNanchor_662"><span class="label">[662]</span></a> See the queen's injunctions of 1559 (<i>Somers Tracts</i>, i. 65), and compare
preamble of 5 and 6 of Edw. VI. c. 3.</p>

<p class="footnote"><a name="Footnote_663" id="Footnote_663" href="#FNanchor_663"><span class="label">[663]</span></a> 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 <i>Church
History</i>, 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 <i>Whitgift</i>, 530; May's <i>Hist. of Parliament</i>, 16.</p>

<p class="footnote"><a name="Footnote_664" id="Footnote_664" href="#FNanchor_664"><span class="label">[664]</span></a> Heylin's <i>Life of Laud</i>, 15; Fuller, part ii. p. 76.</p>

<p class="footnote">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 <i>without flesh</i>, and a double penalty for the
second offence.</p>

<p class="footnote">The next statute relating to abstinence is one (5th Eliz. c. 5) entirely for
the increase of the fishery. It enacts (§ 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 £3, 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 (§ 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, § 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.</p>

<p class="footnote">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 <i>Eccles. Memor.</i> ii. 81. In one of
Elizabeth's, <span class="smcap">a.d.</span> 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 <i>Annals</i>, 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. <i>Life of Grindal</i>, p. 226. So also in 1579 (Strype's <i>Annals</i>, 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
<i>Whitgift</i>, 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.</p>

<p class="footnote">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
<i>Memorials</i>, ii. 82. The act above mentioned for encouragement of the
fishery, 5th Eliz. c. 5, provides that £1 6<i>s.</i> 8<i>d.</i> shall be paid for granting
every licence, and 6<i>s.</i> 8<i>d.</i> 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<i>s.</i> 8<i>d.</i> annually to the poor of the parish." <i>Life of Whitgift</i>, 246.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_665" id="Footnote_665" href="#FNanchor_665"><span class="label">[665]</span></a> Wilson, 709.</p>

<p class="footnote"><a name="Footnote_666" id="Footnote_666" href="#FNanchor_666"><span class="label">[666]</span></a> Debates in parliament, 1621, vol. i. pp. 45, 52. The king requested
them not to pass this bill, being so directly against his proclamation. <i>Id.</i>
60. Shepherd's expulsion is mentioned in Mede's Letters, Harl. MSS. 389.</p>

<p class="footnote"><a name="Footnote_667" id="Footnote_667" href="#FNanchor_667"><span class="label">[667]</span></a> 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." <i>Life of Laud</i>,
p. 129. Yet this statute permits the people lawful sports and pastimes
on Sundays within their own parishes.</p>

<p class="footnote"><a name="Footnote_668" id="Footnote_668" href="#FNanchor_668"><span class="label">[668]</span></a> Without loading the page with too many references on a subject so
little connected with this work, I mention Strype's <i>Annals</i>, vol. i. p. 118,
and a letter from Jewel to P. Martyr in Burnet, vol. iii. Appendix 275.</p>

<p class="footnote"><a name="Footnote_669" id="Footnote_669" href="#FNanchor_669"><span class="label">[669]</span></a> Collier, 568.</p>

<p class="footnote"><a name="Footnote_670" id="Footnote_670" href="#FNanchor_670"><span class="label">[670]</span></a> Strype's <i>Annals</i>, i. 207, 294.</p>

<p class="footnote"><a name="Footnote_671" id="Footnote_671" href="#FNanchor_671"><span class="label">[671]</span></a> Strype's <i>Whitgift</i>, 434-472.</p>

<p class="footnote"><a name="Footnote_672" id="Footnote_672" href="#FNanchor_672"><span class="label">[672]</span></a> 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
<i>Annals</i>, i. 324.</p>

<p class="footnote"><a name="Footnote_673" id="Footnote_673" href="#FNanchor_673"><span class="label">[673]</span></a> 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.</p>

<p class="footnote"><a name="Footnote_674" id="Footnote_674" href="#FNanchor_674"><span class="label">[674]</span></a> Sir Dudley Carleton's <i>Letters and Negotiations, passim</i>; Brandt's
<i>History of Reformation in Low Countries</i>, 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.</p>

<p class="footnote"><a name="Footnote_675" id="Footnote_675" href="#FNanchor_675"><span class="label">[675]</span></a> 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 <i>he</i> 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." <i>Life of Laud</i>, 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. <i>Life of Laud</i>, 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 prædestinationis non est conditionale&mdash;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.</p>

<p class="footnote"><a name="Footnote_676" id="Footnote_676" href="#FNanchor_676"><span class="label">[676]</span></a> Winwood, vol. i. pp. 1, 52, 388; <i>Lettres d'Ossat</i>, i. 221; Birch's <i>Negotiations
of Edmondes</i>, 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, <i>Hist. of Scotland</i>, iii. 59, and Birch's
<i>Negotiations</i>, 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.</p>

<p class="footnote">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. <i>Id.</i> 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."&mdash;"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.</p>

<p class="footnote"><a name="Footnote_677" id="Footnote_677" href="#FNanchor_677"><span class="label">[677]</span></a> 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 £10 a month.</p>

<p class="footnote"><a name="Footnote_678" id="Footnote_678" href="#FNanchor_678"><span class="label">[678]</span></a> Lingard, ix. 41, 55.</p>

<p class="footnote"><a name="Footnote_679" id="Footnote_679" href="#FNanchor_679"><span class="label">[679]</span></a> 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, <i>et seq.</i>) 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 <i>Accusations
of History against the Church of Rome</i> (1825), p. 247, containing extracts
from some important documents in the State Paper-Office, not as yet
published, with <i>State Trials</i>, 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.</p>

<p class="footnote">The Earl of Northumberland was not only committed to the Tower on
suspicion of privity in the plot, but lay fourteen years there, and paid a
fine of £11,000 (by composition for £30,000), 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.</p>

<p class="footnote"><a name="Footnote_680" id="Footnote_680" href="#FNanchor_680"><span class="label">[680]</span></a> 3 Jac. I. c. 4, 5.</p>

<p class="footnote"><a name="Footnote_681" id="Footnote_681" href="#FNanchor_681"><span class="label">[681]</span></a> Carte, iii. 782; Collier, 690; Butler's <i>Memoirs of Catholics</i>; Lingard,
vol. ix. 97; Aikin, i. 319. It is observed by Collier, ii. 695, and indeed by
the king himself, in his <i>Apology for the Oath of Allegiance</i> (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.</p>

<p class="footnote"><a name="Footnote_682" id="Footnote_682" href="#FNanchor_682"><span class="label">[682]</span></a> 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. <i>State Trials</i>, ii. 358.</p>

<p class="footnote"><a name="Footnote_683" id="Footnote_683" href="#FNanchor_683"><span class="label">[683]</span></a> 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."&mdash;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 £6000 per annum by the compositions.
Debates in 1621, vol. i. pp. 24, 91. But he valued those in
England and Ireland at £36,000. Lingard, 215, from <i>Hardwicke Papers</i>.</p>

<p class="footnote"><a name="Footnote_684" id="Footnote_684" href="#FNanchor_684"><span class="label">[684]</span></a> 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 <i>Hardwicke State Papers</i>, vol. i.; Cabala, 1, <i>et post</i>; Howell's
<i>Letters</i>; <i>Clarendon State Papers</i>, vol. i. <i>ad initium</i>, especially p. 13.</p>

<p class="footnote">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.</p>

<p class="footnote">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.</p>

<p class="footnote">I have since found that Harte had seen a sketch of this treaty, but he
does not tell us by what means. <i>Hist. Gust. Adolph.</i> 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.
<i>Id.</i> 143.</p>

<p class="footnote"><a name="Footnote_685" id="Footnote_685" href="#FNanchor_685"><span class="label">[685]</span></a> <i>Hardwicke Papers</i>, 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.</p>

<p class="footnote"><a name="Footnote_686" id="Footnote_686" href="#FNanchor_686"><span class="label">[686]</span></a> <i>Hardwicke Papers</i>; Rushworth.</p>

<p class="footnote"><a name="Footnote_687" id="Footnote_687" href="#FNanchor_687"><span class="label">[687]</span></a> <i>Hardwicke Papers</i>, 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. <i>Clar. State Papers</i>, ii. 337.</p>

<p class="footnote">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.</p>

<p class="footnote">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 <i>Letters</i>,
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.</p>

<p class="footnote"><a name="Footnote_688" id="Footnote_688" href="#FNanchor_688"><span class="label">[688]</span></a> Rushworth; Cabala, p. 19.</p>

<p class="footnote"><a name="Footnote_689" id="Footnote_689" href="#FNanchor_689"><span class="label">[689]</span></a> <i>Parl. Hist.</i> 1375. Both houses, however, joined in an address that the
laws against recusants might be put in execution (<i>Id.</i> 1408); and the
Commons returned again to the charge afterwards. <i>Idem</i>, 1484.</p>

<p class="footnote"><a name="Footnote_690" id="Footnote_690" href="#FNanchor_690"><span class="label">[690]</span></a> Rushworth.</p>

<p class="footnote"><a name="Footnote_691" id="Footnote_691" href="#FNanchor_691"><span class="label">[691]</span></a> 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 <i>Clarendon State Papers</i>, vol. ii. pp. v. viii. ix.</p>

<p class="footnote"><a name="Footnote_692" id="Footnote_692" href="#FNanchor_692"><span class="label">[692]</span></a> <i>Hardwicke Papers</i>, 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 très
publique, et qui fut résolu en plein conseil, le dit roi l'ayant assemblé
exprès pour cela le jour d'hier." The pope agreed to appoint a bishop for
England, nominated by the King of France. Oct. 22. The oath of
allegiance, however, was a stumbling-block; the king could not change it
by his own authority, and establish another in parliament, "où la faction
des puritains prédomine, de sorte qu'ils peuvent ce qu'ils veulent."
Buckingham, however, promised "de nous faire obtenir l'assurance que
votre majesté désire tant, que les catholiques de ce pais ne seront jamais
inquiétés pour le raison du serment de fidélité, du quel votre majesté a si
souvent ouï parler." Dec. 22. He speaks the same day of an 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 donnée, et qu'ils auroient en considération de
votre majesté, et de la confiance que vous prenez en sa parole, beaucoup
plus de liberté qu'ils n'auroient eu en vertu des articles du traité d'Espagne."
The French advised that no parliament should be called till
Henrietta should come over, "de qui la présence serviroit de bride aux
puritains." It is not 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.</p>

<p class="footnote">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. <i>Hardw. Pap.</i> 546.</p>

<p class="footnote">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 <i>écrit</i> 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." <i>Id.</i> 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 prêtres, et nous vous donnerons des colonels." <i>Id.</i> p. 538. Charles
could hardly be expected to keep his engagement as to the catholics, when
he found himself so grossly outwitted.</p>

<p class="footnote">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.</p>

<p class="footnote"><a name="Footnote_693" id="Footnote_693" href="#FNanchor_693"><span class="label">[693]</span></a> Rennet, p. vi.; Rushworth; Lingard, ix. 353; Cabala, p. 144.</p>

<p class="footnote"><a name="Footnote_694" id="Footnote_694" href="#FNanchor_694"><span class="label">[694]</span></a> "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."</p>

<p class="footnote">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 <i>Convocation Book</i>, by denying that
Antiochus Epiphanes had lawful possession of Palestine; a proposition
not easy to be made out.</p>

<p class="footnote"><a name="Footnote_695" id="Footnote_695" href="#FNanchor_695"><span class="label">[695]</span></a> Collier, 724; Neal, 495; Wood's <i>History of the University of Oxford</i>,
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.</p>

<p class="footnote"><a name="Footnote_696" id="Footnote_696" href="#FNanchor_696"><span class="label">[696]</span></a> <i>Parl. Hist.</i> 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.</p>

<p class="footnote"><a name="Footnote_697" id="Footnote_697" href="#FNanchor_697"><span class="label">[697]</span></a> <i>State Trials</i>, 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 <i>Life of
Williams</i>, p. 651; <i>Biograph. Britann.</i> art. Abbot; Spelman's Works,
part 2, p. 3; Aikin's <i>James I.</i>, ii. 259. Williams's real object was to
succeed the archbishop on his degradation.</p>

<p class="footnote">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 <i>Biograph. Brit.</i> 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
(<i>Hardwicke Papers</i>, 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.</p>

<p class="footnote"><a name="Footnote_698" id="Footnote_698" href="#FNanchor_698"><span class="label">[698]</span></a> 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 <i>Letters</i>, 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.</p>

<p class="footnote"><a name="Footnote_699" id="Footnote_699" href="#FNanchor_699"><span class="label">[699]</span></a> 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." Vol. i.
p. 8, edit. 1826.</p>
</div>








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