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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
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EVERYMAN'S LIBRARY
EDITED BY ERNEST RHYS
HISTORY
HALLAM'S
CONSTITUTIONAL HISTORY
WITH AN INTRODUCTION BY
PROFESSOR J. H. MORGAN
VOLUME ONE
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SEND FREELY TO ALL APPLICANTS A LIST OF THE PUBLISHED AND
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THEOLOGY & PHILOSOPHY
HISTORY CLASSICAL
FOR YOUNG PEOPLE
ESSAYS ORATORY
POETRY & DRAMA
BIOGRAPHY
REFERENCE
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NEW YORK: E. P. DUTTON & CO.
CONSIDER
HISTORY
WITH THE
BEGINNINGS OF
IT STRETCHING
DIMLY INTO THE
REMOTE TIME;
EMERGING DARKLY
OVT OF THE
MYSTERIOVS ETERNITY:
THE TRVE EPIC
POEM AND VNIVERSAL
DIVINE SCRIPTVRE.
CARLYLE
CONSTITUTIONAL HISTORY of ENGLAND
HENRY VII TO GEORGE II
BY HENRY HALLAM
VOL I
LONDON: PUBLISHED by J·M·DENT·&·SONS·LTD
AND IN NEW YORK BY E·P·DUTTON & CO
INTRODUCTION
Few historical works have stood the test of time better than Hallam's
_Constitutional History_. It was written nearly a century ago--the first
edition was published in 1827--and at a time when historians were
nothing if not stout party men. The science of history, as we now know
it, was in its infancy; apologetics were preferred to exegesis; the
study of "sources," the editing of texts, the classification of
authorities were almost unknown. History was regarded as the handmaid of
politics, and the duty of the historian was conceived as being, in the
language of Macaulay, the impression of "general truths" upon his
generation as to the art of government and the progress of society. Whig
and Tory, Erastian and High Churchman, debated on the field of history.
The characters of Laud and Cromwell excited as much passion and
recrimination as if they were contemporary politicians. That a history
written in such times, and by a writer who was proud to call himself a
Whig, should still hold its place is not a little remarkable. The reason
for its vitality is to be found in the temperament and training of the
author. Hallam was a lawyer in the sense in which that term is used at
the Bar; that is to say, not so much a seductive advocate as a man
deeply versed in the law, accurate, judicious, and impartial. Macaulay,
who was as much the advocate as Hallam is the judge, described the
_Constitutional History_ as "the most impartial book we ever read," and
the tribute was not undeserved. Hallam is often didactic, but he is
never partisan. Although a Whig he was by no means concerned, like
Macaulay, to prove that the Whigs were never in the wrong, and, as he
shrewdly remarks, in his examination of the tenets of the two great
parties in the eighteenth century: "It is one thing to prefer the Whig
principles, another to justify, as an advocate, the party which bore
that name." No better illustration of his attitude of mind can be found
than the passage in which, treating of the outbreak of hostilities
between Charles I. and the Long Parliament, he sets himself to consider
"whether _a thoroughly upright and enlightened man_ would rather have
listed under the royal or the parliamentary standard." In these days
when, as the distinguished occupant of the chair of Modern History at
Cambridge tells us, "history has nothing to do with morality," Hallam's
grave anxiety to solve this problem may sound quaint and, indeed,
irrelevant; but there is no denying the high purpose, the sincerity, and
the passion for truth which characterise the passage in question. To-day
the historian's conception of truth is purely objective: his aim is to
discover what former generations thought rather than to concern himself
with what we should think of them. The late Lord Acton[1] stood almost
alone among the modern school of historians in insisting that it is the
duty of the historian to uphold "the authority of conscience" and "that
moral standard which the powers of earth and religion itself tend
constantly to depress." It is more fashionable to contend that the moral
standard is relative; that we cannot judge the men of the past by the
ethical rules of the present; that conscience itself is the product of
historical development. It may be questioned whether this scepticism has
not been carried too far. Hallam had no such doubts. For him "the
thoroughly upright and enlightened man" of the seventeenth century was
not intrinsically different from the thoroughly upright and enlightened
man of the nineteenth; the one concession he makes to time is that the
historian is probably in a better, not a worse, position to judge than
the men of whom he writes--if only because he is more detached. He
condemns the obsequiousness of Cranmer, the bigotry of Laud, the
tortuousness of Charles I., the ambition of Strafford, with the same
reprobation as he would have extended to similar obliquities in a
contemporary. Unless we are to exclude conduct altogether from our
consideration and to deny the personal factor in history, we shall find
it hard to say he is wrong. Gardiner, the latest historian of the
Stuarts, does not hesitate to pronounce similar judgments, though he
expresses himself more mildly. Sorel, perhaps the most illustrious of
the modern school of French historians and a scholar who spent his life
among the archives, has not hesitated--in writing on the Partition of
Poland--to speak of the Nemesis which always waits upon such "public
crimes."
Hallam's predilection for moral judgments is the more intelligible if we
remember that his conception of "constitutional" history is somewhat
wider than ours is to-day. He included in it much that would now be
called "political" history. One has only to compare his work with the
latest of our authorities--the posthumous book of F. W. Maitland--to
realise how the term has become specialised. Maitland confines his
treatment to the results of political action as they are represented in
the growth of institutions; with political action itself he is, unlike
Hallam, not concerned. The rise and fall of parties, the issues of
Parliamentary debate, the progress of political speculation interest him
but little and disturb him not at all. But to Hallam these things were
hardly less important than the statute book and the law reports. This
liberal view of his subject is not a thing to be regretted. It enables
the reader to appreciate the large part played in the development of the
English constitution by those "conventions" which are a gloss upon the
law and without which the constitution itself is unintelligible. As
Bagehot has pointed out, the legal powers of the king are as large as
his actual authority is small. In strict legal theory the cabinet is
merely an informal group of ministers of the crown who hold office
during the king's pleasure. In fact and in practice it is a committee of
the House of Commons dependent upon the support of the majority of the
members. The fact is the outcome of a conventional modification of the
theory, and this convention is due to the political changes of the
eighteenth century and the growth of the party system. In the pages of
Hallam these changes receive their due recognition, and without it the
development of the English constitution is unintelligible. It was a
favourite doctrine of Hallam that so far as the law was concerned the
constitution was developed very early and that all that later
generations contributed to it was better administration of the law and a
more vigilant public opinion. He even goes so far as to say in his
chapter in the _Middle Ages_ that he doubts "whether there are any
essential privileges of our countrymen, any fundamental securities
against arbitrary power, so far as they depend upon positive
institutions, which may not be traced to the time of the Plantagenets."
This is something of an anachronism, but it represents a not
unjustifiable reaction against the high prerogative doctrines of writers
of his own day. What Hallam, however, was really concerned to prove was
that constitutional law in this country rests upon the common law--upon
the rules laid down by mediæval judges as to the right of the subject to
trial by jury, his immunity from arbitrary arrest, his claim not to be
arbitrarily dispossessed of his property, and his right of action
against the servants of the crown when he has suffered wrong. In this
conception Hallam was undoubtedly right, and he urged it at a time when
no one had made it as familiar as it has now become in the classic pages
of Professor Dicey. But Hallam was perfectly well aware that these
securities for the liberty of the subject were often abused, that the
sheriffs who empanelled the jury were often corrupt and the judges who
directed it were not infrequently servile; also that so long as the Star
Chamber existed no jury could venture to give a verdict of "not guilty"
in a prosecution by the crown without running the risk of being heavily
punished. He is not insensible to these abuses and to the length of time
it took to correct them, as the reader of the following pages will
discover for himself, and he attaches due weight to the constitutional
importance of the Act for the Abolition of the Star Chamber. But the
truth of his main contention (as expressed in his chapter on "The
English Constitution" in an earlier work[2]), that what chiefly
distinguished our constitution from that of other countries was the
"security for personal freedom and property" enjoyed by the subject, is
undeniable. It was not so much the possession of representative
institutions as the enjoyment of equal rights at common law that
constituted the Englishman's advantage. Maitland[3] has recently pointed
this out in language almost identical with that of Hallam when he
insists that "Parliaments" or "Estates" were in no way peculiar to
England; every country in Western Europe possessed them in the Middle
Ages, but what those countries did not possess was a great school of law
like the Inns of Court determined to uphold at all costs the claims of
the customary law of the nation against the despotic doctrines of the
civil law of Rome.
Hallam's attitude towards the constitution was that of Burke--he
regarded it with a veneration little short of superstition. He has
expressed himself in his earlier works in words which can hardly fail to
provoke a smile to-day:--
"No unbiassed observer, who derives pleasure from the welfare of his
species, can fail to consider the long and uninterruptedly
increasing prosperity of England as the most beautiful phenomenon in
the history of mankind. Climates more propitious may impart more
largely the mere enjoyments of existence; but in no other region
have the benefits that political institutions can confer been
diffused over so extended a population; nor have any people so well
reconciled the discordant elements of wealth, order, and liberty.
These advantages are surely not owing to the soil of this island,
nor to the latitude in which it is placed; but to the spirit of its
laws, from which, through various means, the characteristic
independence and industriousness of our nation have been derived.
The constitution, therefore, of England must be to inquisitive men
of all countries, far more to ourselves, an object of superior
interest; distinguished especially as it is from all free
governments of powerful nations which history has recorded by its
manifesting, after the lapse of several centuries, not merely no
symptom of irretrievable decay, but a more expansive energy."[4]
If his language seems extravagant, I may remind the reader that there
would have been few in Hallam's day who were prepared to dispute it.
England, almost alone among the states of Europe, had escaped the
infection of the French Revolution. Its constitution had survived the
shock of a movement which, as De Tocqueville has remarked, was as widely
destructive of the old order in Europe as the Reformation itself. The
result was to give the English constitution such a prestige as it had
not enjoyed since the days of Montesquieu. A school of thinkers,
beginning with Guizot and hardly terminating with Gneist, grew up on the
continent who made it their duty to follow Burke's advice and "study the
British constitution" as the last word in political wisdom. Hallam's
complacency may be naive in its expression, but its sentiment is sound,
and Englishmen should be the last to disclaim it. Upon this rock many a
political church has been built; the "law and custom of our Parliament"
have, since he wrote, been studied in every university in Europe and
adopted in almost all the legislatures of the civilised world. Hallam,
like Thucydides, with whom in dignity and sententiousness he may not
unjustly be compared, had a noble pride in the constitution of his
country.
J. H. MORGAN.
FOOTNOTES:
[1] Cf. _Historical Essays and Studies_, vol. ii. p. 505.
[2] _Europe during the Middle Ages_, Chapter VIII. Part 3. I may remind
the reader that Hallam regarded his _Constitutional History_ as a
continuation of this chapter, which sketches the development of the
constitution from the earliest times down to the accession of Henry
VII., the point at which the present work begins.
[3] _English Law at the Renaissance_, p. 27.
[4] _Middle Ages_ (12th ed.), ii. p. 267.
BIBLIOGRAPHY
A View of the State of Europe during the Middle Ages, 1818; 2nd edition,
1819; passed through twelve editions before 1855; revised and corrected,
1868; adapted to the use of students by W. Smith, 1871; edited by A.
Murray, 1872; translated into Italian by G. Carraro and published at
Firenze, 1874; Supplemental Notes to View of the State of Europe, 1848.
The Constitutional History of England from the Accession of Henry VIII.
to Death of George II., 1827; translated into German by F. A. 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.
A Short Life and Criticism of Henry Hallam appears in F. A. M. Mignet's
_Eloges Historiques_, published in Paris in 1864.
TO
HENRY MARQUIS OF LANSDOWNE
IN TOKEN OF HIGH ESTEEM
AND SINCERE REGARD
THIS WORK IS RESPECTFULLY INSCRIBED
BY
THE AUTHOR
CONTENTS
CHAPTER I
ON THE ENGLISH CONSTITUTION FROM HENRY VII. TO MARY
Ancient Government of England--Limitations of Royal
Authority--Difference in the Effective Operation of
these--Sketch of the State of Society and Law--Henry
VII.--Statute for the Security of the Subject under a King
_de facto_--Statute of Fines--Discussion of its Effect and
Motive--Exactions of Money under Henry VII.--Taxes demanded
by Henry VIII.--Illegal Exactions of Wolsey in 1523 and
1525--Acts of Parliament releasing the King from his
Debts--A Benevolence again exacted--Oppressive Treatment of
Reed--Severe and unjust Executions for Treason--Earl of
Warwick--Earl of Suffolk--Duke of Buckingham--New Treasons
created by Statute--Executions of Fisher and More--Cromwell
--Duke of Norfolk--Anne Boleyn--Fresh Statutes enacting the
Penalties of Treason--Act giving Proclamations the Force of
Law--Government of Edward VI.'s Counsellors--Attainder of
Lord Seymour and Duke of Somerset--Violence of Mary's
Reign--The House of Commons recovers part of its independent
Power in these two Reigns--Attempt of the Court to
strengthen itself by creating new Boroughs--Causes of the
High Prerogative of the Tudors--Jurisdiction of the Council
of Star-Chamber--This not the same with the Court erected by
Henry VII.--Influence of the Authority of the Star-Chamber
in enhancing the Royal Power--Tendency of religious Disputes
to the same End Page 7
CHAPTER II
ON THE ENGLISH CHURCH UNDER HENRY VIII., EDWARD VI.,
AND MARY
State of public Opinion as to Religion--Henry VIII.'s
Controversy with Luther--His Divorce from Catherine
--Separation from the Church of Rome--Dissolution
of Monasteries--Progress of the Reformed Doctrine in
England--Its Establishment under Edward--Sketch of the chief
Points of Difference between the two Religions--Opposition
made by Part of the Nation--Cranmer--His Moderation in
introducing Changes not acceptable to the Zealots--Mary
--Persecution under her--Its Effect rather favourable to
Protestantism Page 58
CHAPTER III
ON THE LAWS OF ELIZABETH'S REIGN RESPECTING THE
ROMAN CATHOLICS
Change of Religion on the Queen's Accession--Acts of
Supremacy and Uniformity--Restraint of Roman Catholic
Worship in the first Years of Elizabeth--Statute of
1562--Speech of Lord Montague against it--This Act not fully
enforced--Application of the Emperor in behalf of the
English Catholics--Persecution of this Body in the ensuing
Period--Uncertain Succession of the Crown between the
Families of Scotland and Suffolk--The Queen's Unwillingness
to decide this, or to marry--Imprisonment of Lady Catherine
Grey--Mary Queen of Scotland--Combination in her
Favour--Bull of Pius V.--Statutes for the Queen's
Security--Catholics more rigorously treated--Refugees in the
Netherlands--Their Hostility to the Government--Fresh Laws
against the Catholic Worship--Execution of Campion and
others--Defence of the Queen by Burleigh--Increased Severity
of the Government--Mary--Plot in her Favour--Her
Execution--Remarks upon it--Continued Persecution of Roman
Catholics--General Observations Page 105
CHAPTER IV
ON THE LAWS OF ELIZABETH'S REIGN RESPECTING PROTESTANT
NONCONFORMISTS
Origin of the Differences among the English Protestants
--Religious Inclinations of the Queen--Unwillingness of many
to comply with the established Ceremonies--Conformity
enforced by the Archbishop--Against the Disposition of
others--A more determined Opposition, about 1570, led by
Cartwright--Dangerous Nature of his Tenets--Puritans
supported in the Commons--and in some Measure by the
Council--Prophesyings--Archbishops Grindal and Whitgift
--Conduct of the latter in enforcing Conformity--High
Commission Court--Lord Burleigh averse to Severity--Puritan
Libels--Attempt to set up a Presbyterian System--House of
Commons averse to episcopal Authority--Independents liable
to severe Laws--Hooker's _Ecclesiastical Polity_--Its
Character--Spoliation of Church Revenues--General
Remarks--Letter of Walsingham in Defence of the Queen's
Government Page 162
CHAPTER V
ON THE CIVIL GOVERNMENT OF ELIZABETH
General Remarks--Defective Security of the Subject's
Liberty--Trials for Treason and other Political Offences
unjustly conducted--Illegal Commitments--Remonstrance of
Judges against them--Proclamations unwarranted by
Law--Restrictions on Printing--Martial Law--Loans of Money
not quite voluntary--Character of Lord Burleigh's
Administration--Disposition of the House of Commons
--Addresses concerning the Succession--Difference on this
between the Queen and Commons in 1566--Session of
1571--Influence of the Puritans in Parliament--Speech of Mr.
Wentworth in 1576--The Commons continue to seek Redress of
ecclesiastical Grievances--Also of Monopolies, especially in
the Session of 1601--Influence of the Crown in Parliament
--Debate on Election of non-resident Burgesses--Assertion of
Privileges by Commons--Case of Ferrers, under Henry
VIII.--Other Cases of Privilege--Privilege of determining
Contested Elections claimed by the House--The English
Constitution not admitted to be an absolute
Monarchy--Pretensions of the Crown Page 215
CHAPTER VI
ON THE ENGLISH CONSTITUTION UNDER JAMES I.
Quiet Accession of James--Question of his Title to the
Crown--Legitimacy of the Earl of Hertford's Issue--Early
Unpopularity of the King--Conduct towards the Puritans
--Parliament convoked by an irregular Proclamation--Question
of Fortescue and Goodwin's Election--Shirley's Case of
Privilege--Complaints of Grievances--Commons' Vindication of
themselves--Session of 1605--Union with Scotland
debated--Continual Bickerings between the Crown and
Commons--Impositions on Merchandise without Consent of
Parliament--Remonstrances against these in Session of
1610--Doctrine of King's absolute Power inculcated by
Clergy--Articuli Cleri--Cowell's Interpreter--Renewed
Complaints of the Commons--Negotiation for giving up the
Feudal Revenue--Dissolution of Parliament--Character of
James--Death of Lord Salisbury--Foreign Politics of the
Government--Lord Coke's Alienation from the Court--Illegal
Proclamations--Means resorted to in order to avoid the
Meeting of Parliament--Parliament of 1614--Undertakers--It
is dissolved without passing a single Act--Benevolences
--Prosecution of Peacham--Dispute about the Jurisdiction of
the Court of Chancery--Case of Commendams--Arbitrary
Proceedings in Star-Chamber--Arabella Stuart--Somerset and
Overbury--Sir Walter Raleigh--Parliament of 1621
--Proceedings against Mompesson and Lord Bacon--Violence in
the Case of Floyd--Disagreement between the King and
Commons--Their Dissolution, after a strong Remonstrance
--Marriage-Treaty with Spain--Parliament of 1624
--Impeachment of Middlesex Page 266
CHAPTER VII
ON THE ENGLISH CONSTITUTION FROM THE ACCESSION OF CHARLES I.
TO THE DISSOLUTION OF HIS THIRD PARLIAMENT
Parliament of 1625--Its Dissolution--Another Parliament
called--Prosecution of Buckingham--Arbitrary Proceedings
towards the Earls of Arundel and Bristol--Loan demanded by
the King--Several committed for Refusal to contribute--They
sue for a Habeas Corpus--Arguments on this Question, which
is decided against them--A Parliament called in
1628--Petition of Right--King's Reluctance to grant
it--Tonnage and Poundage disputed--King dissolves
Parliament--Religious Differences--Prosecution of Puritans
by Bancroft--Growth of High-Church Tenets--Differences as to
the Observance of Sunday--Arminian Controversy--State
Catholics under James--Jealousy of the Court's Favour
towards them--Unconstitutional Tenets promulgated by the
High-Church Party--General Remarks Page 347
PREFACE
The origin and progress of the English Constitution, down to the
extinction of the house of Plantagenet, formed a considerable portion of
a work published by me some years since, on the history, and especially
the laws and institutions, of Europe during the period of the middle
ages. It had been my first intention to have prosecuted that undertaking
in a general continuation; and when experience taught me to abandon a
scheme projected early in life with very inadequate views of its
magnitude, I still determined to carry forward the constitutional
history of my own country, as both the most important to ourselves, and,
in many respects, the most congenial to my own studies and habits of
mind.
The title which I have adopted, appears to exclude all matter not
referable to the state of government, or what is loosely denominated the
constitution. I have, therefore, generally abstained from mentioning,
except cursorily, either military or political transactions, which do
not seem to bear on this primary subject. It must, however, be evident,
that the constitutional and general history of England, at some periods,
nearly coincide; and I presume that a few occasional deviations of this
nature will not be deemed unpardonable, especially where they tend, at
least indirectly, to illustrate the main topic of enquiry. Nor will the
reader, perhaps, be of opinion that I have forgotten my theme in those
parts of the following work which relate to the establishment of the
English church, and to the proceedings of the state with respect to
those who have dissented from it; facts certainly belonging to the
history of our constitution, in the large sense of the word, and most
important in their application to modern times, for which all knowledge
of the past is principally valuable. Still less apology can be required
for a slight verbal inconsistency with the title of these volumes in the
addition of two supplemental chapters on Scotland and Ireland. This
indeed I mention less to obviate a criticism, which possibly might not
be suggested, than to express my regret that, on account of their
brevity, if for no other reasons, they are both so disproportionate to
the interest and importance of their subjects.
During the years that, amidst avocations of different kinds, have been
occupied in the composition of this work, several others have been given
to the world, and have attracted considerable attention, relating
particularly to the periods of the Reformation and of the civil wars. It
seems necessary to mention that I have read none of these, till after I
had written such of the following pages as treat of the same subjects.
The three first chapters indeed were finished in 1820, before the
appearance of those publications which have led to so much controversy,
as to the ecclesiastical history of the sixteenth century; and I was
equally unacquainted with Mr. Brodie's _History of the British Empire
from the Accession of Charles I. to the Restoration_, while engaged
myself on that period. I have, however, on a revision of the present
work, availed myself of the valuable labours of recent authors,
especially Dr. Lingard and Mr. Brodie; and in several of my notes I have
sometimes supported myself by their authority, sometimes taken the
liberty to express my dissent; but I have seldom thought it necessary to
make more than a few verbal modifications in my text.
It would, perhaps, not become me to offer any observations on these
contemporaries; but I cannot refrain from bearing testimony to the work
of a distinguished foreigner, M. Guizot, _Histoire de la Revolution
d'Angleterre, depuis l'Avenement de Charles I. jusqu'à la Chute de
Jacques II._, the first volume of which was published in 1826. The
extensive knowledge of M. Guizot, and his remarkable impartiality, have
already been displayed in his collection of memoirs illustrating that
part of English history; and I am much disposed to believe that if the
rest of his present undertaking shall be completed in as satisfactory a
manner as the first volume, he will be entitled to the preference above
any one, perhaps, of our native writers, as a guide through the great
period of the seventeenth century.
In terminating the _Constitutional History of England_ at the accession
of George III., I have been influenced by unwillingness to excite the
prejudices of modern politics, especially those connected with personal
character, which extend back through at least a large portion of that
reign. It is indeed vain to expect that any comprehensive account of the
two preceding centuries can be given without risking the disapprobation
of those parties, religious or political, which originated during that
period; but as I shall hardly incur the imputation of being the blind
zealot of any of these, I have little to fear, in this respect, from the
dispassionate public, whose favour, both in this country and on the
Continent, has been bestowed on my former work, with a liberality less
due to any literary merit it may possess, than to a regard for truth,
which will, I trust, be found equally characteristic of the present.
_June 1827._
ADVERTISEMENT
TO THE
THIRD EDITION
The present edition has been revised, and some use made of recent
publications. The note on the authenticity of the Icon Basilice, at the
end of the second volume of the two former editions, has been withdrawn;
not from the slightest doubt in the author's mind as to the correctness
of its argument; but because a discussion of a point of literary
criticism, as this ought to be considered, seemed rather out of its
place in the _Constitutional History of England_.
_April 1832._
LIST OF AUTHORITIES
_The following Editions have been used for the References in these
Volumes_
_Statutes at Large_, by Ruffhead, except where the late edition of
_Statutes of the Realm_ is expressly quoted.
_State Trials_, by Howell.
Rymer's _Foedera_, London, 20 vols. The paging of this edition is
preserved in the margin of the Hague edition in 10 vols.
_Parliamentary History_, new edition.
Burnet's _History of the Reformation_, 3 vols. folio, 1681.
Strype's _Ecclesiastical Memorials_, _Annals of Reformation_, and Lives
of Archbishops Cranmer, Parker, Grindal, and Whitgift, folio. The paging
of these editions is preserved in those lately published in 8vo.
Hall's _Chronicles of England_.
Holingshed's _Chronicles of England, Scotland, and Ireland_. The edition
in 4to published in 1808.
_Somers Tracts_, by Walter Scott, 13 vols. 4to.
_Harleian Miscellany_, 8 vols. 4to.
Neal's _History of the Puritans_, 2 vols. 4to.
Bacon's Works, by Mallet, 3 vols. folio, 1753.
Kennet's _Complete History of England_, 3 vols. folio, 1719.
Wood's _History of University of Oxford_, by Gutch, 4 vols. 4to.
Lingard's _History of England_, 10 vols. 8vo.
Butler's _Memoirs of English Catholics_, 4 vols. 1819.
Harris's _Lives of James I., Charles I., Cromwell, and Charles II._, 5
vols. 1814.
Clarendon's _History of the Rebellion_, 8 vols. 8vo. Oxford, 1826. It is
to be regretted that the editor has not preserved the paging of the
folio in his margin, which is of great convenience in a book so
frequently referred to; and still more so, that he has not thought the
true text worthy of a better place than the bottom of the page, leaving
to the spurious readings the post of honour.
Clarendon's _Life_, folio.
_Rushworth Abridged_, 6 vols. 8vo. 1703. This edition contains many
additions from works published since the folio edition in 1680.
Whitelock's _Memorials_, 1732.
_Memoirs of Col. Hutchinson_, 4to. 1806.
May's _History of the Parliament_, 4to. 1812.
Baxter's _Life_, folio.
Rapin's _History of England_, 3 vols. folio, 1732.
Burnet's _History of his own Times_, 2 vols. folio. The paging of this
edition is preserved in the margin of that printed at Oxford, 1823,
which is sometimes quoted, and the text of which has always been
followed.
_Life of William Lord Russell_, by Lord John Russell, 4to.
Temple's _Works_, 2 vols. folio, 1720.
Coxe's _Life of Marlborough_, 3 vols. 4to.
Coxe's _Memoirs of Sir Robert Walpole_, 3 vols. 4to.
Robertson's _History of Scotland_, 2 vols. 8vo. 1794.
Laing's _History of Scotland_, 4 vols. 8vo.
Dalrymple's _Annals of Scotland_, 2 vols. 4to.
Leland's _History of Ireland_, 3 vols. 4to.
Spenser's _Account of State of Ireland_, in 8th volume of Todd's edition
of Spenser's works.
These are, I believe, almost all the works quoted in the following
volumes, concerning which any uncertainty could arise from the mode of
reference.
CONSTITUTIONAL HISTORY OF ENGLAND
FROM HENRY VII. TO GEORGE II.
CHAPTER I
ON THE ENGLISH CONSTITUTION FROM HENRY VII. TO MARY
_Ancient government of England._--The government of England, in all
times recorded by history, has been one of those mixed or limited
monarchies which the Celtic and Gothic tribes appear universally to have
established, in preference to the coarse despotism of eastern nations,
to the more artificial tyranny of Rome and Constantinople, or to the
various models of republican polity which were tried upon the coasts of
the Mediterranean Sea. It bore the same general features, it belonged,
as it were, to the same family, as the governments of almost every
European state, though less resembling, perhaps, that of France than any
other. But, in the course of many centuries, the boundaries which
determined the sovereign's prerogative and the people's liberty or power
having seldom been very accurately defined by law, or at least by such
law as was deemed fundamental and unchangeable, the forms and principles
of political regimen in these different nations became more divergent
from each other, according to their peculiar dispositions, the
revolutions they underwent, or the influence of personal character.
England, more fortunate than the rest, had acquired in the fifteenth
century a just reputation for the goodness of her laws and the security
of her citizens from oppression.
This liberty had been the slow fruit of ages, still waiting a happier
season for its perfect ripeness, but already giving proof of the vigour
and industry which had been employed in its culture. I have
endeavoured, in a work of which this may in a certain degree be reckoned
a continuation, to trace the leading events and causes of its progress.
It will be sufficient in this place briefly to point out the principal
circumstances in the polity of England at the accession of Henry VII.
_Limitations of royal authority._--The essential checks upon the royal
authority were five in number.--1. The king could levy no sort of new
tax upon his people, except by the grant of his parliament, consisting
as well of bishops and mitred abbots, or lords spiritual, and of
hereditary peers or temporal lords, who sat and voted promiscuously in
the same chamber, as of representatives from the freeholders of each
county, and from the burgesses of many towns and less considerable
places, forming the lower or commons' house. 2. The previous assent and
authority of the same assembly was necessary for every new law, whether
of a general or temporary nature. 3. No man could be committed to prison
but by a legal warrant specifying his offence; and by an usage nearly
tantamount to constitutional right, he must be speedily brought to trial
by means of regular sessions of gaol-delivery. 4. The fact of guilt or
innocence on a criminal charge was determined in a public court, and in
the county where the offence was alleged to have occurred, by a jury of
twelve men, from whose unanimous verdict no appeal could be made. Civil
rights, so far as they depended on questions of fact, were subject to
the same decision. 5. The officers and servants of the Crown, violating
the personal liberty or other right of the subject, might be sued in an
action for damages, to be assessed by a jury, or, in some cases, were
liable to criminal process; nor could they plead any warrant or command
in their justification, not even the direct order of the king.
These securities, though it would be easy to prove that they were all
recognised in law, differed much in the degree of their effective
operation. It may be said of the first, that it was now completely
established. After a long contention, the kings of England had desisted
for near a hundred years from every attempt to impose taxes without
consent of parliament; and their recent device of demanding
benevolences, or half-compulsory gifts, though very oppressive, and on
that account just abolished by an act of the late usurper, Richard, was
in effect a recognition of the general principle, which it sought to
elude rather than transgress.
The necessary concurrence of the two houses of parliament in
legislation, though it could not be more unequivocally established than
the former, had in earlier times been more free from all attempt or
pretext of encroachment. We know not of any laws that were ever enacted
by our kings without the assent and advice of their great council;
though it is justly doubted, whether the representatives of the ordinary
freeholders, or of the boroughs, had seats and suffrages in that
assembly during seven or eight reigns after the conquest. They were
then, however, ingrafted upon it with plenary legislative authority; and
if the sanction of a statute were required for this fundamental axiom,
we might refer to one in the 15th of Edward II. (1322), which declares
that "the matters to be established for the estate of the king and of
his heirs, and for the estate of the realm and of the people, should be
treated, accorded, and established in parliament, by the king, and by
the assent of the prelates, earls, and barons, and the commonalty of the
realm, according as had been before accustomed."[5]
It may not be impertinent to remark in this place, that the opinion of
such as have fancied the royal prerogative under the houses of
Plantagenet and Tudor to have had no effectual or unquestioned
limitations is decisively refuted by the notorious fact, that no
alteration in the general laws of the realm was ever made, or attempted
to be made, without the consent of parliament. It is not surprising that
the council, in great exigency of money, should sometimes employ force
to extort it from the merchants, or that servile lawyers should be found
to vindicate these encroachments of power. Impositions, like other
arbitrary measures, were particular and temporary, prompted by rapacity,
and endured through compulsion. But if the kings of England had been
supposed to enjoy an absolute authority, we should find some proofs of
it in their exercise of the supreme function of sovereignty, the
enactment of new laws. Yet there is not a single instance from the first
dawn of our constitutional history, where a proclamation, or order of
council, has dictated any change, however trifling, in the code of
private rights, or in the penalties of criminal offences. Was it ever
pretended that the king could empower his subjects to devise their
freeholds, or to levy fines of their entailed lands? Has even the
slightest regulation as to judicial procedure, or any permanent
prohibition, even in fiscal law, been ever enforced without statute?
There was, indeed, a period, later than that of Henry VII., when a
control over the subject's free right of doing all things not unlawful
was usurped by means of proclamations. These, however, were always
temporary, and did not affect to alter the established law. But though
it would be difficult to assert that none of this kind had ever been
issued in rude and irregular times, I have not observed any under the
kings of the Plantagenet name which evidently transgress the boundaries
of their legal prerogative.
The general privileges of the nation were far more secure than those of
private men. Great violence was often used by the various officers of
the Crown, for which no adequate redress could be procured; the courts
of justice were not strong enough, whatever might be their temper, to
chastise such aggressions; juries, through intimidation or ignorance,
returned such verdicts as were desired by the Crown; and, in general,
there was perhaps little effective restraint upon the government, except
in the two articles of levying money and enacting laws.
_State of society and law._--The peers alone, a small body varying from
about fifty to eighty persons, enjoyed the privileges of aristocracy;
which, except that of sitting in parliament, were not very considerable,
far less oppressive. All below them, even their children, were
commoners, and in the eye of the law equal to each other. In the
gradation of ranks, which, if not regally recognised, must still subsist
through the necessary inequalities of birth and wealth, we find the
gentry or principal landholders, many of them distinguished by
knighthood, and all by bearing coat armour, but without any exclusive
privilege; the yeomanry, or small freeholders and farmers, a very
numerous and respectable body, some occupying their own estates, some
those of landlords; the burgesses and inferior inhabitants of trading
towns; and, lastly, the peasantry and labourers. Of these, in earlier
times, a considerable part, though not perhaps so very large a
proportion as is usually taken for granted, had been in the ignominious
state of villenage, incapable of possessing property but at the will of
their lords. They had, however, gradually been raised above this
servitude; many had acquired a stable possession of lands under the name
of copyholders; and the condition of mere villenage was become rare.
The three courts at Westminster--the King's Bench, Common Pleas, and
Exchequer--consisting each of four or five judges, administered justice
to the whole kingdom; the first having an appellant jurisdiction over
the second, and the third being in a great measure confined to causes
affecting the Crown's property. But as all suits relating to land, as
well as some others, and all criminal indictments, could only be
determined, so far as they depended upon oral evidence, by a jury of the
county, it was necessary that justices of assize and gaol-delivery,
being in general the judges of the courts at Westminster, should travel
into each county, commonly twice a year, in order to try issues of fact,
so called in distinction from issues of law, where the suitors,
admitting all essential facts, disputed the rule applicable to them.[6]
By this device, which is as ancient as the reign of Henry II., the
fundamental privilege of trial by jury, and the convenience of private
suitors, as well as accused persons, was made consistent with an uniform
jurisprudence; and though the reference of every legal question, however
insignificant, to the courts above must have been inconvenient and
expensive in a still greater degree than at present, it had doubtless a
powerful tendency to knit together the different parts of England, to
check the influence of feudality and clanship, to make the inhabitants
of distant counties better acquainted with the capital city and more
accustomed to the course of government, and to impair the spirit of
provincial patriotism and animosity. The minor tribunals of each county,
hundred, and manor, respectable for their antiquity and for their effect
in preserving a sense of freedom and justice, had in a great measure,
though not probably so much as in modern times, gone into disuse. In a
few counties there still remained a palatine jurisdiction, exclusive of
the king's courts; but in these the common rules of law and the mode of
trial by jury were preserved. Justices of the peace, appointed out of
the gentlemen of each county, enquired into criminal charges, committed
offenders to prison, and tried them at their quarterly sessions,
according to the same forms as the judges of gaol-delivery. The
chartered towns had their separate jurisdiction under the municipal
magistracy.
The laws against theft were severe, and capital punishments unsparingly
inflicted. Yet they had little effect in repressing acts of violence, to
which a rude and licentious state of manners, and very imperfect
dispositions for preserving the public peace, naturally gave rise. These
were frequently perpetrated or instigated by men of superior wealth and
power, above the control of the mere officers of justice. Meanwhile the
kingdom was increasing in opulence, the English merchants possessed a
large share of the trade of the north; and a woollen manufacture,
established in different parts of the kingdom, had not only enabled the
legislature to restrain the import of cloths, but begun to supply
foreign nations. The population may probably be reckoned, without any
material error, at about three millions, but by no means distributed in
the same proportions as at present; the northern counties, especially
Lancashire and Cumberland, being very ill peopled, and the inhabitants
of London and Westminster not exceeding sixty or seventy thousand.[7]
Such was the political condition of England, when Henry Tudor, the only
living representative of the house of Lancaster, though incapable, by
reason of the illegitimacy of the ancestor who connected him with it, of
asserting a just right of inheritance, became master of the throne by
the defeat and death of his competitor at Bosworth, and by the general
submission of the kingdom. He assumed the royal title immediately after
his victory, and summoned a parliament to recognise or sanction his
possession. The circumstances were by no means such as to offer an
auspicious presage for the future. A subdued party had risen from the
ground, incensed by proscription and elated by success; the late battle
had in effect been a contest between one usurper and another; and
England had little better prospect than a renewal of that desperate and
interminable contention, which the pretences of hereditary right have so
often entailed upon nations.
A parliament called by a conqueror might be presumed to be itself
conquered. Yet this assembly did not display so servile a temper, or so
much of the Lancastrian spirit, as might be expected. It was "ordained
and enacted by the assent of the Lords, and at the request of the
Commons, that the inheritance of the crowns of England and France, and
all dominions appertaining to them, should remain in Henry VII. and the
heirs of his body for ever, and in none other."[8] Words studiously
ambiguous, which, while they avoid the assertion of an hereditary right
that the public voice repelled, were meant to create a parliamentary
title, before which the pretensions of lineal descent were to give way.
They seem to make Henry the stock of a new dynasty. But, lest the
spectre of indefeasible right should stand once more in arms on the tomb
of the house of York, the two houses of parliament showed an earnest
desire for the king's marriage with the daughter of Edward IV., who, if
she should bear only the name of royalty, might transmit an undisputed
inheritance of its prerogatives to her posterity.
_Statute for the security of the subject under a king_ de facto.--This
marriage, and the king's great vigilance in guarding his crown, caused
his reign to pass with considerable reputation, though not without
disturbance. He had to learn by the extraordinary, though transient,
success of two impostors (if the second may with certainty be reckoned
such), that his subjects were still strongly infected with the prejudice
which had once overthrown the family he claimed to represent. Nor could
those who served him be exempt from apprehensions of a change of
dynasty, which might convert them into attainted rebels. The state of
the nobles and gentry had been intolerable during the alternate
proscriptions of Henry VI. and Edward IV. Such apprehensions led to a
very important statute in the eleventh year of this king's reign,
intended, as far as law could furnish a prospective security against the
violence and vengeance of factions, to place the civil duty of
allegiance on a just and reasonable foundation, and indirectly to cut
away the distinction between governments _de jure_ and _de facto_. It
enacts, after reciting that subjects by reason of their allegiance are
bound to serve their prince for the time being against every rebellion
and power raised against him, that "no person attending upon the king
and sovereign lord of this land for the time being, and doing him true
and faithful service, shall be convicted of high treason, by act of
parliament or other process of law, nor suffer any forfeiture or
punishment; but that every act made contrary to this statute should be
void and of no effect."[9] The endeavour to bind future parliaments was
of course nugatory; but the statute remains an unquestionable authority
for the constitutional maxim, that possession of the throne gives a
sufficient title to the subject's allegiance, and justifies his
resistance of those who may pretend to a better right. It was much
resorted to in argument at the time of the revolution, and in the
subsequent period.[10]
It has been usual to speak of this reign as if it formed a great epoch
in our constitution; the king having by his politic measures broken the
power of the barons who had hitherto withstood the prerogative, while
the commons had not yet risen from the humble station which they were
supposed to have occupied. I doubt, however, whether the change was
quite so precisely referable to the time of Henry VII., and whether his
policy has not been somewhat over-rated. In certain respects, his reign
is undoubtedly an 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.
_Statute of Fines._--The laws of Henry VII. have been highly praised by
Lord Bacon as "deep and not vulgar, not made upon the spur of a
particular occasion for the present, but out of providence for the
future, to make the estate of his people still more and more happy,
after the manner of the legislators in ancient and heroical times." But
when we consider how very few kings or statesmen have displayed this
prospective wisdom and benevolence in legislation, we may hesitate a
little to bestow so rare a praise upon Henry. Like the laws of all
other times, his statutes seem to have had no further aim than to remove
some immediate mischief, or to promote some particular end. One,
however, has been much celebrated as an instance of his sagacious
policy, and as the principal cause of exalting the royal authority upon
the ruins of the aristocracy; I mean, the Statute of Fines (as one
passed in the fourth year of his reign is commonly called), which is
supposed to have given the power of alienating entailed lands. But both
the intention and effect of this seem not to have been justly
apprehended.
In the first place it is remarkable that the statute of Henry VII. is
merely a transcript, with very little variation, from one of Richard
III., which is actually printed in most editions. It was re-enacted, as
we must presume, in order to obviate any doubt, however ill-grounded,
which might hang upon the validity of Richard's laws. Thus vanish at
once into air the deep policy of Henry VII. and his insidious schemes of
leading on a prodigal aristocracy to its ruin. It is surely strange that
those who have extolled this sagacious monarch for breaking the fetters
of landed property (though many of them were lawyers) should never have
observed, that whatever credit might be due for the innovation should
redound to the honour of the unfortunate usurper. But Richard, in truth,
had no leisure for such long-sighted projects of strengthening a throne
for his posterity which he could not preserve for himself. His law, and
that of his successor, had a different object in view.
It would be useless to some readers, and perhaps disgusting to others,
especially in the very outset of this work, to enter upon the history of
the English law as to the power of alienation. But I cannot explain the
present subject without mentioning that, by a statute in the reign of
Edward I, commonly called _de donis conditionalibus_, lands given to a
man and the heirs of his body, with remainder to other persons, or
reversion to the donor, could not be alienated by the possessor for the
time being, either from his own issue, or from those who were to succeed
them. Such lands were also incapable of forfeiture for treason or
felony; and more, perhaps, upon this account than from any more enlarged
principle, these entails were not viewed with favour by the courts of
justice. Several attempts were successfully made to relax their
strictness; and finally, in the reign of Edward IV., it was held by the
judges in the famous case of Taltarum, that a tenant in tail might, by
what is called suffering a common recovery, that is, by means of an
imaginary process of law, divest all those who were to come after him of
their succession, and become owner of the fee simple. Such a decision
was certainly far beyond the sphere of judicial authority. The
legislature, it was probably suspected, would not have consented to
infringe a statute which they reckoned the safeguard of their families.
The law, however, was laid down by the judges; and in those days the
appellant jurisdiction of the House of Lords, by means of which the
aristocracy might have indignantly reversed the insidious decision, had
gone wholly into disuse. It became by degrees a fundamental principle,
that an estate in tail can be barred by a common recovery; nor is it
possible by any legal subtlety to deprive the tenant of this control
over his estate. Schemes were indeed gradually devised, which to a
limited extent have restrained the power of alienation; but these do not
belong to our subject.
The real intention of these statutes of Richard and Henry was not to
give the tenant in tail a greater power over his estate (for it is by no
means clear that the words enable him to bar his issue by levying a
fine; and when a decision to that effect took place long afterwards (19
H. 8), it was with such difference of opinion that it was thought
necessary to confirm the interpretation by a new act of parliament); but
rather, by establishing a short term of prescription, to put a check on
the suits for recovery of lands, which, after times of so much violence
and disturbance, were naturally springing up in the courts. It is the
usual policy of commonwealths to favour possession; and on this
principle the statute enacts, that a fine levied with proclamations in a
public court of justice shall after five years, except in particular
circumstances, be a bar to all claims upon lands. This was its main
scope; the liberty of alienation was neither necessary, nor probably
intended to be given.[11]
_Exactions of Henry VII._--The two first of the Tudors rarely
experienced opposition but when they endeavoured to levy money.
Taxation, in the eyes of their subjects, was so far from being no
tyranny, that it seemed the only species worth a complaint. Henry VII.
obtained from his first parliament a grant of tonnage and poundage
during life, according to several precedents of former reigns. But when
general subsidies were granted, the same people, who would have seen an
innocent man led to prison or the scaffold with little attention, twice
broke out into dangerous rebellions; and as these, however arising from
such immediate discontent, were yet a good deal connected with the
opinion of Henry's usurpation and the claims of a pretender, it was a
necessary policy to avoid too frequent imposition of burdens upon the
poorer classes of the community.[12] He had recourse accordingly to the
system of benevolences, or contributions apparently voluntary, though in
fact extorted from his richer subjects. These having become an
intolerable grievance under Edward IV., were abolished in the only
parliament of Richard III. with strong expressions of indignation. But
in the seventh year of Henry's reign, when, after having with timid and
parsimonious hesitation suffered the marriage of Anne of Brittany with
Charles VIII., he was compelled by the national spirit to make a
demonstration of war, he ventured to try this unfair and
unconstitutional method of obtaining aid, which received afterwards too
much of a parliamentary sanction, by an act enforcing the payment of
arrears of money, which private men had thus been prevailed upon to
promise.[13] The statute indeed of Richard is so expressed as not
clearly to forbid the solicitation of voluntary gifts, which of course
rendered it almost nugatory.
Archbishop Morton is famous for the dilemma which he proposed to
merchants and others, whom he solicited to contribute. He told those who
lived handsomely, that their opulence was manifest by their rate of
expenditure. Those, again, whose course of living was less sumptuous,
must have grown rich by their economy. Either class could well afford
assistance to their sovereign. This piece of logic, unanswerable in the
mouth of a privy councillor, acquired the name of Morton's fork. Henry
doubtless reaped great profit from these indefinite exactions, miscalled
benevolences. But, insatiate of accumulating treasure, he discovered
other methods of extortion, still more odious, and possibly more
lucrative. Many statutes had been enacted in preceding reigns, sometimes
rashly or from temporary motives, sometimes in opposition to prevailing
usages which they could not restrain, of which the pecuniary penalties,
though exceedingly severe, were so little enforced as to have lost their
terror. These his ministers raked out from oblivion; and, prosecuting
such as could afford to endure the law's severity, filled his treasury
with the dishonourable produce of amercements and forfeitures. The
feudal rights became, as indeed they always had been, instrumental to
oppression. The lands of those who died without heirs fell back to the
Crown by escheat. It was the duty of certain officers in every county to
look after its rights. The king's title was to be found by the inquest
of a jury, summoned at the instance of the escheator, and returned into
the exchequer. It then became a matter of record, and could not be
impeached. Hence the escheators taking hasty inquests, or sometimes
falsely pretending them, defeated the right heir of his succession.
Excessive fines were imposed on granting livery to the king's wards on
their majority. Informations for intrusion, criminal indictments,
outlawries on civil process, in short, the whole course of justice,
furnished pretences for exacting money; while a host of dependents on
the court, suborned to play their part as witnesses, or even as jurors,
rendered it hardly possible for the most innocent to escape these
penalties. Empson and Dudley are notorious as the prostitute instruments
of Henry's avarice in the later and more unpopular years of his reign;
but they dearly purchased a brief hour of favour by an ignominious death
and perpetual infamy.[14] The avarice of Henry VII., as it rendered his
government unpopular, which had always been penurious, must be deemed a
drawback from the wisdom ascribed to him; though by his good fortune it
answered the end of invigorating his power. By these fines and
forfeitures he impoverished and intimidated the nobility. The Earl of
Oxford compounded, by the payment of £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.[15]
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.[16] The same parliament repealed a law of the late
reign, enabling justices of assize and of the peace to determine all
offences, except treason and felony, against any statute in force,
without a jury, upon information in the king's name.[17] This serious
innovation had evidently been prompted by the spirit of rapacity, which
probably some honest juries had shown courage enough to withstand. It
was a much less laudable concession to the vindictive temper of an
injured people, seldom unwilling to see bad methods employed in
punishing bad men, that Empson and Dudley, who might perhaps by
stretching the prerogative have incurred the penalties of a misdemeanor,
were put to death on a frivolous charge of high treason.[18]
_Taxes demanded by Henry VIII._--The demands made by Henry VIII. on
parliament were considerable both in frequency and amount.
Notwithstanding the servility of those times, they sometimes attempted
to make a stand against these inroads upon the public purse. Wolsey came
into the House of Commons in 1523, and asked for £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.[19] But the sum demanded was
so much beyond any precedent, that all the independent members opposed a
vigorous resistance. A committee was appointed to remonstrate with the
cardinal, and to set forth the impossibility of raising such a subsidy.
It was alleged that it exceeded all the current coin of the kingdom.
Wolsey, after giving an uncivil answer to the committee, came down again
to the House, on pretence of reasoning with them, but probably with a
hope of carrying his end by intimidation. They received him, at More's
suggestion, with all the train of attendants that usually encircled the
haughtiest subject who had ever been known in England. But they made no
other answer to his harangue than that it was their usage to debate only
among themselves. These debates lasted fifteen or sixteen days. A
considerable part of the Commons appears to have consisted of the king's
household officers, whose influence, with the utmost difficulty,
obtained a grant much inferior to the cardinal's requisition, and
payable by instalments in four years. But Wolsey, greatly dissatisfied
with this imperfect obedience, compelled the people to pay up the whole
subsidy at once.[20]
_Illegal exactions of Wolsey in 1522 and 1525._--No parliament was
assembled for nearly seven years after this time. Wolsey had already
resorted to more arbitrary methods of raising money by loans and
benevolences.[21] The year before this debate in the Commons, he
borrowed twenty thousand pounds of the city of London; yet so
insufficient did that appear for the king's exigencies, that within two
months commissioners were appointed throughout the kingdom to swear
every man to the value of his possessions, requiring a rateable part
according to such declaration. The clergy, it is said, were expected to
contribute a fourth; but I believe that benefices above ten pounds in
yearly value were taxed at one-third. Such unparalleled violations of
the clearest and most important privilege that belonged to Englishmen
excited a general apprehension.[22] Fresh commissioners however were
appointed in 1525, with instructions to demand the sixth part of every
man's substance, payable in money, plate, or jewels, according to the
last valuation.[23] This demand Wolsey made in person to the mayor and
chief citizens of London. They attempted to remonstrate, but were warned
to beware, lest "it might fortune to cost some their heads." Some were
sent to prison for hasty words, to which the smart of injury incited
them. The clergy, from whom, according to usage, a larger measure of
contribution was demanded, stood upon their privilege to grant their
money only in convocation, and denied the right of a king of England to
ask any man's money without authority of parliament. The rich and poor
agreed in cursing the cardinal as the subverter of their laws and
liberties; and said "if men should give their goods by a commission,
then it would be worse than the taxes of France, and England should be
bond, and not free."[24] Nor did their discontent terminate in
complaints. The commissioners met with forcible opposition in several
counties, and a serious insurrection broke out in Suffolk. So menacing a
spirit overawed the proud tempers of Henry and his minister, who found
it necessary not only to pardon all those concerned in these tumults,
but to recede altogether upon some frivolous pretexts from the illegal
exaction, revoking the commissions and remitting all sums demanded under
them. They now resorted to the more specious request of a voluntary
benevolence. This also the citizens of London endeavoured to repel, by
alleging the statute of Richard III. But it was answered that he was an
usurper, whose acts did not oblige a lawful sovereign. It does not
appear whether or not Wolsey was more successful in this new scheme;
but, generally, rich individuals had no remedy but to compound with the
government.
No very material attempt had been made since the reign of Edward III. to
levy a general imposition without consent of parliament, and in the most
remote and irregular times it would be difficult to find a precedent for
so universal and enormous an exaction; since tallages, however
arbitrary, were never paid by the barons or freeholders, nor by their
tenants; and the aids to which they were liable were restricted to
particular cases. If Wolsey therefore could have procured the
acquiescence of the nation under this yoke, there would probably have
been an end of parliaments for all ordinary purposes; though, like the
States General of France, they might still be convoked to give weight
and security to great innovations. We cannot indeed doubt that the
unshackled condition of his friend, though rival, Francis I., afforded
a mortifying contrast to Henry. Even under his tyrannical administration
there was enough to distinguish the king of a people who submitted in
murmuring to violations of their known rights, from one whose subjects
had almost forgotten that they ever possessed any. But the courage and
love of freedom natural to the English commons, speaking in the hoarse
voice of tumult, though very ill supported by their superiors, preserved
us in so great a peril.[25]
_Acts of parliament releasing the king from his debts._--If we justly
regard with detestation the memory of those ministers who have aimed at
subverting the liberties of their country, we shall scarcely approve the
partiality of some modern historians towards Cardinal Wolsey; a
partiality, too, that contradicts the general opinion of his
contemporaries. Haughty beyond comparison, negligent of the duties and
decorums of his station, profuse as well as rapacious, obnoxious alike
to his own order and to the laity, his fall had long been secretly
desired by the nation and contrived by his adversaries. His generosity
and magnificence seem rather to have dazzled succeeding ages than his
own. But, in fact, his best apology is the disposition of his master.
The latter years of Henry's reign were far more tyrannical than those
during which he listened to the counsels of Wolsey; and though this was
principally owing to the peculiar circumstances of the latter period, it
is but equitable to allow some praise to a minister for the mischief
which he may be presumed to have averted. Had a nobler spirit animated
the parliament which met at the era of Wolsey's fall, it might have
prompted his impeachment for gross violations of liberty. But these were
not the offences that had forfeited his prince's favour, or that they
dared bring to justice. They were not absent perhaps from the
recollection of some of those who took a part in prosecuting the fallen
minister. I can discover no better apology for Sir Thomas More's
participation in impeaching Wolsey on articles so frivolous that they
have served to redeem his fame with later times, than his knowledge of
weightier offences against the common weal which could not be alleged,
and especially the commissions of 1525.[26] But in truth this
parliament showed little outward disposition to object any injustice of
such a kind to the cardinal. They professed to take upon themselves to
give a sanction to his proceedings, as if in mockery of their own and
their country's liberties. They passed a statute, the most extraordinary
perhaps of those strange times, wherein "they do, for themselves and all
the whole body of the realm which they represent, freely, liberally, and
absolutely, give and grant unto the king's highness, by authority of
this present parliament, all and every sum and sums of money which to
them and every of them, is, ought, or might be due, by reason of any
money, or any other thing, to his grace at any time heretofore advanced
or paid by way of trust or loan, either upon any letter or letters under
the king's privy seal, general or particular, letter missive, promise
bond, or obligation of repayment, or by any taxation or other assessing,
by virtue of any commission or commissions, or by any other mean or
means, whatever it be, heretofore, passed for that purpose."[27] This
extreme servility and breach of trust naturally excited loud murmurs;
for the debts thus released had been assigned over by many to their own
creditors, and having all the security both of the king's honour and
legal obligation, were reckoned as valid as any other property. It is
said by Hall, that most of this House of Commons held offices under the
Crown. This illaudable precedent was remembered in 1544, when a similar
act passed, releasing to the king all monies borrowed by him since 1542,
with the additional provision, that if he should have already discharged
any of these debts, the party or his heirs should repay his majesty.[28]
_A benevolence again exacted._--Henry had once more recourse, about
1545, to a general exaction, miscalled benevolence. The council's
instructions to the commissioners employed in levying it leave no doubt
as to its compulsory character. They were directed to incite all men to
a loving contribution according to the rates of their substance, as they
were assessed at the last subsidy, calling on no one whose lands were of
less value than 40_s._ or whose chattels were less than £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.[29]
It is only through the accidental publication of some family papers,
that we have become acquainted with this document, so curiously
illustrative of the government of Henry VIII. From the same authority
may be exhibited a particular specimen of the consequences that awaited
the refusal of this benevolence. One Richard Reed, an alderman of
London, had stood alone, as is said, among his fellow-citizens, in
refusing to contribute. It was deemed expedient not to overlook this
disobedience; and the course adopted in pursuing it is somewhat
remarkable. The English army was then in the field on the Scots border.
Reed was sent down to serve as a soldier at his own charge; and the
general, Sir Ralph Ewer, received intimations to employ him on the
hardest and most perilous duty, and subject him, when in garrison, to
the greatest privations, that he might feel the smart of his folly and
sturdy disobedience. "Finally," the letter concludes, "you must use him
in all things according to the sharpe disciplyne militar of the northern
wars."[30] It is natural to presume that few would expose themselves to
the treatment of this unfortunate citizen; and that the commissioners,
whom we find appointed two years afterwards in every county, to obtain
from the king's subjects as much as they would willingly give, if they
did not always find perfect readiness, had not to complain of many
peremptory denials.[31]
_Severe and unjust executions for treason._--Such was the security that
remained against arbitrary taxation under the two Henries. Were men's
lives better protected from unjust measures, and less at the mercy of a
jealous court? It cannot be necessary to expatiate very much on this
subject in a work that supposes the reader's acquaintance with the
common facts of our history; yet it would leave the picture too
imperfect, were I not to recapitulate the more striking instances of
sanguinary injustice that have cast so deep a shade over the memory of
these princes.
_Earl of Warwick._--The Duke of Clarence, attainted in the reign of his
brother Edward IV., left one son, whom his uncle restored to the title
of Earl of Warwick. This boy, at the accession of Henry VII., being then
about twelve years old, was shut up in the Tower. Fifteen years of
captivity had elapsed, when, if we trust to the common story, having
unfortunately become acquainted with his fellow-prisoner Perkin Warbeck,
he listened to a scheme for their escape, and would probably not have
been averse to second the ambitious views of that young man. But it was
surmised, with as much likelihood as the character of both parties could
give it, that the king had promised Ferdinand of Aragon to remove the
Earl of Warwick out of the way, as the condition of his daughter's
marriage with the Prince of Wales, and the best means of securing their
inheritance. Warwick accordingly was brought to trial for a conspiracy
to overturn the government; which he was induced to confess, in the
hope, as we must conceive, and perhaps with an assurance, of pardon, and
was immediately executed.
_Earl of Suffolk._--The nearest heir to the house of York, after the
queen and her children, and the descendants of the Duke of Clarence,
was a son of Edward IV.'s sister, the Earl of Suffolk, whose elder
brother, the Earl of Lincoln, had joined in the rebellion of Lambert
Simnel, and perished at the battle of Stoke. Suffolk, having killed a
man in an affray, obtained a pardon which the king compelled him to
plead in open court at his arraignment. This laudable impartiality is
said to have given him offence, and provoked his flight into the
Netherlands; whence, being a man of a turbulent disposition, and
partaking in the hatred of his family towards the house of Lancaster, he
engaged in a conspiracy with some persons at home, which caused him to
be attainted of treason. Some time afterwards, the Archduke Philip,
having been shipwrecked on the coast of England, found himself in a sort
of honourable detention at Henry's court. On consenting to his
departure, the king requested him to send over the Earl of Suffolk; and
Philip, though not insensible to the breach of hospitality exacted from
him, was content to satisfy his honour by obtaining a promise that the
prisoner's life should be spared. Henry is said to have reckoned this
engagement merely personal, and to have left as a last injunction to his
successor, that he should carry into effect the sentence against
Suffolk. Though this was an evident violation of the promise in its
spirit, yet Henry VIII., after the lapse of a few years, with no new
pretext, caused him to be executed.
_Duke of Buckingham._--The Duke of Buckingham, representing the ancient
family of Stafford, and hereditary high constable of England, stood the
first in rank and consequence, perhaps in riches, among the nobility.
But being too ambitious and arrogant for the age in which he was born,
he drew on himself the jealousy of the king, and the resentment of
Wolsey. The evidence, on his trial for high treason, was almost entirely
confined to idle and vaunting language, held with servants who betrayed
his confidence, and soothsayers whom he had believed. As we find no
other persons charged as parties with him, it seems manifest that
Buckingham was innocent of any real conspiracy. His condemnation not
only gratified the cardinal's revenge, but answered a very constant
purpose of the Tudor government, that of intimidating the great
families, from whom the preceding dynasty had experienced so much
disquietude.[32]
_New treasons created by statutes._--The execution, however, of Suffolk
was at least not contrary to law; and even Buckingham was attainted on
evidence which, according to the tremendous latitude with which the law
of treason had been construed, a court of justice could not be expected
to disregard. But after the fall of Wolsey, and Henry's breach with the
Roman see, his fierce temper, strengthened by habit and exasperated by
resistance, demanded more constant supplies of blood; and many perished
by sentences which we can hardly prevent ourselves from considering as
illegal, because the statutes to which they might be conformable seem,
from their temporary duration, their violence, and the passiveness of
the parliaments that enacted them, rather like arbitrary invasions of
the law than alterations of it. By an act of 1534, not only an oath was
imposed to maintain the succession in the heirs of the king's second
marriage, in exclusion of the Princess Mary; but it was made high
treason to deny that ecclesiastical supremacy of the Crown, which, till
about two years before, no one had ever ventured to assert. Bishop
Fisher, the most inflexibly honest churchman who filled a high station
in that age, was beheaded for this denial. Sir Thomas More, whose name
can ask no epithet, underwent a similar fate. He had offered to take the
oath to maintain the succession, which, as he justly said, the
legislature was competent to alter; but prudently avoided to give an
opinion as to the supremacy, till Rich, solicitor-general, and
afterwards chancellor, elicited, in a private conversation, some
expressions, which were thought sufficient to bring him within the fangs
of the recent statute. A considerable number of less distinguished
persons, chiefly ecclesiastical, were afterwards executed by virtue of
this law.
The sudden and harsh innovations made by Henry in religion, as to which
every artifice of concealment and delay is required, his destruction of
venerable establishments, his tyranny over the recesses of the
conscience, excited so dangerous a rebellion in the north of England,
that his own general, the Duke of Norfolk, thought it absolutely
necessary to employ measures of conciliation.[33] The insurgents laid
down their arms, on an unconditional promise of amnesty. But another
rising having occurred in a different quarter, the king made use of this
pretext to put to death some persons of superior rank, who, though they
had, voluntarily or by compulsion, partaken in the first rebellion, had
no concern in the second, and to let loose military law upon their
followers. Nor was his vengeance confined to those who had evidently
been guilty of these tumults. It is, indeed, unreasonable to deny that
there might be, nay, there probably were, some real conspirators among
those who suffered on the scaffolds of Henry. Yet in the processes
against the Countess of Salisbury, an aged woman, but obnoxious as the
daughter of the Duke of Clarence and mother of Reginald Pole, an active
instrument of the pope in fomenting rebellion,[34] against the abbots of
Reading and Glastonbury, and others who were implicated in charges of
treason at this period, we find so much haste, such neglect of judicial
forms, and so blood-thirsty a determination to obtain convictions, that
we are naturally tempted to reckon them among the victims of revenge or
rapacity.
_Cromwell._--It was, probably, during these prosecutions that Cromwell,
a man not destitute of liberal qualities, but who is liable to the one
great reproach of having obeyed too implicitly a master whose commands
were crimes, inquired of the judges whether, if parliament should
condemn a man to die for treason without hearing him, the attainder
could ever be disputed. They answered that it was a dangerous question,
and that parliament should rather set an example to inferior courts for
proceeding according to justice. But being pressed to reply by the
king's express commandment, they said that an attainder in parliament,
whether the party had been heard or not in his defence, could never be
reversed in a court of law. No proceedings, it is said, took place
against the person intended, nor is it known who he was.[35] But men
prone to remark all that seems an appropriate retribution of Providence,
took notice that he, who had thus solicited the interpreters of the law
to sanction such a violation of natural justice, was himself its
earliest example. In the apparent zenith of favour, this able and
faithful minister, the king's viceregent in his ecclesiastical
supremacy, and recently created Earl of Essex, fell so suddenly, and so
totally without offence, that it has perplexed some writers to assign
the cause. But there seems little doubt that Henry's dissatisfaction
with his fourth wife, Anne of Cleves, whom Cromwell had recommended,
alienated his selfish temper, and inclined his ear to the whisperings of
those courtiers who abhorred the favourite and his measures. An act
attainting him of treason and heresy was hurried through parliament,
without hearing him in his defence.[36] The charges, indeed, at least of
the first kind, were so ungrounded, that had he been permitted to refute
them, his condemnation, though not less certain, might, perhaps, have
caused more shame. This precedent of sentencing men unheard, by means of
an act of attainder, was followed in the case of Dr. Barnes, burned not
long afterwards for heresy.
_Duke of Norfolk._--The Duke of Norfolk had been, throughout Henry's
reign, one of his most confidential ministers. But as the king
approached his end, an inordinate jealousy of great men, rather than
mere caprice, appears to have prompted the resolution of destroying the
most conspicuous family in England. Norfolk's son, too, the Earl of
Surrey, though long a favourite with the king, possessed more talents
and renown, as well as a more haughty spirit, than was compatible with
his safety. A strong party at court had always been hostile to the Duke
of Norfolk; and his ruin was attributed especially to the influence of
the two Seymours. No accusations could be more futile than those who
sufficed to take away the life of the noblest and most accomplished man
in England. Surrey's treason seems to have consisted chiefly in
quartering the royal arms in his escutcheon; and this false heraldry, if
such it were, must have been considered as evidence of meditating the
king's death. His father ignominiously confessed the charges against
himself, in a vain hope of mercy from one who knew not what it meant. An
act of attainder (for both houses of parliament were commonly made
accessary to the legal murders of this reign) was passed with much
haste, and perhaps irregularly; but Henry's demise ensuing at the
instant, prevented the execution of Norfolk. Continuing in prison during
Edward's reign, he just survived to be released and restored in blood
under Mary.
_Anne Boleyn._--Among the victims of this monarch's ferocity, as we
bestow most of our admiration on Sir Thomas More, so we reserve our
greatest pity for Anne Boleyn. Few, very few, have in any age hesitated
to admit her innocence.[37] But her discretion was by no means
sufficient to preserve her steps on that dizzy height, which she had
ascended with more eager ambition than feminine delicacy could approve.
Henry was probably quick-sighted enough to perceive that he did not
possess her affections; and his own were soon transferred to another
object. Nothing in this detestable reign is worse than her trial. She
was indicted, partly upon the statute of Edward III., which, by a just
though rather technical construction, has been held to extend the guilt
of treason to an adulterous queen as well as to her paramour, and partly
on the recent law for preservation of the succession, which attached the
same penalties to anything done or said in slander of the king's issue.
Her levities in discourse were brought within this strange act by a
still more strange interpretation. Nor was the wounded pride of the king
content with her death. Under the fear, as is most likely, of a more
cruel punishment, which the law affixed to her offence, Anne was induced
to confess a pre-contract with Lord Percy, on which her marriage with
the king was annulled by an ecclesiastical sentence, without awaiting
its certain dissolution by the axe.[38] Henry seems to have thought his
honour too much sullied by the infidelity of a lawful wife. But for
this destiny he was yet reserved. I shall not impute to him as an act of
tyranny the execution of Catherine Howard, since it appears probable
that the licentious habits of that young woman had continued after her
marriage; and though we might not in general applaud the vengeance of a
husband who should put a guilty wife to death, it could not be expected
that Henry VIII. should lose so reasonable an opportunity of shedding
blood.[39] It was after the execution of this fifth wife that the
celebrated law was enacted, whereby any woman whom the king should marry
as a virgin incurred the penalties of treason, if she did not previously
reveal any failings that had disqualified her for the service of
Diana.[40]
_Fresh statutes enacting the penalties of treason._--These parliamentary
attainders, being intended rather as judicial than legislative
proceedings, were violations of reason and justice in the application of
law. But many general enactments of this reign bear the same character
of servility. New political offences were created in every parliament,
against which the severest penalties were denounced. The nation had
scarcely time to rejoice in the termination of those long debates
between the houses of York and Lancaster, when the king's divorce, and
the consequent illegitimacy of his eldest daughter, laid open the
succession to fresh questions. It was needlessly unnatural and unjust to
bastardise the Princess Mary, whose title ought rather to have had the
confirmation of parliament. But Henry, who would have deemed so moderate
a proceeding injurious to his cause in the eyes of Europe, and a sort of
concession to the adversaries of the divorce, procured an act settling
the crown on his children by Anne or any subsequent wife. Any person
disputing the lawfulness of the king's second marriage might, by the
sort of construction that would be put on this act, become liable to the
penalties of treason. In two years more this very marriage was annulled
by sentence; and it would perhaps have been treasonable to assert the
Princess Elizabeth's legitimacy. The same punishment was enacted against
such as should marry without licence under the great seal, or have a
criminal intercourse with any of the king's children "lawfully born, or
otherwise commonly reputed to be his children, or his sister, aunt, or
niece."[41]
_Act giving proclamations the force of law._--Henry's two divorces had
created an uncertainty as to the line of succession, which parliament
endeavoured to remove, not by such constitutional provisions in
concurrence with the Crown as might define the course of inheritance,
but by enabling the king, on failure of issue by Jane Seymour or any
other lawful wife, to make over and bequeath the kingdom to any persons
at his pleasure, not even reserving a preference to the descendants of
former sovereigns.[42] By a subsequent statute, the Princesses Mary and
Elizabeth were nominated in the entail, after the king's male issue,
subject, however, to such conditions as he should declare, by
non-compliance with which their right was to cease.[43] This act still
left it in his power to limit the remainder at his discretion. In
execution of this authority, he devised the crown, upon failure of issue
from his three children, to the heirs of the body of Mary Duchess of
Suffolk, the younger of his two sisters; postponing at least, if not
excluding, the royal family of Scotland, descended from his elder sister
Margaret. In surrendering the regular laws of the monarchy to one man's
caprice, this parliament became accessary, so far as in it lay, to
dispositions which might eventually have kindled the flames of civil
war. But it seemed to aim at inflicting a still deeper injury on future
generations, in enacting that a king, after he should have attained the
age of twenty-four years, might repeal any statutes made since his
accession.[44] Such a provision not only tended to annihilate the
authority of a regency, and to expose the kingdom to a sort of
anarchical confusion during its continuance, but seemed to prepare the
way for a more absolute power of abrogating all acts of the legislature.
Three years afterwards it was enacted that proclamations made by the
king and council, under penalty of fine and imprisonment, should have
the force of statutes, so that they should not be prejudicial to any
person's inheritance, offices, liberties, goods, and chattels, or
infringe the established laws. This has been often noticed as an
instance of servile compliance. It is, however, a striking testimony to
the free constitution it infringed, and demonstrates that the
prerogative could not soar to the heights it aimed at, till thus imped
by the perfidious hand of parliament. It is also to be observed, that
the power given to the king's proclamations is considerably limited.[45]
A government administered with so frequent violations not only of the
chartered privileges of Englishmen, but of those still more sacred
rights which natural law has established, must have been regarded, one
would imagine, with just abhorrence, and earnest longings for a change.
Yet contemporary authorities by no means answer to this expectation.
Some mention Henry after his death in language of eulogy; and, if we
except those whom attachment to the ancient religion had inspired with
hatred towards his memory, very few appear to have been aware that his
name would descend to posterity among those of the many tyrants and
oppressors of innocence, whom the wrath of Heaven has raised up, and the
servility of men has endured. I do not indeed believe that he had
really conciliated his people's affection. That perfect fear which
attended him must have cast out love. But he had a few qualities that
deserve esteem, and several which a nation is pleased to behold in its
sovereign. He wanted, or at least did not manifest in any eminent
degree, one usual vice of tyrants, dissimulation; his manners were
affable, and his temper generous. Though his schemes of foreign policy
were not very sagacious, and his wars, either with France or Scotland,
productive of no material advantage, they were uniformly successful, and
retrieved the honour of the English name. But the main cause of the
reverence with which our forefathers cherished this king's memory, was
the share he had taken in the Reformation. They saw in him not indeed
the proselyte of their faith, but the subverter of their enemies' power,
the avenging minister of Heaven, by whose giant arm the chain of
superstition had been broken, and the prison gates burst asunder.[46]
_Government of Edward VI.'s counsellors._--The ill-assorted body of
counsellors who exercised the functions of regency by Henry's testament,
were sensible that they had not sinews to wield his iron sceptre, and
that some sacrifice must be made to a nation exasperated as well as
overawed by the violent measures of his reign. In the first session
accordingly of Edward's parliament, the new treasons and felonies which
had been created to please his father's sanguinary disposition, were at
once abrogated.[47] The statute of Edward III. became again the standard
of high treason, except that the denial of the king's supremacy was
still liable to its penalties. The same act, which relieves the subject
from these terrors, contains also a repeal of that which had given
legislative validity to the king's proclamations. These provisions
appear like an elastic recoil of the constitution after the
extraordinary pressure of that despotic reign. But, however they may
indicate the temper of parliament, we must consider them but as an
unwilling and insincere compliance on the part of the government. Henry,
too arrogant to dissemble with his subjects, had stamped the law itself
with the print of his despotism. The more wily courtiers of Edward's
council deemed it less obnoxious to violate than to new-mould the
constitution. For, although proclamations had no longer the legal
character of statutes, we find several during Edward's reign enforced by
penalty of fine and imprisonment. Many of the ecclesiastical changes
were first established by no other authority, though afterwards
sanctioned by parliament. Rates were thus fixed for the price of
provisions; bad money was cried down, with penalties on those who should
buy it under a certain value, and the melting of the current coin
prohibited on pain of forfeiture.[48] Some of these might possibly have
a sanction from precedent, and from the acknowledged prerogative of the
crown in regulating the coin. But no legal apology can be made for a
proclamation in April 1549, addressed to all justices of the peace,
enjoining them to arrest sowers and tellers abroad of vain and forged
tales and lies, and to commit them to the galleys, there to row in
chains as slaves during the king's pleasure.[49] One would imagine that
the late statute had been repealed, as too far restraining the royal
power, rather than as giving it an unconstitutional extension.
_Attainder of Lord Seymour._--It soon became evident that, if the new
administration had not fully imbibed the sanguinary spirit of their late
master, they were as little scrupulous in bending the rules of law and
justice to their purpose in cases of treason. The Duke of Somerset,
nominated by Henry only as one of his sixteen executors, obtained almost
immediately afterwards a patent from the young king, who during his
minority was certainly not capable of any valid act, constituting him
sole regent under the name of protector, with the assistance indeed of
the rest as his counsellors, but with the power of adding any others to
their number. Conscious of his own usurpation, it was natural for
Somerset to dread the aspiring views of others; nor was it long before
he discovered a rival in his brother, Lord Seymour of Sudeley, whom,
according to the policy of that age, he thought it necessary to destroy
by a bill of attainder. Seymour was apparently a dangerous and
unprincipled man; he had courted the favour of the young king by small
presents of money, and appears beyond question to have entertained a
hope of marrying the Princess Elizabeth, who had lived much in his house
during his short union with the queen dowager. It was surmised that this
lady had been poisoned to make room for a still nobler consort.[50] But
in this there could be no treason; and it is not likely that any
evidence was given which could have brought him within the statute of
Edward III. In this prosecution against Lord Seymour, it was thought
expedient to follow the very worst of Henry's precedents, by not hearing
the accused in his defence. The bill passed through the upper house, the
natural guardian of a peer's life and honour, without one dissenting
voice. The Commons addressed the king that they might hear the
witnesses, and also the accused. It was answered that the king did not
think it necessary for them to hear the latter, but that those who had
given their depositions before the Lords might repeat their evidence
before the lower house. It rather appears that the Commons did not
insist on this any farther; but the bill of attainder was carried with a
few negative voices.[51] How striking a picture it affords of the
sixteenth century, to behold the popular and well-natured Duke of
Somerset, more estimable at least than any statesman employed under
Edward, not only promoting this unjust condemnation of his brother, but
signing the warrant under which he was beheaded!
_Attainder of Duke of Somerset._--But it was more easy to crush a single
competitor, than to keep in subjection the subtle and daring spirits
trained in Henry's councils, and jealous of the usurpation of an equal.
The protector, attributing his success, as is usual with men in power,
rather to skill than fortune, and confident in the two frailest supports
that a minister can have, the favour of a child and of the lower people,
was stripped of his authority within a few months after the execution of
Lord Seymour, by a confederacy which he had neither the discretion to
prevent, nor the firmness to resist. Though from this time but a
secondary character upon the public stage, he was so near the throne as
to keep alive the suspicions of the Duke of Northumberland, who, with no
ostensible title, had become not less absolute than himself. It is not
improbable that Somerset was innocent of the charge imputed to him,
namely, a conspiracy to murder some of the privy councillors, which had
been erected into felony by a recent statute; but the evidence, though
it may have been false, does not seem legally insufficient. He demanded
on his trial to be confronted with the witnesses; a favour rarely
granted in that age to state criminals, and which he could not very
decently solicit after causing his brother to be condemned unheard.
Three lords, against whom he was charged to have conspired, sat upon his
trial; and it was thought a sufficient reply to his complaints of this
breach of a known principle, that no challenge could be allowed in the
case of a peer.
From this designing and unscrupulous oligarchy no measure conducive to
liberty and justice could be expected to spring. But among the Commons
there must have been men, although their names have not descended to us,
who, animated by a purer zeal for these objects, perceived on how
precarious a thread the life of every man was suspended, when the
private deposition of one suborned witness, unconfronted with the
prisoner, could suffice to obtain a conviction in cases of treason. In
the worst period of Edward's reign, we find inserted in a bill creating
some new treasons, one of the most important constitutional provisions
which the annals of the Tudor family afford. It is enacted, that "no
person shall be indicted for any manner of treason, except on the
testimony of two lawful witnesses, who shall be brought in person before
the accused at the time of his trial, to avow and maintain what they
have to say against him, unless he shall willingly confess the
charges."[52] This salutary provision was strengthened, not taken away,
as some later judges ventured to assert, by an act in the reign of Mary.
In a subsequent part of this work, I shall find an opportunity for
discussing this important branch of constitutional law.
_Violence of Mary's reign._--It seems hardly necessary to mention the
momentary usurpation of Lady Jane Grey, founded on no pretext of title
which could be sustained by any argument. She certainly did not obtain
that degree of actual possession which might have sheltered her
adherents under the statute of Henry VII.; nor did the Duke of
Northumberland allege this excuse on his trial, though he set up one of
a more technical nature, that the great seal was a sufficient protection
for acts done by its authority.[53] The reign that immediately followed
is chiefly remembered as a period of sanguinary persecution; but though
I reserve for the next chapter all mention of ecclesiastical disputes,
some of Mary's proceedings in re-establishing popery belong to the civil
history of our constitution. Impatient, under the existence, for a
moment, of rites and usages which she abhorred, this bigoted woman
anticipated the legal authority which her parliament was ready to
interpose for their abrogation; the Latin liturgy was restored, the
married clergy expelled from their livings, and even many protestant
ministers thrown into prison for no other crime than their religion,
before any change had been made in the established laws.[54] The queen,
in fact, and those around her, acted and felt as a legitimate
government restored after an usurpation, and treated the recent statutes
as null and invalid. But even in matters of temporal government, the
stretches of prerogative were more violent and alarming than during her
brother's reign. It is due indeed to the memory of one who has left so
odious a name, to remark that Mary was conscientiously averse to
encroach upon what she understood to be the privileges of her people. A
wretched book having been written to exalt her prerogative, on the
ridiculous pretence that, as a queen, she was not bound by the laws of
former kings, she showed it to Gardiner, and on his expressing
indignation at the sophism, threw it herself into the fire. An act
passed, however, to settle such questions, which declares the queen to
have all the lawful prerogatives of the Crown.[55] But she was
surrounded by wicked counsellors, renegades of every faith and ministers
of every tyranny. We must, in candour, attribute to their advice her
arbitrary measures, though not her persecution of heresy, which she
counted for virtue. She is said to have extorted loans from the citizens
of London, and others of her subjects.[56] This, indeed, was not more
than had been usual with her predecessors. But we find one clear
instance during her reign of a duty upon foreign cloth, imposed without
assent of parliament; an encroachment unprecedented since the reign of
Richard II. Several proofs might be adduced from records of arbitrary
inquests for offences, and illegal modes of punishment. The torture is,
perhaps, more frequently mentioned in her short reign than in all former
ages of our history put together; and probably from that imitation of
foreign governments, which contributed not a little to deface our
constitution in the sixteenth century, seems deliberately to have been
introduced as part of the process in those dark and uncontrolled
tribunals which investigated offences against the state.[57] A
commission issued in 1557, authorising the persons named in it to
enquire, by any means they could devise, into charges of heresy or
other religious offences, and in some instances to punish the guilty, in
others of a graver nature to remit them to their ordinaries, seems (as
Burnet has well observed) to have been meant as a preliminary step to
bringing in the inquisition. It was at least the germ of the
high-commission court in the next reign.[58] One proclamation, in the
last year of her inauspicious administration, may be deemed a flight of
tyranny beyond her father's example; which, after denouncing the
importation of books filled with heresy and treason from beyond sea,
proceeds to declare that whoever should be found to have such books in
his possession should be reputed and taken for a rebel, and executed
according to martial law.[59] This had been provoked as well by a
violent libel written at Geneva by Goodman, a refugee, exciting the
people to dethrone the queen; as by the recent attempt of one Stafford,
a descendant of the house of Buckingham, who, having landed with a small
force at Scarborough, had vainly hoped that the general disaffection
would enable him to overthrow her government.[60]
_The House of Commons recovers part of its independent power in these
two reigns._--Notwithstanding, however, this apparently uncontrolled
career of power, it is certain that the children of Henry VIII. did not
preserve his almost absolute dominion over parliament. I have only met
with one instance in his reign where the Commons refused to pass a bill
recommended by the Crown. This was in 1532; but so unquestionable were
the legislative rights of parliament, that, although much displeased,
even Henry was forced to yield.[61] We find several instances during the
reign of Edward, and still more in that of Mary, where the Commons
rejected bills sent down from the upper house; and though there was
always a majority of peers for the government, yet the dissent of no
small number is frequently recorded in the former reign. Thus the
Commons not only threw out a bill creating several new treasons, and
substituted one of a more moderate nature, with that memorable clause
for two witnesses to be produced in open court, which I have already
mentioned;[62] but rejected one attainting Tunstal Bishop of Durham for
misprision of treason, and were hardly brought to grant a subsidy.[63]
Their conduct in the two former instances, and probably in the third,
must be attributed to the indignation that was generally felt at the
usurped power of Northumberland, and the untimely fate of Somerset.
Several cases of similar unwillingness to go along with court measures
occurred under Mary. She dissolved, in fact, her two first parliaments
on this account. But the third was far from obsequious, and rejected
several of her favourite bills.[64] Two reasons principally contributed
to this opposition; the one, a fear of entailing upon the country those
numerous exactions of which so many generations had complained, by
reviving the papal supremacy, and more especially of a restoration of
abbey lands; the other, an extreme repugnance to the queen's Spanish
connection.[65] If Mary could have obtained the consent of parliament,
she would have settled the crown on her husband, and sent her sister,
perhaps, to the scaffold.[66]
_Attempt of the court to strengthen itself by creating new
boroughs._--There cannot be a stronger proof of the increased weight of
the Commons during these reigns, than the anxiety of the court to obtain
favourable elections. Many ancient boroughs undoubtedly have at no
period possessed sufficient importance to deserve the elective franchise
on the score of their riches or population; and it is most likely that
some temporary interest or partiality, which cannot now be traced, first
caused a writ to be addressed to them. But there is much reason to
conclude that the counsellors of Edward VI., in erecting new boroughs,
acted upon a deliberate plan of strengthening their influence among the
Commons. Twenty-two boroughs were created or restored in this short
reign; some of them, indeed, places of much consideration, but not less
than seven in Cornwall, and several others that appear to have been
insignificant. Mary added fourteen to the number; and as the same course
was pursued under Elizabeth, we in fact owe a great part of that
irregularity in our popular representation, the advantages or evils of
which we need not here discuss, less to changes wrought by time, than to
deliberate and not very constitutional policy. Nor did the government
scruple a direct and avowed interference with elections. A circular
letter of Edward to all the sheriffs commands them to give notice to the
freeholders, citizens, and burgesses within their respective counties,
"that our pleasure and commandment is, that they shall choose and
appoint, as nigh as they possibly may, men of knowledge and experience
within the counties, cities, and boroughs;" but nevertheless, that where
the privy council should "recommend men of learning and wisdom, in such
case their directions be regarded and followed." Several persons
accordingly were recommended by letters to the sheriffs, and elected as
knights for different shires; all of whom belonged to the court, or were
in places of trust about the king.[67] It appears probable that persons
in office formed at all times a very considerable portion of the House
of Commons. Another circular of Mary before the parliament of 1554,
directing the sheriffs to admonish the electors to choose good catholics
and "inhabitants, as the old laws require," is much less
unconstitutional; but the Earl of Sussex, one of her most active
counsellors, wrote to the gentlemen of Norfolk, and to the burgesses of
Yarmouth, requesting them to reserve their voices for the person he
should name.[68] There is reason to believe that the court, or rather
the imperial ambassador, did homage to the power of the Commons, by
presents of money, in order to procure their support of the unpopular
marriage with Philip;[69] and if Noailles, the ambassador of Henry II.,
did not make use of the same means to thwart the grants of subsidy and
other measures of the administration, he was at least very active in
promising the succour of France, and animating the patriotism of those
unknown leaders of that assembly, who withstood the design of a besotted
woman and her unprincipled counsellors to transfer this kingdom under
the yoke of Spain.[70]
_Causes of the high prerogative of the Tudors._--It appears to be a very
natural enquiry, after beholding the course of administration under the
Tudor line, by what means a government so violent in itself, and so
plainly inconsistent with the acknowledged laws, could be maintained;
and what had become of that English spirit which had not only controlled
such injudicious princes as John and Richard II., but withstood the
first and third Edward in the fulness of their pride and glory. Not,
indeed, that the excesses of prerogative had ever been thoroughly
restrained, or that, if the memorials of earlier ages had been as
carefully preserved as those of the sixteenth century, we might not
possibly find in them equally flagrant instances of oppression; but
still the petitions of parliament and frequent statutes remain on
record, bearing witness to our constitutional law and to the energy that
gave it birth. There had evidently been a retrograde tendency towards
absolute monarchy between the reigns of Henry VI. and Henry VIII. Nor
could this be attributed to the common engine of despotism, a military
force. For, except the yeomen of the guard, fifty in number, and the
common servants of the king's household, there was not, in time of
peace, an armed man receiving pay throughout England.[71] A government
that ruled by intimidation was absolutely destitute of force to
intimidate. Hence risings of the mere commonalty were sometimes highly
dangerous, and lasted much longer than ordinary. A rabble of Cornishmen,
in the reign of Henry VII., headed by a blacksmith, marched up from
their own county to the suburbs of London without resistance. The
insurrections of 1525 in consequence of Wolsey's illegal taxation, those
of the north ten years afterwards, wherein, indeed, some men of higher
quality were engaged, and those which broke out simultaneously in
several counties under Edward VI., excited a well-grounded alarm in the
country; and in the two latter instances were not quelled without much
time and exertion. The reproach of servility and patient acquiescence
under usurped power falls not on the English people, but on its natural
leaders. We have seen, indeed, that the House of Commons now and then
gave signs of an independent spirit, and occasioned more trouble, even
to Henry VIII., than his compliant nobility. They yielded to every
mandate of his imperious will; they bent with every breath of his
capricious humour; they are responsible for the illegal trial, for the
iniquitous attainder, for the sanguinary statute, for the tyranny which
they sanctioned by law, and for that which they permitted to subsist
without law. Nor was this selfish and pusillanimous subserviency more
characteristic of the minions of Henry's favour, the Cromwells, the
Riches, the Pagets, the Russells, and the Powletts, than of the
representatives of ancient and honourable houses, the Norfolks, the
Arundels, and the Shrewsburies. We trace the noble statesmen of those
reigns concurring in all the inconsistencies of their revolutions,
supporting all the religions of Henry, Edward, Mary, and Elizabeth;
adjudging the death of Somerset to gratify Northumberland, and of
Northumberland to redeem their participation in his fault, setting up
the usurpation of Lady Jane, and abandoning her on the first doubt of
success, constant only in the rapacious acquisition of estates and
honours from whatever source, and in adherence to the present power.
_Jurisdiction of the council of star-chamber._--I have noticed in a
former work that illegal and arbitrary jurisdiction exercised by the
council, which, in despite of several positive statutes, continued in a
greater or less degree through all the period of the Plantagenet family,
to deprive the subject, in many criminal charges, of that sacred
privilege, trial by his peers.[72] This usurped jurisdiction, carried
much farther and exercised more vigorously, was the principal grievance
under the Tudors; and the forced submission of our forefathers was
chiefly owing to the terrors of a tribunal, which left them secure from
no infliction but public execution, or actual dispossession of their
freeholds. And, though it was beyond its direct province to pass
sentence on capital charges; yet, by intimidating jurors, it procured
convictions which it was not authorised to pronounce. We are naturally
astonished at the easiness with which verdicts were sometimes given
against persons accused of treason on evidence insufficient to support
the charge in point of law, or in its nature not competent to be
received, or unworthy of belief. But this is explained by the peril that
hung over the jury in case of acquittal. "If," says Sir Thomas Smith, in
his _Treatise on the Commonwealth of England_, "they do pronounce not
guilty upon the prisoner, against whom manifest witness is brought in,
the prisoner escapeth, but the twelve are not only rebuked by the
judges, but also threatened of punishment, and many times commanded to
appear in the star-chamber, or before the privy council, for the matter.
But this threatening chanceth oftener than the execution thereof; and
the twelve answer with most gentle words, they did it according to their
consciences, and pray the judges to be good unto them; they did as they
thought right, and as they accorded all; and so it passeth away for the
most part. Yet I have seen in my time, but not in the reign of the king
now [Elizabeth], that an inquest for pronouncing one not guilty of
treason contrary to such evidence as was brought in, were not only
imprisoned for a space, but a large fine set upon their heads, which
they were fain to pay; another inquest for acquitting another, beside
paying a fine, were put to open ignominy and shame. But these doings
were even then accounted of many for violent, tyrannical, and contrary
to the liberty and custom of the realm of England."[73] One of the
instances to which he alludes was probably that of the jury who
acquitted Sir Nicholas Throckmorton in the second year of Mary. He had
conducted his own defence with singular boldness and dexterity. On
delivering their verdict, the court committed them to prison. Four,
having acknowledged their offence, were soon released; but the rest,
attempting to justify themselves before the council, were sentenced to
pay, some a fine of two thousand pounds, some of one thousand marks; a
part of which seems ultimately to have been remitted.[74]
It is here to be observed that the council of which we have just heard,
or, as Lord Hale denominates it (though rather, I believe, for the sake
of distinction than upon any ancient authority), the king's ordinary
council, was something different from the privy council, with which
several modern writers are apt to confound it; that is, the court of
jurisdiction is to be distinguished from the deliberative body, the
advisers of the Crown. Every privy councillor belonged to the concilium
ordinarium; but the chief justices, and perhaps several others who sat
in the latter (not to mention all temporal and spiritual peers, who, in
the opinion at least of some, had a right of suffrage therein), were not
necessarily of the former body.[75] This cannot be called in question,
without either charging Lord Coke, Lord Hale, and other writers on the
subject, with ignorance of what existed in their own age, or
gratuitously supposing that an entirely novel tribunal sprung up in the
sixteenth century under the name of the star-chamber. It has indeed been
often assumed that a statute enacted early in the reign of Henry VII.
gave the first legal authority to the criminal jurisdiction exercised by
that famous court, which in reality was nothing else but another name
for the ancient concilium regis, of which our records are full, and
whose encroachments so many statutes had endeavoured to repress; a name
derived from the chamber wherein it sat, and which is found in many
precedents before the time of Henry VII., though not so specially
applied to the council of judicature as afterwards.[76] The statute of
this reign has a much more limited operation. I have observed in another
place, that the coercive jurisdiction of the council had great
convenience, in cases where the ordinary course of justice was so much
obstructed by one party, through writs, combinations of maintenance, or
overawing influence, that no inferior court would find its process
obeyed; and that such seem to have been reckoned necessary exceptions
from the statutes which restrain its interference. The act of 3 H. 7,
c. 1 appears intended to place on a lawful and permanent basis the
jurisdiction of the council, or rather a part of the council, over this
peculiar class of offences; and after reciting the combinations
supported by giving liveries, and by indentures or promises, the
partiality of sheriffs in making pannels, and in untrue returns, the
taking of money by juries, the great riots and unlawful assemblies,
which almost annihilated the fair administration of justice, empowers
the chancellor, treasurer, and keeper of the privy seal, or any two of
them, with a bishop and temporal lord of the council, and the chief
justices of king's bench and common pleas, or two other justices in
their absence, to call before them such as offended in the
before-mentioned respects, and to punish them after examination in such
manner as if they had been convicted by course of law. But this statute,
if it renders legal a jurisdiction which had long been exercised with
much advantage, must be allowed to limit the persons in whom it should
reside, and certainly does not convey by any implication more extensive
functions over a different description of misdemeanours. By a later act,
21 H. 8, c. 20, the president of the council is added to the judges of
this court; a decisive proof that it still existed as a tribunal
perfectly distinct from the council itself. But it is not styled by the
name of star-chamber in this, any more than in the preceding statute. It
is very difficult, I believe, to determine at what time the jurisdiction
legally vested in this new court, and still exercised by it forty years
afterwards, fell silently into the hands of the body of the council, and
was extended by them so far beyond the boundaries assigned by law, under
the appellation of the court of star-chamber. Sir Thomas Smith, writing
in the early part of Elizabeth's reign, while he does not advert to the
former court, speaks of the jurisdiction of the latter as fully
established, and ascribes the whole praise (and to a certain degree it
was matter of praise) to Cardinal Wolsey.
The celebrated statute of 31 H. 8, c. 8, which gives the king's
proclamations, to a certain extent, the force of acts of parliament,
enacts that offenders convicted of breaking such proclamations before
certain persons enumerated therein (being apparently the usual officers
of the privy council, together with some bishops and judges), "in the
star-chamber or elsewhere," shall suffer such penalties of fine and
imprisonment as they shall adjudge. "It is the effect of this court,"
Smith says, "to bridle such stout noblemen or gentlemen which would
offer wrong by force to any manner of men, and cannot be content to
demand or defend the right by order of the law. It began long before,
but took augmentation and authority at that time that Cardinal Wolsey,
Archbishop of York, was chancellor of England, who of some was thought
to have first devised that court, because that he, after some
intermission, by negligence of time, augmented the authority of it,[77]
which was at that time marvellous necessary to do to repress the
insolency of the noblemen and gentlemen in the north parts of England,
who being far from the king and the seat of justice, made almost, as it
were, an ordinary war among themselves, and made their force their law,
binding themselves, with their tenants and servants, to do or revenge an
injury one against another as they listed. This thing seemed not
supportable to the noble prince Henry VIII.; and sending for them one
after another to his court, to answer before the persons before named,
after they had remonstrance showed them of their evil demeanour, and
been well disciplined, as well by words as by _fleeting_ [confinement in
the Fleet prison] a while, and thereby their pride and courage somewhat
assuaged, they began to range themselves in order, and to understand
that they had a prince who would rule his subjects by his law and
obedience. Since that time, this court has been in more estimation, and
is continued to this day in manner as I have said before."[78] But as
the court erected by the statute of Henry VII. appears to have been in
activity as late as the fall of Cardinal Wolsey, and exercised its
jurisdiction over precisely that class of offences which Smith here
describes, it may perhaps be more likely that it did not wholly merge in
the general body of the council till the minority of Edward, when that
oligarchy became almost independent and supreme. It is obvious that
most, if not all, of the judges in the court held under that statute
were members of the council; so that it might in a certain sense be
considered as a committee from that body, who had long before been wont
to interfere with the punishment of similar misdemeanours. And the
distinction was so soon forgotten, that the judges of the king's bench
in the 13th of Elizabeth cite a case from the year-book of 8 H. 7 as
"concerning the star-chamber," which related to the limited court
erected by the statute.[79]
In this half-barbarous state of manners we certainly discover an
apology, as well as motive, for the council's interference; for it is
rather a servile worshipping of names than a rational love of liberty,
to prefer the forms of trial to the attainment of justice, or to fancy
that verdicts obtained by violence or corruption are at all less
iniquitous than the violent or corrupt sentences of a court. But there
were many cases wherein neither the necessity of circumstances, nor the
legal sanction of any statute, could excuse the jurisdiction habitually
exercised by the court of star-chamber. Lord Bacon takes occasion from
the act of Henry VII. to descant on the sage and noble institution, as
he terms it, of that court, whose walls had been so often witnesses to
the degradation of his own mind. It took cognisance principally, he
tells us, of four kinds of causes, "forces, frauds, crimes various of
stellionate, and the inchoations or middle acts towards crimes capital
or heinous, not actually committed or perpetrated."[80] Sir Thomas Smith
uses expressions less indefinite than these last; and specifies
scandalous reports of persons in power, and seditious news, as offences
which they were accustomed to punish. We shall find abundant proofs of
this department of their functions in the succeeding reigns. But this
was in violation of many ancient laws, and not in the least supported by
that of Henry VII.[81]
_Influence of the authority of the star-chamber in enhancing the royal
power._--A tribunal so vigilant and severe as that of the star-chamber,
proceeding by modes of interrogatory unknown to the common law, and
possessing a discretionary power of fine and imprisonment, was easily
able to quell any private opposition or contumacy. We have seen how the
council dealt with those who refused to lend money by way of
benevolence, and with the juries who found verdicts that they
disapproved. Those that did not yield obedience to their proclamations
were not likely to fare better. I know not whether menaces were used
towards members of the Commons who took part against the Crown; but it
would not be unreasonable to believe it, or at least that a man of
moderate courage would scarcely care to expose himself to the resentment
which the council might indulge after a dissolution. A knight was sent
to the Tower by Mary, for his conduct in parliament;[82] and Henry VIII.
is reported, not perhaps on very certain authority, to have talked of
cutting off the heads of refractory commoners.
In the persevering struggles of earlier parliaments against Edward III.,
Richard II., and Henry IV., it is a very probable conjecture, that many
considerable peers acted in union with, and encouraged the efforts of,
the Commons. But in the period now before us, the nobility were
precisely the class most deficient in that constitutional spirit, which
was far from being extinct in those below them. They knew what havoc had
been made among their fathers, by multiplied attainders during the
rivalry of the two Roses. They had seen terrible examples of the danger
of giving umbrage to a jealous court, in the fate of Lord Stanley and
the Duke of Buckingham, both condemned on slight evidence of treacherous
friends and servants, from whom no man could be secure. Though rigour
and cruelty tend frequently to overturn the government of feeble
princes, it is unfortunately too true that, steadily employed and
combined with vigilance and courage, they are often the safest policy of
despotism. A single suspicion in the dark bosom of Henry VII., a single
cloud of wayward humour in his son, would have been sufficient to send
the proudest peer of England to the dungeon and the scaffold. Thus a
life of eminent services in the field, and of unceasing compliance in
council, could not rescue the Duke of Norfolk from the effects of a
dislike which we cannot even explain. Nor were the nobles of this age
more held in subjection by terror than by the still baser influence of
gain. Our law of forfeiture was well devised to stimulate, as well as
to deter; and Henry VIII., better pleased to slaughter the prey than to
gorge himself with the carcass, distributed the spoils it brought him
among those who had helped in the chase. The dissolution of monasteries
opened a more abundant source of munificence; every courtier, every
peer, looked for an increase of wealth from grants of ecclesiastical
estates, and naturally thought that the king's favour would most readily
be gained by an implicit conformity to his will. Nothing however seems
more to have sustained the arbitrary rule of Henry VIII. than the
jealousy of the two religious parties formed in his time, and who, for
all the latter years of his life, were maintaining a doubtful and
emulous contest for his favour. But this religious contest, and the
ultimate establishment of the Reformation, are events far too important,
even in a constitutional history, to be treated in a cursory manner; and
as, in order to avoid transitions, I have purposely kept them out of
sight in the present chapter, they will form the proper subject of the
next.
FOOTNOTES:
[5] This statute is not even alluded to in Ruffhead's edition, and has
been very little noticed by writers on our law or history. It is printed
in the late edition, published by authority, and is brought forward in
the First Report of the Lords' Committee, on the dignity of a Peer
(1819), p. 282. Nothing can be more evident than that it not only
establishes by a legislative declaration the present constitution of
parliament, but recognises it as already standing upon a custom of some
length of time.
[6] The pleadings, as they are called, or written allegations of both
parties, which form the basis of a judicial enquiry, commence with the
_declaration_, wherein the plaintiff states, either specially, or in
some established form, according to the nature of the case, that he has
a debt to demand from or an injury to be redressed by, the defendant.
The latter, in return, puts in his _plea_; which, if it amount to a
denial of the facts alleged in the declaration, must _conclude to the
country_, that is, must refer the whole matter to a jury. But if it
contain an admission of the fact, along with a legal justification of
it, it is said to _conclude to the court_; the effect of which is to
make it necessary for the plaintiff to reply; in which _replication_ he
may deny the facts pleaded in justification, and conclude to the
country; or allege some new matter in explanation, to show that they do
not meet all the circumstances, concluding to the court. Either party
also may demur, that is, deny that, although true and complete as a
statement of facts, the declaration or plea is sufficient according to
law to found or repel the plaintiff's suit. In the last case it becomes
an issue in law, and is determined by the judges without the
intervention of a jury; it being a principle, that by demurring, the
party acknowledges the truth of all matters alleged on the pleadings.
But in whatever stage of the proceedings either of the litigants
concludes to the country (which he is obliged to do, whenever the
question can be deduced to a disputed fact), a jury must be impanelled
to decide it by their verdict. These pleadings, together with what is
called the _postea_, that is, an indorsement by the clerk of the court
wherein the trial has been, reciting that _afterwards_ the cause was so
tried, and such a verdict returned, with the subsequent entry of the
judgment itself, form the record.
This is merely intended to explain the phrase in the text, which common
readers might not clearly understand. The theory of special pleading, as
it is generally called, could not be further elucidated without
lengthening this note beyond all bounds. But it all rests upon the
ancient maxim: "De facto respondent juratores, de jure judices." Perhaps
it may be well to add one observation--that in many forms of action, and
those of most frequent occurrence in modern times, it is not required to
state the legal justification on the pleadings, but to give it in
evidence on the general issue; that is, upon a bare plea of denial. In
this case the whole matter is actually in the power of the jury. But
they are generally bound in conscience to defer, as to the operation of
any rule of law, to what is laid down on that head by the judge; and
when they disregard his directions, it is usual to annul the verdict,
and grant a new trial. There seem to be some disadvantages in the
annihilation, as it may be called, of written pleadings, by their
reduction to an unmeaning form, which has prevailed in three such
important and extensive forms of action, as _ejectment_, _general_
_assumpsit_, and _trover_; both as it throws too much power into the
hands of the jury, and as it almost nullifies the appellant
jurisdiction, which can only be exercised where some error is apparent
on the face of the record. But great practical convenience, and almost
necessity, has generally been alleged as far more than a compensation
for these evils.
[7] The population for 1485 is estimated by comparing a sort of census
in 1378, when the inhabitants of the realm seem to have amounted to
about 2,300,000, with one still more loose under Elizabeth in 1588,
which would give about 4,400,000; making some allowance for the more
rapid increase in the latter period. Three millions at the accession of
Henry VII. is probably not too low an estimate.
[8] _Rot. Parl._ vi. 270. But the pope's bull of dispensation for the
king's marriage speaks of the realm of England as "jure 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.
[9] Stat. 11 H. 7, c. 1.
[10] Blackstone (vol. iv. c. 6) has some rather perplexed reasoning on
this statute, leaning a little towards the _de jure_ doctrine, and at
best confounding _moral_ with _legal_ obligations. In the latter sense,
whoever attends to the preamble of the act will see that Hawkins, whose
opinion Blackstone calls in question, is right; and that he is himself
wrong in pretending that "the statute of Henry VII. does by no means
command any opposition to a king _de jure_, but excuses the obedience
paid to a king _de facto_."
[11] For these observations on the statute of Fines, I am principally
indebted to Reeves's _History of the English Law_ (iv. 133), a work,
especially in the latter volumes, of great research and judgment; a
continuation of which, in the same spirit, and with the same qualities
(besides some others that are rather too much wanting in it), would be a
valuable accession not only to the lawyer's, but philosopher's library.
That entails had been defeated by means of a common recovery before the
statute, had been remarked by former writers, and is indeed obvious; but
the subject was never put in so clear a light as by Mr. Reeves.
The principle of breaking down the statute _de donis_ was so little
established, or consistently acted upon, in this reign, that in 11 H. 7
the judges held that the donor of an estate-tail might restrain the
tenant from suffering a recovery. _Id._ p. 159, from the year-book.
[12] It is said by the biographer of Sir Thomas More, that parliament
refused the king a subsidy in 1502, which he demanded on account of the
marriage of his daughter Margaret, at the advice of More, then but
twenty-two years old. "Forthwith Mr. Tyler, one of the privy chamber,
that was then present, resorted to the king, declaring that a beardless
boy, called More, had done more harm than all the rest, for by his means
all the purpose is dashed." This of course displeased Henry, who would
not, however, he says, "infringe the ancient liberties of that house,
which would have been odiously taken." Wordsworth's _Eccles. Biography_,
ii. 66. This story is also told by Roper.
[13] Stat. 11 H. 7, c. 10. Bacon says the benevolence was granted by act
of parliament, which Hume shows to be a mistake. The preamble of 11 H. 7
recites it to have been "granted by divers of your subjects severally;"
and contains a provision, that no heir shall be charged on account of
his ancestor's promise.
[14] Hall, 502.
[15] Turner's _History of England_, iii. 628, from a MS. document. A
vast number of persons paid fines for their share in the western
rebellion of 1497, from £200 down to 20_s._ Hall, 486. Ellis's _Letters
illustrative of English History_, i. 38.
[16] 1 H. 8, c. 8.
[17] 2 H. 7, c. 3. Rep. 1 H. 8, c. 6.
[18] They were convicted by a jury, and afterwards attainted by
parliament, but not executed for more than a year after the king's
accession. If we may believe Holingshed, the council at Henry VIII.'s
accession made restitution to some who had been wronged by the extortion
of the late reign;--a singular contrast to their subsequent proceedings!
This, indeed, had been enjoined by Henry VII.'s will. But he had
excepted from this restitution "what had been done by the course and
order of our laws;" which, as Mr. Astle observes, was the common mode of
his oppressions.
[19] Lord Hubert inserts an acute speech, which he seems to ascribe to
More, arguing more acquaintance with sound principles of political
economy than was usual in the supposed speaker's age, or even in that of
the writer. But it is more probable that this is of his own invention.
He has taken a similar liberty on another occasion, throwing his own
broad notions of religion into an imaginary speech of some unnamed
member of the Commons, though manifestly unsuited to the character of
the times. That More gave satisfaction to Wolsey by his conduct in the
chair appears by a letter of the latter to the king, in State Papers,
temp. H. 8, 1630, p. 124.
[20] Roper's _Life of More_; Hall, 656, 672. This chronicler, who wrote
under Edward VI., is our best witness for the events of Henry's reign.
Grafton is so literally a copyist from him, that it was a great mistake
to republish this part of his chronicle in the late expensive, and
therefore incomplete, collection; since he adds no one word, and omits
only a few ebullitions of protestant zeal which he seems to have
considered too warm. Holingshed, though valuable, is later than Hall.
Wolsey, the latter observes, gave offence to the Commons, by descanting
on the wealth and luxury of the nation, "as though he had repined or
disclaimed that any man should fare well, or be well clothed, but
himself."
But the most authentic memorial of what passed on this occasion has been
preserved in a letter from a member of the Commons to the Earl of Surrey
(soon after Duke of Norfolk), at that time the king's lieutenant in the
north.
"Please it your good Lordships to understand, that sithence the
beginning of the Parliament, there hath been the greatest and sorest
hold in the Lower House for the payment of two shillings of the pound,
that ever was seen, I think, in any parliament. This matter hath been
debated, and beaten fifteen or sixteen days together. The highest
necessity alledged on the King's behalf to us, that ever was heard of;
and, on the contrary, the highest poverty confessed, as well by knights,
esquires, and gentlemen of every quarter, as by the commoners, citizens,
and burgesses. There hath been such hold that the House was like to have
been dissevered; that is to say, the knights being of the King's
council, the King's servants and gentlemen of the one party; which in so
long time were spoken with, and made to see, yea, it may fortune,
contrary to their heart, will, and conscience. Thus hanging this matter,
yesterday the more part being the King's servants, gentlemen, were there
assembled; and so they, being the more part, willed and gave to the King
two shillings of the pound of goods or lands, the best to be taken for
the King. All lands to pay two shillings of the pound for the laity, to
the highest. The goods to pay two shillings of the pound, for twenty
pound upward; and from forty shillings of goods, to twenty pound, to pay
sixteen pence of the pound; and under forty shillings, every person to
pay eight pence. This to be paid in two years. I have heard no man in my
life that can remember that ever there was given to any one of the
King's ancestors half so much at one graunt. Nor, I think, there was
never such a president seen before this time. I beseeke Almighty God, it
may be well and peaceably levied, and surely payd unto the King's grace,
without grudge, and especially without loosing the good will and true
hearts of his subjects, which I reckon a far greater treasure for the
King than gold and silver. And the gentlemen that must take pains to
levy this money among the King's subjects, I think, shall have no little
business about the same." Strype's _Eccles. Memorials_, vol. i. p. 49.
This is also printed in Ellis's _Letters illustrative of English
History_, i. 220.
[21] I may notice here a mistake of Mr. Hume and Dr. Lingard. They
assert Henry to have received tonnage and poundage several years before
it was vested in him by the legislature. But it was granted by his first
parliament, stat. 1 H. 8, c. 20, as will be found even in Ruffhead's
table of contents, though not in the body of his volume; and the act is
of course printed at length in the great edition of the statutes. That
which probably by its title gave rise to the error, 6 H. 8, c. 13, has a
different object.
[22] Hall, 645. This chronicler says the laity were assessed at a tenth
part. But this was only so of the smaller estates, namely, from £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."--_Ib._ "And they shall practise by all
the means to them possible that such sums as shall be so granted by the
way of loan, be forthwith levied and paid, or the most part, or at the
least the moiety thereof, the same to be paid in as brief time after as
they can possibly persuade and induce them unto; showing unto them that,
for the sure payment thereof, they shall have writings delivered unto
them under the king's privy seal by such person or persons as shall be
deputed by the king to receive the said loan, after the form of a minute
to be shown unto them by the said commissioners, the tenor whereof is
thus: We, Henry VIII., by the grace of God, King of England and of
France, Defender of Faith, and Lord of Ireland, promise by these
presents truly to content and repay unto our trusty and well-beloved
subject A. B. the sum of ----, which he hath lovingly advanced unto us
by way of loan, for defence of our realm, and maintenance of our wars
against France and Scotland; In witness whereof we have caused our privy
seal hereunto to be set and annexed the ---- day of ----, the fourteenth
year of our reign."--_Ib._ The rate fixed on the clergy I collect by
analogy, from that imposed in 1525, which I find in another manuscript
letter.
[23] A letter in my possession from the Duke of Norfolk to Wolsey,
without the date of the year, relates, I believe, to this commission of
1525, rather than that of 1522; it being dated on the 10th April, which
appears from the contents to have been before Easter; whereas Easter did
not fall beyond that day in 1523 or 1524, but did so in 1525; and the
first commission, being of the 14th year of the king's reign, must have
sat later than Easter 1522. He informs the cardinal, that from twenty
pounds upward there were not twenty in the county of Norfolk who had not
consented. "So that I see great likelihood that this grant shall be much
more than the loan was." It was done, however, very reluctantly, as he
confesses; "assuring your grace that they have not granted the same
without shedding of many salt tears, only for doubt how to find money to
content the king's highness." The resistance went further than the duke
thought fit to suppose; for in a very short time the insurrection of the
common people took place in Suffolk. In another letter from him and the
Duke of Suffolk to the cardinal they treat this rather lightly, and seem
to object to the remission of the contribution.
This commission issued soon after the news of the battle of Pavia
arrived. The pretext was the king's intention to lead an army into
France. Warham wrote more freely than the Duke of Norfolk as to the
popular discontent, in a letter to Wolsey, dated April 5. "It hath been
showed me in a secret manner of my friends, the people sore grudgeth and
murmureth, and speaketh cursedly among themselves, as far as they dare,
saying that they shall never have rest of payments as long as some
liveth, and that they had better die than to be thus continually
handled, reckoning themselves, their children, and wives, as despoulit,
and not greatly caring what they do, or what becomes of them.... Further
I am informed, that there is a grudge newly now resuscitate, and revived
in the minds of the people; for the loan is not repaid to them upon the
first receipt of the grant of parliament, as it was promised them by the
commissioners, showing them the king's grace's instructions, containing
the same, signed with his grace's own hand in summer, that they fear not
to speak, that they be continually beguiled, and no promise is kept unto
them; and thereupon some of them suppose that if this gift and grant be
once levied, albeit the king's grace go not beyond the sea, yet nothing
shall be restored again, albeit they be showed the contrary. And
generally it is reported unto me, that for the most part every man saith
he will be contented if the king's grace have as much as he can spare,
but verily many say they be not able to do as they be required. And many
denieth not but they will give the king's grace according to their
power, but they will not anywise give at other men's appointments, which
knoweth not their needs.... I have heard say, moreover, that when the
people be commanded to make fires and tokens of joy for the taking of
the French king, divers of them have spoken that they have more cause to
weep than to rejoice thereat. And divers, as it hath been showed me
secretly, have wished openly that the French king were at his liberty
again, so as there were a good peace, and the king should not attempt to
win France; the winning whereof should be more chargeful to England than
profitable, and the keeping thereof much more chargeful than the
winning. Also it hath been told me secretly that divers have recounted
and repeated what infinite sums of money the king's grace hath spent
already in invading France, once in his own royal person, and two other
sundry times by his several noble captains, and little or nothing in
comparison of his costs hath prevailed; insomuch that the king's grace
at this hour hath not one foot of land more in France than his most
noble father had, which lacked no riches or wisdom to win the kingdom of
France, if he had thought it expedient." The archbishop goes on to
observe, rather oddly, that "he would that the time had suffered that
this practising with the people for so great sums might have been spared
till the cuckow time and the hot weather (at which time mad brains be
wont to be most busy) had been overpassed."
Warham dwells, in another letter, on the great difficulty the clergy had
in making so large a payment as was required of them, and their
unwillingness to be sworn as to the value of their goods. The archbishop
seems to have thought it passing strange that people would be so
wrongheaded about their money. "I have been," he says, "in this shire
twenty years and above, and as yet I have not seen men but would be
conformable to reason, and would be induced to good order, till this
time; and what shall cause them now to fall into these wilful and
indiscreet ways, I cannot tell, except poverty and decay of substance be
the cause of it."
[24] Hall, 696. These expressions, and numberless others might be found,
show the fallacy of Hume's hasty assertion, that the writers of the
sixteenth century do not speak of their own government as more free than
that of France.
[25] Hall, 699.
[26] The word impeachment is not very accurately applicable to these
proceedings against Wolsey; since the articles were first presented to
the Upper House, and sent down to the Commons, where Cromwell so ably
defended his fallen master that nothing was done upon them. "Upon this
honest beginning," says Lord Herbert, "Cromwell obtained his first
reputation." I am disposed to conjecture from Cromwell's character and
that of the House of Commons, as well as from some passages of Henry's
subsequent behaviour towards the cardinal, that it was not the king's
intention to follow up this prosecution, at least for the present. This
also I find to be Dr. Lingard's opinion.
[27] _Rot. Parl._ vi. 164; Burnet, Appendix, No. 31. "When this release
of the loan," says Hall, "was known to the commons of the realm, Lord!
so they grudged and spake ill of the whole parliament; for almost every
man counted it his debt, and reckoned surely of the payment of the same,
and therefore some made their wills of the same, and some other did set
it over to other for debt; and so many men had loss by it, which caused
them sore to murmur, but there was no remedy."--P. 767.
[28] Stat. 35 H. 8, c. 12. I find in a manuscript, which seems to have
been copied from an original in the exchequer, that the monies thus
received by way of loan in 1543 amounted to £110,147 15_s._ 8_d._ There
was also a sum called _devotion money_, amounting only to £1,093 8_s._
3_d._, levied in 1544, "of the devotion of his highnesse's subjects for
_Defence of Christendom against the Turk_."
[29] Lodge's _Illustrations of British History_, i. 711; Strype's
_Eccles. Memorials_, Appendix, n. 119. The sums raised from different
counties for this benevolence afford a sort of criterion of their
relative opulence. Somerset gave £6807; Kent £6471; Suffolk £4512;
Norfolk £4046; Devon £4527; Essex £5051; but Lancaster only £660; and
Cumberland, £574. The whole produced £119,581 7_s._ 6_d._ besides
arrears. In Haynes's _State Papers_, p. 54, we find a curious minute of
Secretary Paget, containing reasons why it was better to get the money
wanted by means of a benevolence than through parliament. But he does
not hint at any difficulty of obtaining a parliamentary grant.
[30] Lodge, p. 80. Lord Herbert mentions this story, and observes, that
Reed having been taken by the Scots, was compelled to pay much more for
his ransom than the benevolence required of him.
[31] Rhymer, xv. 84. These commissions bearing date 5th January 1546.
[32] Hall, 622. Hume, who is favourable to Wolsey, says, "There is no
reason to think the sentence against Buckingham unjust." But no one who
reads the trial will find any evidence to satisfy a reasonable mind; and
Hume himself soon after adds, that his crime proceeded more from
indiscretion than deliberate malice. In fact, the condemnation of this
great noble was owing to Wolsey's resentment, acting on the savage
temper of Henry.
[33] Several letters that passed between the council and Duke of Norfolk
(_Hardwicke State Papers_, i. 28, etc.) tend to confirm what some
historians have hinted, that he was suspected of leaning too favourably
towards the rebels. The king was most unwilling to grant a free pardon.
Norfolk is told, "If you could, by any good means or possible dexterity,
reserve a very few persons for punishments, you should assuredly
administer the greatest pleasure to his highness that could be imagined,
and much in the same advance your own honour."--P. 32. He must have
thought himself in danger from some of these letters, which indicate the
king's distrust of him. He had recommended the employment of men of high
rank as lords of the marches, instead of the rather inferior persons
whom the king had lately chosen. This called down on him rather a warm
reprimand (p. 39); for it was the natural policy of a despotic court to
restrain the ascendency of great families; nor were there wanting very
good reasons for this, even if the public weal had been the sole object
of Henry's council. See also, for the subject of this note, the State
Papers and MSS., H. 8, 1830, p. 518 _et alibi_. They contain a good deal
of interesting matter as to the northern rebellion, which gave Henry a
pretext for great severities towards the monasteries in that part of
England.
[34] Pole, at his own solicitation, was appointed legate to the Low
Countries in 1537, with the sole object of keeping alive the flame of
the northern rebellion, and exciting foreign powers as well as the
English nation to restore religion by force, if not to dethrone Henry.
It is difficult not to suspect that he was influenced by ambitious views
in a proceeding so treasonable, and so little in conformity with his
polished manners and temperate life. Philips, his able and artful
biographer, both proves and glories in the treason. _Life of Pole_,
sect. 3.
[35] Coke's 4th Institute, 37. It is, however, said by Lord Herbert and
others, that the Countess of Salisbury and the Marchioness of Exeter
were not heard in their defence. The acts of attainder against them were
certainly hurried through parliament; but whether without hearing the
parties, does not appear.
[36] Burnet observes, that Cranmer was absent the first day the bill was
read, 17th June 1540; and by his silence leaves the reader to infer that
he was so likewise on 19th June, when it was read a second and third
time. But this, I fear, cannot be asserted. He is marked in the journal
as present on the latter day; and there is the following entry; "Hodie
lecta est pro secundo et tertio, billa 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 hac 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.
[37] Burnet has taken much pains with the subject, and set her innocence
in a very clear light (i. 197 and iii. 114). See also Strype, i. 280,
and Ellis's _Letters_, ii. 52. But Anne had all the failings of a vain,
weak woman, raised suddenly to greatness. She behaved with unamiable
vindictiveness towards Wolsey, and perhaps (but this worst charge is not
fully authenticated) exasperated the king against More. A remarkable
passage in Cavendish's _Life of Wolsey_, p. 103, edit. 1667, strongly
displays her indiscretion.
A late writer, whose acuteness and industry would raise him to a very
respectable place among our historians, if he could have repressed the
inveterate partiality of his profession, has used every oblique artifice
to lead his readers into a belief of Anne Boleyn's guilt, while he
affects to hold the balance, and state both sides of the question
without determining it. Thus he repeats what he must have known to be
the strange and extravagant lies of Sanders about her birth; without
vouching for them indeed, but without any reprobation of their absurd
malignity. Lingard's _Hist. of England_, vi. 153 (8vo. edit). Thus he
intimates that "the records of her trial and conviction have perished,
perhaps by the hands of those who respected her memory" (p. 316);
though, had he read Burnet with any care, he would have found that they
were seen by that historian, and surely have not perished since by any
unfair means; not to mention that the record of a trial contains nothing
from which a party's guilt or innocence can be inferred. Thus he says
that those who were executed on the same charge with the queen, neither
admitted nor denied the offence, for which they suffered; though the
best informed writers assert that Norris constantly declared the queen's
innocence and his own.
Dr. Lingard can hardly be thought serious, when he takes credit to
himself, in the commencement of a note at the end of the same volume,
for not "rendering his book more interesting, by representing her as an
innocent and injured woman, falling a victim to the intrigues of a
religious faction." He well knows that he could not have done so,
without contradicting the tenor of his entire work, without ceasing, as
it were, to be himself. All the rest of this note is a pretended
balancing of evidence, in the style of a judge who can hardly bear to
put for a moment the possibility of a prisoner's innocence.
I regret very much to be compelled, in this edition, to add the name of
Mr. Sharon Turner to those who have countenanced the supposition of Anne
Boleyn's guilt. But Mr. Turner, a most worthy and painstaking man, to
whose earlier writings our literature is much indebted, has, in his
history of Henry VIII., gone upon the strange principle of exalting that
tyrant's reputation at the expense of every one of his victims, to
whatever party they may have belonged. _Odit damnatos._ Perhaps he is
the first, and will be the last, who has defended the attainder of Sir
Thomas More. A verdict of a jury, an assertion of a statesman, a recital
of an act of parliament, are, with him, satisfactory proofs of the most
improbable accusations against the most blameless character.
[38] The lords pronounced a singular sentence, that she should be burned
or beheaded at the king's pleasure. Burnet says the judges complained of
this as unprecedented. Perhaps in strictness the king's right to _alter_
a sentence is questionable, or rather would be so, if a few precedents
were out of the way. In high treason committed by a man, the beheading
was part of the sentence, and the king only remitted the more cruel
preliminaries. Women, till 1791, were condemned to be burned. But the
two queens of Henry, the Countess of Salisbury, Lady Rochford, Lady Jane
Grey, and, in later times, Mrs. Lisle, were beheaded. Poor Mrs. Gaunt
was not thought noble enough to be rescued from the fire. In felony,
where beheading is no part of the sentence, it has been substituted by
the king's warrant in the cases of the Duke of Somerset and Lord Audley.
I know not why the latter obtained this favour; for it had been refused
to Lord Stourton, hanged for murder under Mary, as it was afterwards to
Earl Ferrers.
[39] It is often difficult to understand the grounds of a parliamentary
attainder, for which any kind of evidence was thought sufficient; and
the strongest proofs against Catherine Howard undoubtedly related to her
behaviour before marriage, which could be no legal crime. But some of
the depositions extend further.
Dr. Lingard has made a curious observation on this case. "A plot was
woven by the industry of the reformers, which brought the young queen to
the scaffold, and weakened the ascendency of the reigning party."--P.
407. This is a very strange assertion; for he proceeds to admit her
ante-nuptial guilt, which indeed she is well known to have confessed,
and does not give the slightest proof of any plot. Yet he adds, speaking
of the queen and Lady Rochford: "I fear [_i.e._ wish to insinuate] both
were sacrificed to the manes of Anne Boleyn."
[40] Stat. 26 H. 8, c. 13.
It may be here observed, that the act attainting Catherine Howard of
treason proceeds to declare that the king's assent to bills by
commission under the great seal is as valid as if he were personally
present; any custom or use to the contrary notwithstanding. 33 H. 8, c.
21. This may be presumed therefore to be the earliest instance of the
king's passing bills in this manner.
[41] 22 H. 8, c. 18.
[42] 28 H. 8, c. 7.
[43] 35 H. 8, c. 1.
[44] 28 H. 8, c. 17.
[45] 31 H. 8, c. 8; Burnet, i. 263, explains the origin of this act.
Great exceptions had been taken to some of the king's ecclesiastical
proclamations, which altered laws, and laid taxes on spiritual persons.
He justly observes that the restrictions contained in it gave great
power to the judges, who had the power of expounding in their hands. The
preamble is full as offensive as the body of the act; reciting the
contempt and disobedience of the king's proclamations by some "who did
not consider _what a king by his royal power might do_, which if it
continued would tend to the disobedience of the laws of God, and the
dishonour of the king's majesty, who might full ill bear it," etc. See
this act at length in the great edition of the statutes. There was one
singular provision; the clause protecting all persons, as mentioned, in
their inheritance or other property, proceeds, "nor shall by virtue of
the said act suffer any pains of death." But an exception is afterwards
made for "such persons which shall offend against any proclamation to be
made by the king's highness, his heirs or successors, for or concerning
any kind of heresies against Christian doctrine." Thus it seems that the
king claimed a power to declare heresy by proclamation, under penalty of
death.
[46] Gray has finely glanced at this bright point of Henry's character,
in that beautiful stanza where he has made the founders of Cambridge
pass before our eyes, like shadows over a magic glass:
"the majestic lord,
Who broke the bonds of Rome."
In a poet, this was a fair employment of his art; but the partiality of
Burnet towards Henry VIII. is less warrantable; and he should have
blushed to excuse, by absurd and unworthy sophistry, the punishment of
those who refused to swear to the king's supremacy. P. 351.
After all, Henry was every whit as good a king and man as Francis I.,
whom there are still some, on the other side of the Channel, servile
enough to extol; not in the least more tyrannical and sanguinary, and of
better faith towards his neighbours.
[47] 1 Edw. 6, c. 12. By this act it is provided that a lord of
parliament shall have the benefit of clergy though he cannot read. Sect.
14. Yet one can hardly believe, that this provision was necessary at so
late an æra.
[48] 2 Strype, 147, 341, 491.
[49] _Id._ 149. Dr. Lingard has remarked an important change in the
coronation ceremony of Edward VI. Formerly, the king had taken an oath
to preserve the liberties of the realm, and especially those granted by
Edward the Confessor, etc., before the people were asked whether they
would consent to have him as their king. See the form observed at
Richard the Second's coronation in Rymer, vii. 158. But at Edward's
coronation, the archbishop presented the king to the people, as rightful
and undoubted inheritor by the laws of God and man to the royal dignity
and crown imperial of this realm, etc., and asked if they would serve
him and assent to his coronation, as by their duty of allegiance they
were bound to do. All this was before the oath. 2 Burnet, Appendix, p.
93.
Few will pretend that the coronation, or the coronation oath, were
essential to the legal succession of the crown, or the exercise of its
prerogatives. But this alteration in the form is a curious proof of the
solicitude displayed by the Tudors, as it was much more by the next
family, to suppress every recollection that could make their sovereignty
appear to be of popular origin.
[50] Haynes's state papers contain many curious proofs of the incipient
amour between Lord Seymour and Elizabeth, and show much indecent
familiarity on one side, with a little childish coquetry on the other.
These documents also rather tend to confirm the story of our elder
historians, which I have found attested by foreign writers of that age
(though Burnet has thrown doubts upon it), that some differences between
the queen-dowager and the Duchess of Somerset aggravated at least those
of their husbands. P. 61, 69. It is alleged with absurd exaggeration, in
the articles against Lord Seymour, that, had the former proved
immediately with child after her marriage with him, it might have passed
for the king's. This marriage, however, did not take place before June,
Henry having died in January. Ellis's _Letters_, ii. 150.
[51] Journals, Feb. 27, March 4, 1548-9. From these I am led to doubt
whether the commons actually heard witnesses against Seymour, which
Burnet and Strype have taken for granted.
[52] Stat. 5 and 6 Edw. VI., c. 11, s. 12.
[53] Burnet, ii. 243. An act was made to confirm deeds of private
persons, dated during Jane's ten days, concerning which some doubt had
arisen. 1 Mary, sess. 2, c. 4. It is said in this statute, "her
highness's most lawful possession was for a time disturbed and
disquieted by traiterous rebellion and usurpation."
It appears that the young king's original intention was to establish a
modified Salic law, excluding females from the crown, but not their male
heirs. In a writing drawn by himself, and entitled "My Device for the
Succession," it is entailed on the heirs male of the lady queen, if she
have any before his death; then to the _Lady Jane and her heirs male_;
then to the heirs male of Lady Katharine; and in every instance, except
Jane, excluding the female herself. Strype's _Cranmer_, Append. 164. A
late author, on consulting the original MS., in the king's handwriting,
found that it had been at first written, "the Lady Jane's heirs male,"
but that the words "and her" had been interlined. Nares's _Memoirs of
Lord Burghley_, i. 451. Mr. Nares does not seem to doubt but that this
was done by Edward himself: the change, however, is remarkable, and
should probably be ascribed to Northumberland's influence.
[54] Burnet, Strype, iii. 50, 53; Carte, 290. I doubt whether we have
anything in our history more like conquest than the administration of
1553. The queen, in the month only of October, presented to 256 livings,
restoring all those turned out under the acts of uniformity. Yet the
deprivation of the bishops might be justified probably by the terms of
the commission they had taken out in Edward's reign, to hold their sees
during the king's pleasure, for which was afterwards substituted "during
good behaviour." Burnet, App. 257; Collier, 218.
[55] Burnet, ii. 278; Stat. 1 Mary, sess. 3, c. 1. Dr. Lingard rather
strangely tells this story on the authority of Father Persons, whom his
readers probably do not esteem quite as much as he does. If he had
attended to Burnet, he would have found a more sufficient voucher.
[56] Carte, 330.
[57] Haynes, 195; Burnet, ii. Appendix, 256, iii. 243.
[58] Burnet, ii. 347. Collier, ii. 404, and Lingard, vii. 266 (who, by
the way, confounds this commission with something different two years
earlier) will not hear of this allusion to the inquisition. But Burnet
has said nothing that is not perfectly just.
[59] Strype, iii. 459.
[60] See Stafford's proclamation from Scarborough Castle, Strype, iii.
Appendix, No. 71. It contains no allusion to religion, both parties
being weary of Mary's Spanish counsels. The important letters of
Noailles, the French ambassador, to which Carte had access, and which
have since been printed, have afforded information to Dr. Lingard, and
with those of the imperial ambassador, Renard, which I have not had an
opportunity of seeing, throw much light on this reign. They certainly
appear to justify the restraint put on Elizabeth, who, if not herself
privy to the conspiracies planned in her behalf (which is, however, very
probable), was at least too dangerous to be left at liberty. Noailles
intrigued with the malcontents, and instigated the rebellion of Wyatt,
of which Dr. Lingard gives a very interesting account. Carte, indeed,
differs from him in many of these circumstances, though writing from the
same source, and particularly denies that Noailles gave any
encouragement to Wyatt. It is, however, evident from the tenor of his
despatches that he had gone great lengths in fomenting the discontent,
and was evidently desirous of the success of the insurrection (iii. 36,
43, etc.). This critical state of the government may furnish the usual
excuse for its rigour. But its unpopularity was brought on by Mary's
breach of her word as to religion, and still more by her obstinacy in
forming her union with Philip against the general voice of the nation,
and the opposition of Gardiner; who, however, after her resolution was
taken, became its strenuous supporter in public. For the detestation in
which the queen was held, see the letters of Noailles, _passim_; but
with some degree of allowance for his own antipathy to her.
[61] Burnet, i. 117. The king refused his assent to a bill which had
passed both houses, but apparently not of a political nature. _Lords'
Journals_, p. 162.
[62] Burnet, 190.
[63] _Id._ 195, 215. This was the parliament, in order to secure
favourable elections for which the council had written letters to the
sheriffs. These do not appear to have availed so much as they might
hope.
[64] Carte, 311, 322; Noailles, v. 252. He says that she committed some
knights to the Tower for their language in the house. _Id._ 247. Burnet,
p. 324, mentions the same.
[65] Burnet, 322; Carte, 296. Noailles says, that a third part of the
Commons in Mary's first parliament was hostile to the repeal of Edward's
laws about religion, and that the debates lasted a week. ii. 247. The
journals do not mention any division; though it is said in Strype, iii.
204, that one member, Sir Ralph Bagnal, refused to concur in the act
abolishing the supremacy. The queen, however, in her letter to Cardinal
Pole, says of this repeal: "Quod non sine contentione, disputatione
acri, et summo labore fidelium factum est." Lingard, Carte, Philips's
_Life of Pole_. Noailles speaks repeatedly of the strength of the
protestant party, and of the enmity which the English nation, as he
expresses it, bore to the pope. But the aversion to the marriage with
Philip, and dread of falling under the yoke of Spain, was common to both
religions, with the exception of a few mere bigots to the church of
Rome.
[66] Noailles, vol. 5, _passim_.
[67] Strype, ii. 394.
[68] Strype, iii. 155; Burnet, ii. 228.
[69] Burnet, ii. 262, 277.
[70] Noailles, v. 190. Of the truth of this plot there can be no
rational ground to doubt; even Dr. Lingard has nothing to advance
against it but the assertion of Mary's counsellors, the Pagets and
Arundels, the most worthless of mankind. We are, in fact, greatly
indebted to Noailles for his spirited activity, which contributed, in a
high degree, to secure both the protestant religion and the national
independence of our ancestors.
[71] Henry VII. first established a band of fifty archers to wait on
him. Henry VIII. had fifty horse-guards, each with an archer, demilance
and couteiller, like the gendarmerie of France; but on account,
probably, of the expense it occasioned, their equipment being too
magnificent, this soon was given up.
[72] _View of Middle Ages_, ch. 8. I must here acknowledge, that I did
not make the requisite distinction between the concilium secretum, or
privy council of state, and the concilium ordinarium, as Lord Hale calls
it, which alone exercised jurisdiction.
[73] _Commonwealth of England_, book 3, c. 1. The statute 26 H. 8, c. 4
enacts, that if a jury in Wales acquit a felon, contrary to good and
pregnant evidence, or otherwise misbehave themselves, the judge may bind
them to appear before the president and council of the Welsh marches.
The partiality of Welsh jurors was notorious in that age; and the
reproach has not quite ceased.
[74] _State Trials_, i. 901; Strype, ii. 120. In a letter to the Duke of
Norfolk (_Hardwicke Papers_, i. 46) at the time of the Yorkshire
rebellion in 1536, he is directed to question the jury who had acquitted
a particular person, in order to discover their motive. Norfolk seems to
have objected to this for a good reason, "least the fear thereof might
trouble others in the like case." But it may not be uncandid to ascribe
this rather to a leaning towards the insurgents than a constitutional
principle.
[75] _Hale's Jurisdiction of the Lords' House_, p. 5. Coke, 4th Inst.
65, where we have the following passage: "So this court [the court of
star-chamber, as the concilium was then called] being holden coram rege
et concilio, it is, or may be, compounded of three several councils;
that is to say, of the lords and others of his majesty's privy council,
always judges without appointment, as before it appeareth. 2. The judges
of either bench and barons of the exchequer are of the king's council,
for matters of law, etc., and the two chief justices, or in their
absence other two justices, are standing judges of this court. 3. The
lords of parliament are properly de magno concilio regis; but neither
those, not being of the king's privy council, nor any of the rest of the
judges or barons of the exchequer are standing judges of the court." But
Hudson, in his _Treatise of the Court of Star-chamber_, written about
the end of James's reign, inclines to think that all peers had a right
of sitting in the court of star-chamber; there being several instances
where some who were not of the council of state were present and gave
judgment, as in the case of Mr. Davison, "and how they were complete
judges unsworn, if not by their native right, I cannot comprehend; for
surely the calling of them in that case was not made legitimate by any
act of parliament; neither without their right were they more apt to be
judges than any other inferior persons in the kingdom; and yet I doubt
not but it resteth in the king's pleasure to restrain any man from that
table, as well as he may any of his council from the board."
_Collectanea Juridica_, ii. p. 24. He says also, that it was demurrable
for a bill to pray process against the defendant, to appear before the
king and his privy council. _Ibid._
[76] The privy council sometimes met in the star-chamber, and made
orders. See one in 18 H. 6, Harl. MSS. Catalogue, N. 1878, fol. 20. So
the statute, 21 H. 8, c. 16, recites a decree _by the king's council in
his star-chamber_, that no alien artificer shall keep more than two
alien servants, and other matters of the same kind. This could no way
belong to the court of star-chamber, which was a judicial tribunal.
It should be remarked, though not to our immediate purpose, that this
decree was supposed to require an act of parliament for its
confirmation; so far was the government of Henry VIII. from arrogating a
legislative power in matters of private right.
[77] Lord Hale thinks that the jurisdiction of the council was gradually
"brought into great disuse, though there remain some straggling
footsteps of their proceedings till near 3 H. 7."--P. 38. "The continual
complaints of the commons against the proceedings before the council in
causes civil or criminal, although they did not always attain their
concession, yet brought a disreputation upon the proceedings of the
council, as contrary to Magna Charta and the known laws."--P. 39. He
seems to admit afterwards, however, that many instances of proceedings
before them in criminal causes might be added to those mentioned by Lord
Coke. P. 43.
The paucity of records about the time of Edward IV. renders the negative
argument rather weak; but, from the expression of Sir Thomas Smith in
the text, it may perhaps be inferred that the council had intermitted in
a considerable degree, though not absolutely disused, their exercise of
jurisdiction for some time before the accession of the house of Tudor.
Mr. Brodie, in his _History of the British Empire under Charles I._, i.
158, has treated at considerable length, and with much acuteness, this
subject of the antiquity of the star-chamber. I do not coincide in all
his positions; but the only one very important, is that wherein we fully
agree, that its jurisdiction was chiefly usurped, as well as tyrannical.
I will here observe that this part of our ancient constitutional history
is likely to be elucidated by a friend of my own, who has already given
evidence to the world of his singular competence for such an
undertaking, and who unites, with all the learning and diligence of
Spelman, Prynne, and Madox, an acuteness and vivacity of intellect which
none of those writers possessed.
[78] _Commonwealth of England_, book 3, c. 4. We find Sir Robert
Sheffield in 1517 "put into the Tower again for the complaint he made to
the king of my lord cardinal." Lodge's _Illustrations_, i. p. 27. See
also Hall, p. 585, for Wolsey's strictness in punishing the "lords,
knights, and men of all sorts, for riots, bearing, and maintenance."
[79] Plowden's _Commentaries,_ 393. In the year-book itself, 8 H. 7, pl.
ult. the word star-chamber is not used. It is held in this case, that
the chancellor, treasurer, and privy-seal were the only judges, and the
rest but assistants. Coke, 4 Inst. 62, denies this to be law; but on no
better grounds than that the practice of the star-chamber, that is, of a
different tribunal, was not such.
[80] _Hist. of Henry VII._ in Bacon's works, ii. p. 290.
[81] The result of what has been said in the last pages may be summed up
in a few propositions. 1. The court erected by the statute of 3 Henry
VII. was not the court of star-chamber. 2. This court by the statute
subsisted in full force till beyond the middle of Henry VIII.'s reign,
but not long afterwards went into disuse. 3. The court of star-chamber
was the old concilium ordinarium, against whose jurisdiction many
statutes had been enacted from the time of Edward III. 4. No part of the
jurisdiction exercised by the star-chamber could be maintained on the
authority of the statute of Henry VII.
[82] Burnet, ii. 324.
CHAPTER II
ON THE ENGLISH CHURCH UNDER HENRY VIII., EDWARD VI., AND MARY
REFORMATION. _State of public opinion as to religion._--No revolution
has ever been more gradually prepared than that which separated almost
one-half of Europe from the communion of the Roman see; nor were Luther
and Zuingle any more than occasional instruments of that change which,
had they never existed, would at no great distance of time have been
effected under the names of some other reformers. At the beginning of
the sixteenth century, the learned doubtfully and with caution, the
ignorant with zeal and eagerness, were tending to depart from the faith
and rites which authority prescribed. But probably not even Germany was
so far advanced on this course as England. Almost a hundred and fifty
years before Luther, nearly the same doctrines as he taught had been
maintained by Wicliffe, whose disciples, usually called Lollards, lasted
as a numerous, though obscure and proscribed sect, till, aided by the
confluence of foreign streams, they swelled into the protestant church
of England. We hear indeed little of them during some part of the
fifteenth century; for they generally shunned persecution; and it is
chiefly through records of persecution that we learn the existence of
heretics. But immediately before the name of Luther was known, they seem
to have become more numerous, or to have attracted more attention; since
several persons were burned for heresy, and others abjured their errors,
in the first years of Henry VIII.'s reign. Some of these (as usual among
ignorant men engaging in religious speculations) are charged with very
absurd notions; but it is not so material to observe their particular
tenets as the general fact, that an inquisitive and sectarian spirit had
begun to prevail.
Those who took little interest in theological questions, or who retained
an attachment to the faith in which they had been educated, were in
general not less offended than the Lollards themselves with the
inordinate opulence and encroaching temper of the clergy. It had been
for two or three centuries the policy of our lawyers to restrain these
within some bounds. No ecclesiastical privilege had occasioned such
dispute, or proved so mischievous, as the immunity of all tonsured
persons from civil punishment for crimes. It was a material improvement
in the law under Henry VI. that, instead of being instantly claimed by
the bishop on their arrest for any criminal charge, they were compelled
to plead their privilege at their arraignment, or after conviction.
Henry VII. carried this much farther, by enacting that clerks convicted
of felony should be burned in the hand. And in 1513 (4 H. 8), the
benefit of clergy was entirely taken away from murderers and highway
robbers. An exemption was still made for priests, deacons, and
subdeacons. But this was not sufficient to satisfy the church, who had
been accustomed to shield under the mantle of her immunity a vast number
of persons in the lower degrees of orders, or without any orders at all;
and had owed no small part of her influence to those who derived so
important a benefit from her protection. Hence, besides violent language
in preaching against this statute, the convocation attacked one Doctor
Standish, who had denied the divine right of clerks to their exemption
from temporal jurisdiction. The temporal courts naturally defended
Standish; and the parliament addressed the king to support him against
the malice of his persecutors. Henry, after a full debate between the
opposite parties in his presence, thought his prerogative concerned in
taking the same side; and the clergy sustained a mortifying defeat.
About the same time, a citizen of London named Hun, having been confined
on a charge of heresy in the bishop's prison, was found hanged in his
chamber; and though this was asserted to be his own act, yet the
bishop's chancellor was indicted for the murder on such vehement
presumptions, that he would infallibly have been convicted, had the
attorney-general thought fit to proceed in the trial. This occurring at
the same time with the affair of Standish, furnished each party with an
argument; for the clergy maintained that they should have no chance of
justice in a temporal court; one of the bishops declaring, that the
London juries were so prejudiced against the church, that they would
find Abel guilty of the murder of Cain. Such an admission is of more
consequence than whether Hun died by his own hands, or those of a
clergyman; and the story is chiefly worth remembering, as it illustrates
the popular disposition towards those who had once been the objects of
reverence.[83]
_Henry VIII.'s controversy with Luther._--Such was the temper of England
when Martin Luther threw down his gauntlet of defiance against the
ancient hierarchy of the catholic church. But, ripe as a great portion
of the people might be to applaud the efforts of this reformer, they
were viewed with no approbation by their sovereign. Henry had acquired a
fair portion of theological learning, and on reading one of Luther's
treatises, was not only shocked at its tenets, but undertook to confute
them in a formal answer.[84] Kings who divest themselves of their robes
to mingle among polemical writers, have not perhaps a claim to much
deference from strangers; and Luther, intoxicated with arrogance, and
deeming himself a more prominent individual among the human species than
any monarch, treated Henry, in replying to his book, with the rudeness
that characterised his temper. A few years afterwards, indeed, he
thought proper to write a letter of apology for the language he had held
towards the king; but this letter, a strange medley of abjectness and
impertinence, excited only contempt in Henry, and was published by him
with a severe commentary.[85] Whatever apprehension therefore for the
future might be grounded on the humour of the nation, no king in Europe
appeared so steadfast in his allegiance to Rome as Henry VIII. at the
moment when a storm sprang up that broke the chain for ever.
_His divorce from Catherine._--It is certain that Henry's marriage with
his brother's widow was unsupported by any precedent and that, although
the pope's dispensation might pass for a cure of all defects, it had
been originally considered by many persons in a very different light
from those unions which are merely prohibited by the canons. He himself,
on coming to the age of fourteen, entered a protest against the marriage
which had been celebrated more than two years before, and declared his
intention not to confirm it; an act which must naturally be ascribed to
his father.[86] It is true that in this very instrument we find no
mention of the impediment on the score of affinity; yet it is hard to
suggest any other objection, and possibly a common form had been adopted
in drawing up the protest. He did not cohabit with Catherine during his
father's lifetime. Upon his own accession, he was remarried to her; and
it does not appear manifest at what time his scruples began, nor whether
they preceded his passion for Anne Boleyn.[87] This, however, seems the
more probable supposition; yet there can be little doubt, that weariness
of Catherine's person, a woman considerably older than himself and
unlikely to bear more children, had a far greater effect on his
conscience than the study of Thomas Aquinas or any other theologian. It
by no means follows from hence that, according to the casuistry of the
catholic church and the principles of the canon law, the merits of that
famous process were so much against Henry, as out of dislike to him and
pity for his queen we are apt to imagine, and as the writers of that
persuasion have subsequently assumed.
It would be unnecessary to repeat, what is told by so many historians,
the vacillating and evasive behaviour of Clement VII., the assurances he
gave the king, and the arts with which he receded from them, the
unfinished trial in England before his delegates, Campegio and Wolsey,
the opinions obtained from foreign universities in the king's favour,
not always without a little bribery,[88] and those of the same import at
home, not given without a little intimidation, or the tedious
continuance of the process after its adjournment to Rome. More than five
years had elapsed from the first application to the pope, before Henry,
though by nature the most uncontrollable of mankind, though irritated by
perpetual chicanery and breach of promise, though stimulated by
impatient love, presumed to set at nought the jurisdiction to which he
had submitted, by a marriage with Anne. Even this was a furtive step;
and it was not till compelled by the consequences that he avowed her as
his wife, and was finally divorced from Catherine by a sentence of
nullity, which would more decently, no doubt, have preceded his second
marriage.[89] But, determined as his mind had become, it was plainly
impossible for Clement to have conciliated him by anything short of a
decision, which he could not utter without the loss of the emperor's
favour and the ruin of his own family's interests in Italy. And even for
less selfish reasons, it was an extremely embarrassing measure for the
pope, in the critical circumstances of that age, to set aside a
dispensation granted by his predecessor; knowing that, however erroneous
allegations of fact contained therein might serve for an outward
pretext, yet the principle on which the divorce was commonly supported
in Europe, went generally to restrain the dispensing power of the holy
see. Hence it may seem very doubtful whether the treaty which was
afterwards partially renewed through the mediation of Francis I., during
his interview with the pope at Nice about the end of 1533, would have
led to a restoration of amity through the only possible means; when we
consider the weight of the imperial party in the conclave, the discredit
that so notorious a submission would have thrown on the church, and,
above all, the precarious condition of the Medici at Florence in case of
a rupture with Charles V. It was more probably the aim of Clement to
delude Henry once more by his promises; but this was prevented by the
more violent measure into which the cardinals forced him, of a
definitive sentence in favour of Catherine, whom the king was required
under pain of excommunication to take back as his wife. This sentence of
the 23rd of March 1534, proved a declaration of interminable war; and
the king, who, in consequence of the hopes held out to him by Francis,
had already despatched an envoy to Rome with his submission to what the
pope should decide, now resolved to break off all intercourse for ever,
and trust to his own prerogative and power over his subjects for
securing the succession to the crown in the line which he designed. It
was doubtless a regard to this consideration that put him upon his last
overtures for an amicable settlement with the court of Rome.[90]
But long before this final cessation of intercourse with that court,
Henry had entered upon a course of measures which would have opposed
fresh obstacles to a renewal of the connection. He had found a great
part of his subjects in a disposition to go beyond all he could wish in
sustaining his quarrel, not, in this instance, from mere terror, but
because a jealousy of ecclesiastical power, and of the Roman court, had
long been a sort of national sentiment in England. The pope's avocation
of the process to Rome, by which his duplicity and alienation from the
king's side was made evident, and the disgrace of Wolsey, took place in
the summer of 1529. The parliament which met soon afterwards was
continued through several sessions (an unusual circumstance), till it
completed the separation of this kingdom from the supremacy of Rome. In
the progress of ecclesiastical usurpation, the papal and episcopal
powers had lent mutual support to each other; both consequently were
involved in the same odium, and had become the object of restrictions in
a similar spirit. Warm attacks were made on the clergy by speeches in
the Commons, which Bishop Fisher severely reprehended in the upper
house. This provoked the Commons to send a complaint to the king by
their speaker, demanding reparation; and Fisher explained away the words
that had given offence. An act passed to limit the fees on probates of
wills, a mode of ecclesiastical extortion much complained of, and upon
mortuaries.[91] The next proceeding was of a far more serious nature.
It was pretended, that Wolsey's exercise of authority as papal legate
contravened a statute of Richard II., and that both himself and the
whole body of the clergy, by their submission to him, had incurred the
penalties of a 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.
It is difficult for us to determine whether the pope, by conceding to
Henry the great object of his solicitude, could in this stage have not
only arrested the progress of the schism, but recovered his former
ascendency over the English church and kingdom. But probably he could
not have done so in its full extent. Sir Thomas More, who had rather
complied than concurred with the proceedings for a divorce, though his
acceptance of the great seal on Wolsey's disgrace would have been
inconsistent with his character, had he been altogether opposed in
conscience to the king's measures, now thought it necessary to resign,
when the papal authority was steadily, though gradually, assailed.[92]
In the next session an act was passed to take away all appeals to Rome
from ecclesiastical courts; which annihilated at one stroke the
jurisdiction built on long usage and on the authority of the false
decretals. This law rendered the king's second marriage, which had
preceded it, secure from being annulled by the papal court. Henry,
however, still advanced, very cautiously, and on the death of Warham,
Archbishop of Canterbury, not long before this time, applied to Rome for
the usual bulls in behalf of Cranmer, whom he nominated to the vacant
see. These were the last bulls obtained, and probably the last instance
of any exercise of the papal supremacy in this reign. An act followed in
the next session, that bishops elected by their chapter on a royal
recommendation, should be consecrated, and archbishops receive the pall,
without suing for the pope's bulls. All dispensations and licences
hitherto granted by that court were set aside by another statute, and
the power of issuing them in lawful cases transferred to the Archbishop
of Canterbury. The king is in this act recited to be the supreme head of
the church of England, as the clergy had two years before acknowledged
in convocation. But this title was not formally declared by parliament
to appertain to the Crown till the ensuing session of parliament.[93]
_Separation from the Church of Rome._--By these means was the church of
England altogether emancipated from the superiority of that of Rome. For
as to the pope's merely spiritual primacy and authority in matters of
faith, which are, or at least were, defended by catholics of the
Gallican or Cisalpine school on quite different grounds from his
jurisdiction or his legislatorial power in points of discipline, they
seem to have attracted little peculiar attention at the time, and to
have dropped off as a dead branch, when the axe had lopped the fibres
that gave it nourishment. Like other momentous revolutions, this divided
the judgment and feelings of the nation. In the previous affair of
Catherine's divorce, generous minds were more influenced by the rigour
and indignity of her treatment than by the king's inclinations, or the
venal opinions of foreign doctors in law. Bellay, Bishop of Bayonne, the
French ambassador at London, wrote home in 1528, that a revolt was
apprehended from the general unpopularity of the divorce.[94] Much
difficulty was found in procuring the judgments of Oxford and Cambridge
against the marriage; which was effected in the former case, as is said,
by excluding the masters of arts, the younger and less worldly part of
the university, from their right of suffrage. Even so late as 1532, in
the pliant House of Commons, a member had the boldness to move an
address to the king, that he would take back his wife. And this temper
of the people seems to have been the great inducement with Henry to
postpone any sentence by a domestic jurisdiction, so long as a chance of
the pope's sanction remained.
The aversion entertained by a large part of the community, and
especially of the clerical order, towards the divorce, was not perhaps
so generally founded upon motives of justice and compassion, as on the
obvious tendency which its prosecution latterly manifested to bring
about a separation from Rome. Though the principal Lutherans of Germany
were far less favourably disposed to the king in their opinions on this
subject than the catholic theologians, holding that the prohibition of
marrying a brother's widow in the Levitical law was not binding on
Christians, or at least that the marriage ought not to be annulled after
so many years' continuance;[95] yet in England the interests of Anne
Boleyn and of the Reformation were considered as the same. She was
herself strongly suspected of an inclination to the new tenets; and her
friend Cranmer had been the most active person both in promoting the
divorce, and the recognition of the king's supremacy. The latter was, as
I imagine, by no means unacceptable to the nobility and gentry, who saw
in it the only effectual method of cutting off the papal exactions that
had so long impoverished the realm; nor yet to the citizens of London,
and other large towns, who, with the same dislike of the Roman court,
had begun to acquire some taste for the protestant doctrine. But the
common people, especially in remote counties, had been used to an
implicit reverence for the holy see, and had suffered comparatively
little by its impositions. They looked up also to their own teachers as
guides in faith; and the main body of the clergy was certainly very
reluctant to tear themselves, at the pleasure of a disappointed monarch,
in the most dangerous crisis of religion, from the bosom of catholic
unity.[96] They complied indeed with all the measures of government far
more than men of rigid conscience could have endured to do; but many who
wanted the courage of More and Fisher, were not far removed from their
way of thinking.[97] This repugnance to so great an alteration showed
itself, above all, in the monastic orders, some of whom by wealth,
hospitality, and long-established dignity, others by activity in
preaching and confessing, enjoyed a very considerable influence over the
poorer class. But they had to deal with a sovereign, whose policy as
well as temper dictated that he had no safety but in advancing; and
their disaffection to his government, while it overwhelmed them in ruin,
produced a second grand innovation in the ecclesiastical polity of
England.
_Dissolution of monasteries._--The enormous, and in a great measure
ill-gotten, opulence of the regular clergy had long since excited
jealousy in every part of Europe. Though the statutes of mortmain under
Edward I. and Edward III. had put some obstacle to its increase, yet as
these were eluded by licences of alienation, a larger proportion of
landed wealth was constantly accumulating, in hands which lost nothing
that they had grasped.[98] A writer much inclined to partiality towards
the monasteries says that they held not one-fifth part of the kingdom;
no insignificant patrimony! He adds, what may probably be true, that
through granting easy leases, they did not enjoy more than one-tenth in
value.[99] These vast possessions were very unequally distributed among
four or five hundred monasteries. Some abbots, as those of Reading,
Glastonbury, and Battle, lived in princely splendour, and were in every
sense the spiritual peers and magnates of the realm. In other
foundations, the revenues did little more than afford a subsistence for
the monks, and defray the needful expenses. As they were in general
exempted from episcopal visitation, and intrusted with the care of their
own discipline, such abuses had gradually prevailed and gained strength
by connivance, as we may naturally expect in corporate bodies of men
leading almost of necessity useless and indolent lives, and in whom very
indistinct views of moral obligations were combined with a great
facility of violating them. The vices that for many ages had been
supposed to haunt the monasteries, had certainly not left their
precincts in that of Henry VIII. Wolsey, as papal legate, at the
instigation of Fox, Bishop of Hereford, a favourer of the Reformation,
commenced a visitation of the professed as well as secular clergy in
1523, in consequence of the general complaint against their
manners.[100] This great minister, though not perhaps very rigid as to
the morality of the church, was the first who set an example of
reforming monastic foundations in the most efficacious manner, by
converting their revenues to different purposes. Full of anxious zeal
for promoting education, the noblest part of his character, he obtained
bulls from Rome suppressing many convents (among which was that of St.
Frideswide at Oxford), in order to erect and endow a new college in that
university, his favourite work, which after his fall was more completely
established by the name of Christ Church.[101] A few more were
afterwards extinguished through his instigation; and thus the prejudice
against interference with this species of property was somewhat worn
off, and men's minds gradually prepared for the sweeping confiscations
of Cromwell. The king indeed was abundantly willing to replenish his
exchequer by violent means, and to avenge himself on those who gainsayed
his supremacy; but it was this able statesman who, prompted both by the
natural appetite of ministers for the subject's money and by a secret
partiality towards the Reformation, devised and carried on with complete
success, if not with the utmost prudence, a measure of no inconsiderable
hazard and difficulty. For such it surely was, under a system of
government which rested so much on antiquity, and in spite of the
peculiar sacredness which the English attach to all freehold property,
to annihilate so many prescriptive baronial tenures, the possessors
whereof composed more than a third part of the House of Lords, and to
subject so many estates which the law had rendered inalienable, to
maxims of escheat and forfeiture that had never been held applicable to
their tenure. But for this purpose it was necessary, by exposing the
gross corruptions of monasteries, both to intimidate the regular clergy,
and to excite popular indignation against them. It is not to be doubted
that in the visitation of these foundations under the direction of
Cromwell, as lord vicegerent of the king's ecclesiastical supremacy,
many things were done in an arbitrary manner, and much was unfairly
represented.[102] Yet the reports of these visitors are so minute and
specific that it is rather a preposterous degree of incredulity to
reject their testimony, whenever it bears hard on the regulars. It is
always to be remembered that the vices to which they bear witness, are
not only probable from the nature of such foundations, but are imputed
to them by the most respectable writers of preceding ages. Nor do I find
that the reports of this visitation were impeached for general falsehood
in that age, whatever exaggeration there might be in particular cases.
And surely the commendation bestowed on some religious houses as pure
and unexceptionable, may afford a presumption that the censure of others
was not an indiscriminate prejudging of their merits.[103]
The dread of these visitors soon induced a number of abbots to make
surrenders to the king; a step of very questionable legality. But in the
next session the smaller convents, whose revenues were less than £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 was, in fact, not merely to wound the people's strongest impressions
of religion, and especially those connected with their departed friends,
for whose souls prayers were offered in the monasteries, but to deprive
the indigent, in many places, of succour, and the better rank of
hospitable reception. This of course was experienced in a far greater
degree at the dissolution of the larger monasteries, which took place in
1540. But, Henry having entirely subdued the rebellion, and being now
exceedingly dreaded by both the religious parties, this measure produced
no open resistance; though there seems to have been less pretext for it
on the score of immorality and neglect of discipline than was found for
abolishing the smaller convents.[104] These great foundations were all
surrendered; a few excepted, which, against every principle of received
law, were held to fall by the attainder of their abbots for high
treason. Parliament had only to confirm the king's title arising out of
these surrenders and forfeitures. Some historians assert the monks to
have been turned adrift with a small sum of money. But it rather appears
that they generally received pensions not inadequate, and which are said
to have been pretty faithfully paid.[105] These however were voluntary
gifts on the part of the Crown. For the parliament which dissolved the
monastic foundations, while it took abundant care to preserve any
rights of property which private persons might enjoy over the estates
thus escheated to the Crown, vouchsafed not a word towards securing the
slightest compensation to the dispossessed owners.
The fall of the mitred abbots changed the proportions of the two estates
which constitute the upper house of parliament. Though the number of
abbots and priors to whom writs of summons were directed varied
considerably in different parliaments, they always, joined to the
twenty-one bishops, preponderated over the temporal peers.[106] It was
no longer possible for the prelacy to offer an efficacious opposition to
the reformation they abhorred. Their own baronial tenure, their high
dignity as legislative counsellors of the land, remained; but, one
branch as ancient and venerable as their own thus lopped off, the
spiritual aristocracy was reduced to play a very secondary part in the
councils of the nation. Nor could the protestant religion have easily
been established by legal methods under Edward and Elizabeth without
this previous destruction of the monasteries. Those who, professing an
attachment to that religion, have swollen the clamour of its adversaries
against the dissolution of foundations that existed only for the sake of
a different faith and worship, seem to me not very consistent or
enlightened reasoners. In some, the love of antiquity produces a sort of
fanciful illusion; and the very sight of those buildings, so magnificent
in their prosperous hour, so beautiful even in their present ruin,
begets a sympathy for those who founded and inhabited them. In many, the
violent courses of confiscation and attainder which accompanied this
great revolution excite so just an indignation, that they either forget
to ask whether the end might not have been reached by more laudable
means, or condemn that end itself either as sacrilege, or at least as an
atrocious violation of the rights of property. Others again, who
acknowledge that the monastic discipline cannot be reconciled with the
modern system of religion, or with public utility, lament only that
these ample endowments were not bestowed upon ecclesiastical
corporations, freed from the monkish cowl, but still belonging to that
spiritual profession to whose use they were originally consecrated. And
it was a very natural theme of complaint at the time, that such abundant
revenues as might have sustained the dignity of the crown and supplied
the means of public defence without burthening the subject, had served
little other purpose than that of swelling the fortunes of rapacious
courtiers, and had left the king as necessitous and craving as before.
Notwithstanding these various censures, I must own myself of opinion,
both that the abolition of monastic institutions might have been
conducted in a manner consonant to justice as well as policy, and that
Henry's profuse alienation of the abbey lands, however illaudable in its
motive, has proved upon the whole more beneficial to England than any
other disposition would have turned out. I cannot, until some broad
principle is made more obvious than it ever has yet been, do such
violence to all common notions on the subject, as to attach an equal
inviolability to private and corporate property. The law of hereditary
succession, as ancient and universal as that of property itself, the law
of testamentary disposition, the complement of the former, so long
established in most countries as to seem a natural right, have invested
the individual possessor of the soil with such a fictitious immortality,
such anticipated enjoyment, as it were, of futurity, that his perpetual
ownership could not be limited to the term of his own existence, without
what he would justly feel as a real deprivation of property. Nor are the
expectancies of children, or other probable heirs, less real
possessions, which it is a hardship, if not an absolute injury, to
defeat. Yet even this hereditary claim is set aside by the laws of
forfeiture, which have almost everywhere prevailed. But in estates held,
as we call it, in mortmain, there is no intercommunity, no natural
privity of interest, between the present possessor and those who may
succeed him; and as the former cannot have any pretext for complaint,
if, his own rights being preserved, the legislature should alter the
course of transmission after his decease, so neither is any hardship
sustained by others, unless their succession has been already designated
or rendered probable. Corporate property therefore appears to stand on a
very different footing from that of private individuals; and while all
infringements of the established privileges of the latter are to be
sedulously avoided, and held justifiable only by the strongest motives
of public expediency, we cannot but admit the full right of the
legislature to new mould and regulate the former in all that does not
involve existing interests upon far slighter reasons of convenience. If
Henry had been content with prohibiting the profession of religious
persons for the future, and had gradually diverted their revenues
instead of violently confiscating them, no protestant could have found
it easy to censure his policy.
It is indeed impossible to feel too much indignation at the spirit in
which these proceedings were conducted. Besides the hardship sustained
by so many persons turned loose upon society for whose occupations they
were unfit, the indiscriminate destruction of convents produced several
public mischiefs. The visitors themselves strongly interceded for the
nunnery of Godstow, as irreproachable managed, and an excellent place of
education; and no doubt some other foundations should have been
preserved for the same reason. Latimer, who could not have a prejudice
on that side, begged earnestly that the priory of Malvern might be
spared, for the maintenance of preaching and hospitality. It was urged
for Hexham abbey that, there not being a house for many miles in that
part of England, the country would be in danger of going to waste.[107]
And the total want of inns in many parts of the kingdom must have
rendered the loss of these hospitable places of reception a serious
grievance. These and probably other reasons ought to have checked the
destroying spirit of reform in its career, and suggested to Henry's
counsellors that a few years would not be ill consumed in contriving new
methods of attaining the beneficial effects which monastic institutions
had not failed to produce, and in preparing the people's minds for so
important an innovation.
The suppression of monasteries poured in an instant such a torrent of
wealth upon the crown, as has seldom been equalled in any country by the
confiscations following a subdued rebellion. The clear yearly value was
rated at £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.[108] The
movables 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.
The monastic rule of life being thus abrogated, as neither conformable
to pure religion nor to policy, it is to be considered, to what uses
these immense endowments ought to have been applied. There are some,
perhaps, who may be of opinion that the original founders of
monasteries, or those who had afterwards bestowed lands on them, having
annexed to their grants an implied condition of the continuance of
certain devotional services, and especially of prayers for the repose of
their souls, it were but equitable that, if the legislature rendered the
performance of this condition impossible, their heirs should re-enter
upon the lands that would not have been alienated from them on any other
account. But, without adverting to the difficulty in many cases of
ascertaining the lawful heir, it might be answered that the donors had
absolutely divested themselves of all interest in their grants, and that
it was more consonant to the analogy of law to treat these estates as
escheats or vacant possessions, devolving to the sovereign, than to
imagine a right of reversion that no party had ever contemplated. There
was indeed a class of persons, very different from the founders of
monasteries, to whom restitution was due. A large proportion of
conventual revenues arose out of parochial tithes, diverted from the
legitimate object of maintaining the incumbent to swell the pomp of some
remote abbot. These impropriations were in no one instance, I believe,
restored to the parochial clergy, and have passed either into the hands
of laymen, or of bishops and other ecclesiastical persons, who were
frequently compelled by the Tudor princes to take them in exchange for
lands.[109] It was not in the spirit of Henry's policy, or in that of
the times, to preserve much of these revenues to the church, though he
had designed to allot £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.[110] But the greater part was dissipated in
profuse grants to the courtiers, who frequently contrived to veil their
acquisitions under cover of a purchase from the crown. It has been
surmised that Cromwell, in his desire to promote the Reformation,
advised the king to make this partition of abbey lands among the nobles
and gentry, either by grant, or by sale on easy terms, that, being thus
bound by the sure ties of private interest, they might always oppose any
return towards the dominion of Rome.[111] In Mary's reign accordingly
her parliament, so obsequious in all matters of religion, adhered with a
firm grasp to the possession of church lands; nor could the papal
supremacy be re-established until a sanction was given to their
enjoyment. And we may ascribe part of the zeal of the same class in
bringing back and preserving the reformed church under Elizabeth to a
similar motive; not that these gentlemen were hypocritical pretenders to
a belief they did not entertain, but that, according to the general laws
of human nature, they gave a readier reception to truths which made
their estates more secure.
But, if the participation of so many persons in the spoils of
ecclesiastical property gave stability to the new religion, by pledging
them to its support, it was also of no slight advantage to our civil
constitution, strengthening, and as it were infusing new blood into the
territorial aristocracy, who were to withstand the enormous prerogative
of the Crown. For if it be true, as surely it is, that wealth is power,
the distribution of so large a portion of the kingdom among the nobles
and gentry, the elevation of so many new families, and the increased
opulence of the more ancient, must have sensibly affected their weight
in the balance. Those families indeed, within or without the bounds of
the peerage, which are now deemed the most considerable, will be found,
with no great number of exceptions, to have first become conspicuous
under the Tudor line of kings; and, if we could trace the titles of
their estates, to have acquired no small portion of them, mediately or
immediately, from monastic or other ecclesiastical foundations. And
better it has been that these revenues should thus from age to age have
been expended in liberal hospitality, in discerning charity, in the
promotion of industry and cultivation, in the active duties or even
generous amusements of life, than in maintaining a host of ignorant and
inactive monks, in deceiving the populace by superstitious pageantry, or
in the encouragement of idleness and mendicity.[112]
A very ungrounded prejudice had long obtained currency, and,
notwithstanding the contradiction it has experienced in our more
accurate age, seems still not eradicated, that the alms of monasteries
maintained the indigent throughout the kingdom, and that the system of
parochial relief, now so much the topic of complaint, was rendered
necessary by the dissolution of those beneficent foundations. There can
be no doubt that many of the impotent poor derived support from their
charity. But the blind eleemosynary spirit inculcated by the Romish
church is notoriously the cause, not the cure, of beggary and
wretchedness. The monastic foundations, scattered in different counties,
but by no means at regular distances, could never answer the end of
local and limited succour, meted out in just proportion to the demands
of poverty. Their gates might indeed be open to those who knocked at
them for alms, and came in search of streams that must always be too
scanty for a thirsty multitude. Nothing could have a stronger tendency
to promote that vagabond mendicity, which unceasing and very severe
statutes were enacted to repress. It was and must always continue a hard
problem, to discover the means of rescuing those whom labour cannot
maintain from the last extremities of helpless suffering. The regular
clergy were in all respects ill fitted for this great office of
humanity. Even while the monasteries were yet standing, the scheme of a
provision for the poor had been adopted by the legislature, by means of
regular collections, which in the course of a long series of statutes,
ending in the 43rd of Elizabeth, were almost insensibly converted into
compulsory assessments.[113] It is by no means probable that, however
some in particular districts may have had to lament the cessation of
hospitality in the convents, the poor in general were placed in a worse
condition by their dissolution; nor are we to forget that the class to
whom the abbey lands have fallen have been distinguished at all times,
and never more than in the first century after that transference of
property, for their charity and munificence.
These two great political measures, the separation from the Roman see,
and the suppression of monasteries, so broke the vast power of the
English clergy, and humbled their spirit, that they became the most
abject of Henry's vassals, and dared not offer any steady opposition to
his caprice, even when it led him to make innovations in the essential
parts of their religion. It is certain that a large majority of that
order would gladly have retained their allegiance to Rome, and that they
viewed with horror the downfall of the monasteries. In rending away so
much that had been incorporated with the public faith, Henry seemed to
prepare the road for the still more radical changes of the reformers.
These, a numerous and increasing sect, exulted by turns in the
innovations he promulgated, lamented their dilatoriness and
imperfection, or trembled at the reaction of his bigotry against
themselves. Trained in the school of theological controversy, and
drawing from those bitter waters fresh aliment for his sanguinary and
imperious temper, he displayed the impartiality of his intolerance by
alternately persecuting the two conflicting parties. We all have read
how three persons convicted of disputing his supremacy, and three
deniers of transubstantiation, were drawn on the same hurdle to
execution. But the doctrinal system adopted by Henry in the latter years
of his reign, varying indeed in some measure from time to time, was
about equally removed from popish and protestant orthodoxy. The corporal
presence of Christ in the consecrated elements was a tenet which no one
might dispute without incurring the penalty of death by fire; and the
king had a capricious partiality to the Romish practice in those very
points where a great many real catholics on the Continent were earnest
for its alteration, the communion of the laity by bread alone, and the
celibacy of the clergy. But in several other respects he was wrought
upon by Cranmer to draw pretty near to the Lutheran creed, and to permit
such explications to be given in the books set forth by his authority,
the _Institution_, and the _Erudition of a Christian Man_, as, if they
did not absolutely proscribe most of the ancient opinions, threw at best
much doubt upon them, and gave intimations which the people, now become
attentive to these questions, were acute enough to interpret.[114]
_Progress of the reformed doctrine in England._--It was natural to
suspect, from the previous temper of the nation, that the revolutionary
spirit which blazed out in Germany should spread rapidly over England.
The enemies of ancient superstition at home, by frequent communication
with the Lutheran and Swiss reformers, acquired not only more enlivening
confidence, but a surer and more definite system of belief. Books
printed in Germany or in the Flemish provinces, where at first the
administration connived at the new religion, were imported and read with
that eagerness and delight which always compensate the risk of forbidden
studies.[115] Wolsey, who had no turn towards persecution, contented
himself with ordering heretical writings to be burned, and strictly
prohibiting their importation. But to withstand the course of popular
opinion is always like a combat against the elements in commotion; nor
is it likely that a government far more steady and unanimous than that
of Henry VIII. could have effectually prevented the diffusion of
protestantism. And the severe punishment of many zealous reformers, in
the subsequent part of his reign, tended, beyond a doubt, to excite a
favourable prejudice for men whose manifest sincerity, piety, and
constancy in suffering, were as good pledges for the truth of their
doctrine, as the people had been always taught to esteem the same
qualities in the legends of the early martyrs. Nor were Henry's
persecutions conducted upon the only rational principle, that of the
inquisition, which judges from the analogy of medicine, that a deadly
poison cannot be extirpated but by the speedy and radical excision of
the diseased part; but falling only upon a few of a more eager and
officious zeal, left a well-grounded opinion among the rest, that by
some degree of temporising prudence they might escape molestation till a
season of liberty should arrive.
One of the books originally included in the list of proscription among
the writings of Luther and the foreign Protestants, was a translation of
the New Testament into English by Tindal, printed at Antwerp in 1526. A
complete version of the Bible, partly by Tindal, and partly by
Coverdale, appeared, perhaps at Hamburgh, in 1535; a second edition,
under the name of Matthews, following in 1537; and as Cranmer's
influence over the king became greater, and his aversion to the Roman
church more inveterate, so material a change was made in the
ecclesiastical policy of this reign, as to direct the Scriptures in this
translation (but with corrections in many places) to be set up in parish
churches, and permit them to be publicly sold.[116] This measure had a
strong tendency to promote the Reformation, especially among those who
were capable of reading; not surely that the controverted doctrines of
the Romish church are so indisputably erroneous as to bear no sort of
examination, but because such a promulgation of the Scriptures at that
particular time seemed both tacitly to admit the chief point of contest,
that they were the exclusive standard of Christian faith, and to lead
the people to interpret them with that sort of prejudice which a jury
would feel in considering evidence that one party in a cause had
attempted to suppress; a danger which those who wish to restrain the
course of free discussion without very sure means of success will in all
ages do well to reflect upon.
The great change of religious opinions was not so much effected by
reasoning on points of theological controversy, upon which some are apt
to fancy it turned, as on a persuasion that fraud and corruption
pervaded the established church. The pretended miracles, which had so
long held the understanding in captivity, were wisely exposed to
ridicule and indignation by the government. Plays and interludes were
represented in churches, of which the usual subject was the vices and
corruptions of the monks and clergy. These were disapproved of by the
graver sort, but no doubt served a useful purpose.[117] The press sent
forth its light hosts of libels; and though the catholic party did not
fail to try the same means of influence, they had both less liberty to
write as they pleased, and fewer readers than their antagonists.
_Its establishment under Edward._--In this feverish state of the public
mind on the most interesting subject, ensued the death of Henry VIII.,
who had excited and kept it up. More than once, during the latter part
of his capricious reign, the popish party, headed by Norfolk and
Gardiner, had gained an ascendant and several persons had been burned
for denying transubstantiation. But at the moment of his decease,
Norfolk was a prisoner attainted of treason, Gardiner in disgrace, and
the favour of Cranmer at its height. It is said that Henry had meditated
some further changes in religion. Of his executors, the greater part, as
their subsequent conduct evinces, were nearly indifferent to the two
systems, except so far as more might be gained by innovation. But
Somerset, the new protector, appears to have inclined sincerely towards
the Reformation, though not wholly uninfluenced by similar motives. His
authority readily overcame all opposition in the council: and it was
soon perceived that Edward, whose singular precocity gave his opinions
in childhood an importance not wholly ridiculous, had imbibed a steady
and ardent attachment to the new religion, which probably, had he lived
longer, would have led him both to diverge farther from what he thought
an idolatrous superstition, and to have treated its adherents with
severity.[118] Under his reign accordingly a series of alterations in
the tenets and homilies of the English church were made, the principal
of which I shall point out, without following a chronological order, or
adverting to such matters of controversy as did not produce a sensible
effect on the people.
_Sketch of the chief points of difference between the two
religions._--1. It was obviously among the first steps required in order
to introduce a mode of religion at once more reasonable and more earnest
than the former, that the public services of the church should be
expressed in the mother tongue of the congregation. The Latin ritual had
been unchanged ever since the age when it was familiar; partly through a
sluggish dislike of innovation, but partly also because the
mysteriousness of an unknown dialect served to impose on the vulgar, and
to throw an air of wisdom around the priesthood. Yet what was thus
concealed would have borne the light. Our own liturgy, so justly
celebrated for its piety, elevation, and simplicity, is in great measure
a translation from the catholic services; those portions of course being
omitted which had relation to different principles of worship. In the
second year of Edward's reign, the reformation of the public service was
accomplished, and an English liturgy compiled not essentially different
from that in present use.[119]
2. No part of exterior religion was more prominent, or more offensive to
those who had imbibed a protestant spirit, than the worship, or at least
veneration, of images, which in remote and barbarous ages had given
excessive scandal both in the Greek and Latin churches, though long
fully established in the practice of each. The populace, in towns where
the reformed tenets prevailed, began to pull them down in the very first
days of Edward's reign; and after a little pretence at distinguishing
those which had not been abused, orders were given that all images
should be taken away from churches. It was perhaps necessary thus to
hinder the zealous Protestants from abating them as nuisances, which had
already caused several disturbances.[120] But this order was executed
with a rigour which lovers of art and antiquity have long deplored. Our
churches bear witness to the devastation committed in the wantonness of
triumphant reform, by defacing statues and crosses on the exterior of
buildings intended for worship, or windows and monuments within. Missals
and other books dedicated to superstition perished in the same manner.
Altars were taken down, and a great variety of ceremonies abrogated;
such as the use of incense, tapers, and holy water; and though more of
these were retained than eager innovators could approve, the whole
surface of religious ordinances, all that is palpable to common minds,
underwent a surprising transformation.
3. But this change in ceremonial observances and outward show was
trifling, when compared to that in the objects of worship, and in the
purposes for which they were addressed. Those who have visited some
catholic temples, and attended to the current language of devotion, must
have perceived, what the writings of apologists or decrees of councils
will never enable them to discover, that the saints, but more especially
the Virgin, are almost exclusively the _popular_ deities of that
religion. All this polytheism was swept away by the reformers; and in
this may be deemed to consist the most specific difference of the two
systems. Nor did they spare the belief in purgatory, that unknown land
which the hierarchy swayed with so absolute a rule, and to which the
earth had been rendered a tributary province. Yet in the first liturgy
put forth under Edward, the prayers for departed souls were retained;
whether out of respect to the prejudices of the people, or to the
immemorial antiquity of the practice. But such prayers, if not
necessarily implying the doctrine of purgatory (which yet in the main
they appear to do), are at least so closely connected with it, that the
belief could never be eradicated while they remained. Hence, in the
revision of the liturgy, four years afterwards, they were laid
aside;[121] and several other changes made, to eradicate the vestiges of
the ancient superstition.
4. Auricular confession, as commonly called, or the private and special
confession of sins to a priest for the purpose of obtaining his
absolution, an imperative duty in the church of Rome, and preserved as
such in the statute of the six articles, and in the religious codes
published by Henry VIII., was left to each man's discretion in the new
order; a judicious temperament, which the reformers would have done well
to adopt in some other points. And thus, while it has never been
condemned in our church, it went without dispute into complete neglect.
Those who desire to augment the influence of the clergy regret, of
course, its discontinuance; and some may conceive that it would serve
either for wholesome restraint, or useful admonition. It is very
difficult, or perhaps beyond the reach of any human being, to determine
absolutely how far these benefits, which cannot be reasonably denied to
result in some instances from the rite of confession, outweigh the
mischiefs connected with it. There seems to be something in the Roman
catholic discipline (and I know nothing else so likely) which keeps the
balance, as it were, of moral influence pretty even between the two
religions, and compensates for the ignorance and superstition which the
elder preserves: for I am not sure that the protestant system in the
present age has any very sensible advantage in this respect; or that in
countries where the comparison can fairly be made, as in Germany or
Switzerland, there is more honesty in one sex, or more chastity in the
other, when they belong to the reformed churches. Yet, on the other
hand, the practice of confession is at the best of very doubtful
utility, when considered in its full extent and general bearings. The
ordinary confessor, listening mechanically to hundreds of penitents, can
hardly preserve much authority over most of them. But in proportion as
his attention is directed to the secrets of conscience, his influence
may become dangerous; men grow accustomed to the control of one perhaps
more feeble and guilty than themselves, but over whose frailties they
exercise no reciprocal command! and, if the confessors of kings have
been sometimes terrible to nations, their ascendency is probably not
less mischievous, in proportion to its extent, within the sphere of
domestic life. In a political light, and with the object of lessening
the weight of the ecclesiastical order in temporal affairs, there
cannot be the least hesitation as to the expediency of discontinuing the
usage.[122]
5. It has very rarely been the custom of theologians to measure the
importance of orthodox opinions by their effect on the lives and hearts
of those who adopt them; nor was this predilection for speculative above
practical doctrines ever more evident than in the leading controversy of
the sixteenth century, that respecting the Lord's supper. No errors on
this point could have had any influence on men's moral conduct, nor
indeed much on the general nature of their faith; yet it was selected as
the test of heresy; and most, if not all, of those who suffered death
upon that charge, whether in England or on the Continent, were convicted
of denying the corporal presence in the sense of the Roman church. It
had been well if the reformers had learned, by abhorring her
persecution, not to practise it in a somewhat less degree upon each
other, or by exposing the absurdities of transubstantiation, not to
contend for equal nonsense of their own. Four principal theories, to say
nothing of subordinate varieties, divided Europe at the accession of
Edward VI. about the sacrament of the eucharist. The church of Rome
would not depart a single letter from transubstantiation, or the change,
at the moment of consecration, of the substances of bread and wine into
those of Christ's body and blood; the accidents, in school language, or
sensible qualities of the former remaining, or becoming inherent in the
new substance. This doctrine does not, as vulgarly supposed, contradict
the evidence of our senses; since our senses can report nothing as to
the unknown being, which the schoolmen denominated substance, and which
alone was the subject of this conversion. But metaphysicians of later
ages might enquire whether material substances, abstractedly considered,
exist at all, or, if they exist, whether they can have any specific
distinction except their sensible qualities. This, perhaps, did not
suggest itself in the sixteenth century; but it was strongly objected
that the simultaneous existence of a body in many places, which the
Romish doctrine implied, was inconceivable, and even contradictory.
Luther, partly, as it seems, out of his determination to multiply
differences with the church, invented a theory somewhat different,
usually called consubstantiation, which was adopted in the confession of
Augsburgh, and to which, at least down to the end of the seventeenth
century, the divines of that communion were much attached. They imagined
the two substances to be united in the sacramental elements, so that
they might be termed bread and wine, or the body and blood, with equal
propriety.[123] But it must be obvious that there is merely a scholastic
distinction between this doctrine and that of Rome; though, when it
suited the Lutherans to magnify, rather than dissemble, their deviations
from the mother church, it was raised into an important difference. A
simpler and more rational explication occurred to Zuingle and
Oecolampadius, from whom the Helvetian Protestants imbibed their faith.
Rejecting every notion of a real presence, and divesting the institution
of all its mystery, they saw only figurative symbols in the elements
which Christ had appointed as a commemoration of his death. But this
novel opinion excited as much indignation in Luther as in the Romanists.
It was indeed a rock on which the Reformation was nearly shipwrecked;
since the violent contests which it occasioned, and the narrow
intolerance which one side at least displayed throughout the
controversy, not only weakened on several occasions the temporal power
of the protestant churches, but disgusted many of those who might have
inclined towards espousing their sentiments. Besides these three
hypotheses, a fourth was promulgated by Martin Bucer of Strasburgh, a
man of much acuteness, but prone to metaphysical subtlety, and not, it
is said, of a very ingenuous character. His theory upon the sacrament of
the Lord's supper, after having been adopted with little variation by
Calvin, was finally received into some of the offices of the English
church. If the Roman and Lutheran doctrines teemed with unmasked
absurdity, this middle system (if indeed it is to be considered as a
genuine opinion, and not rather a politic device),[124] had no advantage
but in the disguise of unmeaning terms; while it had the peculiar
infelicity of departing as much from the literal sense of the words of
institution, wherein the former triumphed, as the Zuinglian
interpretation itself. It is not easy to state in language tolerably
perspicuous this obsolete metaphysical theology. But Bucer, as I
apprehend, though his expressions are unusually confused, did not
acknowledge a local presence of Christ's body and blood in the elements
after consecration--so far concurring with the Helvetians; while he
contended that they were really, and without figure, received by the
worthy communicant through faith, so as to preserve the belief of a
mysterious union, and of what was sometimes called a real presence. It
can hardly fail to strike every unprejudiced reader that a material
substance can only in a very figurative sense be said to be received
through faith; that there can be no real presence of such a body,
consistently with the proper use of language, but by its local
occupation of space; and that, as the Romish tenet of transubstantiation
is rather the best, so this of the Calvinists is the worst imagined of
the three that have been opposed to the simplicity of the Helvetic
explanation. Bucer himself came to England early in the reign of Edward,
and had a considerable share in advising the measures of reformation.
But Peter Martyr, a disciple of the Swiss school, had also no small
influence. In the forty-two articles set forth by authority, the real or
corporeal presence, using these words as synonymous, is explicitly
denied. This clause was omitted on the revision of the articles under
Elizabeth.[125]
6. These various innovations were exceedingly inimical to the influence
and interests of the priesthood. But that order obtained a sort of
compensation in being released from its obligation to celibacy. This
obligation, though unwarranted by Scripture, rested on a most ancient
and universal rule of discipline; for though the Greek and Eastern
churches have always permitted the ordination of married persons, yet
they do not allow those already ordained to take wives. No very good
reason, however, could be given for this distinction; and the
constrained celibacy of the Latin clergy had given rise to mischiefs, of
which their general practice of retaining concubines might be reckoned
among the smallest.[126] The German Protestants soon rejected this
burden, and encouraged regular as well as secular priests to marry.
Cranmer had himself taken a wife in Germany, whom Henry's law of the six
articles, one of which made the marriage of priests felony, compelled
him to send away. In the reign of Edward this was justly reckoned an
indispensable part of the new Reformation. But the bill for that purpose
passed the Lords with some little difficulty, nine bishops and four
peers dissenting; and its preamble cast such an imputation on the
practice it allowed, treating the marriage of priests as ignominious and
a tolerated evil, that another act was thought necessary a few years
afterwards, when the Reformation was better established, to vindicate
this right of the protestant church.[127] A great number of the clergy
availed themselves of their liberty; which may probably have had as
extensive an effect in conciliating the ecclesiastical profession, as
the suppression of monasteries had in rendering the gentry favourable to
the new order of religion.
_Opposition made by part of the nation._--But great as was the number of
those whom conviction or self-interest enlisted under the protestant
banner, it appears plain that the Reformation moved on with too
precipitate a step for the majority. The new doctrines prevailed in
London, in many large towns, and in the eastern counties. But in the
north and west of England, the body of the people were strictly
Catholics. The clergy, though not very scrupulous about conforming to
the innovations, were generally averse to most of them.[128] And, in
spite of the church lands, I imagine that most of the nobility, if not
the gentry, inclined to the same persuasion; not a few peers having
sometimes dissented from the bills passed on the subject of religion in
this reign, while no sort of disagreement appears in the upper house
during that of Mary. In the western insurrection of 1549, which partly
originated in the alleged grievance of enclosures, many of the demands
made by the rebels go to the entire re-establishment of popery. Those of
the Norfolk insurgents in the same year, whose political complaints were
the same, do not, as far as I perceive, show any such tendency. But an
historian, whose bias was certainly not unfavourable to protestantism,
confesses that all endeavours were too weak to overcome the aversion of
the people towards reformation, and even intimates that German troops
were sent for from Calais on account of the bigotry with which the bulk
of the nation adhered to the old superstition.[129] This is somewhat a
humiliating admission, that the protestant faith was imposed upon our
ancestors by a foreign army. And as the reformers, though still the
fewer, were undeniably a great and increasing party, it may be natural
to enquire, whether a regard to policy as well as equitable
considerations should not have repressed still more, as it did in some
measure, the zeal of Cranmer and Somerset? It might be asked, whether,
in the acknowledged co-existence of two religions, some preference were
not fairly claimed for the creed, which all had once held, and which the
greater part yet retained; whether it were becoming that the counsellors
of an infant king should use such violence in breaking up the
ecclesiastical constitution; whether it were to be expected that a
free-spirited people should see their consciences thus transferred by
proclamation, and all that they had learned to venerate not only torn
away from them, but exposed to what they must reckon blasphemous
contumely and profanation? The demolition of shrines and images, far
unlike the speculative disputes of theologians, was an overt insult on
every catholic heart. Still more were they exasperated at the ribaldry
which vulgar Protestants uttered against their most sacred mystery. It
was found necessary in the very first act of the first protestant
parliament, to denounce penalties against such as spoke irreverently of
the sacrament, an indecency not unusual with those who held the
Zuinglian opinion in that age of coarse pleasantry and unmixed
invective.[130] Nor could the people repose much confidence in the
judgment and sincerity of their governors, whom they had seen submitting
without outward repugnance to Henry's various schemes of religion, and
whom they saw every day enriching themselves with the plunder of the
church they affected to reform. There was a sort of endowed colleges or
fraternities, called chantries, consisting of secular priests, whose
duty was to say daily masses for the founders. These were abolished and
given to the king by acts of parliament in the last year of Henry, and
the first of Edward. It was intimated in the preamble of the latter
statute that their revenues should be converted to the erection of
schools, the augmentation of the universities, and the sustenance of the
indigent.[131] But this was entirely neglected, and the estates fell
into the hands of the courtiers. Nor did they content themselves with
this escheated wealth of the church. Almost every bishopric was spoiled
by their ravenous power in this reign, either through mere alienations,
or long leases, or unequal exchanges. Exeter and Llandaff from being
among the richest sees, fell into the class of the poorest. Lichfield
lost the chief part of its lands to raise an estate for Lord Paget.
London, Winchester, and even Canterbury, suffered considerably. The Duke
of Somerset was much beloved; yet he had given no unjust offence by
pulling down some churches in order to erect Somerset House with the
materials. He had even projected the demolition of Westminster Abbey;
but the chapter averted this outrageous piece of rapacity, sufficient of
itself to characterise that age, by the usual method, a grant of some of
their estates.[132]
Tolerance in religion, it is well known, so unanimously admitted (at
least verbally) even by theologians in the present century, was seldom
considered as practicable, much less as a matter of right, during the
period of the Reformation. The difference in this respect between the
Catholics and Protestants was only in degree, and in degree there was
much less difference than we are apt to believe. Persecution is the
deadly original sin of the reformed churches; that which cools every
honest man's zeal for their cause, in proportion as his reading becomes
more extensive. The Lutheran princes and cities in Germany constantly
refused to tolerate the use of the mass as an idolatrous service;[133]
and this name of idolatry, though adopted in retaliation for that of
heresy, answered the same end as the other, of exciting animosity and
uncharitableness. The Roman worship was equally proscribed in England.
Many persons were sent to prison for hearing mass and similar
offences.[134] The Princess Mary supplicated in vain to have the
exercise of her own religion at home; and Charles V. several times
interceded in her behalf; but though Cranmer and Ridley, as well as the
council, would have consented to this indulgence, the young king, whose
education had unhappily infused a good deal of bigotry into his mind,
could not be prevailed upon to connive at such idolatry.[135] Yet in
one memorable instance he had shown a milder spirit, struggling against
Cranmer to save a fanatical woman from the punishment of heresy. This is
a stain upon Cranmer's memory which nothing but his own death could have
lightened. In men hardly escaped from a similar peril, in men who had
nothing to plead but the right of private judgment, in men who had
defied the prescriptive authority of past ages and of established power,
the crime of persecution assumes a far deeper hue, and is capable of far
less extenuation, than in a Roman inquisitor. Thus the death of Servetus
has weighed down the name and memory of Calvin. And though Cranmer was
incapable of the rancorous malignity of the Genevan lawgiver, yet I
regret to say that there is a peculiar circumstance of aggravation in
his pursuing to death this woman, Joan Boucher, and a Dutchman that had
been convicted of Arianism. It is said that he had been accessary in the
preceding reign to the condemnation of Lambert, and perhaps some others,
for opinions concerning the Lord's supper which he had himself
afterwards embraced.[136] Such an evidence of the fallibility of human
judgment, such an example that persecutions for heresy, how
conscientiously soever managed, are liable to end in shedding the blood
of those who maintain truth, should have taught him, above all men, a
scrupulous repugnance to carry into effect those sanguinary laws.
Compared with these executions for heresy, the imprisonment and
deprivation of Gardiner and Bonner appear but measures of ordinary
severity towards political adversaries under the pretext of religion;
yet are they wholly unjustifiable, particularly in the former instance;
and if the subsequent retaliation of those bad men was beyond all
proportion excessive, we should remember that such is the natural
consequence of tyrannical aggressions.[137]
_Cranmer._--The person most conspicuous, though Ridley was perhaps the
most learned divine, in moulding the faith and discipline of the English
church, which has not been very materially altered since his time, was
Archbishop Cranmer.[138] Few men, about whose conduct there is so little
room for controversy upon facts, have been represented in more opposite
lights. We know the favouring colours of protestant writers; but turn to
the bitter invective of Bossuet; and the patriarch of our reformed
church stands forth as the most abandoned of time-serving hypocrites. No
political factions affect the impartiality of men's judgment so grossly,
or so permanently, as religious heats. Doubtless, if we should reverse
the picture, and imagine the end and scope of Cranmer's labour to have
been the establishment of the Roman catholic religion in a protestant
country, the estimate formed of his behaviour would be somewhat less
favourable than it is at present. If, casting away all prejudice on
either side, we weigh the character of this prelate in an equal balance,
he will appear far indeed removed from the turpitude imputed to him by
his enemies, yet not entitled to any extraordinary veneration. Though it
is most eminently true of Cranmer that his faults were always the effect
of circumstances, and not of intention; yet this palliating
consideration is rather weakened when we recollect that he consented to
place himself in a station where those circumstances occurred. At the
time of Cranmer's elevation to the see of Canterbury, Henry, though on
the point of separating for ever from Rome, had not absolutely
determined upon so strong a measure; and his policy required that the
new archbishop should solicit the usual bulls from the pope, and take
the oath of canonical obedience to him. Cranmer, already a rebel from
that dominion in his heart, had recourse to the disingenuous shift of a
protest, before his consecration, that "he did not intend to restrain
himself thereby from anything to which he was bound by his duty to God
or the king, or from taking part in any reformation of the English
church which he might judge to be required."[139] This first deviation
from integrity, as is almost always the case, drew after it many others;
and began that discreditable course of temporising, and undue
compliance, to which he was reduced for the rest of Henry's reign.
Cranmer's abilities were not perhaps of a high order, or at least they
were unsuited to public affairs; but his principal defect was in that
firmness by which men of more ordinary talents may ensure respect.
Nothing could be weaker than his conduct in the usurpation of Lady Jane,
which he might better have boldly sustained, like Ridley, as a step
necessary for the conservation of protestantism, than given into against
his conscience, overpowered by the importunities of a misguided boy. Had
the malignity of his enemies been directed rather against his reputation
than his life, had he been permitted to survive his shame, as a prisoner
in the Tower, it must have seemed a more arduous task to defend the
memory of Cranmer; but his fame has brightened in the fire that
consumed him.[140]
_Cranmer's moderation in introducing changes not acceptable to the
zealots._--Those who, with the habits of thinking that prevail in our
times, cast back their eyes on the reign of Edward VI. will generally be
disposed to censure the precipitancy, and still more the exclusive
spirit, of our principal reformers. But relatively to the course that
things had taken in Germany, and to the feverish zeal of that age, the
moderation of Cranmer and Ridley, the only ecclesiastics who took a
prominent share in these measures, was very conspicuous; and tended
above everything to place the Anglican church in that middle position
which it has always preserved, between the Roman hierarchy and that of
other protestant denominations. It is manifest from the history of the
Reformation in Germany, that its predisposing cause was the covetous and
arrogant character of the superior ecclesiastics, founded upon vast
temporal authority; a yoke long borne with impatience, and which the
unanimous adherence of the prelates to Rome in the period of separation
gave the Lutheran princes a good excuse for entirely throwing off. Some
of the more temperate reformers, as Melancthon, would have admitted a
limited jurisdiction of the episcopacy: but in general the destruction
of that order, such as it then existed, may be deemed as fundamental a
principle of the new discipline, as any theological point could be of
the new doctrine. But, besides that the subjection of ecclesiastical to
civil tribunals, and possibly other causes, had rendered the superior
clergy in England less obnoxious than in Germany, there was this
important difference between the two countries, that several bishops
from zealous conviction, many more from pliability to self-interest, had
gone along with the new-modelling of the English church by Henry and
Edward; so that it was perfectly easy to keep up that form of
government, in the regular succession which had usually been deemed
essential; though the foreign reformers had neither the wish, nor
possibly the means, to preserve it. Cranmer himself, indeed, during the
reign of Henry, had bent, as usual, to the king's despotic humour; and
favoured a novel theory of ecclesiastical authority, which resolved all
its spiritual as well as temporal powers into the royal supremacy.
Accordingly, at the accession of Edward, he himself, and several other
bishops, took out commissions to hold their sees during pleasure.[141]
But when the necessity of compliance had passed by, they showed a
disposition not only to oppose the continual spoliations of church
property, but to maintain the jurisdiction which the canon law had
conferred upon them.[142] And though, as this papal code did not appear
very well adapted to a protestant church, a new scheme of ecclesiastical
laws was drawn up, which the king's death rendered abortive, this was
rather calculated to strengthen the hands of the spiritual courts than
to withdraw any matter from their cognisance.[143]
The policy, or it may be the prejudices, of Cranmer induced him also to
retain in the church a few ceremonial usages, which the Helvetic, though
not the Lutheran, reformers had swept away; such as the copes and
rochets of bishops, and the surplice of officiating priests. It should
seem inconceivable that any one could object to these vestments,
considered in themselves; far more, if they could answer in the
slightest degree the end of conciliating a reluctant people. But this
motive unfortunately was often disregarded in that age; and indeed in
all ages an abhorrence of concession and compromise is a never-failing
characteristic of religious factions. The foreign reformers then in
England, two of whom, Bucer and Peter Martyr, enjoyed a deserved
reputation, expressed their dissatisfaction at seeing these habits
retained, and complained, in general, of the backwardness of the English
reformation. Calvin and Bullinger wrote from Switzerland in the same
strain.[144] Nor was this sentiment by any means confined to strangers.
Hooper, an eminent divine, having been elected Bishop of Gloucester,
refused to be consecrated in the usual dress. It marks, almost
ludicrously, the spirit of those times, that, instead of permitting him
to decline the station, the council sent him to prison for some time,
until by some mutual concessions the business was adjusted.[145] These
events it would hardly be worth while to notice in such a work as the
present, if they had not been the prologue to a long and serious drama.
_Persecution under Mary._--It is certain that the re-establishment of
popery on Mary's accession must have been acceptable to a large part, or
perhaps to the majority, of the nation. There is reason however to
believe that the reformed doctrine had made a real progress in the few
years of her brother's reign. The counties of Norfolk and Suffolk, which
placed Mary on the throne as the lawful heir, were chiefly protestant,
and experienced from her the usual gratitude and good faith of a
bigot.[146] Noailles bears witness, in many of his despatches, to the
unwillingness which great numbers of the people displayed to endure the
restoration of popery, and to the queen's excessive unpopularity, even
before her marriage with Philip had been resolved upon.[147] As for the
higher classes, they partook far less than their inferiors in the
religious zeal of that age. Henry, Edward, Mary, Elizabeth, found almost
an equal compliance with their varying schemes of faith. Yet the larger
proportion of the nobility and gentry appear to have preferred the
catholic religion. Several peers opposed the bills for reformation under
Edward; and others, who had gone along with the current, became active
counsellors of Mary. Not a few persons of family emigrated in the latter
reign; but, with the exception of the second Earl of Bedford, who
suffered a short imprisonment on account of religion, the protestant
martyrology contains no confessor of superior rank.[148] The same
accommodating spirit characterised, upon the whole, the clergy; and
would have been far more general, if a considerable number had not
availed themselves of the permission to marry granted by Edward; which
led to their expulsion from their cures on his sister's coming to the
throne.[149] Yet it was not the temper of Mary's parliaments, whatever
pains had been taken about their election, to second her bigotry in
surrendering the temporal fruits of their recent schism. The bill for
restoring first fruits and impropriations in the queen's hands to the
church passed not without difficulty; and it was found impossible to
obtain a repeal of the Act of Supremacy without the pope's explicit
confirmation of the abbey lands to their new proprietors. Even this
confirmation, though made through the legate Cardinal Pole, by virtue of
a full commission, left not unreasonably an apprehension that, on some
better opportunity, the imprescriptible nature of church property might
be urged against the possessors.[150] With these selfish considerations
others of a more generous nature conspired to render the old religion
more obnoxious than it had been at the queen's accession. Her marriage
with Philip, his encroaching disposition, the arbitrary turn of his
counsels, the insolence imputed to the Spaniards who accompanied him,
the unfortunate loss of Calais through that alliance, while it
thoroughly alienated the kingdom from Mary, created a prejudice against
the religion which the Spanish court so steadily favoured.[151] So
violent indeed was the hatred conceived by the English nation against
Spain during the short period of Philip's marriage with their queen,
that it diverted the old channel of public feelings, and almost put an
end to that dislike and jealousy of France which had so long existed.
For at least a century after this time we rarely find in popular writers
any expression of hostility towards that country; though their national
manners, so remote from our own, are not unfrequently the object of
ridicule. The prejudices of the populace, as much as the policy of our
counsellors, were far more directed against Spain.
_Its effect rather favourable to protestantism._--But what had the
greatest efficacy in disgusting the English with Mary's system of faith,
was the cruelty by which it was accompanied. Though the privy council
were in fact continually urging the bishops forward in this
prosecution,[152] the latter bore the chief blame, and the abhorrence
entertained for them naturally extended to the doctrine they professed.
A sort of instinctive reasoning told the people, what the learned on
neither side had been able to discover, that the truth of a religion
begins to be very suspicious, when it stands in need of prisons and
scaffolds to eke out its evidences. And as the English were
constitutionally humane, and not hardened by continually witnessing the
infliction of barbarous punishments, there arose a sympathy for men
suffering torments with such meekness and patience, which the populace
of some other nations were perhaps less apt to display, especially in
executions on the score of heresy.[153] The theologian indeed and the
philosopher may concur in deriding the notion that either sincerity or
moral rectitude can be the test of truth; yet among the various species
of authority to which recourse had been had to supersede or to supply
the deficiencies of argument, I know not whether any be more reasonable,
and none certainly is so congenial to unsophisticated minds. Many are
said to have become protestants under Mary, who, at her coming to the
throne, had retained the contrary persuasion.[154] And the strongest
proof of this may be drawn from the acquiescence of the great body of
the kingdom in the re-establishment of protestantism by Elizabeth, when
compared with the seditions and discontent on that account under Edward.
The course which this famous princess steered in ecclesiastical
concerns, during her long reign, will form the subject of the two
ensuing chapters.
FOOTNOTES:
[83] Burnet. Reeves's _History of the Law_, iv. p. 308. The contemporary
authority is Keilwey's Reports. Collier disbelieves the murder of Hun on
the authority of Sir Thomas More; but he was surely a prejudiced
apologist of the clergy, and this historian is hardly less so. An entry
on the journals, 7 H. 8, drawn of course by some ecclesiastic,
particularly complains of Standish as the author of periculosissimæ
seditiones inter clericam et secularem potestatem.
[84] Burnet is confident that the answer to Luther was not written by
Henry (vol. iii. 171), and others have been of the same opinion. The
king, however, in his answer to Luther's apologetical letter, where this
was insinuated, declares it to be his own. From Henry's general
character and proneness to theological disputation, it may be inferred
that he had at least a considerable share in the work, though probably
with the assistance of some who had more command of the Latin language.
Burnet mentions in another place, that he had seen a copy of the
_Necessary Erudition of a Christian Man_, full of interlineations by the
king.
[85] Epist. Lutheri ad Henricum regem missa, etc. Lond. 1526. The letter
bears date at Wittenberg, September 1, 1525. It had no relation,
therefore, to Henry's quarrel with the Pope, though probably Luther
imagined that the king was becoming more favourably disposed. After
saying that he had written against the king "stultus ac 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 foex et vermis, quem
solo contemptu oportuit victum aut neglectum esse," etc. Among the many
strange things which Luther said and wrote, I know not one more
extravagant than this letter, which almost justifies the supposition
that there was a vein of insanity in his very remarkable character.
[86] Collier, vol. ii. Appendix, No. 2. In the _Hardwicke Papers_, i.
13, we have an account of the ceremonial of the first marriage of Henry
with Catherine in 1503. It is remarkable that a person was appointed to
object publicly in Latin to the marriage, as unlawful, for reasons he
should there exhibit; "whereunto Mr. Doctor Barnes shall reply, and
declare solemnly, also in Latin, the said marriage to be good and
effectual in the law of Christ's church, by virtue of a dispensation,
which he shall have then to be openly read." There seems to be something
in this of the tortuous policy of Henry VII.; but it shows that the
marriage had given offence to scrupulous minds.
[87] See Burnet, Lingard, Turner, and the letters lately printed in
State Papers, temp. Henry VIII. pp. 194, 196.
[88] Burnet wishes to disprove the bribery of these foreign doctors. But
there are strong presumptions that some opinions were got by money
(Collier, ii. 58); and the greatest difficulty was found, where
corruption perhaps had least influence, in the Sorbonne. Burnet himself
proves that some of the cardinals were bribed by the king's ambassador,
both in 1528 and 1532. Vol. i. Append. pp. 30, 110. See, too, Strype, i.
Append. No. 40.
The same writer will not allow that Henry menaced the university of
Oxford in case of non-compliance; yet there are three letters of his to
them, a tenth part of which, considering the nature of the writer, was
enough to terrify his readers. Vol. iii. Append. p. 25. These probably
Burnet did not know when he published his first volume.
[89] The king's marriage is related by the earlier historians to have
taken place November 14, 1532. Burnet however is convinced by a letter
of Cranmer, who, he says, could not be mistaken, though he was not
apprised of the fact till some time afterwards, that it was not
solemnised till about the 25th of January (vol. iii. p. 70). This letter
has since been published in the _Archæologia_, vol. xviii., and in
Ellis's _Letters_, ii. 34. Elizabeth was born September 7, 1533; for
though Burnet, on the authority, he says, of Cranmer, places her birth
on September 14, the former date is decisively confirmed by letters in
Harl. MSS. 283, 22, and 787, 1 (both set down incorrectly in the
catalogue). If a late historian therefore had contented himself with
commenting on these dates and the clandestine nature of the marriage, he
would not have gone beyond the limits of that character of an advocate
for one party which he has chosen to assume. It may not be unlikely,
though by no means evident, that Anne's prudence, though, as Fuller says
of her, "she was cunning in her chastity," was surprised at the end of
this long courtship. I think a prurient curiosity about such obsolete
scandal very unworthy of history. But when this author asserts Henry to
have cohabited with her for three years, and repeatedly calls her his
mistress, when he attributes Henry's patience with the pope's chicanery
to "the infecundity of Anne," and all this on no other authority than a
letter of the French ambassador, which amounts hardly to evidence of a
transient rumour, we cannot but complain of a great deficiency in
historical candour.
[90] The principal authority on the story of Henry's divorce from
Catherine is Burnet, in the first and third volumes of his _History of
the Reformation_; the latter correcting the former from additional
documents. Strype, in his _Ecclesiastical Memorials_, adds some
particulars not contained in Burnet, especially as to the negotiations
with the pope in 1528; and a very little may be gleaned from Collier,
Carte, and other writers. There are few parts of history, on the whole,
that have been better elucidated. One exception perhaps may yet be made.
The beautiful and affecting story of Catherine's behaviour before the
legates at Dunstable is told by Cavendish and Hall, from whom later
historians have copied it. Burnet, however, in his third volume, p. 46,
disputes its truth, and on what should seem conclusive authority, that
of the original register, whence it appears that the queen never came
into court but once, June 18, 1529, to read a paper protesting against
the jurisdiction, and that the king never entered it. Carte accordingly
treated the story as a fabrication. Hume of course did not choose to
omit so interesting a circumstance; but Dr. Lingard has pointed out a
letter of the king, which Burnet himself had printed, vol. i. Append.
78, mentioning the queen's presence as well as his own, on June 21, and
greatly corroborating the popular account. To say the truth, there is no
small difficulty in choosing between two authorities so considerable, if
they cannot be reconciled, which seems impossible: but, upon the whole,
the preference is due to Henry's letter, dated June 23, as he could not
be mistaken, and had no motive to misstate.
This is not altogether immaterial; for Catherine's appeal to Henry, de
integritate corporis usque ad secundas nuptias 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.
[91] Stat. 21, Hen. 8, cc. 5, 6; Strype, i. 73; Burnet, 83. It cost a
thousand marks to prove Sir William Compton's will in 1528. These
exactions had been much augmented by Wolsey, who interfered, as legate,
with the prerogative court.
[92] It is hard to say what were More's original sentiments about the
divorce. In a letter to Cromwell (Strype, i. 183, and App. No. 48;
Burnet, App. p. 280) he speaks of himself as always doubtful. But, if
his disposition had not been rather favourable to the king, would he
have been offered, or have accepted, the great seal? We do not indeed
find his name in the letter of remonstrance to the pope, signed by the
nobility and chief commoners in 1530, which Wolsey, though then in
disgrace, very willingly subscribed. But in March, 1531, he went down to
the House of Commons, attended by several lords, to declare the king's
scruples about his marriage, and to lay before them the opinions of
universities. In this he perhaps thought himself acting ministerially.
But there can be no doubt that he always considered the divorce as a
matter wholly of the pope's competence, and which no other party could
take out of his hands, though he had gone along cheerfully, as Burnet
says, with the prosecution against the clergy, and wished to cut off the
illegal jurisdiction of the Roman see. The king did not look upon him as
hostile; for even so late as 1532, Dr. Bennet, the envoy at Rome,
proposed to the pope that the cause should be tried by four
commissioners, of whom the king should name one, either Sir Thomas More
or Stokesly, Bishop of London. Burnet, i. 126.
[93] Dr. Lingard has pointed out, as Burnet had done less distinctly,
that the bill abrogating the papal supremacy was brought into the
Commons in the beginning of March, and received the royal assent on the
30th; whereas the determination of the conclave at Rome against the
divorce was on the 23rd; so that the latter could not have been the
cause of this final rupture. Clement VII. might have been outwitted in
his turn by the king, if, after pronouncing a decree in favour of the
divorce, he had found it too late to regain his jurisdiction in England.
On the other hand, so flexible were the parliaments of this reign, that,
if Henry had made terms with the pope, the supremacy might have revived
again as easily as it had been extinguished.
[94] Burnet, iii. 44; and App. 24.
[95] Conf. Burnet, i. 94, and App. No. 35; Strype, i. 230; Sleidan,
_Hist. de la Réformation_ (par Courayer), l. 10. The notions of these
divines, as here stated, are not very consistent or intelligible. The
Swiss reformers were in favour of the divorce, though they advised that
the Princess Mary should not be declared illegitimate. Luther seems to
have inclined towards compromising the difference by the marriage of a
secondary wife. Lingard, p. 172. Melancthon, this writer says, was of
the same opinion. Burnet indeed denies this; but it is rendered not
improbable by the well-authenticated fact that these divines, together
with Bucer, signed a permission to the landgrave of Hesse to take a wife
or concubine, on account of the drunkenness and disagreeable person of
his landgravine. Bossuet, _Hist. des Var. des Egl. Protest_. vol. i.,
where the instrument is published. Clement VII., however, recommended
the king to marry immediately, and then prosecute his suit for a
divorce, which it would be easier for him to obtain in such
circumstances. This was as early as January, 1528 (Burnet, i., App. p.
27). But at a much later period, September 1530, he expressly suggested
the expedient of allowing the king to retain two wives. Though the
letter of Cassali, the king's ambassador at Rome, containing this
proposition, was not found by Burnet, it is quoted at length by an
author of unquestionable veracity, Lord Herbert. Henry had himself, at
one time, favoured this scheme, according to Burnet, who does not,
however, produce any authority for the instructions to that effect said
to have been given to Brian and Vannes, despatched to Rome at the end of
1528. But at the time when the pope made this proposal, the king had
become exasperated against Catherine, and little inclined to treat
either her or the holy see with any respect.
[96] Strype, i. 151 _et alibi_.
[97] Strype, _passim_. Tunstal, Gardiner, and Bonner wrote in favour of
the royal supremacy; all of them, no doubt, insincerely. The first of
these has escaped severe censure by the mildness of his general
character, but was full as much a temporiser as Cranmer. But the history
of this period has been written with such undisguised partiality by
Burnet and Strype on the one hand, and lately by Dr. Lingard on the
other, that it is almost amusing to find the most opposite conclusions
and general results from nearly the same premises. Collier, though with
many prejudices of his own, is, all things considered, the fairest of
our ecclesiastical writers as to this reign.
[98] Burnet, 188. For the methods by which the regulars acquired wealth,
fair and unfair, I may be allowed to refer to the _View of the Middle
Ages_, ch. 7, or rather to the sources from which the sketch there given
was derived.
[99] Harmer's _Specimens of Errors in Burnet_.
[100] Strype, i. Append. 19.
[101] Burnet; Strype. Wolsey alleged as the ground for this suppression,
the great wickedness that prevailed therein. Strype says the number is
twenty; but Collier, ii. 19, reckons them at forty.
[102] Collier, though not implicitly to be trusted, tells some hard
truths, and charges Cromwell with receiving bribes from several abbeys,
in order to spare them. P. 159. This is repeated by Lingard, on the
authority of some Cottonian manuscripts. Even Burnet speaks of the
violent proceedings of a Doctor Loudon towards the monasteries. This man
was of infamous character, and became afterwards a conspirator against
Cranmer, and a persecutor of protestants.
[103] Burnet, 190; Strype, i. ch. 35, see especially p. 257; Ellis's
_Letters_, ii. 71. We should be on our guard against the Romanising
high-church men, such as Collier, and the whole class of antiquaries,
Wood, Hearne, Drake, Browne, Willis, etc., etc., who are, with hardly an
exception, partial to the monastic orders, and sometimes scarce keep on
the mask of protestantism. No one fact can be better supported by
current opinion, and that general testimony which carries conviction,
than the relaxed and vicious state of those foundations for many ages
before their fall. Ecclesiastical writers had not then learned, as they
have since, the trick of suppressing what might excite odium against
their church, but speak out boldly and bitterly. Thus we find in
Wilkins, iii. 630, a bull of Innocent VIII. for the reform of
monasteries in England, charging many of them with dissoluteness of
life. And this is followed by a severe monition from Archbishop Morton
to the abbot of St. Alban's, imputing all kinds of scandalous vices to
him and his monks. Those who reject at once the reports of Henry's
visitors will do well to consider this. See also Fosbrooke's _British
Monachism, passim_.
[104] The preamble of 27 H. 8, c. 28, which gives the smaller
monasteries to the king, after reciting that "manifest sin, vicious,
carnal, and abominable living, is daily used and committed commonly in
such little and small abbeys, priories, and other religious houses of
monks, canons, and nuns, where the congregation of such religious
persons is under the number of twelve persons," bestows praise on many
of the greater foundations, and certainly does not intimate that their
fate was so near at hand. Nor is any misconduct alleged or insinuated
against the greater monasteries in the act 31 H. 8, c. 13, that
abolishes them; which is rather more remarkable, as in some instances
the religious had been induced to confess their evil lives and ill
deserts. Burnet, 236.
[105] _Id. ibid._ and Append. p. 151; Collier, 167. The pensions to the
superiors of the dissolved greater monasteries, says a writer not likely
to spare Henry's government, appear to have varied from £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.
[106] The abbots sat till the end of the first session of Henry's sixth
parliament, the act extinguishing them not having passed till the last
day. In the next session they do not appear, the writ of summons not
being supposed to give them personal seats. There are indeed so many
parallel instances among spiritual lords, and the principle is so
obvious, that it would not be worth noticing, but for a strange doubt
said to be thrown out by some legal authorities, near the beginning of
George III.'s reign, in the case of Pearce, Bishop of Rochester,
whether, after resigning his see, he would not retain his seat as a lord
of parliament; in consequence of which his resignation was not accepted.
[107] Burnet, i. Append. 96.
[108] P. 268. Dr. Lingard, on the authority of Nasmith's edition of
Tanner's _Notitia Monastica_, puts the annual revenue of all the
monastic houses at £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 _Observations on Burnet_, as I have mentioned above, says the
monks will be found not to have possessed above one-fifth of the
kingdom, and in value, by reason of their long leases, not one-tenth.
But on this supposition, the crown's gain was enormous.
According to a valuation in Speed's _Catalogue of Religious Houses,
apud_ Collier, Append. p. 34, sixteen mitred abbots had revenues above
£1000 per annum. St. Peter's, Westminster, was the richest, and valued
at £3977, Glastonbury at £3508, St. Alban's at £2510, etc.
[109] An act entitling the queen to take into her hands, on the
avoidance of any bishopric, so much of the lands belonging to it as
should be equal in value to the impropriate rectories, etc., within the
same, belonging to the crown, and to give the latter in exchange, was
made (1 Eliz. c. 19). This bill passed on a division in the Commons by
104 to 90, and was ill taken by some of the bishops, who saw themselves
reduced to live on the lawful subsistence of the parochial clergy.
Strype's _Annals_, i. 68, 97.
[110] Burnet, 268, 339. In Strype, i. 211, we have a paper drawn up by
Cromwell for the king's inspection, setting forth what might be done
with the revenues of the lesser monasteries. Among a few other
particulars are the following: "His grace may furnish 200 gentlemen to
attend on his person; every one of them to have 100 marks yearly--20,000
marks. His highness may assign to the yearly reparation of highways in
sundry parts, or the doing of other good deeds for the commonwealth,
5000 marks." In such scant proportion did the claims of public utility
come after those of selfish pomp, or rather perhaps, looking more
attentively, of cunning corruption.
[111] Burnet, i. 223.
[112] It is a favourite theory with many who regret the absolute
secularisation of conventual estates, that they might have been rendered
useful to learning and religion by being bestowed on chapters and
colleges. Thomas Whitaker has sketched a pretty scheme for the abbey of
Whalley, wherein, besides certain opulent prebendaries, he would provide
for schoolmasters and physicians. I suppose this is considered an
adherence to the donor's intention, and no sort of violation of
property; somewhat on the principle called _cy près_, adopted by the
court of chancery in cases of charitable bequests; according to which,
that tribunal, if it holds the testator's intention unfit to be
executed, carries the bequest into effect by doing what it presumes to
come next in his wishes, though sometimes very far from them. It might
be difficult indeed to prove that a Norman baron, who, not quite easy
about his future prospects, took comfort in his last hours from the
anticipation of daily masses for his soul, would have been better
satisfied that his lands should maintain a grammar-school, than that
they should escheat to the crown. But to waive this, and to revert to
the principle of public utility, it may possibly be true that, in one
instance, such as Whalley, a more beneficial disposition could have been
made in favour of a college than by granting away the lands. But the
question is, whether all, or even a great part, of the monastic estates
could have been kept in mortmain with advantage. We may easily argue
that the Derwentwater property, applied as it has been, has done the
state more service, than if it had gone to maintain a race of
Ratcliffes, and been squandered at White's or Newmarket. But does it
follow that the kingdom would be the more prosperous, if all the estates
of the peerage were diverted to similar endowments? And can we seriously
believe that, if such a plan had been adopted at the suppression of
monasteries, either religion or learning would have been the better for
such an inundation of prebendaries and schoolmasters?
[113] The first act for the relief of the impotent poor passed in 1535
(27 H. 8, c. 25). By this statute no alms were allowed to be given to
beggars, on pain of forfeiting ten times the value; but a collection was
to be made in every parish. The compulsory contributions, properly
speaking, began in 1572 (14 Eliz. c. 5). But by an earlier statute (1
Edward 6, c. 3), the bishop was empowered to proceed in his court
against such as should refuse to contribute, or dissuade others from
doing so.
[114] The _Institution_ was printed in 1537; the _Erudition_, according
to Burnet, in 1540; but in Collier and Strype's opinion, not till 1543.
They are both artfully drawn, probably in the main by Cranmer, but not
without the interference of some less favourable to the new doctrine,
and under the eye of the king himself. Collier, 137, 189. The doctrinal
variations in these two summaries of royal faith are by no means
inconsiderable.
[115] Strype, i. 165. A statute enacted in 1534 (25 H. 8, c. 15), after
reciting that "at this day there be within this realm a great number
cunning and expert in printing, and as able to execute the said craft as
any stranger," proceeds to forbid the sale of bound books imported from
the Continent. A terrible blow was thus levelled both against general
literature and the reformed religion; but, like many other bad laws,
produced very little effect.
[116] The accounts of early editions of the English Bible in Burnet,
Collier, Strype, and an essay by Johnson in Watson's _Theological
Tracts,_ vol. iii., are erroneous or defective. A letter of Strype in
Harleian MSS. 3782, which has been printed, is better; but the most
complete enumeration is in Cotton's list of editions, 1821. The
dispersion of the Scriptures, with full liberty to read them, was
greatly due to Cromwell, as is shown by Burnet. Even after his fall, a
proclamation, dated May 6, 1542, referring to the king's former
injunctions for the same purpose, directs a large Bible to be set up in
every parish church. But, next year, the Duke of Norfolk and Gardiner
prevailing over Cranmer, Henry retraced a part of his steps; and the act
34 H. 8, c. 1. forbids the sale of Tindal's "false translation," and the
reading of the Bible in churches, or by yeomen, women, and other
incapable persons. The popish bishops, well aware how much turned on
this general liberty of reading the Scriptures, did all in their power
to discredit the new version. Gardiner made a list of about one hundred
words which he thought unfit to be translated, and which, in case of an
authorised version (whereof the clergy in convocation had reluctantly
admitted the expediency), ought, in his opinion, to be left in Latin.
Tindal's translation may, I apprehend, be reckoned the basis of that now
in use, but has undergone several corrections before the last. It has
been a matter of dispute whether it were made from the original
languages or from the Vulgate. Hebrew and even Greek were very little
known in England at that time.
The edition of 1537, called Matthews's Bible, printed by Grafton,
contains marginal notes reflecting on the corruptions of popery. These
it was thought expedient to suppress in that of 1539, commonly called
Cranmer's Bible, as having been revised by him, and in later editions.
In all these editions of Henry's reign, though the version is properly
Tindal's, there are, as I am informed, considerable variations and
amendments. Thus, in Cranmer's Bible, the word _ecclesia_ is always
rendered congregation, instead of church; either as the primary meaning,
or, more probably, to point out that the laity had a share in the
government of a Christian society.
[117] Burnet, 318; Strype's _Life of Parker_, 18; Collier (187) is of
course much scandalised. In his view of things, it had been better to
give up the Reformation entirely, than to suffer one reflection on the
clergy. These dramatic satires on that order had also an effect in
promoting the Reformation in Holland. Brandt's _History of Reformation
in Low Countries_, vol. i. p. 128.
[118] I can hardly avoid doubting, whether Edward VI.'s journal,
published in the second volume of Burnet, be altogether his own; because
it is strange for a boy of ten years old to write with the precise
brevity of a man of business. Yet it is hard to say how far an
intercourse with able men on serious subjects may force a royal plant of
such natural vigour; and his letters to his young friend Barnaby
Fitzpatrick, published by H. Walpole in 1774, are quite unlike the style
of a boy. One could wish this journal not to be genuine; for the manner
in which he speaks of both his uncles' executions does not show a good
heart. Unfortunately, however, there is a letter extant, of the king to
Fitzpatrick, which must be genuine, and is in the same strain. He
treated his sister Mary harshly about her religion, and had, I suspect,
too much Tudor blood in his veins. It is certain that he was a very
extraordinary boy, or, as Cardan calls him, monstrificus puellus; and
the reluctance with which he yielded, on the solicitations of Cranmer,
to sign the warrant for burning John Boucher, is as much to his honour,
as it is against the archbishop's.
[119] The litany had been translated into English in 1542. Burnet, i.
331; Collier, III, where it may be read, not much differing from that
now in use. It was always held out by our church, when the object was
conciliation, that the liturgy was essentially the same with the
mass-book. Strype's _Annals_, ii. 39; Hollingshed, iii, 921 (4to
edition).
[120] It was observed, says Strype, ii. 79, that where images were left
there was most contest, and most peace where they were all sheer pulled
down, as they were in some places.
[121] Collier, p. 257, enters into a vindication of the practice, which
appears to have prevailed in the church from the second century. It was
defended in general by the nonjurors, and the whole school of Andrews.
But, independently of its wanting the authority of Scripture, which the
reformers set up exclusively of all tradition, it contradicted the
doctrine of justification by mere faith, in the strict sense which they
affixed to that tenet. See preamble of the act for dissolution of
chantries, 1 Edw. 6, c. 14.
[122] Collier, p. 248, descants, in the true spirit of a high churchman,
on the importance of confession. This also, as is well known, is one of
the points on which his party disagreed with the generality of
protestants.
[123] Nostra sententia est, says Luther, _apud_ Burnet, 111, Appendix,
194, corpus ita cum pane, seu in pane esse, ut revera cum pane
manducetur, et quemcunque motum vel actionem panis habet, eundem et
corpus Christi.
[124] "Bucer thought, that for avoiding contention, and for maintaining
peace and quietness in the church, somewhat more ambiguous words should
be used, that might have a respect to both persuasions concerning the
presence. But Martyr was of another judgment, and affected to speak of
the sacrament with all plainness and perspicuity." Strype, ii. 121. The
truth is, that there were but two opinions at bottom as to this main
point of the controversy; nor in the nature of things was it possible
that there should be more; for what can be predicated concerning a body,
in its relation to a given space, but presence and absence?
[125] Burnet, ii. 105, App. 216; Strype, ii. 121, 208; Collier, etc. The
Calvinists certainly did not own a local presence in the elements. It is
the artifice of modern Romish writers, Dr. Milner, Mr. C. Butler, etc.,
to disguise the incompatibility of their tenets with those of the church
of England on this, as they do on all other topics of controversy, by
representing her as maintaining an actual, incomprehensible presence of
Christ's body in the consecrated elements; which was never meant to be
asserted in any authorised exposition of faith; though in the
seventeenth century it was held by many distinguished churchmen. See the
27th, 28th, and 29th articles of religion. An eminent living writer, who
would be as useful as he is agreeable, if he could bring himself to
write with less heat and haste, says, that at Elizabeth's accession,
among other changes, "the language of the article which affirmed a real
presence was so framed as to allow latitude of belief for those who were
persuaded of an exclusive one." Southey's _Book of the Church_, vol. ii.
p. 247. The real presence was not affirmed, but denied, in the original
draft; and as to what Mr. S. calls "an exclusive one" (that is,
transubstantiation, if the words have any meaning), it is positively
rejected in the amended article.
[126] It appears to have been common for the clergy, by licence from
their bishops, to retain concubines, who were, Collier says, for the
most part their wives. P. 262. But I do not clearly understand in what
the distinction could have consisted; for it seems unlikely that
marriages of priests were ever solemnised at so late a period; or if
they were, they were invalid.
[127] Stat. 2 and 3 Edw. VI. c. 21; 5 and 6 Edw. VI. c. 12; Burnet, 89.
[128] 2 Strype, 53. Latimer pressed the necessity of expelling these
temporising conformists.--"Out with them all! I require it in God's
behalf: make them _quondams_, all the pack of them." _Id._ 204; 2
Burnet, 143.
[129] Burnet, iii. 190, 196. "The use of the old religion," says Paget,
in remonstrating with Somerset on his rough treatment of some of the
gentry, and partiality to the commons, "is forbidden by a law, and the
use of the new is not yet printed in the stomachs of eleven out of
twelve parts of the realm, whatever countenance men make outwardly to
please them in whom they see the power resteth." Strype, ii. Appendix,
H.H. This seems rather to refer to the upper classes, than to the whole
people. But at any rate it was an exaggeration of the fact, the
protestants being certainly in a much greater proportion. Paget was the
adviser of the scheme of sending for German troops in 1549, which,
however, was in order to quell a seditious spirit in the nation, not by
any means wholly founded upon religious grounds. Strype, xi. 169.
[130] 2 Edward 6, c. 1; Strype, xi. 81.
[131] 37 H. 8, c. 2; 1 Edw. 6, c. 14; Strype, ii. 63; Burnet, etc.
Cranmer, as well as the catholic bishops, protested against this act,
well knowing how little regard would be paid to its intention. In the
latter part of the young king's reign, as he became more capable of
exerting his own power, he endowed, as is well known, several excellent
foundations.
[132] Strype, Burnet, Collier, _passim_; Harmer's _Specimens_, 100. Sir
Philip Hobby, our minister in Germany, writes to the Protector in 1548,
that the foreign protestants thought our bishops too rich, and advises
him to reduce them to a competent living; he particularly recommends his
taking away all the prebends in England. Strype, 88. These counsels, and
the acts which they prompted, disgust us, from the spirit of rapacity
they breathe. Yet it might be urged with some force that the enormous
wealth of the superior ecclesiastics had been the main cause of those
corruptions which it was sought to cast away, and that most of the
dignitaries were very averse to the new religion. Even Cranmer had
written some years before to Cromwell, deprecating the establishment of
any prebends out of the conventual estates, and speaking of the
collegiate clergy as an idle, ignorant, and gormandising race, who
might, without any harm, be extinguished along with the regulars.
Burnet, iii. 141. But the gross selfishness of the great men in Edward's
reign justly made him anxious to save what he could for a church that
seemed on the brink of absolute ruin. Collier mentions a characteristic
circumstance. So great a quantity of church plate had been stolen, that
a commission was appointed to enquire into the facts, and compel its
restitution. Instead of this, the commissioners found more left than
they thought sufficient, and seized the greater part to the king's use.
[133] They declared, in the famous protestation of Spire, which gave
them the name of Protestants, that their preachers having confuted the
mass by passages of Scripture, they could not permit their subjects to
go thither; since it would afford a bad example, to suffer two sorts of
service, directly opposite to each other, in their churches. Schmidt,
_Hist. des Allemands_, vi. 394, vii. 24.
[134] Stat. 2 and 3 Edw. 6, c. 1; Strype's _Cranmer_, p. 233.
[135] Burnet, 192. Somerset had always allowed her to exercise her
religion, though censured for this by Warwick, who died himself a
papist, but had pretended to fall in with the young king's prejudices.
Her ill treatment was subsequent to the protector's overthrow. It is to
be observed that, in her father's life, she had acknowledged his
supremacy, and the justice of her mother's divorce. 1 Strype, 285; 2
Burnet, 241; Lingard, vi. 326. It was of course by intimidation; but
that excuse might be made for others. Cranmer is said to have persuaded
Henry not to put her to death, which we must in charity hope she did not
know.
[136] When Joan Boucher was condemned, she said to her judges, "It was
not long ago since you burned Anne Askew for a piece of bread, and yet
came yourselves soon after to believe and profess the same doctrine for
which you burned her; and now you will needs burn me for a piece of
flesh, and in the end you will come to believe this also when you have
read the Scriptures and understand them." Strype, ii. 214.
[137] Gardiner had some virtues, and entertained sounder notions of the
civil constitution of England than his adversaries. In a letter to Sir
John Godsalve, giving his reasons for refusing compliance with the
injunctions issued by the council to the ecclesiastical visitors (which,
Burnet says, does him more honour than anything else in his life), he
dwells on the king's wanting power to command anything contrary to
common law, or to a statute, and brings authorities for this. Burnet,
ii. Append. 112. See also Lingard, vi. 387, for another instance. Nor
was this regard to the constitution displayed only when out of the
sunshine. For in the next reign he was against despotic counsels, of
which an instance has been given in the last chapter. His conduct,
indeed, with respect to the Spanish connection, is equivocal. He was
much against the marriage at first, and took credit to himself for the
securities exacted in the treaty with Philip, and established by
statute. Burnet, ii. 267. But afterwards, if we may trust Noailles, he
fell in with the Spanish party in the council, and even suggested to
parliament that the queen should have the same power as her father to
dispose of the succession by will. _Ambassades de Noailles_, iii. 153,
etc., etc. Yet according to Dr. Lingard, on the imperial ambassador's
authority, he saved Elizabeth's life against all the council. The
article GARDINER, in the _Biographia Britannica_, contains an elaborate
and partial apology, at great length; and the historian just quoted has
of course said all he could in favour of one who laboured so strenuously
for the extirpation of the northern heresy. But he was certainly not an
honest man, and had been active in Henry's reign against his real
opinions.
Even if the ill treatment of Gardiner and Bonner by Edward's council
could be excused (and the latter by his rudeness might deserve some
punishment), what can be said for the imprisonment of the bishops Heath
and Day, worthy and moderate men, who had gone a great way with the
reformation, but objected to the removal of altars, an innovation by no
means necessary, and which should have been deferred till the people had
grown ripe for further change? Mr. Southey says, "Gardiner and Bonner
were deprived of their sees and imprisoned: but _no rigour was used
towards them_." _Book of the Church_, ii. 111. Liberty and property
being trifles!
[138] The doctrines of the English church were set forth in 42 articles,
drawn up, as is generally believed, by Cranmer and Ridley, with the
advice of Bucer and Martyr, and perhaps of Cox. The three last of these,
condemning some novel opinions, were not renewed under Elizabeth, and a
few other variations were made; but upon the whole there is little
difference, and none perhaps in those tenets which have been most the
object of discussion. See the original Articles in Burnet, ii. App. N.
55. They were never confirmed by a convocation or a parliament, but
imposed by the king's supremacy on all the clergy, and on the
universities. His death however, ensued before they could be actually
subscribed.
[139] Strype's _Cranmer_, Appendix, p. 9. I am sorry to find a
respectable writer inclining to vindicate Cranmer in this protestation,
which Burnet admits to agree better with the maxims of the casuists than
with the prelate's sincerity: Todd's Introduction to _Cranmer's Defence
of the True Doctrine of the Sacrament_ (1825), p. 40. It is of no
importance to enquire, whether the protest were made publicly or
privately. Nothing can possibly turn upon this. It was, on either
supposition, unknown to the promisee, the pope at Rome. The question is,
whether, having obtained the bulls from Rome on an express stipulation
that he should take a certain oath, he had a right to offer a
limitation, not explanatory, but utterly inconsistent with it? We are
sure that Cranmer's views and intentions, which he very soon carried
into effect, were irreconcilable with any sort of obedience to the pope;
and if, under all the circumstances, his conduct was justifiable, there
would be an end of all promissory obligations whatever.
[140] The character of Cranmer is summed up in no unfair manner by Mr.
C. Butler, _Memoirs of English Catholics_, vol. i. p. 139; except that
his obtaining from Anne Boleyn an acknowledgment of her supposed
pre-contract of marriage, having proceeded from motives of humanity,
ought not to incur much censure, though the sentence of nullity was a
mere mockery of law.--Poor Cranmer was compelled to subscribe not less
than six recantations. Strype (iii. 232) had the integrity to publish
all these, which were not fully known before.
[141] Burnet, ii. 6.
[142] There are two curious entries in the Lords' Jour., 14th and 18th
of November 1549, which point out the origin of the new code of
ecclesiastical law mentioned in the next note: "Hodie questi sunt
episcopi, contemni se a plebe, audere autem nihil pro potestate 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 moerore audita est; et ut
quam citissimè huic malo subveniretur, injunctum est episcopis ut
formulam aliquam statuti hâc de re scriptam traderent: quæ si consilio
postea prælecta omnibus ordinibus probaretur, pro lege omnibus
sententiis sanciri posset.
"18 November. Hodie lecta est billa pro jurisdictione episcoporum et
aliorum ecclesiasticorum, quæ cum proceribus, _eo quod episcopi nimis
sibi arrogare viderentur_, 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.
[143] It had been enacted, 3 Edw. 6, c. 11, that thirty-two
commissioners, half clergy, half lay, should be appointed to draw up a
collection of new canons. But these, according to Strype, ii. 303
(though I do not find it in the act), might be reduced to eight, without
preserving the equality of orders; and of those nominated in November
1551, five were ecclesiastics, three laymen. The influence of the former
shows itself in the collection, published with the title of _Reformatio
Legum Ecclesiasticûm_, and intended as a complete code of protestant
canon law. This was referred for revisal to a new commission; but the
king's death ensued, and the business was never again taken up. Burnet,
ii. 197; Collier, 326. The Latin style is highly praised; Cheke and
Haddon, the most elegant scholars of that age, having been concerned in
it. This however is of small importance. The canons are founded on a
principle current among the clergy, that a rigorous discipline, enforced
by church censures and the aid of the civil power, is the best safeguard
of a christian commonwealth against vice. But it is easy to perceive
that its severity would never have been endured in this country, and
that this was the true reason why it was laid aside; not, according to
the improbable refinement with which Warburton has furnished Hurd,
because the old canon law was thought more favourable to the prerogative
of the Crown. Compare Warburton's _Letters to Hurd_, p. 192, with the
latter's _Moral and Political Dialogues_, p. 308, 4th edit.
The canons trench in several places on the known province of the common
law, by assigning specific penalties and forfeitures to offences, as in
the case of adultery; and though it is true that this was all subject to
the confirmation of parliament, yet the lawyers would look with their
usual jealousy on such provisions in ecclesiastical canons. But the
great sin of this protestant legislation is its extension of the name
and penalties of heresy to the wilful denial of any part of the
authorised articles of faith. This is clear from the first and second
titles. But it has been doubted whether capital punishments for this
offence were intended to be preserved. Burnet, always favourable to the
reformers, asserts that they were laid aside. Collier and Lingard, whose
bias is the other way, maintain the contrary. There is, it appears to
me, some difficulty in determining this. That all persons denying any
one of the articles might be turned over to the secular power is
evident. Yet it rather seems by one passage in the title, de judiciis
contra 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 _suffer death_ according to
law." The words to which he refers are these: Cum sic penitus insederit
error, et tam alte radices egerit, ut nec sententiâ quidem
excommunicationis ad veritatem reus inflecti possit, tum consumptis
omnibus aliis remediis, ad extremum ad civiles magistratus ablegetur
_puniendus_. _Id._ tit. c. 4.
It is generally best, where the words are at all ambiguous, to give the
reader the power of judging for himself. But I by no means pretend that
Dr. Lingard is mistaken. On the contrary, the language of this passage
leads to a strong suspicion that the rigour of popish persecution was
intended to remain, especially as the writ de 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."
Upon further consideration, I incline to suspect that the temporal
punishment of heresy was intended to be fixed by act of parliament; and
probably with various degrees, which will account for the indefinite
word "puniendus."
Before I quit these canons, one mistake of Dr. Lingard's may be
corrected. He says that divorces were allowed by them not only for
adultery, but cruelty, desertion, and _incompatibility of temper_. But
the contrary may be clearly shown, from tit. de matrimonio, c. 11, and
tit. de divortiis, c. 12. Divorce was allowed for something more than
incompatibility of temper; namely, _capitales inimicitiæ_, meaning, as I
conceive, attempts by one party on the other's life. In this respect,
their scheme of a very important branch of social law seems far better
than our own. Nothing can be more absurd than our modern _privilegia_,
our acts of parliament to break the bond between an adulteress and her
husband. Nor do I see how we can justify the denial of redress to women
in every case of adultery and desertion. It does not follow that the
marriage tie ought to be dissolved as easily as it is, at least by the
rich, in the Lutheran states of Germany.
[144] Strype, _passim_. Burnet, ii. 154; iii. Append. 200; Collier, 294,
303.
[145] Strype, Burnet. The former is more accurate.
[146] Burnet, 237, 246; 3 Strype, 10, 341. No part of England suffered
so much in the persecution.
[147] _Ambassades de Noailles_, v. ii. _passim_. 3 Strype, 100.
[148] Strype, iii. 107. He reckons the emigrants at 800. _Life of
Cranmer_, 314. Of these the most illustrious was the Duchess of Suffolk,
first cousin of the queen. In the parliament of 1555, a bill
sequestering the property of "the Duchess of Suffolk and others,
contemptuously gone over the seas," was rejected by the Commons on the
third reading. Journals, 6th December.
It must not be understood that all the aristocracy were supple
hypocrites, though they did not expose themselves voluntarily to
prosecution. Noailles tells us that the Earls of Oxford and
Westmoreland, and Lord Willoughby, were censured by the council _for
religion_; and it was thought that the former would lose his title (more
probably his hereditary office of chamberlain), which would be conferred
on the Earl of Pembroke, v. 319. Michele, the Venetian ambassador, in
his Relazione del Stato d'Inghilterra, Lansdowne MSS. 840, does not
speak favourably of the general affection towards popery. "The English
in general," he says, "would turn Jews or Turks if their sovereign
pleased; but the restoration of the abbey lands by the crown keeps alive
a constant fear among those who possess them."--Fol. 176. This
restitution of church lands in the hands of the Crown cost the queen
£60,000 a year of revenue.
[149] Parker had extravagantly reckoned the number of these at 12,000,
which Burnet reduces to 3000, vol. iii. 226. But upon this computation
they formed a very considerable body on the protestant side. Burnet's
calculation, however, is made by assuming the ejected ministers of the
diocese of Norwich to have been in the ratio of the whole; which, from
the eminent protestantism of that district, is not probable; and Dr.
Lingard, on Wharton's authority, who has taken his ratio from the
diocese of Canterbury, thinks they did not amount to more than about
1500.
[150] Burnet, ii. 298; iii. 245. But see Philips's _Life of Pole_, sect.
ix. _contra_; and Ridley's answer to this, p. 272. In fact, no scheme of
religion would on the whole have been so acceptable to the nation, as
that which Henry left established, consisting chiefly of what was called
catholic in doctrine, but free from the grosser abuses and from all
connection with the see of Rome. Arbitrary and capricious as that king
was, he carried the people along with him, as I believe, in all great
points, both as to what he renounced, and what he retained. Michele
(Relazione, etc.) is of this opinion.
[151] No one of our historians has been so severe on Mary's reign,
except on a religious account, as Carte, on the authority of the letters
of Noailles. Dr. Lingard, though with these before him, has softened and
suppressed, till this queen appears honest and even amiable. A man of
sense should be ashamed of such partiality to his sect. Admitting that
the French ambassador had a temptation to exaggerate the faults of a
government wholly devoted to Spain, it is manifest that Mary's reign was
inglorious, her capacity narrow, and her temper sanguinary; that,
although conscientious in some respects, she was as capable of
dissimulation as her sister, and of breach of faith as her husband; that
she obstinately and wilfully sacrificed her subjects' affections and
interests to a misplaced and discreditable attachment; and that the
words with which Carte has concluded the character of this unlamented
sovereign, though little pleasing to men of Dr. Lingard's profession,
are perfectly just: "Having reduced the nation to the brink of ruin, she
left it, by her seasonable decease, to be restored by her admirable
successor to its ancient prosperity and glory." I fully admit, at the
same time, that Dr. Lingard has proved Elizabeth to have been as
dangerous a prisoner, as she afterwards found the Queen of Scots.
[152] Strype, ii. 17; Burnet, iii. 263, and Append. 285, where there is
a letter from the king and queen to Bonner, as if even he wanted
excitement to prosecute heretics. The number who suffered death by fire
in this reign is reckoned by Fox at 284, by Speed at 277, and by Lord
Burghley at 290. Strype, iii. 473. These numbers come so near to each
other, that they may be presumed also to approach the truth. But Carte,
on the authority of one of Noailles's letters, thinks many more were put
to death than our martyrologists have discovered. And the prefacer to
Ridley's _Treatise de Coenâ Domini_, supposed to be Bishop Grindal, says
that 800 suffered in this manner for religion. Burnet, ii. 364. I
incline, however, to the lower statements.
[153] Burnet makes a very just observation on the cruelties of this
period, that "they raised that horror in the whole nation, that there
seems ever since that time such an abhorrence to that religion to be
derived down from father to son, that it is no wonder an aversion so
deeply rooted and raised upon such grounds, does upon every new
provocation or jealousy or returning to it break out in most violent and
convulsive symptoms."--P. 338. "Delicta majorum immeritus luis,
_Romane_." But those who would diminish this aversion, and prevent these
convulsive symptoms, will do better by avoiding for the future either
such panegyrics on Mary and her advisers, or such insidious extenuations
of her persecution as we have lately read, and which do not raise a
favourable impression of their sincerity in the principles of toleration
to which they profess to have been converted.
Noailles, who, though an enemy to Mary's government, must, as a
catholic, be reckoned an unsuspicious witness, remarkably confirms the
account given by Fox, and since by all our writers, of the death of
Rogers, the proto-martyr, and its effect on the people. "Ce jour d'huy a
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."--V. 173.
[154] Strype, iii. 285.
CHAPTER III
ON THE LAWS OF ELIZABETH'S REIGN RESPECTING THE ROMAN CATHOLICS
_Change of religion on the queen's accession._--The accession of
Elizabeth, gratifying to the whole nation on account of the late queen's
extreme unpopularity, infused peculiar joy into the hearts of all
well-wishers to the Reformation. Child of that famous marriage which had
severed the connection of England with the Roman see, and trained
betimes in the learned and reasoning discipline of protestant theology,
suspected and oppressed for that very reason by a sister's jealousy, and
scarcely preserved from the death which at one time threatened her,
there was every ground to be confident, that, notwithstanding her forced
compliance with the catholic rites during the late reign, her
inclinations had continued steadfast to the opposite side.[155] Nor was
she long in manifesting this disposition sufficiently to alarm one
party, though not entirely to satisfy the other. Her great prudence, and
that of her advisers, which taught her to move slowly, while the temper
of the nation was still uncertain, and her government still embarrassed
with a French war and a Spanish alliance, joined with a certain tendency
in her religious sentiments not so thoroughly protestant as had been
expected, produced some complaints of delay from the ardent reformers
just returned from exile. She directed Sir Edward Karn, her sister's
ambassador at Rome, to notify her accession to Paul IV. Several catholic
writers have laid stress on this circumstance as indicative of a desire
to remain in his communion; and have attributed her separation from it
to his arrogant reply, commanding her to lay down the title of royalty,
and to submit her pretentions to his decision. But she had begun to make
alterations, though not very essential, in the church service, before
the pope's behaviour could have become known to her; and the bishops
must have been well aware of the course she designed to pursue, when
they adopted the violent and impolitic resolution of refusing to
officiate at her coronation.[156] Her council was formed of a very few
catholics, of several pliant conformists with all changes, and of some
known friends to the protestant interest. But two of these, Cecil and
Bacon, were so much higher in her confidence, and so incomparably
superior in talents to the other counsellors, that it was evident which
way she must incline.[157] The parliament met about two months after her
accession. The creed of parliament from the time of Henry VIII. had been
always that of the court; whether it were that elections had constantly
been influenced, as we know was sometimes the case, or that men of
adverse principles, yielding to the torrent, had left the way clear to
the partisans of power. This first, like all subsequent parliaments, was
to the full as favourable to protestantism as the queen could desire:
the first fruits of benefices, and, what was far more important, the
supremacy in ecclesiastical affairs, were restored to the Crown; the
laws made concerning religion in Edward's time were re-enacted. These
acts did not pass without considerable opposition among the lords; nine
temporal peers, besides all the bishops, having protested against the
bill of uniformity establishing the Anglican liturgy, though some pains
had been taken to soften the passages most obnoxious to catholics.[158]
But the act restoring the royal supremacy met with less resistance;
whether it were that the system of Henry retained its hold over some
minds, or that it did not encroach, like the former, on the liberty of
conscience, or that men not over-scrupulous were satisfied with the
interpretation which the queen caused to be put upon the oath.
Several of the bishops had submitted to the Reformation under Edward VI.
But they had acted, in general, so conspicuous a part in the late
restoration of popery, that, even amidst so many examples of false
profession, shame restrained them from a second apostasy. Their number
happened not to exceed sixteen, one of whom was prevailed on to conform;
while the rest, refusing the oath of supremacy, were deprived of their
bishoprics by the court of ecclesiastical high commission. In the summer
of 1559, the queen appointed a general ecclesiastical visitation, to
compel the observance of the protestant formularies. It appears from
their reports that only about one hundred dignitaries, and eighty
parochial priests, resigned their benefices, or were deprived.[159] Men
eminent for their zeal in the protestant cause, and most of them exiles
during the persecution, occupied the vacant sees. And thus, before the
end of 1559, the English church, so long contended for as a prize by the
two religions, was lost for ever to that of Rome.
_Acts of supremacy and uniformity._--These two statutes, commonly
denominated the acts of supremacy and uniformity, form the basis of that
restrictive code of laws, deemed by some one of the fundamental
bulwarks, by others the reproach of our constitution, which pressed so
heavily for more than two centuries upon the adherents to the Romish
church. By the former all beneficed ecclesiastics, and all laymen
holding office under the Crown, were obliged to take the oath of
supremacy, renouncing the spiritual as well as temporal jurisdiction of
every foreign prince or prelate, on pain of forfeiting their office or
benefice; and it was rendered highly penal, and for the third offence
treasonable, to maintain such supremacy by writing or advised
speaking.[160] The latter statute trenched more on the natural rights
of conscience; prohibiting, under pain of forfeiting goods and chattels
for the first offence, of a year's imprisonment for the second, and of
imprisonment during life for the third, the use by a minister, whether
beneficed or not, of any but the established liturgy; and imposed a fine
of one shilling on all who should absent themselves from church on
Sundays and holidays.[161]
_Restraint of Roman catholic worship in the first years of
Elizabeth._--This act operated as an absolute interdiction of the
catholic rites, however privately celebrated. It has frequently been
asserted that the government connived at the domestic exercise of that
religion during these first years of Elizabeth's reign. This may
possibly have been the case with respect to some persons of very high
rank whom it was inexpedient to irritate. But we find instances of
severity towards catholics, even in that early period; and it is evident
that their solemn rites were only performed by stealth, and at much
hazard. Thus Sir Edward Waldgrave and his lady were sent to the Tower in
1561, for hearing mass and having a priest in their house. Many others
about the same time were punished for the like offence.[162] Two
bishops, one of whom, I regret to say, was Grindal, write to the council
in 1562, concerning a priest apprehended in a lady's house, that neither
he nor the servants would be sworn to answer to articles, saying they
would not accuse themselves; and, after a wise remark on this, that
"papistry is like to end in anabaptistry," proceed to hint, that "some
think that if this priest might be put to some kind of torment, and so
driven to confess what he knoweth, he might gain the queen's majesty a
good mass of money by the masses that he hath said; but this we refer to
your lordship's wisdom."[163] This commencement of persecution induced
many catholics to fly beyond sea, and gave rise to those reunions of
disaffected exiles, which never ceased to endanger the throne of
Elizabeth.
It cannot, as far as appears, be truly alleged that any greater
provocation had as yet been given by the catholics, than that of
pertinaciously continuing to believe and worship as their fathers had
done before them. I request those who may hesitate about this, to pay
some attention to the order of time, before they form their opinions.
The master mover, that became afterwards so busy, had not yet put his
wires into action. Every prudent man at Rome (and we shall not at least
deny that there were such) condemned the precipitate and insolent
behaviour of Paul IV. towards Elizabeth, as they did most other parts of
his administration. Pius IV., the successor of that injudicious old man,
aware of the inestimable importance of reconciliation, and suspecting
probably that the queen's turn of thinking did not exclude all hope of
it, despatched a nuncio to England, with an invitation to send
ambassadors to the council at Trent, and with powers, as is said, to
confirm the English liturgy, and to permit double communion; one of the
few concessions which the more indulgent Romanists of that age were not
very reluctant to make.[164] But Elizabeth had taken her line as to the
court of Rome; the nuncio received a message at Brussels, that he must
not enter the kingdom; and she was too wise to countenance the impartial
fathers of Trent, whose labours had nearly drawn to a close, and whose
decisions on the controverted points it had never been very difficult to
foretell. I have not found that Pius IV., more moderate than most other
pontiffs of the sixteenth century, took any measures hostile to the
temporal government of this realm; but the deprived ecclesiastics were
not unfairly anxious to keep alive the faith of their former hearers,
and to prevent them from sliding into conformity, through indifference
and disuse of their ancient rites.[165] The means taken were chiefly the
same as had been adopted against themselves, the dispersion of small
papers either in a serious or lively strain; but, the remarkable
position in which the queen was placed rendering her death a most
important contingency, the popish party made use of pretended
conjurations and prophecies of that event, in order to unsettle the
people's minds, and dispose them to anticipate another re-action.[166]
Partly through these political circumstances, but far more from the hard
usage they experienced for professing their religion, there seems to
have been an increasing restlessness among the catholics about 1562,
which was met with new rigour by the parliament of that year.[167]
_Statute of 1562._--The act entitled, "for the assurance of the queen's
royal power over all estates and subjects within her dominions," enacts,
with an iniquitous and sanguinary retrospect, that all persons, who had
ever taken holy orders or any degree in the universities, or had been
admitted to the practice of the laws, or held any office in their
execution, should be bound to take the oath of supremacy, when tendered
to them by a bishop, or by commissioners appointed under the great seal.
The penalty for the first refusal of this oath was that of a 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.[168]
_Speech of Lord Montague against it._--This harsh statute did not pass
without opposition. Two speeches against it have been preserved; one by
Lord Montagu in the House of Lords, the other by Mr. Atkinson in the
Commons, breathing such generous abhorrence of persecution as some
erroneously imagine to have been unknown to that age, because we rarely
meet with it in theological writings. "This law," said Lord Montagu, "is
not necessary; forasmuch as the catholics of this realm disturb not, nor
hinder the public affairs of the realms, neither spiritual nor temporal.
They dispute not, they preach not, they disobey not the queen; they
cause no trouble nor tumults among the people; so that no man can say
that thereby the realm doth receive any hurt or damage by them. They
have brought into the realm no novelties in doctrine and religion. This
being true and evident, as it is indeed, there is no necessity why any
new law should be made against them. And where there is no sore nor
grief, medicines are superfluous, and also hurtful and dangerous. I do
entreat," he says afterwards, "whether it be just to make this penal
statute to force the subjects of this realm to receive and believe the
religion of protestants on pain of death. This I say to be a thing most
unjust; for that it is repugnant to the natural liberty of men's
understanding. For understanding may be persuaded, but not forced." And
further on: "It is an easy thing to understand that a thing so unjust,
and so contrary to all reason and liberty of man, cannot be put in
execution but with great incommodity and difficulty. For what man is
there so without courage and stomach, or void of all honour, that can
consent or agree to receive an opinion and new religion by force and
compulsion; or will swear that he thinketh the contrary to what he
thinketh? To be still, or dissemble, may be borne and suffered for a
time--to keep his reckoning with God alone; but to be compelled to lie
and to swear, or else to die therefore, are things that no man ought to
suffer and endure. And it is to be feared rather than to die they will
seek how to defend themselves; whereby should ensue the contrary of what
every good prince and well advised commonwealth ought to seek and
pretend, that is, to keep their kingdom and government in peace."[169]
_Statute of 1562 not fully enforced._--I am never very willing to admit
as an apology for unjust or cruel enactments, that they are not designed
to be generally executed; a pretext often insidious, always insecure,
and tending to mask the approaches of arbitrary government. But it is
certain that Elizabeth did not wish this act to be enforced in its full
severity. And Archbishop Parker, by far the most prudent churchman of
the time, judging some of the bishops too little moderate in their
dealings with the papists, warned them privately to use great caution in
tendering the oath of supremacy according to the act, and never to do so
the second time, on which the penalty of treason might attach, without
his previous approbation.[170] The temper of some of his colleagues was
more narrow and vindictive. Several of the deprived prelates had been
detained in a sort of honourable custody in the palaces of their
successors.[171] Bonner, the most justly obnoxious of them all, was
confined in the Marshalsea. Upon the occasion of this new statute, Horn,
Bishop of Winchester, indignant at the impunity of such a man, proceeded
to tender him the oath of supremacy, with an evident intention of
driving him to high treason. Bonner, however, instead of evading this
attack, intrepidly denied the other to be a lawful bishop; and, strange
as it may seem, not only escaped all farther molestation, but had the
pleasure of seeing his adversaries reduced to pass an act of parliament,
declaring the present bishops to have been legally consecrated.[172]
This statute, and especially its preamble, might lead a hasty reader to
suspect that the celebrated story of an irregular consecration of the
first protestant bishops at the Nag's-head tavern was not wholly
undeserving of credit. That tale, however, has been satisfactorily
refuted: the only irregularity which gave rise to this statute consisted
in the use of an ordinal, which had not been legally re-established.[173]
_Application of the emperor in behalf of the English catholics._--It was
not long after the act imposing such heavy penalties on catholic priests
for refusing the oath of supremacy, that the Emperor Ferdinand addressed
two letters to Elizabeth, interceding for the adherents to that
religion, both with respect to those new severities to which they might
become liable by conscientiously declining that oath, and to the
prohibition of the free exercise of their rites. He suggested that it
might be reasonable to allow them the use of one church in every city.
And he concluded with an expression, which might possibly be designed to
intimate that his own conduct towards the protestants in his dominions
would be influenced by her concurrence in his request.[174] Such
considerations were not without great importance. The protestant
religion was gaining ground in Austria, where a large proportion of the
nobility as well as citizens had for some years earnestly claimed its
public toleration. Ferdinand, prudent and averse from bigoted counsels,
and for every reason solicitous to heal the wounds which religious
differences had made in the empire, while he was endeavouring, not
absolutely without hope of success, to obtain some concessions from the
pope, had shown a disposition to grant further indulgences to his
protestant subjects. His son, Maximilian, not only through his moderate
temper, but some real inclination towards the new doctrines, bade fair
to carry much farther the liberal policy of the reigning emperor.[175]
It was consulting very little the general interests of protestantism, to
disgust persons so capable and so well disposed to befriend it. But our
queen, although free from the fanatical spirit of persecution which
actuated part of her subjects, was too deeply imbued with arbitrary
principles to endure any public deviation from the mode of worship she
should prescribe. And it must perhaps be admitted that experience alone
could fully demonstrate the safety of toleration, and show the fallacy
of apprehensions that unprejudiced men might have entertained. In her
answer to Ferdinand, the queen declares that she cannot grant churches
to those who disagree from her religion, being against the laws of her
parliament, and highly dangerous to the state of her kingdom; as it
would sow various opinions in the nation to distract the minds of honest
men, and would cherish parties and factions that might disturb the
present tranquillity of the commonwealth. Yet enough had already
occurred in France to lead observing men to suspect that severities and
restrictions are by no means an infallible specific to prevent or subdue
religious factions.
Camden and many others have asserted that by systematic connivance the
Roman catholics enjoyed a pretty free use of their religion for the
first fourteen years of Elizabeth's reign. But this is not reconcilable
to many passages in Strype's collections. We find abundance of persons
harassed for recusancy, that is, for not attending the protestant
church, and driven to insincere promises of conformity. Others were
dragged before ecclesiastical commissions for harbouring priests, or for
sending money to those who had fled beyond sea.[176] Students of the
inns of court, where popery had a strong hold at this time, were
examined in the star-chamber as to their religion, and on not giving
satisfactory answers were committed to the Fleet.[177] The catholic
party were not always scrupulous about the usual artifices of an
oppressed people, meeting force by fraud, and concealing their heartfelt
wishes under the mask of ready submission, or even of zealous
attachment. A great majority both of clergy and laity yielded to the
times; and of these temporising conformists it cannot be doubted that
many lost by degrees all thought of returning to their ancient fold. But
others, while they complied with exterior ceremonies, retained in their
private devotions their accustomed mode of worship. It is an admitted
fact, that the catholics generally attended the church, till it came to
be reckoned a distinctive sign of their having renounced their own
religion. They persuaded themselves (and the English priests,
uninstructed and accustomed to a temporising conduct, did not discourage
the notion) that the private observance of their own rites would excuse
a formal obedience to the civil power.[178] The Romish scheme of
worship, though it attaches more importance to ceremonial rites, has one
remarkable difference from the protestant, that it is far less social;
and consequently the prevention of its open exercise has far less
tendency to weaken men's religious associations, so long as their
individual intercourse with a priest, its essential requisite, can be
preserved. Priests therefore travelled the country in various disguises,
to keep alive a flame which the practice of outward conformity was
calculated to extinguish. There was not a county throughout England,
says a catholic historian, where several of Mary's clergy did not
reside, and were commonly called the old priests. They served as
chaplains in private families.[179] By stealth, at the dead of night, in
private chambers, in the secret lurking-places of an ill-peopled
country, with all the mystery that subdues the imagination, with all the
mutual trust that invigorates constancy, these proscribed ecclesiastics
celebrated their solemn rites, more impressive in such concealment than
if surrounded by all their former splendour. The strong predilection
indeed of mankind for mystery, which has probably led many to tamper in
political conspiracies without much further motive, will suffice to
preserve secret associations, even where their purposes are far less
interesting than those of religion. Many of these itinerant priests
assumed the character of protestant preachers; and it has been said,
with some truth, though not probably without exaggeration, that, under
the directions of their crafty court, they fomented the division then
springing up, and mingled with the anabaptists and other sectaries, in
the hope both of exciting dislike to the establishment, and of
instilling their own tenets, slightly disguised, into the minds of
unwary enthusiasts.[180]
_Persecution of the catholics in the ensuing period._--It is my thorough
conviction that the persecution, for it can obtain no better name,[181]
carried on against the English catholics, however it might serve to
delude the government by producing an apparent conformity, could not but
excite a spirit of disloyalty in many adherents of that faith. Nor would
it be safe to assert that a more conciliating policy would have
altogether disarmed their hostility, much less laid at rest those busy
hopes of the future, which the peculiar circumstances of Elizabeth's
reign had a tendency to produce. This remarkable posture of affairs
affected all her civil, and still more her ecclesiastical policy. Her
own title to the crown depended absolutely on a parliamentary
recognition. The act of 35 H. 8, c. 1 had settled the crown upon her,
and thus far restrained the previous statute, 28 H. 8, c. 7, which had
empowered her father to regulate the succession at his pleasure. Besides
this legislative authority, his testament had bequeathed the kingdom to
Elizabeth after her sister Mary; and the common consent of the nation
had ratified her possession. But the Queen of Scots, niece of Henry by
Margaret, his elder sister, had a prior right to the throne during
Elizabeth's reign, in the eyes of such catholics as preferred an
hereditary to a parliamentary title, and was reckoned by the far greater
part of the nation its presumptive heir after her decease. There could
indeed be no question of this, had the succession been left to its
natural course. But Henry had exercised the power with which his
parliament, in too servile a spirit, yet in the plenitude of its
sovereign authority, had invested him, by settling the succession in
remainder upon the house of Suffolk, descendants of his second sister
Mary, to whom he postponed the elder line of Scotland. Mary left two
daughters, Frances and Eleanor. The former became wife of Grey, Marquis
of Dorset, created Duke of Suffolk by Edward; and had three
daughters--Jane, whose fate is well known, Catherine, and Mary. Eleanor
Brandon, by her union with the Earl of Cumberland, had a daughter, who
married the Earl of Derby. At the beginning of Elizabeth's reign, or
rather after the death of the Duchess of Suffolk, Lady Catherine Grey
was by statute law the presumptive heiress of the crown; but according
to the rules of hereditary descent, which the bulk of mankind do not
readily permit an arbitrary and capricious enactment to disturb, Mary
Queen of Scots, granddaughter of Margaret, was the indisputable
representative of her royal progenitors, and the next in succession to
Elizabeth.
_Elizabeth's unwillingness to decide the succession, or to marry._--This
reversion, indeed, after a youthful princess, might well appear rather
an improbable contingency. It was to be expected that a fertile marriage
would defeat all speculations about her inheritance; nor had Elizabeth
been many weeks on the throne, before this began to occupy her subjects'
minds.[182] Among several who were named, two very soon became the
prominent candidates for her favour, the Archduke Charles, son of the
Emperor Ferdinand, and Lord Robert Dudley, sometime after created Earl
of Leicester; one recommended by his dignity and alliances, the other by
her own evident partiality. She gave at the outset so little
encouragement to the former proposal, that Leicester's ambition did not
appear extravagant.[183] But her ablest counsellors who knew his vices,
and her greatest peers who thought his nobility recent and ill acquired,
deprecated so unworthy a connection.[184] Few will pretend to explore
the labyrinths of Elizabeth's heart; yet we may almost conclude that her
passion for this favourite kept up a struggle against her wisdom for the
first seven or eight years of her reign. Meantime she still continued
unmarried; and those expressions she had so early used, of her
resolution to live and die a virgin, began to appear less like coy
affectation than at first. Never had a sovereign's marriage been more
desirable for a kingdom. Cecil, aware how important it was that the
queen should marry, but dreading her union with Leicester, contrived,
about the end of 1564, to renew the treaty with the Archduke
Charles.[185] During this negotiation, which lasted from two to three
years, she showed not a little of that evasive and dissembling coquetry
which was to be more fully displayed on subsequent occasions.[186]
Leicester deemed himself so much interested as to quarrel with those who
manifested any zeal for the Austrian marriage; but his mistress
gradually overcame her misplaced inclinations; and from the time when
that connection was broken off, his prospects of becoming her husband
seem rapidly to have vanished away. The pretext made for relinquishing
this treaty with the archduke was Elizabeth's constant refusal to
tolerate the exercise of his religion; a difficulty which, whether real
or ostensible, recurred in all her subsequent negotiations of a similar
nature.[187]
In every parliament of Elizabeth the House of Commons was zealously
attached to the protestant interest. This, as well as an apprehension of
disturbance from a contested succession, led to those importunate
solicitations that she would choose a husband, which she so artfully
evaded. A determination so contrary to her apparent interest, and to the
earnest desire of her people, may give some countenance to the surmises
of the time, that she was restrained from marriage by a secret
consciousness that it was unlikely to be fruitful.[188] Whether these
conjectures were well founded, of which I know no evidence, or whether
the risk of experiencing that ingratitude which the husbands of
sovereign princesses have often displayed, and of which one glaring
example was immediately before her eyes, outweighed in her judgment that
of remaining single, or whether she might not even apprehend a more
desperate combination of the catholic party at home and abroad, if the
birth of any issue from her should shut out their hopes of Mary's
succession, it is difficult for us to decide.
Though the queen's marriage were the primary object of these addresses,
as the most probable means of securing an undisputed heir to the crown,
yet she might have satisfied the parliament in some degree by limiting
the succession to one certain line. But it seems doubtful whether this
would have answered the proposed end. If she had taken a firm resolution
against matrimony, which, unless on the supposition already hinted,
could hardly be reconciled with a sincere regard for her people's
welfare, it might be less dangerous to leave the course of events to
regulate her inheritance. Though all parties seem to have conspired in
pressing her to some decisive settlement on this subject, it would not
have been easy to content the two factions, who looked for a successor
to very different quarters.[189] It is evident that any confirmation of
the Suffolk title would have been regarded by the Queen of Scots and her
numerous partisans as a flagrant injustice, to which they would not
submit but by compulsion: and on the other hand, by re-establishing the
hereditary line, Elizabeth would have lost her check on one whom she had
reason to consider as a rival and competitor, and whose influence was
already alarmingly extensive among her subjects.
_Imprisonment of Lady Catherine Grey._--She had, however, in one of the
first years of her reign, without any better motive than her own jealous
and malignant humour, taken a step not only harsh and arbitrary, but
very little consonant to policy, which had almost put it out of her
power to defeat the Queen of Scots' succession. Lady Catherine Grey, who
has been already mentioned as next in remainder of the house of Suffolk,
proved with child by a private marriage, as they both alleged, with the
Earl of Hertford. The queen, always envious of the happiness of lovers,
and jealous of all who could entertain any hopes of the succession,
threw them both into the Tower. By connivance of their keepers, the lady
bore a second child during this imprisonment. Upon this Elizabeth caused
an enquiry to be instituted before a commission of privy counsellors and
civilians; wherein, the parties being unable to adduce proof of their
marriage, Archbishop Parker pronounced that their cohabitation was
illegal, and that they should be censured for fornication. He was to be
pitied if the law obliged him to utter so harsh a sentence, or to be
blamed if it did not. Even had the marriage never been solemnised, it
was impossible to doubt the existence of a contract, which both were
still desirous to perform. But there is reason to believe that there had
been an actual marriage, though so hasty and clandestine that they had
not taken precautions to secure evidence of it. The injured lady sunk
under this hardship and indignity;[190] but the legitimacy of her
children was acknowledged by general consent, and, in a distant age, by
a legislative declaration. These proceedings excited much
dissatisfaction; generous minds revolted from their severity, and many
lamented to see the reformed branch of the royal stock thus bruised by
the queen's unkind and impolitic jealousy.[191] Hales, clerk of the
hanaper, a zealous protestant, having written in favour of Lady
Catherine's marriage, and of her title to the succession, was sent to
the Tower.[192] The lord keeper Bacon himself, a known friend to the
house of Suffolk, being suspected of having prompted Hales to write this
treatise, lost much of his mistress's favour. Even Cecil, though he had
taken a share in prosecuting Lady Catherine, perhaps in some degree from
an apprehension that the queen might remember he had once joined in
proclaiming her sister Jane, did not always escape the same
suspicion;[193] and it is probable that he felt the imprudence of
entirely discountenancing a party from which the queen and religion had
nothing to dread. There is reason to believe that the house of Suffolk
was favoured in parliament; the address of the Commons in 1563,
imploring the queen to settle the succession, contains several
indications of a spirit unfriendly to the Scottish line;[194] and a
speech is extant, said to have been made as late as 1571, expressly
vindicating the rival pretension.[195] If indeed we consider with
attention the statute of 13 Eliz. c. 1, which renders it treasonable to
deny that the sovereigns of this kingdom, with consent of parliament,
might alter the line of succession, it will appear little short of a
confirmation of that title, which the descendants of Mary Brandon
derived from a parliamentary settlement. But the doubtful birth of Lord
Beauchamp and his brother, with an ignoble marriage, which Frances, the
younger sister of Lady Catherine Grey, had thought it prudent to
contract, deprived this party of all political consequence much sooner,
as I conceive, than the wisest of Elizabeth's advisers could have
desired; and gave rise to various other pretensions, which failed not to
occupy speculative or intriguing tempers throughout this reign.
_Mary, Queen of Scotland._--We may well avoid the tedious and intricate
paths of Scottish history, where each fact must be sustained by a
controversial discussion. Every one will recollect, that Mary Stuart's
retention of the arms and style of England gave the first, and, as it
proved, inexpiable provocation to Elizabeth. It is indeed true, that she
was queen consort of France, a state lately at war with England, and
that if the sovereigns of the latter country, even in peace, would
persist in claiming the French throne, they could hardly complain of
this retaliation. But, although it might be difficult to find a
diplomatic answer to this, yet every one was sensible of an important
difference between a title retained through vanity, and expressive of
pretensions long since abandoned, from one that several foreign powers
were prepared to recognise, and a great part of the nation might perhaps
only want opportunity to support.[196] If, however, after the death of
Francis II. had set the Queen of Scots free from all adverse
connections, she had with more readiness and apparent sincerity
renounced a pretension which could not be made compatible with
Elizabeth's friendship, she might perhaps have escaped some of the
consequences of that powerful neighbour's jealousy. But, whether it were
that female weakness restrained her from unequivocally abandoning claims
which she deemed well founded, and which future events might enable her
to realise even in Elizabeth's lifetime, or whether she fancied that to
drop the arms of England from her scutcheon would look like a
dereliction of her right of succession, no satisfaction was fairly given
on this point to the English court. Elizabeth took a far more effective
revenge, by intriguing with all the malecontents of Scotland. But while
she was endeavouring to render Mary's throne uncomfortable and
insecure, she did not employ that influence against her in England,
which lay more fairly in her power. She certainly was not unfavourable
to the Queen of Scots' succession, however she might decline compliance
with importunate and injudicious solicitations to declare it. She threw
both Hales and one Thornton into prison for writing against that title.
And when Mary's secretary, Lethington, urged that Henry's testament,
which alone stood in their way, should be examined, alleging that it had
not been signed by the king, she paid no attention to this imprudent
request.[197]
The circumstances wherein Mary found herself placed on her arrival in
Scotland were sufficiently embarrassing to divert her attention from any
regular scheme against Elizabeth, though she may sometimes have indulged
visionary hopes; nor it is probable that with the most circumspect
management she could so far have mitigated the rancour of some or
checked the ambition of others, as to find leisure for hostile
intrigues. But her imprudent marriage with Darnley, and the far greater
errors of her subsequent behaviour, by lowering both her resources and
reputation as far as possible, seemed to be pledges of perfect security
from that quarter. Yet it was precisely when Mary was become most feeble
and helpless, that Elizabeth's apprehensions grew most serious and well
founded.
At the time when Mary, escaped from captivity, threw herself on the
protection of a related, though rival queen, three courses lay open to
Elizabeth, and were discussed in her councils. To restore her by force
of arms, or rather by a mediation which would certainly have been
effectual, to the throne which she had compulsorily abdicated, was the
most generous, and would probably have turned out the most judicious
proceeding. Reigning thus with tarnished honour and diminished power,
she must have continually depended on the support of England, and become
little better than a vassal of its sovereign. Still it might be objected
by many, that the queen's honour was concerned not to maintain too
decidedly the cause of one accused by common fame, and even by evidence
that had already been made public, of adultery and the assassination of
her husband. To have permitted her retreat into France would have shown
an impartial neutrality; and probably that court was too much occupied
at home to have afforded her any material assistance. Yet this appeared
rather dangerous; and policy was supposed, as frequently happens, to
indicate a measure absolutely repugnant to justice, that of detaining
her in perpetual custody.[198] Whether this policy had no other fault
than its want of justice, may reasonably be called in question.
_Combination in favour of Mary._--The queen's determination neither to
marry nor limit the succession had inevitably turned every one's
thoughts towards the contingency of her death. She was young indeed; but
had been dangerously ill, once in 1562,[199] and again in 1568. Of all
possible competitors for the throne, Mary was incomparably the most
powerful, both among the nobility and the people. Besides the undivided
attachment of all who retained any longings for the ancient religion,
and many such were to be found at Elizabeth's court and chapel, she had
the stronghold of hereditary right, and the general sentiment that
revolts from acknowledging the omnipotency of a servile parliament.
Cecil, whom no one could suspect of partiality towards her, admits in a
remarkable minute on the state of the kingdom, in 1569, that "the Queen
of Scots' strength standeth by the universal opinion of the world for
the justice of her title, as coming of the ancient line."[200] This was
no doubt in some degree counteracted by a sense of the danger which her
accession would occasion to the protestant church, and which, far more
than its parliamentary title, kept up a sort of party for the house of
Suffolk. The crimes imputed to her did not immediately gain credit among
the people; and some of higher rank were too experienced politicians to
turn aside for such considerations. She had always preserved her
connections among the English nobility, of whom many were catholics,
and others adverse to Cecil, by whose counsels the queen had been
principally directed in all her conduct with regard to Scotland and its
sovereign.[201] After the unfinished process of enquiry to which Mary
submitted at York and Hampton Court, when the charge of participation in
Darnley's murder had been substantiated by evidence at least that she
did not disprove, and the whole course of which proceedings created a
very unfavourable impression both in England and on the continent, no
time was to be lost by those who considered her as the object of their
dearest hopes. She was in the kingdom; she might, by a bold rescue, be
placed at their head; every hour's delay increased the danger of her
being delivered up to the rebel Scots; and doubtless some eager
protestants had already begun to demand her exclusion by an absolute
decision of the legislature.
Elizabeth must have laid her account, if not with the disaffection of
the catholic party, yet at least with their attachment to the Queen of
Scots. But the extensive combination that appeared, in 1569, to bring
about by force the Duke of Norfolk's marriage with that princess, might
well startle her cabinet. In this combination Westmoreland and
Northumberland, avowed catholics, Pembroke and Arundel, suspected ones,
were mingled with Sussex and even Leicester, unquestioned protestants.
The Duke of Norfolk himself, greater and richer than any English
subject, had gone such lengths in this conspiracy that his life became
the just forfeit of his guilt and folly. It is almost impossible to pity
this unhappy man, who lured by the most criminal ambition, after
proclaiming the Queen of Scots a notorious adulteress and murderer,
would have compassed a union with her at the hazard of his sovereign's
crown, of the tranquillity and even independence of his country, and of
the reformed religion.[202] There is abundant proof of his intrigues
with the Duke of Alva, who had engaged to invade the kingdom. His trial
was not indeed conducted in a manner that we can approve (such was the
nature of state proceedings in that age), nor can it, I think, be denied
that it formed a precedent of constructive treason not easily
reconcilable with the statute; but much evidence is extant that his
prosecutors did not adduce; and no one fell by a sentence more amply
merited, or the execution of which was more indispensable.[203]
_Bull of Pius V._--Norfolk was the dupe throughout all this intrigue of
more artful men; first of Murray and Lethington, who had filled his mind
with ambitious hopes, and afterwards of Italian agents employed by Pius
V. to procure a combination of the catholic party. Collateral to
Norfolk's conspiracy, but doubtless connected with it, was that of the
northern Earls of Northumberland and Westmoreland, long prepared, and
perfectly foreseen by the government, of which the ostensible and
manifest aim was the re-establishment of popery.[204] Pius V., who took
a far more active part than his predecessor in English affairs, and had
secretly instigated this insurrection, now published his celebrated
bull, excommunicating and deposing Elizabeth, in order to second the
efforts of her rebellious subjects.[205] This is, perhaps, with the
exception of that issued by Sixtus V. against Mary IV. of France, the
latest blast of that trumpet, which had thrilled the hearts of monarchs.
Yet there was nothing in the sound that bespoke declining vigour; even
the illegitimacy of Elizabeth's birth is scarcely alluded to; and the
pope seems to have chosen rather to tread the path of his predecessors,
and absolve her subjects from their allegiance, as the just and
necessary punishment of her heresy.
Since nothing so much strengthens any government as an unsuccessful
endeavour to subvert it, it may be thought that the complete failure of
the rebellion under the Earls of Northumberland and Westmoreland, with
the detection and punishment of the Duke of Norfolk, rendered
Elizabeth's throne more secure. But those events revealed the number of
her enemies, or at least of those in whom no confidence could be
reposed. The rebellion, though provided against by the ministry, and
headed by two peers of great family but no personal weight, had not only
assumed for a time a most formidable aspect in the north, but caused
many to waver in other parts of the kingdom.[206] Even in Norfolk, an
eminently protestant county, there was a slight insurrection in 1570,
out of attachment to the duke.[207] If her greatest subject could thus
be led astray from his faith and loyalty, if others not less near to her
councils could unite with him in measures so contrary to her wishes and
interests, on whom was she firmly to rely? Who, especially, could be
trusted, were she to be snatched away from the world, for the
maintenance of the protestant establishment under a yet unknown
successor? This was the manifest and principal danger that her
counsellors had to dread. Her own great reputation, and the respectful
attachment of her people, might give reason to hope that no machinations
would be successful against her crown; but let us reflect in what
situation the kingdom would have been left by her death in a sudden
illness, such as she had more than once experienced in earlier years,
and again in 1571. "You must think," Lord Burleigh writes to Walsingham,
on that occasion, "such a matter would drive me to the end of my wits."
And Sir Thomas Smith expresses his fears in equally strong
language.[208] Such statesmen do not entertain apprehensions lightly.
Whom, in truth, could her privy council, on such an event, have resolved
to proclaim? The house of Suffolk, had its right been more generally
recognised than it was (Lady Catherine being now dead), presented no
undoubted heir. The young King of Scotland, an alien and an infant,
could only have reigned through a regency; and it might have been
difficult to have selected from the English nobility a fit person to
undertake that office, or at least one in whose elevation the rest
would have acquiesced. It appears most probable that the numerous and
powerful faction who had promoted Norfolk's union with Mary would have
contrived again to remove her from her prison to the throne. Of such a
revolution the disgrace of Cecil and of Elizabeth's wisest ministers
must have been the immediate consequence; and it is probable that the
restoration of the catholic worship would have ensued. These
apprehensions prompted Cecil, Walsingham, and Smith to press the queen's
marriage with the Duke of Anjou far more earnestly than would otherwise
have appeared consistent with her interests. A union with any member of
that perfidious court was repugnant to genuine protestant sentiments.
But the queen's absolute want of foreign alliances, and the secret
hostility both of France and Spain, impressed Cecil with that deep sense
of the perils of the time which his private letters so strongly bespeak.
A treaty was believed to have been concluded in 1567, to which the two
last-mentioned powers, with the Emperor Maximilian and some other
catholic princes, were parties, for the extirpation of the protestant
religion.[209] No alliance that the court of Charles IX. could have
formed with Elizabeth was likely to have diverted it from pursuing this
object; and it may have been fortunate that her own insincerity saved
her from being the dupe of those who practised it so well. Walsingham
himself, sagacious as he was, fell into the snares of that den of
treachery, giving credit to the young king's assurances almost on the
very eve of St. Bartholomew.[210]
_Statutes for the queen's security._--The bull of Pius V., far more
injurious in its consequences to those it was designed to serve than to
Elizabeth, forms a leading epoch in the history of our English
catholics. It rested upon a principle never universally acknowledged,
and regarded with much jealousy by temporal governments, yet maintained
in all countries by many whose zeal and ability rendered them
formidable--the right vested in the supreme pontiff to depose kings for
heinous crimes against the church. One Felton affixed this bull to the
gates of the Bishop of London's palace, and suffered death for the
offence. So audacious a manifestation of disloyalty was imputed with
little justice to the catholics at large, but might more reasonably lie
at the door of those active instruments of Rome, the English refugee
priests and jesuits dispersed over Flanders and lately established at
Douay, who were continually passing into the kingdom, not only to keep
alive the precarious faith of the laity, but, as was generally surmised,
to excite them against their sovereign.[211] This produced the act of 13
Eliz. c. 2; which, after reciting these mischiefs, enacts that all
persons publishing any bull from Rome, or absolving and reconciling any
one to the Romish church, or being so reconciled, should incur the
penalties of high treason; and such as brought into the realm any
crosses, pictures, or superstitious things consecrated by the pope or
under his authority, should be liable to a premunire. Those who should
conceal or connive at the offenders were to be held guilty of misprision
of treason. This statute exposed the catholic priesthood, and in great
measure the laity, to the continual risk of martyrdom; for so many had
fallen away from their faith through a pliant spirit of conformity with
the times, that the regular discipline would exact their absolution and
reconciliation before they could be reinstated in the church's
communion. Another act of the same session, manifestly levelled against
the partisans of Mary, and even against herself, makes it high treason
to affirm that the queen ought not to enjoy the crown, but some other
person; or to publish that she is a heretic, schismatic, tyrant,
infidel, or usurper of the crown; or to claim right to the crown, or to
usurp the same during the queen's life; or to affirm that the laws and
statutes do not bind the right of the crown, and the descent,
limitation, inheritance, or governance thereof. And whosoever should
during the queen's life, by any book or work written or printed,
expressly affirm, before the same had been established by parliament,
that any one particular person was or ought to be heir and successor to
the queen, except the same be the natural issue of her body, or should
print or utter any such book or writing, was for the first offence to be
imprisoned a year, and to forfeit half his goods; and for the second to
incur the penalties of a premunire.[212]
It is impossible to misunderstand the chief aim of this statute. But the
House of Commons, in which the zealous protestants, or, as they were now
rather denominated, puritans, had a predominant influence, were not
content with these demonstrations against the unfortunate captive. Fear,
as often happens, excited a sanguinary spirit amongst them; they
addressed the queen upon what they called the great cause, that is, the
business of the Queen of Scots, presenting by their committee reasons
gathered out of the civil law to prove that "it standeth not only with
justice, but also with the queen's majesty's honour and safety, to
proceed criminally against the pretended Scottish queen."[213]
Elizabeth, who could not really dislike these symptoms of hatred towards
her rival, took the opportunity of simulating more humanity than the
Commons; and when they sent a bill to the upper house attainting Mary of
treason, checked its course by proroguing the parliament. Her
backwardness to concur in any measures for securing the kingdom, as far
as in her lay, from those calamities which her decease might occasion,
could not but displease Lord Burleigh. "All that we laboured for," he
writes to Walsingham in 1572, "and had with full consent brought to
fashion, I mean a law to make the Scottish queen unable and unworthy of
succession to the crown, was by her majesty neither assented to nor
rejected, but deferred." Some of those about her, he hints, made herself
her own enemy by persuading her not to countenance these proceedings in
parliament.[214] I do not think it admits of much question that, at this
juncture, the civil and religious institutions of England would have
been rendered more secure by Mary's exclusion from a throne, which
indeed, after all that had occurred, she could not be endured to fill
without national dishonour. But the violent measures suggested against
her life were hardly, under all the circumstances of her case, to be
reconciled with justice; even admitting her privity to the northern
rebellion and to the projected invasion by the Duke of Alva. These
however were not approved merely by an eager party in the Commons:
Archbishop Parker does not scruple to write about her to Cecil--"If that
only [one] desperate person were taken away, as by justice soon it might
be, the queen's majesty's good subjects would be in better hope, and the
papists' daily expectation vanquished."[215] And Walsingham, during his
embassy at Paris, desires that "the queen should see how much they (the
papists) built upon the possibility of that dangerous woman's coming to
the crown of England, whose life was a step to her majesty's death;"
adding that "she was bound for her own safety and that of her subjects,
to add to God's providence her own policy, so far as might stand with
justice."[216]
_Catholics more rigorously treated._--We cannot wonder to read that
these new statutes increased the dissatisfaction of the Roman catholics,
who perceived a systematic determination to extirpate their religion.
Governments ought always to remember that the intimidation of a few
disaffected persons is dearly bought by alienating any large portion of
the community.[217] Many retired to foreign countries, and receiving for
their maintenance pensions from the court of Spain, became unhappy
instruments of its ambitious enterprises. Those who remained at home
could hardly think their oppression much mitigated by the precarious
indulgences which Elizabeth's caprice, or rather the fluctuation of
different parties in her councils, sometimes extended to them. The queen
indeed, so far as we can penetrate her dissimulation, seems to have been
really averse to extreme rigour against her catholic subjects: and her
greatest minister, as we shall more fully see afterwards, was at this
time in the same sentiments. But such of her advisers as leaned towards
the puritan faction, and too many of the Anglican clergy, whether
puritan or not, thought no measure of charity or compassion should be
extended to them. With the divines they were idolaters; with the council
they were a dangerous and disaffected party; with the judges they were
refractory transgressors of statutes; on every side they were obnoxious
and oppressed. A few aged men having been set at liberty, Sampson, the
famous puritan, himself a sufferer for conscience sake, wrote a letter
of remonstrance to Lord Burleigh. He urged in this that they should be
compelled to hear sermons, though he would not at first oblige them to
communicate.[218] A bill having been introduced in the session of 1571
imposing a penalty for not receiving the communion, it was objected that
consciences ought not to be forced. But Mr. Strickland entirely denied
this principle, and quoted authorities against it.[219] Even Parker, by
no means tainted with puritan bigotry, and who had been reckoned
moderate in his proceedings towards catholics, complained of what he
called "a Machiavel government;" that is, of the queen's lenity in not
absolutely rooting them out.[220]
This indulgence, however, shown by Elizabeth, the topic of reproach in
those times, and sometimes of boast in our own, never extended to any
positive toleration, nor even to any general connivance at the Romish
worship in its most private exercise. She published a declaration in
1570, that she did not intend to sift men's consciences, provided they
observed her laws by coming to church; which, as she well knew, the
greater part deemed inconsistent with their integrity.[221] Nor did the
government always abstain from an inquisition into men's private
thoughts. The inns of court were more than once purified of popery by
examining their members on articles of faith. Gentlemen of good families
in the country were harassed in the same manner.[222] One Sir Richard
Shelley, who had long acted as a sort of spy for Cecil on the continent,
and given much useful information, requested only leave to enjoy his
religion without hindrance; but the queen did not accede to this without
much reluctance and delay.[223] She had indeed assigned no other
ostensible pretext for breaking off her own treaty of marriage with the
Archduke Charles, and subsequently with the Dukes of Anjou and 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."[224] But this is one of many
instances, the events of every day, forgotten on the morrow, and of
which no general historian takes account. Nothing but the minute and
patient diligence of such a compiler as Strype, who thinks no fact below
his regard, could have preserved them from oblivion.[225]
It will not surprise those who have observed the effect of all
persecution for matters of opinion upon the human mind, that during this
period the Romish party continued such in numbers and in zeal as to give
the most lively alarm to Elizabeth's administration. One cause of this
was beyond doubt the connivance of justices of the peace, a great many
of whom were secretly attached to the same interest, though it was not
easy to exclude them from the commission, on account of their wealth and
respectability.[226] The facility with which catholic rites can be
performed in secret, as before observed, was a still more important
circumstance. Nor did the voluntary exiles established in Flanders remit
their diligence in filling the kingdom with emissaries. The object of
many at least among them, it cannot for a moment be doubted, from the
æra of the bull of Pius V., if not earlier, was nothing less than to
subvert the queen's throne. They were closely united with the court of
Spain, which had passed from the character of an ally and pretended
friend, to that of a cold and jealous neighbour, and at length of an
implacable adversary. Though no war had been declared between Elizabeth
and Philip, neither party had scrupled to enter into leagues with the
disaffected subjects of the other. Such sworn vassals of Rome and Spain
as an Allen or a Persons, were just objects of the English government's
distrust: it is the extension of that jealousy to the peaceful and loyal
which we stigmatise as oppressive, and even as impolitic.[227]
_Fresh laws against the catholic worship._--In concert with the
directing powers of the Vatican and Escurial, the refugees redoubled
their exertions about the year 1580. Mary was now wearing out her years
in hopeless captivity; her son, though they did not lose hope of him,
had received a strictly protestant education; while a new generation had
grown up in England, rather inclined to diverge more widely from the
ancient religion than to suffer its restoration. Such were they who
formed the House of Commons that met in 1581, discontented with the
severities used against the puritans, but ready to go beyond any
measures that the court might propose to subdue and extirpate popery.
Here an act was passed, which, after repeating the former provisions
that had made it high treason to reconcile any of her majesty's
subjects, or to be reconciled to the church of Rome, imposes a penalty
of £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.[228] These grievous penalties on recusancy, as the wilful
absence of catholics from church came now to be denominated, were
doubtless founded on the extreme difficulty of proving an actual
celebration of their own rites. But they established a persecution which
fell not at all short in principle of that for which the inquisition had
become so odious. Nor were the statutes merely designed for terror's
sake, to keep a check over the disaffected, as some would pretend. They
were executed in the most sweeping and indiscriminating manner, unless
perhaps a few families of high rank might enjoy a connivance.[229]
_Execution of Campian and others._--It had certainly been the desire of
Elizabeth to abstain from capital punishments on the score of religion.
The first instance of a priest suffering death by her statutes was in
1577, when one Mayne was hanged at Launceston, without any charge
against him except his religion, and a gentleman who had harboured him
was sentenced to imprisonment for life.[230] In the next year, if we may
trust the zealous catholic writers, Thomas Sherwood, a boy of fourteen
years, was executed for refusing to deny the temporal power of the pope,
when urged by his judges.[231] But in 1581 several seminary priests from
Flanders having been arrested, whose projects were supposed (perhaps not
wholly without foundation) to be very inconsistent with their
allegiance, it was unhappily deemed necessary to hold out some more
conspicuous examples of rigour. Of those brought to trial the most
eminent was Campian, formerly a protestant, but long known as the boast
of Douay for his learning and virtues.[232] This man, so justly
respected, was put to the rack, and revealed through torture the names
of some catholic gentlemen with whom he had conversed.[233] He appears
to have been indicted along with several other priests, not on the
recent statutes, but on that of 25 Edw. III. for compassing and
imagining the queen's death. Nothing that I have read affords the
slightest proof of Campian's concern in treasonable practices, though
his connections, and profession as a jesuit, render it by no means
unlikely. If we may confide in the published trial, the prosecution was
as unfairly conducted, and supported by as slender evidence, as any
perhaps which can be found in our books.[234] But as this account,
wherein Campian's language is full of a dignified eloquence, rather
seems to have been compiled by a partial hand, its faithfulness may not
be above suspicion. For the same reason I hesitate to admit his alleged
declarations at the place of execution, where, as well as at his trial,
he is represented to have expressly acknowledged Elizabeth, and to have
prayed for her as his queen _de facto_ and _de jure_. For this was one
of the questions propounded to him before his trial, which he refused to
answer, in such a manner as betrayed his way of thinking. Most of those
interrogated at the same time, on being pressed whether the queen was
their lawful sovereign whom they were bound to obey, notwithstanding any
sentence of deprivation that the pope might pronounce, endeavoured, like
Campian, to evade the snare. A few, who unequivocally disclaimed the
deposing power of the Roman see, were pardoned.[235] It is more
honourable to Campian's memory that we should reject these pretended
declarations, than imagine him to have made them at the expense of his
consistency and integrity. For the pope's right to deprive kings of
their crowns was in that age the common creed of the jesuits, to whose
order Campian belonged; and the continent was full of writings published
by the English exiles, by Sanders, Bristow, Persons, and Allen, against
Elizabeth's unlawful usurpation of the throne. But many availed
themselves of what was called an explanation of the bull of Pius V.,
given by his successor Gregory XIII.; namely, that the bull should be
considered as always in force against Elizabeth and the heretics, but
should only be binding on catholics when due execution of it could be
had.[236] This was designed to satisfy the consciences of some papists
in submitting to her government, and taking the oath of allegiance. But
in thus granting a permission to dissemble, in hope of better
opportunity for revolt, this interpretation was not likely to
tranquillise her council, or conciliate them towards the Romish party.
The distinction, however, between a king by possession and one by right,
was neither heard for the first, nor for the last time, in the reign of
Elizabeth. It is the lot of every government that is not founded on the
popular opinion of legitimacy, to receive only a precarious allegiance.
Subject to this reservation, which was pretty generally known, it does
not appear that the priests or other Roman catholics, examined at
various times during this reign, are more chargeable with insincerity or
dissimulation than accused persons generally are.
The public executions, numerous as they were, scarcely form the most
odious part of this persecution. The common law of England has always
abhorred the accursed mysteries of a prison-house; and neither admits of
torture to extort confession, nor of any penal infliction not warranted
by a judicial sentence. But this law, though still sacred in the courts
of justice, was set aside by the privy council under the Tudor line. The
rack seldom stood idle in the Tower for all the latter part of
Elizabeth's reign.[237] To those who remember the annals of their
country, that dark and gloomy pile affords associations not quite so
numerous and recent as the Bastile, yet enough to excite our hatred and
horror. But standing as it does in such striking contrast to the fresh
and flourishing constructions of modern wealth, the proofs and the
rewards of civil and religious liberty, it seems like a captive tyrant,
reserved to grace the triumph of a victorious republic, and should teach
us to reflect in thankfulness, how highly we have been elevated in
virtue and happiness above our forefathers.
Such excessive severities under the pretext of treason, but sustained by
very little evidence of any other offence than the exercise of the
catholic ministry, excited indignation throughout a great part of
Europe. The queen was held forth in pamphlets, dispersed everywhere from
Rome and Douay, not only as a usurper and heretic, but a tyrant more
ferocious than any heathen persecutor, for inadequate parallels to whom
they ransacked all former history.[238] These exaggerations, coming
from the very precincts of the inquisition, required the unblushing
forehead of bigotry; but the charge of cruelty stood on too many facts
to be passed over, and it was thought expedient to repel it by two
remarkable pamphlets, both ascribed to the pen of Lord Burleigh.
_Defence of the queen, by Burleigh._--One of these, entitled "The
Execution of Justice in England for Maintenance of public and private
Peace," appears to have been published in 1583. It contains an elaborate
justification of the late prosecutions for treason, as no way connected
with religious tenets, but grounded on the ancient laws for protection
of the queen's person and government from conspiracy. It is alleged that
a vast number of catholics, whether of the laity or priesthood, among
whom the deprived bishops are particularly enumerated, had lived
unmolested on the score of their faith, because they paid due temporal
allegiance to their sovereign. Nor were any indicted for treason, but
such as obstinately maintained the pope's bull depriving the queen of
her crown. And even of these offenders, as many as after condemnation
would renounce their traitorous principles, had been permitted to live;
such was her majesty's unwillingness, it is asserted, to have any blood
spilled without this just and urgent cause proceeding from themselves.
But that any matter of opinion, not proved to have ripened into an overt
act, and extorted only, or rather conjectured, through a compulsive
inquiry, could sustain in law or justice a conviction for high treason,
is what the author of this pamphlet has not rendered manifest.[239]
A second and much shorter paper bears for title, "A Declaration of the
favourable dealing of her Majesty's Commissioners, appointed for the
examination of certain traitors, and of tortures unjustly reported to be
done upon them for matter of religion." Its scope was to palliate the
imputation of excessive cruelty with which Europe was then resounding.
Those who revere the memory of Lord Burleigh must blush for this pitiful
apology. "It is affirmed for truth," he says, "that the forms of torture
in their severity or rigour of execution have not been such and in such
manner performed, as the slanderers and seditious libellers have
published. And that even the principal offender, Campian himself, who
was sent and came from Rome, and continued here in sundry corners of the
realm, having secretly wandered in the greater part of the shires of
England in a disguised suit, to be intent to make special preparation of
treasons, was never so racked but that he was perfectly able to walk and
to write, and did presently write and subscribe all his confessions. The
queen's servants, the warders, whose office and act it is to handle the
rack, were ever by those that attended the examinations specially
charged to use it in so charitable a manner as such a thing might be.
None of those who were at any time put to the rack," he proceeds to
assert, "were asked, during their torture, any question as to points of
doctrine; but merely concerning their plots and conspiracies, and the
persons with whom they had had dealings, and what was their own opinion
as to the pope's right to deprive the queen of her crown. Nor was any
one so racked until it was rendered evidently probable by former
detections or confessions that he was guilty; nor was the torture ever
employed to wring out confessions at random; nor unless the party had
first refused to declare the truth at the queen's commandment." Such
miserable excuses serve only to mingle contempt with our
detestation.[240] But it is due to Elizabeth to observe, that she
ordered the torture to be disused; and upon a subsequent occasion, the
quartering of some concerned in Babington's conspiracy having been
executed with unusual cruelty, gave directions that the rest should not
be taken down from the gallows until they were dead.[241]
I should be reluctant, but for the consent of several authorities, to
ascribe this little tract to Lord Burleigh, for his honour's sake. But
we may quote with more satisfaction a memorial addressed by him to the
queen about the same year, 1583, full not only of sagacious, but just
and tolerant advice. "Considering," he says, "that the urging of the
oath of supremacy must needs, in some degree, beget despair, since in
the taking of it, he [the papist] must either think he doth an unlawful
act, as without the special grace of God he cannot think otherwise, or
else, by refusing it, must become a traitor, which before some hurt done
seemeth hard; I humbly submit this to your excellent consideration,
whether, with as much security of your majesty's person and state, and
more satisfaction for them, it were not better to leave the oath to this
sense, that whosoever would not bear arms against all foreign princes,
and namely the pope, that should any way invade your majesty's
dominions, he should be a traitor. For hereof this commodity will ensue,
that those papists, as I think most papists would, that should take this
oath, would be divided from the great mutual confidence which is now
between the pope and them, by reason of their afflictions for him; and
such priests as would refuse that oath then, no tongue could say for
shame that they suffer for religion, if they did suffer.
"But here it may be objected, they would dissemble and equivocate with
this oath, and that the pope would dispense with them in that case. Even
so may they with the present oath both dissemble and equivocate, and
also have the pope's dispensation for the present oath, as well as for
the other. But this is certain, that whomsoever the conscience, or fear
of breaking an oath, both bind, him would that oath bind. And that they
make conscience of an oath, the trouble, losses, and disgraces that they
suffer for refusing the same do sufficiently testify; and you know that
the perjury of either oath is equal."
These sentiments are not such as bigoted theologians were then, or have
been since, accustomed to entertain. "I account," he says afterwards,
"that putting to death does no ways lessen them; since we find by
experience, that it worketh no such effect, but, like hydra's heads,
upon cutting off one, seven grow up, persecution being accounted as the
badge of the church: and therefore they should never have the honour to
take any pretence of martyrdom in England, where the fullness of blood
and greatness of heart is such that they will even for shameful things
go bravely for death; much more, when they think themselves to climb
heaven, and this vice of obstinacy seems to the common people a divine
constancy; so that for my part I wish no lessening of their number, but
by preaching and by education of the younger under schoolmasters." And
hence the means he recommends for keeping down popery, after the
encouragement of diligent preachers and schoolmasters, are, "the taking
order that, from the highest counsellor to the lowest constable, none
shall have any charge or office but such as will really pray and
communicate in their congregation according to the doctrine received
generally into this realm;" and next, the protection of tenants against
their popish landlords, "that they be not put out of their living, for
embracing the established religion."--"This," he says, "would greatly
bind the commons' hearts unto you, in whom indeed consisteth the power
and strength of your realm; and it will make them less, or nothing at
all, depend on their landlords. And, although there may hereby grow some
wrong, which the tenants upon that confidence may offer to their
landlords, yet those wrongs are very easily, even with one wink of your
majesty's, redressed; and are nothing comparable to the danger of having
many thousands depending on the adverse party."[242]
_Increased severity of the government._--The strictness used with
recusants, which much increased from 1579 or 1580, had the usual
consequence of persecution, that of multiplying hypocrites. For, in
fact, if men will once bring themselves to comply, to take all oaths, to
practise all conformity, to oppose simulation and dissimulation to
arbitrary inquiries, it is hardly possible that any government should
not be baffled. Fraud becomes an over-match for power. The real danger
meanwhile, the internal disaffection, remains as before, or is
aggravated. The laws enacted against popery were precisely calculated to
produce this result. Many indeed, especially of the female sex, whose
religion, lying commonly more in sentiment than reason, is less ductile
to the sophisms of worldly wisdom, stood out and endured the penalties.
But the oath of supremacy was not refused; the worship of the church was
frequented by multitudes who secretly repined for a change; and the
council, whose fear of open enmity had prompted their first severities,
were led on by the fear of dissembled resentment to devise yet further
measures of the same kind. Hence, in 1584, a law was enacted, enjoining
all jesuits, seminary priests, and other priests, whether ordained
within or without the kingdom, to depart from it within forty days, on
pain of being adjudged traitors. The penalty of fine and imprisonment at
the queen's pleasure was inflicted on such as, knowing any priest to be
within the realm, should not discover it to a magistrate. This seemed to
fill up the measure of prosecution, and to render the longer
preservation of this obnoxious religion absolutely impracticable. Some
of its adherents presented a petition against this bill, praying that
they might not be suspected of disloyalty on account of refraining from
the public worship, which they did to avoid sin; and that their priests
might not be banished from the kingdom.[243] And they all very justly
complained of this determined oppression. The queen, without any fault
of theirs, they alleged, had been alienated by the artifices of
Leicester and Walsingham. Snares were laid to involve them unawares in
the guilt of treason; their steps were watched by spies; and it was
become intolerable to continue in England. Camden indeed asserts that
counterfeit letters were privately sent in the name of the Queen of
Scots or of the exiles, and left in papists' houses.[244] A general
inquisition seems to have been made about this time; but whether it was
founded on sufficient grounds of previous suspicion, we cannot
absolutely determine. The Earl of Northumberland, brother of him who had
been executed for the rebellion of 1570, and the Earl of Arundel, son of
the unfortunate Duke of Norfolk, were committed to the Tower, where the
former put an end to his own life (for we cannot charge the government
with an unproved murder); and the second, after being condemned for a
traitorous correspondence with the queen's enemies, died in that
custody. But whether or no some conspiracies (I mean more active than
usual, for there was one perpetual conspiracy of Rome and Spain during
most of the queen's reign), had preceded these severe and unfair methods
by which her ministry counteracted them, it was not long before schemes,
more formidable than ever, were put in action against her life. As the
whole body of catholics was irritated and alarmed by the laws of
proscription against their clergy, and by the heavy penalties on
recusancy, which, as they alleged, showed a manifest purpose to reduce
them to poverty;[245] so some desperate men saw no surer means to rescue
their cause than the queen's assassination. One Somerville, half a
lunatic, and Parry, a man who, long employed as a spy upon the papists,
had learned to serve with sincerity those he was sent to betray, were
the first who suffered death for unconnected plots against Elizabeth's
life.[246]
_Plot in favour of Mary._--More deep-laid machinations were carried on
by several catholic laymen at home and abroad, among whom a brother of
Lord Paget was the most prominent.[247] These had in view two objects,
the deliverance of Mary, and the death of her enemy. Some perhaps who
were engaged in the former project did not give countenance to the
latter. But few, if any, ministers have been better served by their
spies than Cecil and Walsingham. It is surprising to see how every
letter seems to have been intercepted, every thread of these
conspiracies unravelled, every secret revealed to these wise counsellors
of the queen. They saw that while one lived, whom so many deemed the
presumptive heir, and from whose succession they anticipated, at least
in possibility, an entire reversal of all that had been wrought for
thirty years, the queen was as a mark for the pistol or dagger of every
zealot. And fortunate, no question, they thought it, that the detection
of Babington's conspiracy enabled them with truth, or a semblance of
truth, to impute a participation in that crime to the most dangerous
enemy whom, for their mistress, their religion, or themselves, they had
to apprehend.
Mary had now consumed the best years of her life in custody; and, though
still the perpetual object of the queen's vigilance, had perhaps
gradually become somewhat less formidable to the protestant interest.
Whether she would have ascended the throne, if Elizabeth had died
during the latter years of her imprisonment, must appear very doubtful,
when we consider the increasing strength of the puritans, the antipathy
of the nation to Spain, the prevailing opinion of her consent to
Darnley's murder, and the obvious expedient of treating her son, now
advancing to manhood, as the representative of her claim. The new
projects imputed to her friends even against the queen's life,
exasperated the hatred of the protestants against Mary. An association
was formed in 1584, the members of which bound themselves by oath "to
withstand and pursue, as well by force of arms as by all other means of
revenge, all manner of persons, of whatsoever state they shall be and
their abettors, that shall attempt any act, or counsel, or consent to
anything that shall tend to the harm of her majesty's royal person; and
never to desist from all manner of forcible pursuit against such
persons, to the utter extermination of them, their counsellors, aiders,
and abettors. And if any such wicked attempt against her most royal
person shall be taken in hand or procured, whereby any that have, may or
shall pretend title to come to this crown by the untimely death of her
majesty so wickedly procured (which God of his mercy forbid!), that the
same may be avenged, we do not only bind ourselves both jointly and
severally never to allow, accept, or favour any such pretended
successor, by whom or for whom any such detestable act shall be
attempted or committed, as unworthy of all government in any christian
realm or civil state, but do also further vow and promise, as we are
most bound, and that in the presence of the eternal and everlasting God,
to _prosecute such person or persons to death_, with our joint and
particular forces, and to act the utmost revenge upon them, that by any
means we or any of us can devise and do, or cause to be devised and done
for their utter overthrow and extirpation."[248]
_Execution of Mary Queen of Scots._--The pledge given by this voluntary
association received the sanction of parliament in an act "for the
security of the queen's person, and continuance of the realm in peace."
This statute enacts that, if any invasion or rebellion should be made by
or for any person pretending title to the crown after her majesty's
decease, or if anything be confessed or imagined tending to the hurt of
her person with the privity of any such person, a number of peers, privy
counsellors, and judges, to be commissioned by the queen, should examine
and give judgment on such offences, and all circumstances relating
thereto; after which judgment all persons against whom it should be
published should be disabled for ever to make any such claim.[249] I
omit some further provisions to the same effect, for the sake of
brevity. But we may remark that this statute differs from the
associators' engagement, in omitting the outrageous threat of pursuing
to death any person, whether privy or not to the design, on whose behalf
an attempt against the queen's life should be made. The main intention
of the statute was to procure, in the event of any rebellious movements,
what the queen's counsellors had long ardently desired to obtain from
her, an absolute exclusion of Mary from the succession. But, if the
scheme of assassination, devised by some of her desperate partisans, had
taken effect, however questionable might be her concern in it, I have
little doubt that the rage of the nation would, with or without some
process of law, have instantly avenged it in her blood. This was, in the
language of parliament, their great cause; an expression which, though
it may have an ultimate reference to the general interest of religion is
never applied, so far as I remember, but to the punishment of Mary,
which they had demanded in 1572, and now clamoured for in 1586. The
addresses of both houses to the queen, to carry the sentence passed by
the commissioners into effect, her evasive answers and feigned
reluctance, as well as the strange scenes of hypocrisy which she acted
afterwards, are well known matters of history, upon which it is
unnecessary to dwell. No one will be found to excuse the hollow
affectation of Elizabeth; but the famous sentence that brought Mary to
the scaffold, though it has certainly left in popular opinion a darker
stain on the queen's memory than any other transaction of her life, if
not capable of complete vindication, has at least encountered a
disproportioned censure.
It is of course essential to any kind of apology for Elizabeth in this
matter, that Mary should have been assenting to a conspiracy against her
life. For it could be no real crime to endeavour at her own deliverance;
nor, under the circumstances of so long and so unjust a detention, would
even a conspiracy against the aggressor's power afford a moral
justification for her death. But though the proceedings against her are
by no means exempt from the shameful breach of legal rules, almost
universal in trials for high treason during that reign (the witnesses
not having been examined in open court); yet the depositions of her two
secretaries, joined to the confessions of Babington and other
conspirators, form a body of evidence, not indeed irresistibly
convincing, but far stronger than we find in many instances where
condemnation has ensued. And Hume has alleged sufficient reasons for
believing its truth, derived from the great probability of her
concurring in any scheme against her oppressor, from the certainty of
her long correspondence with the conspirators (who, I may add, had not
made any difficulty of hinting to her their designs against the queen's
life),[250] and from the deep guilt that the falsehood of the charge
must inevitably attach to Sir Francis Walsingham.[251] Those at least
who cannot acquit the Queen of Scots of her husband's murder, will
hardly imagine that she would scruple to concur in a crime so much more
capable of extenuation, and so much more essential to her interests. But
as the proofs are not perhaps complete, we must hypothetically assume
her guilt, in order to set this famous problem in the casuistry of
public law upon its proper footing.
It has been said so often, that few perhaps wait to reflect whether it
has been said with reason, that Mary, as an independent sovereign, was
not amenable to any English jurisdiction. This, however, does not appear
unquestionable. By one of those principles of law, which may be called
natural, as forming the basis of a just and rational jurisprudence,
every independent government is supreme within its own territory.
Strangers, voluntarily resident within a state, owe a temporary
allegiance to its sovereign, and are amenable to the jurisdiction of
his tribunals; and this principle, which is perfectly conformable to
natural law, has been extended by positive usage even to those who are
detained in it by force. Instances have occurred very recently in
England, when prisoners of war have suffered death for criminal
offences; and if some have doubted the propriety of carrying such
sentences into effect, where a penalty of unusual severity has been
inflicted by our municipal law, few, I believe, would dispute the
fitness of punishing a prisoner of war for wilful murder, in such a
manner as the general practice of civil societies and the prevailing
sentiments of mankind agree to point out. It is certainly true that an
exception to this rule, incorporated with the positive law of nations,
and established, no doubt, before the age of Elizabeth, has rendered the
ambassadors of sovereign princes exempt, in all ordinary cases at least,
from criminal process. Whether, however, an ambassador may not be
brought to punishment for such a flagrant abuse of the confidence which
is implied by receiving him, as a conspiracy against the life itself of
the prince at whose court he resides, has been doubted by those writers
who are most inclined to respect the privileges with which courtesy and
convenience have invested him.[252] A sovereign, during a temporary
residence in the territories of another, must of course possess as
extensive an immunity as his representative. But that he might, in such
circumstances, frame plots for the prince's assassination with impunity,
seems to take for granted some principle that I do not apprehend.
But whatever be the privilege of inviolability attached to sovereigns,
it must, on every rational ground, be confined to those who enjoy and
exercise dominion in some independent territory. An abdicated or
dethroned monarch may preserve his title by the courtesy of other
states, but cannot rank with sovereigns in the tribunals where public
law is administered. I should be rather surprised to hear any one
assert that the parliament of Paris was incompetent to try Christina for
the murder of Monaldeschi. And, though we must admit that Mary's
resignation of her crown was compulsory, and retracted on the first
occasion; yet after a twenty years' loss of possession, when not one of
her former subjects avowed allegiance to her, when the King of Scotland
had been so long acknowledged by England and by all Europe, is it
possible to consider her as more than a titular queen, divested of every
substantial right to which a sovereign tribunal could have regard? She
was styled accordingly, in the indictment, "Mary, daughter and heir of
James the Fifth, late King of Scots, otherwise called Mary Queen of
Scots, dowager of France." We read even that some lawyers would have had
her tried by a jury of the county of Stafford, rather than the special
commission; which Elizabeth noticed as a strange indignity. The
commission, however, was perfectly legal under the recent statute.[253]
But, while we can hardly pronounce Mary's execution to have been so
wholly iniquitous and unwarrantable as it has been represented, it may
be admitted that a more generous nature than that of Elizabeth would not
have exacted the law's full penalty. The Queen of Scots' detention in
England was in violation of all natural, public, and municipal law; and
if reasons of state policy or precedents from the custom of princes are
allowed to extenuate this injustice, it is to be asked whether such
reasons and such precedents might not palliate the crime of
assassination imputed to her. Some might perhaps allege, as was so
frequently urged at the time, that if her life could be taken with
justice, it could not be spared in prudence; and that Elizabeth's higher
duty to preserve her people from the risks of civil commotion must
silence every feeling that could plead for mercy. Of this necessity
different judgments may perhaps be formed; it is evident that Mary's
death extinguished the best hope of popery in England: but the relative
force of the two religions was greatly changed since Norfolk's
conspiracy; and it appears to me that an act of parliament explicitly
cutting her off from the crown, and at the same time entailing it on her
son, would have afforded a very reasonable prospect of securing the
succession against all serious disturbance. But this neither suited the
inclination of Elizabeth, nor of some among those who surrounded her.
_Continued persecution of Roman catholics_.--As the catholics endured
without any open murmuring the execution of her on whom their fond hopes
had so long rested, so for the remainder of the queen's reign they by no
means appear, when considered as a body, to have furnished any specious
pretexts for severity. In that memorable year, when the dark cloud
gathered around our coasts, when Europe stood by in fearful suspense to
behold what should be the result of that great cast in the game of human
politics, what the craft of Rome, the power of Philip, the genius of
Farnese, could achieve against the island-queen with her Drakes and
Cecils--in that agony of the protestant faith and English name, they
stood the trial of their spirits without swerving from their allegiance.
It was then that the catholics in every county repaired to the standard
of the lord-lieutenant, imploring that they might not be suspected of
bartering the national independence for their religion itself. It was
then that the venerable Lord Montague brought a troop of horse to the
queen at Tilbury, commanded by himself, his son and grandson.[254] It
would have been a sign of gratitude if the laws depriving them of the
free exercise of their religion had been, if not repealed, yet suffered
to sleep, after these proofs of loyalty. But the execution of priests
and of other catholics became on the contrary more frequent, and the
fines for recusancy exacted as rigorously as before.[255] A statute was
enacted, restraining popish recusants, a distinctive name now first
imposed by law, to particular places of residence, and subjecting them
to other vexatious provisions.[256] All persons were forbidden, by
proclamation, to harbour any of whose conformity they were not
assured.[257] Some indulgence was doubtless shown during all Elizabeth's
reign to particular persons, and it was not unusual to release priests
from confinement; but such precarious and irregular connivance gave more
scandal to the puritans than comfort to the opposite party.
The catholic martyrs under Elizabeth amount to no inconsiderable number.
Dodd reckons them at 191; Milner has raised the list to 204. Fifteen of
these, according to him, suffered for denying the queen's supremacy, 126
for exercising their ministry, and the rest for being reconciled to the
Romish church. Many others died of hardships in prison, and many were
deprived of their property.[258] There seems nevertheless to be good
reason for doubting whether any one who was executed might not have
saved his life by explicitly denying the pope's power to depose the
queen. It was constantly maintained by her ministers, that no one had
been executed for his religion. This would be an odious and hypocritical
subterfuge, if it rested on the letter of these statutes, which adjudge
the mere manifestation of a belief in the Roman catholic religion, under
certain circumstances, to be an act of treason. But both Lord Burleigh,
in his _Execution of Justice_, and Walsingham in a letter published by
Burnet,[259] positively assert the contrary; and I am not aware that
their assertion has been disproved. This certainly furnishes a
distinction between the persecution under Elizabeth (which, unjust as it
was in its operation, yet as far as it extended to capital inflictions,
had in view the security of the government), and that which the
protestants had sustained in her sister's reign, springing from mere
bigotry and vindictive rancour, and not even shielding itself at the
time with those shallow pretexts of policy which it has of late been
attempted to set up in its extenuation. But that which renders these
condemnations of popish priests so iniquitous, is, that the belief in,
or rather the refusal to disclaim, a speculative tenet, dangerous indeed
and incompatible with loyalty, but not coupled with any overt act, was
construed into treason; nor can any one affect to justify these
sentences, who is not prepared to maintain that a refusal of the oath of
abjuration, while the pretensions of the house of Stuart subsisted,
might lawfully or justly have incurred the same penalty.[260]
An apology was always deduced for these measures, whether of restriction
or punishment, adopted against all adherents to the Roman church, from
the restless activity of that new militia which the holy see had lately
organised. The mendicant orders established in the thirteenth century
had lent former popes a powerful aid towards subjecting both the laity
and the secular priesthood, by their superior learning and ability,
their emulous zeal, their systematic concert, their implicit obedience.
But in all these requisites for good and faithful janissaries of the
church, they were far excelled by the new order of Ignatius Loyola.
Rome, I believe, found in their services what has stayed her fall. They
contributed in a very material degree to check the tide of the
reformation. Subtle alike and intrepid, pliant in their direction,
unshaken in their aim, the sworn, implacable, unscrupulous enemies of
protestant governments, the jesuits were a legitimate object of jealousy
and restraint. As every member of that society enters into an engagement
of absolute, unhesitating obedience to its superior, no one could justly
complain that he was presumed capable at least of committing any crimes
that the policy of his monarch might enjoin. But if the jesuits by their
abilities and busy spirit of intrigue promoted the interests of Rome,
they raised up enemies by the same means to themselves within the bosom
of the church; and became little less obnoxious to the secular clergy,
and to a great proportion of the laity, than to the protestants whom
they were commissioned to oppose. Their intermeddling character was
shown in the very prisons occupied by catholic recusants, where a schism
broke out between the two parties, and the secular priests loudly
complained of their usurping associates.[261] This was manifestly
connected with the great problem of allegiance to the queen, which the
one side being always ready to pay, did not relish the sharp usage it
endured on account of the other's disaffection. The council indeed gave
some signs of attending to this distinction, by a proclamation issued in
1602, ordering all priests to depart from the kingdom, unless they
should come in and acknowledge their allegiance, with whom the queen
would take further order.[262] Thirteen priests came forward on this,
with a declaration of allegiance as full as could be devised. Some of
the more violent papists blamed them for this; and the Louvain divines
concurred in the censure.[263] There were now two parties among the
English catholics; and those who, goaded by the sense of long
persecution, and inflamed by obstinate bigotry, regarded every heretical
government as unlawful or unworthy of obedience, used every machination
to deter the rest from giving any test of their loyalty. These were the
more busy, but by much the less numerous class; and their influence was
mainly derived from the law's severity, which they had braved or endured
with fortitude. It is equally candid and reasonable to believe that, if
a fair and legal toleration, or even a general connivance at the
exercise of their worship, had been conceded in the first part of
Elizabeth's reign, she would have spared herself those perpetual terrors
of rebellion which occupied all her later years. Rome would not indeed
have been appeased, and some desperate fanatic might have sought her
life; but the English catholics collectively would have repaid her
protection by an attachment, which even her rigour seems not wholly to
have prevented.
It is not to be imagined that an entire unanimity prevailed in the
councils of this reign as to the best mode of dealing with the adherents
of Rome. Those temporary connivances or remissions of punishment, which,
though to our present view they hardly lighten the shadows of this
persecution, excited loud complaints from bigoted men, were owing to the
queen's personal humour, or the influence of some advisers more liberal
than the rest. Elizabeth herself seems always to have inclined rather to
indulgence than extreme severity. Sir Christopher Hatton, for some years
her chief favourite, incurred odium for his lenity towards papists, and
was, in their own opinion, secretly inclined to them.[264] Whitgift
found enough to do with an opposite party. And that too noble and
high-minded spirit, so ill fitted for a servile and dissembling court,
the Earl of Essex, was the consistent friend of religious liberty,
whether the catholic or the puritan were to enjoy it. But those
counsellors, on the other hand, who favoured the more precise reformers,
and looked coldly on the established church, never failed to
demonstrate their protestantism by excessive harshness towards the old
religion's adherents. That bold bad man, whose favour is the great
reproach of Elizabeth's reign, the Earl of Leicester, and the sagacious,
disinterested, inexorable Walsingham, were deemed the chief advisers of
sanguinary punishments. But, after their deaths, the catholics were
mortified to discover that Lord Burleigh, from whom they had hoped for
more moderation, persisted in the same severities; contrary, I think, to
the principles he had himself laid down in the paper from which I have
above made some extracts.[265]
The restraints and penalties, by which civil governments have at various
times thought it expedient to limit the religious liberties of their
subjects, may be arranged in something like the following scale. The
first and slightest degree is the requisition of a test of conformity to
the established religion, as the condition of exercising offices of
civil trust. The next step is to restrain the free promulgation of
opinions, especially through the press. All prohibitions of the open
exercise of religious worship appear to form a third, and more severe,
class of restrictive laws. They become yet more rigorous, when they
afford no indulgence to the most private and secret acts of devotion or
expressions of opinion. Finally, the last stage of persecution is to
enforce by legal penalties a conformity to the established church, or an
abjuration of heterodox tenets.
The first degree in this classification, or the exclusion of dissidents
from trust and power, though it be always incumbent on those who
maintain it to prove its necessity, may, under certain rare
circumstances, be conducive to the political well-being of a state; and
can then only be reckoned an encroachment on the principles of
toleration, when it ceases to produce a public benefit sufficient to
compensate for the privation it occasions to its objects. Such was the
English Test Act during the interval between 1672 and 1688. But, in my
judgment, the instances which the history of mankind affords, where even
these restrictions have been really consonant to the soundest policy,
are by no means numerous. Cases may also be imagined, where the free
discussion of controverted doctrines might for a time at least be
subjected to some limitation for the sake of public tranquillity. I can
scarcely conceive the necessity of restraining an open exercise of
religious rites in any case, except that of glaring immorality. In no
possible case can it be justifiable for the temporal power to
intermeddle with the private devotions or doctrines of any man. But
least of all, can it carry its inquisition into the heart's recesses,
and bend the reluctant conscience to an insincere profession of truth,
or extort from it an acknowledgment of error, for the purpose of
inflicting punishment. The statutes of Elizabeth's reign comprehend
every one of these progressive degrees of restraint and persecution. And
it is much to be regretted that any writers worthy of respect should,
either through undue prejudice against an adverse religion, or through
timid acquiescence in whatever has been enacted, have offered for this
odious code the false pretext of political necessity. That necessity, I
am persuaded, can never be made out: the statutes were, in many
instances, absolutely unjust; in others, not demanded by circumstances;
in almost all, prompted by religious bigotry, by excessive apprehension,
or by the arbitrary spirit with which our government was administered
under Elizabeth.
FOOTNOTES:
[155] Elizabeth was much suspected of a concern in the conspiracy of
1554, which was more extensive than appeared from Wyatt's insurrection,
and had in view the placing her on the throne, with the Earl of
Devonshire for her husband. Wyatt indeed at his execution acquitted her;
but as he said as much for Devonshire, who is proved by the letters of
Noailles to have been engaged, his testimony is of less value. Nothing,
however, appears in these letters, I believe, to criminate Elizabeth.
Her life was saved, against the advice of the imperial court, and of
their party in the cabinet, especially Lord Paget, by Gardiner,
according to Dr. Lingard, writing on the authority of Renard's
despatches. Burnet, who had no access to that source of information,
imagines Gardiner to have been her most inveterate enemy. She was even
released from prison for the time, though soon afterwards detained
again, and kept in custody, as is well known, for the rest of this
reign. Her inimitable dissimulation was all required to save her from
the penalties of heresy and treason. It appears by the memoir of the
Venetian ambassador, in 1557 (Lansdowne MSS. 840), as well as from the
letters of Noailles, that Mary was desirous to change the succession,
and would have done so, had it not been for Philip's reluctance, and the
impracticability of obtaining the consent of parliament. Though of a
dissembling character, she could not conceal the hatred she bore to one
who brought back the memory of her mother's and her own wrongs;
especially when she saw all eyes turned towards the successor, and felt
that the curse of her own barrenness was to fall on her beloved
religion. Elizabeth had been not only forced to have a chapel in her
house, and to give all exterior signs of conformity, but to protest on
oath her attachment to the catholic faith; though Hume, who always loves
a popular story, gives credence to the well known verses ascribed to
her, in order to elude a declaration of her opinion on the sacrament.
The inquisitors of that age were not so easily turned round by an
equivocal answer. Yet Elizabeth's faith was constantly suspected.
"Accresce oltro questo l'odio," says the Venetian, "il sapere che sia
aliena dalla religione presente, per essere non pur nata, ma dotta ed
allevata nell' altra, che se bene con la esteriore ha mostrato, e mostra
di essersi ridotta, vivendo cattolicamente, pure è opinione che
dissimuli e nell' interiore la ritenga più che mai."
[156] Elizabeth ascended the throne November 17, 1558. On the 5th of
December Mary was buried; and on this occasion White, bishop of
Winchester, in preaching her funeral sermon, spoke with virulence
against the protestant exiles, and expressed apprehension of their
return. Burnet, iii. 272. Directions to read part of the service in
English, and forbidding the elevation of the host, were issued prior to
the proclamation of December 27, against innovations without authority.
The great seal was taken from Archbishop Heath early in January, and
given to Sir Nicholas Bacon. Parker was pitched upon to succeed Pole at
Canterbury in the preceding month. From the dates of these and other
facts, it may be fairly inferred that Elizabeth's resolution was formed
independently of the pope's behaviour towards Sir Edward Karn; though
that might probably exasperate her against the adherents of the Roman
see, and make their religion appear more inconsistent with their civil
allegiance. If, indeed, the refusal of the bishops to officiate at her
coronation (January 14, 1558-9) were founded in any degree on Paul IV.'s
denial of her title, it must have seemed in that age within a
hair's-breadth of high treason. But it more probably arose from her
order that the host should not be elevated, which in truth was not
legally to be justified. Mass was said, however, at her coronation; so
that she seems to have dispensed with this prohibition.
[157] See a paper by Cecil on the best means of reforming religion,
written at this time with all his cautious wisdom, in Burnet, or in
Strype's _Annals of the Reformation_, or in the _Somers Tracts_.
[158] _Parl. Hist._ vol. i. p. 394. In the reign of Edward, a prayer had
been inserted in the liturgy to deliver us "from the Bishop of Rome and
all his detestable enormities." This was now struck out; and, what was
more acceptable to the nation, the words used in distributing the
elements were so contrived by blending the two forms successively
adopted under Edward, as neither to offend the popish or Lutheran, nor
the Zuinglian communicant. A rubric directed against the doctrine of the
real or corporal presence was omitted. This was replaced after the
restoration. Burnet owns that the greater part of the nation still
adhered to this tenet though it was not the opinion of the rulers of the
church. ii. 390, 406.
[159] Burnet; Strype's _Annals_, 169. Pensions were reserved for those
who quitted their benefices on account of religion. Burnet, ii. 398.
This was a very liberal measure, and at the same time a politic check on
their conduct. Lingard thinks the number must have been much greater;
but the visitors' reports seem the best authority. It is however highly
probable that others resigned their preferments afterwards, when the
casuistry of their church grew more scrupulous. It may be added, that
the visitors restored the married clergy who had been dispossessed in
the preceding reign; which would of course considerably augment the
number of sufferers for popery.
[160] 1 Eliz. c. i. The oath of supremacy was expressed as follows: "I,
A. B., do utterly testify and declare, that the queen's highness is the
only supreme governor of this realm, and all other her highness's
dominions and countries, as well in all spiritual and ecclesiastical
things or causes, as temporal; and that no foreign prince, person,
prelate, state, or potentate, hath or ought to have any jurisdiction,
power, superiority, pre-eminence, or authority, ecclesiastical or
spiritual, within this realm; and therefore I do utterly renounce and
forsake all foreign jurisdictions, powers, superiorities, and
authorities, and do promise that from henceforth I shall bear faith and
true allegiance to the queen's highness, her heirs and lawful
successors, and to my power shall assist and defend all jurisdictions,
pre-eminences, privileges, and authorities, granted or belonging to the
queen's highness, her heirs and successors, or united and annexed to the
imperial crown of this realm."
A remarkable passage in the injunctions to the ecclesiastical visitors
of 1559, which may be reckoned in the nature of a contemporaneous
exposition of the law, restrains the royal supremacy established by this
act, and asserted in the above oath, in the following words: "Her
majesty forbiddeth all manner her subjects to give ear or credit to such
perverse and malicious persons, which most sinisterly and maliciously
labour to notify to her loving subjects, how by words of the said oath
it may be collected, that the kings or queens of this realm, possessors
of the crown, may challenge authority and power of ministry of divine
service in the church; wherein her said subjects be much abused by such
evil-disposed persons. For certainly her majesty neither doth, nor ever
will, challenge any other authority than that was challenged and lately
used by the said noble kings of famous memory, King Henry VIII. and King
Edward VI., which is, and was of ancient time, due to the imperial crown
of this realm; that is, under God to have the sovereignty and rule over
all manner of persons born within these her realms, dominions, and
countries, of what estate, either ecclesiastical or temporal, soever
they be, so as no other foreign power shall or ought to have any
superiority over them. And if any person that hath conceived any other
sense of the form of the said oath shall accept the same with this
interpretation, sense, or meaning, her majesty is well pleased to accept
every such in that behalf, as her good and obedient subjects, and shall
acquit them of all manner of penalties contained in the said act,
against such as shall peremptorily or obstinately take the same oath." 1
_Somers Tracts_, edit. Scott, 73.
This interpretation was afterwards given in one of the thirty-nine
articles, which having been confirmed by parliament, it is undoubtedly
to be reckoned the true sense of the oath. Mr. Butler, in his _Memoirs
of English Catholics_, vol. i. p. 157, enters into a discussion of the
question, whether Roman catholics might conscientiously take the oath of
supremacy in this sense. It appears that in the seventeenth century some
contended for the affirmative; and this seems to explain the fact, that
several persons of that persuasion, besides peers from whom the oath was
not exacted, did actually hold offices under the Stuarts, and even enter
into parliament, and that the test act and declaration against
transubstantiation were thus rendered necessary to make their exclusion
certain. Mr. B. decides against taking the oath, but on grounds by no
means sufficient; and oddly overlooks the decisive objection, that it
denies _in toto_ the jurisdiction and ecclesiastical authority of the
pope. No writer, as far as my slender knowledge extends, of the Gallican
or German school of discipline, has gone to this length; certainly not
Mr. Butler himself, who in a modern publication (_Book of the Roman
Catholic Church_, p. 120), seems to consider even the appellant
jurisdiction in ecclesiastical causes as vested in the holy see by
divine right.
As to the exposition before given of the oath of supremacy, I conceive
that it was intended not only to relieve the scruples of catholics, but
of those who had imbibed from the school of Calvin an apprehension of
what is sometimes, though rather improperly, called Erastianism--the
merging of all spiritual powers, even those of ordination and of
preaching, in the paramount authority of the state, towards which the
despotism of Henry, and obsequiousness of Cranmer, had seemed to bring
the church of England.
[161] 1 Eliz. c. 2.
[162] Strype's _Annals_, i. 233, 241.
[163] Haynes, 395. The penalty for causing mass to be said, by the Act
of Uniformity, was only 100 marks for the first offence. These
imprisonments were probably in many cases illegal, and only sustained by
the arbitrary power of the high commission court.
[164] Strype, 220.
[165] Questions of conscience were circulated, with answers, all tending
to show the unlawfulness of conformity. Strype, 228. There was nothing
more in this than the catholic clergy were bound in consistency with
their principles to do, though it seemed very atrocious to bigots. Mr.
Butler says, that some theologians at Trent were consulted as to the
lawfulness of occasional conformity to the Anglican rites, who
pronounced against it. _Mem. of Catholics_, i. 171.
[166] The trick of conjuration about the queen's death began very early
in her reign (Strype, i. 7), and led to a penal statute against "fond
and fantastical prophecies." 5 Eliz. c. 15.
[167] I know not how to charge the catholics with the conspiracy of the
two Poles, nephews of the cardinal, and some others, to obtain five
thousand troops from the Duke of Guise, and proclaim Mary queen. This
seems, however, to have been the immediate provocation for the statute 5
Eliz.; and it may be thought to indicate a good deal of discontent in
that party upon which the conspirators relied. But as Elizabeth spared
the lives of all who were arraigned, and we know no details of the case,
it may be doubted whether their intentions were altogether so criminal
as was charged. Strype, i. 333; Camden, 388 (in Kennet).
Strype tells us (i. 374) of resolutions adopted against the queen in a
consistory held by Pius IV. in 1563; one of these is a pardon to any
cook, brewer, vintner, or other, that would poison her. But this is so
unlikely, and so little in that pope's character, that it makes us
suspect the rest, as false information of a spy.
[168] 5 Eliz. c. 1.
[169] Strype, Collier, _Parliamentary History_. The original source is
the manuscript collections of Fox the martyrologist, a very unsuspicious
authority; so that there seems every reason to consider this speech, as
well as Mr. Atkinson's, authentic. The following is a specimen of the
sort of answer given to these arguments: "They say it touches
conscience, and it is a thing wherein a man ought to have a scruple; but
if any hath a conscience in it, these four years' space might have
settled it. Also, after his first refusal, he hath three months' respite
for conference and settling of his conscience." Strype, 270.
[170] Strype's _Life of Parker_, 125.
[171] Strype's _Annals_, 149. Tunstall was treated in a very handsome
manner by Parker, whose guest he was. But Feckenham, abbot of
Westminster, met with rather unkind usage, though he had been active in
saving the lives of protestants under Mary, from Bishops Horn and Cox
(the latter of whom seems to have been an honest, but narrow-spirited
and peevish man), and at last was sent to Wisbeach gaol for refusing the
oath of supremacy. Strype, i. 457, ii. 526; Fuller's _Church History_,
178.
[172] 8 Eliz. c. 1. Eleven peers dissented, all noted catholics, except
the Earl of Sussex. Strype, i. 492.
[173] Even Dr. Lingard admits that Parker was consecrated at Lambeth, on
December 19, 1559; but conjectures that there may have been some
previous meeting at the Nag's Head, which gave rise to the story. This
means that any absurdity may be presumed, rather than acknowledge good
catholics to have propagated a lie.
[174] Nobis vero factura est rem adeo gratam, ut omnem simus daturi
operam, quo possimus eam rem serenitati vestræ mutuis benevolentiæ et
fraterni animi studiis cumulatissimè compensare. See the letter in the
additions to the first volume of Strype's _Annals_, prefixed to the
second, p. 67. It has been erroneously referred by Camden, whom many
have followed, to the year 1559, but bears date 24th September 1563.
[175] For the dispositions of Ferdinand and Maximilian towards religious
toleration in Austria, which indeed for a time existed, see F. Paul,
_Concile de Trente_ (par Courayer), ii. 72, 197, 220, etc.; Schmidt,
_Hist. des Allemands_, viii. 120, 179, etc.; Flechier, _Vie de
Commendom_, 388; or Coxe's _House of Austria_.
[176] Strype, 513, _et alibi_.
[177] Strype, 522. He says the lawyers in most eminent places were
generally favourers of popery. P. 269. But, if he means the judges, they
did not long continue so.
[178] Cum regina Maria moreretur, et religio in 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 coenâ, 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. _Ribadeneira de Schismate_, p. 53. See
also Butler's _English Catholics_, vol. iii. p. 156.
[179] Dodd's _Church His._ vol. ii. p. 8.
[180] Thomas Heath, brother to the late Archbishop of York, was seized
at Rochester about 1570, well provided with anabaptist and Arian tracts
for circulation. Strype, i. 521. For other instances, see p. 281, 484;
_Life of Parker_, 244; Nalson's _Collections_, vol. i.; Introduction, p.
39, etc., from a pamphlet written also by Nalson, entitled, _Foxes and
Firebrands_. It was surmised that one Henry Nicolas, chief of a set of
fanatics, called the Family of Love, of whom we read a great deal in
this reign, and who sprouted up again about the time of Cromwell, was
secretly employed by the popish party. Strype, ii. 37, 589, 595. But
these conjectures were very often ill-founded, and possibly so in this
instance, though the passages quoted by Strype (589) are suspicious.
Brandt however (_Hist. of Reformation in Low Countries_, vol. i. p. 105)
does not suspect Nicolas of being other than a fanatic. His sect
appeared in the Netherlands about 1555.
[181] "That church [of England] and the queen, its re-founder, are clear
of persecution, as regards the catholics. No church, no sect, no
individual even, had yet professed the principle of toleration."
Southey's _Book of the Church_, vol. ii. p. 285. If the second of these
sentences is intended as a proof of the first, I must say, it is little
to the purpose. But it is not true in this broad way of assertion. Nor
to mention Sir Thomas More's _Utopia_, the principle of toleration had
been avowed by the Chancellor l'Hospital, and many others in France. I
mention him as on the stronger side; for in fact the weaker had always
professed the general principle, and could demand toleration from those
of different sentiments on no other plea. And as to _capital_
inflictions for heresy, which Mr. S. seems chiefly to have in his mind,
there is reason to believe that many protestants never approved them.
Sleidan intimates (vol. iii. p. 263) that Calvin incurred odium by the
death of Servetus. And Melancthon says expressly the same thing, in the
letter which he unfortunately wrote to the reformer of Geneva, declaring
his own approbation of the crime; and which I am willing to ascribe
rather to his constitutional fear of giving offence than to sincere
conviction.
[182] The address of the House of Commons, begging the queen to marry,
was on February 6, 1559.
[183] Haynes, 233.
[184] See particularly two letters in the _Hardwicke State Papers_, i.
122 and 163, dated in October and November 1560, which show the alarm
excited by the queen's ill-placed partiality.
[185] Cecil's earnestness for the Austrian marriage appears plainly
(Haynes, 430), and still more in a remarkable minute, where he has drawn
up, in parallel columns, according to a rather formal, but perspicuous,
method he much used, his reasons in favour of the archduke, and against
the Earl of Leicester. The former chiefly relate to foreign politics,
and may be conjectured by those acquainted with history. The latter are
as follows: 1. Nothing is increased by marriage of him, either in
riches, estimation, or power. 2. It will be thought that the slanderous
speeches of the queen with the earl have been true. 3. He shall study
nothing but to enhance his own particular friends to wealth, to offices,
to lands, and to offend others. 4. He is infamed by death of his wife.
5. He is far in debt. 6. He is likely to be unkind, and jealous of the
queen's majesty. _Id._ 444. These suggestions, and especially the
second, if actually laid before the queen, show the plainness and
freedom which this great statesman ventured to use towards her. The
allusion to the death of Leicester's wife, which had occurred in a very
suspicious manner, at Cumnor, near Oxford, and is well known as the
foundation of the novel of _Kenilworth_, though related there with great
anachronism and confusion of persons, may be frequently met with in
contemporary documents. By the above quoted letters in the _Hardwicke
Papers_, it appears that those who disliked Leicester had spoken freely
of this report to the queen.
[186] Elizabeth carried her dissimulation so far as to propose marriage
articles, which were formally laid before the imperial ambassador.
These, though copied from what had been agreed on Mary's marriage with
Philip, now seemed highly ridiculous, when exacted from a younger
brother without territories or revenues. Jura et leges regni
conserventur, neque quicquam mutetur in religione aut in statu publico.
Officia et magistratus exerceantur per naturales. Neque regina, neque
liberi sui educantur ex regno sine consensu regni, etc. Haynes, 438.
Cecil was not too wise a man to give some credit to astrology. The stars
were consulted about the queen's marriage; and those veracious oracles
gave response, that she should be married in the thirty-first year of
her age to a _foreigner_, and have one son, who would be a great prince,
and a daughter, etc., etc. Strype, ii. 16, and Appendix 4, where the
nonsense may be read at full length. Perhaps, however, the wily minister
was no dupe, but meant that his mistress should be.
[187] The council appear in general to have been as resolute against
tolerating the exercise of the catholic religion in any husband the
queen might choose, as herself. We find, however, that several divines
were consulted on two questions: 1. Whether it were lawful to marry a
papist. 2. Whether the queen might permit mass to be said. To which
answers were given, not agreeing with each other. Strype, ii. 150, and
Appendix 31, 33. When the Earl of Worcester was sent over to Paris in
1571, as proxy for the queen, who had been made sponsor for Charles
IX.'s infant daughter, she would not permit him, though himself a
catholic, to be present at the mass on that occasion. ii. 171.
[188] "The people," Camden says, "cursed Huic, the queen's physician, as
having dissuaded the queen from marrying on account of some impediment
and defect in her." Many will recollect the allusion to this in Mary's
scandalous letter to Elizabeth, wherein, under pretence of repeating
what the Countess of Shrewsbury had said, she utters everything that
female spite and mistrust could dictate. But in the long and
confidential correspondence of Cecil, Walsingham, and Sir Thomas Smith,
about the queen's marriage with the Duke of Anjou, in 1571, for which
they were evidently most anxious, I do not perceive the slightest
intimation that the prospect of her bearing children was at all less
favourable than in any other case. The council seem, indeed, in the
subsequent treaty with the other Duke of Anjou, in 1579, when she was
forty-six, to have reckoned on something rather beyond the usual laws of
nature in this respect; for in a minute by Cecil of the reasons for and
against this marriage, he sets down the probability of issue on the
favourable side. "By marriage with Monsieur she is likely to have
children, _because of his youth_;" as if her age were no objection.
[189] Camden, after telling us that the queen's disinclination to marry
raised great clamours, and that the Earls of Pembroke and Leicester had
professed their opinion that she ought to be obliged to take a husband,
or that a successor should be declared by act of parliament even against
her will, asserts some time after, as inconsistently as improperly, that
"very few but malcontents and traitors appeared very solicitous in the
business of a successor."--P. 401 (in Kennet's _Complete Hist. of
England_, vol. ii.). This, however, from Camden's known proneness to
flatter James, seems to indicate that the Suffolk party were more active
than the Scots upon this occasion. Their strength lay in the House of
Commons, which was wholly protestant, and rather puritan.
At the end of Murden's _State Papers_ is a short journal kept by Cecil,
containing a succinct and authentic summary of events in Elizabeth's
reign. I extract as a specimen such passages as bear on the present
subject.
October 6, 1566. Certain lewd bills thrown abroad against the queen's
majesty for not assenting to have the matter of succession proved in
parliament; and bills also to charge Sir W. Cecil, the secretary, with
the occasion thereof.
27. Certain lords, viz., the Earls of Pembroke and Leicester, were
excluded the presence-chamber for furthering the proposition of the
succession to be declared by parliament without the queen's allowance.
November 12. Messrs. Bell and Monson moved trouble in the parliament
about the succession.
14. The queen had before her thirty lords and thirty commoners, to
receive her answer concerning their petition for the succession and for
marriage. Dalton was blamed for speaking in the Commons' house.
24. Command given to the parliament not to treat of the succession.
Nota: in this parliament time the queen's majesty did remit a part of
the offer of a subsidy to the Commons, who offered largely, to the end
to have had the succession established. P. 762.
[190] Catherine, after her release from the Tower, was placed in the
custody of her uncle, Lord John Grey, but still suffering the queen's
displeasure, and separated from her husband. Several interesting letters
from her and her uncle to Cecil are among the Lansdowne MSS. vol. vi.
They cannot be read without indignation at Elizabeth's unfeeling
severity. Sorrow killed this poor young woman the next year, who was
never permitted to see her husband again. Strype, i. 391. The Earl of
Hertford underwent a long imprisonment, and continued in obscurity
during Elizabeth's reign; but had some public employments under her
successor. He was twice afterwards married, and lived to a very advanced
age, not dying till 1621, near sixty years after his ill-starred and
ambitious love. It is worth while to read the epitaph on his monument in
the S.E. aisle of Salisbury Cathedral, an affecting testimony to the
purity and faithfulness of an attachment rendered still more sacred by
misfortune and time. Quo desiderio veteres revocavit amores! I shall
revert to the question of this marriage in a subsequent chapter.
[191] Haynes, 396.
[192] _Id._ 413; Strype, 410. Hales's treatise in favour of the
authenticity of Henry's will is among the Harleian MSS. n. 537 and 555,
and has also been printed in the Appendix to _Hereditary Right
Asserted_, fol. 1713.
[193] Camden, p. 416, ascribes the powerful coalition formed against him
in 1569, wherein Norfolk and Leicester were combined with all the
catholic peers, to his predilection for the house of Suffolk. But it was
more probably owing to their knowledge of his integrity and attachment
to his sovereign, which would steadfastly oppose their wicked design of
bringing about Norfolk's marriage with Mary, as well as to their
jealousy of his influence. Carte reports, on the authority of the
despatches of Fenelon, the French ambassador, that they intended to
bring him to account for breaking off the ancient league with the house
of Burgundy, or, in other words, for maintaining the protestant
interest. Vol. iii. p. 483.
A papist writer, under the name of Andreas Philopater, gives an account
of this confederacy against Cecil at some length. Norfolk and Leicester
belonged to it; and the object was to defeat the Suffolk succession,
which Cecil and Bacon favoured. Leicester betrayed his associates to the
queen. It had been intended that Norfolk should accuse the two
counsellors before the Lords, 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.
[194] D'Ewes, 81.
[195] Strype, 11, Append. This speech seems to have been made while
Catherine Grey was living; perhaps therefore it was in a former
parliament, for no account that I have seen represents her as having
been alive so late as 1571.
[196] There was something peculiar in Mary's mode of blazonry. She bore
Scotland and England quarterly, the former being first; but over all was
a half scutcheon of pretence with the arms of England, the sinister half
being, as it were, obscured, in order to intimate that she was kept out
of her right. Strype, vol. i. p. 8.
The despatches of Throckmorton, the English ambassador in France, bear
continual testimony to the insulting and hostile manner in which Francis
II. and his queen displayed their pretensions to our crown. Forbes's
_State Papers_, vol. i. _passim_. The following is an instance. At the
entrance of the king and queen into Chatelherault, 23rd November 1559,
these lines formed the inscription over one of the gates:
"Gallia perpetuis pugnaxque Britannia bellis
Olim odio inter se dimicuere pari.
Nunc Gallos totoque remotos orbe Britannos
Unum dos Mariæ cogit in imperium.
Ergo pace potes, Francisce, quod omnibus armis
Mille patres annis non potuere tui."
This offensive behaviour of the French court is the apology of
Elizabeth's intrigues during the same period with the malcontents, which
to a certain extent cannot be denied by any one who has read the
collection above quoted; though I do not think Dr. Lingard warranted in
asserting her privity to the conspiracy of Amboise as a proved fact.
Throckmorton was a man very likely to exceed his instructions; and there
is much reason to believe that he did so. It is remarkable that no
modern French writer that I have seen, Anquetil, Garnier, Lacretelle, or
the editors of the _General Collection of Memoirs_, seem to have been
aware of Elizabeth's secret intrigues with the king of Navarre and other
protestant chiefs in 1559, which these letters, published by Forbes in
1740, demonstrate.
[197] Burnet, i. Append. 266. Many letters, both of Mary herself and of
her secretary, the famous Maitland of Lethington, occur in Haynes's
_State Papers_, about the end of 1561. In one of his to Cecil, he urges,
in answer to what had been alleged by the English court, that a
collateral successor had never been declared in any prince's life-time,
that whatever reason there might be for that, "if the succession had
remained untouched according to the law, yet where by a limitation men
had gone about to prevent the providence of God, and shift one into the
place due to another, the offended party could not but seek the redress
thereof."--P. 373.
[198] A very remarkable letter of the Earl of Sussex, October 22, 1568,
contains these words: "I think surely no end can be made good for
England, except the person of the Scottish queen be detained, by one
means or other, in England." The whole letter manifests the spirit of
Elizabeth's advisers, and does no great credit to Sussex's sense of
justice, but a great deal to his ability. Yet he afterwards became an
advocate for the Duke of Norfolk's marriage with Mary. Lodge's
_Illustrations_, vol. ii. p. 4.
[199] Hume and Carte say, this first illness was the small-pox. But it
appears by a letter from the queen to Lord Shrewsbury (Lodge, 279) that
her attack in 1571 was suspected to be that disorder.
[200] Haynes, 580.
[201] In a conversation which Mary had with one Rooksby, a spy of
Cecil's, about the spring of 1566, she imprudently named several of her
friends, and of others whom she hoped to win, such as the Duke of
Norfolk, the Earls of Derby, Northumberland, Westmoreland, Cumberland,
Shrewsbury. "She had the better hope of this, for that she thought them
to be all of the old religion, which she meant to restore again with all
expedition, and thereby win the hearts of the common people." The whole
passage is worth notice. Haynes, 447. See also Melvil's _Memoirs_, for
the dispositions of an English party towards Mary in 1566.
[202] Murden's _State Papers_, 134, 180. Norfolk was a very weak man,
the dupe of some very cunning ones. We may observe that his submission,
to the queen (_Id._ 153) is expressed in a style which would now be
thought most pusillanimous in a man of much lower station, yet he died
with great intrepidity. But such was the tone of those times; an
exaggerated hypocrisy prevailed in everything.
[203] _State Trials_, i. 957. He was interrogated by the queen's counsel
with the most insidious questions. All the material evidence was read to
the Lords from written depositions of witnesses who might have been
called, contrary to the statute of Edward VI. But the _Burghley Papers_,
published by Haynes and Murden, contain a mass of documents relative to
this conspiracy, which leave no doubt as to the most heinous charge,
that of inviting the Duke of Alva to invade the kingdom. There is reason
to suspect that he feigned himself a catholic in order to secure Alva's
assistance. Murden, p. 10.
[204] The northern counties were at this time chiefly catholic. "There
are not," says Sadler, writing from thence, "ten gentlemen in this
country who do favour and allow of their majesty's proceedings in the
cause of religion." Lingard, vii. 54. It was consequently the great
resort of the priests from the Netherlands, and in the feeble state of
the protestant church there wanted sufficient ministers to stand up in
its defence. Strype, i. 509, _et post_; ii. 183. Many of the gentry
indeed were still disaffected in other parts towards the new religion. A
profession of conformity was required in 1569 from all justices of the
peace, which some refused, and others made against their consciences.
_Id._ i. 567.
[205] Camden has quoted a long passage from Hieronymo Catena's _Life of
Pius V._, published at Rome in 1588, which illustrates the evidence to
the same effect contained in the _Burghley Papers_, and partly adduced
on the Duke of Norfolk's trial.
[206] Strype, i. 546, 553, 556.
[207] _Id._ 578; Camden, 428; Lodge, ii. 45.
[208] Strype, ii. 88; _Life of Smith_, 152.
[209] Strype, i. 502. I do not give any credit whatever to this league,
as printed in Strype, which seems to have been fabricated by some of the
queen's emissaries. There had been, not perhaps a treaty, but a verbal
agreement between France and Spain at Bayonne some time before; but its
object was apparently confined to the suppression of protestantism in
France and the Netherlands. Had they succeeded, however, in this, the
next blow would have been struck at England. It seems very unlikely that
Maximilian was concerned in such a league.
[210] Strype, vol. ii.
[211] The college of Douay for English refugee priests was established
in 1568 or 1569. Lingard, 374. Strype seems, but I believe through
inadvertence, to put this event several years later. _Annals_, ii. 630.
It was dissolved by Requesens, while governor of Flanders, but revived
at Rheims in 1575, under the protection of the cardinal of Lorrain, and
returned to Douay in 1593. Similar colleges were founded at Rome in
1579, at Valladolid in 1589, at St. Omer in 1596, and at Louvain in
1606.
[212] 13 Eliz. c. 1. This act was made at first retrospective, so as to
affect every one who had at any time denied the queen's title. A member
objected to this in debate as "a precedent most perilous." But Sir
Francis Knollys, Mr. Norton, and others defended it. D'Ewes, 162. It
seems to have been amended by the Lords. So little notion had men of
observing the first principles of equity towards their enemies! There is
much reason from the debate to suspect that the _ex post facto_ words
were levelled at Mary.
[213] Strype, ii. 133; D'Ewes, 207.
[214] Strype, ii. 135.
[215] _Life of Parker_, 354.
[216] Strype's _Annals_, ii. 48.
[217] Murden's _Papers_, p. 43, contain proofs of the increased
discontent among the catholics in consequence of the penal laws.
[218] Strype, ii. 330. See too in vol. iii. Appendix 68, a series of
petitions intended to be offered to the queen and parliament, about
1583. These came from the puritanical mint, and show the dread that
party entertained of Mary's succession, and of a relapse into popery. It
is urged in these, that no toleration should be granted to the popish
worship in private houses. Nor in fact had they much cause to complain
that it was so. Knox's famous intolerance is well known. "One mass," he
declared in preaching against Mary's private chapel at Holyrood House,
"was more fearful unto him than if ten thousand armed enemies were
landed in any part of the realm, on purpose to suppress the whole
religion." M'Crie's _Life of Knox_, vol. ii. p. 24. In a conversation
with Maitland he asserted most explicitly the duty of putting idolaters
to death. _Id._ p. 120. Nothing can be more sanguinary than the
reformer's spirit in this remarkable interview. St. Dominic could not
have surpassed him. It is strange to see men, professing all the while
our modern creed of charity and toleration, extol these sanguinary
spirits of the sixteenth century. The English puritans, though I cannot
cite any passages so strong as the foregoing, were much the bitterest
enemies of the catholics. When we read a letter from any one, such as
Mr. Topcliffe, very fierce against the latter, we may expect to find him
put in a word in favour of silenced ministers.
[219] D'Ewes, 161, 177.
[220] Strype's _Life of Parker_, 354.
[221] Strype's _Annals_, i. 582. Honest old Strype, who thinks church
and state never in the wrong, calls this "a notable piece of favour."
[222] _Id._ ii. 110, 408.
[223] Strype's _Annals_, iii. 127.
[224] _Life of Whitgift_, 83. See too p. 99, and _Annals of
Reformation_, ii. 631, etc.; also Holingshed, ann. 1574, _ad init._
[225] An almost incredible specimen of ungracious behaviour towards a
Roman catholic gentleman is mentioned in a letter of Topcliffe, a man
whose daily occupation was to hunt out and molest men for popery. "The
next good news, but in account the highest, her majesty hath served God
with great zeal and comfortable examples; for by her council two
notorious papists, young Rockwood, the master of Euston Hall, where her
majesty did lie upon Sunday now a fortnight, and one Downes, a
gentleman, were both committed, the one to the town prison at Norwich,
the other to the country prison there, for obstinate papistry; and seven
more gentlemen of worship were committed to several houses in Norwich as
prisoners; two of the Lovels, another Downes, one Beningfield, one
Parry, and two others not worth memory for badness of belief.
"This Rockwood is a papist of kind [family] newly crept out of his late
wardship. Her majesty, by some means I know not, was lodged at his
house, Euston, far unmeet for her highness; nevertheless, the gentleman
brought into her presence by like device, her majesty gave him ordinary
thanks for his bad house, and her fair hand to kiss: but my lord
chamberlain nobly and gravely understanding that Rockwood was
excommunicated for papistry, called him before him, demanded of him how
he durst presume to attempt her royal presence, he, unfit to accompany
any Christian person; forthwith said he was fitter for a pair of stocks,
commanded him out of the court, and yet to attend her council's pleasure
at Norwich he was committed. And to dissyffer [sic] the gentleman to the
full, a piece of plate being missed in the court, and searched for in
his hay-house, in the hay-rick, such an image of our lady was there
found, as for greatness, for gayness, and workmanship, I did never see a
match; and after a sort of country dances ended, in her majesty's sight
the idol was set behind the people who avoided; she rather seemed a
beast raised upon a sudden from hell by conjuring, than the picture for
whom it had been so often and so long abused. Her majesty commanded it
to the fire, which in her sight by the country folks was quickly done to
her content, and unspeakable joy of everyone but some one or two who had
sucked of the idol's poisoned milk.
"Shortly after, a great sort of good preachers, who had been long
commanded to silence for a little niceness, were licensed, and again
commanded to preach; a greater and more universal joy to the countries,
and the most of the court, than the disgrace of the papists: and the
gentlemen of those parts, being great and hot protestants, almost before
by policy discredited and disgraced, were greatly countenanced.
"I was so happy lately, amongst other good graces, that her majesty did
tell me of sundry lewd papist beasts that have resorted to Buxton," etc.
Lodge, ii. 188, 30 August 1578.
This Topcliffe was the most implacable persecutor of his age. In a
letter to Lord Burleigh (Strype, iv. 39), he urges him to imprison all
the principal recusants, and especially women, "the farther off from
their own family and friends the better." The whole letter is curious,
as a specimen of the prevalent spirit, especially among the puritans,
whom Topcliffe favoured. Instances of the ill-treatment experienced by
respectable families (the Fitzherberts and Foljambes), and even aged
ladies, without any other provocation than their recusancy, may be found
in Lodge, ii. 372, 462; iii. 22. But those farthest removed from
puritanism partook sometimes of the same tyrannous spirit. Aylmer,
bishop of London, renowned for his persecution of nonconformists, is
said by Rishton de Schismate, p. 319, to have sent a young catholic lady
to be whipped in Bridewell for refusing to conform. If the authority is
suspicious (and yet I do not perceive that Rishton is a liar like
Sanders), the fact is rendered hardly improbable by Aylmer's harsh
character.
[226] Strype's _Life of Smith_, 171; _Annals_, ii. 631, 636; iii. 479;
and Append. 170. The last reference is to a list of magistrates sent up
by the bishops from each diocese, with their characters. Several of
these, but the wives of many more, were inclined to popery.
[227] Allen's _Admonition to the Nobility and People of England_,
written in 1588, to promote the success of the Armada, is full of gross
lies against the queen. See an analysis of it in Lingard, note B. B. Mr.
Butler fully acknowledges, what indeed the whole tenor of historical
documents for this reign confirms, that Allen and Persons were actively
engaged in endeavouring to dethrone Elizabeth, by means of a Spanish
force. But it must, I think, be candidly confessed by protestants, that
they had very little influence over the superior catholic laity. And an
argument may be drawn from hence against those who conceive the
political conduct of catholics to be entirely swayed by their priests,
when even in the sixteenth century the efforts of these able men, united
with the head of their church, could produce so little effect. Strype
owns that Allen's book gave offence to many catholics, iii. 560; _Life
of Whitgift_, 505. One Wright of Douay answered a case of conscience,
whether catholics might take up arms to assist the king of Spain against
the queen, in the negative. _Id._ 251; _Annals_, 565. This man, though a
known loyalist, and actually in the employment of the ministry, was
afterwards kept in a disagreeable sort of confinement, in the Dean of
Westminster's house, of which he complains with much reason. Birch's
_Memoirs_, vol. ii. p. 71 _et alibi_. Though it does not fall within the
province of a writer on the constitution to enlarge on Elizabeth's
foreign policy, I must observe, in consequence of the laboured attempts
of Dr. Lingard to represent it as perfectly Machiavelian, and without
any motive but wanton malignity, that, with respect to France and Spain,
and even Scotland, it was strictly defensive, and justified by the law
of self-preservation; though, in some of the means employed, she did not
always adhere more scrupulously to good faith than her enemies.
[228] 23 Eliz. c. 1 and 29 Eliz. c. 6.
[229] Strype's _Whitgift_, p. 117, and other authorities _passim_.
[230] Camden, Lingard. Two others suffered at Tyburn not long afterwards
for the same offence. Holingshed, 344. See in Butler's _Mem. of
Catholics_, vol. iii. p. 382, an affecting narrative, from Dodd's
_Church History_, of the sufferings of Mr. Tregian and his family, the
gentleman whose chaplain Mayne had been. I see no cause to doubt its
truth.
[231] Ribadeneira, _Continuatio Sanderi et Rishtoni de Schismate
Anglicano_, p. 111; Philopater, p. 247. This circumstance of Sherwood's
age is not mentioned by Stowe; nor does Dr. Lingard advert to it. No
woman was put to death under the penal code, so far as I remember; which
of itself distinguishes the persecution from that of Mary, and of the
house of Austria in Spain and the Netherlands.
[232] Strype's _Parker_, 375.
[233] Strype's _Annals_, ii. 644.
[234] _State Trials_, i. 1050; from the _Phoenix Britannicus_.
[235] _Id._ 1078; Butler's _English Catholics_, i. 184, 244; Lingard,
vii. 182, whose remarks are just and candid. A tract, of which I have
only seen an Italian translation, printed at Macerata in 1585, entitled
"Historia del glorioso martirio di diciotto sacerdoti e un secolare,
fatti morire in Inghilterra per la confessione e difensione della fede
cattolica," by no means asserts that he acknowledged Elizabeth to be
queen _de jure_, but rather that he refused to give an opinion as to her
right. He prayed, however, for her as a queen. "Io ho pregato, e prego
per lei. All' ora il Signor Howardo li domandò per qual regina egli
pregasse, se per Elisabetta? Al quale rispose, Si, per Elisabetta." Mr.
Butler quotes this tract in English.
The trials and deaths of Campian and his associates are told in the
continuation of Holingshed, with a savageness and bigotry which, I am
very sure, no scribe for the Inquisition could have surpassed. P. 456.
But it is plain, even from this account, that Campian owned Elizabeth as
queen. See particularly p. 488, for the insulting manner in which this
writer describes the pious fortitude of these butchered ecclesiastics.
[236] Strype, ii. 637; Butler's _Eng. Catholics_, i. 196. The Earl of
Southampton asked Mary's ambassador, Bishop Lesley, whether, after the
bull, he could in conscience obey Elizabeth. Lesley answered, that as
long as she was the stronger he ought to obey her. Murden, p. 30. The
writer quoted before by the name of Andreas Philopater (Persons,
translated by Cresswell, according to Mr. Butler, vol. iii. p. 236),
after justifying at length the resistance of the League to Henry IV.,
adds the following remarkable paragraph: "Hinc etiam infert universa
theologorum et jurisconsultorum schola, et est certum et de fide,
quemcunque principem christianum, si a religione 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."--P. 149. He quotes four
authorities for this in the margin, from the works of divines or
canonists.
This broad duty, however, of expelling a heretic sovereign, he qualifies
by two conditions; first, that the subjects should have the power, "ut
vires habeant idoneas ad hoc subditi;" secondly, that the heresy be
undeniable. There can, in truth, be no doubt that the allegiance
professed to the queen by the seminary priests and jesuits, and, as far
as their influence extended, by all catholics, was with this
reservation--till they should be strong enough to throw it off. See the
same tract, p. 229. But after all, when we come fairly to consider it,
is not this the case with every disaffected party in every state? a good
reason for watchfulness, but none for extermination.
[237] Rishton and Ribadeneira. See in Lingard, note U, a specification
of the different kinds of torture used in this reign.
The government did not pretend to deny the employment of torture. But
the puritans, eager as they were to exert the utmost severity of the law
against the professors of the old religion, had more regard to civil
liberty than to approve such a violation of it. Beal, clerk of the
council, wrote, about 1585, a vehement book against the ecclesiastical
system, from which Whitgift picks out various enormous propositions, as
he thinks them; one of which is, "that he condemns, without exception of
any cause, racking of grievous offenders, as being cruel, barbarous,
contrary to law, and unto the liberty of English subjects." Strype's
_Whitgift_, p. 212.
[238] The persecution of catholics in England was made use of as an
argument against permitting Henry IV. to reign in France, as appears by
the title of a tract published in 1586: "Advertissement des catholiques,
Anglois aux 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.
One of the attacks on Elizabeth deserves some notice, as it has lately
been revived. In the statute 13 Eliz. an expression is used, "her
majesty, and the natural issue of her body," instead of the more common
legal phrase, "lawful issue." This probably was adopted by the queen out
of prudery, as if the usual term implied the possibility of her having
unlawful issue. But the papistical libellers put the most absurd
interpretation on the word "natural," as if it was meant to secure the
succession for some imaginary bastards by Leicester. And Dr. Lingard is
not ashamed to insinuate the same suspicion. Vol. viii. p. 81, note.
Surely what was congenial to the dark malignity of Persons, and the
blind frenzy of Whitaker, does not become the good sense, I cannot say
the candour, of this writer.
It is true that some, not prejudiced against Elizabeth, have doubted
whether "Cupid's fiery dart" was as effectually "quenched in the chaste
beams of the watery moon," as her poet intimates. This I must leave to
the reader's judgment. She certainly went strange lengths of indelicacy.
But, if she might sacrifice herself to the queen of Cnidus and Paphos,
she was unmercifully severe to those about her, of both sexes, who
showed any inclination to that worship, though under the escort of
Hymen. Miss Aikin, in her well written and interesting _Memoirs of the
Court of Elizabeth_, has collected several instances from Harrington and
Birch. It is by no means true, as Dr. Lingard asserts, on the authority
of one Faunt, an austere puritan, that her court was dissolute,
comparatively at least with the general character of courts; though
neither was it so virtuous as the enthusiasts of the Elizabethan period
suppose.
[239] _Somers Tracts_, i 189; Strype, iii. 205, 265, 480. Strype says
that he had seen the manuscript of this tract in Lord Burleigh's
handwriting. It was answered by Cardinal Allen, to whom a reply was made
by poor Stubbe, after he had lost his right hand. An Italian translation
of the _Execution of Justice_ was published at London in 1584. This
shows how anxious the queen was to repel the charges of cruelty, which
she must have felt to be not wholly unfounded.
[240] _Somers Tracts_, p. 209.
[241] _State Trials_, i. 1160.
[242] _Somers Tracts_, 164.
[243] Strype, iii. 298. Shelley, though notoriously loyal and frequently
employed by Burleigh, was taken up and examined before the council for
preparing this petition.
[244] P. 591. Proofs of the text are too numerous for quotation, and
occur continually to a reader of Strype's 2nd and 3rd volumes. In vol.
iii. Append. 158, we have a letter to the queen from one Antony Tyrrel,
a priest, who seems to have acted as an informer, wherein he declares
all his accusations of catholics to be false. This man had formerly
professed himself a protestant, and returned afterwards to the same
religion; so that his veracity may be dubious. So, a little further on,
we find in the same collection (p. 250) a letter from one Bennet, a
priest, to Lord Arundel, lamenting the false accusations he had given
against him, and craving pardon. It is always possible, as I have just
hinted, that these retractations may be more false than the charges. But
ministers who employ spies, without the utmost distrust of their
information, are sure to become their dupes, and end by the most violent
injustice and tyranny.
[245] The rich catholics compounded for their recusancy by annual
payments, which were of some consideration in the queen's rather scanty
revenue. A list of such recusants, and of the annual fines paid by them
in 1594, is published in Strype, iv. 197, but is plainly very imperfect.
The total was £3323 1_s_. 10_d_. 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.
[246] Parry seems to have been privately reconciled to the church of
Rome about 1580; after which he continued to correspond with Cecil, but
generally recommending some catholics to mercy. He says, in one letter,
that a book printed at Rome, _De Persecutione Anglicanâ_, had raised a
barbarous opinion of our cruelty; and that he could wish that in those
cases it might please her majesty to pardon the dismembering and
drawing. Strype, iii. 260. He sat afterwards in the parliament of 1584,
taking, of course, the oath of supremacy, where he alone opposed the act
against catholic priests. _Parl. Hist._ 822. Whether he were actually
guilty of plotting against the queen's life (for this part of his
treason he denied at the scaffold) I cannot say; but his speech there
made contained some very good advice to her. The ministry garbled this
before its publication in Holingshed and other books; but Strype has
preserved a genuine copy. Vol. iii. Append. 102. It is plain that Parry
died a catholic; though some late writers of that communion have tried
to disclaim him. Dr. Lingard, it may be added, admits that there were
many schemes to assassinate Elizabeth, though he will not confess any
particular instance. "There exist," he says, "in the archives at
Simancas several notices of such offers."--P. 384.
[247] It might be inferred from some authorities that the catholics had
become in a great degree disaffected to the queen about 1584, in
consequence of the extreme rigour practised against them. In a memoir of
one Crichton, a Scots jesuit, intended to show the easiness of invading
England, he says, that "all the catholics without exception favour the
enterprise, first, for the sake of the restitution of the catholic
faith; secondly, for the right and interest which the Queen of Scots has
to the kingdom, and to deliver her out of prison; thirdly, for the great
trouble and misery they endure more and more, being kept out of all
employments, and dishonoured in their own countries, and treated with
great injustice and partiality when they have need to recur to law; and
also for the execution of the laws touching the confiscation of their
goods in such sort as in so short time would reduce the catholics to
extreme poverty." Strype, iii. 415. And in the report of the Earl of
Northumberland's treasons, laid before the star-chamber, we read that
"Throckmorton said, that the bottom of this enterprise, which was not to
be known to many, was, that if a toleration of religion might not be
obtained without alteration of the government, that then the government
should be altered, and the queen removed." _Somers Tracts_, vol. i. p.
206. Further proofs that the rigour used towards the catholics was the
great means of promoting Philip's designs occur in Birch's _Memoirs of
Elizabeth_, i. 82 _et alibi_.
We have also a letter from Persons in England to Allen in 1586, giving a
good account of the zeal of the catholics, though a very bad one of
their condition through severe imprisonment and other ill-treatment.
Strype, iii. 412, and Append. 151. Rishton and Ribadeneira bear
testimony that the persecution had rendered the laity more zealous and
sincere. De Schismate, l. iii. 320, and l. iv. 53.
Yet to all this we may oppose their good conduct in the year of the
Spanish Armada, and in general during the queen's reign; which proves
that the loyalty of the main body was more firm than their leaders
wished, or their enemies believed. However, if any of my readers should
incline to suspect that there was more disposition among this part of
the community to throw off their allegiance to the queen altogether than
I have admitted, he may possibly be in the right; and I shall not impugn
his opinion, provided he concurs in attributing the whole, or nearly the
whole, of this disaffection to her unjust aggressions on the liberty of
conscience.
[248] _State Trials_, i. 1162.
[249] 27 Eliz. c. i.
[250] In Murden's _State Papers_ we have abundant evidence of Mary's
acquaintance with the plots going forward in 1585 and 1586 against
Elizabeth's government, if not with those for her assassination. But
Thomas Morgan, one of the most active conspirators, writes to her, 9th
July, 1586: "There be some good members that attend opportunity to do
the Queen of England a piece of service, which I trust will quiet many
things, if it shall please God to lay his assistance to the cause, for
the which I pray daily."--P. 530. In her answer to this letter, she does
not advert to this hint, but mentions Babington as in correspondence
with her. At her trial she denied all communication with him.
[251] It may probably be answered to this, that if the letter signed by
Walsingham as well as Davison to Sir Amias Paulet, urging him "to find
out some way to shorten the life of the Scots queen," be genuine, which
cannot perhaps be justly questioned (though it is so in the _Biog.
Brit._ art. WALSINGHAM, note O), it will be difficult to give him credit
for any scrupulousness with respect to Mary. But, without entirely
justifying this letter, it is proper to remark, what the Marian party
choose to overlook, that it was written after the sentence, during the
queen's odious scenes of grimace, when some might argue, though
erroneously, that, a legal trial having passed, the formal method of
putting the prisoner to death might in so peculiar a case, be dispensed
with. This was Elizabeth's own wish, in order to save her reputation,
and enable her to throw the obloquy on her servants; which by Paulet's
prudence and honour in refusing to obey her by privately murdering his
prisoner, she was reduced to do in a very bungling and scandalous
manner.
[252] Questions were put to civilians by the queen's order in 1570,
concerning the extent of Lesley, Bishop of Ross's privilege, as Mary's
ambassador. _Murden Papers_, p. 18; _Somers Tracts_, i. 186. They
answered, first, that an ambassador that raises rebellion against the
prince to whom he is sent, by the law of nations, and the civil law of
the Romans, has forfeited the privileges of an ambassador, and is liable
to punishment: secondly, that if a prince be lawfully deposed from his
public authority, and another substituted in his stead, the agent of
such a prince cannot challenge the privileges of an ambassador; since
none but absolute princes, and such as enjoy a royal prerogative, can
constitute ambassadors. These questions are so far curious, that they
show the _jus gentium_ to have been already reckoned in matter of
science, in which a particular class of lawyers was conversant.
[253] Strype, 360, 362. Civilians were consulted about the legality of
trying Mary. _Idem_, Append. 138.
[254] Butler's _English Catholics_, i. 259; Hume. This is strongly
confirmed by a letter printed not long after, and republished in the
Harleian _Miscellany_, vol. i. p. 142, with the name of one Leigh, a
seminary priest, but probably the work of some protestant. He says, "for
contributions of money, and for all other warlike actions, there was no
difference between the catholic and the heretic. But in this case [of
the Armada] to withstand the threatened conquest, yea, to defend the
person of the queen, there appeared such a sympathy, concourse, and
consent of all sorts of persons, without respect of religion, as they
all appeared to be ready to fight against all strangers as it were with
one heart and one body." Notwithstanding this, I am far from thinking
that it would have been safe to place the catholics, generally speaking,
in command. Sir William Stanley's recent treachery in giving up Deventer
to the Spaniards made it unreasonable for them to complain of exclusion
from trust. Nor do I know that they did so. But trust and toleration are
two different things. And even with respect to the former, I believe it
far better to leave the matter in the hands of the executive government,
which will not readily suffer itself to be betrayed, than to proscribe,
as we have done, whole bodies by a legislative exclusion. Whenever,
indeed, the government itself is not to be trusted, there arises a new
condition of the problem.
[255] Strype, vols. iii. and iv. _passim_; _Life of Whitgift_, 401, 505;
Murden, 667; Birch's _Memoirs of Elizabeth_, Lingard, etc. One hundred
and ten catholics suffered death between 1588 and 1603. Lingard, 513.
[256] 33 Eliz. c. 2.
[257] Camden, 566; Strype, iv. 56. This was the declaration of October
1591, which Andreas Philopater answered. Ribadeneira also inveighs
against it. According to them, its publication was delayed till after
the death of Hatton, when the persecuting part of the queen's council
gained the ascendency.
[258] Butler, 178. In Coke's famous speech in opening the case of the
Powder-plot, he says that not more than thirty priests and five
receivers had been executed in the whole of the queen's reign, and for
religion not any one. _State Trials_, ii. 179.
Dr. Lingard says of those who were executed between 1588, and the
queen's death, "The butchery, with a few exceptions, was performed on
the victim while he was in full possession of his senses." Vol. viii. p.
356. I should be glad to think that the few exceptions were the other
way. Much would depend on the humanity of the sheriff, which one might
hope to be stronger in an English gentleman than his zeal against
popery. But I cannot help acknowledging that there is reason to believe
the disgusting cruelties of the legal sentence to have been frequently
inflicted. In an anonymous memorial among Lord Burleigh's papers,
written about 1586, it is recommended that priests persisting in their
treasonable opinion should be hanged, "and the manner of drawing and
quartering forborne." Strype, iii. 620. This seems to imply that it had
been usually practised on the living. And Lord Bacon, in his
observations on a libel written against Lord Burleigh in 1592, does not
deny the "bowellings" of catholics; but makes a sort of apology for it,
as "less cruel than the wheel or forcipation, or even simple burning."
Bacon's Works, vol. i. p. 534.
[259] Burnet, ii. 418.
[260] "Though no papists were in this reign put to death purely on
account of their religion, as numberless protestants had been in the
woeful days of Queen Mary, yet many were executed for treason."
Churton's _Life of Nowell_, p. 147. Mr. Southey, whose abandonment of
the oppressed side I sincerely regret, holds the same language; and a
later writer, Mr. Townsend, in his _Accusations of History against the
Church of Rome_, has laboured to defend the capital, as well as other,
punishments of catholics under Elizabeth, on the same pretence of their
treason.
Treason, by the law of England, and according to the common use of
language, is the crime of rebellion or conspiracy against the
government. If a statute is made, by which the celebration of certain
religious rites is subjected to the same penalties as rebellion or
conspiracy, would any man, free from prejudice, and not designing to
impose upon the uninformed, speak of persons convicted on such a statute
as guilty of treason, without expressing in what sense he uses the
words, or deny that they were as truly punished for their religion, as
if they had been convicted of heresy? A man is punished for religion,
when he incurs a penalty for its profession or exercise, to which he was
not liable on any other account.
This is applicable to the great majority of capital convictions on this
score under Elizabeth. The persons convicted could not be traitors in
any fair sense of the word, because they were not charged with anything
properly denominated treason. It certainly appears that Campian and some
other priests about the same time were indicted on the statute of Edward
III. for compassing the queen's death, or intending to depose her. But
the only evidence, so far as we know or have reason to suspect, that
could be brought against them, was their own admission, at least by
refusing to abjure it, of the pope's power to depose heretical princes.
I suppose it is unnecessary to prove that, without some overt act to
show a design of acting upon this principle, it could not fall within
the statute.
[261] Watson's _Quodlibets_. True relation of the faction begun at
Wisbech, 1601. These tracts contain rather an uninteresting account of
the squabbles in Wisbech castle among the prisoners, but cast heavy
reproaches on the jesuits, as the "firebrands of all sedition, seeking
by right or wrong simply or absolutely the monarchy of all England,
enemies to all secular priests, and the causes of all the discord in the
English nation."--P. 74. I have seen several other pamphlets of the time
relating to this difference. Some account of it may be found in Camden,
648, and Strype, iv. 194, as well as in the catholic historians, Dodd
and Lingard.
[262] Rymer, xv. 473, 488.
[263] Butler's _Engl. Catholics_, p. 261.
[264] Ribadeneira says, that Hatton, "animo Catholicus, nihil perinde
quam innocentem illorum sanguinem adeo crudeliter perfundi dolebat." He
prevented Cecil from promulgating a more atrocious edict than any other,
which was published after his death in 1591. _De Schismate Anglic._ c.
9. This must have been the proclamation of 29th Nov. 1591, forbidding
all persons to harbour any one, of whose conformity they should not be
well assured.
[265] Birch, i. 84.
CHAPTER IV
ON THE LAWS OF ELIZABETH'S REIGN RESPECTING PROTESTANT NONCONFORMISTS
The two statutes enacted in the first year of Elizabeth, commonly called
the Acts of Supremacy and Uniformity, are the main links of the Anglican
church with the temporal constitution, and establish the subordination
and dependency of the former; the first abrogating all jurisdiction and
legislative power of ecclesiastical rulers, except under the authority
of the Crown; and the second prohibiting all changes of rites and
discipline without the approbation of parliament. It was the constant
policy of this queen to maintain her ecclesiastical prerogative and the
laws she had enacted. But in following up this principle she found
herself involved in many troubles, and had to contend with a religious
party, quite opposite to the Romish, less dangerous indeed and inimical
to her government, but full as vexatious and determined.
_Origin of the differences among the English protestants._--I have in
another place slightly mentioned the differences that began to spring up
under Edward VI. between the moderate reformers who established the new
Anglican church, and those who accused them of proceeding with too much
forbearance in casting off superstitions and abuses. These diversities
of opinion were not without some relation to those which distinguished
the two great families of protestantism in Europe. Luther, intent on his
own system of dogmatic theology, had shown much indifference about
retrenching exterior ceremonies, and had even favoured, especially in
the first years of his preaching, that specious worship which some
ardent reformers were eager to reduce to simplicity.[266] Crucifixes and
images, tapers and priestly vestments, even for a time the elevation of
the host and the Latin mass-book, continued in the Lutheran churches;
while the disciples of Zuingle and Calvin were carefully eradicating
them as popish idolatry and superstition. Cranmer and Ridley, the
founders of the English reformation, justly deeming themselves
independent of any foreign master, adopted a middle course between the
Lutheran and Calvinistic ritual. The general tendency however of
protestants, even in the reign of Edward VI., was towards the simpler
forms; whether through the influence of those foreign divines who
co-operated in our reformation, or because it was natural in the heat of
religious animosity to recede as far as possible, especially in such
exterior distinctions, from the opposite denomination. The death of
Edward seems to have prevented a further approach to the scheme of
Geneva in our ceremonies, and perhaps in our discipline. During the
persecution of Mary's reign, the most eminent protestant clergymen took
refuge in various cities of Germany and Switzerland. They were received
by the Calvinists with hospitality and fraternal kindness; while the
Lutheran divines, a narrow-minded intolerant faction, both neglected and
insulted them.[267] Divisions soon arose among themselves about the use
of the English service, in which a pretty considerable party was
disposed to make alterations. The chief scene of these disturbances was
Frankfort, where Knox, the famous reformer of Scotland, headed the
innovators; while Cox, an eminent divine, much concerned in the
establishment of Edward VI., and afterwards Bishop of Ely, stood up for
the original liturgy. Cox succeeded (not quite fairly, if we may rely on
the only narrative we possess) in driving his opponents from the city;
but these disagreements were by no means healed, when the accession of
Elizabeth recalled both parties to their own country, neither of them
very likely to display more mutual charity in their prosperous hour,
than they had been able to exercise in a common persecution.[268]
_Religious inclinations of the queen._--The first mortification these
exiles endured on their return was to find a more dilatory advance
towards public reformation of religion, and more of what they deemed
lukewarmness, than their sanguine zeal had anticipated. Most part of
this delay was owing to the greater prudence of the queen's counsellors,
who felt the pulse of the nation before they ventured on such essential
changes. But there was yet another obstacle, on which the reformers had
not reckoned. Elizabeth, though resolute against submitting to the
papal supremacy, was not so averse to all the tenets abjured by
protestants, and loved also a more splendid worship than had prevailed
in her brother's reign; while many of those returned from the continent
were intent on copying a still simpler model. She reproved a divine who
preached against the real presence, and is even said to have used
prayers to the Virgin.[269] But her great struggle with the reformers
was about images, and particularly the crucifix, which she retained,
with lighted tapers before it, in her chapel; though in the injunctions
to the ecclesiastical visitors of 1559, they are directed to have them
taken away from churches.[270] This concession she must have made very
reluctantly, for we find proofs the next year of her inclination to
restore them; and the question of their lawfulness was debated, as Jewel
writes word to Peter Martyr, by himself and Grindal on one side, against
Parker and Cox, who had been persuaded to argue in their favour.[271]
But the strenuous opposition of men so distinguished as Jewel, Sandys,
and Grindal, of whom the first declared his intention of resigning his
bishopric in case this return towards superstition should be made,
compelled Elizabeth to relinquish her project.[272] The crucifix was
even for a time removed from her own chapel, but replaced about
1570.[273]
There was however one other subject of dispute between the old and new
religions, upon which her majesty could not be brought to adopt the
protestant side of the question. This was the marriage of the clergy, to
which she expressed so great an aversion, that she would never consent
to repeal the statute of her sister's reign against it.[274]
Accordingly, the bishops and clergy, though they married by connivance,
or rather by an ungracious permission,[275] saw, with very just
dissatisfaction, their children treated by the law as the offspring of
concubinage.[276] This continued, in legal strictness, till the first
year of James, when the statute of Mary was explicitly repealed; though
I cannot help suspecting that clerical marriages had been tacitly
recognised, even in courts of justice, long before that time. Yet it
appears less probable to derive Elizabeth's prejudice in this respect
from any deference to the Roman discipline, than from that strange
dislike to the most lawful union between the sexes, which formed one of
the singularities of her character.
Such a reluctance as the queen displayed to return in every point even
to the system established under Edward, was no slight disappointment to
those who thought that too little had been effected by it. They had
beheld at Zurich and Geneva the simplest, and, as they conceived, the
purest form of worship. They were persuaded that the vestments still
worn by the clergy, as in the days of popery, though in themselves
indifferent, led to erroneous notions among the people, and kept alive a
recollection of former superstitions, which would render their return to
them more easy in the event of another political revolution.[277] They
disliked some other ceremonies for the same reason. These objections
were by no means confined, as is perpetually insinuated, to a few
discontented persons. Except Archbishop Parker, who had remained in
England during the late reign, and Cox, Bishop of Ely, who had taken a
strong part at Frankfort against innovation, all the most eminent
churchmen, such as Jewel, Grindal, Sandys, Nowell, were in favour of
leaving off the surplice and what were called the popish
ceremonies.[278] Whether their objections are to be deemed narrow and
frivolous or otherwise, it is inconsistent with veracity to dissemble
that the queen alone was the cause of retaining those observances, to
which the great separation from the Anglican establishment is ascribed.
Had her influence been withdrawn, surplices and square caps would have
lost their steadiest friend; and several other little accommodations to
the prevalent dispositions of protestants would have taken place. Of
this it seems impossible to doubt, when we read the proceedings of the
convocation in 1562, when a proposition to abolish most of the usages
deemed objectionable was lost only by a vote, the numbers being 59 to
58.[279]
In thus restraining the ardent zeal of reformation, Elizabeth may not
have been guided merely by her own prejudices, without far higher
motives of prudence and even of equity. It is difficult to pronounce in
what proportion the two conflicting religions were blended on her coming
to the throne. The reformed occupied most large towns, and were no doubt
a more active and powerful body than their opponents. Nor did the
ecclesiastical visitors of 1559 complain of any resistance, or even
unwillingness, among the people.[280] Still the Romish party was
extremely numerous; it comprehended the far greater portion of the
beneficed clergy, and all those who, having no turn for controversy,
clung with pious reverence to the rites and worship of their earliest
associations. It might be thought perhaps not very repugnant to wisdom
or to charity, that such persons should be won over to the reformed
faith by retaining a few indifferent usages, which gratified their eyes,
and took off the impression, so unpleasing to simple minds, of religious
innovation. It might be urged that, should even somewhat more of
superstition remain awhile than rational men would approve, the mischief
would be far less than to drive the people back into the arms of popery,
or to expose them to the natural consequences of destroying at once all
old landmarks of reverence,--a dangerous fanaticism, or a careless
irreligion. I know not in what degree these considerations had weight
with Elizabeth; but they were such as it well became her to entertain.
We live however too far from the period of her accession, to pass an
unqualified decision on the course of policy which it was best for the
queen to pursue. The difficulties of effecting a compromise between two
intolerant and exclusive sects were perhaps insuperable. In maintaining
or altering a religious establishment, it may be reckoned the general
duty of governments to respect the wishes of the majority. But it is
also a rule of human policy to favour the more efficient and
determined, which may not always be the more numerous party. I am far
from being convinced that it would not have been practicable, by
receding a little from that uniformity which governors delight to
prescribe, to have palliated in a great measure, if not put an end for a
time, to the discontent that so soon endangered the new establishment.
The frivolous usages, to which so many frivolous objections were raised,
such as the tippet and surplice, the sign of the cross in baptism, the
ring in matrimony, the posture of kneeling at the communion, might have
been left to private discretion, not possibly without some
inconvenience, but with less, as I conceive, than resulted from
rendering their observance indispensable. Nor should we allow ourselves
to be turned aside by the common reply, that no concessions of this kind
would have ultimately prevented the disunion of the church upon more
essential differences than these litigated ceremonies; since the science
of policy, like that of medicine, must content itself with devising
remedies for immediate danger, and can at best only retard the progress
of that intrinsic decay which seems to be the law of all things human,
and through which every institution of man, like his earthly frame, must
one day crumble into ruin.
_Unwillingness to comply with the established ceremonies._--The
repugnance felt by a large part of the protestant clergy to the
ceremonies with which Elizabeth would not consent to dispense, showed
itself in irregular transgressions of the uniformity prescribed by
statute. Some continued to wear the habits, others laid them aside; the
communicants received the sacrament sitting, or standing, or kneeling,
according to the minister's taste; some baptized in the font, others in
a basin; some with the sign of the cross, others without it. The people
in London and other towns, siding chiefly with the malcontents, insulted
such of the clergy as observed the prescribed order.[281] Many of the
bishops readily connived at deviations from ceremonies which they
disapproved. Some, who felt little objection to their use, were against
imposing them as necessary.[282] And this opinion, which led to very
momentous inferences, began so much to prevail, that we soon find the
objections to conformity more grounded on the unlawfulness of compulsory
regulations in the church prescribed by the civil power, than on any
special impropriety in the usages themselves. But this principle, which
perhaps the scrupulous party did not yet very fully avow, was altogether
incompatible with the supremacy vested in the queen, of which fairest
flower of her prerogative she was abundantly tenacious. One thing was
evident, that the puritan malcontents were growing every day more
numerous, more determined, and more likely to win over the generality of
those who sincerely favoured the protestant cause. There were but two
lines to be taken; either to relax and modify the regulations which gave
offence, or to enforce a more punctual observation of them. It seems to
me far more probable that the former course would have prevented a great
deal of that mischief which the second manifestly aggravated. For in
this early stage the advocates of a simpler ritual had by no means
assumed the shape of an embodied faction, whom concessions, it must be
owned, are not apt to satisfy, but numbered the most learned and
distinguished portion of the hierarchy. Parker stood nearly alone on the
other side, but alone more than an equipoise in the balance, through his
high station, his judgment in matters of policy, and his knowledge of
the queen's disposition. He had possibly reason to apprehend that
Elizabeth, irritated by the prevalent humour for alteration, might burst
entirely away from the protestant side, or stretch her supremacy to
reduce the church into a slavish subjection to her caprice.[283] This
might induce a man of his sagacity, who took a far wider view of civil
affairs than his brethren, to exert himself according to her peremptory
command for universal conformity. But it is not easy to reconcile the
whole of his conduct to this supposition; and in the copious memorials
of Strype, we find the archbishop rather exciting the queen to rigorous
measures against the puritans than standing in need of her
admonition.[284]
_Conformity enforced by the archbishop against the disposition of
others._--The unsettled state of exterior religion which has been
mentioned lasted till 1565. In the beginning of that year a
determination was taken by the queen, or rather perhaps the archbishop,
to put a stop to all irregularities in the public service. He set forth
a book called _Advertisements_, containing orders and regulations for
the discipline of the clergy. This modest title was taken in consequence
of the queen's withholding her sanction of its appearance through
Leicester's influence.[285] The primate's next step was to summon before
the ecclesiastical commission Sampson, Dean of Christchurch, and
Humphrey, President of Magdalen College, Oxford, men of signal
non-conformity, but at the same time of such eminent reputation that,
when the law took its course against them, no other offender could hope
for indulgence. On refusing to wear the customary habits, Sampson was
deprived of his deanery; but the other seems to have been
tolerated.[286] This instance of severity, as commonly happens, rather
irritated than intimidated the puritan clergy, aware of their numbers,
their popularity, and their powerful friends, but above all sustained by
their own sincerity and earnestness. Parker had taken his resolution to
proceed in the vigorous course he had begun. He obtained from the queen
a proclamation, peremptorily requiring conformity in the use of the
clerical vestments and other matters of discipline. The London
ministers, summoned before himself and their bishop, Grindal, who did
not very willingly co-operate with his metropolitan, were called upon
for a promise to comply with the legal ceremonies, which thirty-seven
out of ninety-eight refused to make. They were in consequence suspended
from their ministry, and their livings put in sequestration. But these
unfortunately, as was the case in all this reign, were the most
conspicuous, both for their general character and for their talent in
preaching.[287]
Whatever deviations from uniformity existed within the pale of the
Anglican church, no attempt had hitherto been made to form separate
assemblies; nor could it be deemed necessary, while so much indulgence
had been conceded to the scrupulous clergy. But they were now reduced to
determine whether the imposition of those rites they disliked would
justify, or render necessary, an abandonment of their ministry. The
bishops of that school had so far overcome their repugnance, as not only
to observe the ceremonies of the church, but, in some instances, to
employ compulsion towards others.[288] A more unexceptionable, because
more disinterested, judgment was pronounced by some of the Swiss
reformers to whom our own paid great respect--Beza, Gualter, and
Bullinger; who, while they regretted the continuance of a few
superfluous rites, and still more the severity used towards good men,
dissuaded their friends from deserting their vocation on that account.
Several of the most respectable opponents of the ceremonies were equally
adverse to any open schism.[289] But the animosities springing from
heated zeal, and the smart of what seemed oppression, would not suffer
the English puritans generally to acquiesce in such temperate counsels.
They began to form separate conventicles in London, not ostentatiously
indeed, but of course without the possibility of eluding notice. It was
doubtless worthy of much consideration, whether an established
church-government could wink at the systematic disregard of its
discipline by those who were subject to its jurisdiction and partook of
its revenues. And yet there were many important considerations derived
from the posture of religion and of the state, which might induce
cool-headed men to doubt the expediency of too much straightening the
reins. But there are few, I trust, who can hesitate to admit that the
puritan clergy, after being excluded from their benefices, might still
claim from a just government a peaceful toleration of their particular
worship. This it was vain to expect from the queen's arbitrary spirit,
the imperious humour of Parker, and that total disregard of the rights
of conscience which was common to all parties in the sixteenth century.
The first instance of actual punishment inflicted on protestant
dissenters was in June 1567, when a company of more than one hundred
were seized during their religious exercises at Plummer's Hall, which
they had hired on pretence of a wedding, and fourteen or fifteen of them
were sent to prison.[290] They behaved on their examination with a
rudeness as well as self-sufficiency, that had already begun to
characterise the puritan faction. But this cannot excuse the fatal error
of molesting men for the exercise of their own religion.
These coercive proceedings of the archbishop were feebly seconded, or
directly thwarted, by most leading men both in church and state. Grindal
and Sandys, successively Bishops of London and Archbishops of York, were
naturally reckoned at this time somewhat favourable to the
non-conforming ministers, whose scruples they had partaken. Parkhurst
and Pilkington, Bishops of Norwich and Durham, were openly on their
side.[291] They had still more effectual support in the queen's council.
The Earl of Leicester, who possessed more power than any one to sway her
wavering and capricious temper, the Earls of Bedford, Huntingdon, and
Warwick, regarded as the steadiest protestants among the aristocracy,
the wise and grave Lord Keeper Bacon, the sagacious Walsingham, the
experienced Sadler, the zealous Knollys, considered these objects of
Parker's severity, either as demanding a purer worship than had been
established in the church, or at least as worthy by their virtues and
services of more indulgent treatment.[292] Cecil himself, though on
intimate terms with the archbishop, and concurring generally in his
measures, was not far removed from the latter way of thinking, if his
natural caution and extreme dread at this juncture of losing the queen's
favour had permitted him more unequivocally to express it. Those whose
judgment did not incline them towards the puritan notions, respected the
scruples of men in whom the reformed religion could so implicitly
confide. They had regard also to the condition of the church. The far
greater part of its benefices were supplied by conformists of very
doubtful sincerity, who would resume their mass-books with more alacrity
than they had cast them aside.[293] Such a deficiency of protestant
clergy had been experienced at the queen's accession, that for several
years it was a common practice to appoint laymen, usually mechanics, to
read the service in vacant churches.[294] These were not always wholly
illiterate; or if they were, it was no more than might be said of the
popish clergy, the vast majority of whom were destitute of all useful
knowledge, and could read little Latin.[295] Of the two universities,
Oxford had become so strongly attached to the Romish side during the
late reign, that, after the desertion or expulsion of the most zealous
of that party had almost emptied several colleges, it still for many
years abounded with adherents to the old religion.[296] But at
Cambridge, which had been equally popish at the queen's accession, the
opposite faction soon acquired the ascendant. The younger students,
imbibing ardently the new creed of ecclesiastical liberty, and excited
by puritan sermons, began to throw off their surplices, and to commit
other breaches of discipline, from which it might be inferred that the
generation to come would not be less apt for innovation than the
present.[297]
_A more determined opposition, about 1570, led by Cartwright._--The
first period in the history of puritanism includes the time from the
queen's accession to 1570, during which the retention of superstitious
ceremonies in the church had been the sole avowed ground of complaint.
But when these obnoxious rites came to be enforced with unsparing
rigour, and even those who voluntarily renounced the temporal advantages
of the establishment were hunted from their private conventicles, they
began to consider the national system of ecclesiastical regimen as
itself in fault, and to transfer to the institution of episcopacy that
dislike they felt for some of the prelates. The ostensible founder of
this new school (though probably its tenets were by no means new to many
of the sect) was Thomas Cartwright, the Lady Margaret's professor of
divinity at Cambridge. He began about 1570 to inculcate the unlawfulness
of any form of church-government, except what the apostles had
instituted, namely, the presbyterian. A deserved reputation for virtue,
learning, and acuteness, an ardent zeal, an inflexible self-confidence,
a vigorous, rude, and arrogant style, marked him as the formidable
leader of a religious faction.[298] In 1572 he published his celebrated
_Admonition to the Parliament_, calling on that assembly to reform the
various abuses subsisting in the church. In this treatise, such a hardy
spirit of innovation was displayed, and schemes of ecclesiastical policy
so novel and extraordinary were developed, that it made a most important
epoch in the contest, and rendered its termination far more improbable.
The hour for liberal concessions had been suffered to pass away; the
archbishops' intolerant temper had taught men to question the authority
that oppressed them, till the battle was no longer to be fought for a
tippet and a surplice, but for the whole ecclesiastical hierarchy,
interwoven as it was with the temporal constitution of England.
It had been the first measure adopted in throwing off the yoke of Rome
to invest the sovereign with an absolute control over the Anglican
church; so that no part of its coercive discipline could be exercised
but by his authority, nor any laws enacted for its governance without
his sanction. This supremacy, indeed both Henry VIII. and Edward VI. had
carried so far, that the bishops were reduced almost to the rank of
temporal officers, taking out commissions to rule their dioceses during
the king's pleasure; and Cranmer had prostrated at the feet of Henry
those spiritual functions which have usually been reckoned inherent in
the order of clergy. Elizabeth took some pains to soften and almost
explain away her supremacy, in order to conciliate the catholics; while,
by means of the high commission court, established by statute in the
first year of her reign, she was practically asserting it with no little
despotism. But the avowed opponents of this prerogative were hitherto
chiefly those who looked to Rome for another head of their church. The
disciples of Cartwright now learned to claim an ecclesiastical
independence, as unconstrained as the Romish priesthood in the darkest
ages had usurped. "No civil magistrate in councils or assemblies for
church matters," he says in his _Admonition_, "can either be chief
moderator, over-ruler, judge, or determiner; nor has he such authority
as that, without his consent, it should not be lawful for ecclesiastical
persons to make any church orders or ceremonies. Church matters ought
ordinarily to be handled by church officers. The principal direction of
them is by God's ordinance committed to the ministers of the church and
to the ecclesiastical governors. As these meddle not with the making
civil laws, so the civil magistrate ought not to ordain ceremonies, or
determine controversies in the church, as long as they do not intrench
upon his temporal authority. 'Tis the prince's province to protect and
defend the councils of his clergy, to keep the peace, to see their
decrees executed, and to punish the contemners of them; but to exercise
no spiritual jurisdiction."[299] "It must be remembered," he says in
another place, "that civil magistrates must govern the church according
to the rules of God prescribed in his word, and that as they are nurses,
so they be servants unto the church; and as they rule in the church, so
they must remember to submit themselves unto the church, to submit their
sceptres, to throw down their crowns before the church, yea, as the
prophet speaketh, to lick the dust of the feet of the church."[300] It
is difficult to believe that I am transcribing the words of a
protestant writer; so much does this passage call to mind those tones of
infatuated arrogance, which had been heard from the lips of Gregory VII.
and of those who trod in his footsteps.[301]
The strength of the protestant party had been derived, both in Germany
and in England, far less from their superiority in argument, however
decisive this might be, than from that desire which all classes, and
especially the higher, had long experienced to emancipate themselves
from the thraldom of ecclesiastical jurisdiction. For it is ever found,
that men do not so much as give a hearing to novel systems in religion,
till they have imbibed, from some cause or other, a secret distaste to
that in which they have been educated. It was therefore rather alarming
to such as had an acquaintance with ecclesiastical history, and knew the
encroachments formerly made by the hierarchy throughout Europe,
encroachments perfectly distinguishable from those of the Roman see, to
perceive the same pretensions urged, and the same ambition and arrogance
at work, which had imposed a yoke on the necks of their fathers. With
whatever plausibility it might be maintained that a connection with
temporal magistrates could only corrupt the purity and shackle the
liberties of a Christian church, this argument was not for them to urge,
who called on those magistrates to do the church's bidding, to enforce
its decrees, to punish its refractory members; and while they disdained
to accept the prince's co-operation as their ally, claimed his service
as their minister. The protestant dissenters since the revolution, who
have almost unanimously, and, I doubt not, sincerely, declared their
averseness to any religious establishment, especially as accompanied
with coercive power, even in favour of their own sect, are by no means
chargeable with these errors of the early puritans. But the scope of
Cartwright's declaration was not to obtain a toleration for dissent, not
even by abolishing the whole ecclesiastical polity, to place the
different professions of religion on an equal footing, but to substitute
his own model of government, the one, exclusive, unappealable standard
of obedience, with all the endowments, so far as applicable to its
frame, of the present church, and with all the support to its discipline
that the civil power could afford.[302]
We are not however to conclude that every one, or even the majority, of
those who might be counted on the puritan side in Elizabeth's reign,
would have subscribed to these extravagant sentences of Cartwright, or
desired to take away the legal supremacy of the Crown.[303] That party
acquired strength by the prevailing hatred and dread of popery, and by
the disgust which the bishops had been unfortunate enough to excite. If
the language which I have quoted from the puritans breathed a spirit of
ecclesiastical usurpation that might one day become dangerous, many were
of opinion that a spirit not less mischievous in the present hierarchy,
under the mask of the queen's authority, was actually manifesting itself
in deeds of oppression. The upper ranks among the laity, setting aside
courtiers, and such as took little interest in the dispute, were chiefly
divided between those attached to the ancient church and those who
wished for further alterations in the new. I conceive the church of
England party, that is, the party adverse to any species of
ecclesiastical change, to have been the least numerous of the three
during this reign; still excepting, as I have said, the neutrals, who
commonly make a numerical majority, and are counted along with the
dominant religion.[304] But by the act of the fifth of Elizabeth, Roman
catholics were excluded from the House of Commons; or, if some that way
affected might occasionally creep into it, yet the terror of penal laws
impending over their heads would make them extremely cautious of
betraying their sentiments. This contributed with the prevalent tone of
public opinion, to throw such a weight into the puritanical scale in the
Commons, as it required all the queen's energy to counterbalance.
_Puritans supported in the Commons._--In the parliament that met in
April 1571, a few days only after the commencement of the session, Mr.
Strickland, "a grave and ancient man of great zeal," as the reporter
styles him, began the attack by a long but apparently temperate speech
on the abuses of the church, tending only to the retrenchment of a few
superstitions in the liturgy, and to some reforms in the disposition of
benefices. He proceeded to bring in a bill for the reformation of the
common prayer, which was read a first time. Abuses in respect to
benefices appear to have been a copious theme of scandal. The power of
dispensation, which had occasioned so much clamour in former ages,
instead of being abolished or even reduced into bounds at the
reformation, had been transferred entire from the pope to the king and
archbishop. And, after the Council of Trent had effected such
considerable reforms in the catholic discipline, it seemed a sort of
reproach to the protestant church of England, that she retained all the
dispensations, the exemptions, the pluralities, which had been deemed
the peculiar corruptions of the worst times of popery.[305] In the reign
of Edward VI., as I have already mentioned, the canon law being
naturally obnoxious from its origin and character, a commission was
appointed to draw up a code of ecclesiastical laws. This was accordingly
compiled, but never obtained the sanction of parliament; and though some
attempts were made, and especially in the Commons at this very time, to
bring it again before the legislature, our ecclesiastical tribunals have
been always compelled to borrow a great part of their principles from
canon law: one important consequence of which may be mentioned by way of
illustration; that they are incompetent to grant a divorce from the bond
of marriage in cases of adultery, as had been provided in the
reformation of ecclesiastical laws compiled under Edward VI. A
disorderly state of the church, arising partly from the want of any
fixed rules of discipline, partly from the negligence of some bishops,
and simony of others, but above all, from the rude state of manners and
general ignorance of the clergy, is the common theme of complaint in
this period, and aggravated the increasing disaffection towards the
prelacy. A bill was brought into the Commons to take away the granting
of licences and dispensations by the Archbishop of Canterbury. But the
queen's interference put a stop to this measure.[306]
The House of Commons gave in this session a more forcible proof of its
temper in ecclesiastical concerns. The articles of the English church,
originally drawn up under Edward VI., after having undergone some
alteration, were finally reduced to their present form by the
convocation of 1562. But it seems to have been thought necessary that
they should have the sanction of parliament, in order to make them
binding on the clergy. Of these articles the far greater portion relate
to matters of faith, concerning which no difference of opinion had as
yet appeared. Some few however declare the lawfulness of the established
form of consecrating bishops and priests, the supremacy of the Crown,
and the power of the church to order rites and ceremonies. These
involved the main questions at issue; and the puritan opposition was
strong enough to withhold the approbation of the legislature from this
part of the national symbol. The act of 13 Eliz. c. 12, accordingly
enacts, that every priest or minister shall subscribe to all the
articles of religion which _only_ concern the confession of the true
christian faith, and the doctrine of the sacraments, comprised in a book
entitled _Articles whereupon it was agreed_, etc. That the word _only_
was inserted for the sake of excluding the articles which established
church authority and the actual discipline, is evident from a remarkable
conversation which Mr. Wentworth, the most distinguished asserter of
civil liberty in this reign, relates himself in a subsequent session
(that of 1575), to have held on the subject with Archbishop Parker. "I
was," he says, "among others, the last parliament sent for unto the
Archbishop of Canterbury, for the articles of religion that then passed
this house. He asked us, 'Why we did put out of the book the articles
for the homilies, consecration of bishops, and such like?' 'Surely,
sir,' said I, 'because we were so occupied in other matters that we had
no time to examine them how they agreed with the word of God.' 'What!'
said he, 'surely you mistake the matter; you will refer yourselves
wholly to us therein!' 'No; by the faith I bear to God,' said I, 'we
will pass nothing before we understand what it is; for that were but to
make you popes: make you popes who list,' said I, 'for we will make you
none.' And sure, Mr. Speaker, the speech seemed to me to be a pope-like
speech, and I fear least our bishops do attribute this of the pope's
canons unto themselves; Papa non potest errare."[307] The intrepid
assertion of the right of private judgment on one side, and the
pretension to something like infallibility on the other, which have been
for more than two centuries since so incessantly repeated, are here
curiously brought into contrast. As to the reservation itself, obliquely
insinuated rather than expressed in this statute, it proved of little
practical importance, the bishops having always exacted a subscription
to the whole thirty-nine articles.[308]
It was not to be expected that the haughty spirit of Parker, which had
refused to spare the honest scruples of Sampson and Coverdale, would
abate of its rigour towards the daring paradoxes of Cartwright. His
disciples, in truth, from dissatisfied subjects of the church, were
become her downright rebels, with whom it was hardly practicable to make
any compromise that would avoid a schism, except by sacrificing the
splendour and jurisdiction of an established hierarchy. The archbishop
continued, therefore, to harass the puritan ministers, suppressing their
books, silencing them in churches, prosecuting them in private
meetings.[309] Sandys and Grindal, the moderate reformers of our
spiritual aristocracy, not only withdrew their countenance from a party
who aimed at improvement by subversion, but fell, according to the
unhappy temper of their age, into courses of undue severity. Not merely
the preachers, to whom, as regular ministers, the rules of canonical
obedience might apply, but plain citizens, for listening to their
sermons, were dragged before the high commission and imprisoned upon any
refusal to conform.[310] Strange that these prelates should not have
remembered their own magnanimous readiness to encounter suffering for
conscience sake in the days of Mary, or should have fondly arrogated to
their particular church that elastic force of resolution, which disdains
to acknowledge tyrannous power within the sanctuary of the soul, and
belongs to the martyrs of every opinion without attesting the truth of
any!
The puritans meanwhile had not lost all their friends in the council,
though it had become more difficult to protect them. One powerful reason
undoubtedly operated on Walsingham and other ministers of Elizabeth's
court against crushing their party; namely, the precariousness of the
queen's life, and the unsettled prospects of succession. They had
already seen, in the Duke of Norfolk's conspiracy, that more than half
the superior nobility had committed themselves to support the title of
the Queen of Scots. That title was sacred to all who professed the
catholic religion, and respectable to a large proportion of the rest.
But deeming, as they did, that queen a convicted adulteress and
murderer, the determined enemy of their faith, and conscious that she
could never forgive those who had counselled her detention and sought
her death, it would have been unworthy of their prudence and magnanimity
to have gone as sheep to the slaughter, and risked the destruction of
protestantism under a second Mary, if the intrigues of ambitious men,
the pusillanimity of the multitude, and the specious pretext of
hereditary right, should favour her claims on a demise of the Crown.
They would have failed perhaps in attempting to resist them; but upon
resistance I make no question that they had resolved. In so awful a
crisis, to what could they better look than to the stern, intrepid,
uncompromising spirit of puritanism; congenial to that of the Scottish
reformers, by whose aid the lords of the congregation had overthrown the
ancient religion in despite of the regent Mary of Guise? Of conforming
churchmen, in general, they might well be doubtful, after the
oscillations of the three preceding reigns; but every abhorrer of
ceremonies, every rejecter of prelatical authority, might be trusted as
protestant to the heart's core, whose sword would be as ready as his
tongue to withstand idolatry. Nor had the puritans admitted, even in
theory, those extravagant notions of passive obedience which the church
of England had thought fit to mingle with her homilies. While the
victory was yet so uncertain, while contingencies so incalculable might
renew the struggle, all politic friends of the reformation would be
anxious not to strengthen the enemy by disunion in their own camp. Thus
Sir Francis Walsingham, who had been against enforcing the obnoxious
habits, used his influence with the scrupulous not to separate from the
church on account of them; and again, when the schism had already
ensued, thwarted as far as his credit in the council extended, that
harsh intolerance of the bishops which aggravated its mischiefs.[311]
We should reason in as confined a manner as the puritans themselves, by
looking only at the captious frivolousness of their scruples, and
treating their sect either as wholly contemptible or as absolutely
mischievous. We do injustice to these wise counsellors of the maiden
queen, when we condemn, I do not mean on the maxims only of toleration,
but of civil prudence, their unwillingness to crush the non-conforming
clergy by an undeviating rigour. It may justly be said that, in a
religious sense, it was a greater good to possess a well-instructed
pious clergy, able to contend against popery, than it was an evil to let
some prejudices against mere ceremonies gain a head. The old religion
was by no means, for at least the first half of Elizabeth's reign, gone
out of the minds of the people. The lurking priests had great advantages
from the attractive nature of their faith, and some, no doubt, from its
persecution. A middle system, like the Anglican, though it was more
likely to produce exterior conformity, and for that reason was, I think,
judiciously introduced at the outset, did not afford such a security
against relapse, nor draw over the heart so thoroughly, as one which
admitted of no compromise. Thus the sign of the cross in baptism, one of
the principal topics of objection, may well seem in itself a very
innocent and decorous ceremony. But if the perpetual use of that sign is
one of the most striking superstitions in the church of Rome, it might
be urged in behalf of the puritans, that the people were less likely to
treat it with contempt, when they saw its continuance, even in one
instance, so strictly insisted upon. I do not pretend to say that this
reasoning is right, but that it is at least plausible, and that we must
go back and place ourselves, as far as we can, in those times, before we
determine upon the whole of this controversy in its manifold bearings.
The great object of Elizabeth's ministers, it must be kept in mind, was
the preservation of the protestant religion, to which all ceremonies of
the church, and even its form of discipline, were subordinate. An
indifferent passiveness among the people, a humble trust in authority,
however desirable in the eyes of churchmen, was not the temper which
would have kept out the right heir from the throne, or quelled the
generous ardour of the catholic gentry on the queen's decease.
_Prophecyings._--A matter very much connected with the present subject
will illustrate the different schemes of ecclesiastical policy pursued
by the two parties that divided Elizabeth's council. The clergy in
several dioceses set up, with encouragement from their superiors, a
certain religious exercise, called prophecyings. They met at appointed
times to expound and discuss together particular texts of Scripture,
under the presidency of a moderator, appointed by the bishop, who
finished by repeating the substance of their debate with his own
determination upon it. These discussions were in public; and it was
contended that this sifting of the grounds of their faith, and habitual
argumentation, would both tend to edify the people, very little
acquainted as yet with their religion, and supply in some degree the
deficiencies of learning among the pastors themselves. These
deficiencies were indeed glaring; and it is not unlikely that the
prophecyings might have had a salutary effect, if it had been possible
to exclude the prevailing spirit of the age. It must however be evident
to any one who had experience of mankind, that the precise clergy, armed
not only with popular topics, but with an intrinsic superiority of
learning and ability to support them, would wield these assemblies at
their pleasure, whatever might be the regulations devised for their
control. The queen entirely disliked them, and directed Parker to put
them down. He wrote accordingly to Parkhurst, Bishop of Norwich, for
that purpose. The bishop was unwilling to comply. And some privy
counsellors interfered by a letter, enjoining him not to hinder these
exercises, so long as nothing contrary to the church was taught therein.
This letter was signed by Sir Thomas Smith, Sir Walter Mildmay, Bishop
Sandys, and Sir Francis Knollys. It was, in effect, to reverse what the
archbishop had done. Parker, however, who was not easily daunted, wrote
again to Parkhurst, that, understanding he had received instructions in
opposition to the queen's orders and his own, he desired to be informed
what they were. This seems to have checked the counsellors; for we find
that the prophecyings were now put down.[312]
Though many will be of opinion that Parker took a statesmanlike view of
the interests of the church of England in discouraging these exercises,
they were generally regarded as so conducive to instruction that he
seems to have stood almost alone in his opposition to them. Sandys' name
appears to the above-mentioned letter of the council to Parkhurst. Cox,
also, was inclined to favour the prophecyings. And Grindal, who in 1575
succeeded Parker in the see of Canterbury, bore the whole brunt of the
queen's displeasure rather than obey her commands on this subject. He
conceived that, by establishing strict rules with respect to the
direction of those assemblies, the abuses which had already appeared of
disorderly debate, and attacks on the discipline of the church, might be
got rid of without entirely abolishing the exercise. The queen would
hear of no middle course, and insisted both that the prophecyings should
be discontinued, and that fewer licences for preaching should be
granted. For no parish priest could without a licence preach any
discourse except the regular homilies; and this was one of the points of
contention with the puritans. Grindal steadily refused to comply with
this injunction; and was in consequence sequestered from the exercise of
his jurisdiction for the space of about five years, till, on his making
a kind of submission, the sequestration was taken off not long before
his death. The queen, by circular letters to the bishops, commanded them
to put an end to the prophecyings, which were never afterwards
renewed.[313]
_Whitgift._--Whitgift, Bishop of Worcester, a person of a very opposite
disposition, was promoted, in 1583, to the primacy, on Grindal's
decease. He had distinguished himself some years before by an answer to
Cartwright's _Admonition_, written with much ability, but not falling
short of the work it undertook to confute in rudeness and asperity.[314]
It is seldom good policy to confer such eminent stations in the church
on the gladiators of theological controversy; who from vanity and
resentment, as well as the course of their studies, will always be prone
to exaggerate the importance of the disputes wherein they have been
engaged, and to turn whatever authority the laws or the influence of
their place may give them against their adversaries. This was fully
illustrated by the conduct of Archbishop Whitgift, whose elevation the
wisest of Elizabeth's counsellors had ample reason to regret. In a few
months after his promotion, he gave an earnest of the rigour he had
determined to adopt, by promulgating articles for the observance of
discipline. One of these prohibited all preaching, reading, or
catechising in private houses, whereto any not of the same family
should resort, "seeing the same was never permitted as lawful under any
christian magistrate." But that which excited the loudest complaints was
the subscription to three points, the queen's supremacy, the lawfulness
of the common prayer and ordination service, and the truth of the whole
thirty-nine articles, exacted from every minister of the church.[315]
These indeed were so far from novelties, that it might seem rather
supererogatory to demand them (if in fact the law required subscription
to all the articles); yet it is highly probable that many had hitherto
eluded the legal subscriptions, and that others had conceived their
scruples after having conformed to the prescribed order. The
archbishop's peremptory requisition passed, perhaps justly, for an
illegal stretch of power.[316] It encountered the resistance of men
pertinaciously attached to their own tenets, and ready to suffer the
privations of poverty rather than yield a simulated obedience. To suffer
however in silence has at no time been a virtue with our protestant
dissenters. The kingdom resounded with the clamour of those who were
suspended or deprived of their benefices, and of their numerous
abettors.[317] They appealed from the archbishop to the privy council.
The gentry of Kent and other countries strongly interposed in their
behalf. They had powerful friends at court, especially Knollys, who
wrote a warm letter to the archbishop.[318] But, secure of the queen's
support, who was now chiefly under the influence of Sir Christopher
Hatton, a decided enemy to the puritans, Whitgift relented not a jot of
his resolution, and went far greater lengths than Parker had ever
ventured, or perhaps had desired, to proceed.
_High commission court._--The Act of Supremacy, while it restored all
ecclesiastical jurisdiction to the Crown, empowered the queen to execute
it by commissioners appointed under the great seal, in such manner and
for such time as she should direct; whose power should extend to visit,
correct, and amend all heresies, schisms, abuses, and offences whatever,
which fall under the cognisance and are subject to the correction of
spiritual authority. Several temporary commissions had sat under this
act with continually augmented powers, before that appointed in 1583,
wherein the jurisdiction of this anomalous court almost reached its
zenith. It consisted of forty-four commissioners, twelve of whom were
bishops, many more privy-counsellors, and the rest either clergymen or
civilians. This commission, after reciting the acts of supremacy,
uniformity, and two others, directs them to inquire from time to time,
as well by the oaths of twelve good and lawful men, as by witnesses and
all other means they can devise, of all offences, contempts, or
misdemeanours done and committed contrary to the tenor of the said
several acts and statutes; and also to inquire of all heretical
opinions, seditious books, contempts, conspiracies, false rumours or
talk, slanderous words and sayings, etc., contrary to the aforesaid
laws. Power is given to any three commissioners, of whom one must be a
bishop, to punish all persons absent from church, according to the Act
of Uniformity, or to visit and reform heresies and schisms according to
law; to deprive all beneficed persons holding any doctrine contrary to
the thirty-nine articles; to punish incests, adulteries, and all
offences of the kind; to examine all suspected persons on their oaths,
and to punish all who should refuse to appear or to obey their orders,
by spiritual censure or by discretionary fine or imprisonment; to alter
and amend the statutes of colleges, cathedrals, schools, and other
foundations, and to tender the oath of supremacy according to the act of
parliament.[319]
Master of such tremendous machinery, the archbishop proceeded to call
into action one of its powers contained for the first time in the
present commission, by tendering what was technically styled the oath
_ex officio_, to such of the clergy as were surmised to harbour a spirit
of puritanical disaffection. This procedure, which was wholly founded on
the canon law, consisted in a series of interrogations, so comprehensive
as to embrace the whole scope of clerical uniformity, yet so precise and
minute as to leave no room for evasion, to which the suspected party was
bound to answer upon oath.[320] So repugnant was this to the rules of
our English law, and to the principles of natural equity, that no
species of ecclesiastical tyranny seems to have excited so much
indignation.
_Lord Burleigh averse to severity._--Lord Burleigh, who, though at first
rather friendly to Whitgift, was soon disgusted by his intolerant and
arbitrary behaviour, wrote in strong terms of remonstrance against these
articles of examination, as "so curiously penned, so full of branches
and circumstances, as he thought the inquisitors of Spain used not so
many questions to comprehend and to trap their preys." The primate
replied by alleging reasons in behalf of the mode of examination, but
very frivolous, and such as a man determined to persevere in an
unwarrantable course of action may commonly find.[321] They had little
effect on the calm and sagacious mind of the treasurer, who continued to
express his dissatisfaction, both individually and as one of the privy
council.[322] But the extensive jurisdiction improvidently granted to
the ecclesiastical commissioners, and which the queen was not at all
likely to recall, placed Whitgift beyond the control of the temporal
administration.
The Archbishop, however, did not stand alone in this impracticable
endeavour to overcome the stubborn sectaries by dint of hard usage.
Several other bishops were engaged in the same uncharitable
course;[323] but especially Aylmer of London, who has left a worse name
in this respect than any prelate of Elizabeth's reign.[324] The violence
of Aylmer's temper was not redeemed by many virtues; it is impossible to
exonerate his character from the imputations of covetousness and of
plundering the revenues of his see; faults very prevalent among the
bishops of that period. The privy council wrote sometimes to expostulate
with Aylmer, in a tone which could hardly have been employed towards a
man in his station who had not forfeited the general esteem. Thus, upon
occasion of one Benison, whom he had imprisoned without cause, we find a
letter signed by Burleigh, Leicester, Walsingham, and even Hatton,
besides several others, urging the bishop to give the man a sum of
money, since he would recover damages at law, which might hurt his
lordship's credit. Aylmer, however, who was of a stout disposition,
especially when his purse was interested, objected strongly to this
suggestion, offering rather to confer on Benison a small living, or to
let him take his action at law. The result does not appear; but probably
the bishop did not yield.[325] He had worse success in an information
laid against him for felling his woods, which ended not only in an
injunction, but a sharp reprimand from Cecil in the star-chamber.[326]
What Lord Burleigh thought of these proceedings may be seen in the
memorial to the queen on matters of religion and state, from which I
have, in the last chapter, made an extract to show the tolerance of his
disposition with respect to catholics. Protesting that he was not in the
least addicted to the preciser sort of preachers, he declares himself
"bold to think that the bishops, in these dangerous times, take a very
ill and unadvised course in driving them from their cures;" first,
because it must discredit the reputation of her majesty's power, when
foreign princes should perceive that even among her protestant subjects,
in whom consisted all her force, strength, and power, there was so great
a heart-burning and division; and secondly, "because," he says, "though
they were over squeamish and nice in their opinions, and more
scrupulous than they need; yet with their careful catechising and
diligent preaching, they bring forth that fruit which your most
excellent majesty is to desire and wish; namely, the lessening and
diminishing the papistical numbers."[327] But this great minister's
knowledge of the queen's temper, and excessive anxiety to retain her
favour, made him sometimes fearful to act according to his own judgment.
"It is well known," Lord Bacon says of him, in a treatise published in
1591, "that as to her majesty, there was never a counsellor of his
lordship's long continuance that was so appliable to her majesty's
princely resolutions, endeavouring always after faithful propositions
and remonstrances, and these in the best words and the most grateful
manner, to rest upon such conclusions as her majesty in her own wisdom
determineth, and them to execute to the best; so far hath he been from
contestation, or drawing her majesty into any of his own courses."[328]
Statesmen who betray this unfortunate infirmity of clinging too fondly
to power, become the slaves of the princes they serve. Burleigh used to
complain of the harshness with which the queen treated him.[329] And
though, more lucky than most of his class, he kept the white staff of
treasurer down to his death, he was reduced in his latter years to court
a rising favourite more submissively than became his own dignity.[330]
From such a disposition we could not expect any decided resistance to
those measures of severity towards the puritans which fell in so
entirely with Elizabeth's temper.
There is no middle course, in dealing with religious sectaries, between
the persecution that exterminates, and the toleration that satisfies.
They were wise in their generation, the Loaisas and Valdes of Spain, who
kindled the fires of the inquisition, and quenched the rising spirit of
protestantism in the blood of a Seso and a Cazalla. But sustained by the
favouring voice of his associates, and still more by that firm
persuasion which bigots never know how to appreciate in their
adversaries, a puritan minister set at nought the vexatious and arrogant
tribunal before which he was summoned. Exasperated, not overawed, the
sectaries threw off what little respect they had hitherto paid to the
hierarchy. They had learned, in the earlier controversies of the
reformation, the use, or, more truly, the abuse, of that powerful lever
of human bosoms, the press. He who in Saxony had sounded the first
trumpet-peal against the battlements of Rome, had often turned aside
from his graver labours to excite the rude passions of the populace by
low ribaldry and exaggerated invective; nor had the English reformers
ever scrupled to win proselytes by the same arts. What had been
accounted holy zeal in the mitred Bale and martyred Latimer, might plead
some apology from example in the aggrieved puritan. Pamphlets, chiefly
anonymous, were rapidly circulated throughout the kingdom, inveighing
against the prelacy. Of these libels the most famous went under the name
of Martin Mar-prelate, a vizored knight of those lists, behind whose
shield a host of sturdy puritans were supposed to fight. These were
printed at a movable press, shifted to different parts of the country as
the pursuit grew hot, and contained little serious argument, but the
unwarrantable invectives of angry men, who stuck at no calumny to
blacken their enemies.[331] If these insults upon authority are apt
sometimes to shock us even now, when long usage has rendered such
licentiousness of seditious and profligate libellers almost our daily
food, what must they have seemed in the reign of Elizabeth, when the
press had no acknowledged liberty, and while the accustomed tone in
addressing those in power was little better than servile adulation?
A law had been enacted some years before, levelled at the books
dispersed by the seminary priests, which rendered the publication of
seditious libels against the queen's government a capital felony.[332]
This act, by one of those strained constructions which the judges were
commonly ready to put upon any political crime, was brought to bear on
some of these puritanical writings. The authors of Martin Mar-prelate
could not be traced with certainty; but strong suspicions having fallen
on one Penry, a young Welshman, he was tried some time after for another
pamphlet, containing some sharp reflections on the queen herself, and
received sentence of death, which it was thought proper to carry into
execution.[333] Udal, a puritan minister, fell into the grasp of the
same statute for an alleged libel on the bishops, which had surely a
very indirect reference to the queen's administration. His trial, like
most other political trials of the age, disgraces the name of English
justice. It consisted mainly in a pitiful attempt by the court to entrap
him into a confession that the imputed libel was of his writing, as to
which their proof was deficient. Though he avoided this snare, the jury
did not fail to obey the directions they received to convict him. So far
from being concerned in Martin's writings, Udal professed his
disapprobation of them and his ignorance of the author. This sentence
appeared too iniquitous to be executed even in the eyes of Whitgift, who
interceded for his life; but he died of the effects of confinement.[334]
_Attempt to set up a Presbyterian system._--If the libellous pen of
Martin Mar-prelate was a thorn to the rulers of the church, they had
still more cause to take alarm at an overt measure of revolution which
the discontented party began to effect about the year 1590. They set up,
by common agreement, their own platform of government by synods and
classes; the former being a sort of general assemblies, the latter held
in particular shires or dioceses, agreeably to the presbyterian model
established in Scotland. In these meetings debates were had, and
determinations usually made, sufficiently unfavourable to the
established system. The ministers composing them subscribed to the
puritan book of discipline. These associations had been formed in
several counties, but chiefly in those of Northampton and Warwick, under
the direction of Cartwright, the legislator of their republic, who
possessed, by the Earl of Leicester's patronage, the mastership of a
hospital in the latter town.[335] It would be unjust to censure the
archbishop for interfering to protect the discipline of his church
against these innovators, had but the means adopted for that purpose
been more consonant to equity. Cartwright with several of his sect were
summoned before the ecclesiastical commission; where refusing to
inculpate themselves by taking the oath _ex officio_, they were
committed to the Fleet. This punishment not satisfying the rigid
churchmen, and the authority of the ecclesiastical commission being
incompetent to inflict any heavier judgment, it was thought fit the next
year to remove the proceedings into the court of star-chamber. The
judges, on being consulted, gave it as their opinion, that since far
less crimes had been punished by condemnation to the galleys or
perpetual banishment, the latter would be fittest for their offence. But
several of the council had more tender regards to sincere, though
intractable, men; and in the end they were admitted to bail upon a
promise to be quiet, after answering some interrogatories respecting the
queen's supremacy and other points, with civility and an evident wish to
avoid offence.[336] It may be observed that Cartwright explicitly
declared his disapprobation of the libels under the name of Martin
Mar-prelate.[337] Every political party, however honourable may be its
objects and character, is liable to be disgraced by the association of
such unscrupulous zealots. But, though it is an uncandid sophism to
charge the leaders with the excesses they profess to disapprove in their
followers, it must be confessed that few chiefs of faction have had the
virtue to condemn with sufficient energy the misrepresentations which
are intended for their benefit.
It was imputed to the puritan faction with more or less of truth, that,
not content with the subversion of episcopacy and of the whole
ecclesiastical polity established in the kingdom, they maintained
principles that would essentially affect its civil institutions. Their
denial indeed of the queen's supremacy, carried to such lengths as I
have shown above, might justly be considered as a derogation of her
temporal sovereignty. Many of them asserted the obligation of the
judicial law of Moses, at least in criminal cases; and deduced from this
the duty of putting idolaters (that is, papists), adulterers, witches
and demoniacs, sabbath-breakers, and several other classes of offenders,
to death.[338] They claimed to their ecclesiastical assemblies the right
of determining "all matters wherein breach of charity may be, and all
matters of doctrine and manners, so far as appertaineth to conscience."
They took away the temporal right of patronage to churches, leaving the
choice of ministers to general suffrage.[339] There are even passages in
Cartwright's Admonition, which intimate that the commonwealth ought to
be fashioned after the model of the church.[340] But these it would not
be candid to press against the more explicit declarations of all the
puritans in favour of a limited monarchy, though they grounded its
legitimacy on the republican principles of popular consent.[341] And
with respect to the former opinions, they appear to have been by no
means common to the whole puritan body; some of the deprived and
imprisoned ministers even acknowledging the queen's supremacy in as full
a manner as the law conferred it on her, and as she professed to claim
it.[342]
The pretensions advanced by the school of Cartwright did not seem the
less dangerous to those who cast their eyes upon what was passing in
Scotland, where they received a practical illustration. In that kingdom,
a form of polity very nearly conforming to the puritanical platform had
become established at the reformation of 1560; except that the office of
bishop or superintendent still continued, but with no paramount, far
less arbitrary dominion, and subject even to the provincial synod, much
more to the general assembly of the Scottish church. Even this very
limited episcopacy was abolished in 1592. The presbyterian clergy,
individually and collectively, displayed the intrepid, haughty, and
untractable spirit of the English puritans. Though Elizabeth had from
policy abetted the Scottish clergy in their attacks upon the civil
administration, this connection itself had probably given her such an
insight into their temper as well as their influence, that she must have
shuddered at the thought of seeing a republican assembly substituted for
those faithful satraps, her bishops, so ready to do her bidding, and so
patient under the hard usage she sometimes bestowed on them.
_House of Commons averse to episcopal authority._--These prelates did
not however obtain so much support from the House of Commons as from
their sovereign. In that assembly a determined band of puritans
frequently carried the victory against the courtiers. Every session
exhibited proofs of their dissatisfaction with the state of the church.
The Crown's influence would have been too weak without stretches of its
prerogative. The Commons in 1575 received a message forbidding them to
meddle with religious concerns. For five years afterwards the queen did
not convoke parliament, of which her dislike to their puritanical temper
might in all probability be the chief reason. But, when they met again
in 1580, the same topic of ecclesiastical grievances, which had by no
means abated during the interval, was revived. The Commons appointed a
committee, formed only of the principal officers of the Crown who sat in
the house, to confer with some of the bishops, according to the
irregular and imperfect course of parliamentary proceedings in that age,
"touching the griefs of this house for some things very requisite to be
reformed in the church, as the great number of unlearned and unable
ministers, the great abuse of excommunications for every matter of small
moment, the commutation of penances, and the great multitude of
dispensations and pluralities, and other things very hurtful to the
church."[343] The committee reported that they found some of the
bishops desirous of a remedy for the abuses they confessed, and of
joining in a petition for that purpose to her majesty; which had
accordingly been done, and a gracious answer, promising all convenient
reformation, by laying the blame of remissness upon some prelates, had
been received. This the house took with great thankfulness. It was
exactly the course which pleased Elizabeth, who had no regard for her
bishops, and a real anxiety that her ecclesiastical as well as temporal
government should be well administered, provided her subjects would
intrust the sole care of it to herself, or limit their interference to
modest petitioning.
A new parliament having been assembled, soon after Whitgift on his
elevation to the primacy had begun to enforce an universal conformity,
the lower house drew up a petition in sixteen articles, to which they
requested the Lords' concurrence, complaining of the oath _ex officio_,
the subscription to the three new articles, the abuses of
excommunication, licences for non-residence, and other ecclesiastical
grievances. The Lords replied coolly, that they conceived many of those
articles, which the Commons had proposed, to be unnecessary, and that
others of them were already provided for; and that the uniformity of the
common prayer, the use of which the Commons had requested to leave in
certain respects to the minister's discretion, had been established by
parliament. The two archbishops, Whitgift and Sandys, made a more
particular answer to each article of the petition, in the name of their
brethren.[344] But, in order to show some willingness towards
reformation, they proposed themselves in convocation a few regulations
for redress of abuses, none of which, however, on this occasion, though
they received the royal assent, were submitted to the legislature;[345]
the queen in fact maintaining an insuperable jealousy of all
intermeddling on the part of parliament with her exclusive supremacy
over the church. Excluded by Elizabeth's jealousy from entertaining
these religious innovations, which would probably have met no
unfavourable reception from a free parliament, the Commons vented their
ill-will towards the dominant hierarchy in complaints of ecclesiastical
grievances, and measures to redress them; as to which, even with the low
notions of parliamentary right prevailing at court, it was impossible to
deny their competence. Several bills were introduced this session of
1584-5 into the lower house, which, though they had little chance of
receiving the queen's assent, manifest the sense of that assembly, and
in all likelihood of their constituents. One of these imported that
bishops should be sworn in one of the courts of justice to do nothing in
their office contrary to the common law. Another went to restrain
pluralities, as to which the prelates would very reluctantly admit of
any limitation.[346] A bill of the same nature passed the Commons in
1589, though not without some opposition. The clergy took so great alarm
at this measure, that the convocation addressed the queen in vehement
language against it; and the archbishop throwing all the weight of his
advice and authority into the same scale, the bill expired in the upper
house.[347] A similar proposition in the session of 1601 seems to have
miscarried in the Commons.[348] In the next chapter will be found other
instances of the Commons' reforming temper in ecclesiastical concerns,
and the queen's determined assertion of her supremacy.
The oath _ex officio_, binding the taker to answer all questions that
should be put to him, inasmuch as it contravened the generous maxim of
English law that no one is obliged to criminate himself, provoked very
just animadversion. Morice, attorney of the court of wards, not only
attacked its legality with arguments of no slight force, but introduced
a bill to take it away. This was on the whole well received by the
house; and Sir Francis Knollys, the stanch enemy of episcopacy, though
in high office, spoke in its favour. But the queen put a stop to the
proceeding, and Morice lay some time in prison for his boldness. The
civilians, of whom several sat in the lower house, defended a mode of
procedure that had been borrowed from their own jurisprudence. This
revived the ancient animosity between them and the common lawyers. The
latter had always manifested a great jealousy of the spiritual
jurisdiction, and had early learned to restrain its exorbitances by
writs of prohibition from the temporal courts. Whitgift, as tenacious of
power as the most ambitious of his predecessors, murmured like them at
this subordination, for such it evidently was, to a lay tribunal.[349]
But the judges, who found as much gratification in exerting their power
as the bishops, paid little regard to the remonstrances of the latter.
We find the reports of this and the succeeding reign full of cases of
prohibition. Nor did other abuses imputed to these obnoxious judicatures
fail to provoke censure, such as the unreasonable fees of their
officers, and the usage of granting licences, and commuting penances for
money.[350] The ecclesiastical courts indeed have generally been
reckoned more dilatory, vexatious, and expensive than those of the
common law. But in the present age that part of their jurisdiction,
which, though coercive, is professedly spiritual, and wherein the
greatest abuses have been alleged to exist, has gone very much into
disuse. In matrimonial and testamentary causes, their course of
proceeding may not be open to any censure, so far as the essential
administration of justice is concerned; though in the latter of these, a
most inconvenient division of jurisdictions, following not only the
unequal boundaries of episcopal dioceses, but the various peculiars or
exempt districts which the church of England has continued to retain, is
productive of a good deal of trouble and needless expense.
_Independents liable to severe laws._--Notwithstanding the tendency
towards puritanism which the House of Commons generally displayed, the
court succeeded in procuring an act, which eventually pressed with very
great severity upon that class. This passed in 1593, and enacted the
penalty of imprisonment against any person above the age of sixteen, who
should forbear for the space of a month to repair to some church, until
he should make such open submission and declaration of conformity as the
act appoints. Those who refused to submit to these conditions were to
abjure the realm, and if they should return without the queen's licence,
to suffer death as felons.[351] As this, on the one hand, like so many
former statutes, helped to crush the unfortunate adherents to the Romish
faith, so too did it bear an obvious application to such protestant
sectaries as had professedly separated from the Anglican church. But it
is here worthy of remark, that the puritan ministers throughout this
reign disclaimed the imputation of schism, and acknowledged the
lawfulness of continuing in the established church, while they demanded
a further reformation of her discipline.[352] The real separatists, who
were also a numerous body, were denominated Brownists or Barrowists,
from the names of their founders, afterwards lost in the more general
appellation of Independents. These went far beyond the puritans in their
aversion to the legal ministry, and were deemed in consequence still
more proper subjects for persecution. Multitudes of them fled to Holland
from the rigour of the bishops in enforcing this statute.[353] But two
of this persuasion, Barrow and Greenwood, experienced a still severer
fate. They were indicted on that perilous law of the 23rd of the queen,
mentioned in the last chapter, for spreading seditious writings, and
executed at Bury. They died, Neal tells us, with such expressions of
piety and loyalty that Elizabeth regretted the consent she had given to
their deaths.[354]
_Hooker's "Ecclesiastical Polity." Its character._--But, while these
scenes of pride and persecution on one hand, and of sectarian insolence
on the other, were deforming the bosom of the English church, she found
a defender of her institutions in one who mingled in these vulgar
controversies like a knight of romance among caitiff brawlers, with arms
of finer temper and worthy to be proved in a nobler field. Richard
Hooker, master of the Temple, published the first four books of his
_Ecclesiastical Polity_ in 1594; the fifth three years afterwards; and
dying in 1600, left behind three which did not see the light till 1647.
This eminent work may justly be reckoned to mark an 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
_Arcadia_, can be said to have acquired enough reputation to be
generally known even by name, much less are read in the present day; and
it is indeed not a little remarkable that England, until near the end of
the sixteenth century, had given few proofs in literature of that
intellectual power which was about to develop itself with such
unmatchable energy in Shakspeare and Bacon. We cannot indeed place
Hooker (but whom dare we to place?) by the side of these master spirits;
yet he has abundant claims to be counted among the luminaries of English
literature. He not only opened the mine, but explored the depths, of our
native eloquence. So stately and graceful is the march of his periods,
so various the fall of his musical cadences upon the ear, so rich in
images, so condensed in sentences, so grave and noble his diction, so
little is there of vulgarity in his racy idiom, of pedantry in his
learned phrase, that I know not whether any later writer has more
admirably displayed the capacities of our language, or produced passages
more worthy of comparison with the splendid monuments of antiquity. If
we compare the first book of the _Ecclesiastical Polity_ with what bears
perhaps most resemblance to it of any thing extant, the treatise of
Cicero de Legibus, it will appear somewhat perhaps inferior, through the
imperfection of our language, which with all its force and dignity does
not equal the Latin in either of these qualities, and certainly more
tedious and diffuse in some of its reasonings, but by no means less
high-toned in sentiment, or less bright in fancy, and far more
comprehensive and profound in the foundations of its philosophy.
The advocates of a presbyterian church had always thought it sufficient
to prove that it was conformable to the apostolical scheme as deduced
merely from the scriptures. A pious reverence for the sacred writings,
which they made almost their exclusive study, had degenerated into very
narrow views on the great themes of natural religion and the moral law,
as deducible from reason and sentiment. These, as most of the various
families of their descendants continue to do, they greatly slighted, or
even treated as the mere chimeras of heathen philosophy. If they looked
to the Mosaic law as the standard of criminal jurisprudence, if they
sought precedents from scripture for all matters of temporal policy,
much more would they deem the practice of the apostles an unerring and
immutable rule for the discipline of the Christian church.[355] To
encounter these adversaries, Hooker took a far more original course than
the ordinary controvertists, who fought their battle with conflicting
interpretations of scriptural texts or passages from the fathers. He
enquired into the nature and foundation of law itself as the rule of
operation to all created beings, yielding thereto obedience by
unconscious necessity, or sensitive appetite, or reasonable choice;
reviewing especially those laws that regulate human agency, as they
arise out of moral relations, common to our species, or the institutions
of politic societies, or the inter-community of independent nations; and
having thoroughly established the fundamental distinction between laws
natural and positive, eternal and temporary, immutable and variable, he
came with all this strength of moral philosophy to discriminate by the
same criterion the various rules and precepts contained in the
scriptures. It was a kind of maxim among the puritans, that scripture
was so much the exclusive rule of human actions, that whatever, in
matters at least concerning religion, could not be found to have its
authority, was unlawful. Hooker devoted the whole second book of his
work to the refutation of this principle. He proceeded afterwards to
attack its application more particularly to the episcopal scheme of
church government, and to the various ceremonies or usages which those
sectaries treated as either absolutely superstitious, or at least as
impositions without authority. It was maintained by this great writer,
not only that ritual observances are variable according to the
discretion of ecclesiastical rulers, but that no certain form of polity
is set down in scripture as generally indispensable for a Christian
church. Far, however, from conceding to his antagonists the fact which
they assumed, he contended for episcopacy as an apostolical institution,
and always preferable, when circumstances would allow its preservation,
to the more democratical model of the Calvinistic congregations. "If we
did seek," he says, "to maintain that which most advantageth our own
cause, the very best way for us and the strongest against them were to
hold, even as they do, that in scripture there must needs be found some
particular form of church polity which God hath instituted, and which
for that very cause belongeth to all churches at all times. But with any
such partial eye to respect ourselves, and by cunning to make those
things seem the truest, which are the fittest to serve our purpose, is a
thing which we neither like nor mean to follow."
The richness of Hooker's eloquence is chiefly displayed in his first
book; beyond which perhaps few who want a taste for ecclesiastical
reading are likely to proceed. The second and third, however, though
less brilliant, are not inferior in the force and comprehensiveness of
reasoning. The eighth and last returns to the subject of civil
government, and expands, with remarkable liberality, the principles he
had laid down as to its nature in the first book. Those that intervene
are mostly confined to a more minute discussion of the questions mooted
between the church and puritans; and in these, as far as I have looked
into them, though Hooker's argument is always vigorous and logical, and
he seems to be exempt from that abusive insolence to which polemical
writers were then even more prone than at present, yet he has not
altogether the terseness or lucidity, which long habits of literary
warfare, and perhaps a natural turn of mind, have given to some expert
dialecticians. In respect of language, the three posthumous books,
partly from having never received the author's last touches, and partly,
perhaps, from his weariness of the labour, are beyond comparison less
elegantly written than the preceding.
The better parts of the _Ecclesiastical Polity_ bear a resemblance to
the philosophical writings of antiquity, in their defects as well as
their excellencies. Hooker is often too vague in the use of general
terms, too inconsiderate in the admission of principles, too apt to
acquiesce in the scholastic pseudo-philosophy, and indeed in all
received tenets; he is comprehensive rather than sagacious, and more
fitted to sift the truth from the stores of accumulated learning than to
seize it by an original impulse of his own mind; somewhat also impeded,
like many other great men of that and the succeeding century, by too
much acquaintance with books, and too much deference for their authors.
It may be justly objected to some passages, that they elevate
ecclesiastical authority, even in matters of belief, with an
exaggeration not easily reconciled to the protestant right of private
judgment, and even of dangerous consequence in those times; as when he
inclines to give a decisive voice in theological controversies to
general councils; not indeed on the principles of the church of Rome,
but on such as must end in the same conclusion, the high probability
that the aggregate judgment of many grave and learned men should be well
founded.[356] Nor would it be difficult to point out several other
subjects, such as religious toleration, as to which he did not
emancipate himself from the trammels of prejudice. But, whatever may be
the imperfections of his _Ecclesiastical Polity_, they are far more than
compensated by its eloquence and its reasoning, and above all by that
deep pervading sense of the relation between man and his Creator, as the
groundwork of all eternal law, which rendered the first book of this
work a rampart, on the one hand against the puritan school who shunned
the light of nature as a deceitful meteor; and on the other against that
immoral philosophy which, displayed in the dark precepts of Machiavel,
or lurking in the desultory sallies of Montaigne, and not always
rejected by writers of more apparent seriousness, threatened to destroy
the sense of intrinsic distinctions in the quality of actions, and to
convert the maxims of state-craft and dissembling policy into the rule
of life and manners.
Nothing perhaps is more striking to a reader of the _Ecclesiastical
Polity_ than the constant and almost excessive predilection of Hooker
for those liberal principles of civil government, which are sometimes so
just and always so attractive. Upon these subjects, his theory
absolutely coincides with that of Locke. The origin of government, both
in right and in fact, he explicitly derives from a primary contract;
"without which consent, there were no reason that one should take upon
him to be lord or judge over another; because, although there be,
according to the opinion of some very great and judicious men, a kind of
natural right in the noble, wise, and virtuous, to govern them which are
of servile disposition; nevertheless, for manifestation of this their
right, and men's more peaceable contentment on both sides, the assent of
them who are to be governed seemeth necessary." "The lawful power," he
observes elsewhere, "of making laws to command whole politic societies
of men, belongeth so properly unto the same entire societies, that for
any prince or potentate of what kind soever upon earth to exercise the
same of himself, and not either by express commission immediately and
personally received from God, or else by authority received at first
from their consent upon whose persons they impose laws, it is no better
than mere tyranny. Laws they are not, therefore, which public
approbation hath not made so. But approbation not only they give, who
personally declare their assent by voice, sign, or act; but also when
others do it in their names, by right originally, at the least, derived
from them. As in parliaments, councils, and the like assemblies,
although we be not personally ourselves present, notwithstanding our
assent is by reason of other agents there in our behalf. And what we do
by others, no reason but that it should stand as our deed, no less
effectually to bind us, than if ourselves had done it in person." And in
another place still more peremptorily: "Of this thing no man doubteth,
namely, that in all societies, companies, and corporations, what
severally each shall be bound unto, it must be with all their assents
ratified. Against all equity it were that a man should suffer detriment
at the hands of men, for not observing that which he never did either by
himself or others mediately or immediately agree unto."
These notions respecting the basis of political society, so far unlike
what prevailed among the next generation of churchmen, are chiefly
developed and dwelt upon in Hooker's concluding book, the eighth; and
gave rise to a rumour, very sedulously propagated soon after the time of
its publication, and still sometimes repeated, that the posthumous
portion of his work had been interpolated or altered by the
puritans.[357] For this surmise, however, I am persuaded that there is
no foundation. The three latter books are doubtless imperfect, and it is
possible that verbal changes may have been made by their transcribers or
editors; but the testimony that has been brought forward to throw a
doubt over their authenticity consists in those vague and
self-contradictory stories, which gossiping compilers of literary
anecdote can easily accumulate; while the intrinsic evidence arising
from the work itself, on which, in this branch of criticism, I am apt
chiefly to rely, seems altogether to repel every suspicion. For not only
the principles of civil government, presented in a more expanded form by
Hooker in the eighth book, are precisely what he laid down in the first;
but there is a peculiar chain of consecutive reasoning running through
it, wherein it would be difficult to point out any passages that could
be rejected without dismembering the context. It was his business in
this part of the _Ecclesiastical Polity_, to vindicate the queen's
supremacy over the church: and this he has done by identifying the
church with the commonwealth; no one, according to him, being a member
of the one who was not also a member of the other. But as the
constitution of the Christian church, so far as the laity partook in its
government, by choice of pastors or otherwise, was undeniably
democratical, he laboured to show, through the medium of the original
compact of civil society, that the sovereign had received this, as well
as all other powers, at the hands of the people. "Laws being made among
us," he affirms, "are not by any of us so taken or interpreted, as if
they did receive their force from power which the prince doth
communicate unto the parliament, or unto any other court under him, but
from power which the whole body of the realm being naturally possessed
with, hath by free and deliberate assent derived unto him that ruleth
over them so far forth as hath been declared; so that our laws made
concerning religion do take originally their essence from the power of
the whole realm and church of England."
In this system of Hooker and Locke, for it will be obvious to the reader
that their principles were the same, there is much, if I am not
mistaken, to disapprove. That no man can be justly bound by laws which
his own assent has not ratified, appears to me a position incompatible
with the existence of society in its literal sense, or illusory in the
sophistical interpretations by which it is usual to evade its meaning.
It will be more satisfactory and important to remark the views which
this great writer entertained of our own constitution, to which he
frequently and fearlessly appeals, as the standing illustration of a
government restrained by law. "I cannot choose," he says, "but commend
highly their wisdom, by whom the foundation of the commonwealth hath
been laid; wherein though no manner of person or cause be unsubject unto
the king's power, yet so is the power of the king over all, and in all
limited, that unto all his proceedings the law itself is a rule. The
axioms of our regal government are these: 'Lex facit regem'--the king's
grant of any favour made contrary to the law is void;-'Rex nihil potest
nisi quod jure potest'--what power the king hath, he hath it by law: the
bounds and limits of it are known, the entire community giveth general
order by law, how all things publicly are to be done; and the king, as
the head thereof, the highest in authority over all, causeth, according
to the same law, every particular to be framed and ordered thereby. The
whole body politic maketh laws, which laws give power unto the king; and
the king having bound himself to use according to law that power, it so
falleth out, that the execution of the one is accomplished by the
other." These doctrines of limited monarchy recur perpetually in the
eighth book; and though Hooker, as may be supposed, does not enter upon
the perilous question of resistance, and even intimates that he does not
see how the people can limit the extent of power once granted, unless
where it escheats to them, yet he positively lays it down, that usurpers
of power, that is, lawful rulers arrogating more than the law gives to
them, cannot in conscience bind any man to obedience.
It would perhaps have been a deviation from my subject to enlarge so
much on these political principles in a writer of any later age, when
they had been openly sustained in the councils of the nation. But as the
reigns of the Tudor family were so inauspicious to liberty that some
have been apt to imagine its recollection to have been almost effaced,
it becomes of more importance to show that absolute monarchy was, in the
eyes of so eminent an author as Hooker, both pernicious in itself, and
contrary to the fundamental laws of the English commonwealth. Nor would
such sentiments, we may surely presume, have been avowed by a man of
singular humility, and whom we might charge with somewhat of an
excessive deference to authority, unless they had obtained more
currency, both among divines and lawyers, than the complaisance of
courtiers in these two professions might lead us to conclude; Hooker
being not prone to deal in paradoxes, nor to borrow from his adversaries
that sturdy republicanism of the school of Geneva which had been their
scandal. I cannot indeed but suspect that his whig principles, in the
last book, are announced with a temerity that would have startled his
superiors; and that its authenticity, however called in question, has
been better preserved by the circumstance of a posthumous publication
than if he had lived to give it to the world. Whitgift would probably
have induced him to suppress a few passages incompatible with the
servile theories already in vogue. It is far more usual that an author's
genuine sentiments are perverted by means of his friends and patrons
than of his adversaries.
_Spoliation of church revenues._--The prelates of the English church,
while they inflicted so many severities on others, had not always cause
to exult in their own condition. From the time when Henry taught his
courtiers to revel in the spoil of monasteries, there had been a
perpetual appetite for ecclesiastical possessions. Endowed by a prodigal
superstition with pomp and wealth beyond all reasonable measure, and far
beyond what the new system of religion appeared to prescribe, the church
of England still excited the covetousness of the powerful, and the
scandal of the austere.[358] I have mentioned in another place how the
bishoprics were impoverished in the first reformation under Edward VI.
The catholic bishops who followed made haste to plunder, from a
consciousness that the goods of their church were speedily to pass into
the hands of heretics.[359] Hence the alienation of their estates had
gone so far that in the beginning of Elizabeth's reign statutes were
made, disabling ecclesiastical proprietors from granting away their
lands, except on leases for three lives, or twenty-one years.[360] But
an unfortunate reservation was introduced in favour of the Crown. The
queen, therefore, and her courtiers, who obtained grants from her,
continued to prey upon their succulent victim. Few of her council
imitated the noble disinterestedness of Walsingham, who spent his own
estate in her service, and left not sufficient to pay his debts. The
documents of that age contain ample proofs of their rapacity. Thus Cecil
surrounded his mansion-house at Burleigh with estates, once belonging to
the see of Peterborough. Thus Hatton built his house in Holborn on the
Bishop of Ely's garden. Cox, on making resistance to this spoliation,
received a singular epistle from the queen.[361] This bishop, in
consequence of such vexations, was desirous of retiring from the see
before his death. After that event, Elizabeth kept it vacant eighteen
years. During this period we have a petition to her from Lord Keeper
Puckering, that she would confer it on Scambler, Bishop of Norwich, then
eighty-eight years old, and notorious for simony, in order that he might
give him a lease of part of the lands.[362] These transactions denote
the mercenary and rapacious spirit which leavened almost all Elizabeth's
courtiers.
The bishops of this reign do not appear, with some distinguished
exceptions, to have reflected so much honour on the established church
as those who attach a superstitious reverence to the age of the
reformation are apt to conceive. In the plunder that went forward, they
took good care of themselves. Charges against them of simony,
corruption, covetousness, and especially destruction of their church
estates for the benefit of their families, are very common--sometimes no
doubt unjust, but too frequent to be absolutely without foundation.[363]
The council often wrote to them, as well as concerning them, with a sort
of asperity which would astonish one of their successors. And the queen
never restrained herself in treating them on any provocation with a good
deal of rudeness, of which I have just mentioned an egregious
example.[364] In her speech to parliament on closing the session of
1584, when many complaints against the rulers of the church had rung in
her ears, she told the bishops that if they did not amend what was
wrong, she meant to depose them.[365] For there seems to have been no
question in that age but that this might be done by virtue of the
Crown's supremacy.
The church of England was not left by Elizabeth in circumstances that
demanded applause for the policy of her rulers. After forty years of
constantly aggravated molestation of the nonconforming clergy, their
numbers were become greater, their popularity more deeply rooted, their
enmity to the established order more irreconcilable. It was doubtless a
problem of no slight difficulty, by what means so obstinate and
opinionated a class of sectaries could have been managed; nor are we
perhaps, at this distance of time, altogether competent to decide upon
the fittest course of policy in that respect.[366] But it is manifest
that the obstinacy of bold and sincere men is not to be quelled by any
punishments that do not exterminate them, and that they were not likely
to entertain a less conceit of their own reason when they found no
arguments so much relied on to refute it as that of force. Statesmen
invariably take a better view of such questions than churchmen; and we
may well believe that Cecil and Walsingham judged more sagaciously than
Whitgift and Aylmer. The best apology that can be made for Elizabeth's
tenaciousness of those ceremonies which produced this fatal contention I
have already suggested, without much express authority from the records
of that age; namely, the justice and expediency of winning over the
catholics to conformity, by retaining as much as possible of their
accustomed rites. But in the latter period of the queen's reign, this
policy had lost a great deal of its application; or rather the same
principle of policy would have dictated numerous concessions in order to
satisfy the people. It appears by no means unlikely that, by reforming
the abuses and corruption of the spiritual courts, by abandoning a part
of their jurisdiction, so heterogeneous and so unduly obtained, by
abrogating obnoxious and at best frivolous ceremonies, by restraining
pluralities of benefices, by ceasing to discountenance the most diligent
ministers, and by more temper and disinterestedness in their own
behaviour, the bishops would have palliated, to an indefinite degree,
that dissatisfaction with the established scheme of polity, which its
want of resemblance to that of other protestant churches must more or
less have produced. Such a reformation would at least have contented
those reasonable and moderate persons who occupy sometimes a more
extensive ground between contending factions than the zealots of either
are willing to believe or acknowledge.
_General remarks._--I am very sensible that such freedom as I have used
in this chapter cannot be pleasing to such as have sworn allegiance to
either the Anglican or the puritan party; and that even candid and
liberal minds may be inclined to suspect that I have not sufficiently
admitted the excesses of one side to furnish an excuse for those of the
other. Such readers I would gladly refer to Lord Bacon's "Advertisement
touching the Controversies of the Church of England;" a treatise written
under Elizabeth, in that tone of dispassionate philosophy which the
precepts of Burleigh sown in his own deep and fertile mind had taught
him to apply. This treatise, to which I did not turn my attention in
writing the present chapter, appears to coincide in every respect with
the views it displays. If he censures the pride and obstinacy of the
puritan teachers, their indecent and libellous style of writing, their
affected imitation of foreign churches, their extravagance of receding
from everything formerly practised, he animadverts with no less
plainness on the faults of the episcopal party, on the bad example of
some prelates, on their peevish opposition to every improvement, their
unjust accusations, their contempt of foreign churches, their
persecuting spirit.[367]
_Letter of Walsingham in defence of the queen's government._--Yet that
we may not deprive this great queen's administration, in what concerned
her dealings with the two religious parties opposed to the established
church, of what vindication may best be offered for it, I will refer the
reader to a letter of Sir Francis Walsingham, written to a person in
France, after the year 1580.[368] It is a very able apology for her
government; and if the reader should detect, as he doubtless may,
somewhat of sophistry in reasoning, and of mis-statement in matter of
fact, he will ascribe both one and the other to the narrow spirit of the
age with respect to civil and religious freedom, or to the circumstances
of the writer, an advocate whose sovereign was his client.
FOOTNOTES:
[266] Sleidan, _Hist. de la Réformation_ (par Courayer), ii. 74.
[267] Strype's _Cranmer_, 354.
[268] These transactions have been perpetuated by a tract, entitled
"Discourse of the Troubles at Frankfort," first published in 1575, and
reprinted in the well-known collection entitled _The Phoenix_. It is
fairly and temperately written, though with an avowed bias towards the
puritan party. Whatever we read in any historian on the subject, is
derived from this authority; but the refraction is of course very
different through the pages of Collier and of Neal.
[269] Strype, ii. 1. There was a Lutheran party at the beginning of her
reign, to which the queen may be said to have inclined, not altogether
from religion, but from policy. _Id._ i. 53. Her situation was very
hazardous; and in order to connect herself with sincere allies, she had
thoughts of joining the Smalcaldic league of the German princes, whose
bigotry would admit none but members of the Augsburg confession. Jewel's
letters to Peter Martyr, in the appendix to Burnet's third volume, throw
considerable light on the first two years of Elizabeth's reign; and show
that famous prelate to have been what afterwards would have been called
a precisian or puritan. He even approved a scruple Elizabeth entertained
about her title of head of the church, as appertaining only to Christ.
But the unreasonableness of the discontented party, and the natural
tendency of a man who has joined the side of power to deal severely with
those he has left, made him afterwards their enemy.
[270] Roods and relics accordingly were broken to pieces and burned
throughout the kingdom, of which Collier makes loud complaint. This,
Strype says, gave much offence to the catholics; and it was not the most
obvious method of inducing them to conform.
[271] Burnet, iii. Appendix, 290; Strype's _Parker_, 46.
[272] Quantum auguror, non scribam ad te posthac episcopus. Eo enim jam
res pervenit, ut aut cruces 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. _Id._ 296. Other proofs of the text may be found
in the same collection, as well as in Strype's _Annals_, and his _Life
of Parker_. Even Parker seems, on one occasion, to have expected the
queen to make such a retrograde movement in religion as would compel
them all to disobey her. _Life of Parker_, Appendix, 29; a very
remarkable letter.
[273] Strype's _Parker_, 310. The archbishop seems to disapprove this as
inexpedient, but rather coldly; he was far from sharing the usual
opinions on this subject. A puritan pamphleteer took the liberty to name
the queen's chapel as "the pattern and precedent of all superstition."
Strype's _Annals_, i. 471.
[274] Burnet, ii. 395.
[275] One of the injunctions to the visitors of 1559, reciting the
offence and slander to the church that had arisen by lack of discreet
and sober behaviour in many ministers, both in choosing of their wives,
and in living with them, directs that no priest or deacon shall marry
without the allowance of the bishops, and two justices of the peace,
dwelling near the woman's abode, nor without the consent of her parents
or kinsfolk, or, for want of these, of her master or mistress, on pain
of not being permitted to exercise the ministry, or hold any benefice;
and that the marriages of bishops should be approved by the
metropolitan, and also by commissioners appointed by the queen. _Somers
Tracts_, i. 65; Burnet, ii. 398. It is reasonable to suppose, that when
a host of low-bred and illiterate priests were at once released from the
obligation to celibacy, many of them would abuse their liberty
improvidently, or even scandalously; and this probably had increased
Elizabeth's prejudice against clerical matrimony. But I do not suppose
that this injunction was ever much regarded. Some time afterwards (Aug.
1561) she put forth another extraordinary injunction, that no member of
a college or cathedral should have his wife living within its precincts,
under pain of forfeiting all his preferments. Cecil sent this to Parker,
telling him at the same time that it was with great difficulty he had
prevented the queen from altogether forbidding the marriage of priests.
_Life of P._ 107. And the archbishop himself says, in the letter above
mentioned, "I was in a horror to hear such words to come from her mild
nature and Christianly learned conscience, as she spake concerning God's
holy ordinance and institution of matrimony."
[276] Sandys writes to Parker, April 1559, "The queen's majesty will
wink at it, but not stablish it by law, which is nothing else but to
bastard our children." And decisive proofs are brought by Strype, that
the marriages of the clergy were not held legal, in the first part at
least of the queen's reign. Elizabeth herself, after having been
sumptuously entertained by the archbishop at Lambeth, took leave of Mrs.
Parker with the following courtesy: "_Madam_ (the style of a married
lady) I may not call you; _mistress_ (the appellation at that time of an
unmarried woman) I am loth to call you; but, however, I thank you for
your good cheer." The lady is styled, in deeds made while her husband
was archbishop, _Parker_, alias _Harleston_; which was her maiden name.
And she dying before her husband, her brother is called her heir-at-law,
though she left children. But the archbishop procured letters of
legitimation, in order to render them capable of inheritance. _Life of
Parker_, 511. Others did the same. _Annals_, i. 8. Yet such letters
were, I conceive, beyond the queen's power to grant, and could not have
obtained any regard in a court of law.
In the diocese of Bangor, it was usual for the clergy, some years after
Elizabeth's accession, to pay the bishop for a licence to keep a
concubine. Strype's _Parker_, 203.
[277] Burnet, iii. 305.
[278] Jewel's letters to Bullinger, in Burnet, are full of proofs of his
dissatisfaction; and those who feel any doubts may easily satisfy
themselves from the same collection, and from Strype as to the others.
The current opinion, that these scruples were imbibed during the
banishment of our reformers, must be received with great allowance. The
dislike to some parts of the Anglican ritual had begun at home; it had
broken out at Frankfort; it is displayed in all the early documents of
Elizabeth's reign by the English divines, far more warmly than by their
Swiss correspondents. Grindal, when first named to the see of London,
had his scruples about wearing the episcopal habits removed by Peter
Martyr. Strype's _Grindal_, 29.
[279] It was proposed on this occasion to abolish all saints' days, to
omit the cross in baptism, to leave kneeling at the communion to the
ordinary's discretion, to take away organs, and one or two more of the
ceremonies then chiefly in dispute. Burnet, iii. 303 and Append. 319;
Strype, i. 297, 299. Nowell voted in the minority. It can hardly be
going too far to suppose that some of the majority were attached to the
old religion.
[280] Jewel, one of these visitors, writes afterwards to Martyr:
"Invenimus ubique animos multitudinis satis propensos ad religionem; ibi
etiam, ubi omnia putabantur fore difficillima.... Si quid erat 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.
Mr. Butler says, from several circumstances it is evident that a great
majority of the nation then inclined to the Roman catholic religion.
_Mem. of Eng. Catholics_, i. 146. But his proofs of this are extremely
weak. The attachment he supposes to have existed in the laity towards
their pastors may well be doubted; it could not be founded on the
natural grounds of esteem; and if Rishton, the continuator of Sanders de
Schismate, whom he quotes, says that one-third of the nation was
protestant, we may surely double the calculation of so determined a
papist. As to the influence which Mr. B. alleges the court to have
employed in elections for Elizabeth's first parliament, the argument
would equally prove that the majority was protestant under Mary, since
she had recourse to the same means. The whole tenor of historical
documents in Elizabeth's reign proves that the catholics soon became a
minority, and still more among the common people than the gentry. The
north of England, where their strength lay, was in every respect the
least important part of the kingdom. Even according to Dr. Lingard, who
thinks fit to claim half the nation as catholic in the middle of this
reign, the number of recusants certified to the council under 23 Eliz.
c. 1, amounted only to fifty thousand; and, if we can trust the
authority of other lists, they were much fewer before the accession of
James. This writer, I may observe in passing, has, through haste and
thoughtlessness, misstated a passage he cites from Murden's _State
Papers_, p. 605, and confounded the persons suspected for religion in
the city of London, about the time of the Armada, with the whole number
of men fit for arms; thus making the former amount to seventeen thousand
and eighty-three.
Mr. Butler has taken up so paradoxical a notion on this subject, that he
literally maintains the catholics to have been at least one half of the
people at the epoch of the gunpowder plot. Vol. i. p. 295. We should be
glad to know at what time he supposes the grand apostasy to have been
consummated. Cardinal Bentivoglio gives a very different account;
reckoning the real catholics, such as did not make profession of heresy,
at only a thirtieth part of the whole; though he supposes that
four-fifths might become such, from secret inclination or general
indifference, if it were once established. _Opere di Bentivoglio_, p.
83, edit. Paris, 1645. But I presume neither Mr. Butler nor Dr. Lingard
would own these _adiaphorists_.
The latter writer, on the other hand, reckons the Hugonots of France,
soon after 1560, at only one-hundredth part of the nation, quoting for
this Castelnau, a useful memoir writer, but no authority on a matter of
calculation. The stern spirit of Coligni, _atrox animus Catonis_, rising
above all misfortune, and unconquerable, except by the darkest
treachery, is sufficiently admirable without reducing his party to so
miserable a fraction. The Calvinists at this time are reckoned by some
at one-fourth, but more frequently at one-tenth, of the French nation.
Even in the beginning of the next century, when proscription and
massacre, lukewarmness and self-interest, had thinned their ranks, they
are estimated by Bentivoglio (_ubi supra_) at one-fifteenth.
[281] Strype's _Parker_, 152, 153; Collier, 508. In the Lansdowne
Collection, vol. viii. 47, is a letter from Parker, Apr. 1565,
complaining of Turner, dean of Wells, for having made a man do penance
for adultery in a square cap.
[282] Strype's _Parker_, 157, 173.
[283] This apprehension of Elizabeth's taking a disgust to protestantism
is intimated in a letter of Bishop Cox. Strype's _Parker_, 229.
[284] Parker sometimes declares himself willing to see some indulgence
as to the habits and other matters; but, the queen's commands being
peremptory, he had thought it his duty to obey them, though forewarning
her that the puritan ministers would not give way (225, 227). This,
however, is not consistent with other passages, where he appears to
importune the queen to proceed. Her wavering conduct, partly owing to
caprice, partly to insincerity, was naturally vexatious to a man of his
firm and ardent temper. Possibly he might dissemble a little in writing
to Cecil, who was against driving the puritans to extremities. But, on
the review of his whole behaviour, he must be reckoned, and always has
been reckoned, the most severe disciplinarian of Elizabeth's first
hierarchy; though more violent men came afterwards.
[285] Strype's _Annals_, 416; _Parker_, 159. Some years after, these
advertisements obtained the queen's sanction, and got the name of
Articles and Ordinances. _Id._ 160.
[286] Strype's _Annals_, 416, 430; _Life of Parker_, 184. Sampson had
refused a bishopric on account of these ceremonies. Burnet, iii. 292.
[287] _Life of Parker_, 214. Strype says (p. 223) that the suspended
ministers preached again after a little time by connivance.
[288] Jewel is said to have become strict in enforcing the use of the
surplice. _Annals_, 421.
[289] Strype's _Annals_, i. 423, ii. 316; _Life of Parker_, 243, 348;
Burnet, iii. 310, 325, 337. Bishops Grindal and Horn wrote to Zurich,
saying plainly, it was not their fault that the habits were not laid
aside, with the cross in baptism, the use of organs, baptism by women,
etc. P. 314. This last usage was much inveighed against by the
Calvinists, because it involved a theological tenet differing from their
own, as to the necessity of baptism. In Strype's _Annals_, 501, we have
the form of an oath taken by all mid-wives, to exercise their calling
without sorcery or superstition, and to baptize with the proper words.
It was abolished by James I.
Beza was more dissatisfied than the Helvetic divines with the state of
the English church (_Annals_, i. 452; Collier, 503); but dissuaded the
puritans from separation, and advised them rather to comply with the
ceremonies. _Id._ 511.
[290] Strype's _Life of Parker_, 242; _Life of Grindal_, 114.
[291] Burnet, iii. 316; Strype's _Parker_, 155 _et alibi_.
[292] _Id._ 226. The church had but two or three friends, Strype says,
in the council about 1572, of whom Cecil was the chief. _Id._ 388.
[293] Burnet says, on the authority of the visitors' reports, that out
of 9400 beneficed clergymen, not more than about 200 refused to conform.
This caused for some years just apprehensions of the danger into which
religion was brought by their retaining their affections to the old
superstition; "so that," he proceeds, "if Queen Elizabeth had not lived
so long as she did, till all that generation was dead, and a new set of
men better educated and principled were grown up and put in their rooms;
and if a prince of another religion had succeeded before that time, they
had probably turned about again to the old superstition as nimbly as
they had done before in Queen Mary's days." Vol. ii. p. 401. It would be
easy to multiply testimonies out of Strype, to the papist inclinations
of a great part of the clergy in the first part of this reign. They are
said to have been sunk in superstition and looseness of living.
_Annals_, i. 166.
[294] Strype's _Annals_, 138, 177; Collier, 436, 465. This seems to show
that more churches were empty by the desertion of popish incumbents than
the foregoing note would lead us to suppose. I believe that many went
off to foreign parts from time to time, who had complied in 1559; and
others were put out of their livings. The Roman catholic writers make
out a longer list than Burnet's calculation allows.
It appears from an account sent in to the privy council by Parkhurst,
Bishop of Norwich, in 1562, that in his diocese more than one-third of
the benefices were vacant. _Annals_, i. 323. But in Ely, out of 152
cures only 52 were served in 1560. _L. of Parker_, 72.
[295] Parker wrote in 1561 to the bishops of his province, enjoining
them to send him certificates of the names and qualities of all their
clergy; one column, in the form of certificate, was for learning: "And
this," Strype says, "was commonly set down; Latinè aliqua verba
intelligit, Latinè utcunque intelligit; Latinè pauca intelligit," etc.
Sometimes, however, we find doctus. _L. of Parker_, 95. But if the
clergy could not read the language in which their very prayers were
composed, what other learning or knowledge could they have? Certainly
none; and even those who had gone far enough to study the school logic
and divinity, do not deserve a much higher place than the wholly
uninstructed. The Greek tongue was never _generally_ taught in the
universities or public schools till the Reformation, and perhaps not so
soon.
Since this note was written, a letter of Gibson has been published in
Pepys's _Memoirs_, vol. ii. p. 154, mentioning a catalogue he had found
of the clergy in the archdeaconry of Middlesex, A.D. 1563, with their
qualifications annexed. Three only are described as docti 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?
[296] In the struggle made for popery at the queen's accession, the
lower house of convocation sent up to the bishops five articles of
faith, all strongly catholic. These had previously been transmitted to
the two universities, and returned with the hands of the greater part of
the doctors to the first four. The fifth they scrupled, as trenching too
much on the queen's temporal power. Burnet, ii. 388, iii. 269.
Strype says, the universities were so addicted to popery that for some
years few educated in them were ordained. _Life of Grindal_, p. 50. And
Wood's _Antiquities of the University of Oxford_ contain many proofs of
its attachment to the old religion. In Exeter College, as late as 1578,
there were not above four protestants out of eighty, "all the rest
secret or open Roman affectionaries." These chiefly came from the west,
"where popery greatly prevailed, and the gentry were bred up in that
religion." Strype's _Annals_, ii. 539. But afterwards, Wood complains,
"through the influence of Humphrey and Reynolds (the latter of whom
became divinity lecturer on Secretary Walsingham's foundation in 1586),
the disposition of the times, and the long continuance of the Earl of
Leicester, the principal patron of the puritanical faction, in the place
of Chancellor of Oxford, the face of the university was so much altered
that there was little to be seen in it of the church of England,
according to the principles and positions upon which it was first
reformed." _Hist. of Oxford_, vol. ii. p. 228. Previously, however, to
this change towards puritanism, the university had not been Anglican,
but popish; which Wood liked much better than the first, and nearly as
well as the second.
A letter from the University of Oxford to Elizabeth on her accession
(Hearne's edition of Roper's _Life of More_, p. 173) shows the
accommodating character of these academies. They extol Mary as an
excellent queen, but are consoled by the thought of her excellent
successor. One sentence is curious: "Cum _patri_, _fratri_, _sorori_,
nihil fuerit republicâ carius, _religione optatius_, 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.
[297] The fellows and scholars of St. John's College, to the number of
three hundred, threw off their hoods and surplices, in 1565, without any
opposition from the master, till Cecil, as chancellor of the university,
took up the matter, and insisted on their conformity to the established
regulations. This gave much dissatisfaction to the university; not only
the more intemperate party, but many heads of colleges and grave men,
among whom we are rather surprised to find the name of Whitgift,
interceding with their chancellor for some mitigation as to these
unpalatable observances. Strype's _Annals_, i. 441; _Life of Parker_,
194. Cambridge had, however, her catholics, as Oxford had her puritans,
of whom Dr. Caius, founder of the college that bears his name, was among
the most remarkable. _Id._ 200. The Chancellors of Oxford and Cambridge,
Leicester and Cecil, kept a very strict hand over them, especially the
latter, who seems to have acted as paramount visitor over every college,
making them reverse any act which he disapproved. Strype, _passim_.
[298] Strype's _Annals_, i. 583; _Life of Parker_, 312, 347; _Life of
Whitgift_, 27.
[299] Cartwright's _Admonition_, quoted in Neal's _Hist. of Puritans_,
i. 88.
[300] Madox's _Vindication of Church of England against Neal_, p. 122.
This writer quotes several very extravagant passages from Cartwright,
which go to prove irresistibly that he would have made no compromise
short of the overthrow of the established church. P. 111, etc. "As to
you, dear brethren," is said in a puritan tract of 1570, "whom God hath
called into the brunt of the battle, the Lord keep you constant, that ye
yield neither to toleration, neither to any other subtle persuasions of
dispensations and licences, which were to fortify their Romish
practices; but, as you fight the Lord's fight, be valiant." Madox, p.
287.
[301] These principles had already been broached by those who called
Calvin master; he had himself become a sort of prophet-king at Geneva.
And Collier quotes passages from Knox's _Second Blast_, inconsistent
with any government, except one slavishly subservient to the church. P.
444. The nonjuring historian holds out the hand of fellowship to the
puritans he abhors, when they preach up ecclesiastical independence.
Collier liked the royal supremacy as little as Cartwright; and in giving
an account of Bancroft's attack on the nonconformists for denying it,
enters upon a long discussion in favour of an absolute emancipation from
the control of laymen. P. 610. He does not even approve the
determination of the judges in Cawdrey's case (5 Coke's Reports), though
against the nonconformists, as proceeding on a wrong principle of
setting up the state above the church. P. 634.
[302] The school of Cartwright were as little disposed as the
episcopalians to see the laity fatten on church property. Bancroft, in
his famous sermon preached at Paul's Cross in 1588 (p. 24), divides the
puritans into the clergy factious, and the lay factious. The former, he
says, contend and lay it down in their supplication to parliament in
1585, that things once dedicated to a sacred use ought so to remain for
ever, and not to be converted to any private use. The lay, on the
contrary, think it enough for the clergy to fare as the apostles did.
Cartwright did not spare those who longed to pull down bishoprics for
the sake of plundering them, and charged those who held impropriations
with sin. Bancroft takes delight in quoting his bitter phrases from the
ecclesiastical discipline.
[303] The old friends and protectors of our reformers at Zurich,
Bullinger and Gualter, however they had favoured the principles of the
first nonconformists, write in strong disapprobation of the innovators
of 1574. Strype's _Annals_, ii. 316. And Fox, the martyrologist, a
refuser to conform, speaks, in a remarkable letter quoted by Fuller in
his _Church History_, p. 107, of factiosa illa Puritanorum capita,
saying that he is totus ab iis alienus, and unwilling perbacchari in
episcopos. The same is true of Bernard Gilpin, who disliked some of the
ceremonies, and had subscribed the articles with a reservation, "so far
as agreeable to the word of God;" but was wholly opposed to the new
reform of church discipline. _Carleton's Life of Gilpin_, and
Wordsworth's _Ecclesiastical Biography_, vol. iv. Neal has not reported
the matter faithfully.
[304] "The puritan," says Persons the jesuit, in 1594, "is more
generally favoured throughout the realm with all those which are not of
the Roman religion than is the protestant, upon a certain general
persuasion, that his profession is the more perfect, especially in great
towns, where preachers have made more impression in the artificers and
burghers than in the country people. And among the protestants
themselves, all those that were less interested in ecclesiastical
livings, or other preferments depending of the state, are more affected
commonly to the puritans, or easily are to be induced to pass that way
for the same reason." Doleman's _Conference about the next Succession to
the Crown of England_, p. 242. And again: "The puritan party at home, in
England, is thought to be most rigorous of any other, that is to say,
most ardent, quick, bold, resolute, and to have a great part of the best
captains and soldiers on their side, which is a point of no small
moment."--P. 244. I do not quote these passages out of trust in Father
Persons, but because they coincide with much besides that has occurred
to me in reading, and especially with the parliamentary proceedings of
this reign. The following observation will confirm what may startle some
readers; that the puritans, or at least those who rather favoured them,
had a majority among the protestant gentry in the queen's days. It is
agreed on all hands, and is quite manifest, that they predominated in
the House of Commons. But that house was composed, as it has ever been,
of the principal landed proprietors, and as much represented the general
wish of the community when it demanded a further reform in religious
matters, as on any other subject. One would imagine, by the manner in
which some express themselves, that the discontented were a small
faction, who by some unaccountable means, in despite of the government
and the nation, formed a majority of all parliaments under Elizabeth and
her two successors.
[305] Burnet, iii. 335. Pluralities are still the great abuse of the
church of England; and the rules on this head are so complicated and
unreasonable that scarce any one can remember them. It would be
difficult to prove that, with a view to the interests of religion among
the people, or of the clergy themselves, taken as a body, any
pluralities of benefices with cure of souls ought to remain, except of
small contiguous parishes. But with a view to the interests of some
hundred well connected ecclesiastics, the difficulty is none at all.
[306] D'Ewes, p. 156; _Parliament. Hist._ i. 733, etc.
[307] D'Ewes, p. 239; _Parl. Hist._ 790; Strype's _Life of Parker_, 394.
In a debate between Cardinal Carvajal and Rockisane, the famous Calixtin
archbishop of Prague, at the council of Basle, the former said he would
reduce the whole argument to two syllables; Crede. The latter replied he
would do the same, and confine himself to two others; Proba. Lenfant
makes a very just observation on this: "Si la 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
_l'Eglise_, et que le second est le langage de ce qu'on appelle
_l'heresie_." _Concile de Basle_, p. 193.
[308] Several ministers were deprived, in 1572, for refusing to
subscribe the articles. Strype, ii. 186. Unless these were papists,
which indeed is possible, their objection must have been to the articles
touching discipline; for the puritans liked the rest very well.
[309] Neal, 187; Strype's _Parker_, 325. Parker wrote to Lord Burleigh
(June 1573), exciting the council to proceed against some of those men
who had been called before the star-chamber. "He knew them," he said,
"to be cowards"--a very great mistake--"and if they of the privy council
gave over, they would hinder her majesty's government more than they
were aware, and much abate the estimation of their own authorities,"
etc. _Id._ p. 421; Cartwright's _Admonition_ was now prohibited to be
sold. _Ibid._
[310] Neal, 210.
[311] Strype's _Annals_, i. 433.
[312] Strype's _Annals_, ii. 219, 232; _Life of Parker_, 461.
[313] Strype's _Life of Grindal_, 219, 230, 272. The archbishop's letter
to the queen, declaring his unwillingness to obey her requisition, is in
a far bolder strain than the prelates were wont to use in this reign,
and perhaps contributed to the severity she showed towards him. Grindal
was a very honest, conscientious man, but too little of a courtier or
statesman for the place he filled. He was on the point of resigning the
archbishopric when he died; there had at one time been some thoughts of
depriving him.
[314] Strype's _Whitgift_, 27 _et alibi_. He did not disdain to reflect
on Cartwright for his poverty, the consequence of a scrupulous adherence
to his principles. But the controversial writers of every side in the
sixteenth century display a want of decency and humanity which even our
anonymous libellers have hardly matched. Whitgift was not of much
learning, if it be true, as the editors of the _Biographia Britannica_
intimate, that he had no acquaintance with the Greek language. This must
seem strange to those who have an exaggerated notion of the scholarship
of that age.
[315] Strype's _Whitgift_, 115.
[316] Neal, 266; Birch's _Memoirs of Elizabeth_, vol. i. p. 42, 47, etc.
[317] According to a paper in the appendix to Strype's _Life of
Whitgift_, p. 60, the number of conformable ministers in eleven
dioceses, not including those of London and Norwich, the strongholds of
puritanism, was 786, that of non-compliers 49. But Neal says that 233
ministers were suspended in only six counties, 64 of whom in Norfolk, 60
in Suffolk, 38 in Essex. P. 268. The puritans formed so much the more
learned and diligent part of the clergy, that a great scarcity of
preachers was experienced throughout this reign, in consequence of
silencing so many of the former. Thus in Cornwall, about the year 1578,
out of 140 clergymen, not one was capable of preaching. Neal, p. 245.
And, in general, the number of those who could not preach, but only read
the service, was to the others nearly as four to one; the preachers
being a majority only in London. _Id_. p. 320.
This may be deemed by some an instance of Neal's prejudice. But that
historian is not so ill-informed as they suppose; and the fact is highly
probable. Let it be remembered that there existed few books of divinity
in English; that all books were, comparatively to the value of money,
far dearer than at present; that the majority of the clergy were nearly
illiterate, and many of them addicted to drunkenness and low vices;
above all, that they had no means of supplying their deficiences by
preaching the discourses of others; and we shall see little cause for
doubting Neal's statement, though founded on a puritan document.
[318] _Life of Whitgift_, 137 _et alibi pluries_; _Annals_, iii. 183.
[319] Neal, 274; Strype's _Annals_, iii. 180.
The germ of the high commission court seems to have been a commission
granted by Mary (Feb. 1557) to certain bishops and others to inquire
after all heresies, punish persons misbehaving at church, and such as
refused to come thither, either by means of presentments by witness, or
any other politic way they could devise; with full power to proceed as
their discretions and consciences should direct them; and to use all
such means as they could invent, for the searching of the premises, to
call witnesses, and force them to make oath of such things as might
discover what they sought after. Burnet, ii. 347. But the primary model
was the inquisition itself.
It was questioned whether the power of deprivation for not reading the
common prayer, granted to the high commissioners, were legal; the Act of
Uniformity having annexed a much smaller penalty. But it was held by the
judges in the case of Cawdrey (5 Coke Reports), that the act did not
take away the ecclesiastical jurisdiction and supremacy which had ever
appertained to the crown, and by virtue of which it might erect courts
with as full spiritual jurisdiction as the archbishops and bishops
exercised.
[320] Strype's _Whitgift_, 135; and Appendix, 49.
[321] _Id._ 157, 160.
[322] _Id._ 163, 166 _et alibi_; Birch's _Memoirs_, i. 62. There was
said to be a scheme on foot, about 1590, to make all persons in office
subscribe a declaration that episcopacy was lawful by the word of God,
which Burleigh prevented.
[323] Neal, 325, 385.
[324] _Id._ 290; Strype's _Life of Aylmer_, p. 59, etc. His biographer
is here, as in all his writings, too partial to condemn, but too honest
to conceal.
[325] Neal, 294.
[326] Strype's _Aylmer_, 71. When he grew old, and reflected that a
large sum of money would be due from his family, for dilapidations of
the palace at Fulham, etc., he literally proposed to sell his bishopric
to Bancroft. _Id._ 169. The other, however, waited for his death, and
had above £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.
[327] _Somers' Tracts_, i. 166.
[328] Bacon's Works, i. 532.
[329] Birch's _Memoirs_, ii. 146,
[330] _Id. ibid._ Burleigh does not shine much in these memoirs; but
most of the letters they contain are from the two Bacons, then engaged
in the Essex faction, though nephews of the treasurer.
[331] The first of Martin Mar-prelate's libels were published in 1588.
In the month of November of that year the archbishop is directed by a
letter from the council to search for and commit to prison the authors
and printers. Strype's _Whitgift_, 288. These pamphlets are scarce; but
a few extracts from them may be found in Strype, and other authors. The
abusive language of the puritan pamphleteers had begun several years
before. Strype's _Annals_, ii. 193. See the trial of Sir Richard
Knightley of Northamptonshire for dispersing puritanical libels. _State
Trials_, i. 1263.
[332] 23 Eliz. c. 2.
[333] Penry's protestation at his death is in a style of the most
affecting and simple eloquence. _Life of Whitgift_, 409, and Appendix
176. It is a striking contrast to the coarse abuse for which he
suffered. The authors of Martin Mar-prelate were never fully discovered;
but Penry seems not to deny his concern in it.
[334] _State Trials_, 1271. It may be remarked on this as on other
occasions, that Udal's trial is evidently published by himself; and a
defendant, especially in a political proceeding, is apt to give a
partial colour to his own case. _Life of Whitgift_, 314; _Annals of
Reformation_, iv. 21; Fuller's _Church History_, 122; Neal, 340. This
writer says: "Among the divines who _suffered death_ for the libels
above mentioned, was the Rev. Mr. Udal." This is no doubt a splenetic
mode of speaking. But Warburton, in his short notes on Neal's history,
treats it as a wilful and audacious attempt to impose on the reader; as
if the ensuing pages did not let him into all the circumstances. I will
here observe that Warburton, in his self-conceit, has paid a much higher
compliment to Neal than he intended, speaking of his own comments as "a
full confutation (I quote from memory) of that historian's false facts
and misrepresentations." But when we look at these, we find a good deal
of wit and some pointed remarks, but hardly anything that can be deemed
a material correction of facts.
Neal's _History of the Puritans_ is almost wholly compiled, as far as
this reign is concerned, from Strype, and from a manuscript written by
some puritan about the time. It was answered by Madox, afterwards bishop
of Worcester, in a _Vindication of the Church of England_, published
anonymously in 1733. Neal replied with tolerable success; but Madox's
book is still an useful corrective. Both, however, were, like most
controversialists, prejudiced men, loving the interests of their
respective factions better than truth, and not very scrupulous about
misrepresenting an adversary. But Neal had got rid of the intolerant
spirit of the puritans, while Madox labours to justify every act of
Whitgift and Parker.
[335] _Life of Whitgift_, 328.
[336] _Id._ 336, 360, 366, Append. 142, 159.
[337] _Id._ Append. 135; _Annals_, iv. 52.
[338] This predilection for the Mosaic polity was not uncommon among the
reformers; Collier quotes passages from Martin Bucer as strong as could
well be found in the puritan writings. P. 303.
[339] _Life of Whitgift_, p. 61, 333, and Append. 138; _Annals_, iv.
140. As I have not seen the original works in which these tenets are
said to be promulgated, I cannot vouch for the fairness of the
representation made by hostile pens, though I conceive it to be not very
far from the truth.
[340] _Ibid_. Madox's _Vindication of the Ch. of Eng. against Neal_, p.
212; Strype's _Annals_, iv. 142.
[341] The large views of civil government entertained by the puritans
were sometimes imputed to them as a crime by their more courtly
adversaries, who reproached them with the writings of Buchanan and
Languet. _Life of Whitgift_, 258; _Annals_, iv. 142.
[342] See a declaration to this effect, at which no one could cavil, in
Strype's _Annals_, iv. 85. The puritans, or at least some of their
friends, retaliated this charge of denying the queen's supremacy on
their adversaries. Sir Francis Knollys strongly opposed the claims of
episcopacy, as a divine institution, which had been covertly insinuated
by Bancroft, on the ground of its incompatibility with the prerogative,
and urged Lord Burleigh to make the bishops acknowledge they had no
superiority over the clergy, except by statute, as the only means to
save her majesty from the extreme danger into which she was brought by
the machinations of the pope and King of Spain. _Life of Whitgift_, p.
350, 361, 389. He wrote afterwards to Lord Burleigh in 1591, that if he
might not speak his mind freely against the power of the bishops, and
prove it unlawful, by the laws of this realm, and not by the canon law,
he hoped to be allowed to become a private man. This bold letter he
desires to have shown to the queen. _Lansdowne Catalogue_, vol. lxviii.
84.
[343] D'Ewes, 302; Strype's _Whitgift_, 92, Append. 32.
[344] D'Ewes, 339 _et post_; Strype's _Whitgift_, 176, etc., Append. 70.
[345] Strype's _Annals_, iii. 228.
[346] Strype's _Annals_, iii. 186, 192. Compare Append. 35.
[347] Strype's _Whitgift_, 279; _Annals_, iii. 543.
[348] _Parl. Hist._ 921.
[349] Strype's _Whitgift_, 521, 537, App. 136. The archbishop could not
disguise his dislike to the lawyers. "The temporal lawyer," he says in a
letter to Cecil, "_whose learning is no learning anywhere but here at
home_, being born to nothing, doth by his labour and travel in that
barbarous knowledge purchase to himself and his heirs for ever a
thousand pounds per annum, and oftentimes much more, whereof there are
at this day many examples."--P. 215.
[350] Strype's _Whitgift_, and D'Ewes, _passim_. In a convocation held
during Grindal's sequestration (1580), proposals for reforming certain
abuses in the spiritual courts were considered; but nothing was done in
it. Strype's _Grindal_, p. 259, and Appendix, p. 97. And in 1594, a
commission to enquire into abuses in the spiritual courts was issued;
but whether this were intended _bonâ fide_ or not, it produced no
reformation. Strype's _Whitgift_, 419.
[351] 35 Eliz. c. 1; _Parl. Hist._ 863.
[352] Neal asserts in his summary of the controversy, as it stood in
this reign, that the puritans did not object to the office of bishop,
provided he was only the head of the presbyters, and acted in
conjunction with them. P. 398. But this was in effect to demand
everything. For if the office could be so far lowered in eminence, there
were many waiting to clip the temporal revenues and dignity in
proportion.
In another passage, Neal states clearly, if not quite fairly, the main
points of difference between the church and nonconforming parties under
Elizabeth. P. 147. He concludes with the following remark, which is very
true. "Both parties agreed too well in asserting the necessity of an
uniformity of public worship, and of calling in the sword of the
magistrates for the support and defence of the several principles, which
they made an ill use of in their turns, as they could grasp the power
into their hands. The standard of uniformity, according to the bishops,
was the queen's supremacy and the laws of the land; according to the
puritans, the decrees of provincial and national synods, allowed and
enforced by the civil magistrate; but neither party were for admitting
that liberty of conscience and freedom of profession which is every
man's right, as far as is consistent with the peace of the government he
lives under."
[353] Neal, 253, 386.
[354] Strype's _Whitgift_, 414; Neal, 373. Several years before, in
1583, two men called anabaptists, Thacker and Copping, were hanged at
the same place on the same statute for denying the queen's
ecclesiastical supremacy; the proof of which was their dispersion of
Brown's tracts, wherein that was only owned in civil cases. Strype's
_Annals_, iii. 186. This was according to the invariable practice of
Tudor times: an oppressive and sanguinary statute was first made; and
next, as occasion might serve, a construction was put on it contrary to
all common sense, in order to take away men's lives.
[355] "The discipline of Christ's church," said Cartwright, "that is
necessary for all times, is delivered by Christ, and set down in the
Holy Scriptures. Therefore the true and lawful discipline is to be
fetched from thence, and from thence alone. And that which resteth upon
any other foundation ought to be esteemed unlawful and counterfeit."
Whitgift, in his answer to Cartwright's _Admonition_, rested the
controversy in the main, as Hooker did, on the indifferency of church
discipline and ceremony. It was not till afterwards that the defenders
of the established order found out that one claim of divine right was
best met by another.
[356] "If the natural strength of men's wit may by experience and study
attain unto such ripeness in the knowledge of things human, that men in
this respect may presume to build somewhat upon their judgment; what
reason have we to think but that even in matters divine, the like wits,
furnished with necessary helps, exercised in scripture with like
diligence, and assisted with the grace of Almighty God, may grow unto so
much perfection of knowledge, that men shall have just cause, when
anything pertinent unto faith and religion is doubted of, the more
willingly to incline their minds towards that which the sentence of so
grave, wise, and learned in that faculty shall judge most sound? For the
controversy is of the weight of such men's judgment," etc. But Hooker's
mistake was to exaggerate the weight of such men's judgment; and not to
allow enough for their passions and infirmities, the imperfection of
their knowledge, their connivance with power, their attachment to names
and persons, and all the other drawbacks to ecclesiastical authority.
It is well known that the preface to the _Ecclesiastical Polity_ was one
of the two books to which James II. ascribed his return into the fold of
Rome; and it is not difficult to perceive by what course of reasoning on
the positions it contains this was effected.
[357] In the life of Hooker prefixed to the edition I use, fol. 1671, I
find an assertion of Dr. Barnard, chaplain to Usher, that he had seen a
manuscript of the last books of Hooker, containing many things omitted
in the printed volume. One passage is quoted, and seems in Hooker's
style. But the question is rather with respect to interpolations than
omissions. And of the former I see no evidence or likelihood. If it be
true, as is alleged, that different manuscripts of the three last books
did not agree, if even these disagreements were the result of fraud, why
should we conclude that they were corrupted by the puritans rather than
the church? In Zouch's edition of Walton's _Life of Hooker_, the reader
will find a long and ill digested note on this subject, the result of
which has been to convince me that there is no reason to believe any
other than verbal changes to have been made in the loose draught which
the author left, but that whatever changes were made, it does not appear
that the manuscript was ever in the hands of the puritans. The strongest
probability, however, of their authenticity is from internal evidence.
A late writer has produced a somewhat ridiculous proof of the
carelessness with which all editions of the _Ecclesiastical Polity_ have
been printed; a sentence having slipped into the text of the seventh
book, which makes nonsense, and which he very probably conjectures to
have been a marginal memorandum of the author for his own use on
revising the manuscript. M'Crie's _Life of Melvil_, vol. i. p. 471.
[358] The puritans objected to the title of lord bishops. Sampson wrote
a peevish letter to Grindal on this, and received a very good answer.
Strype's _Parker_, Append. 178. Parker, in a letter to Cecil, defends it
on the best ground; that the bishops hold their lands by barony, and
therefore the giving them the title of lords was no irregularity, and
nothing more than a consequence of the tenure. Collier, 544. This will
not cover our modern _colonial_ bishops, on whom the same title has,
without any good reason, been conferred.
[359] Strype's _Annals_, i. 159.
[360] 1 Eliz. c. 19; 13 Eliz. c. 10; Blackstone's _Commentaries_, vol.
ii. c. 28. The exception in favour of the Crown was repealed in the
first year of James.
[361] It was couched in the following terms:--
"PROUD PRELATE,--You know what you were before I made you what you are:
if you do not immediately comply with my request, by G---- I will
unfrock you.
ELIZABETH."
Poor Cox wrote a very good letter before this, printed in Strype's
_Annals_, vol. ii. Append. 84. The names of Hatton Garden and Ely Place
(Mantua væ miseræ nimium vicina Cremonæ) still bear witness to the
encroaching lord keeper, and the elbowed bishop.
[362] Strype, iv. 246. See also p. 15 of the same volume. By an act in
the first year of James, c. 3, conveyances of bishops' lands to the
crown are made void; a concession much to the king's honour.
[363] Harrington's "State of the Church," in _Nugæ Antiquæ_, vol. ii.
_passim_; Wilkins's _Concilia_, iv. 256; Strype's _Annals_, iii. 620 _et
alibi_; _Life of Parker_, 454; _of Whitgift_, 220; _of Aylmer, passim_.
Observe the preamble of 13 Eliz. c. 10. It must be admitted, on the
other hand, that the gentry, when popishly or puritanically affected,
were apt to behave exceedingly ill towards the bishops. At Lambeth and
Fulham they were pretty safe; but at a distance they found it hard to
struggle with the rudeness and iniquity of the territorial aristocracy;
as Sandys twice experienced.
[364] Birch's _Memoirs_, i. 48. Elizabeth seems to have fancied herself
entitled by her supremacy to dispose of bishops as she pleased, though
they did not hold commissions _durante bene placito_, as in her
brother's time. Thus she suspended Fletcher, Bishop of London, of her
own authority, only for marrying "a fine lady and a widow." Strype's
_Whitgift_, 458. And Aylmer, having preached too vehemently against
female vanity in dress, which came home to the queen's conscience, she
told her ladies that if the bishop held more discourse on such matters,
she would fit him for heaven; but he should walk thither without a staff
and leave his mantle behind him. Harrington's "State of the Church," in
_Nugæ Antiquæ_, i. 170; see too p. 217. It will of course not appear
surprising that Hutton, Archbishop of York, an exceedingly honest
prelate, having preached a bold sermon before the queen, urging her to
settle the succession, and pointing strongly towards Scotland, received
a sharp message. P. 250.
[365] D'Ewes, 328.
[366] Collier says (p. 586) on Heylin's authority, that Walsingham
offered the puritans, about 1583, in the queen's name, to give up the
ceremony of kneeling at the communion, the cross in baptism, and the
surplice; but that they answered, "ne ungulam quidem esse relinquendam."
But I am not aware of any better testimony to the fact; and it is by no
means agreeable to the queen's general conduct.
[367] Bacon, ii. 375. See also another paper concerning the pacification
of the church, written under James, p. 387. "The wrongs," he says, "of
those which are possessed of the government of the church towards the
other, may hardly be dissembled or excused."--P. 382. Yet Bacon was
never charged with affection for the puritans. In truth, Elizabeth and
James were personally the great support of the high church interest; it
had few real friends among their counsellors.
[368] Burnet, ii. 418; Cabala, part ii. 38 (4to edition). Walsingham
grounds the queen's proceedings upon two principles: the one, that
"consciences are not to be forced, but to be won and reduced by force of
truth, with the aid of time, and use of all good means of instruction
and persuasion;" the other, that "cases of conscience, when they exceed
their bounds, and grow to be matter of faction, lose their nature; and
that sovereign princes ought distinctly to punish their practices and
contempt, though coloured with the pretence of conscience and religion."
Bacon has repeated the same words, as well as some more of Walsingham's
letter, in his observations on the libel on Lord Burleigh, i. 522. And
Mr. Southey (_Book of the Church_, ii. 291) seems to adopt them as his
own.
Upon this it may be observed; first, that they take for granted the
fundamental sophism of religious intolerance, namely, that the civil
magistrate, or the church he supports, is not only in the right, but so
clearly in the right, that no honest man, if he takes time and pains to
consider the subject, can help acknowledging it: secondly, that,
according to the principles of Christianity as admitted on each side, it
does not rest in an esoteric persuasion, but requires an exterior
profession, evidenced both by social worship, and by certain positive
rites; and that the marks of this profession, according to the form best
adapted to their respective ways of thinking, were as incumbent upon the
catholic and puritan, as they had been upon the primitive church: nor
were they more chargeable with faction, or with exceeding the bounds of
conscience, when they persisted in the use of them, notwithstanding any
prohibitory statute, than the early Christians.
The generality of statesmen, and churchmen themselves not unfrequently,
have argued upon the principles of what, in the seventeenth century, was
called Hobbism, towards which the Erastian system, which is that of the
church of England, though excellent in some points of view, had a
tendency to gravitate; namely, that civil and religious allegiance are
so necessarily connected, that it is the subject's duty to follow the
dictates of the magistrate in both alike. And this received some
countenance from the false and mischievous position of Hooker, that the
church and commonwealth are but different denominations of the same
society. Warburton has sufficiently exposed the sophistry of this
theory; though I do not think him equally successful in what he
substitutes for it.
CHAPTER V
ON THE CIVIL GOVERNMENT OF ELIZABETH
The subject of the two last chapters, I mean the policy adopted by
Elizabeth for restricting the two religious parties which from opposite
quarters resisted the exercise of her ecclesiastical prerogatives, has
already afforded us many illustrations of what may more strictly be
reckoned the constitutional history of her reign. The tone and temper of
her administration have been displayed in a vigilant execution of severe
statutes, especially towards the catholics, and sometimes in stretches
of power beyond the law. And as Elizabeth had no domestic enemies or
refractory subjects who did not range under one or other of these two
sects, and little disagreement with her people on any other grounds, the
ecclesiastical history of this period is the best preparation for our
enquiry into the civil government. In the present chapter I shall first
offer a short view of the practical exercise of government in this
reign, and then proceed to show how the queen's high assumptions of
prerogative were encountered by a resistance in parliament, not quite
uniform, but insensibly becoming more vigorous.
Elizabeth ascended the throne with all the advantages of a very extended
authority. Though the jurisdiction actually exerted by the court of
star-chamber could not be vindicated according to statute-law, it had
been so well established as to pass without many audible murmurs. Her
progenitors had intimidated the nobility; and if she had something to
fear at one season from this order, the fate of the Duke of Norfolk and
of the rebellious earls in the north put an end for ever to all
apprehension from the feudal influence of the aristocracy. There seems
no reason to believe that she attempted a more absolute power than her
predecessors; the wisdom of her counsellors, on the contrary, led them
generally to shun the more violent measures of the late reigns; but she
certainly acted upon many of the precedents they had bequeathed her,
with little consideration of their legality. Her own remarkable talents,
her masculine intrepidity, her readiness of wit and royal deportment,
which the bravest men unaffectedly dreaded, her temper of mind, above
all, at once fiery and inscrutably dissembling, would in any
circumstances have ensured her more real sovereignty than weak monarchs,
however nominally absolute, can ever enjoy or retain. To these personal
qualities was added the co-operation of some of the most diligent and
circumspect, as well as the most sagacious counsellors that any prince
has employed; men as unlikely to loose from their grasp the least
portion of that authority which they found themselves to possess, as to
excite popular odium by an unusual or misplaced exertion of it. The most
eminent instances, as I have remarked, of a high-strained prerogative in
her reign, have some relation to ecclesiastical concerns; and herein the
temper of the predominant religion was such as to account no measures
harsh or arbitrary that were adopted towards its conquered, but still
formidable, enemy. Yet when the royal supremacy was to be maintained
against a different foe by less violent acts of power, it revived the
smouldering embers of English liberty. The stern and exasperated
puritans became the depositaries of that sacred fire; and this manifests
a second connection between the temporal and ecclesiastical history of
the present reign.
Civil liberty, in this kingdom, has two direct guarantees; the open
administration of justice according to known laws truly interpreted, and
fair constructions of evidence; and the right of parliament, without let
or interruption, to enquire into, and obtain the redress of, public
grievances. Of these, the first is by far the most indispensable; nor
can the subjects of any state be reckoned to enjoy a real freedom, where
this condition is not found both in its judicial institutions and in
their constant exercise. In this, much more than in positive law, our
ancient constitution, both under the Plantagenet and Tudor line, had
ever been failing; and it is because one set of writers have looked
merely to the letter of our statutes or other authorities, while another
have been almost exclusively struck by the instances of arbitrary
government they found on record, that such incompatible systems have
been laid down with equal positiveness on the character of that
constitution.
_Trials for treason and other political offences unjustly conducted._--I
have found it impossible not to anticipate, in more places than one,
some of those glaring transgressions of natural as well as positive law,
that rendered our courts of justice in cases of treason little better
than the caverns of murderers. Whoever was arraigned at their bar was
almost certain to meet a virulent prosecutor, a judge hardly
distinguishable from the prosecutor except by his ermine, and a passive
pusillanimous jury. Those who are acquainted only with our modern decent
and dignified procedure, can form little conception of the irregularity
of ancient trials; the perpetual interrogation of the prisoner, which
gives most of us so much offence at this day in the tribunals of a
neighbouring kingdom; and the want of all evidence except written, and
perhaps unattested, examinations or confessions. Habington, one of the
conspirators against Elizabeth's life in 1586, complained that two
witnesses had not been brought against him, conformably to the statute
of Edward VI. But Anderson, the chief justice, told him, that as he was
indicted on the act of Edward III., that provision was not in
force.[369] In the case of Captain Lee, a partisan of Essex and
Southampton, the court appear to have denied the right of peremptory
challenge.[370] Nor was more equal measure dealt to the noblest
prisoners by their equals. The Earl of Arundel was convicted of
imagining the queen's death, on evidence which at the utmost would only
have supported an indictment for reconciliation to the church of
Rome.[371]
The integrity of judges is put to the proof as much by prosecutions for
seditious writings as by charges of treason. I have before mentioned the
conviction of Udal and Penry, for a felony created by the 23rd of
Elizabeth; the former of which, especially, must strike every reader of
the trial as one of the gross judicial iniquities of this reign. But,
before this sanguinary statute was enacted, a punishment of uncommon
severity had been inflicted upon one Stubbe, a puritan lawyer, for a
pamphlet against the queen's intended marriage with the Duke of Anjou.
It will be in the recollection of most of my readers that, in the year
1579, Elizabeth exposed herself to much censure and ridicule, and
inspired the justest alarm in her most faithful subjects, by
entertaining, at the age of forty-six, the proposals of this young scion
of the house of Valois. Her council, though several of them in their
deliberations had much inclined against the preposterous alliance, yet
in the end, displaying the compliance usual with the servants of
self-willed princes, agreed, "conceiving," as they say, "her earnest
disposition for this her marriage," to further it with all their power.
Sir Philip Sidney, with more real loyalty, wrote her a spirited
remonstrance, which she had the magnanimity never to resent.[372] But
she poured her indignation on Stubbe, who, not entitled to use a
private address, had ventured to arouse a popular cry in his "Gaping
Gulph, in which England will be swallowed up by the French Marriage."
This pamphlet is very far from being, what some have ignorantly or
unjustly called it, a virulent libel; but is written in a sensible
manner, and with unfeigned loyalty and affection towards the queen. But,
besides the main offence of addressing the people on state affairs, he
had, in the simplicity of his heart, thrown out many allusions proper to
hurt her pride, such as dwelling too long on the influence her husband
would acquire over her, and imploring that she would ask her physicians
whether to bear children at her years would not be highly dangerous to
her life. Stubbe, for writing this pamphlet, received sentence to have
his right hand cut off. When the penalty was inflicted, taking off his
hat with his left, he exclaimed, Long live Queen Elizabeth! Burleigh,
who knew that his fidelity had borne so rude a test, employed him
afterwards in answering some of the popish libellers.[373]
There is no room for wonder at any verdict that could be returned by a
jury, when we consider what means the government possessed of securing
it. The sheriff returned a pannel, either according to express
directions, of which we have proofs, or to what he judged himself of the
crown's intention and interest.[374] If a verdict had gone against the
prosecution in a matter of moment, the jurors must have laid their
account with appearing before the star-chamber; lucky, if they should
escape, on humble retractation, with sharp words, instead of enormous
fines and indefinite imprisonment. The control of this arbitrary
tribunal bound down and rendered impotent all the minor jurisdictions.
That 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.[375]
_Illegal commitments._--It cannot be too frequently repeated, that no
power of arbitrary detention has ever been known to our constitution
since the charter obtained at Runnymede. The writ of habeas corpus has
always been a matter of right. But as may naturally be imagined, no
right of the subject, in his relation to the Crown, was preserved with
greater difficulty. Not only the privy council in general arrogated to
itself a power of discretionary imprisonment, into which no inferior
court was to enquire, but commitments by a single counsellor appear to
have been frequent. These abuses gave rise to a remarkable complaint of
the judges, which, though an authentic recognition of the privilege of
personal freedom against such irregular and oppressive acts of
individual ministers, must be admitted to leave by far too great
latitude to the executive government, and to surrender, at least by
implication from rather obscure language, a great part of the liberties
which many statutes had confirmed.[376] This is contained in a passage
from Chief Justice Anderson's _Reports_. But as there is an original
manuscript in the British Museum, differing in some material points from
the print, I shall follow it in preference.[377]
_Remonstrance of judges against them._--"To the Rt. Hon. our very good
lords Sir Chr. Hatton, of the honourable order of the garter knight, and
chancellor of England, and Sir W. Cecill of the hon. order of the garter
knight, Lord Burleigh, lord high treasurer of England,--We her majesty's
justices, of both benches, and barons of the exchequer, do desire your
lordships that by your good means such order may be taken that her
highness's subjects may not be committed or detained in prison, by
commandment of any nobleman or counsellor, against the laws of the
realm, to the grievous charges and oppression of her majesty's said
subjects: Or else help us to have access to her majesty, to be suitors
unto her highness for the same; for divers have been imprisoned for
suing ordinary actions, and suits at the common law, until they will
leave the same, or against their wills put their matter to order,
although some time it be after judgment and accusation.
"Item: Others have been committed and detained in prison upon such
commandment against the law; and upon the queen's writ in that behalf,
no cause sufficient hath been certified or returned.
"Item: Some of the parties so committed and detained in prison after
they have, by the queen's writ, been lawfully discharged in court, have
been eftsoones recommitted to prison in secret places, and not in common
and ordinary known prisons, as the Marshalsea, Fleet, King's Bench,
Gatehouse, nor the custodie of any sheriff, so as upon complaint made
for their delivery, the queen's court cannot learn to whom to award her
majesty's writ, without which justice cannot be done.
"Item: Divers serjeants of London and officers have been many times
committed to prison for lawful execution of her majesty's writs out of
the King's Bench, Common Pleas, and other courts, to their great charges
and oppression, whereby they are put in such fear as they dare not
execute the queen's process.
"Item: Divers have been sent for by pursuivants for private causes, some
of them dwelling far distant from London, and compelled to pay to the
pursuivants great sums of money against the law, and have been committed
to prison till they would release the lawful benefit of their suits,
judgments, or executions for remedie, in which behalf we are almost
daily called upon to minister justice according to law, whereunto we are
bound by our office and oath.
"And whereas it pleased your lordships to will divers of us to set down
when a prisoner sent to custody by her majesty, her council, or some one
or two of them, is to be detained in prison, and not to be delivered by
her majesty's courts or judges:
"We think that, if any person shall be committed by her majesty's
special commandment, or by order from the council-board, or for treason
touching her majesty's person (a word of five letters follows, illegible
to me), which causes being generally returned into any court, is good
cause for the same court to leave the person committed in custody.
"But if any person shall be committed for any other cause, then the same
ought specially to be returned."
This paper bears the original signatures of eleven judges. It has no
date, but is indorsed 5 June 1591. In the printed report, it is said to
have been delivered in Easter term 34 Eliz., that is, in 1592. The
Chancellor Hatton, whose name is mentioned, died in November 1591; so
that, if there is no mistake, this must have been delivered a second
time, after undergoing the revision of the judges. And in fact the
differences are far too material to have proceeded from accidental
carelessness in transcription. The latter copy is fuller, and on the
whole more perspicuous, than the manuscript I have followed; but in one
or two places it will be better understood by comparison with it.
_Proclamations unwarranted by law._--It was a natural consequence, not
more of the high notions entertained of prerogative than of the very
irregular and infrequent meeting of parliament, that an extensive and
somewhat indefinite authority should be arrogated to proclamations of
the king in council. Temporary ordinances, bordering at least on
legislative authority, grow out of the varying exigencies of civil
society, and will by very necessity be put up with in silence, wherever
the constitution of the commonwealth does not, directly or in effect,
provide for frequent assemblies of the body in whom the right of making
or consenting to laws has been vested. Since the English constitution
has reached its zenith, we have endeavoured to provide a remedy by
statute for every possible mischief or inconvenience; and if this has
swollen our code to an enormous redundance, till, in the labyrinth of
written law, we almost feel again the uncertainties of arbitrary power,
it has at least put an end to such exertions of prerogative as fell at
once on the persons and properties of whole classes. It seems by the
proclamations issued under Elizabeth, that the Crown claimed a sort of
supplemental right of legislation, to perfect and carry into effect
what the spirit of existing laws might require, as well as a paramount
supremacy, called sometimes the king's absolute or sovereign power,
which sanctioned commands beyond the legal prerogative, for the sake of
public safety, whenever the council might judge that to be in hazard.
Thus we find anabaptists, without distinction of natives or aliens,
banished the realm; Irishmen commanded to depart into Ireland; the
culture of woad,[378] and the exportation of corn, money, and various
commodities, prohibited; the excess of apparel restrained. A
proclamation in 1580 forbids the erection of houses within three miles
of London, on account of the too great increase of the city, under the
penalty of imprisonment and forfeiture of the materials.[379] This is
repeated at other times, and lastly (I mean during her reign) in 1602,
with additional restrictions.[380] Some proclamations in this reign hold
out menaces, which the common law could never have executed on the
disobedient. To trade with the French king's rebels, or to export
victuals into the Spanish dominions (the latter of which might possibly
be construed into assisting the queen's enemies) incurred the penalty of
treason. And persons having in their possession goods taken on the high
seas, which had not paid custom, are enjoined to give them up, on pain
of being punished as felons and pirates.[381] Notwithstanding these
instances, it cannot perhaps be said on the whole that Elizabeth
stretched her authority very outrageously in this respect. Many of her
proclamations, which may at first sight appear illegal, are warrantable
by statutes then in force, or by ancient precedents. Thus the council is
empowered by an act (28 H. 8, c. 14) to fix the prices of wines; and
abstinence from flesh in Lent, as well as on Fridays and Saturdays (a
common subject of Elizabeth's proclamations), is enjoined by several
statutes of Edward VI. and of her own.[382] And it has been argued by
some not at all inclined to diminish any popular rights, that the king
did possess a prerogative by common law of restraining the export of
corn and other commodities.[383]
_Restrictions on printing._--It is natural to suppose that a government
thus arbitrary and vigilant must have looked with extreme jealousy on
the diffusion of free enquiry through the press. The trades of printing
and bookselling, in fact, though not absolutely licensed, were always
subject to a sort of peculiar superintendence. Besides protecting the
copyright of authors,[384] the council frequently issued proclamations
to restrain the importation of books, or to regulate their sale.[385] It
was penal to utter, or so much as to possess, even the most learned
works on the catholic side; or if some connivance was usual in favour of
educated men, the utmost strictness was used in suppressing that light
infantry of literature, the smart and vigorous pamphlets with which the
two parties arrayed against the church assaulted her opposite
flanks.[386] Stowe, the well-known chronicler of England, who lay under
suspicion of an attachment to popery, had his library searched by
warrant, and his unlawful books taken away; several of which were but
materials for his history.[387] Whitgift, in this, as in every other
respect, aggravated the rigour of preceding times. At his instigation,
the star-chamber, in 1585, published ordinances for the regulation of
the press. The preface of these recites enormities and abuses of
disorderly persons professing the art of printing and selling books to
have more and more increased in spite of the ordinances made against
them, which it attributes to the inadequacy of the penalties hitherto
inflicted. Every printer therefore is enjoined to certify his presses to
the Stationers' Company, on pain of having them defaced, and suffering a
year's imprisonment. None to print at all, under similar penalties,
except in London, and one in each of the two universities. No printer
who has only set up his trade within six months to exercise it any
longer, nor any to begin it in future, until the excessive multitude of
printers be diminished, and brought to such a number as the Archbishop
of Canterbury and Bishop of London for the time being shall think
convenient; but, whenever any addition to the number of master printers
shall be required, the Stationers' Company shall select proper persons
to use that calling with the approbation of the ecclesiastical
commissioners. None to print any book, matter, or thing whatsoever,
until it shall have been first seen, perused, and allowed by the
Archbishop of Canterbury, or Bishop of London, except the queen's
printer, to be appointed for some special service, or law-printers, who
shall require the licence only of the chief justices. Every one selling
books printed contrary to the intent of this ordinance, to suffer three
months' imprisonment. The Stationers' Company empowered to search houses
and shops of printers and booksellers, and to seize all books printed in
contravention of this ordinance, to destroy and deface the presses, and
to arrest and bring before the council those who shall have offended
therein.[388]
The forms of English law, however inadequate to defend the subject in
state prosecutions, imposed a degree of seeming restraint on the Crown,
and wounded that pride which is commonly a yet stronger sentiment than
the lust of power, with princes and their counsellors. It was possible
that juries might absolve a prisoner; it was always necessary that they
should be the arbiters of his fate. Delays too were interposed by the
regular process; not such, perhaps, as the life of man should require,
yet enough to weaken the terrors of summary punishment. Kings love to
display the divinity with which their flatterers invest them, in nothing
so much as the instantaneous execution of their will; and to stand
revealed, as it were, in the storm and thunderbolt, when their power
breaks through the operation of secondary causes, and awes a prostrate
nation without the intervention of law. There may indeed be times of
pressing danger, when the conservation of all demands the sacrifice of
the legal rights of a few; there may be circumstances that not only
justify, but compel, the temporary abandonment of constitutional forms.
It has been usual for all governments, during an actual rebellion, to
proclaim martial law, or the suspension of civil jurisdiction. And this
anomaly, I must admit, is very far from being less indispensable at such
unhappy seasons, in countries where the ordinary mode of trial is by
jury, than where the right of decision resides in the judge. But it is
of high importance to watch with extreme jealousy the disposition,
towards which most governments are prone, to introduce too soon, to
extend too far, to retain too long, so perilous a remedy. In the
fourteenth and fifteenth centuries, the court of the constable and
marshal, whose jurisdiction was considered as of a military nature, and
whose proceedings were not according to the course of the common law,
sometimes tried offenders by what was called martial law, but only, I
believe, either during, or not long after, a serious rebellion. This
tribunal fell into disuse under the Tudors. But Mary had executed some
of those taken in Wyatt's insurrection without regular process, though
their leader had his trial by a jury. Elizabeth, always hasty in passion
and quick to punish, would have resorted to this summary course on a
slighter occasion. One Pete Burchell, a fanatical puritan, and perhaps
insane, conceiving that Sir Christopher Hatton was an enemy to true
religion, determined to assassinate him. But by mistake he wounded
instead a famous seaman, Captain Hawkins. For this ordinary crime, the
queen could hardly be prevented from directing him to be tried instantly
by martial law. Her council, however (and this it is important to
observe), resisted this illegal proposition with spirit and
success.[389] We have indeed a proclamation some years afterwards,
declaring that such as brought into the kingdom or dispersed papal
bulls, or traitorous libels against the queen, should with all severity
be proceeded against by her majesty's lieutenants or their deputies, by
martial law, and suffer such pains and penalties as they should inflict;
and that none of her said lieutenants or their deputies be any wise
impeached, in body, lands, or goods, at any time hereafter, for anything
to be done or executed in the punishment of any such offender, according
to the said martial law, and the tenor of this proclamation, any law or
statute to the contrary in any wise notwithstanding.[390] This measure,
though by no means constitutional, finds an apology in the circumstances
of the time. It bears date the 1st of July 1588, when within the lapse
of a few days the vast armament of Spain might effect a landing upon our
coasts; and prospectively to a crisis, when the nation, struggling for
life against an invader's grasp, could not afford the protection of law
to domestic traitors. But it is an unhappy consequence of all deviations
from the even course of law, that the forced acts of over-ruling
necessity come to be distorted into precedents to serve the purposes of
arbitrary power.
_Martial law._--No other measure of Elizabeth's reign can be compared,
in point of violence and illegality, to a commission in July 1595,
directed to Sir Thomas Wilford; whereby upon no other allegation than
that there had been of late sundry great unlawful assemblies of a number
of base people in riotous sort, both in the city of London and the
suburbs, for the suppression whereof (for that the insolency of many
desperate offenders is such, that they care not for any ordinary
punishment by imprisonment), it was found necessary to have some such
notable rebellious persons to be speedily suppressed by execution to
death, according to the justice of martial law, he is appointed
provost-marshal, with authority, on notice by the magistrates, to attach
and seize such notable rebellious and incorrigible offenders, and in the
presence of the magistrates to execute them openly on the gallows. The
commission empowers him also "to repair to all common highways near to
the city, which any vagrant persons do haunt, and, with the assistance
of justices and constables, to apprehend all such vagrant and suspected
persons, and them to deliver to the said justices, by them to be
committed and examined of the causes of their wandering, and finding
them notoriously culpable in their unlawful manner of life, as
incorrigible, and so certified by the said justices, to cause to be
executed upon the gallows or gibbet some of them that are so found most
notorious and incorrigible offenders; and some such also of them as
have manifestly broken the peace, since they have been adjudged and
condemned to death for former offences, and had the queen's pardon for
the same."[391]
This peremptory style of superseding the common law was a stretch of
prerogative without an adequate parallel, so far as I know, in any
former period. It is to be remarked, that no tumults had taken place of
any political character or of serious importance, some riotous
apprentices only having committed a few disorders.[392] But rather more
than usual suspicion had been excited about the same time by the
intrigues of the jesuits in favour of Spain, and the queen's advanced
age had begun to renew men's doubts as to the succession. The rapid
increase of London gave evident uneasiness, as the proclamations against
new buildings show, to a very cautious administration, environed by bold
and inveterate enemies, and entirely destitute of regular troops to
withstand a sudden insurrection. Circumstances of which we are ignorant,
I do not question, gave rise to this extraordinary commission. The
executive government in modern times has been invested with a degree of
coercive power to maintain obedience, of which our ancestors, in the
most arbitrary reigns, had no practical experience. If we reflect upon
the multitude of statutes enacted since the days of Elizabeth in order
to restrain and suppress disorder, and above all on the prompt and
certain aid that a disciplined army affords to our civil authorities, we
may be inclined to think that it was rather the weakness than the vigour
of her government which led to its inquisitorial watchfulness and harsh
measures of prevention. We find in an earlier part of her reign an act
of state somewhat of the same character, though not perhaps illegal.
Letters were written to the sheriffs and justices of divers counties in
1569, directing them to apprehend, on a certain night, all vagabonds and
idle persons having no master, nor means of living, and either to commit
them to prison, or pass them to their proper homes. This was repeated
several times; and no less than 13,000 persons were thus apprehended,
chiefly in the north, which, as Strype says, very much broke the
rebellion attempted in that year.[393]
Amidst so many infringements of the freedom of commerce, and with so
precarious an enjoyment of personal liberty, the English subject
continued to pride himself in his immunity from taxation without
consent of parliament. This privilege he had asserted, though not with
constant success, against the rapacity of Henry VII. and the violence of
his son. Nor was it ever disputed in theory by Elizabeth. She retained,
indeed, notwithstanding the complaints of the merchants at her
accession, a custom upon cloths, arbitrarily imposed by her sister, and
laid one herself upon sweet wines. But she made no attempt at levying
internal taxes, except that the clergy were called upon, in 1586, for an
aid not granted in convocation, but assessed by the archdeacon according
to the value of their benefices; to which they naturally showed no
little reluctance.[394] By dint of singular frugality she continued to
steer the true course, so as to keep her popularity undiminished and her
prerogative unimpaired; asking very little of her subjects' money in
parliaments, and being hence enabled both to have long breathing times
between their sessions, and to meet them without coaxing or wrangling;
till, in the latter years of her reign, a foreign war and a rebellion in
Ireland, joined to a rapid depreciation in the value of money, rendered
her demands somewhat higher. But she did not abstain from the ancient
practice of sending privy-seals to borrow money of the wealthy.
_Loans of money not quite voluntary._--These were not considered as
illegal, though plainly forbidden by the statute of Richard III.; for it
was the fashion to set aside the authority of that act, as having been
passed by an usurper. It is impossible to doubt that such loans were so
far obtained by compulsion, that any gentleman or citizen of sufficient
ability refusing compliance would have discovered that it were far
better to part with his money than to incur the council's displeasure.
We have indeed a letter from a lord mayor to the council informing them
that he had committed to prison some citizens for refusing to pay the
money demanded of them.[395] But the queen seems to have been punctual
in their speedy repayment according to stipulation; a virtue somewhat
unusual with royal debtors. Thus we find a proclamation in 1571, that
such as had lent the queen money in the last summer should receive
repayment in November and December.[396] Such loans were but an
anticipation of her regular revenue, and no great hardship on rich
merchants; who, if they got no interest for their money, were
recompensed with knighthoods and gracious words. And as Elizabeth
incurred no debt till near the conclusion of her reign, it is probable
that she never had borrowed more than she was sure to repay.
A letter quoted by Hume from Lord Burleigh's papers, though not written
by him, as the historian asserts, and somewhat obscure in its purport,
appears to warrant the conclusion that he had revolved in his mind some
project of raising money by a general contribution or benevolence from
persons of ability, without purpose of repayment. This was also amidst
the difficulties of the year 1569, when Cecil perhaps might be afraid of
meeting parliament, on account of the factions leagued against himself.
But as nothing further was done in this matter, we must presume that he
perceived the impracticability of so unconstitutional a scheme.[397]
_Character of Lord Burleigh's administration._--Those whose curiosity
has led them to somewhat more acquaintance with the details of English
history under Elizabeth than the pages of Camden or Hume will afford,
cannot but have been struck with the perpetual interference of men in
power with matters of private concern. I am far from pretending to know
how far the solicitations for a prime minister's aid and influence may
extend at present. Yet one may think that he would hardly be employed,
like Cecil, where he had no personal connection, in reconciling family
quarrels, interceding with a landlord for his tenant, or persuading a
rich citizen to bestow his daughter on a young lord. We are sure, at
least, that he would not use the air of authority upon such occasions.
The vast collection of Lord Burleigh's letters in the Museum is full of
such petty matters, too insignificant, for the most part, to be
mentioned even by Strype.[398] They exhibit, however, collectively, a
curious view of the manner in which England was managed, as if it had
been the household and estate of a nobleman under a strict and prying
steward. We are told that the relaxation of this minister's mind was to
study the state of England and the pedigrees of its nobility and gentry:
of these last he drew whole books with his own hands; so that he was
better versed in descents and families than most of the heralds, and
would often surprise persons of distinction at his table by appearing
better acquainted with their manors, parks, and woods, than
themselves.[399] Such knowledge was not sought by the crafty Cecil for
mere diversion's sake. It was a main part of his system to keep alive in
the English gentry a persuasion that his eye was upon them. No minister
was ever more exempt from that false security which is the usual
weakness of a court. His failing was rather a bias towards suspicion and
timidity; there were times, at least, in which his strength of mind
seems to have almost deserted him, through sense of the perils of his
sovereign and country. But those perils appear less to us, who know how
the vessel outrode them, than they could do to one harassed by continual
informations of those numerous spies whom he employed both at home and
abroad. The one word of Burleigh's policy was prevention; and this was
dictated by a consciousness of wanting an armed force or money to
support it, as well as by some uncertainty as to the public spirit, in
respect at least of religion. But a government that directs its chief
attention to prevent offences against itself, is in its very nature
incompatible with that absence of restraint, that immunity from
suspicion, in which civil liberty, as a tangible possession, may be said
to consist. It appears probable, that Elizabeth's administration carried
too far, even as a matter of policy, this precautionary system upon
which they founded the penal code against popery; and we may surely
point to a contrast very advantageous to our modern constitution, in the
lenient treatment which the Jacobite faction experienced from the
princes of the house of Hanover. She reigned however in a period of real
difficulty and danger. At such seasons, few ministers will abstain from
arbitrary actions, except those who are not strong enough to practise
them.
_Disposition of the House of Commons._--I have traced, in another work,
the acquisition by the House of Commons of a practical right to enquire
into and advise upon the public administration of affairs, during the
reigns of Edward III., Richard II., and the princes of the line of
Lancaster. This energy of parliament was quelled by the civil wars of
the fifteenth century; and, whatever may have passed in debates within
its walls that have not been preserved, did not often display itself in
any overt act under the first Tudors. To grant subsidies which could
not be raised by any other course, to propose statutes which were not
binding without their consent, to consider of public grievances, and
procure their redress, either by law or petition to the Crown, were
their acknowledged constitutional privileges, which no sovereign or
minister ever pretended to deny. For this end liberty of speech and free
access to the royal person were claimed by the speaker as customary
privileges (though not quite, in his modern language, as undoubted
rights), at the commencement of every parliament. But the House of
Commons in Elizabeth's reign contained men of a bold and steady
patriotism, well read in the laws and records of old time, sensible to
the dangers of their country and abuses of government, and conscious
that it was their privilege and their duty to watch over the common
weal. This led to several conflicts between the crown and parliament;
wherein, if the former often asserted the victory, the latter sometimes
kept the field, and was left on the whole a gainer at the close of the
campaign.
It would surely be erroneous to conceive, that many acts of government
in the four preceding reigns had not appeared at the time arbitrary and
unconstitutional. If indeed we are not mistaken in judging them
according to the ancient law, they must have been viewed in the same
light by contemporaries, who were full as able to try them by that
standard. But, to repeat what I have once before said, the extant
documents from which we draw our knowledge of constitutional history
under those reigns are so scanty, that instances even of a successful
parliamentary resistance to measures of the Crown may have left no
memorial. The debates of parliament are not preserved, and very little
is to be gained from such histories as the age produced. The complete
barrenness indeed of Elizabeth's chroniclers, Holingshed and Thin, as to
every parliamentary or constitutional information, speaks of itself the
jealous tone of her administration. Camden, writing to the next
generation, though far from an ingenuous historian, is somewhat less
under restraint. This forced silence of history is much more to be
suspected after the use of printing and the reformation, than in the
ages when monks compiled annals in their convents, reckless of the
censure of courts, because independent of their permission. Grosser
ignorance of public transactions is undoubtedly found in the chronicles
of the middle ages; but far less of that deliberate mendacity, or of
that insidious suppression, by which fear, and flattery, and hatred, and
the thirst of gain, have, since the invention of printing, corrupted so
much of historical literature throughout Europe. We begin however to
find in Elizabeth's reign more copious and unquestionable documents for
parliamentary history. The regular journals indeed are partly lost; nor
would those which remain give us a sufficient insight into the spirit of
parliament, without the aid of other sources. But a volume called Sir
Simon D'Ewes's journal, part of which is copied from a manuscript of
Heywood Townsend, a member of all parliaments from 1580 to 1601,
contains minutes of the most interesting debates as well as
transactions, and for the first time renders us acquainted with the
names of those who swayed an English House of Commons.[400]
_Addresses concerning the succession._--There was no peril more alarming
to this kingdom during the queen's reign than the precariousness of her
life--a thread whereon its tranquillity, if not its religion and
independence, was suspended. Hence the Commons felt it an imperious duty
not only to recommend her to marry, but, when this was delayed, to
solicit that some limitations of the Crown might be enacted, in failure
of her issue. The former request she evaded without ever manifesting
much displeasure, though not sparing a hint that it was a little beyond
the province of parliament. Upon the last occasion, indeed, that it was
preferred, namely, by the speaker in 1575, she gave what from any other
woman must have appeared an assent, and almost a promise. But about
declaring the succession she was always very sensible. Through a policy
not perhaps entirely selfish, and certainly not erroneous on selfish
principles, she was determined never to pronounce among the possible
competitors for the throne. Least of all could she brook the
intermeddling of parliament in such a concern. The Commons first took up
this business in 1562, when there had begun to be much debate in the
nation about the opposite titles of the Queen of Scots and Lady
Catherine Grey; and especially in consequence of a dangerous sickness
the queen had just experienced, and which is said to have been the cause
of summoning parliament. Their language is wary, praying her only by
"proclamation of certainty already provided, if any such be," alluding
to the will of Henry VIII., "or else by limitations of certainty, if
none be, to provide a most gracious remedy in this great
necessity;"[401] offering at the same time to concur in provisions to
guarantee her personal safety against any one who might be limited in
remainder. Elizabeth gave them a tolerably courteous answer, though not
without some intimation of her dislike to this address.[402] But at
their next meeting, which was not till 1566, the hope of her own
marriage having grown fainter, and the circumstances of the kingdom
still more powerfully demanding some security, both houses of parliament
united, with a boldness of which there had perhaps been no example for
more than a hundred years, to overcome her repugnance. Some of her own
council among the peers are said to have asserted in their places that
the queen ought to be obliged to take a husband, or that a successor
should be declared by parliament against her will. She was charged with
a disregard to the state and to posterity. She would prove, in the
uncourtly phrase of some sturdy members of the lower house, a
step-mother to her country, as being seemingly desirous that England,
which lived as it were in her, should rather expire with than survive
her; that kings can only gain the affections of their subjects by
providing for their welfare both while they live and after their deaths;
nor did any but princes hated by their subjects, or faint-hearted women,
ever stand in fear of their successors.[403] But this great princess
wanted not skill and courage to resist this unusual importunity of
parliament. The peers, who had forgotten their customary respectfulness,
were excluded the presence-chamber till they made their submission. She
prevailed on the Commons, through her ministers who sat there, to join a
request for her marriage with the more unpalatable alternative of naming
her successor; and when this request was presented, gave them fair
words, and a sort of assurance that their desires should by some means
be fulfilled.[404] When they continued to dwell on the same topic in
their speeches, she sent messages through her ministers, and at length a
positive injunction through the speaker, that they should proceed no
further in the business. The house however was not in a temper for such
ready acquiescence as it sometimes displayed. Paul Wentworth, a bold and
plain-spoken man, moved to know whether the queen's command and
inhibition that they should no longer dispute of the matter of
succession, were not against their liberties and privileges. This
caused, as we are told, long debates; which do not appear to have
terminated in any resolution.[405] But, more probably having passed than
we know at present, the queen, whose haughty temper and tenaciousness of
prerogative were always within check of her discretion, several days
after announced through the speaker, that she revoked her two former
commandments; "which revocation," says the journal, "was taken by the
house most joyfully, with hearty prayer and thanks for the same." At the
dissolution of this parliament, which was perhaps determined upon in
consequence of their steadiness, Elizabeth alluded in addressing them
with no small bitterness to what had occurred.[406]
This is the most serious disagreement on record between the Crown and
the Commons since the days of Richard II. and Henry IV. Doubtless the
queen's indignation was excited by the nature of the subject her
parliament ventured to discuss, still more than by her general
disapprobation of their interference in matters of state. It was an
endeavour to penetrate the great secret of her reign, in preserving
which she conceived her peace, dignity, and personal safety to be bound
up. There were, in her opinion, as she intimates in her speech at
closing the session, some underhand movers of this intrigue (whether of
the Scots or Suffolk faction does not appear), who were more to blame
than even the speakers in parliament. And if, as Cecil seems justly to
have thought, no limitations of the Crown could at that time have been
effected without much peril and inconvenience, we may find some apology
for her warmth about their precipitation in a business, which, even
according to our present constitutional usage, it would naturally be for
the government to bring forward. It is to be collected from Wentworth's
motion, that to deliberate on subjects affecting the commonwealth was
reckoned, by at least a large part of the House of Commons, one of their
ancient privileges and liberties. This was not one which Elizabeth,
however she had yielded for the moment in revoking her prohibition, ever
designed to concede to them. Such was her frugality, that, although she
had remitted a subsidy granted in this session, alleging the very
honourable reason that, knowing it to have been voted in expectation of
some settlement of the succession, she would not accept it when that
implied condition had not been fulfilled, she was able to pass five
years without again convoking her people.
_Session of 1571._--A parliament met in April 1571, when the lord keeper
Bacon,[407] in answer to the speaker's customary request for freedom of
speech in the Commons, said that "her majesty having experience of late
of some disorder and certain offences, which, though they were not
punished, yet were they offences still, and so must be accounted, they
would therefore do well to meddle with no matters of state, but such as
should be propounded unto them, and to occupy themselves in other
matters concerning the commonwealth."
_Influence of the puritans in parliament._--The Commons so far attended
to this intimation, that no proceedings about the succession appear to
have taken place in this parliament, except such as were calculated to
gratify the queen. We may perhaps except a bill attainting the Queen of
Scots, which was rejected in the upper house. But they entered for the
first time on a new topic, which did not cease for the rest of this
reign to furnish matter of contention with their sovereign. The party
called puritan, including such as charged abuses on the actual
government of the church, as well as those who objected to part of its
lawful discipline, had, not a little in consequence of the absolute
exclusion of the catholic gentry, obtained a very considerable strength
in the Commons. But the queen valued her ecclesiastical supremacy more
than any part of her prerogative. Next to the succession of the Crown,
it was the point she could least endure to be touched. The house had
indeed resolved, upon reading a bill the first time for reformation of
the common prayer, that petition be made to the queen's majesty for her
licence to proceed in it, before it should be further dealt in. But
Strickland, who had proposed it, was sent for to the council, and
restrained from appearing again in his place, though put under no
confinement. This was noticed as an infringement of their liberties. The
ministers endeavoured to excuse his detention, as not intended to lead
to any severity, nor occasioned by anything spoken in that house, but on
account of his introducing a bill against the prerogative of the queen,
which was not to be tolerated. And instances were quoted of
animadversion or speeches made in parliament. But Mr. Yelverton
maintained that all matters not treasonable, nor too much to the
derogation of the imperial Crown, were tolerable there, where all things
came to be considered, and where there was such fulness of power as
even the right of the Crown was to be determined, which it would be high
treason to deny. Princes were to have their prerogatives, but yet to be
confined within reasonable limits. The queen could not of herself make
laws, neither could she break them. This was the true voice of English
liberty, not so new to men's ears as Hume has imagined, though many
there were who would not forfeit the court's favour by uttering it. Such
speeches as the historian has quoted of Sir Humphry Gilbert, and many
such may be found in the proceedings of this reign, are rather directed
to intimidate the house by exaggerating their inability to contend with
the Crown, than to prove the law of the land to be against them. In the
present affair of Strickland, it became so evident that the Commons
would at least address the queen to restore him, that she adopted the
course her usual prudence indicated, and permitted his return to his
house. But she took the reformation of ecclesiastical abuses out of
their hands, sending word that she would have some articles for that
purpose executed by the bishops under her royal supremacy, and not dealt
in by parliament. This did not prevent the Commons from proceeding to
send up some bills in the upper house, where, as was natural to expect,
they fell to the ground.[408]
This session is also remarkable for the first marked complaints against
some notorious abuses, which defaced the civil government of
Elizabeth.[409] A member having rather prematurely suggested the offer
of a subsidy, several complaints were made of irregular and oppressive
practices, and Mr. Bell said, that licences granted by the Crown and
other abuses galled the people, intimating also, that the subsidy should
be accompanied by a redress of grievances.[410] This occasion of
introducing the subject, though strictly constitutional, was likely to
cause displeasure. The speaker informed them a few days after of a
message from the queen to spend little time in motions, and make no long
speeches.[411] And Bell, it appears, having been sent for by the
council, came into the house "with such an amazed countenance, that it
daunted all the rest," who for many days durst not enter on any matter
of importance.[412] It became the common whisper, that no one must
speak against licences, lest the queen and council should be angry. And
at the close of the session, the lord keeper severely reprimanded those
audacious, arrogant, and presumptuous members who had called her
majesty's grants and prerogatives in question, meddling with matters
neither pertaining to them, nor within the capacity of their
understanding.[413]
The parliament of 1572 seemed to give evidence of their inheriting the
spirit of the last by choosing Mr. Bell for their speaker.[414] But very
little of it appeared in their proceedings. In their first short
session, chiefly occupied by the business of the Queen of Scots, the
most remarkable circumstances are the following. The Commons were
desirous of absolutely excluding Mary from inheriting the crown, and
even of taking away her life, and had prepared bills with this intent.
But Elizabeth, constant to her mysterious policy, made one of her
ministers inform them that she would neither have the Queen of Scots
enabled nor disabled to succeed, and willed that the bill respecting her
should be drawn by her council: and that, in the meantime, the house
should not enter on any speeches or arguments on that matter.[415]
Another circumstance worthy of note in this session is a signification,
through the speaker, of her majesty's pleasure that no bills concerning
religion should be received, unless they should be first considered and
approved by the clergy, and requiring to see certain bills touching
rites and ceremonies that had been read in the house. The bills were
accordingly ordered to be delivered to her, with a humble prayer that,
if she should dislike them, she would not conceive an ill opinion of the
house, or of the parties by whom they were preferred.[416]
_Speech of Mr. Wentworth in 1576._--The submissiveness of this
parliament was doubtless owing to the queen's vigorous dealings with the
last. At their next meeting, which was not till February 1575-6, Peter
Wentworth, brother, I believe, of the person of that name before
mentioned, broke out, in a speech of uncommon boldness, against her
arbitrary encroachments on their privileges. The liberty of free
speech, he said, had in the two last sessions been so many ways
infringed, that they were in danger, while they contented themselves
with the name, of losing and foregoing the thing. It was common for a
rumour to spread through that house, "the queen likes or dislikes such a
matter; beware what you do." Messages were even sometimes brought down,
either commanding or inhibiting, very injurious to the liberty of
debate. He instanced that in the last session, restraining the house
from dealing in matters of religion; against which and against the
prelates he inveighed with great acrimony. With still greater
indignation he spoke of the queen's refusal to assent to the attainder
of Mary, and after surprising the house by the bold words, "none is
without fault, no not our noble queen, but has committed great and
dangerous faults to herself," went on to tax her with ingratitude and
unkindness to her subjects, in a strain perfectly free indeed from
disaffection, but of more rude censure than any kings would put up
with.[417]
This direct attack upon the sovereign, in matters relating to her public
administration, seems no doubt unparliamentary; though neither the rules
of parliament in this respect, nor even the constitutional principle,
were so strictly understood as at present. But it was part of
Elizabeth's character to render herself extremely prominent, and, as it
were, responsible in public esteem, for every important measure of her
government. It was difficult to consider a queen as acting merely by the
advice of ministers, who protested in parliament that they had laboured
in vain to bend her heart to their councils. The doctrine that some one
must be responsible for every act of the Crown was yet perfectly
unknown; and Elizabeth would have been the last to adopt a system so
inglorious to monarchy. But Wentworth had gone to a length which alarmed
the House of Commons. They judged it expedient to prevent an unpleasant
interference by sequestering their member, and appointing a committee of
all the privy counsellors in the house to examine him. Wentworth
declined their authority, till they assured him that they sat as members
of the Commons, and not as counsellors. After a long examination, in
which he not only behaved with intrepidity, but, according to his own
statement, reduced them to confess the truth of all he advanced, they
made a report to the house, who committed him to the Tower. He had lain
there a month when the queen sent word that she remitted her
displeasure towards him, and referred his enlargement to the house, who
released him upon a reprimand from the speaker, and an acknowledgment of
his fault upon his knees.[418] In this commitment of Wentworth, it can
hardly be said that there was anything, as to the main point, by which
the house sacrificed its acknowledged privileges. In later instances,
and even in the reign of George I., members have been committed for much
less indecent reflections on the sovereign. The queen had no reason upon
the whole to be ill-pleased with this parliament, nor was she in haste
to dissolve it, though there was a long intermission of its sessions.
The next was in 1581, when the chancellor, on confirming a new speaker,
did not fail to admonish him that the House of Commons should not
intermeddle in anything touching her majesty's person or estate, or
church government. They were supposed to disobey this injunction and
fell under the queen's displeasure, by appointing a public fast on their
own authority, though to be enforced on none but themselves. This
trifling resolution, which showed indeed a little of the puritan spirit,
passed for an encroachment on the supremacy, and was only expiated by a
humble apology.[419] It is not till the month of February 1587-8, that
the zeal for ecclesiastical reformation overcame in some measure the
terrors of power, but with no better success than before. A Mr. Cope
offered to the house, we are informed, a bill and a book, the former
annulling all laws respecting ecclesiastical government then in force,
and establishing a certain new form of common prayer contained in the
latter. The speaker interposed to prevent this bill from being read, on
the ground that her majesty had commanded them not to meddle in this
matter. Several members however spoke in favour of hearing it read, and
the day passed in debate on this subject. Before they met again, the
queen sent for the speaker, who delivered up to her the bill and book.
Next time that the house sat, Mr. Wentworth insisted that some questions
of his proposing should be read. These queries were to the following
purport: Whether this council was not a place for any member of the
same, freely and without control, by bill or speech, to utter any of the
griefs of this commonwealth? Whether there be any council that can make,
add, or diminish from the laws of the realm, but only this council of
parliament? Whether it be not against the orders of this council to make
any secret or matter of weight, which is here in hand, known to the
prince or any other, without consent of the house? Whether the speaker
may overrule the house in any matter or cause in question? Whether the
prince and state can continue and stand, and be maintained without this
council of parliament, not altering the government of the state? These
questions Serjeant Pickering, the speaker, instead of reading them to
the house, showed to a courtier, through whose means Wentworth was
committed to the Tower. Mr. Cope, and those who had spoken in favour of
his motion, underwent the same fate; and notwithstanding some notice
taken of it in the house, it does not appear that they were set at
liberty before its dissolution, which ensued in three weeks.[420] Yet
the Commons were so set on displaying an ineffectual hankering after
reform, that they appointed a committee to address the queen for a
learned ministry.
_The Commons continue to seek redress of ecclesiastical grievances._--At
the beginning of the next parliament, which met in 1588-9, the speaker
received an admonition that the house were not to extend their
privileges to any irreverent or misbecoming speech. In this session Mr.
Damport, we are informed by D'Ewes,[421] moved neither for making of any
new laws, nor for abrogating of any old ones, but for a due course of
proceeding in laws already established, but executed by some
ecclesiastical governors contrary both to their purport and the intent
of the legislature, which he proposed to bring into discussion. So
cautious a motion saved its author from the punishment which had
attended Mr. Cope for his more radical reform; but the secretary of
state, reminding the house of the queen's express inhibition from
dealing with ecclesiastical causes, declared to them by the chancellor
at the commencement of the session (in a speech which does not appear),
prevented them from taking any further notice of Mr. Damport's motion.
They narrowly escaped Elizabeth's displeasure in attacking some civil
abuses. Sir Edward Hobby brought in a bill to prevent certain exactions
made for their own profit by the officers of the exchequer. Two days
after he complained that he had been very sharply rebuked by some great
personage, not a member of the house, for his speech on that occasion.
But instead of testifying indignation at this breach of their
privileges, neither he nor the house thought of any further redress than
by exculpating him to this great personage, apparently one of the
ministers, and admonishing their members not to repeat elsewhere
anything uttered in their debates.[422] For the bill itself, as well as
one intended to restrain the flagrant abuses of purveyance, they both
were passed to the Lords. But the queen sent a message to the upper
house, expressing her dislike of them, as meddling with abuses, which,
if they existed, she was both able and willing to repress; and this
having been formally communicated to the Commons, they appointed a
committee to search for precedents in order to satisfy her majesty about
their proceedings. They received afterwards a gracious answer to their
address, the queen declaring her willingness to afford a remedy for the
alleged grievances.[423]
Elizabeth, whose reputation for consistency, which haughty princes
overvalue, was engaged in protecting the established hierarchy, must
have experienced not a little vexation at the perpetual recurrence of
complaints which the unpopularity of that order drew from every
parliament. The speaker of that summoned in 1593 received for answer to
his request of liberty of speech, that it was granted, "but not to speak
every one what he listeth, or what cometh into his brain to utter; their
privilege was aye or no. Wherefore, Mr. Speaker," continues the lord
keeper Pickering, himself speaker in the parliament of 1588, "her
majesty's pleasure is, that if you perceive any idle heads which will
not stick to hazard their own estates, which will meddle with reforming
the church and transforming the commonwealth, and do exhibit such bills
to such purpose, that you receive them not, until they be viewed and
considered by those, who it is fitter should consider of such things,
and can better judge of them." It seems not improbable that this
admonition, which indeed is in no unusual style for this reign, was
suggested by the expectation of some unpleasing debate. For we read that
the very first day of the session, though the Commons had adjourned on
account of the speaker's illness, the unconquerable Peter Wentworth,
with another member, presented a petition to the lord keeper, desiring
the Lords of the upper house to join with them of the lower in imploring
her majesty to entail the succession of the Crown, for which they had
already prepared a bill. This step, which may seem to us rather arrogant
and unparliamentary, drew down, as they must have expected, the queen's
indignation. They were summoned before the council, and committed to
different prisons.[424] A few days afterwards a bill for reforming the
abuses of ecclesiastical courts was presented by Morice, attorney of the
court of wards, and underwent some discussion in the house.[425] But the
queen sent for the speaker, and expressly commanded that no bill
touching matters of state or reformation of causes ecclesiastical should
be exhibited; and if any such should be offered, enjoining him on his
allegiance not to read it.[426] It was the custom at that time for the
speaker to read and expound to the house all the bills that any member
offered. Morice himself was committed to safe custody, from which he
wrote a spirited letter to Lord Burleigh, expressing his sorrow for
having offended the queen, but at the same time his resolution "to
strive," he says, "while his life should last, for freedom of
conscience, public justice, and the liberties of his country."[427] Some
days after a motion was made that, as some places might complain of
paying subsidies, their representatives not having been consulted nor
been present when they were granted, the house should address the queen
to set their members at liberty. But the ministers opposed this, as
likely to hurt those whose good was sought, her majesty being more
likely to release them, if left to her own gracious disposition. It does
not appear however that she did so during the session, which lasted
above a month.[428] We read, on the contrary, in an undoubted authority,
namely, a letter of Antony Bacon to his mother, that "divers gentlemen,
who were of the parliament, and thought to have returned into the
country after the end thereof, were stayed by her majesty's commandment,
for being privy, as it is thought, and consenting to Mr. Wentworth's
motion."[429] Some difficulty was made by this House of Commons about
their grant of subsidies, which was uncommonly large, though rather in
appearance than truth, so great had been the depreciation of silver for
some years past.[430]
_Monopolies, especially in the session of 1601._--The admonitions not to
abuse freedom of speech, which had become almost as much matter of
course as the request for it, were repeated in the ensuing parliaments
of 1597 and 1601. Nothing more remarkable occurs in the former of these
sessions than an address to the queen against the enormous abuse of
monopolies. The Crown either possessed or assumed the prerogative of
regulating almost all matters of commerce at its discretion. Patents to
deal exclusively in particular articles, generally of foreign growth,
but reaching in some instances to such important necessaries of life as
salt, leather, and coal, had been lavishly granted to the courtiers,
with little direct advantage to the revenue. They sold them to companies
of merchants, who of course enhanced the price to the utmost ability of
the purchaser. This business seems to have been purposely protracted by
the ministers and the speaker, who, in this reign, was usually in the
court's interests, till the last day of the session; when, in answer to
his mention of it, the lord keeper said that the queen "hoped her
dutiful and loving subjects would not take away her prerogative, which
is the choicest flower in her garden, and the principal and head pearl
in her crown and diadem; but would rather leave that to her disposition,
promising to examine all patents, and to abide the touchstone of the
law."[431] This answer, though less stern than had been usual, was
merely evasive; and in the session of 1601, a bolder and more successful
attack was made on the administration than this reign had witnessed. The
grievance of monopolies had gone on continually increasing; scarce any
article was exempt from these oppressive patents. When the list of them
was read over in the house, a member exclaimed, "Is not bread among the
number?" The house seemed amazed: "Nay," said he, "if no remedy is found
for these, bread will be there before the next parliament." Every tongue
seemed now unloosed; each as if emulously descanting on the injuries of
the place he represented. It was vain for the courtiers to withstand
this torrent. Raleigh, no small gainer himself by some monopolies, after
making what excuse he could, offered to give them up. Robert Cecil the
secretary, and Bacon, talked loudly of the prerogative, and endeavoured
at least to persuade the house that it would be fitter to proceed by
petition to the queen than by a bill. But it was properly answered, that
nothing had been gained by petitioning in the last parliament. After
four days of eager debate, and more heat than had ever been witnessed,
this ferment was suddenly appeased by one of those well-timed
concessions by which skilful princes spare themselves the mortification
of being overcome. Elizabeth sent down a message that she would revoke
all grants that should be found injurious by fair trial at law: and
Cecil rendered the somewhat ambiguous generality of this expression more
satisfactory by an assurance that the existing patents should all be
repealed, and no more be granted. This victory filled the Commons with
joy, perhaps the more from being rather unexpected.[432] They addressed
the queen with rapturous and hyperbolical acknowledgments, to which she
answered in an affectionate strain, glancing only with an oblique irony
at some of those movers in the debate, whom in her earlier and more
vigorous years she would have keenly reprimanded. She repeated this a
little more plainly at the close of the session, but still with
commendation of the body of the Commons. So altered a tone must be
ascribed partly to the growing spirit she perceived in her subjects, but
partly also to those cares which clouded with listless melancholy the
last scenes of her illustrious life.[433]
The discontent that vented itself against monopolies was not a little
excited by the increasing demands which Elizabeth was compelled to make
upon the Commons in all her latter parliaments. Though it was declared
in the preamble to the subsidy bill of 1593, that "these large and
unusual grants, made to a most excellent princess on a most pressing and
extraordinary occasion, should not at any time hereafter be drawn into a
precedent," yet an equal sum was obtained in 1597, and one still greater
in 1601. But money was always reluctantly given, and the queen's early
frugality had accustomed her subjects to very low taxes; so that the
debates on the supply in 1601, as handed down to us by Townsend, exhibit
a lurking ill-humour, which would find a better occasion to break forth.
_Influence of the Crown in Parliament._--The House of Commons, upon a
review of Elizabeth's reign, was very far, on the one hand, from
exercising those constitutional rights which have long since belonged to
it, or even those which by ancient precedent they might have claimed as
their own; yet, on the other hand, was not quite so servile and
submissive an assembly as an artful historian has represented it. If
many of its members were but creatures of power, if the majority was
often too readily intimidated, if the bold and honest, but not very
judicious, Wentworths were but feebly supported, when their impatience
hurried them beyond their colleagues, there was still a considerable
party sometimes carrying the house along with them, who with patient
resolution and inflexible aim recurred in every session to the assertion
of that one great privilege which their sovereign contested, the right
of parliament to enquire into and suggest a remedy for every public
mischief or danger. It may be remarked, that, the ministers, such as
Knollys, Hatton, and Robert Cecil, not only sat among the Commons, but
took a very leading part in their discussions; a proof that the
influence of argument could no more be dispensed with than that of
power. This, as I conceive, will never be the case in any kingdom where
the assembly of the estates is quite subservient to the Crown. Nor
should we put out of consideration the manner in which the Commons were
composed. Sixty-two members were added at different times by Elizabeth
to the representation; as well from places which had in earlier times
discontinued their franchise, as from those to which it was first
granted;[434] a very large proportion of them petty boroughs, evidently
under the influence of the Crown or peerage. This had been the policy of
her brother and sister, in order to counterbalance the country
gentlemen, and find room for those dependants who had no natural
interest to return them to parliament. The ministry took much pains with
elections, of which many proofs remain.[435] The house accordingly was
filled with placemen, civilians, and common lawyers grasping at
preferment. The slavish tone of these persons, as we collect from the
minutes of D'Ewes, is strikingly contrasted by the manliness of
independent gentlemen. And as the house was by no means very fully
attended, the divisions, a few of which are recorded, running from 200
to 250 in the aggregate, it may be perceived that the court, whose
followers were at hand, would maintain a formidable influence. But this
influence, however pernicious to the integrity of parliament, is
distinguishable from that exertion of almost absolute prerogative, which
Hume has assumed as the sole spring of Elizabeth's government, and would
never be employed till some deficiency of strength was experienced in
the other.
_Debate on election of non-resident burgesses._--D'Ewes has preserved a
somewhat remarkable debate on a bill presented in the session of 1571,
in order to render valid elections of non-resident burgesses. According
to the tenor of the king's writ, confirmed by an act passed under Henry
V., every city and borough was required to elect none but members of
their own community. To this provision, as a seat in the Commons' house
grew more an object of general ambition, while many boroughs fell into
comparative decay, less and less attention had been paid; till, the
greater part of the borough representatives having become strangers, it
was deemed by some expedient to repeal the ancient statute, and give a
sanction to the innovation that time had wrought; while others
contended in favour of the original usage, and seemed anxious to restore
its vigour. It was alleged on the one hand by Mr. Norton that the bill
would take away all pretence for sending unfit men, as was too often
seen, and remove any objection that might be started to the sufficiency
of the present parliament, wherein, for the most part against positive
law, strangers to their several boroughs had been chosen: that persons
able and fit for so great an employment ought to be preferred without
regard to their inhabitancy; since a man could not be presumed to be the
wiser for being a resident burgess: and that the whole body of the
realm, and the service of the same, was rather to be respected than any
private regard of place or person. This is a remarkable, and perhaps the
earliest assertion, of an important constitutional principle, that each
member of the House of Commons is deputed to serve, not only for his
constituents, but for the whole kingdom; a principle which marks the
distinction between a modern English parliament and such deputations of
the estates as were assembled in several continental kingdoms; a
principle to which the House of Commons is indebted for its weight and
dignity, as well as its beneficial efficiency, and which none but the
servile worshippers of the populace are ever found to gainsay. It is
obvious that such a principle could never obtain currency, or even be
advanced on any plausible ground, until the law for the election of
resident burgesses had gone into disuse.
Those who defended the existing law, forgetting, as is often the case
with the defenders of existing laws, that it had lost its practical
efficacy, urged that the inferior ranks using manual and mechanical arts
ought like the rest to be regarded and consulted with on matters which
concerned them, and of which strangers could less judge. "We," said a
member, "who have never seen Berwick or St. Michael's Mount, can but
blindly guess of them, albeit we look on the maps that come from thence,
or see letters of instruction sent; some one whom observation,
experience, and due consideration of that country hath taught, can more
perfectly open what shall in question thereof grow, and more effectually
reason thereupon, than the skilfullest otherwise whatsoever." But the
greatest mischief resulting from an abandonment of their old
constitution would be the interference of noblemen with elections;
lords' letters, it was said, would from henceforth bear the sway;
instances of which, so late as the days of Mary, were alleged, though no
one cared to allude particularly to anything of a more recent date.
Some proposed to impose a fine of forty pounds on any borough making its
election on a peer's nomination. The bill was committed by a majority;
but as no further entry appears in the Journals, we may infer it to have
dropped.[436]
It may be mentioned, as not unconnected with this subject, that in the
same session a fine was imposed on the borough of Westbury for receiving
a bribe of four pounds from Thomas Long, "being a very simple man and of
small capacity to serve in that place;" and the mayor was ordered to
repay the money. Long, however, does not seem to have been expelled.
This is the earliest precedent on record for the punishment of bribery
in elections.[437]
_Assertion of privileges by Commons._--We shall find an additional proof
that the House of Commons under the Tudor princes, and especially
Elizabeth, was not so feeble and insignificant an assembly as has been
often insinuated, if we look at their frequent assertion and gradual
acquisition of those peculiar authorities and immunities which
constitute what is called privilege of parliament. Of these the first,
in order of time if not of importance, was their exemption from arrest
on civil process during their session. Several instances occur under the
Plantagenet dynasty, where this privilege was claimed and admitted; but
generally by means of a distinct act of parliament, or at least by a
writ of privilege out of chancery. The House of Commons for the first
time took upon themselves to avenge their own injury in 1543, when the
remarkable case of George Ferrers occurred. This is related in detail by
Holingshed, and is perhaps the only piece of constitutional information
we owe to him. Without repeating all the circumstances, it will be
sufficient here to mention, that the Commons sent their serjeant with
his mace to demand the release of Ferrers, a burgess who had been
arrested on his way to the house; that the gaolers and sheriffs of
London having not only refused compliance, but ill-treated the serjeant,
they compelled them, as well as the sheriffs of London, and even the
plaintiff who had sued the writ against Ferrers, to appear at the bar of
the house, and committed them to prison; and that the king, in the
presence of the judges, confirmed in the strongest manner this assertion
of privilege by the Commons. It was however, so far at least as our
knowledge extends, a very important novelty in constitutional practice;
not a trace occurring in any former instance on record, either of a
party being delivered from arrest at the mere demand of the serjeant, or
of any one being committed to prison by the sole authority of the House
of Commons. With respect to the first, "the chancellor," says
Holingshed, "offered to grant them a writ of privilege, which they of
the Commons' house refused, being of a clear opinion that all
commandments and other acts proceeding from the nether house were to be
done and executed by their serjeant without writ, only by show of his
mace, which was his warrant." It might naturally seem to follow from
this position, if it were conceded, that the house had the same power of
attachment for contempt, that is, of committing to prison persons
refusing obedience to lawful process, which our law attributes to all
courts of justice, as essential to the discharge of their duties. The
king's behaviour is worthy of notice: while he dexterously endeavours to
insinuate that the offence was rather against him than the Commons,
Ferrers happening to be in his service, he displays that cunning
flattery towards them in their moment of exasperation, which his
daughter knew so well how to employ.[438]
_Other cases of privilege._--Such important powers were not likely to be
thrown away, though their exertion might not always be thought
expedient. The Commons had sometimes recourse to a writ of privilege in
order to release their members under arrest, and did not repeat the
proceeding in Ferrers's case till that of Smalley, a member's servant,
in 1575, whom they sent their serjeant to deliver. And this was only
"after sundry reasons, arguments, and disputations," as the journal
informs us; and, what is more, after rescinding a previous resolution
that they could find no precedents for setting at liberty any one in
arrest, except by writ of privilege.[439] It is to be observed, that
the privilege of immunity extended to the menial servants of members,
till taken away by a statute of George III. Several persons however
were, at different times, under Mary and Elizabeth, committed by the
house to the Tower, or to the custody of their own serjeant, for
assaults on their members.[440] Smalley himself above-mentioned, it
having been discovered that he had fraudulently procured this arrest, in
order to get rid of the debt, was committed for a month, and ordered to
pay the plaintiff one hundred pounds, which was possibly the amount of
what he owed.[441] One also, who had served a subpoena out of the
star-chamber on a member in the session of 1584, was not only put in
confinement, but obliged to pay the party's expenses, before they would
discharge him, making his humble submission on his knees.[442] This is
the more remarkable, inasmuch as the chancellor had but just before made
answer to a committee deputed "to signify to him how by the ancient
liberties of the house, the members thereof are privileged from being
served with subpoenas," that "he thought the house had no such
privilege, nor would he allow any precedents for it, unless they had
also been ratified in the court of chancery."[443] They continued to
enforce this summary mode of redress with no objection, so far as
appears, of any other authority, till, by the end of the queen's reign,
it had become their established law of privilege that "no subpoena or
summons for the attendance of a member in any other court ought to be
served, without leave obtained or information given to the house; and
that the persons who procured or served such process were guilty of a
breach of privilege, and were punishable by commitment or otherwise, by
the order of the house."[444] The great importance of such a privilege
was the security it furnished, when fully claimed and acted upon,
against those irregular detentions and examinations by the council, and
which, in despite of the promised liberty of speech, had, as we have
seen, oppressed some of their most distinguished members. But it must be
owned that by thus suspending all civil and private suits against
themselves, the Commons gave too much encouragement to needy and
worthless men who sought their walls as a place of sanctuary.
This power of punishment, as it were for contempt, assumed in respect of
those who molested members of the Commons by legal process, was still
more naturally applicable to offences against established order
committed by any of themselves. In the earliest record that is extant
of their daily proceedings, the Commons' Journal of the first parliament
of Edward VI., we find, on 21st January 1547-8, a short entry of an
order that John Storie, one of the burgesses, shall be committed to the
custody of the serjeant. The order is repeated the next day; on the
next, articles of accusation are read against Storie. It is ordered on
the following day that he shall be committed prisoner to the Tower. His
wife soon after presents a petition, which is ordered to be delivered to
the Protector. On the 20th of February, letters from Storie in the Tower
are read. These probably were not deemed satisfactory, for it is not
till the 2nd of March that we have an entry of a letter from Mr. Storie
in the Tower with his submission. And an order immediately follows, that
"the king's privy council in the nether house shall humbly declare unto
the lord protector's grace, that the resolution of the house is, that
Mr. Storie be enlarged and at liberty, out of prison; and to require the
king's majesty to forgive him his offences in this case towards his
majesty and his council."
Storie was a zealous enemy of the reformation, and suffered death for
treason under Elizabeth. His temper appears to have been ungovernable;
even in Mary's reign he fell a second time under the censure of the
house for disrespect to the speaker. It is highly probable that his
offence in the present instance was some ebullition of virulence against
the changes in religion; for the first entry concerning him immediately
follows the third reading of the bill that established the English
liturgy. It is also manifest that he had to atone for language
disrespectful to the Protector's government, as well as to the house.
But it is worthy of notice, that the Commons by their single authority
commit their burgess first to their own officer, and next to the Tower;
and that upon his submission they inform the Protector of their
resolution to discharge him out of custody, recommending him to
forgiveness as to his offence against the council, which, as they must
have been aware, the privilege of parliament as to words spoken within
its walls (if we are right in supposing such to have been the case)
would extend to cover. It would be very unreasonable to conclude that
this is the first instance of a member's commitment by order of the
house, the earlier journals not being in existence. Nothing indicates
that the course taken was unprecedented. Yet on the other hand we can as
little infer that it rested on any previous usage; and the times were
just such, in which a new precedent was likely to be established. The
right of the house indeed to punish its own members for indecent abuse
of the liberty of speech, may be thought the result naturally from the
king's concession of that liberty; and its right to preserve order in
debate is plainly incident to that of debating at all.
In the subsequent reign of Mary, Mr. Copley incurred the displeasure of
the house for speaking irreverend words of her majesty, and was
committed to the serjeant at arms; but the despotic character of that
government led the Commons to recede in some degree from the regard to
their own privileges they had shown in the former case. The speaker was
directed to declare this offence to the queen, and to request her mercy
for the offender. Mary answered, that she would well consider that
request, but desired that Copley should be examined as to the cause of
his behaviour. A prorogation followed the same day, and of course no
more took place in this affair.[445]
A more remarkable assertion of the house's right to inflict punishment
on its own members occurred in 1581, and being much better known than
those I have mentioned, has been sometimes treated as the earliest
precedent. One Arthur Hall, a burgess for Grantham, was charged with
having caused to be published a book against the present parliament, on
account of certain proceedings in the last session, wherein he was
privately interested, "not only reproaching some particular good members
of the house, but also very much slanderous and derogatory to its
general authority, power, and state, and prejudicial to the validity of
its proceedings in making and establishing of laws." Hall was the master
of Smalley, whose case has been mentioned above, and had so much
incurred the displeasure of the house by his supposed privity to the
fraud of his servant, that a bill was brought in and read a first time,
the precise nature of which does not appear, but expressed to be against
him and two of his servants. It seems probable, from these and some
other passages in the entries that occur on this subject in the journal,
that Hall in his libel had depreciated the House of Commons as an estate
of parliament, and especially in respect of its privileges, pretty much
in the strain which the advocates of prerogative came afterwards to
employ. Whatever share therefore personal resentment may have had in
exasperating the house, they had a public quarrel to avenge against one
of their members, who was led by pique to betray their ancient
liberties. The vengeance of popular assemblies is not easily satisfied.
Though Hall made a pretty humble submission, they went on, by a
unanimous vote, to heap every punishment in their power upon his head.
They expelled him, they imposed a fine of five hundred marks upon him,
they sent him to the Tower until he should make a satisfactory
retractation. At the end of the session he had not been released; nor
was it the design of the Commons that his imprisonment should then
terminate; but their own dissolution, which ensued, put an end to the
business.[446] Hall sat in some later parliaments. This is the leading
precedent, as far as records show, for the power of expulsion, which the
Commons have ever retained without dispute of those who would most
curtail their privileges. But in 1558 it had been put to the vote
whether one outlawed and guilty of divers frauds should continue to sit,
and carried in his favour by a very small majority; which affords a
presumption that the right of expulsion was already deemed to appertain
to the house.[447] They exercised it with no small violence in the
session of 1585 against the famous Dr. Parry, who having spoken warmly
against the bill inflicting the penalty of death on jesuits and seminary
priests, as being cruel and bloody, the Commons not only ordered him
into the custody of the serjeant, for opposing a bill approved of by a
committee, and directed the speaker to reprimand him upon his knees, but
on his failing to make a sufficient apology, voted him no longer a
burgess of that house.[448] The year afterwards Bland, a currier, was
brought to their bar for using what were judged contumelious expressions
against the house for something they had done in a matter of little
moment, and discharged on account of his poverty, on making submission,
and paying a fine of twenty shillings.[449] In this case they perhaps
stretched their power somewhat farther than in the case of Arthur Hall,
who, as one of their body, might seem more amenable to their
jurisdiction.
_Privilege of determining contested elections claimed by the
house._--The Commons asserted in this reign, perhaps for the first time,
another most important privilege, the right of determining all matters
relative to their own elections. Difficulties of this nature had in
former times been decided in chancery, from which the writ issued, and
into which the return was made. Whether no cases of interference on the
part of the house had occurred, it is impossible to pronounce, on
account of the unsatisfactory state of the rolls and journals of
parliament under Edward IV., Henry VII. and Henry VIII. One remarkable
entry, however, may be found in the reign of Mary, when a committee is
appointed "to inquire if Alexander Nowell, prebendary of Westminster,
may be of the house;" and it is declared next day by them, that
"Alexander Nowell, being prebendary in Westminster, and thereby having
voice in the convocation-house, cannot be a member of this house; and so
agreed by the house, and the queen's writ to be directed for another
burgess in his place."[450] Nothing farther appears on record till in
1586 the house appointed a committee to examine the state and
circumstances of the returns for the county of Norfolk. The fact was,
that the chancellor had issued a second writ for this county, on the
ground of some irregularity in the first return, and a different person
had been elected. Some notice having been taken of this matter in the
Commons, the speaker received orders to signify to them her majesty's
displeasure that "the house had been troubled with a thing impertinent
for them to deal with, and only belonging to the charge and office of
the lord chancellor, whom she had appointed to confer with the judges
about the returns for the county of Norfolk, and to act therein
according to justice and right." The house, in spite of this peremptory
inhibition, proceeded to nominate a committee to examine into and report
the circumstances of these returns; who reported the whole case with
their opinion, that those elected on the first writ should take their
seats, declaring further that they understood the chancellor and some of
the judges to be of the same opinion; but that "they had not thought it
proper to inquire of the chancellor what he had done, because they
thought it prejudicial to the privilege of the house to have the same
determined by others than such as were members thereof. And though they
thought very reverently of the said lord chancellor and judges, and knew
them to be competent judges in their places; yet in this case they took
them not for judges in parliament in this house: and thereupon required
that the members, if it were so thought good, might take their oaths and
be allowed of by force of the first writ, as allowed by the censure of
this house, and not as allowed of by the said lord chancellor and
judges. Which was agreed unto by the whole house."[451] This judicial
control over their elections was not lost. A committee was appointed, in
the session of 1589, to examine into sundry abuses of returns, among
which is enumerated that some are returned for new places.[452] And
several instances of the house's deciding on elections occur in
subsequent parliaments.
This tenaciousness of their own dignity and privileges was shown in some
disagreements with the upper house. They complained to the Lords in
1597, that they had received a message from the Commons at their bar
without uncovering, or rising from their places. But the Lords proved,
upon a conference, that this was agreeable to usage in the case of
messages; though when bills were brought up from the lower house, the
speaker of the Lords always left his place, and received them at the
bar.[453] Another remonstrance of the Commons, against having amendments
to bills sent down to them on paper instead of parchment, seems a little
frivolous, but serves to indicate a rising spirit, jealous of the
superiority that the peers had arrogated.[454] In one point more
material, and in which they had more precedent on their side, the
Commons successfully vindicated their privilege. The Lords sent them a
message in the session of 1593, reminding them of the queen's want of a
supply, and requesting that a committee of conference might be
appointed. This was accordingly done, and Sir Robert Cecil reported from
it that the Lords would consent to nothing less than a grant of three
entire subsidies, the Commons having shown a reluctance to give more
than two. But Mr. Francis Bacon said, "he yielded to the subsidy, but
disliked that this house should join with the upper house in granting
it. For the custom and privilege of this house hath always been, first
to make offer of the subsidies from hence, then to the upper house;
except it were that they present a bill unto this house, with desire of
our assent thereto, and then to send it up again." But the house were
now so much awakened to the privilege of originating money-bills, that,
in spite of all the exertions of the court, the proposition for another
conference with the Lords was lost on a division by 217 to 128.[455] It
was by his opposition to the ministry in this session, that Bacon, who
acted perhaps full as much from pique towards the Cecils, and ambitious
attachment to Essex, as from any real patriotism, so deeply offended the
queen, that, with all his subsequent pliancy, he never fully reinstated
himself in her favour.[456]
_The English constitution not admitted to be an absolute
monarchy._--That the government of England was a monarchy, bounded by
law, far unlike the actual state of the principal kingdoms on the
Continent, appears to have been so obvious and fundamental a truth, that
flattery itself did not venture directly to contravene it. Hume has laid
hold of a passage in Raleigh's preface to his _History of the World_
(written indeed a few years later than the age of Elizabeth), as if it
fairly represented public opinion as to our form of government. Raleigh
says that Philip II. "attempted to make himself not only an absolute
monarch over the Netherlands, like unto the kings and sovereigns of
England and France; but, Turk-like, to tread under his feet all their
national and fundamental laws, privileges, and ancient rights." But who,
that was really desirous of establishing the truth, would have brought
Raleigh into court as an unexceptionable witness on such a question?
Unscrupulous ambition taught men in that age who sought to win or regain
the Crown's favour, to falsify all law and fact in behalf of
prerogative, as unblushingly as our modern demagogues exaggerate and
distort the liberties of the people.[457] The sentence itself, if
designed to carry the full meaning that Hume assigns to it, is little
better than an absurdity. For why were the rights and privileges of the
Netherlands more fundamental than those of England? and by what logic
could it be proved more Turk-like to impose the tax of the twentieth
penny, or to bring Spanish troops into those provinces, in contravention
of their ancient charters, than to transgress the Great Charter of this
kingdom, with all those unrescinded statutes and those traditional
unwritten liberties which were the ancient inheritance of its subjects?
Or could any one, conversant in the slightest degree with the two
countries, range in the same class of absolute sovereigns the kings of
France in England? The arbitrary acts of our Tudor princes, even of
Henry VIII., were trifling in comparison of the despotism of Francis I.
and Henry II., who forced their most tyrannical ordinances down the
throats of the parliament of Paris with all the violence of military
usurpers. No permanent law had ever been attempted in England, nor any
internal tax imposed, without consent of the people's representatives.
No law in France had ever received such consent; nor had the taxes,
enormously burthensome as they were in Raleigh's time, been imposed, for
one hundred and fifty years past, by any higher authority than a royal
ordinance. If a few nobler spirits had protested against the excessive
despotism of the house of Valois; if La Boetie had drunk at the springs
of classical republicanism; if Hottoman had appealed to the records of
their freeborn ancestry that surrounded the throne of Clovis; if Languet
had spoken in yet a bolder tone of a rightful resistance to
tyranny;[458] if the jesuits and partisans of the League had cunningly
attempted to win men's hearts to their faction by the sweet sounds of
civil liberty and the popular origin of politic rule; yet these
obnoxious paradoxes availed little with the nation, which, after the
wild fascination of a rebellion arising wholly from religious bigotry
had passed away, relapsed at once into its patient loyalty, its
self-complacent servitude. But did the English ever recognise, even by
implication, the strange parallels which Raleigh has made for their
government with that of France, and Hume with that of Turkey? The
language adopted in addressing Elizabeth was always remarkably
submissive. Hypocritical adulation was so much among the vices of that
age, that the want of it passed for rudeness. Yet Onslow, speaker of the
parliament of 1566, being then solicitor-general, in addressing the
queen says: "By our common law, although there be for the prince
provided many princely prerogatives and royalties, yet it is not such as
the prince can take money or other things, or do as he will at his own
pleasure without order, but quietly to suffer his subjects to enjoy
their own, without wrongful oppression; wherein other princes by their
liberty do take as pleaseth them."[459]
In the first months of Elizabeth's reign, Aylmer, afterwards Bishop of
London, published an answer to a book by John Knox, against female
monarchy, or, as he termed it, _Blast of the Trumpet against the
Monstrous Regiment of Women_; which, though written in the time of Mary,
and directed against her, was of course not acceptable to her sister.
The answer relies, among other arguments, on the nature of the English
constitution, which, by diminishing the power of the Crown, renders it
less unfit to be worn by a woman. "Well," he says, "a woman may not
reign in England! Better in England than anywhere, as it shall well
appear to him that without affection will consider the kind of regimen.
While I compare ours with other, as it is in itself, and not maimed by
usurpation, I can find none either so good or so indifferent. The
regiment of England is not a mere monarchy, as some for lack of
consideration think, nor a mere oligarchy nor democracy, but a rule
mixed of all these, wherein each one of these have or should have like
authority. The image whereof, and not the image but the thing indeed, is
to be seen in the parliament-house, wherein you shall find these three
estates; the king or queen which representeth the monarchy, the noblemen
which be the aristocracy, and the burgesses and knights the democracy.
If the parliament use their privileges, the king can ordain nothing
without them: if he do, it is his fault in usurping it, and their fault
in permitting it. Wherefore, in my judgment, those that in King Henry
VIII.'s days would not grant him that his proclamations should have the
force of a statute, were good fathers of the country, and worthy
commendation in defending their liberty. But to what purpose is all
this? To declare that it is not in England so dangerous a matter to have
a woman ruler, as men take it to be. For first it is not she that
ruleth, but the laws, the executors whereof be her judges appointed by
her, her justices and such other officers. Secondly, she maketh no
statutes or laws, but the honourable court of parliament; she breaketh
none, but it must be she and they together, or else not. If on the other
part the regiment were such as all hanged on the king's or queen's will,
and not upon the laws written; if she might decree and make laws alone
without her senate; if she judged offences according to her wisdom, and
not by limitation of statutes and laws; if she might dispose alone of
war and peace; if, to be short, she were a mere monarch, and not a mixed
ruler, you might peradventure make me to fear the matter the more, and
the less to defend the cause."[460]
This passage, notwithstanding some slight mistakes it contains, affords
a proof of the doctrine current among Englishmen in 1559, and may
perhaps be the less suspected, as it does not proceed from a skilful
pen. And the quotations I have made in the last chapter from Hooker are
evidence still more satisfactory, on account of the gravity and
judiciousness of the writer, that they continued to be the orthodox
faith in the later period of Elizabeth's reign. It may be observed,
that those who speak of the limitations of the sovereign's power, and
of the acknowledged liberties of the subject, use a distinct and
intelligible language; while the opposite tenets are insinuated by means
of vague and obscure generalities, as in the sentence above quoted from
Raleigh. Sir Thomas Smith, secretary of state to Elizabeth, has
bequeathed us a valuable legacy in his treatise on the commonwealth of
England. But undoubtedly he evades, as far as possible, all great
constitutional principles, and treats them, if at all, with a vagueness
and timidity very different from the tone of Fortescue. He thus
concludes his chapter on the parliament: "This is the order and form of
the highest and most authentical court of England, by virtue whereof all
these things be established whereof I spoke before, and no other means
accounted available to make any new _forfeiture of life, members, or
lands_, of any Englishman, where there was no law ordered for it
before."[461] This leaves no small latitude for the authority of royal
proclamations, which the phrase, I make no question, was studiously
adopted in order to preserve.
_Pretensions of the crown._--There was unfortunately a notion very
prevalent in the cabinet of Elizabeth, though it was not quite so
broadly or at least so frequently promulgated as in the following
reigns, that, besides the common prerogatives of the English Crown,
which were admitted to have legal bounds, there was a kind of paramount
sovereignty, which they denominated her absolute power, incident, as
they pretended, to the abstract nature of sovereignty, and arising out
of its primary office of preserving the state from destruction. This
seemed analogous to the dictatorial power, which might be said to reside
in the Roman senate, since it could confer it upon an individual. And we
all must, in fact, admit that self-preservation is the first necessity
of commonwealths as well as persons, which may justify, in Montesquieu's
poetical language, the veiling of the statues of liberty. Thus martial
law is proclaimed during an invasion, and houses are destroyed in
expectation of a siege. But few governments are to be trusted with this
insidious plea of necessity, which more often means their own security
than that of the people. Nor do I conceive that the ministers of
Elizabeth restrained this pretended absolute power, even in theory, to
such cases of overbearing exigency. It was the misfortune of the
sixteenth century to see kingly power strained to the highest pitch in
the two principal European monarchies. Charles V. and Philip II. had
crushed and trampled the ancient liberties of Castile and Arragon.
Francis I. and his successors, who found the work nearly done to their
hands, had inflicted every practical oppression upon their subjects.
These examples could not be without their effect on a government so
unceasingly attentive to all that passed on the stage of Europe.[462]
Nor was this effect confined to the court of Elizabeth. A king of
England, in the presence of absolute sovereigns, or perhaps of their
ambassadors, must always feel some degree of that humiliation with which
a young man, in check of a prudent father, regards the careless
prodigality of the rich heirs with whom he associates. Good sense and
elevated views of duty may subdue the emotion; but he must be above
human nature who is insensible to the contrast.
There must be few of my readers who are unacquainted with the animated
sketch that Hume has delineated of the English constitution under
Elizabeth. It has been partly the object of the present chapter to
correct his exaggerated outline; and nothing would be more easy than to
point at other mistakes into which he has fallen through prejudice,
through carelessness, or through want of acquaintance with law. His
capital and inexcusable fault in everything he has written on our
constitution is to have sought for evidence upon one side only of the
question. Thus the remonstrance of the judges against arbitrary
imprisonment by the council is infinitely more conclusive to prove that
the right of personal liberty existed, than the fact of its infringement
can be to prove that it did not. There is something fallacious in the
negative argument which he perpetually uses, that because we find no
mention of any umbrage being taken at certain strains of prerogative,
they must have been perfectly consonant to law. For if nothing of this
could be traced, which is not so often the case as he represents it, we
should remember that even when a constant watchfulness is exercised by
means of political parties and a free press, a nation is seldom alive to
the transgressions of a prudent and successful government. The
character, which on a former occasion I have given of the English
constitution under the house of Plantagenet, may still be applied to it
under the line of Tudor, that it was a monarchy greatly limited by law,
but retaining much power that was ill calculated to promote the public
good, and swerving continually into an irregular course, which there was
no restraint adequate to correct. It may be added, that the practical
exercise of authority seems to have been less frequently violent and
oppressive, and its legal limitations better understood in the reign of
Elizabeth, than for some preceding ages; and that sufficient indications
had become distinguishable before its close, from which it might be
gathered that the seventeenth century had arisen upon a race of men in
whom the spirit of those who stood against John and Edward was rekindled
with a less partial and a steadier warmth.[463]
FOOTNOTES:
[369] _State Trials_, i. 1148.
[370] _Id._ 1256.
[371] _Id._ 1403.
[372] Murden, 337. Dr. Lingard has fully established, what indeed no one
could reasonably have disputed, Elizabeth's passion for Anjou; and says
very truly, "the writers who set all this down to policy cannot have
consulted the original documents."--P. 149. It was altogether repugnant
to sound policy. Persons, the jesuit, indeed says, in his famous libel,
_Leicester's Commonwealth_, written not long after this time, that it
would have been "honourable, convenient, profitable, and needful:" which
every honest Englishman would interpret by the rule of contraries.
Sussex wrote indeed to the queen in favour of the marriage (Lodge, ii.
177); and Cecil undoubtedly professed to favour it; but this must have
been out of obsequiousness to the queen. It was a habit of this minister
to set down briefly the arguments on both sides of a question, sometimes
in parallel columns, sometimes successively; a method which would seem
too formal in our age, but tending to give himself and others a clearer
view of the case. He has done this twice in the present instance
(Murden, 322, 331); and it is evident that he does not, and cannot,
answer his own objections to the match. When the council waited on her
with this resolution in favour of the marriage, she spoke sharply to
those whom she believed to be against it. Yet the treaty went on for two
years; her coquetry in this strange delay breeding her, as Walsingham
wrote from Paris, "greater dishonour than I dare commit to paper."
Strype's _Annals_, iii. 2. That she ultimately broke it off, must be
ascribed to the suspiciousness and irresolution of her character, which,
acting for once conjointly with her good understanding, overcame a
disgraceful inclination.
[373] Strype, iii. 480. Stubbe always signed himself Scæva, in these
left-handed productions.
[374] Lodge, ii. 412; iii. 49.
[375] Several volumes of the Harleian MSS. illustrate the course of
government under Elizabeth. The copious analysis in the catalogue, by
Humphrey Wanley and others, which I have in general found accurate,
will, for most purposes, be sufficient. See particularly vol. 703. A
letter, _inter alia_, in this (folio 1) from Lord Hunsdon and Walsingham
to the sheriff of Sussex, directs him not to assist the creditors of
John Ashburnham in molesting him, "till such time as our determination
touching the premises shall be known," Ashburnham being to attend the
council to prefer his complaint. See also vols. 6995, 6996, 6997, and
many others. The Lansdowne catalogue will furnish other evidences.
[376] Anderson's _Reports_, i. 297. It may be found also in the
_Biographia Britannica_, and the _Biographical Dictionary_, art.
Anderson.
[377] Lansdowne MSS. lviii. 87. The Harleian MS. 6846 is a mere
transcript from Anderson's _Reports_, and consequently of no value.
There is another in the same collection, at which I have not looked.
[378] Hume says, "that the queen had taken a dislike to the smell of
this useful plant." But this reason, if it existed, would hardly have
induced her to prohibit its cultivation throughout the kingdom. The real
motive appears in several letters of the Lansdowne collection. By the
domestic culture of woad, the customs on its importation were reduced;
and this led to a project of levying a sort of excise upon it at home.
_Catalogue of Lansdowne MSS._ xlix. 32-60. The same principle has since
caused the prohibition of sowing tobacco.
[379] Camden, 476.
[380] Rymer, xvi. 448.
[381] Many of these proclamations are scattered through Rymer; and the
whole have been collected in a volume.
[382] By a proclamation in 1560, butchers killing flesh in Lent are made
subject to a specific penalty of £20; which was levied upon one man.
Strype's _Annals_, i. 235. This seems to have been illegal.
[383] Lord Camden in 1766. Hargrave, in preface to "Hale de Jure
Coronæ," in _Law Tracts_, vol. i.
[384] We find an exclusive privilege granted in 1563 to Thomas Cooper,
afterwards Bishop of Winchester, to print his _Thesaurus_, or Latin
dictionary for twelve years (Rymer, xv. 620); and to Richard Wright to
print his translation of Tacitus during his natural life; any one
infringing this privilege to forfeit 40_s._ for every printed copy.
_Id._ xvi. 97.
[385] Strype's _Parker_, 221. By the 51st of the queen's injunctions, in
1559, no one might print any book or paper whatsoever unless the same be
first licensed by the council or ordinary.
[386] A proclamation, dated February 1589, against seditious and
schismatical books and writings, commands all persons who shall have in
their custody any such libels against the order and government of the
church of England, or the rites and ceremonies used in it, to bring and
deliver up the same with convenient speed to their ordinary. _Life of
Whitgift_, Appendix 126. This has probably been one cause of the extreme
scarcity of these puritanical pamphlets.
[387] Strype's _Grindal_, 124, and Append. 43, where a list of these
books is given.
[388] Strype's _Whitgift_, 222, and Append. 94. The archbishop exercised
his power over the press, as may be supposed, with little moderation.
Not confining himself to the suppression of books favouring the two
religions adverse to the church, he permitted nothing to appear that
interfered in the least with his own notions. Thus we find him seizing
an edition of some works of Hugh Broughton, an eminent Hebrew scholar.
This learned divine differed from Whitgift about Christ's descent to
hell. It is amusing to read that ultimately the primate came over to
Broughton's opinion; which, if it prove some degree of candour, is a
glaring evidence of the advantages of that free enquiry he had sought to
suppress. P. 384, 431.
[389] Camden, 449; Strype's _Annals_, ii. 288. The queen had been told,
it seems, of what was done in Wyatt's business, a case not all parallel;
though there was no sufficient necessity even in that instance to
justify the proceeding by martial law. But bad precedents always beget
"progeniem vitiosiorem."
There was a difficulty how to punish Burchell capitally, which probably
suggested to the queen this strange expedient. It is said, which is full
as strange, that the bishops were about to pass sentence on him for
heresy, in having asserted that a papist might lawfully be killed. He
put an end, however, to this dilemma, by cleaving the skull of one of
the keepers in the Tower, and was hanged in a common way.
[390] Strype's _Annals_, iii. 570; _Life of Whitgift_, Append. 126.
[391] Rymer, xvi. 279.
[392] Carte, 693, from Stowe.
[393] Strype's _Annals_, i. 535.
[394] Strype, iii. Append. 147. This was exacted in order to raise men
for service in the Low Countries. But the beneficed clergy were always
bound to furnish horses and armour, or their value, for the defence of
the kingdom in peril of invasion or rebellion. An instance of their
being called on for such a contingent occurred in 1569. Strype's
_Parker_, 273; and Rymer will supply many others in earlier times.
The magistrates of Cheshire and Lancashire had imposed a charge of
eightpence a week on each parish of those counties for the maintenance
of recusants in custody. This, though very nearly borne out by the
letter of a recent statute (14th Eliz. c. 5), was conceived by the
inhabitants to be against law. We have, in Strype's _Annals_, vol. iii.
Append. 56, a letter from the privy council, directing the charge to be
taken off. It is only worth noticing, as it illustrates the jealousy
which the people entertained of anything approaching to taxation without
consent of parliament, and the caution of the ministry in not pushing
any exertion of prerogative farther than would readily be endured.
[395] Murden, 632. That some degree of intimidation was occasionally
made use of, may be inferred from the following letter of Sir Henry
Cholmley to the mayor and aldermen of Chester, in 1597. He informs them
of letters received by him from the council, "whereby I am commanded in
all haste to require you that you and every of you send in your several
sums of money unto Torpley (Tarporly) on Friday next the 23rd December,
or else that you and every of you give me meeting there, the said day
and place, to enter severally into bond to her highness for your
appearance forthwith before their lordships, to show cause wherefore you
and every of you should refuse to pay her majesty loan according to her
highness several privy-seals by you received, letting you wit that I am
now directed by other letters from their lordships to pay over the said
money to the use of her majesty, and to send and certify the said bonds
so taken: which praying you heartily to consider of as the last
direction of the service, I heartily bid you farewell." Harl. MSS. 2173,
10.
[396] Strype, ii. 102. In Haynes, p. 518, is the form of a circular
letter or privy-seal, as it was called from passing that office, sent in
1569, a year of great difficulty, to those of whose aid the queen stood
in need. It contains a promise of repayment at the expiration of twelve
months. A similar application was made through the lord-lieutenants in
their several counties, to the wealthy and well disposed, in 1588,
immediately after the destruction of the Armada. The loans are asked
only for the space of a year, as "heretofore has been yielded unto her
majesty in times of less need and danger, and yet always fully repaid."
Strype, iii. 535. Large sums of money are said to have been demanded of
the citizens of London in 1599. Carte, 675. It is perhaps to this year
that we may refer a curious fact mentioned in Mr. Justice Hutton's
judgment in the case of ship-money. "In the time of Queen Elizabeth (he
says), who was a gracious and a glorious queen, yet in the end of her
reign, whether through covetousness, or by reason of the wars that came
upon her, I know not by what counsel she desired benevolence, the statue
of 2nd Richard III. was pressed, yet it went so far, that by commission
and direction money was gathered in every inn of court; and I myself for
my part paid twenty shillings. But when the queen was informed by her
judges that this kind of proceeding was against law, she gave directions
to pay all such sums as were collected back; and so I (as all the rest
of our house, and as I think of other houses too) had my twenty
shillings repaid me again; and privy counsellors were sent down to all
parts, to tell them that it was for the defence of the realm, and it
should be repaid them again." _State Trials_, iii. 1199.
[397] Haynes, 518. Hume has exaggerated this, like other facts, in his
very able, but partial, sketch of the constitution in Elizabeth's reign.
[398] The following are a few specimens, copied from the Lansdowne
catalogue. "Sir Antony Cooke to Sir William Cecil, that he would move
Mr. Peters to recommend Mr. Edward Stanhope to a certain young lady of
Mr. P.'s acquaintance, whom Mr. Stanhope was desirous to marry."--Jan.
25, 1563, lxxi. 73. "Sir John Mason to Sir William Cecil, that he fears
his young landlord, Spelman, has intentions of turning him out of his
house, which will be disagreeable; hopes therefore Sir William C. will
speak in his behalf."--Feb. 4, 1566, _id._ 74. "Lord Stafford to Lord
Burleigh, to further a match between a certain rich citizen's daughter
and his son; he requests Lord B. to appoint the father to meet him (Lord
Stafford) some day at his house, 'where I will in few words make him so
reasonable an offer as I trust he will not disallow.'"--lxviii. 20.
"Lady Zouch to Lord Burleigh, for his friendly interposition to
reconcile Lord Zouch her husband, who had forsaken her through
jealousy."--1593, lxxiv. 72.
[399] _Biographia Britannica_, art. Cecil.
[400] Townsend's manuscript has been separately published; but I do not
find that D'Ewes has omitted anything of consequence.
[401] D'Ewes, p. 82; Strype, i. 258, from which latter passage it seems
that Cecil was rather adverse to the proposal.
[402] D'Ewes, p. 85. The speech which Hume, on D'Ewes's authority, has
put into the queen's mouth at the end of this session, is but an
imperfect copy or abridgment of one which she made in 1566; as D'Ewes
himself afterwards confesses. Her real answer to the speaker in 1563 is
in Harrington's _Nugæ Antiquæ_, vol. i. p. 80.
[403] Camden, p. 400.
[404] The courtiers told the house, that the queen intended to marry in
order to divert them from their request that they would name her
successor. Strype, vol. i. p. 494.
[405] D'Ewes, p. 128.
[406] _Id._ p. 116; Journals, 8th Oct., 25th Nov., 2nd Jan.
[407] D'Ewes, p. 141.
[408] D'Ewes, 156, etc. There is no mention of Strickland's business in
the journal.
[409] Something of this sort seems to have occurred in the session of
1566, as may be inferred from the lord keeper's reproof to the speaker
for calling her majesty's letters patent in question. _Id._ 115.
[410] _Id._ 158; Journals, 7 Apr.
[411] Journals, 9 and 10 Apr.
[412] D'Ewes, 159.
[413] D'Ewes, 151.
[414] Bell, I suppose, had reconciled himself to the court, which would
have approved no speaker chosen without its recommendation. There was
always an understanding between this servant of the house and the
government. Proofs and presumptions of this are not unfrequent. In
Strype's _Annals_, vol. iv. p. 124, we find instructions for the
speaker's speech in 1592, drawn up by Lord Burleigh, as might very
likely be the case on other occasions.
[415] D'Ewes, 219.
[416] _Id._, 213, 214.
[417] D'Ewes, 236.
[418] D'Ewes, 260.
[419] _Id._ 282.
[420] D'Ewes, 410.
[421] P. 438. Townsend calls this gentleman Davenport, which no doubt
was his true name.
[422] D'Ewes, 433.
[423] _Id. 440 et post._
[424] _Id._ 470.
[425] D'Ewes, 474; Townsend, 60.
[426] _Id._ 62.
[427] See the letter in Lodge's _Illustrations_, vol. iii. 34. Townsend
says he was committed to Sir John Fortescue's keeping, a gentler sort of
imprisonment. P. 61.
[428] D'Ewes, 470.
[429] Birch's _Memoirs of Elisabeth_, i. 96.
[430] Strype has published, from Lord Burleigh's manuscripts, a speech
made in the parliament of 1589 against the subsidy then proposed.
_Annals_, vol. iii. Append. 238. Not a word about this occurs in
D'Ewes's Journal; and I mention it as an additional proof how little we
can rely on negative inferences as to proceedings in parliament at this
period.
[431] D'Ewes, 547.
[432] Their joy and gratitude were rather premature, for her majesty did
not revoke all of them; as appears by Rymer, xvi. 540, and Carte, iii.
712. A list of them, dated May 1603 (Lodge, iii. 159), seems to imply
that they were still existing.
[433] D'Ewes, 619, 644, etc.
The speeches made in this parliament are reported more fully than usual
by Heywood Townsend, from whose journal those of most importance have
been transcribed by D'Ewes. Hume has given considerable extracts, for
the sole purpose of inferring from this very debate on monopolies, that
the royal prerogative was, according to the opinion of the House of
Commons itself, hardly subject to any kind of restraint. But the
passages he selects are so unfairly taken (some of them being the mere
language of courtiers, others separated from the context, in order to
distort their meaning), that no one who compares them with the original
can acquit him of extreme prejudice. The adulatory strain in which it
was usual to speak of the sovereign often covered a strong disposition
to keep down his authority. Thus when a Mr. Davies says in this debate:
"God hath given that power to absolute princes, which he attributes to
himself--Dixi quod dii estis;" it would have been seen, if Hume had
quoted the following sentence, that he infers from hence, that justice
being a divine attribute, the king can do nothing that is unjust, and
consequently cannot grant licences to the injury of his subjects. Strong
language was no doubt used in respect of the prerogative. But it is
erroneous to assert, with Hume, that it came equally from the courtiers
and country gentlemen, and was admitted by both. It will chiefly be
found in the speeches of Secretary Cecil, the official defender of
prerogative, and of some lawyers. Hume, after quoting an extravagant
speech ascribed to Sergeant Heyle, that "all we have is her majesty's,
and she may lawfully at any time take it from us; yea, she hath as much
right to all our lands and goods as to any revenue of her crown,"
observes that Heyle was an eminent lawyer, a man of character. That
Heyle was high in his profession is beyond doubt; but in that age, as
has since, though from the change of times less grossly, continued to be
the case, the most distinguished lawyers notoriously considered the
court and country as plaintiff and defendant in a great suit, and
themselves as their retained advocates. It is not likely, however, that
Heyle should have used the exact words imputed to him. He made, no
doubt, a strong speech for prerogative, but so grossly to transcend all
limits of truth and decency seems even beyond a lawyer seeking office.
Townsend and D'Ewes write with a sort of sarcastic humour, which is not
always to be taken according to the letter. D'Ewes, 433; Townsend, 205.
Hume proceeds to tell us, that it was asserted this session, that the
speaker might either admit or reject bills in the house; and remarks,
that the very proposal of it is a proof at what a low ebb liberty was at
that time in England. There cannot be a more complete mistake. No such
assertion was made; but a member suggested that the speaker might, as
the consuls in the Roman senate used, appoint the order in which bills
should be read; at which speech, it is added, some hissed. D'Ewes, 677.
The present regularity of parliamentary forms, so justly valued by the
house, was yet unknown; and the members called confusedly for the
business they wished to have brought forward.
[434] _Parl. Hist._ 958. In the session of 1571, a committee was
appointed to confer with the attorney and solicitor-general about the
return of burgesses from nine places which had not been presented in the
last parliament. But in the end it was "ordered, by Mr. Attorney's
assent, that the burgesses shall remain according to their returns; for
that the validity of the charters of their towns is elsewhere to be
examined, if cause be." D'Ewes p. 156, 159.
D'Ewes observes that it was very common in former times, in order to
avoid the charge of paying wages to their burgesses, that a borough
which had fallen into poverty or decay, either got licence of the
sovereign for the time being to be discharged from electing members, or
discontinued it of themselves; but that of late the members for the most
part bearing their own charges, many of those towns which had thus
discontinued their privilege, renewed it both in Elizabeth's reign and
that of James. P. 80. This could only have been, it is hardly necessary
to say, by obtaining writs out of chancery for that purpose. As to the
payment of wages, the words of D'Ewes intimate that it was not entirely
disused. In the session of 1586, the borough of Grantham complained that
Arthur Hall (whose name now appears for the last time) had sued them for
wages due to him as their representative in the preceding parliament;
alleging that, as well by reason of his negligent attendance and some
other offences by him committed in some of its sessions, as of his
promise not to require any such wages, they ought not to be charged; and
a committee having been appointed to enquire into this, reported that
they had requested Mr. Hall to remit his claim for wages, which he had
freely done. D'Ewes, p. 417.
[435] Strype mentions letters from the council to Mildmay, Sheriff of
Essex, in 1559, about the choice of knights. _Annals_, v. i. p. 32. And
other instances of interference may be found in the Lansdowne and
Harleian collections. Thus we read that a Mr. Copley used to nominate
burgesses for Gatton, "for that there were no burgesses in the borough."
The present proprietor being a minor in custody of the court of wards,
Lord Burleigh directs the Sheriff of Surrey to make no return without
instructions from himself; and afterwards orders him to cancel the name
of Francis Bacon in his indenture, he being returned for another place,
and to substitute Edward Brown. Harl. MSS. DCCIII. 16.
I will introduce in this place, though not belonging to the present
reign, a proof that Henry VIII. did not trust altogether to the
intimidating effects of his despotism for the obedience of parliament,
and that his ministers looked to the management of elections, as their
successors have always done. Sir Robert Sadler writes to some one, whose
name does not appear, to inform him that the Duke of Norfolk had spoken
to the king, who was well content he should be a burgess of Oxford; and
that he should "order himself in the said _room_ according to such
instructions as the said Duke of Norfolk should give him from the king:"
if he is not elected at Oxford, the writer will recommend him to some of
"my lord's towns of his bishopric of Winchester." Cotton MSS. Cleopatra
E. iv. 178. Thus we see that the practice of our government has always
been alike; and we may add the same of the nobility, who interfered with
elections full as continually, and far more openly, than in modern
times. The difference is, that a secretary of the treasury, or peer's
agent, does that with some precaution of secrecy, which the council
board, or the peer himself, under the Tudors, did by express letters to
the returning officer; and that the operating motive is the prospect of
a good place in the excise or customs for compliance, rather than that
of lying some months in the Fleet for disobedience.
A very late writer has asserted, as an undoubted fact, which "historic
truth requires to be mentioned," that for the first parliament of
Elizabeth, "five candidates were nominated by the court for each
borough, and three for each county; and by the authority of the
sheriffs, the members were chosen from among the candidates." Butler's
_Book of the Roman Catholic Church_, p. 225. I never met with any
tolerable authority for this, and believe it to be a mere fabrication;
not certainly of Mr. Butler, who is utterly incapable of a wilful
deviation from truth, but of some of those whom he too implicitly
follows.
[436] D'Ewes, 168.
[437] Journals, p. 88.
[438] Holingshed, vol. iii. p. 824 (4to edit.); Hatsell's _Precedents_,
vol. i. p. 53. Mr. Hatsell inclines too much, in my opinion, to
depreciate the authority of this case, imagining that it was rather as
the king's servant, than as a member of the house, that Ferrers was
delivered. But, though Henry artfully endeavours to rest it chiefly on
this ground, it appears to me that the Commons claim the privilege as
belonging to themselves, without the least reference to this
circumstance. If they did not always assert it afterwards, this negative
presumption is very weak, when we consider how common it was to overlook
or recede from precedents, before the constitution had been reduced into
a system. Carte, vol. iii. p. 164, endeavours to discredit the case of
Ferrers as an absolute fable, and certainly points out some inaccuracy
as to dates; but it is highly improbable that the whole should be an
invention. He returns to the subject afterwards (p. 541), and, with a
folly almost inconceivable even in a Jacobite, supposes the puritans to
have fabricated the tale, and prevailed on Holingshed to insert it in
his history.
[439] Journals, Feb. 22nd and 27th.
[440] Hatsell, 73, 92, 119.
[441] _Id._ 90.
[442] _Id._ 97.
[443] _Id._ 96.
[444] _Id._ 119.
[445] Journals, 5th and 7th March 1557-8.
[446] D'Ewes, 291; Hatsell, 93. The latter says, "I cannot but suspect,
that there was some private history in this affair, some particular
offence against the queen, with which we are unacquainted." But I
believe the explanation I have given will be thought more to the
purpose; and so far from having offended the queen, Hall seems to have
had a patron in Lord Burleigh, to whom he wrote many letters,
complaining of the Commons, which are extant in the Lansdowne
collection. He seems to have been a man of eccentric and unpopular
character, and had already incurred the displeasure of the Commons in
the session of 1572, when he was ordered to be warned by the serjeant to
appear at the bar "to answer for sundry lewd speeches used as well in
the house as elsewhere." Another entry records him to have been "charged
with seven several articles, but having humbly submitted himself to the
house, and confessed his folly, to have been upon the question released
with a good exhortation from the speaker." D'Ewes, 207, 212.
[447] Hatsell, 80.
[448] D'Ewes, 341.
[449] D'Ewes, 366. This case, though of considerable importance, is
overlooked by Hatsell, who speaks of that of Hall as the only one before
the long parliament, wherein the Commons have punished the authors of
libels derogatory to their privileges. P. 127. Though he speaks only of
libels, certainly the punishment of words spoken is at least as strong
an exercise of power.
[450] Journals, 1 Mary, p. 27.
[451] D'Ewes, 393, etc.
[452] _Id._ 430.
[453] _Id._ 539.
[454] _Id._ 596.
[455] D'Ewes, 486. Another trifling circumstance may be mentioned to
show the rising spirit of the age. In the session of 1601, Sir Robert
Cecil having proposed that the speaker should _attend_ the lord keeper
about some matter, Sir Edward Hobby took up the word in strong language,
as derogatory to their dignity; and the secretary, who knew, as later
ministers have done, that the Commons are never so unmanageable as on
such points of honour, made a proper apology. _Id._ 627.
[456] Birch's _Memoirs_, i. 97, 120, 152, etc., ii. 129; Bacon's Works,
vol. ii. p. 416, 435.
[457] Raleigh's _Dedication of his Prerogative of Parliaments to James
I._ contains terrible things. "The bonds of subjects to their kings
should always be wrought out of iron, the bonds of kings unto subjects
but with cobwebs."--"All binding of a king by law upon the advantage of
his necessity, makes the breach itself lawful in a king; his charters
and all other instruments being no other than the surviving witnesses of
his unconstrained will." The object, however, of the book, is to
persuade the king to call a parliament (about 1613), and we are not to
suppose that Raleigh meant what he said. He was never very scrupulous
about truth. In another of his tracts, entitled _The Prince; or,
Thesaurus of State_, he holds, though not without flattery towards
James, a more reasonable language. "In every just state some part of the
government is or ought to be impartial to the people; as in a kingdom, a
voice or suffrage in making laws: and sometimes also in levying of arms,
if the charge be great and the prince be forced to borrow help of his
subjects, the matter rightly may be propounded to a parliament, that the
tax may seem to have proceeded from themselves."
[458] _Le Contre Un_ of La Boetie, the friend of Montaigne, is, as the
title intimates, a vehement philippic against monarchy. It is subjoined
to some editions of the latter's essays. The _Franco-Gallia_ of Hottoman
contains little more than extracts from Fredegarius, Aimoin, and other
ancient writers, to prove the elective character and general freedom of
the monarchy under the two first races. This made a considerable
impression at the time, though the passages in question have been so
often quoted since, that we are almost surprised to find the book so
devoid of novelty. Hubert Languet's _Vindicæ contra Tyrannos_, published
under the name of Junius Brutus, is a more argumentative discussion of
the rights of governors and their subjects.
[459] D'Ewes, p. 115.
I have already adverted to Gardiner's resolute assertion of the law
against the prince's single will, as a proof that, in spite of Hume's
preposterous insinuations to the contrary, the English monarchy was
known and acknowledged to be limited. Another testimony may be adduced
from the words of a great protestant churchman. Archbishop Parker,
writing to Cecil to justify himself for not allowing the queen's right
to grant some dispensation in a case of marriage, says, "he would not
dispute of the queen's absolute power, or prerogative royal, how far her
highness might go in following the Roman authority; but he yet doubted,
that if any dispensation should pass from her authority, to any subject,
not avouchable by laws of her realm, made and established by herself and
her three estates, whether that subject be in surety at all times
afterwards: specially seeing there be parliament laws, precisely
determining cases of dispensations." Strype's _Parker_, 177.
Perhaps, however, there is no more decisive testimony to the established
principles of limited monarchy in the age of Elizabeth, than a
circumstance mentioned in Anderson's _Reports_, 154. The queen had
granted to Mr. Richard Cavendish an office for issuing certain writs,
and directed the judges to admit him to it, which they neglected (that
is, did not think fit) to do. Cavendish hereupon obtained a letter from
her majesty, expressing her surprise that he was not admitted according
to her grant, and commanding them to sequester the profits of the office
for his use, or that of any other to whom these might appear to be due,
as soon as the controversy respecting the execution of the said office
should be decided. It is plain that some other persons were in
possession of these profits, or claimed a right therein. The judges
conceived that they could not lawfully act according to the said letter
and command, because through such a sequestration of the emoluments,
those who claimed a right to issue the writs would be disseised of their
freehold. The queen, informed that they did not obey the letter, sent
another, under the sign manual, in more positive language, ending in
these words: "We look that you and every of you should dutifully fulfil
our commandment herein, and these our letters shall be your
warrant."--21st April 1587. This letter was delivered to the justices in
the presence of the chancellor and Lord Leicester, who were commissioned
to hear their answer, telling them also, that the queen had granted the
patent on account of her great desire to provide for Cavendish. The
judges took a little time to consult what should be said; and, returning
to the Lords, answered that they desired in all respects humbly to obey
her majesty; but, as this case is, could not do so without perjury,
which they well knew the queen would not require, and so went away.
Their answer was reported to the queen, who ordered the chancellor,
chief justice of the king's bench, and master of the rolls, to hear the
judges' reasons; and the queen's council were ordered to attend, when
the queen's serjeant began to show the queen's prerogative to grant the
issuing of writs, and showed precedents. The judges protested in answer,
that they had every wish to assist her majesty to all her rights, but
said that this manner of proceeding was out of course of justice; and
gave their reasons, that the right of issuing these writs and fees
incident to it was in the prothonotaries and others, who claimed it by
freehold; who ought to be made to answer, and not the judges, being more
interested therein. This was certainly a little feeble, but they soon
recovered themselves. They were then charged with having neglected to
obey these letters of the queen; which they confessed, but said that
this was no offence or contempt towards her majesty, because the command
was against the law of the land; in which case, they said, no one is
bound to obey such command. When farther pressed, they said the queen
herself was sworn to keep the laws as well as they; and that they could
not obey this command without going against the laws directly and
plainly, against their oaths, and to the offence of God, her majesty,
the country and commonwealth in which they were born and live: so that
if the fear of God were gone from them, yet the examples of others, and
the punishment of those who had formerly transgressed the laws, would
remind them and keep them from such an offence. Then they cited the
Spensers, and Thorp, a judge under Edward III., and precedents of
Richard II.'s time, and of Empson, and the statutes from Magna Charta,
which show what a crime it is for judges to infringe the laws of the
land; and thus, since the queen and the judges were sworn to observe
them, they said that they would not act as was commanded in these
letters.
All this was repeated to her majesty for her good allowance of the said
reasons, and which her majesty, as I have heard, says the reporter, took
well; but nothing farther was heard of the business.--Such was the law
and the government, which Mr. Hume has compared to that of Turkey! It is
almost certain, that neither James nor Charles would have made so
discreet a sacrifice of their pride and arbitrary temper; and in this
self-command lay the great superiority of Elizabeth's policy.
[460] _Harborowe of True and Faithful Subjects_, 1559. Most of this
passage is quoted by Dr. M'Crie, in his _Life of Knox_, vol. i. note BB,
to whom I am indebted for pointing it out.
[461] _Commonwealth of England_, b. ii. c. 3.
[462] Bodin says the English ambassador, M. Dail (Mr. Dale), had assured
him, not only that the king may assent to or refuse a bill as he
pleases, but that il ne laisse pas d'en ordonner 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. _De la République_, l. i. c. 8.
[463] The misrepresentations of Hume as to the English constitution
under Elizabeth, and the general administration of her reign, have been
exposed since the present chapter was written, by Mr. Brodie, in his
_History of the British Empire from the Accession of Charles I. to the
Restoration_, vol. i. c. 3. In some respects, Mr. B. seems to have gone
too far in an opposite system, and to represent the practical course of
government as less arbitrary than I can admit it to have been.
CHAPTER VI
ON THE ENGLISH CONSTITUTION UNDER JAMES I
_Quiet accession of James._--It might afford an illustration of the
fallaciousness of political speculations, to contrast the hopes and
inquietudes that agitated the minds of men concerning the inheritance of
the Crown during Elizabeth's lifetime, while not less than fourteen
titles were idly or mischievously reckoned up, with the perfect
tranquillity that accompanied the accession of her successor.[464] The
house of Suffolk, whose claim was legally indisputable, if we admit the
testament of Henry VIII. to have been duly executed, appear, though no
public enquiry had been made into that fact, to have lost ground in
popular opinion, partly through an unequal marriage of Lord Beauchamp
with a private gentleman's daughter, but still more from a natural
disposition to favour the hereditary line rather than the capricious
disposition of a sovereign long since dead, as soon as it became
consistent with the preservation of the reformed faith. Leicester once
hoped, it is said, to place his brother-in-law, the Earl of Huntingdon,
descended from the Duke of Clarence, upon the throne; but this
pretension had been entirely forgotten. The more intriguing and violent
of the catholic party, after the death of Mary, entertaining little hope
that the King of Scots would abandon the principles of his education,
sought to gain support to a pretended title in the King of Spain, or his
daughter the infanta, who afterwards married the Archduke Albert,
governor of the Netherlands. Others, abhorring so odious a claim, looked
to Arabella Stuart, daughter of the Earl of Lennox, younger brother of
James's father, and equally descended from the stock of Henry VII.,
sustaining her manifest defect of primogeniture by her birth within the
realm, according to the principle of law that excluded aliens from
inheritance. But this principle was justly deemed inapplicable to the
Crown. Clement VIII., who had no other view than to secure the
re-establishment of the catholic faith in England, and had the judgment
to perceive that the ascendency of Spain would neither be endured by the
nation, nor permitted by the French king, favoured this claim of
Arabella, who though apparently of the reformed religion, was rather
suspected at home of wavering in her faith; and entertained a hope of
marrying her to the Cardinal Farnese, brother of the Duke of Parma.[465]
Considerations of public interest, however, unequivocally pleaded for
the Scottish line; the extinction of long sanguinary feuds, and the
consolidation of the British empire, Elizabeth herself, though by no
means on terms of sincere friendship with James, and harassing him by
intrigues with his subjects to the close of her life, seems to have
always designed that he should inherit her crown. And the general
expectation of what was to follow, as well from conviction of his right
as from the impracticability of any effectual competition, had so
thoroughly paved the way, that the council's proclamation of the King of
Scots excited no more commotion than that of an heir apparent.[466]
_Question of his title to the crown._--The popular voice in favour of
James was undoubtedly raised in consequence of a natural opinion that he
was the lawful heir to the throne. But this was only according to vulgar
notions of right, which respect hereditary succession as something
indefeasible. In point of fact, it is at least very doubtful whether
James I. or any of his posterity were legitimate sovereigns, according
to the sense which that word ought properly to bear. The house of Stuart
no more came in by a clear title than the house of Brunswick; by such a
title, I mean, as the constitution and established laws of this kingdom
had recognised. No private man could have recovered an acre of land
without proving a better right than they could make out to the Crown of
England. What then had James to rest upon? What renders it absurd to
call him and his children usurpers? He had that which the flatterers of
his family most affected to disdain, the will of the people; not
certainly expressed in regular suffrage or declared election, but
unanimously and voluntarily ratifying that which in itself could surely
give no right, the determination of the late queen's council to proclaim
his accession to the throne.
It is probable that what has been just said may appear rather
paradoxical to those who have not considered this part of our history;
yet it is capable of satisfactory proof. This proof consists of four
propositions: 1. That a lawful king of England, with the advice and
consent of parliament, may make statutes to limit the inheritance of the
Crown as shall seem fit;--2. That a statute passed in the 35th year of
King Henry VIII. enabled that prince to dispose of the succession by his
last will signed with his own hand;--3. That Henry executed such a will,
by which, in default of issue from his children, the Crown was entailed
upon the descendants of his younger sister Mary, Duchess of Suffolk,
before those of Margaret, Queen of Scots;--4. That such descendants of
Mary were living at the decease of Elizabeth.
Of these propositions, the two former can require no support; the first
being one that it would be perilous to deny, and the second asserting a
notorious fact. A question has, however, been raised with respect to the
third proposition; for though the will of Henry, now in the
chapter-house at Westminster, is certainly authentic, and is attested by
many witnesses, it has been doubted whether the signature was made with
his own hand, as required by the act of parliament. In the reign of
Elizabeth, it was asserted by the Queen of Scots' ministers, that the
king being at the last extremity, some one had put a stamp for him to
the instrument. It is true, that he was in the latter part of his life
accustomed to employ a stamp instead of making his signature. Many
impressions of this are extant; but it is evident on the first
inspection, not only that the presumed autographs in the will (for there
are two) are not like these impressions, but that they are not the
impressions of any stamp, the marks of the pen being very clearly
discernible.[467] It is more difficult to pronounce that they may not be
feigned; but such is not the opinion of some who are best acquainted
with Henry's handwriting;[468] and what is still more to the purpose,
there is no pretence for setting up such a possibility, when the story
of the stamp, as to which the partisans of Mary pretended to adduce
evidence, appears so clearly to be a fabrication. We have therefore
every reasonable ground to maintain, that Henry did duly execute a will,
postponing the Scots line to that of Suffolk.
The fourth proposition is in itself undeniable. There were descendants
of Mary, Duchess of Suffolk, by her two daughters, Frances, second
Duchess of Suffolk, and Eleanor, Countess of Cumberland. A story had
indeed been circulated that Charles Brandon, Duke of Suffolk, was
already married to a lady of the name of Mortimer at the time of his
union with the king's sister. But this circumstance seems to be
sufficiently explained in the treatise of Hales.[469] It is somewhat
more questionable, from which of his two daughters we are to derive the
hereditary stock. This depends on the legitimacy of Lord Beauchamp, son
of the Earl of Hertford by Catherine Grey. I have mentioned in another
place the process before a commission appointed by Elizabeth, which
ended in declaring that their marriage was not proved, and that their
cohabitation had been illicit. The parties alleged themselves to have
been married clandestinely in the Earl of Hertford's house, by a
minister whom they had never before seen, and of whose name they were
ignorant, in the presence only of a sister of the earl, then deceased.
This entire absence of testimony, and the somewhat improbable nature of
the story, at least in appearance, may still perhaps leave a shade of
doubt as to the reality of the marriage. On the other hand, it was
unquestionable that their object must have been a legitimate union; and
such a hasty and furtive ceremony as they asserted to have taken place,
while it would, if sufficiently proved, be completely valid, was
necessary to protect them from the queen's indignation. They were
examined separately upon oath to answer a series of the closest
interrogatories, which they did with little contradiction, and a perfect
agreement in the main; nor was any evidence worth mentioning adduced on
the other side; so that, unless the rules of the ecclesiastical law are
scandalously repugnant to common justice, their oaths entitled them to
credit on the merits of the case.[470] The Earl of Hertford, soon after
the tranquil accession of James, having long abandoned all ambitious
hopes, and seeking only to establish his children's legitimacy and the
honour of one who had been the victim of their unhappy loves, petitioned
the king for a review of the proceedings, alleging himself to have
vainly sought this at the hands of Elizabeth. It seems probable, though
I have not met with any more distinct proof of it than a story in
Dugdale, that he had been successful in finding the person who
solemnised the marriage.[471] A commission of delegates was accordingly
appointed to investigate the allegations of the earl's petition. But the
jealousy that had so long oppressed this unfortunate family was not yet
at rest. Questions seem to have been raised as to the lapse of time and
other technical difficulties, which served as a pretext for coming to no
determination on the merits.[472] Hertford, or rather his son, not long
after, endeavoured indirectly to bring forward the main question by
means of a suit for some lands against Lord Monteagle. This is said to
have been heard in the court of wards, where a jury was impanelled to
try the fact. But the law officers of the Crown interposed to prevent a
verdict, which, though it could not have been legally conclusive upon
the marriage, would certainly have given a sanction to it in public
opinion.[473] The house of Seymour was now compelled to seek a renewal
of their honours by another channel. Lord Beauchamp, as he had uniformly
been called, took a grant of the barony of Beauchamp, and another of the
earldom of Hertford, to take effect upon the death of the earl, who is
not denominated his father in the patent.[474] But after the return of
Charles II., in the patent restoring this Lord Beauchamp's son to the
dukedom of Somerset, he is recited to be heir male of the body of the
first duke by his wife Anne, which establishes (if the recital of a
private act of parliament can be said to establish anything) the
validity of the disputed marriage.[475]
The descent from Eleanor, the younger daughter of Mary Brandon, who
married the Earl of Cumberland, is subject to no difficulties. She left
an only daughter, married to the Earl of Derby, from whom the claim
devolved again upon females, and seems to have attracted less notice
during the reign of Elizabeth than some others much inferior in
plausibility. If any should be of opinion that no marriage was regularly
contracted between the Earl of Hertford and Lady Catherine Grey, so as
to make their children capable of inheritance, the title to the Crown,
resulting from the statute of 35 H. 8 and the testament of that prince,
will have descended, at the death of Elizabeth, on the issue of the
Countess of Cumberland, the youngest daughter of the Duchess of Suffolk,
Lady Frances Keyes, having died without issue.[476] In neither case
could the house of Stuart have a lawful claim. But I may, perhaps, have
dwelled too long on a subject which, though curious and not very
generally understood, can be of no sort of importance, except as it
serves to cast ridicule upon those notions of legitimate sovereignty and
absolute right, which it was once attempted to set up as paramount even
to the great interests of a commonwealth.
There is much reason to believe that the consciousness of this defect in
his parliamentary title put James on magnifying, still more than from
his natural temper he was prone to do, the inherent rights of
primogenitary succession, as something indefeasible by the legislature;
a doctrine which, however it might suit the schools of divinity, was in
diametrical opposition to our statutes.[477] Through the servile spirit
of those times, however, it made a rapid progress; and, interwoven by
cunning and bigotry with religion, became a distinguishing tenet of the
party who encouraged the Stuarts to subvert the liberties of this
kingdom. In James's proclamation on ascending the throne, he sets forth
his hereditary right in pompous and perhaps unconstitutional phrases. It
was the first measure of parliament to pass an act of recognition,
acknowledging that, immediately on the decease of Elizabeth, "the
imperial crown of the realm of England did by inherent birthright, and
lawful and undoubted succession, descend and come to his most excellent
majesty, as being lineally, justly, and lawfully, next and sole heir of
the blood royal of this realm."[478] The will of Henry VIII. it was
tacitly agreed by all parties to consign to oblivion: and this most
wisely, not on the principles which seem rather too much insinuated in
this act of recognition, but on such substantial motives of public
expediency as it would have shown an equal want of patriotism and of
good sense for the descendants of the house of Suffolk to have
withstood.
James left a kingdom where his authority was incessantly thwarted and
sometimes openly assailed, for one wherein the royal prerogative had for
more than a century been strained to a very high pitch, and where there
had not occurred for above thirty years the least appearance of
rebellion and hardly of tumult. Such a posture of the English
commonwealth, as well as the general satisfaction testified at his
accession, seemed favourable circumstances to one who entertained, with
less disguise if not with more earnestness than most other sovereigns,
the desire of reigning with as little impediment as possible to his own
will. Yet some considerations might have induced a prince who really
possessed the king-craft wherein James prided himself, to take his
measures with caution. The late queen's popularity had remarkably abated
during her last years.[479] It is a very common delusion of royal
personages to triumph in the people's dislike of those into whose place
they expect shortly to come, and to count upon the most transitory of
possessions, a favour built on hopes that they cannot realise and
discontents that they will not assuage. If Elizabeth lost a great deal
of that affection her subjects had entertained for her, this may be
ascribed, not so much to Essex's death, though that no doubt had its
share, as to weightier taxation, to some oppressions of her government,
and above all to her inflexible tenaciousness in every point of
ecclesiastical discipline. It was the part of a prudent successor to
preserve an undeviating economy, to remove without repugnance or delay
the irritations of monopolies and purveyance, and to remedy those
alleged abuses in the church, against which the greater and stronger
part of the nation had so long and so loudly raised its voice.
_Early unpopularity of the king._--The new king's character,
notwithstanding the vicinity of Scotland, seems to have been little
understood by the English at his accession. But he was not long in
undeceiving them, if it be true that his popularity had vanished away
before his arrival in London.[480] The kingdom was full of acute wits
and skilful politicians, quick enough to have seen through a less
unguarded character than that of James. It was soon manifest that he was
unable to wield the sceptre of the great princess whom he ridiculously
affected to despise,[481] so as to keep under that rising spirit, which
might perhaps have grown too strong even for her control. He committed
an important error in throwing away the best opportunity that had
offered itself for healing the wounds of the church of England. In his
way to London, the malcontent clergy presented to him what was commonly
called the Millenary Petition, as if signed by 1000 ministers, though
the real number was not so great.[482] This petition contained no demand
inconsistent with the established hierarchy, nor, as far as I am aware,
which might not have been granted without inconvenience. James, however,
who had not unnaturally taken an extreme disgust at the presbyterian
clergy of his native kingdom, by whom his life had been perpetually
harassed, showed no disposition to treat these petitioners with
favour.[483] The bishops had promised him an obsequiousness to which he
had been little accustomed, and a zeal to enhance his prerogative which
they afterwards too well displayed. His measures towards the
nonconformist party had evidently been resolved upon before he summoned
a few of their divines to the famous conference at Hampton Court. In the
accounts that we read of this meeting, we are alternately struck with
wonder at the indecent and partial behaviour of the king, and at the
abject baseness of the bishops, mixed, according to the custom of
servile natures, with insolence towards their opponents.[484] It was
easy for a monarch and eighteen churchmen to claim the victory, be the
merits of their dispute what they might, over four abashed and
intimidated adversaries.[485] A very few alterations were made in the
church service after this conference, but not of such moment as to
reconcile probably a single minister to the established discipline.[486]
The king soon afterwards put forth a proclamation, requiring all
ecclesiastical and civil officers to do their duty by enforcing
conformity, and admonishing all men not to expect nor attempt any
further alteration in the public service; for "he would neither let any
presume that his own judgment, having determined in a matter of this
weight, should be swayed to alteration by the frivolous suggestions of
any light spirit, nor was he ignorant of the inconvenience of admitting
innovation in things once settled by mature deliberation."[487] And he
had already strictly enjoined the bishops to proceed against all their
clergy who did not observe the prescribed order;[488] a command which
Bancroft, who about this time followed Whitgift in the primacy, did not
wait to have repeated. But the most enormous outrage on the civil rights
of these men was the commitment to prison of ten among those who had
presented the Millenary Petition; the judges having declared in the
star-chamber, that it was an offence finable at discretion, and very
near to treason and felony, as it tended to sedition and rebellion.[489]
By such beginnings did the house of Stuart indicate the course it would
steer.
An entire year elapsed, chiefly on account of the unhealthiness of the
season in London, before James summoned his first parliament. It might
perhaps have been more politic to have chosen some other city; for the
length of this interval gave time to form a disadvantageous estimate of
his administration and to alienate beyond recovery the puritanical
party. Libels were already in circulation, reflecting with a sharpness
never before known on the king's personal behaviour, which presented an
extraordinary contrast to that of Elizabeth.[490] The nation, it is easy
to perceive, cheated itself into a persuasion, that it had borne that
princess more affection than it had really felt, especially in her
latter years; the sorrow of subjects for deceased monarchs being often
rather inspired by a sense of evil than a recollection of good. James
however little heeded the popular voice, satisfied with the fulsome and
preposterous adulation of his court, and intent on promulgating certain
maxims concerning the dignity and power of princes, which he had already
announced in his discourse on the "True Law of Free Monarchies," printed
some years before in Scotland. In this treatise, after laying it down
that monarchy is the true pattern of divinity, and proving the duty of
passive obedience, rather singularly, from that passage in the book of
Samuel where the prophet so forcibly paints the miseries of absolute
power, he denies that the kings of Scotland owe their crown to any
primary contract, Fergus, their progenitor, having conquered the country
with his Irish; and advances more alarming tenets, as that the king
makes daily statutes and ordinances enjoining such pains thereto as he
thinks meet, without any advice of parliament or estates; that general
laws made publicly in parliament may by the king's authority be
mitigated or suspended upon causes only known to him; and that,
"although a good king will frame all his actions to be according to the
law, yet he is not bound thereto, but of his own will and for
example-giving to his subjects."[491] These doctrines, if not absolutely
novel, seemed peculiarly indecent as well as dangerous, from the mouth
of a sovereign. Yet they proceeded far more from James's self-conceit
and pique against the republican spirit of presbyterianism than from his
love of power, which (in its exercise I mean, as distinguished from its
possession) he did not feel in so eminent a degree as either his
predecessor or his son.
In the proclamation for calling together his first parliament, the king,
after dilating, as was his favourite practice, on a series of rather
common truths in very good language, charges all persons interested in
the choice of knights for the shire to select them out of the principal
knights or gentlemen within the county; and for the burgesses, that
choice be made of men of sufficiency and discretion, without desire to
please parents and friends, that often speak for their children or
kindred; avoiding persons noted in religion for their superstitious
blindness one way, or for their turbulent humour other ways. We do
command, he says, that no bankrupts or outlaws be chosen, but men of
known good behaviour and sufficient livelihood. The sheriffs are charged
not to direct a writ to any ancient town being so ruined that there are
not residents sufficient to make such choice, and of whom such lawful
election may be made. All returns are to be filed in chancery, and if
any be found contrary to this proclamation, the same to be rejected as
unlawful and insufficient, and the place to be fined for making it; and
any one elected contrary to the purport, effect, and true meaning of
this proclamation, to be fined and imprisoned.[492]
_Question of Fortescue and Goodwin's election._--Such an assumption of
control over parliamentary elections was a glaring infringement of
those privileges which the House of Commons had been steadily and
successfully asserting in the late reign. An opportunity very soon
occurred of contesting this important point. At the election for the
county of Buckingham, Sir Francis Goodwin had been chosen in preference
to Sir John Fortescue, a privy counsellor, and the writ returned into
chancery. Goodwin having been some years before outlawed, the return was
sent back to the sheriff, as contrary to the late proclamation; and, on
a second election, Sir John Fortescue was chosen. This matter being
brought under the consideration of the House of Commons, a very few days
after the opening of the session, gave rise to their first struggle with
the new king. It was resolved, after hearing the whole case, and
arguments by members on both sides, that Goodwin was lawfully elected
and returned, and ought to be received. The first notice taken of this
was by the Lords, who requested that this might be discussed in a
conference between the two houses, before any other matter should be
proceeded in. The Commons returned for answer, that they conceived it
not according to the honour of the house to give account of any of their
proceedings. The Lords replied, that having acquainted his majesty with
the matter, he desired there might be a conference thereon between the
two houses. Upon this message, the Commons came to a resolution that the
speaker with a numerous deputation of members should attend his majesty,
and report the reasons of their proceedings in Goodwin's case. In this
conference with the king, as related by the speaker, it appears that he
had shown some degree of chagrin, and insisted that the house ought not
to meddle with returns, which could only be corrected by the court of
chancery; and that since they derived all matters of privilege from him
and his grant, he expected they should not be turned against him. He
ended by directing the house to confer with the judges. After a debate
which seems, from the minutes in the journals, to have been rather warm,
it was unanimously agreed not to have a conference with the judges; but
the reasons of the house's proceeding were laid before the king in a
written statement or memorial, answering the several objections that his
majesty had alleged. This they sent to the Lords, requesting them to
deliver it to the king, and to be mediators in behalf of the house for
his majesty's satisfaction; a message in rather a lower tone than they
had previously taken. The king sending for the speaker privately, told
him that he was now distracted in judgment as to the merits of the
case; and for his further satisfaction, desired and commanded, as an
absolute king, that there should be a conference between the house and
the judges. Upon this unexpected message, says the journal, there grew
some amazement and silence. But at last one stood up and said: "The
prince's command is like a thunderbolt; his command upon our allegiance
like the roaring of a lion. To his command there is no contradiction;
but how or in what manner we should now proceed to perform obedience,
that will be the question."[493] It was resolved to confer with the
judges in presence of the king and council. In this second conference,
the king, after some favourable expressions towards the house, and
conceding that it was a court of record, and judge of returns, though
not exclusively of the chancery, suggested that both Goodwin and
Fortescue should be set aside, by issuing a new writ. This compromise
was joyfully accepted by the greater part of the Commons, after the
dispute had lasted nearly three weeks.[494] They have been considered as
victorious, upon the whole, in this contest, though they apparently fell
short in the result of what they had obtained some years before. But no
attempt was ever afterwards made to dispute their exclusive
jurisdiction.[495]
_Shirley's case of privilege._--The Commons were engaged during this
session in the defence of another privilege, to which they annexed
perhaps a disproportionate importance. Sir Thomas Shirley, a member,
having been taken in execution on a private debt before their meeting,
and the warden of the Fleet prison refusing to deliver him up, they were
at a loss how to obtain his release. Several methods were projected;
among which, that of sending a party of members with the serjeant and
his mace, to force open the prison, was carried on a division; but the
speaker hinting that such a vigorous measure would expose them
individually to prosecution as trespassers, it was prudently abandoned.
The warden, though committed by the house to a dungeon in the Tower,
continued obstinate, conceiving that by releasing his prisoner he
should become answerable for the debt. They were evidently reluctant to
solicit the king's interference; but aware at length that their own
authority was insufficient, "the vice-chamberlain, according to a
memorandum in the journals, was privately instructed to go to the king,
and humbly desire that he would be pleased to command the warden, on his
allegiance, to deliver up Sir Thomas; not as petitioned for by the
house, but as if himself thought it fit, out of his own gracious
judgment." By this stratagem, if we may so term it, they saved the point
of honour, and recovered their member.[496] The warden's apprehensions,
however, of exposing himself to an action for the escape gave rise to a
statute, which empowers the creditor to sue out a new execution against
any one who shall be delivered by virtue of his privilege of parliament,
after that shall have expired, and discharges from liability those out
of whose custody such persons shall be delivered. This is the first
legislative recognition of privilege.[497] The most important part of
the whole is a proviso subjoined to the act, "That nothing therein
contained shall extend to the diminishing of any punishment to be
hereafter, by censure in parliament, inflicted upon any person who
hereafter shall make or procure to be made any such arrest as is
aforesaid." The right of commitment, in such cases at least, by a vote
of the House of Commons, is here unequivocally maintained.
_Complaints of grievances._--It is not necessary to repeat the
complaints of ecclesiastical abuses preferred by this House of Commons,
as by those that had gone before them. James, by siding openly with the
bishops, had given alarm to the reforming party. It was anticipated that
he would go farther than his predecessor, whose uncertain humour, as
well as the inclinations of some of her advisers, had materially
counterbalanced the dislike she entertained of the innovators. A code of
new canons had recently been established in convocation with the king's
assent, obligatory perhaps upon the clergy, but tending to set up an
unwarranted authority over the whole nation; imposing oaths and exacting
securities in certain cases from the laity, and aiming at the exclusion
of nonconformists from all civil rights.[498] Against these canons, as
well as various other grievances, the Commons remonstrated in a
conference with the upper house, but with little immediate effect.[499]
They made a more remarkable effort in attacking some public mischiefs of
a temporal nature, which, though long the theme of general murmurs, were
closely interwoven with the ancient and undisputed prerogatives of the
Crown. Complaints were uttered, and innovations projected by the Commons
of 1604, which Elizabeth would have met with an angry message, and
perhaps visited with punishment on the proposers. James however was not
entirely averse to some of the projected alterations, from which he
hoped to derive a pecuniary advantage. The two principal grievances
were, purveyance and the incidents of military tenure. The former had
been restrained by not less than thirty-six statutes, as the Commons
assert in a petition to the king; in spite of which the impressing of
carts and carriages, and the exaction of victuals for the king's use, at
prices far below the true value, and in quantity beyond what was
necessary, continued to prevail under authority of commissions from the
board of green cloth, and was enforced, in case of demur or resistance,
by imprisonment under their warrant. The purveyors, indeed, are
described as living at free quarters upon the country, felling woods
without the owners' consent, and commanding labour with little or no
recompense.[500] Purveyance was a very ancient topic of remonstrance;
but both the inadequate revenues of the Crown, and a supposed dignity
attached to this royal right of spoil, had prevented its abolition from
being attempted. But the Commons seemed still more to trench on the
pride of our feudal monarchy, when they proposed to take away
guardianship in chivalry; that lucrative tyranny, bequeathed by Norman
conquerors, the custody of every military tenant's estate until he
should arrive at twenty-one, without accounting for the profits. This,
among other grievances, was referred to a committee, in which Bacon took
an active share. They obtained a conference on this subject with the
Lords, who refused to agree to a bill for taking guardianship in
chivalry away, but offered to join in a petition for that purpose to
the king, since it could not be called a wrong, having been patiently
endured by their ancestors as well as themselves, and being warranted by
the law of the land. In the end the Lords advised to drop the matter for
the present, as somewhat unseasonable in the king's first
parliament.[501]
In the midst of these testimonies of dissatisfaction with the civil and
ecclesiastical administration, the House of Commons had not felt much
willingness to greet the new sovereign with a subsidy. No demand had
been made upon them, far less any proof given of the king's exigencies;
and they doubtless knew by experience, that an obstinate determination
not to yield to any of their wishes would hardly be shaken by a liberal
grant of money. They had even passed the usual bill granting tonnage and
poundage for life, with certain reservations that gave the court
offence, and which apparently they afterwards omitted. But there was so
little disposition to do anything further, that the king sent a message
to express his desire that the Commons would not enter upon the business
of a subsidy, and assuring them that he would not take unkindly their
omission. By this artifice, which was rather transparent, he avoided the
not improbable mortification of seeing the proposal rejected.[502]
_Commons' vindication of themselves._--The king's discontent at the
proceedings of this session, which he seems to have rather strongly
expressed in some speech to the Commons that has not been recorded,[503]
gave rise to a very remarkable vindication, prepared by a committee at
the house's command, and entitled "A Form of Apology and Satisfaction to
be delivered to his Majesty," though such may not be deemed the most
appropriate title. It contains a full and pertinent justification of all
those proceedings at which James had taken umbrage, and asserts, with
respectful boldness and in explicit language, the constitutional rights
and liberties of parliament. If the English monarchy had been reckoned
as absolute under the Plantagenets and Tudors as Hume has endeavoured to
make it appear, the Commons of 1604 must have made a surprising advance
in their notions of freedom since the king's accession. Adverting to
what they call the misinformation openly delivered to his majesty in
three things; namely, that their privileges were not of right, but of
grace only, renewed every parliament on petition; that they are no court
of record, nor yet a court that can command view of records; that the
examination of the returns of writs for knights and burgesses is without
their compass, and belonging to the chancery: assertions, they say,
"tending directly and apparently to the utter overthrow of the very
fundamental privileges of our house, and therein of the rights and
liberties of the whole Commons of your realm of England, which they and
their ancestors, from time immemorial, have undoubtedly enjoyed under
your majesty's most noble progenitors;" and against which they expressly
protest, as derogatory in the highest degree to the true dignity and
authority of parliament, desiring "that such their protestation might be
recorded to all posterity;" they maintain, on the contrary, "1. That
their privileges and liberties are their right and inheritance, no less
than their very lands and goods; 2. That they cannot be withheld from
them, denied or impaired, but with apparent wrong to the whole state of
the realm; 3. That their making request, at the beginning of a
parliament, to enjoy their privilege, is only an act of manners, and
does not weaken their right; 4. That their house is a court of record,
and has been ever so esteemed; 5. That there is not the highest standing
court in this land that ought to enter into competition, either for
dignity or authority, with this high court of parliament, which, with
his majesty's royal assent, gives law to other courts, but from other
courts receives neither laws nor orders; 6. That the House of Commons is
the sole proper judge of return of all such writs, and the election of
all such members as belong to it, without which the freedom of election
were not entire." They aver that in this session the privileges of the
house have been more universally and dangerously impugned than ever, as
they suppose, since the beginnings of parliaments. That in regard to the
late queen's sex and age, and much more upon care to avoid all trouble,
which by wicked practice might have been drawn to impeach the quiet of
his majesty's right in the succession, those actions were then passed
over which they hoped in succeeding times to redress and rectify;
whereas, on the contrary, in this parliament, not privileges, but the
whole freedom of the parliament and realm had been hewed from them.
"What cause," they proceed, "we, your poor Commons, have to watch over
our privileges is manifest in itself to all men. The prerogatives of
princes may easily and do daily grow. The privileges of the subject are
for the most part at an everlasting stand. They may be by good
providence and care preserved; but being once lost, are not recovered
but with much disquiet." They then enter in detail on the various
matters that had arisen during the session--the business of Goodwin's
election, of Shirley's arrest, and some smaller matters of privilege to
which my limits have not permitted me to allude. "We thought not,"
speaking of the first, "that the judge's opinion, which yet in due place
we greatly reverence, being delivered what the common law was, which
extends only to inferior and standing courts, ought to bring any
prejudice to this high court of parliament, whose power being above the
law is not founded on the common law, but have their rights and
privileges peculiar to themselves." They vindicate their endeavours to
obtain redress of religious and public grievances: "Your majesty would
be misinformed," they tell him, "if any man should deliver that the
kings of England have any absolute power in themselves, either to alter
religion, which God defend should be in the power of any mortal man
whatsoever, or to make any laws concerning the same, otherwise than as
in temporal causes, by consent of parliament. We have and shall at all
times by our oaths acknowledge, that your majesty is sovereign lord and
supreme governor in both."[504] Such was the voice of the English
Commons in 1604, at the commencement of that great conflict for their
liberties, which is measured by the line of the house of Stuart. But it
is not certain that this apology was ever delivered to the king, though
he seems to allude to it in a letter written to one of his ministers
about the same time.[505]
_Session_, 1605.--The next session, which is remarkable on account of
the conspiracy of some desperate men to blow up both Houses of
Parliament with gunpowder on the day of their meeting, did not produce
much worthy of our notice. A bill to regulate, or probably to suppress,
purveyance was thrown out by the Lords. The Commons sent up another bill
to the same effect, which the upper house rejected without discussion,
by a rule then perhaps first established, that the same bill could not
be proposed twice in one session.[506] They voted a liberal subsidy,
which the king, who had reigned three years without one, had just cause
to require. For though he had concluded a peace with Spain soon after
his accession, yet the late queen had left a debt of £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.
_Union with Scotland debated._--The principal business of this third
session, as it had been of the last, was James's favourite scheme of a
perfect union between England and Scotland. It may be collected, though
this was never explicitly brought forward, that his views extended to a
legislative incorporation.[507] But in all the speeches on this subject,
and especially his own, there is a want of distinctness as to the object
proposed. He dwells continually upon the advantage of unity of laws, yet
extols those of England as the best, which the Scots, as was evident,
had no inclination to adopt. Wherefore then was delay to be imputed to
our English parliament, if it waited for that of the sister kingdom? And
what steps were recommended towards this measure, that the Commons can
be said to have declined, except only the naturalisation of the
ante-nati, or Scots born before the king's accession to our throne,
which could only have a temporary effect?[508] Yet Hume, ever prone to
eulogise this monarch at the expense of his people, while he bestows
merited praise on his speech in favour of the union, which is upon the
whole a well-written and judicious performance, charges the parliament
with prejudice, reluctance, and obstinacy. The code, as it may be
called, of international hostility, those numerous statutes treating the
northern inhabitants of this island as foreigners and enemies, were
entirely abrogated. And if the Commons, while both the theory of our own
constitution was so unsettled and its practice so full of abuse, did not
precipitately give in to schemes that might create still further
difficulty in all questions between the Crown and themselves, schemes,
too, which there was no imperious motive for carrying into effect at
that juncture, we may justly consider it as an additional proof of their
wisdom and public spirit. Their slow progress however in this favourite
measure, which, though they could not refuse to entertain it, they
endeavoured to defeat by interposing delays and impediments, gave much
offence to the king, which he expressed in a speech to the two houses,
with the haughtiness, but not the dignity, of Elizabeth. He threatened
them to live alternately in the two kingdoms, or to keep his court at
York; and alluded, with peculiar acrimony, to certain speeches made in
the house, wherein probably his own fame had not been spared.[509] "I
looked," he says, "for no such fruits at your hands, such personal
discourses and speeches, which of all other, I looked you should avoid,
as not beseeming the gravity of your assembly. I am your king; I am
placed to govern you, and shall answer for your errors; I am a man of
flesh and blood, and have my passions and affections as other men; I
pray you, do not too far move me to do that which my power may tempt me
unto."[510]
_Continual bickerings between the Crown and Commons._--It is most
probable, as experience had shown, that such a demonstration of
displeasure from Elizabeth would have ensured the repentant submission
of the Commons. But within a few years of the most unbroken
tranquillity, there had been one of those changes of popular feeling
which a government is seldom observant enough to watch. Two springs had
kept in play the machine of her administration, affection and fear;
attachment arising from the sense of dangers endured, and glory achieved
for her people, tempered, though not subdued, by the dread of her stern
courage and vindictive rigour. For James not a particle of loyal
affection lived in the hearts of the nation, while his easy and
pusillanimous, though choleric disposition, had gradually diminished
those sentiments of apprehension which royal frowns used to excite. The
Commons, after some angry speeches, resolved to make known to the king
through the speaker their desire, that he would listen to no private
reports, but take his information of the house's meaning from
themselves; that he would give leave to such persons as he had blamed
for their speeches to clear themselves in his hearing; and that he would
by some gracious message make known his intention that they should
deliver their opinions with full liberty, and without fear. The speaker
next day communicated a slight but civil answer he had received from the
king, importing his wish to preserve their privileges, especially that
of liberty of speech.[511] This, however, did not prevent his sending a
message a few days afterwards, commenting on their debates, and on some
clauses they had introduced into the bill for the abolition of all
hostile laws.[512] And a petition having been prepared by a committee
under the house's direction for better execution of the laws against
recusants, the speaker, on its being moved that the petition be read,
said that his majesty had taken notice of the petition as a thing
belonging to himself, concerning which it was needless to press him.
This interference provoked some members to resent it, as an infringement
of their liberties. The speaker replied that there were many precedents
in the late queen's time, where she had restrained the house from
meddling in politics of divers kinds. This, as a matter of fact, was too
notorious to be denied. A motion was made for a committee "to search for
precedents of ancient as well as later times that do concern any
messages from the sovereign magistrate, king or queen of this realm,
touching petitions offered to the House of Commons." The king now
interposed by a second message, that, though the petition were such as
the like had not been read in the house, and contained matter whereof
the house could not properly take knowledge, yet if they thought good to
have it read, he was not against the reading. And the Commons were so
well satisfied with this concession, that no further proceedings were
had; and the petition, says the journal, was at length, with general
liking, agreed to sleep. It contained some strong remonstrances against
ecclesiastical abuses, and in favour of the deprived and silenced
puritans, but such as the house had often before in various modes
brought forward.[513]
The ministry betrayed, in a still more pointed manner, their jealousy of
any interference on the part of the Commons with the conduct of public
affairs in a business of a different nature. The pacification concluded
with Spain in 1604, very much against the general wish,[514] had neither
removed all grounds of dispute between the governments, nor allayed the
dislike of the nations. Spain advanced in that age the most preposterous
claims to an exclusive navigation beyond the tropic, and to the sole
possession of the American continent; while the English merchants,
mindful of the lucrative adventures of the queen's reign, could not be
restrained from trespassing on the rich harvest of the Indies by
contraband and sometimes piratical voyages. These conflicting interests
led of course to mutual complaints of maritime tyranny and fraud;
neither likely to be ill-founded, where the one party was as much
distinguished for the despotic exercise of vast power, as the other by
boldness and cupidity. It was the prevailing bias of the king's temper
to keep on friendly terms with Spain, or rather to court her with
undisguised and impolitic partiality.[515] But this so much thwarted the
prejudices of his subjects that no part perhaps of his administration
had such a disadvantageous effect on his popularity. The merchants
presented to the Commons, in this session of 1607, a petition upon the
grievances they sustained from Spain, entering into such a detail of
alleged cruelties as was likely to exasperate that assembly. Nothing
however was done for a considerable time, when after receiving the
report of a committee on the subject, the house prayed a conference with
the Lords. They, who acted in this and the preceding session as the mere
agents of government, intimated in their reply, that they thought it an
unusual matter for the Commons to enter upon, and took time to consider
about a conference. After some delay this was granted, and Sir Francis
Bacon reported its result to the lower house. The Earl of Salisbury
managed the conference on the part of the Lords. The tenor of his
speech, as reported by Bacon, is very remarkable. After discussing the
merits of the petition, and considerably extenuating the wrongs imputed
to Spain, he adverted to the circumstance of its being presented to the
Commons. The Crown of England was invested, he said, with an absolute
power of peace and war; and inferred, from a series of precedents which
he vouched, that petitions made in parliament, intermeddling with such
matters, had gained little success; that great inconveniences must
follow from the public debate of a king's designs, which, if they take
wind, must be frustrated; and that if parliaments have ever been made
acquainted with matter of peace or war in a general way, it was either
when the king and council conceived that it was material to have some
declaration of the zeal and affection of the people, or else when they
needed money for the charge of a war, in which case they should be sure
enough to hear of it; that the Lords would make a good construction of
the Commons' desire, that it sprang from a forwardness to assist his
majesty's future resolutions, rather than a determination to do that
wrong to his supreme power which haply might appear to those who were
prone to draw evil inferences from their proceedings. The Earl of
Northampton, who also bore a part in this conference, gave as one reason
among others, why the Lords could not concur in forwarding the petition
to the Crown, that the composition of the House of Commons was in its
first foundation intended merely to be of those that have their
residence and vocation in the places for which they serve, and therefore
to have a private and local wisdom according to that compass, and so not
fit to examine or determine secrets of state which depend upon such
variety of circumstances; and although he acknowledged that there were
divers gentlemen in the house of good capacity and insight into matters
of state, yet that was the accident of the person, and not the
intention of the place; and things were to be taken in the institution,
and not in the practice. The Commons seemed to have acquiesced in this
rather contemptuous treatment. Several precedents indeed might have been
opposed to those of the Earl of Salisbury, wherein the Commons,
especially under Richard II. and Henry VI., had assumed a right of
advising on matters of peace and war. But the more recent usage of the
constitution did not warrant such an interference. It was however rather
a bold assertion, that they were not the proper channel through which
public grievances, or those of so large a portion of the community as
the merchants, ought to be represented to the throne.[516]
_Impositions on merchandise without consent of parliament._--During the
interval of two years and a half that elapsed before the commencement of
the next session, a decision had occurred in the court of exchequer,
which threatened the entire overthrow of our constitution. It had always
been deemed the indispensable characteristic of a limited monarchy,
however irregular and inconsistent might be the exercise of some
prerogatives, that no money could be raised from the subject without the
consent of the estates. This essential principle was settled in England,
after much contention, by the statute entitled Confirmatio Chartarum, in
the 25th year of Edward I. More comprehensive and specific in its
expression than the Great Charter of John, it abolishes all "aids,
tasks, and prises, unless by the common assent of the realm, and for the
common profit thereof, saving the ancient aids and prises due and
accustomed;" the king explicitly renouncing the custom he had lately set
on wool. Thus the letter of the statute and the history of the times
conspire to prove, that impositions on merchandise at the ports, to
which alone the word prises was applicable, could no more be levied by
the royal prerogative after its enactment, than internal taxes upon
landed or movable property, known in that age by the appellations of
aids and tallages. But as the former could be assessed with great ease,
and with no risk of immediate resistance, and especially as certain
ancient customs were preserved by the statute,[517] so that a train of
fiscal officers, and a scheme of regulations and restraints upon the
export and import of goods became necessary, it was long before the
sovereigns of this kingdom could be induced constantly to respect this
part of the law. Hence several remonstrances from the Commons under
Edward III. against the maletolts or unjust exactions upon wool, by
which, if they did not obtain more than a promise of effectual redress,
they kept up their claim, and perpetuated the recognition of its
justice, for the sake of posterity. They became powerful enough to
enforce it under Richard II., in whose time there is little clear
evidence of illegal impositions; and from the accession of the house of
Lancaster it is undeniable that they ceased altogether. The grant of
tonnage and poundage for the king's life, which from the time of Henry
V. was made in the first parliament of every reign, might perhaps be
considered as a tacit compensation to the Crown for its abandonment of
these irregular extortions.
Henry VII., the most rapacious, and Henry VIII., the most despotic, of
English monarchs, did not presume to violate this acknowledged right.
The first who had again recourse to this means of enhancing the revenue
was Mary, who, in the year 1557, set a duty upon cloths exported beyond
seas, and afterwards another on the importation of French wines. The
former of those was probably defended by arguing, that there was already
a duty on wool; and if cloth, which was wool manufactured, could pass
free, there would be a fraud on the revenue. The merchants however did
not acquiesce in this arbitrary imposition, and as soon as Elizabeth's
accession gave hopes of a restoration of English government, they
petitioned to be released from this burthen. The question appears, by a
memorandum in Dyer's Reports, to have been extra-judicially referred to
the judges, unless it were rather as assistants to the privy council
that their opinion was demanded. This entry concludes abruptly, without
any determination of the judges.[518] But we may presume, that if any
such had been given in favour of the Crown, it would have been made
public. And that the majority of the bench would not have favoured this
claim of the Crown, we may strongly presume from their doctrine in a
case of the same description, wherein they held the assessment of treble
custom on aliens for violation of letters patent to be absolutely
against the law.[519] The administration, however, would not release
this duty, which continued to be paid under Elizabeth. She also imposed
one upon sweet wines. We read of no complaint in parliament against this
novel taxation; but it is alluded to by Bacon in one of his tracts
during the queen's reign, as a grievance alleged by her enemies. He
defends it, as laid only on a foreign merchandise, and a delicacy which
might be forborne.[520] But considering Elizabeth's unwillingness to
require subsidies from the common, and the rapid increase of foreign
traffic during her reign, it might be asked why she did not extend these
duties to other commodities, and secure to herself no trifling annual
revenue. What answer can be given, except that, aware how little any
unparliamentary levying of money could be supported by law or usage, her
ministers shunned to excite attention to these innovations which wanted
hitherto the stamp of time to give them prescriptive validity?[521]
James had imposed a duty of five shillings per hundredweight on
currants, over and above that of two shillings and sixpence, which was
granted by the statute of tonnage and poundage.[522] Bates, a Turkey
merchant, having refused payment, an information was exhibited against
him in the exchequer. Judgment was soon given for the Crown. The courts
of justice, it is hardly necessary to say, did not consist of men
conscientiously impartial between the king and the subject; some corrupt
with hope of promotion, many more fearful of removal, or awe-struck by
the frowns of power. The speeches of Chief Baron Fleming, and of Baron
Clark, the only two that are preserved in Lane's Reports, contain
propositions still worse than their decision, and wholly subversive of
all liberty. "The king's power," it was said, "is double--ordinary and
absolute; and these have several laws and ends. That of the ordinary is
for the profit of particular subjects, exercised in ordinary courts, and
called common law, which cannot be changed in substance without
parliament. The king's absolute power is applied to no particular
person's benefit, but to the general safety; and this is not directed by
the rules of common law, but more properly termed policy and government,
varying according to his wisdom for the common good; and all things done
within those rules are lawful. The matter in question is matter of
state, to be ruled according to policy by the king's extraordinary
power. All customs (duties so called) are the effects of foreign
commerce; but all affairs of commerce and all treaties with foreign
nations belong to the king's absolute power; he therefore who has power
over the cause, must have it also over the effect. The seaports are the
king's gates, which he may open and shut to whom he pleases." The
ancient customs on wine and wool are asserted to have originated in the
king's absolute power, and not in a grant of parliament; a point,
whether true or not, of no great importance, if it were acknowledged,
that many statutes had subsequently controlled this prerogative. But
these judges impugned the authority of statutes derogatory to their
idol. That of 45 E. 3, c. 4, that no new imposition should be laid on
wool or leather, one of them maintains, did not bind the king's
successors; for the right to impose such duties was a principal part of
the Crown of England, which the king could not diminish. They extolled
the king's grace in permitting the matter to be argued, commenting at
the same time on the insolence shown in disputing so undeniable a claim.
Nor could any judges be more peremptory in resisting an attempt to
overthrow the most established precedents, than were these barons of
King James's exchequer, in giving away those fundamental liberties in
which every Englishman was inherited.[523]
_Remonstrances against impositions in session of 1610._--The immediate
consequence of this decision was a book of rates, published in July
1608, under the authority of the great seal, imposing heavy duties upon
almost all merchandise.[524] But the judgment of the court of exchequer
did not satisfy men jealous of the Crown's encroachments. The imposition
on currants had been already noticed as a grievance by the House of
Commons in 1606. But the king answered that the question was in a course
for legal determination; and the Commons themselves, which is worthy of
remark, do not appear to have entertained any clear persuasion that the
impost was contrary to law.[525] In the session, however, which began in
February 1610, they had acquired new light by sifting the legal
authorities, and instead of submitting their opinions to the courts of
law, which were in truth little worthy of such deference, were the more
provoked to remonstrate against the novel usurpation those servile men
had endeavoured to prop up. Lawyers, as learned probably as most of the
judges, were not wanting in their ranks. The illegality of impositions
was shown in two elaborate speeches by Hakewill and Yelverton.[526] And
the country gentlemen, who, though less deeply versed in precedents, had
too good sense not to discern that the next step would be to levy taxes
on their lands, were delighted to find that there had been an old
English constitution not yet abrogated, which would bear them out in
their opposition. When the king therefore had intimated by a message,
and afterwards in a speech, his command not to enter on the subject,
couched in that arrogant tone of despotism which this absurd prince
affected,[527] they presented a strong remonstrance against this
inhibition; claiming "as an ancient, general, and undoubted right of
parliament to debate freely all matters which do probably concern the
subject; which freedom of debate being once foreclosed, the essence of
the liberty of parliament is withal dissolved. For the judgment given by
the exchequer, they take not on them to review it, but desire to know
the reasons whereon it was grounded; especially as it was generally
apprehended that the reasons of that judgment extended much farther,
even to the utter ruin of the ancient liberty of this kingdom, and of
the subjects' right of property in their lands and goods."[528] "The
policy and constitution of this your kingdom (they say) appropriates
unto the kings of this realm, with the assent of the parliament, as well
the sovereign power of making laws, as that of taxing, or imposing upon
the subjects' goods or merchandises, as may not, without their consents,
be altered or changed. This is the cause that the people of this
kingdom, as they ever showed themselves faithful and loving to their
kings, and ready to aid them, in all their just occasions, with
voluntary contributions; so have they been ever careful to preserve
their own liberties and rights, when anything hath been done to
prejudice or impeach the same. And therefore when their princes,
occasioned either by their wars, or their over-great bounty, or by any
other necessity, have without consent of parliament set impositions,
either within the land, or upon commodities either exported or imported
by the merchants, they have, in open parliament, complained of it, in
that it was done without their consents: and thereupon never failed to
obtain a speedy and full redress, without any claim made by the kings,
of any power or prerogative in that point. And though the law of
property be original, and carefully preserved by the common laws of
this realm, which are as ancient as the kingdom itself; yet these famous
kings, for the better contentment and assurance of their loving
subjects, agreed, that this old fundamental right should be further
declared and established by act of parliament. Wherein it is provided,
that no such charges should ever be laid upon the people, without their
common consent, as may appear by sundry records of former times. We,
therefore, your majesty's most humble Commons assembled in parliament,
following the example of this worthy case of our ancestors, and out of a
duty of those for whom we serve, finding that your majesty, without
advice or consent of parliament, hath lately, in time of peace, set both
greater impositions, and far more in number, than any your noble
ancestors did ever in time of war, have, with all humility, presumed to
present this most just and necessary petition unto your majesty, that
all impositions set without the assent of parliament may be quite
abolished and taken away; and that your majesty, in imitation likewise
of your noble progenitors, will be pleased, that a law be made during
this session of parliament, to declare that all impositions set, or to
be set upon your people, their goods or merchandises, save only by
common assent in parliament, are and shall be void."[529] They proceeded
accordingly, after a pretty long time occupied in searching for
precedents, to pass a bill taking away impositions; which, as might be
anticipated, did not obtain the concurrence of the upper house.
_Doctrine of king's absolute power inculcated by clergy._--The Commons
had reason for their apprehensions. This doctrine of the king's absolute
power beyond the law had become current with all who sought his favour,
and especially with the high church party. The convocation had in 1606
drawn up a set of canons, denouncing as erroneous a number of tenets
hostile in their opinion to royal government. These canons, though never
authentically published till a later age, could not have been secret.
They consist of a series of propositions or paragraphs, to each of which
an anathema of the opposite error is attached; deducing the origin of
government from the patriarchal regimen of families, to the exclusion of
any popular choice. In those golden days the functions both of king and
priest were, as they term it, "the prerogatives of birthright;" till the
wickedness of mankind brought in usurpation, and so confused the pure
stream of the fountain with its muddy runnels, that we must now look to
prescription for that right which we cannot assign to primogeniture.
Passive obedience in all cases without exception to the established
monarch is inculcated.[530]
It is not impossible that a man might adopt this theory of the original
of government, unsatisfactory as it must appear on reflection, without
deeming it incompatible with our mixed and limited monarchy. But its
tendency was evidently in a contrary direction. The king's power was of
God, that of the parliament only of man, obtained perhaps by rebellion;
but out of rebellion what right could spring? Or were it even by
voluntary concession, could a king alienate a divine gift, and infringe
the order of Providence? Could his grants, if not in themselves null,
avail against his posterity, heirs like himself under the great
feoffment of creation? These consequences were at least plausible; and
some would be found to draw them. And indeed if they were never
explicitly laid down, the mere difference of respect with which mankind
could not but contemplate a divine and human, a primitive or paramount,
and a derivative authority, would operate as a prodigious advantage in
favour of the Crown.
The real aim of the clergy in thus enormously enhancing the pretensions
of the Crown was to gain its sanction and support for their own. Schemes
of ecclesiastical jurisdiction, hardly less extensive than had warmed
the imagination of Becket, now floated before the eyes of his successor
Bancroft. He had fallen indeed upon evil days, and perfect independence
on the temporal magistrate could no longer be attempted; but he acted
upon the refined policy of making the royal supremacy over the church,
which he was obliged to acknowledge, and professed to exaggerate, the
very instrument of its independence upon the law. The favourite object
of the bishops in this age was to render their ecclesiastical
jurisdiction, no part of which had been curtailed in our hasty
reformation, as unrestrained as possible by the courts of law. These
had been wont, down from the reign of Henry II., to grant writs of
prohibition, whenever the spiritual courts transgressed their proper
limits; to the great benefit of the subject, who would otherwise have
lost his birthright of the common law, and been exposed to the
defective, not to say iniquitous and corrupt, procedure of the
ecclesiastical tribunals. But the civilians, supported by the prelates,
loudly complained of these prohibitions, which seem to have been much
more frequent in the latter years of Elizabeth and the reign of James,
than in any other period. Bancroft accordingly presented to the
star-chamber, in 1605, a series of petitions in the name of the clergy,
which Lord Coke has denominated Articuli Cleri, by analogy to some
similar representations of that order under Edward II.[531] In these it
was complained that the courts of law interfered by continual
prohibitions with a jurisdiction as established and as much derived from
the king as their own, either in cases which were clearly within that
jurisdiction's limits, or on the slightest suggestion of some matter
belonging to the temporal court. It was hinted that the whole course of
granting prohibitions was an encroachment of the king's bench and common
pleas, and that they could regularly issue only out of chancery. To each
of these articles of complaint, extending to twenty-five, the judges
made separate answers, in a rough, and, some might say, a rude style,
but pointed and much to the purpose; vindicating in every instance their
right to take cognisance of every collateral matter springing out of an
ecclesiastical suit, and repelling the attack upon their power to issue
prohibitions, as a strange presumption. Nothing was done, nor, thanks to
the firmness of the judges, could be done, by the council in this
respect. For the clergy had begun by advancing that the king's authority
was sufficient to reform what was amiss in any of his own courts, all
jurisdiction spiritual and temporal being annexed to his Crown. But it
was positively and repeatedly denied in reply, that anything less than
an act of parliament could alter the course of justice established by
law. This effectually silenced the archbishop, who knew how little he
had to hope from the Commons. By the pretensions made for the church in
this affair, he exasperated the judges, who had been quite sufficiently
disposed to second all rigorous measures against the puritan ministers,
and aggravated that jealousy of the ecclesiastical courts which the
common lawyers had long entertained.
_Cowell's Interpreter._--An opportunity was soon given to those who
disliked the civilians, that is, not only to the common lawyers, but to
all the patriots and puritans in England, by an imprudent publication of
a Doctor Cowell. This man, in a law dictionary dedicated to Bancroft,
had thought fit to insert passages of a tenor conformable to the new
creed of the king's absolute or arbitrary power. Under the title King,
it is said:--"He is above the law by his absolute power, and though for
the better and equal course in making laws he do admit the three estates
unto council, yet this in divers learned men's opinion is not of
constraint, but of his own benignity, or by reason of the promise made
upon oath at the time of his coronation. And though at his coronation he
take an oath not to alter the laws of the land, yet this oath
notwithstanding, he may alter or suspend any particular law that seemeth
hurtful to the public estate. Thus much in short, because I have heard
some to be of opinion that the laws are above the king." And in treating
of the Parliament, Cowell observes: "Of these two one must be true,
either that the king is above the parliament, that is, the positive laws
of his kingdom, or else that he is not an absolute king. And therefore
though it be a merciful policy and also a politic mercy, not alterable
without great peril, to make laws by the consent of the whole realm,
because so no part shall have cause to complain of a partiality, yet
simply to bind the prince to or by these laws were repugnant to the
nature and constitution of an absolute monarchy." It is said again,
under the title Prerogative, that "the king, by the custom of this
kingdom, maketh no laws without the consent of the three estates, though
he may quash any law concluded of by them;" and that he "holds it
incontrollable, that the king of England is an absolute king."[532]
Such monstrous positions from the mouth of a man of learning and
conspicuous in his profession, who was surmised to have been instigated
as well as patronised by the archbishop, and of whose book the king was
reported to have spoken in terms of eulogy, gave very just scandal to
the House of Commons. They solicited and obtained a conference with the
lords, which the attorney-general, Sir Francis Bacon, managed on the
part of the lower house; a remarkable proof of his adroitness and
pliancy. James now discovered that it was necessary to sacrifice this
too unguarded advocate of prerogative: Cowell's book was suppressed by
proclamation, for which the Commons returned thanks, with great joy at
their victory.[533]
It is the evident policy of every administration, in dealing with the
House of Commons, to humour them in everything that touches their pride
and tenaciousness of privilege, never attempting to protect any one who
incurs their displeasure by want of respect. This seems to have been
understood by the Earl of Salisbury, the first English minister who,
having long sat in the lower house, had become skilful in those arts of
management which his successors have always reckoned so essential a part
of their mystery. He wanted a considerable sum of money to defray the
king's debts, which, on his coming into the office of lord treasurer
after Lord Buckhurst's death, he had found to amount to £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.[534]
_Renewed complaints of the Commons._--This offer on the part of
government seemed to make an opening for a prosperous adjustment of the
differences which had subsisted ever since the king's accession. The
Commons accordingly, postponing the business of a subsidy, to which the
courtiers wished to give priority, brought forward a host of their
accustomed grievances in ecclesiastical and temporal concerns. The most
essential was undoubtedly that of impositions, which they sent up a
bill to the Lords, as above mentioned, to take away. They next
complained of the ecclesiastical high commission court, which took upon
itself to fine and imprison, powers not belonging to their jurisdiction,
and passed sentences without appeal, interfering frequently with civil
rights, and in all its procedure neglecting the rules and precautions of
the common law. They dwelt on the late abuse of proclamations assuming
the character of laws. "Amongst many other points of happiness and
freedom," it is said, "which your majesty's subjects of this kingdom
have enjoyed under your royal progenitors, kings and queens of this
realm, there is none which they have accounted more dear and precious
than this, to be guided and governed by the certain rule of the law,
which giveth both to the head and members that which of right belongeth
to them, and not by any uncertain or arbitrary form of government,
which, as it hath proceeded from the original good constitution and
temperature of this estate, so hath it been the principal means of
upholding the same, in such sort as that their kings have been just,
beloved, happy, and glorious, and the kingdom itself peaceable,
flourishing, and durable so many ages. And the effect, as well of the
contentment that the subjects of this kingdom have taken in this form of
government, as also of the love, respect, and duty, which they have by
reason of the same rendered unto their princes, may appear in this, that
they have, as occasion hath required, yielded more extraordinary and
voluntary contribution to assist their kings, than the subjects of any
other known kingdom whatsoever. Out of this root hath grown the
indubitable right of the people of this kingdom, not to be made subject
to any punishment that shall extend to their lives, lands, bodies, or
goods, other than such as are ordained by the common laws of this land,
or the statutes made by their common consent in parliament.
Nevertheless, it is apparent, both that proclamations have been of late
years much more frequent than heretofore, and that they are extended,
not only to the liberty, but also to the goods, inheritances, and
livelihood of men; some of them tending to alter some points of the law,
and make a new; other some made, shortly after a session of parliament,
for matter directly rejected in the same session; other appointing
punishments to be inflicted before lawful trial and conviction; some
containing penalties in form of penal statutes; some referring the
punishment of offenders to courts of arbitrary discretion, which have
laid heavy and grievous censures upon the delinquents; some, as the
proclamation for starch, accompanied with letters commanding enquiry to
be made against the transgressors at the quarter-sessions; and some
vouching former proclamations to countenance and warrant the later, as
by a catalogue here underwritten more particularly appeareth. By reason
whereof there is a general fear conceived and spread amongst your
majesty's people, that proclamations will, by degrees, grow up, and
increase to the strength and nature of laws; whereby not only that
ancient happiness, freedom, will be much blemished (if not quite taken
away) which their ancestors have so long enjoyed; but the same may also
(in process of time) bring a new form of arbitrary government upon the
realm: and this their fear is the more increased by occasion of certain
books lately published, which ascribe a greater power to proclamations
than heretofore had been conceived to belong unto them; as also of the
care taken to reduce all the proclamations made since your majesty's
reign into one volume, and to print them in such form as acts of
parliament formerly have been, and still are used to be, which seemeth
to imply a purpose to give them more reputation and more establishment
than heretofore they have had."[535]
They proceed, after a list of these illegal proclamations, to enumerate
other grievances, such as the delay of courts of law in granting writs
of prohibition and habeas corpus, the jurisdiction of the council of
Wales over the four bordering shires of Gloucester, Worcester, Hereford,
and Salop,[536] some patents of monopolies, and a tax under the name of
a licence recently set upon victuallers. The king answered these
remonstrances with civility, making, as usual, no concession with
respect to the ecclesiastical commission, and evading some of their
other requests; but promising that his proclamations should go no
farther than was warranted by law, and that the royal licences to
victuallers should be revoked.
_Negotiation for giving up the feudal revenue._--It appears that the
Commons, deeming these enumerated abuses contrary to law, were unwilling
to chaffer with the Crown for the restitution of their actual rights.
There were, however, parts of the prerogative which they could not
dispute, though galled by the burthen; the incidents of feudal tenure,
and purveyance. A negotiation was accordingly commenced and carried on
for some time with the court, for abolishing both these, or at least the
former. The king, though he refused to part with tenure by knight's
service, which he thought connected with the honour of the monarchy, was
induced, with some real or pretended reluctance, to give up its
lucrative incidents, relief, primer seisin, and wardship, as well as the
right of purveyance. But material difficulties recurred in the
prosecution of this treaty. Some were apprehensive that the validity of
a statute cutting off such ancient branches of prerogative might
hereafter be called in question; especially if the root from which they
sprung, tenure in capite, should still remain. The king's demands, too,
seemed exorbitant. He asked £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 something
uncontrollable by statute, and by what means so great an imposition
should be levied; but the consideration of these was reserved for the
ensuing session, which was to take place in October.[537] They were
prorogued in July till that month, having previously granted a subsidy
for the king's immediate exigencies. On their meeting again, the Lords
began the business by requesting a conference with the other house about
the proposed contract. But it appeared that the Commons had lost their
disposition to comply. Time had been given them to calculate the
disproportion of the terms, and the perpetual burthen that lands held by
knight's service must endure. They had reflected too on the king's
prodigal humour, the rapacity of the Scots in his service, and the
probability that this additional revenue would be wasted without
sustaining the national honour, or preventing future applications for
money. They saw that after all the specious promises by which they had
been led on, no redress was to be expected as to those grievances they
had most at heart; that the ecclesiastical courts would not be suffered
to lose a jot of their jurisdiction, that illegal customs were still to
be levied at the out-ports, that proclamations were still to be enforced
like acts of parliament. Great coldness accordingly was displayed in
their proceedings; and in a short time, this distinguished parliament,
after sitting nearly seven years, was dissolved by proclamation.[538]
_Dissolution of parliament--Character of James._--It was now perhaps too
late for the king, by any reform or concession, to regain that public
esteem which he had forfeited. Deceived by an overweening opinion of his
own learning, which was not inconsiderable, of his general abilities
which were far from contemptible, and of his capacity for government,
which was very small, and confirmed in this delusion by the disgraceful
flattery of his courtiers and bishops, he had wholly overlooked the
real difficulties of his position; as a foreigner, rather distantly
connected with the royal stock, and as a native of a hostile and hateful
kingdom, come to succeed the most renowned of sovereigns, and to grasp a
sceptre which deep policy and long experience had taught her admirably
to wield.[539] The people were proud of martial glory, he spoke only of
the blessing of the peacemakers; they abhorred the court of Spain, he
sought its friendship; they asked indulgence for scrupulous consciences,
he would bear no deviation from conformity; they writhed under the yoke
of the bishops, whose power he thought necessary to his own; they were
animated by a persecuting temper towards the catholics, he was averse to
extreme rigour; they had been used to the utmost frugality in dispensing
the public treasure, he squandered it on unworthy favourites; they had
seen at least exterior decency of morals prevail in the queen's court,
they now heard only of its dissoluteness and extravagance;[540] they had
imbibed an exclusive fondness for the common law as the source of their
liberties and privileges; his churchmen and courtiers, but none more
than himself, talked of absolute power and the imprescriptible rights of
monarchy.[541]
_Death of Lord Salisbury._--James lost in 1611 his son Prince Henry, and
in 1612 the lord treasurer Salisbury. He showed little regret for the
former, whose high spirit and great popularity afforded a mortifying
contrast; especially as the young prince had not taken sufficient pains
to disguise his contempt for his father.[542] Salisbury was a very able
man, to whom perhaps his contemporaries did some injustice. The
ministers of weak and wilful monarchs are made answerable for the
mischiefs they are compelled to suffer, and gain no credit for those
which they prevent. Cecil had made personal enemies of those who had
loved Essex or admired Raleigh, as well as those who looked invidiously
on his elevation. It was believed that the desire shown by the House of
Commons to abolish the feudal wardships, proceeded in a great measure
from the circumstance that this obnoxious minister was master of the
court of wards; an office both lucrative and productive of much
influence. But he came into the scheme of abolishing it with a readiness
that did him credit. His chief praise, however, was his management of
continental relations. The only minister of James's cabinet who had been
trained in the councils of Elizabeth, he retained some of her jealousy
of Spain, and of her regard for the protestant interests. The court of
Madrid, aware both of the king's pusillanimity and of his favourable
dispositions, affected a tone in the conferences held in 1604, about a
treaty of peace, which Elizabeth would have resented in a very different
manner.[543] On this occasion, he not only deserted the United
Provinces, but gave hopes to Spain that he might, if they persevered in
their obstinacy, take part against them. Nor have I any doubt that his
blind attachment to that power would have precipitated him into a
ruinous connection, if Cecil's wisdom had not influenced his councils.
During this minister's life, our foreign politics seem to have been
conducted with as much firmness and prudence as his master's temper
would allow; the mediation of England was of considerable service in
bringing about the great truce of twelve years between Spain and Holland
in 1609; and in the dispute which sprang up soon afterwards concerning
the succession to the duchies of Cleves and Juliers, a dispute which
threatened to mingle in arms the catholic and protestant parties
throughout Europe,[544] our councils were full of a vigour and
promptitude unusual in this reign; nor did anything but the
assassination of Henry IV. prevent the appearance of an English army in
the Netherlands. It must at least be confessed that the king's affairs,
both at home and abroad, were far worse conducted after the death of the
Earl of Salisbury than before.[545]
_Lord Coke's alienation from the court._--The administration found an
important disadvantage, about this time, in a sort of defection of Sir
Edward Coke (more usually called Lord Coke), chief justice of the king's
bench, from the side of prerogative. He was a man of strong, though
narrow, intellect; confessedly the greatest master of English law that
had ever appeared; but proud and overbearing, a flatterer and tool of
the court till he had obtained his ends, and odious to the nation for
the brutal manner in which, as attorney-general, he had behaved towards
Sir Walter Raleigh on his trial. In raising him to the post of chief
justice, the council had of course relied on finding his unfathomable
stores of precedent subservient to their purposes. But soon after his
promotion, Coke, from various causes, began to steer a more independent
course. He was little formed to endure a competitor in his own
profession, and lived on ill terms both with the lord chancellor
Egerton, and with the attorney-general, Sir Francis Bacon. The latter
had long been his rival and enemy. Discountenanced by Elizabeth, who,
against the importunity of Essex, had raised Coke over his head, that
great and aspiring genius was now high in the king's favour. The chief
justice affected to look down on one as inferior to him in knowledge of
our municipal law, as he was superior in all other learning and in all
the philosophy of jurisprudence. And the mutual enmity of these
illustrious men never ceased till each in his turn satiated his revenge
by the other's fall. Coke was also much offended by the attempts of the
bishops to emancipate their ecclesiastical courts from the civil
jurisdiction. I have already mentioned the peremptory tone in which he
repelled Bancroft's Articuli Cleri. But as the king and some of the
council rather favoured these episcopal pretensions, they were troubled
by what they deemed his obstinacy, and discovered more and more that
they had to deal with a most impracticable spirit.
It would be invidious to exclude from the motives that altered Lord
Coke's behaviour in matters of prerogative his real affection for the
laws of the land, which novel systems, broached by the churchmen and
civilians, threatened to subvert.[546] In Bates's case, which seems to
have come in some shape extra-judicially before him, he had delivered an
opinion in favour of the king's right to impose at the out-ports; but so
cautiously guarded, and bottomed on such different grounds from those
taken by the barons of the exchequer, that it could not be cited in
favour of any fresh encroachments.[547] He now performed a great service
to his country. The practice of issuing proclamations, by way of
temporary regulation indeed, but interfering with the subject's liberty,
in cases unprovided for by parliament, had grown still more usual than
under Elizabeth. Coke was sent for to attend some of the council, who
might perhaps have reason to conjecture his sentiments; and it was
demanded whether the king, by his proclamation, might prohibit new
buildings about London, and whether he might prohibit the making of
starch from wheat. This was during the session of parliament in 1610,
and with a view to what answer the king should make to the Commons'
remonstrance against these proclamations. Coke replied, that it was a
matter of great importance, on which he would confer with his brethren.
"The chancellor said, that every precedent had first a commencement, and
he would advise the judges to maintain the power and prerogative of the
king; and in cases wherein there is no authority and precedent, to leave
it to the king to order in it according to his wisdom and for the good
of his subjects, or otherwise the king would be no more than the Duke of
Venice; and that the king was so much restrained in his prerogative,
that it was to be feared the bonds would be broken. And the lord
privy-seal (Northampton) said, that the physician was not always bound
to a precedent, but to apply his medicine according to the quality of
the disease; and all concluded that it should be necessary at that time
to confirm the king's prerogative, with our opinions, although that
there were not any former precedent or authority in law; for every
precedent ought to have a commencement. To which I answered, that true
it is that every precedent ought to have a commencement; but when
authority and precedent is wanting, there is need of great consideration
before that anything of novelty shall be established, and to provide
that this be not against the law of the land; for I said that the king
cannot change any part of the common law, nor create any offence by his
proclamation which was not an offence before, without parliament. But at
this time I only desired to have a time of consultation and conference
with my brothers." This was agreed to by the council, and three judges,
besides Coke, appointed to consider it. They resolved that the king, by
his proclamation, cannot create any offence which was not one before;
for then he might alter the law of the land in a high point; for if he
may create an offence where none is, upon that ensues fine and
imprisonment. It was also resolved that the king hath no prerogative but
what the law of the land allows him. But the king, for prevention of
offences, may by proclamation admonish all his subjects that they keep
the laws and do not offend them, upon punishment to be inflicted by the
law; and the neglect of such proclamation, Coke says, aggravates the
offence. Lastly, they resolved that if an offence be not punishable in
the star-chamber, the prohibition of it by proclamation cannot make it
so. After this resolution, the report goes on to remark, no proclamation
imposing fine and imprisonment was made.[548]
_Means resorted to in order to avoid the meeting of parliament._--By the
abrupt dissolution of parliament James was left nearly in the same
necessity as before; their subsidy, being by no means sufficient to
defray his expenses, far less to discharge his debts. He had frequently
betaken himself to the usual resource of applying to private subjects,
especially rich merchants, for loans of money. These loans, which bore
no interest, and for the repayment of which there was no security,
disturbed the prudent citizens; especially as the council used to
solicit them with a degree of importunity at least bordering on
compulsion. The House of Commons had in the last session requested that
no one should be bound to lend money to the king against his will. The
king had answered that he allowed not of any precedents from the time of
usurping or decaying princes, or people too bold and wanton; that he
desired not to govern in that commonwealth where the people be assured
of everything and hope for nothing, nor would he leave to posterity such
a mark of weakness on his reign; yet, in the matter of loans, he would
refuse no reasonable excuse.[549] Forced loans or benevolences were
directly prohibited by an act of Richard III., whose laws, however the
court might sometimes throw a slur upon his usurpation, had always been
in the statute-book. After the dissolution of 1610, James attempted as
usual to obtain loans; but the merchants, grown bolder with the spirit
of the times, refused him the accommodation.[550] He had recourse to
another method of raising money, unprecedented, I believe, before his
reign, though long practised in France, the sale of honours. He sold
several peerages for considerable sums, and created a new order of
hereditary knights, called baronets, who paid £1,000 each for their
patents.[551]
Such resources, however, being evidently insufficient and temporary, it
was almost indispensable to try once more the temper of a parliament.
This was strongly urged by Bacon, whose fertility of invention rendered
him constitutionally sanguine of success. He submitted to the king that
there were expedients for more judiciously managing a House of Commons,
than Cecil, upon whom he was too willing to throw blame, had done with
the last; that some of those who had been most forward in opposing were
now won over; such as Neville, Yelverton, Hyde, Crew, Dudley Digges;
that much might be done by forethought towards filling the house with
well-affected persons, winning or blinding the lawyers, whom he calls
the 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 of the king's
prerogative, such as might with smallest injury be conceded, lest they
should be first demanded, and in order to save more important
points.[552] This advice was seconded by Sir Henry Neville, an ambitious
man, who had narrowly escaped in the queen's time for having tampered in
Essex's conspiracy, and had much promoted the opposition in the late
parliament, but was now seeking the post of secretary of state. He
advised the king, in a very sensible memorial, to consider what had been
demanded and what had been promised in the last session, granting the
more reasonable of the Commons' requests, and performing all his own
promises; to avoid any speech likely to excite irritation; and to seem
confident of the parliament's good affections, not waiting to be pressed
for what he meant to do.[553] Neville and others, who, like him,
professed to understand the temper of the Commons, and to facilitate the
king's dealings with them, were called _undertakers_.[554] This
circumstance, like several others in the present reign, is curious, as
it shows the rise of a systematic parliamentary influence, which was one
day to become the mainspring of government.
Neville, however, and his associates had deceived the courtiers with
promises they could not realise. It was resolved to announce certain
intended graces in the speech from the throne; that is, to declare the
king's readiness to pass bills that might remedy some grievances and
retrench a part of his prerogative. These proffered amendments of the
law, though eleven in number, failed altogether of giving the content
that had been fully expected. Except the repeal of a strange act of
Henry VIII., allowing the king to make such laws as he should think fit
for the principality of Wales without consent of parliament,[555] none
of them could perhaps be reckoned of any constitutional importance. In
all domanial and fiscal causes, and wherever the private interests of
the Crown stood in competition with those of a subject, the former
enjoyed enormous and superior advantages, whereof what is strictly
called its prerogative was principally composed. The terms of
prescription that bound other men's right, the rules of pleading and
procedure established for the sake of truth and justice, did not, in
general, oblige the king. It was not by doing away with a very few of
these invidious and oppressive distinctions, that the Crown could be
allowed to keep on foot still more momentous abuses.
_Parliament of 1614._--The Commons of 1614 accordingly went at once to
the characteristic grievance of this reign, the customs at the outports.
They had grown so confident in their cause by ransacking ancient
records, that an unanimous vote passed against the king's right of
imposition; not that there were no courtiers in the house, but the cry
was too obstreperous to be withstood.[556] They demanded a conference on
the subject with the Lords, who preserved a kind of mediating neutrality
throughout this reign.[557] In the course of their debate, Neyle, Bishop
of Lichfield, threw out some aspersion on the Commons. They were
immediately in a flame, and demanded reparation. This Neyle was a man of
indifferent character, and very unpopular from the share he had taken in
the Earl of Essex's divorce, and from his severity towards the puritans;
nor did the house fail to comment upon all his faults in their debate.
He had, however, the prudence to excuse himself ("with many tears," as
the Lords' Journals inform us), denying the most offensive words imputed
to him; and the affair went no farther.[558] This ill-humour of the
Commons disconcerted those who had relied on the undertakers. But as the
secret of these men had not been kept, their project considerably
aggravated the prevailing discontent.[559] The king had positively
denied in his first speech that there were any such undertakers; and
Bacon, then attorney-general, laughed at the chimerical notion, that
private men should undertake for all the Commons of England.[560] That
some persons however had obtained that name at court, and held out such
promises, is at present out of doubt; and indeed the king, forgetful of
his former denial, expressly confessed it on opening the session of
1621.
Amidst these heats little progress was made; and no one took up the
essential business of supply. The king at length sent a message,
requesting that a supply might be granted, with a threat of dissolving
parliament unless it were done. But the days of intimidation were gone
by. The house voted that they would first proceed with the business of
impositions, and postpone supply till their grievances should be
redressed.[561] Aware of the impossibility of conquering their
resolution, the king carried his measure into effect by a
dissolution.[562] They had sat about two months, and, what is perhaps
unprecedented in our history, had not passed a single bill. James
followed up this strong step by one still more vigorous. Several
members, who had distinguished themselves by warm language against the
government, were arrested after the dissolution, and kept for a short
time in custody; a manifest violation of that freedom of speech, without
which no assembly can be independent, and which is the stipulated
privilege of the House of Commons.[563]
_Benevolences._--It was now evident that James could never expect to be
on terms of harmony with a parliament, unless by surrendering
pretensions, which not only were in his eyes indispensable to the lustre
of his monarchy, but from which he derived an income that he had no
means of replacing. He went on accordingly for six years, supplying his
exigencies by such precarious sources as circumstances might furnish. He
restored the towns mortgaged by the Dutch to Elizabeth on payment of
2,700,000 florins, about one-third of the original debt. The enormous
fines imposed by the star-chamber, though seldom, I believe, enforced to
their utmost extent, must have considerably enriched the exchequer. It
is said by Carte that some Dutch merchants paid fines to the amount of
£133,000 for exporting gold coin.[564] But still greater profit was
hoped from the requisition of that more than half involuntary
contribution, miscalled a benevolence. It began by a subscription of the
nobility and principal persons about the court. Letters were sent
written to the sheriffs and magistrates, directing them to call on
people of ability. It had always been supposed doubtful whether the
statute of Richard III. abrogating "exactions, called benevolences,"
should extend to voluntary gifts at the solicitation of the Crown. The
language used in that act certainly implies that the pretended
benevolences of Edward's reign had been extorted against the subjects'
will; yet if positive violence were not employed, it seems difficult to
find a legal criterion by which to distinguish the effects of willing
loyalty from those of fear or shame. Lord Coke is said to have at first
declared that the king could not solicit a benevolence from his
subjects, but to have afterwards retracted his opinion and pronounced in
favour of its legality. To this second opinion he adheres in his
Reports.[565] While this business was pending, Mr. Oliver St. John wrote
a letter to the mayor of Marlborough, explaining his reasons for
declining to contribute, founded on the several statutes which he deemed
applicable, and on the impropriety of particular men opposing their
judgment, to the Commons in parliament, who had refused to grant any
subsidy. This argument, in itself exasperating, he followed up by
somewhat blunt observations on the king. His letter came under the
consideration of the star-chamber, where the offence having been
severely descanted upon by the attorney-general, Mr. St. John was
sentenced to a fine of £5000, and to imprisonment during pleasure.[566]
_Prosecution of Peacham._--Coke, though still much at the council-board,
was regarded with increasing dislike on account of his uncompromising
humour. This he had occasion to display in perhaps the worst and most
tyrannical act of King James's reign, the prosecution of one Peacham, a
minister in Somersetshire, for high treason. A sermon had been found in
this man's study (it does not appear what led to the search), never
preached, nor, if Judge Croke is right, intended to be preached,
containing such sharp censures upon the king, and invectives against the
government, as, had they been published, would have amounted to a
seditious libel. But common sense revolted at construing it into
treason, under the statute of Edward III., as a compassing of the king's
death. James, however, took it up with indecent eagerness. Peacham was
put to the rack, and examined upon various interrogatories, as it is
expressed by secretary Winwood, "before torture, in torture, between
torture, and after torture." Nothing could be drawn from him as to any
accomplices, nor any explanation of his design in writing the sermon;
which was probably but an intemperate effusion, so common among the
puritan clergy. It was necessary therefore to rely on this, as the overt
act of treason. Aware of the difficulties that attended this course,
the king directed Bacon previously to confer with the judges of the
king's bench, one by one, in order to secure their determination for the
Crown. Coke objected that "such particular, and as he called it,
auricular taking of opinions was not according to the custom of this
realm."[567] The other three judges having been tampered with, agreed to
answer such questions concerning the case as the king might direct to be
put to them; yielding to the sophism that every judge was bound by his
oath to give counsel to his majesty. The chief justice continued to
maintain his objection to this separate closeting of judges; yet,
finding himself abandoned by his colleagues, consented to give answers
in writing, which seem to have been merely evasive. Peacham was brought
to trial, and found guilty, but not executed, dying in prison a few
months after.[568]
_Dispute about the jurisdiction of the court of chancery._--It was not
long before the intrepid chief justice incurred again the council's
displeasure. This will require, for the sake of part of my readers, some
little previous explanation. The equitable jurisdiction, as it is
called, of the court of chancery appears to have been derived from that
extensive judicial power which, in early times, the king's ordinary
council had exercised. The chancellor, as one of the highest officers of
state, took a great share in the council's business; and when it was not
sitting, he had a court of his own, with jurisdiction in many important
matters, out of which process to compel appearance of parties might at
any time emanate. It is not unlikely therefore that redress, in matters
beyond the legal province of the chancellor, was occasionally given
through the paramount authority of this court. We find the council and
the chancery named together in many remonstrances of the Commons against
this interference with private rights, from the time of Richard II. to
that of Henry VI. It was probably in the former reign that the
chancellor began to establish systematically his peculiar restraining
jurisdiction. This originated in the practice of feoffments to uses, by
which the feoffee, who had legal seisin of the land, stood bound by
private engagement to suffer another, called the cestui que use, to
enjoy its use and possession. Such fiduciary estates were well known to
the Roman jurists, but inconsistent with the feudal genius of our law.
The courts of justice gave no redress, if the feoffee to uses violated
his trust by detaining the land. To remedy this, an ecclesiastical
chancellor devised the writ of subpoena, compelling him to answer upon
oath as to his trust. It was evidently necessary also to restrain him
from proceeding, as he might do, to obtain possession; and this gave
rise to injunctions, that is, prohibitions to sue at law, the violation
of which was punishable by imprisonment as a contempt of court. Other
instances of breach of trust occurred in personal contracts, and others
wherein, without any trust, there was a wrong committed beyond the
competence of the courts of law to redress; to all which the process of
subpoena was made applicable. This extension of a novel jurisdiction was
partly owing to a fundamental principle of our common law, that a
defendant cannot be examined, so that, if no witness or written
instrument could be produced to prove a demand, the plaintiff was wholly
debarred of justice; but in a still greater degree, to a strange
narrowness and scrupulosity of the judges, who, fearful of quitting the
letter of their precedents, even with the clearest analogies to guide
them, repelled so many just suits, and set up rules of so much hardship,
that men were thankful to embrace the relief held out by a tribunal
acting in a more rational spirit. This error the common lawyers began to
discover, in time to resume a great part of their jurisdiction in
matters of contract, which would otherwise have escaped from them. They
made too an apparently successful effort to recover their exclusive
authority over real property, by obtaining a statute for turning uses
into possession; that is, for annihilating the fictitious estate of the
feoffee to uses, and vesting the legal as well as equitable possession
in the cestui que use. But this victory, if I may use such an expression
(since it would have freed them, in a most important point, from the
chancellor's control), they threw away by one of those timid and narrow
constructions which had already turned so much to their prejudice; and
they permitted trust-estates, by the introduction of a few more words
into a conveyance, to maintain their ground, contra-distinguished from
the legal seisin, under the protection and guarantee, as before, of the
courts of equity.
The particular limits of this equitable jurisdiction were as yet
exceedingly indefinite. The chancellors were generally prone to extend
them; and being at the same time ministers of state in a government of
very arbitrary temper, regarded too little that course of precedent by
which the other judges held themselves too strictly bound. The cases
reckoned cognisable in chancery grew silently more and more numerous;
but with little overt opposition from the courts of law till the time of
Sir Edward Coke. That great master of the common law was inspired not
only with the jealousy of this irregular and encroaching jurisdiction
which all lawyers seem to have felt, but with a tenaciousness of his own
dignity, and a personal enmity towards Egerton who held the great seal.
It happened that an action was tried before him, the precise
circumstances of which do not appear, wherein the plaintiff lost the
verdict, in consequence of one of his witnesses being artfully kept
away. He had recourse to the court of chancery, filing a bill against
the defendant to make him answer upon oath, which he refused to do, and
was committed for contempt. Indictments were upon this preferred, at
Coke's instigation, against the parties who had filed the bill in
chancery, their counsel and solicitors, for suing in another court after
judgment obtained at law; which was alleged to be contrary to the
statute of 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.[569]
_Case of commendams._--The chief justice almost at the same time gave
another provocation, which exposed him more directly to the court's
resentment. A cause happened to be argued in the court of the king's
bench, wherein the validity of a particular grant of a benefice to a
bishop to be held in commendam, that is, along with his bishopric, came
into question; and the counsel at the bar, besides the special points of
the case, had disputed the king's general prerogative of making such a
grant. The king, on receiving information of this, signified to the
chief justice through the attorney-general, that he would not have the
court proceed to judgment till he had spoken with them. Coke requested
that similar letters might be written to the judges of all the courts.
This having been done, they assembled, and by a letter subscribed with
all their hands, certified his majesty, that they were bound by their
oaths not to regard any letters that might come to them contrary to law,
but to do the law notwithstanding; that they held with one consent the
attorney-general's letter to be contrary to law, and such as they could
not yield to, and that they had proceeded according to their oath to
argue the cause.
The king, who was then at Newmarket, returned answer that he would not
suffer his prerogative to be wounded, under pretext of the interest of
private persons; that it had already been more boldly dealt with in
Westminster Hall than in the reigns of preceding princes, which popular
and unlawful liberty he would no longer endure; that their oath not to
delay justice was not meant to prejudice the king's prerogative;
concluding that out of his absolute power and authority royal he
commanded them to forbear meddling any further in the cause till they
should hear his pleasure from his own mouth. Upon his return to London,
the twelve judges appeared as culprits in the council-chamber. The king
set forth their misdemeanours, both in substance and in the tone of
their letter. He observed that the judges ought to check those advocates
who presume to argue against his prerogative; that the popular lawyers
had been the men, ever since his accession, who had trodden in all
parliaments upon it, though the law could never be respected if the king
were not reverenced; that he had a double prerogative--whereof the one
was ordinary, and had relation to his private interest, which might be
and was every day disputed in Westminster Hall; the other was of a
higher nature, referring to his supreme and imperial power and
sovereignty, which ought not to be disputed or handled in vulgar
argument; but that of late the courts of common law are grown so vast
and transcendant, as they did both meddle with the king's prerogative,
and had encroached upon all other courts of justice. He commented on the
form of the letter, as highly indecent; certifying him merely what they
had done, instead of submitting to his princely judgment what they
should do.
After this harangue the judges fell upon their knees, and acknowledged
their error as to the form of the letter. But Coke entered on a defence
of the substance, maintaining the delay required to be against the law
and their oaths. The king required the chancellor and attorney-general
to deliver their opinions; which, as may be supposed, were diametrically
opposite to those of the chief justice. These being heard, the following
question was put to the judges: Whether, if at any time, in a case
depending before the judges, his majesty conceived it to concern him
either in power or profit, and thereupon required to consult with them,
and that they should stay proceedings in the meantime, they ought not to
stay accordingly? They all, except the chief justice, declared that they
would do so, and acknowledged it to be their duty; Hobart, chief justice
of the common pleas, adding that he would ever trust the justice of his
majesty's commandment. But Coke only answered, that when the case should
arise, he would do what should be fit for a judge to do. The king
dismissed them all with a command to keep the limits of their several
courts, and not to suffer his prerogative to be wounded; for he well
knew the true and ancient common law to be the most favourable to kings
of any law in the world, to which law he advised them to apply their
studies.[570]
The behaviour of the judges in this inglorious contention was such as to
deprive them of every shadow of that confidence which ought to be
reposed in their integrity. Hobart, Doddridge, and several more, were
men of much consideration for learning; and their authority in ordinary
matters of law is still held high. But, having been induced by a sense
of duty, or through the ascendancy that Coke had acquired over them, to
make a show of withstanding the court, they behaved like cowardly rebels
who surrender at the first discharge of cannon; and prostituted their
integrity and their fame, through dread of losing their offices, or
rather perhaps of incurring the unmerciful and ruinous penalties of the
star-chamber.
The government had nothing to fear from such recreants; but Coke was
suspended from his office, and not long afterwards dismissed.[571]
Having however, fortunately in this respect, married his daughter to a
brother of the Duke of Buckingham, he was restored in about three years
to the privy council, where his great experience in business rendered
him useful; and had the satisfaction of voting for an enormous fine on
his enemy the Earl of Suffolk, late high-treasurer, convicted in the
star-chamber of embezzlement.[572] In the parliament of 1621, and still
more conspicuously in that of 1628, he became, not without some
honourable inconsistency of doctrine as well as practice, the strenuous
asserter of liberty on the principles of those ancient laws which no one
was admitted to know so well as himself; redeeming, in an intrepid and
patriotic old age, the faults which we cannot avoid perceiving in his
earlier life.
_Arbitrary proceedings of the star-chamber._--The unconstitutional and
usurped authority of the star-chamber over-rode every personal right,
though an assembled parliament might assert its general privileges.
Several remarkable instances in history illustrate its tyranny and
contempt of all known laws and liberties. Two puritans having been
committed by the high-commission court, for refusing the oath _ex
officio_, employed Mr. Fuller, a bencher of Gray's Inn, to move for
their habeas corpus; which he did on the ground that the high
commissioners were not empowered to commit any of his majesty's subjects
to prison. This being reckoned a heinous offence, he was himself
committed, at Bancroft's instigation (whether by the king's personal
warrant, or that of the council-board, does not appear), and lay in gaol
to the day of his death; the archbishop constantly opposing his
discharge for which he petitioned.[573] Whitelock, a barrister and
afterwards a judge, was brought before the star-chamber on the charge of
having given a private opinion to his client, that a certain commission
issued by the Crown was illegal. This was said to be a high contempt and
slander of the king's prerogative. But, after a speech from Bacon in
aggravation of this offence, the delinquent was discharged on a humble
submission.[574] Such too was the fate of a more distinguished person
on a still more preposterous accusation. Selden, in his _History of
Tithes_, had indirectly weakened the claim of divine right, which the
high church faction pretended, and had attacked the argument from
prescription, deriving their legal institution from the age of
Charlemagne, or even a later 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.[575]
_Arabella Stuart._--Every generous mind must reckon the treatment of
Arabella Stuart among the hard measures of despotism, even if it were
not also grossly in violation of English law. Exposed by her high
descent and ambiguous pretensions to become the victim of ambitious
designs wherein she did not participate, that lady may be added to the
sad list of royal sufferers who have envied the lot of humble birth.
There is not, as I believe, the least particle of evidence that she was
engaged in the intrigues of the catholic party to place her on the
throne. It was, however, thought a necessary precaution to put her in
confinement a short time before the queen's death.[576] At the trial of
Raleigh she was present; and Cecil openly acquitted her of any share in
the conspiracy.[577] She enjoyed afterwards a pension from the king, and
might have died in peace and obscurity, had she not conceived an unhappy
attachment for Mr. Seymour, grandson of that Earl of Hertford, himself
so memorable an example of the perils of ambitious love. They were
privately married; but on the fact transpiring, the council, who saw
with jealous eyes the possible union of two dormant pretensions to the
Crown, committed them to the Tower.[578] They both made their escape;
but Arabella was arrested and brought back. Long and hopeless calamity
broke down her mind; imploring in vain the just privileges of an
Englishwoman, and nearly in want of necessaries, she died in prison, and
in a state of lunacy, some years afterwards.[579] And this through the
oppression of a kinsman, whose advocates are always vaunting his good
nature! Her husband became the famous Marquis of Hertford, the faithful
counsellor of Charles the First and partaker of his adversity. Lady
Shrewsbury, aunt to Arabella, was examined on suspicion of being privy
to her escape; and for refusing to answer the questions put to her, or,
in other words, to accuse herself, was sentenced to a fine of £20,000,
and discretionary imprisonment.[580]
_Somerset and Overbury._--Several events, so well known that it is
hardly necessary to dwell on them, aggravated the king's unpopularity
during this parliamentary interval. The murder of Overbury burst into
light, and revealed to an indignant nation the king's unworthy
favourite, the Earl of Somerset, and the hoary pander of that
favourite's vices, the Earl of Northampton, accomplices in that
deep-laid and deliberate atrocity. Nor was it only that men so
flagitious should have swayed the councils of this country, and rioted
in the king's favour. Strange things were whispered, as if the death of
Overbury was connected with something that did not yet transpire, and
which every effort was employed to conceal. The people, who had already
attributed Prince Henry's death to poison, now laid it at the door of
Somerset; but for that conjecture, however highly countenanced at the
time, there could be no foundation. The symptoms of the prince's
illness, and the appearances on dissection, are not such as could result
from any poison, and manifestly indicate a malignant fever, aggravated
perhaps by injudicious treatment.[581] Yet it is certain that a mystery
hangs over this scandalous tale of Overbury's murder. The insolence and
menaces of Somerset in the Tower, the shrinking apprehensions of him
which the king could not conceal, the pains taken by Bacon to prevent
his becoming desperate, and, as I suspect, to mislead the hearers by
throwing them on a wrong scent, are very remarkable circumstances to
which, after a good deal of attention, I can discover no probable clue.
But it is evident that he was master of some secret, which it would have
highly prejudiced the king's honour to divulge.[582]
_Sir Walter Raleigh._--Sir Walter Raleigh's execution was another stain
upon the reputation of James I. It is needless to mention that he fell
under a sentence passed fifteen years before, on a charge of high
treason, in plotting to raise Arabella Stuart to the throne. It is very
probable that this charge was, partly at least, founded in truth;[583]
but his conviction was obtained on the single deposition of Lord
Cobham, an accomplice, a prisoner, not examined in court, and known to
have already retracted his accusation. Such a verdict was thought
contrary to law, even in that age of ready convictions. It was a severe
measure to detain for twelve years in prison so splendid an ornament of
his country, and to confiscate his whole estate.[584] For Raleigh's
conduct in the expedition to Guiana, there is not much excuse to make.
Rashness and want of foresight were always among his failings; else he
would not have undertaken a service of so much hazard without obtaining
a regular pardon for his former offence. But it might surely be urged
that either his commission was absolutely null, or that it operated as a
pardon; since a man attainted of treason is incapable of exercising that
authority which it conferred upon him.[585] Be this as it may, no
technical reasoning could overcome the moral sense that revolted at
carrying the original sentence into execution. Raleigh might be amenable
to punishment for the deception, by which he had obtained a commission
that ought never to have issued; but the nation could not help seeing in
his death the sacrifice of the bravest and most renowned of Englishmen
to the vengeance of Spain.[586]
This unfortunate predilection for the court of Madrid had always exposed
James to his subjects' jealousy. They connected it with an inclination
at least to tolerate popery, and with a dereliction of their commercial
interests. But from the time that he fixed his hopes on the union of his
son with the infanta,[587] the popular dislike to Spain increased in
proportion to his blind preference. If the king had not systematically
disregarded the public wishes, he could never have set his heart on this
impolitic match; contrary to the wiser maxim he had laid down in his own
_Basilicon Doron_, never to seek a wife for his son except in a
protestant family. But his absurd pride made him despise the uncrowned
princes of Germany. This Spanish policy grew much more odious after the
memorable events of 1619, the election of the king's son-in-law to the
throne of Bohemia, his rapid downfall, and the conquest of the Upper
Palatinate by Austria. If James had listened to some sanguine advisers,
he would in the first instance have supported the pretensions of
Frederic. But neither his own views of public law nor true policy
dictated such an interference. The case was changed after the loss of
his hereditary dominions, and the king was sincerely desirous to restore
him to the Palatinate; but he unreasonably expected that he could effect
this through the friendly mediation of Spain, while the nation, not
perhaps less unreasonably, were clamorous for his attempting it by force
of arms. In this agitation of the public mind, he summoned the
parliament that met in February 1621.[588]
_Parliament of 1621._--The king's speech on opening the session was,
like all he had made on former occasions, full of hopes and promises,
taking cheerfully his share of the blame as to past disagreements, and
treating them as little likely to recur, though all their causes were
still in operation.[589] He displayed, however, more judgment than usual
in the commencement of this parliament. Among the methods devised to
compensate the want of subsidies, none had been more injurious to the
subject than patents of monopoly, including licences for exclusively
carrying on certain trades. Though the government was principally
responsible for the exactions they connived at, and from which they
reaped a large benefit, the popular odium fell of course on the
monopolists. Of these the most obnoxious was Sir Giles Mompesson, who,
having obtained a patent for gold and silver thread, sold it of baser
metal. This fraud seems neither very extraordinary nor very important;
but he had another patent for licensing inns and alehouses, wherein he
is said to have used extreme violence and oppression. The House of
Commons proceeded to investigate Mompesson's delinquency. Conscious that
the Crown had withdrawn its protection, he fled beyond sea. One Michell,
a justice of peace, who had been the instrument of his tyranny, fell
into the hands of the Commons, who voted him incapable of being in the
commission of the peace, and sent him to the Tower.[590] Entertaining,
however, upon second thoughts, as we must presume, some doubts about
their competence to inflict this punishment, especially the former part
of it, they took the more prudent course with respect to Mompesson, of
appointing Noy and Hakewill to search for precedents in order to show
how far and for what offences their power extended to punish delinquents
against the state as well as those who offended against that house. The
result appears some days after, in a vote that "they must join with the
Lords for punishing Sir Giles Mompesson; it being no offence against our
particular house, nor any member of it, but a general grievance."[591]
The earliest instance of parliamentary impeachment, or of a solemn
accusation of any individual by the Commons at the bar of the Lords, was
that of Lord Latimer in the year 1376. The latest hitherto was that of
the Duke of Suffolk in 1449; for a proceeding against the Bishop of
London in 1534, which has sometimes been reckoned an instance of
parliamentary impeachment, does not by any means support that privilege
of the Commons.[592] It had fallen into disuse, partly from the loss of
that control which the Commons had obtained under Richard II. and the
Lancastrian kings; and partly from the preference the Tudor princes had
given to bills of attainder or of pains and penalties, when they wished
to turn the arm of parliament against an obnoxious subject. The revival
of this ancient mode of proceeding in the case of Mompesson, though a
remarkable event in our constitutional annals, does not appear to have
been noticed as an anomaly. It was not indeed conducted according to all
the forms of an impeachment. The Commons, requesting a conference with
the other house, informed them generally of that person's offence, but
did not exhibit any distinct articles at their bar. The Lords took up
themselves the inquiry; and having become satisfied of his guilt, sent a
message to the Commons, that they were ready to pronounce sentence. The
speaker accordingly, attended by all the house, demanded judgment at the
bar: when the Lords passed as heavy a sentence as could be awarded for
any misdemeanour; to which the king, by a stretch of prerogative, which
no one was then inclined to call in question, was pleased to add
perpetual banishment.[593]
The impeachment of Mompesson was followed up by others against Michell,
the associate in his iniquities; against Sir John Bennet, judge of the
prerogative court, for corruption in his office; and against Field,
Bishop of Landaff, for being concerned in a matter of bribery.[594] The
first of these was punished; but the prosecution of Bennet seems to have
dropped in consequence of the adjournment, and that of the bishop ended
in a slight censure. But the wrath of the Commons was justly roused
against that shameless corruption, which characterises the reign of
James beyond every other in our history.
_Proceedings against Lord Bacon._--It is too well known, how deeply the
greatest man of that age was tarnished by the prevailing iniquity.
Complaints poured in against the chancellor Bacon for receiving bribes
from suitors in his court. Some have vainly endeavoured to discover an
excuse which he did not pretend to set up, and even ascribed the
prosecution to the malevolence of Sir Edward Coke.[595] But Coke took no
prominent share in this business; and though some of the charges against
Bacon may not appear very heinous, especially for those times, I know
not whether the unanimous conviction of such a man, and the conscious
pusillanimity of his defence do not afford a more irresistible
presumption of his misconduct than anything specially alleged. He was
abandoned by the court, and had previously lost, as I rather suspect,
Buckingham's favour; but the king, who had a sense of his transcendent
genius, remitted the fine of £40,000 imposed by the Lords, which he was
wholly unable to pay.[596]
There was much to commend in the severity practised by the house towards
public delinquents; such examples being far more likely to prevent the
malversation of men in power than any law they could enact. But in the
midst of these laudable proceedings, they were hurried by the passions
of the moment into an act of most unwarrantable violence. It came to the
knowledge of the house that one Floyd, a gentleman confined in the Fleet
prison, had used some slighting words about the elector palatine and his
wife. It appeared in aggravation, that he was a Roman catholic. Nothing
could exceed the fury into which the Commons were thrown by this very
insignificant story. A flippant expression, below the cognisance of an
ordinary court, grew at once into a portentous offence, which they
ransacked their invention to chastise. After sundry novel and monstrous
propositions, they fixed upon the most degrading punishment they could
devise. Next day, however, the chancellor of the exchequer delivered a
message, that the king, thanking them for their zeal, but desiring that
it should not transport them to inconveniences, would have them consider
whether they could sentence one who did not belong to them, nor had
offended against the house or any member of it; and whether they could
sentence a denying party, without the oath of witnesses; referring them
to an entry on the rolls of parliament in the first year of Henry IV.,
that the judicial power of parliament does not belong to the Commons. He
would have them consider whether it would not be better to leave Floyd
to him, who would punish him according to his fault.
This message put them into some embarrassment. They had come to a vote
in Mompesson's case, in the very words employed in the king's message,
confessing themselves to have no jurisdiction, except over offences
against themselves. The warm speakers now controverted this proposition
with such arguments as they could muster; Coke, though from the reported
debates he seems not to have gone the whole length, contending that the
house was a court of record, and that it consequently had power to
administer an oath.[597] They returned a message by the speaker,
excepting to the record in 1 H. 4, because it was not an act of
parliament to bind them, and persisting, though with humility, in their
first votes.[598] The king replied mildly; urging them to show
precedents, which they were manifestly incapable of doing. The Lords
requested a conference, which they managed with more temper, and
notwithstanding the solicitude displayed by the Commons to maintain
their pretended right, succeeded in withdrawing the matter to their own
jurisdiction.[599] This conflict of privileges was by no means of
service to the unfortunate culprit; the Lords perceived that they could
not mitigate the sentence of the lower house without reviving their
dispute, and vindicated themselves from all suspicion of indifference
towards the cause of the Palatinate by augmenting its severity. Floyd
was adjudged to be degraded from his gentility, and to be held an
infamous person; his testimony not to be received; to ride from the
Fleet to Cheapside on horseback without a saddle, with his face to the
horse's tail, and the tail in his hand, and there to stand two hours in
the pillory, and to be branded in the forehead with the letter K; to
ride four days afterwards in the same manner to Westminster, and there
to stand two hours more in the pillory, with words in a paper in his
hat showing his offence; to be whipped at the cart's tail from the Fleet
to Westminster Hall; to pay a fine of £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.[600]
This case of Floyd is an unhappy proof of the disregard that popular
assemblies, when inflamed by passion, are ever apt to show for those
principles of equity and moderation, by which, however the sophistry of
contemporary factions may set them aside, a calm judging posterity will
never fail to measure their proceedings. It has contributed at least,
along with several others of the same kind, to inspire me with a jealous
distrust of that indefinable, uncontrollable privilege of parliament,
which has sometimes been asserted, and perhaps with rather too much
encouragement from those whose function it is to restrain all exorbitant
power. I speak only of the extent to which theoretical principles have
been carried, without insinuating that the privileges of the House of
Commons have been practically stretched in late times beyond their
constitutional bounds. Time and the course of opinion have softened down
those high pretensions, which the dangers of liberty under James the
First, as well as the natural character of a popular assembly, then
taught the Commons to assume; and the greater humanity of modern ages
has made us revolt from such disproportionate punishments as were
inflicted on Floyd.[601]
Everything had hitherto proceeded with harmony between the king and
parliament. His ready concurrence in their animadversion on Mompesson
and Michell, delinquents who had acted at least with the connivance of
government, and in the abolition of monopolies, seemed to remove all
discontent. The Commons granted two subsidies early in the session
without alloying their bounty with a single complaint of grievances. One
might suppose that the subject of impositions had been entirely
forgotten, not an allusion to them occurring in any debate.[602] It was
voted indeed, in the first days of the session, to petition the king
about the breach of their privilege of free speech, by the imprisonment
of Sir Edwin Sandys, in 1614, for words spoken in the last parliament;
but the house did not prosecute this matter, contenting itself with some
explanation by the secretary of state.[603] They were going on with some
bills for reformation of abuses, to which the king was willing to
accede, when they received an intimation that he expected them to
adjourn over the summer. It produced a good deal of dissatisfaction to
see their labour so hastily interrupted; especially as they ascribed it
to a want of sufficient sympathy on the court's part with their
enthusiastic zeal for the elector palatine.[604] They were adjourned by
the king's commission, after an unanimous declaration ("sounded forth,"
says one present, "with the voices of them all, withal lifting up their
hats in their hands so high as they could hold them, as a visible
testimony of their unanimous consent, in such sort, that the like had
scarce ever been seen in parliament") of their resolution to spend
their lives and fortunes for the defence of their own religion and of
the Palatinate. This solemn protestation and pledge was entered on
record in the journals.[605]
They met again after five months, without any change in their views of
policy. At a conference of the two houses, Lord Digby, by the king's
command, explained all that had occurred in his embassy to Germany for
the restitution of the Palatinate; which, though absolutely ineffective,
was as much as James could reasonably expect without a war.[606] He had
in fact, though, according to the laxity of those times, without
declaring war on any one, sent a body of troops under Sir Horace Vere,
who still defended the Lower Palatinate. It was necessary to vote more
money, lest these should mutiny for want of pay. And it was stated to
the Commons in this conference, that to maintain a sufficient army in
that country for one year would require £900,000; which was left to
their consideration.[607] But now it was seen that men's promises to
spend their fortunes in a cause not essentially their own are written in
the sand. The Commons had no reason perhaps to suspect that the charge
of keeping 30,000 men in the heart of Germany would fall much short of
the estimate. Yet after long haggling they voted only one subsidy,
amounting to £70,000; a sum manifestly insufficient for the first
equipment of such a force.[608] This parsimony could hardly be excused
by their suspicion of the king's unwillingness to undertake the war, for
which it afforded the best justification.
_Disagreement between the king and Commons._--James was probably not
much displeased at finding so good a pretext for evading a compliance
with their martial humour; nor had there been much appearance of
dissatisfaction on either side (if we except some murmurs at the
commitment of one of their most active members, Sir Edwin Sandys, to the
Tower, which were tolerably appeased by the secretary Calvert's
declaration that he had not been committed for any parliamentary
matter),[609] till the Commons drew up a petition and remonstrance
against the growth of popery; suggesting, among other remedies for this
grievance, that the prince should marry one of our own religion, and
that the king would direct his efforts against the power (meaning Spain)
which first maintained the war in the Palatinate. This petition was
proposed by Sir Edward Coke. The courtiers opposed it as without
precedent; the chancellor of the duchy observing that it was of so high
and transcendent a nature, he had never known the like within those
walls. Even the mover defended it rather weakly, according to our
notions, as intended only to remind the king, but requiring no answer.
The scruples affected by the courtiers, and the real novelty of the
proposition, had so great an effect, that some words were inserted,
declaring that the house "did not mean to press on the king's most
undoubted and royal prerogative."[610] The petition, however, had not
been presented, when the king, having obtained a copy of it, sent a
peremptory letter to the speaker, that he had heard how some fiery and
popular spirits had been imboldened to debate and argue on matters far
beyond their reach or capacity, and directing him to acquaint the house
with his pleasure that none therein should presume to meddle with
anything concerning his government or mysteries of state; namely, not to
speak of his son's match with the princess of Spain, nor to touch the
honour of that king, or any other of his friends and confederates.
Sandys's commitment, he bade them be informed, was not for any
misdemeanour in parliament. But to put them out of doubt of any question
of that nature that may arise among them hereafter, he let them know
that he thought himself very free and able to punish any man's
misdemeanours in parliament, as well during their sitting as after,
which he meant not to spare upon occasion of any man's insolent
behaviour in that place. He assured them that he would not deign to hear
their petition, if it touched on any of those points which he had
forbidden.[611]
The house received this message with unanimous firmness, but without any
undue warmth. A committee was appointed to draw up a petition, which,
in the most decorous language, and with strong professions of regret at
his majesty's displeasure, contained a defence of their former
proceedings, and hinted very gently, that they could not conceive his
honour and safety, or the state of the kingdom, to be matters at any
time unfit for their deepest consideration in time of parliament. They
adverted more pointedly to that part of the king's message which
threatened them for liberty of speech, calling it their ancient and
undoubted right, and an inheritance received from their ancestors, which
they again prayed him to confirm.[612] His answer, though considerably
milder than what he had designed, gave indications of a resentment not
yet subdued. He dwelt at length on their unfitness for entering on
matters of government, and commented with some asperity even on their
present apologetical petition. In the conclusion he observed that
"although he could not allow of the style, calling their privileges an
undoubted right and inheritance, but could rather have wished that they
had said that their privileges were derived from the grace and
permission of his ancestors and himself (for most of them had grown from
precedent which rather shows a toleration than inheritance); yet he gave
them his royal assurance, that as long as they contained themselves
within the limits of their duty, he would be as careful to maintain
their lawful liberties and privileges as he would his own prerogative;
so that their house did not touch on that prerogative which would
enforce him or any just king to retrench their privileges."[613]
This explicit assertion that the privileges of the Commons existed only
by sufferance, and conditionally upon good behaviour, exasperated the
house far more than the denial of their right to enter on matters of
state. In the one, they were conscious of having somewhat transgressed
the boundaries of ordinary precedents; in the other, their individual
security, and their very existence as a deliberative assembly, were at
stake. Calvert, the secretary, and the other ministers, admitted the
king's expressions to be incapable of defence, and called them a slip of
the pen at the close of a long answer.[614] The Commons were not to be
diverted by any such excuses from their necessary duty of placing on
record a solemn claim of right. Nor had a letter from the king,
addressed to Calvert, much influence; wherein, while he reiterated his
assurances of respecting their privileges, and tacitly withdrew the
menace that rendered them precarious, he said that he could not with
patience endure his subjects to use such anti-monarchical words to him
concerning their liberties, as "ancient and undoubted right and
inheritance," without subjoining that they were granted by the grace and
favour of his predecessors.[615] After a long and warm debate, they
entered on record in the Journals their famous protestation of December
18th, 1621, in the following words:--
"The Commons now assembled in parliament, being justly occasioned
thereunto, concerning sundry liberties, franchises, privileges, and
jurisdictions of parliament, amongst others not herein mentioned, do
make this protestation following:--That the liberties, franchises,
privileges, and jurisdictions of parliament are the ancient and
undoubted birthright and inheritance of the subjects of England; and
that the arduous and urgent affairs concerning the king, state, and the
defence of the realm, and of the church of England, and the making and
maintenance of laws, and redress of mischiefs and grievances which daily
happen within this realm, are proper subjects and matter of counsel and
debate in parliament; and that in the handling and proceeding of those
businesses, every member of the house hath, and of right ought to have,
freedom of speech to propound, treat, reason, and bring to conclusion,
the same: that the Commons in parliament have like liberty and freedom
to treat of those matters in such order as in their judgments shall seem
fittest: and that every such member of the said house hath like freedom
from all impeachment, imprisonment, and molestation (other than by the
censure of the house itself) for or concerning any bill, speaking,
reasoning, or declaring of any matter or matters touching the parliament
or parliament business; and that, if any of the said members be
complained of, and questioned for anything said or done in parliament,
the same is to be showed to the king by the advice and assent of all the
Commons assembled in parliament, before the king give credence to any
private information."[616]
_Dissolution of the Commons, after a strong remonstrance._--This
protestation was not likely to pacify the king's anger. He had already
pressed the Commons to make an end of the business before them, under
pretence of wishing to adjourn them before Christmas, but probably
looking to a dissolution. They were not in a temper to regard any
business, least of all to grant a subsidy, till this attack on their
privileges should be fully retracted. The king therefore adjourned, and
in about a fortnight after dissolved them. But in the interval, having
sent for the journal book, he erased their last protestation with his
own hand; and published a declaration of the causes which had provoked
him to this unusual measure, alleging the unfitness of such a protest,
after his ample assurance of maintaining their privileges, the irregular
manner in which, according to him, it was voted, and its ambiguous and
general wording, which might serve in future times to invade most of the
prerogatives annexed to the imperial Crown. In his proclamation for
dissolving the parliament, James recapitulated all his grounds of
offences; but finally required his subjects to take notice that it was
his intention to govern them as his progenitors and predecessors had
done, and to call a parliament again on the first convenient
occasion.[617] He immediately followed up this dissolution of parliament
by dealing his vengeance on its most conspicuous leaders: Sir Edward
Coke and Sir Robert Philips were committed to the Tower; Mr. Pym, and
one or two more, to other prisons; Sir Dudley Digges, and several who
were somewhat less obnoxious than the former, were sent on a commission
to Ireland, as a sort of honourable banishment.[618] The Earls of Oxford
and Southampton underwent an examination before the council; and the
former was committed to the Tower on pretence of having spoken words
against the king. It is worthy of observation that, in this session, a
portion of the upper house had united in opposing the court. Nothing of
this kind is noticed in former parliaments, except perhaps a little on
the establishment of the reformation. In this minority were considerable
names; Essex, Southampton, Warwick, Oxford, Say, Spencer. Whether a
sense of public wrongs, or their particular resentments, influenced
these noblemen, their opposition must be reckoned an evident sign of the
change that was at work in the spirit of the nation, and by which no
rank could be wholly unaffected.[619]
_Marriage treaty with Spain._--James, with all his reputed
pusillanimity, never showed any signs of fearing popular opinion. His
obstinate adherence to the marriage treaty with Spain was the height of
political rashness in so critical a state of the public mind. But what
with elevated notions of his prerogative and of his skill in government
on the one hand, what with a confidence in the submissive loyalty of the
English on the other, he seems constantly to have fancied that all
opposition proceeded from a small troublesome faction, whom if he could
any way silence, the rest of his people would at once repose in a
dutiful reliance on his wisdom. Hence he met every succeeding parliament
with as sanguine hopes as if he had suffered no disappointment in the
last. The nation was however wrought up at this time to an alarming
pitch of discontent. Libels were in circulation about 1621, so bitterly
malignant in their censures of his person and administration, than two
hundred years might seem, as we read them, to have been mistaken in
their date.[620] Heedless, however, of this growing odium, James
continued to solicit the affected coyness of the court of Madrid. The
circumstances of that negotiation belong to general history.[621] It is
only necessary to remind the reader that the king was induced, during
the residence of Prince Charles and the Duke of Buckingham in Spain, to
swear to certain private articles, some of which he had already
promised before their departure, by which he bound himself to suspend
all penal laws affecting the catholics, to permit the exercise of their
religion in private houses, and to procure from parliament, if possible,
a legal toleration. This toleration, as preliminary to the entire
re-establishment of popery, had been the first great object of Spain in
the treaty. But that court, having protracted the treaty for years, in
order to extort more favourable terms, and interposed a thousand
pretences, became the dupe of its own artifices; the resentment of a
haughty minion overthrowing with ease the painful fabric of this tedious
negotiation.
_Parliament of 1624._--Buckingham obtained a transient and unmerited
popularity by thus averting a great public mischief, which rendered the
next parliament unexpectedly peaceable. The Commons voted three
subsidies and three-fifteenths, in value about £300,000;[622] but with a
condition, proposed by the king himself, that, in order to ensure its
application to naval and military armaments, it should be paid into the
hands of treasurers appointed by themselves, who should issue money only
on the warrant of the council of war. He seemed anxious to tread back
the steps made in the former session, not only referring the highest
matters of state to their consideration, but promising not to treat for
peace without their advice. They, on the other hand, acknowledged
themselves most bound to his majesty for having been pleased to require
their humble advice in a case so important, not meaning, we may be sure,
by these courteous and loyal expressions, to recede from what they had
claimed in the last parliament as their undoubted right.[623]
_Impeachment of Middlesex._--The most remarkable affair in this session
was the impeachment of the Earl of Middlesex, actually lord treasurer of
England, for bribery and other misdemeanours. It is well known that the
Prince of Wales and Duke of Buckingham instituted this prosecution to
gratify the latter's private pique against the wishes of the king, who
warned them they would live to have their fill of parliamentary
impeachment. It was conducted by managers on the part of the Commons in
a very regular form, except that the depositions of witnesses were
merely read by the clerk; that fundamental rule of English law which
insists on the _vivâ voce_ examination, being as yet unknown, or
dispensed with in political trials. Nothing is more worthy of notice in
the proceedings upon this impeachment than what dropped from Sir Edwin
Sandys, in speaking upon one of the charges. Middlesex had laid an
imposition of £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.[624] Such cautious and temperate language, far from
indicating any disposition to recede from their pretensions, is rather a
proof of such united steadiness and discretion as must ensure their
success. Middlesex was unanimously convicted by the peers.[625] His
impeachment was of the highest moment to the Commons; as it restored for
ever that salutary constitutional right which the single precedent of
Lord Bacon might have been insufficient to establish against the
ministers of the Crown.
The two last parliaments had been dissolved without passing a single
act, except the subsidy bill of 1621. An interval of legislation for
thirteen years was too long for any civilised country. Several statutes
were enacted in the present session, but none so material as that for
abolishing monopolies for the sale of merchandise, or for using any
trade.[626] This is of a declaratory nature, and recites that they are
already contrary to the ancient and fundamental laws of the realm.
Scarce any difference arose between the Crown and the Commons. This
singular calm might probably have been interrupted, had not the king put
an end to the session. They expressed some little dissatisfaction at
this step,[627] and presented a list of grievances, one only of which is
sufficiently considerable to deserve notice; namely, the proclamations
already mentioned in restraint of building about London, whereof they
complain in very gentle terms, considering their obvious illegality and
violation of private right.[628]
The Commons had now been engaged, for more than twenty years, in a
struggle to restore and to fortify their own and their fellow subjects'
liberties. They had obtained in this period but one legislative measure
of importance, the late declaratory act against monopolies. But they had
rescued from disuse their ancient right of impeachment. They had placed
on record a protestation of their claim to debate all matters of public
concern. They had remonstrated against the usurped prerogatives of
binding the subject by proclamation, and of levying customs at the
out-ports. They had secured beyond controversy their exclusive privilege
of determining contested elections of their members. They had
maintained, and carried indeed to an unwarrantable extent, their power
of judging and inflicting punishment, even for offences not committed
against their house. Of these advantages some were evidently incomplete;
and it would require the most vigorous exertions of future parliaments
to realise them. But such exertions the increased energy of the nation
gave abundant cause to anticipate. A deep and lasting love of freedom
had taken hold of every class except perhaps the clergy; from which,
when viewed together with the rash pride of the court, and the
uncertainty of constitutional principles and precedents, collected
through our long and various history, a calm by-stander might presage
that the ensuing reign would not pass without disturbance, nor perhaps
end without confusion.
FOOTNOTES:
[464] Father Persons, a subtle and lying Jesuit, published in 1594,
under the name of Doleman, a treatise entitled _Conference about the
next Succession to the Crown of England_. This book is dedicated to Lord
Essex, whether from any hopes entertained of him, or as was then
supposed, in order to injure his fame and his credit with the queen.
_Sidney Papers_, i. 357; Birch's _Memoirs_, i. 313. It is written with
much art, to show the extreme uncertainty of the succession, and to
perplex men's minds by multiplying the number of competitors. This,
however, is but the second part of his _Conference_, the aim of the
first being to prove the right of commonwealths to depose sovereigns,
much more to exclude the right heir, especially for want of true
religion. "I affirm and hold," he says, "that for any man to give his
help, consent, or assistance towards the making of a king whom he
judgeth or believeth to be faulty in religion, and consequently would
advance either no religion, or the wrong, if he were in authority, is a
most grievous and damnable sin to him that doth it, of what side soever
the truth be, or how good or bad soever the party be that is
preferred."--P. 216. He pretends to have found very few who favour the
King of Scots' title; an assertion by which we may appreciate his
veracity. The protestant party, he tells us, was wont to favour the
house of Hertford, but of late have gone more towards Arabella, whose
claim the Lord Burleigh is supposed to countenance. P. 241. The drift of
the whole is to recommend the infanta, by means of perverted history and
bad law, yet ingeniously contrived to ensnare ignorant persons. In his
former and more celebrated treatise, _Leicester's Commonwealth_, though
he harps much on the embarrassments attending the succession, Persons
argues with all his power in favour of the Scottish title, Mary being
still alive, and James's return to the faith not desperate. Both these
works are full of the mendacity generally and justly ascribed to his
order; yet they are worthy to be read by any one who is curious about
the secret politics of the queen's reign.
Philip II. held out assurances, that if the English would aid him in
dethroning Elizabeth, a free parliament should elect any catholic
sovereign at their pleasure, not doubting that their choice would fall
on the infanta. He promised also to enlarge the privileges of the
people, to give the merchants a free trade to the Indies, with many
other flattering inducements. Birch's _Memoirs_, ii. 308. But most of
the catholic gentry, it is just to observe, would never concur in the
invasion of the kingdom by foreigners, preferring the elevation of
Arabella, according to the pope's project. This difference of opinion
gave rise, among other causes, to the violent dissensions of that party
in the latter years of Elizabeth's reign; dissensions that began soon
after the death of Mary, in favour of whom they were all united, though
they could never afterwards agree on any project for the succession.
Winwood's _Memorials_, i. 57; _Lettres du Cardinal d'Ossat_, ii. 501.
For the life and character of the famous Father Persons, or Parsons,
above mentioned, see Dodd's _Church History_, the _Biographia
Britannica_, or Miss Aikin's _James I._, i. 360. Mr. Butler is too
favourably inclined towards a man without patriotism or veracity. Dodd
plainly thinks worse of him than he dares speak.
[465] D'Ossat, _ubi suprà_. Clement had, some years before, indulged the
idle hope that France and Spain might unite to conquer England, and
either bestow the kingdom on some catholic prince or divide it between
themselves, as Louis XII. and Ferdinand had done with Naples in 1501; an
example not very inviting to the French. D'Ossat, Henry's minister at
Rome, pointed out the difficulties of such an enterprise, England being
the greatest naval power in the world, and the people warlike. The pope
only replied, that the kingdom had been once conquered, and might be so
again; and especially being governed by an old woman, whom he was
ignorant enough to compare with Joanna II. of Naples. Vol. i. 399. Henry
IV. would not even encourage the project of setting up Arabella, which
he declared to be both unjust and chimerical. _Mem. de Sully_, l. 15. A
knot of protestants were also busy about the interests of Arabella, or
suspected of being so; Raleigh, Cobham, Northumberland, though perhaps
the last was catholic. Their intrigues occupy a great part of the
letters of other intriguers, Cecil and Lord Henry Howard, in the _Secret
Correspondence with King James_, published by Sir David Dalrymple, vol.
i. _passim_.
[466] The explicit declaration on her death-bed ascribed to her by Hume
and most other writers, that her kingsman the King of Scots should
succeed her, is not confirmed by Carey, who was there at the time. "She
was speechless when the council proposed the King of Scots to succeed
her, but put her hand to her head as if in token of approbation." E. of
Monmouth's _Memoirs_, p. 176. But her uniform conduct shows her
intentions. See, however, D'Israeli's _Curiosities of Literature_, iii.
107.
It is impossible to justify Elizabeth's conduct towards James in his own
kingdom. What is best to be said for it is, that his indiscretion, his
suspicious intrigues at Rome and Madrid, the dangerous influence of his
favourites, and the evident purpose of the court of Spain to make him
its tool, rendered it necessary to keep a very strict watch over his
proceedings. If she excited the peers and presbyters of Scotland against
their king, he was not behind her in some of the last years of her
reign. It appears by a letter from the Earl of Mar, in Dalrymple's
_Secret Correspondence_, p. 2, that James had hopes of a rebellion in
England in 1601, which he would have had no scruple in abetting. And a
letter from him to Tyrone, in the Lansdowne MSS. lxxxiv. 36, dated 22nd
Dec. 1597, when the latter was at least preparing for rebellion, though
rather cautious, is full of expressions of favour, and of promises to
receive his assistance thankfully at the queen's death. This letter
being found in the collection once belonging to Sir Michael Hicks, must
have been in Lord Burleigh's, and probably in Elizabeth's hands; it
would not make her less inclined to instigate conspiracies across the
Tweed. The letter is not an original, and may have been communicated by
some one about the King of Scots in the pay of England.
[467] See Burnet, vol. i, Appendix 267, for Secretary Lethington's
letter to Cecil, where he tells a circumstantial story so positively,
and so open, if false, to a contradiction it never received, that those
who lay too much stress on this very equivocal species of presumption
would, if the will had perished, have reckoned its forgery beyond
question. The king's death approaching, he asserts, "some as well known
to you as to me caused William Clarke, sometimes servant to Thomas
Heneage, to sign the supposed will with a stamp, for otherwise signed it
was never;" for which he appeals to an attestation of the late Lord
Paget in parliament, and requests the depositions of several persons now
living to be taken. He proceeds to refer him "to the original will
surmised to be signed with the king's own hand, that thereby it may most
clearly and evidently appear by some differences, how the same was not
signed with the king's hand, but stamped as aforesaid. And albeit it is
used both as an argument and calumniation against my sovereign by some,
that the said original hath been embezzled in Queen Mary's time, I trust
God will and hath reserved the same to be an instrument to relieve
[prove] the truth, and to confound false surmises, that thereby the
right may take place, notwithstanding the many exemplifications and
transcripts, which being sealed with the great seal, do run abroad in
England." Lesley, Bishop of Ross, repeats the same story with some
additions. Bedford's _Hereditary Right_, p. 197. A treatise of Hales,
for which he suffered imprisonment, in defence of the Suffolk title
under the will, of which there is a manuscript in the British Museum,
Harl. MSS. 537, and which is also printed in the appendix to the book
last quoted, leads me to conjecture that the original will had been
mislaid or rather concealed at that time. For he certainly argues on the
supposition that it was not forthcoming, and had not himself seen it;
but "he has been informed that the king's name is evidently written with
a pen, though some of the strokes are unseen, as if drawn by a weak and
trembling hand." Everyone who has seen the will must bear witness to the
correctness of this information. The reappearance of this very
remarkable instrument was, as I conceive, after the Revolution; for
Collier mentions that he had heard it was in existence; and it is also
described in a note to the _Acta Regia_.
[468] It is right to mention, that some difference of opinion exists as
to the genuineness of Henry's signature. But as it is attested by many
witnesses, and cannot be proved a forgery, the legal presumption turns
much in its favour.
[469] Bedford's (Harbin's) _Hereditary Right Asserted_, p. 204.
[470] A manuscript in the Cottonian library, Faustina A. xi., written
about 1562 in a very hostile spirit, endeavours to prove from the want
of testimony, and from some variances in their depositions (not very
material ones), that their allegations of matrimony could not be
admitted, and that they had incurred an ecclesiastical censure for
fornication. But another, which I have also found in the Museum, Harl.
MSS. 6286, contains the whole proceedings and evidence, from which I
have drawn the conclusion in the text. Their ignorance of the clergyman
who performed the ceremony is not perhaps very extraordinary; he seems
to have been one of those vagabond ecclesiastics, who, till the marriage
act of 1752, were always ready to do that service for a fee.
[471] "Hereupon I shall add, what I have heard related from persons of
great credit, which is, that the validity of this marriage was
afterwards brought to a trial at the common law; when the minister who
married them being present, and other circumstances agreeing, the jury
(whereof John Digby of Coleshill, in com. War. esquire, was the foreman)
found it a good marriage." _Baronage of England_, part ii. 369. Mr.
Luders doubts the accuracy of Dugdale's story; and I think it not
unlikely that it is a confused account of what happened in the court of
wards.
[472] I derive this fact from a Cotton MS. Vitellius C. xvi. 412, etc.;
but the volume is much burned, and the papers confused with others
relative to Lord Essex's divorce. See as to the same suit, or rather
perhaps that mentioned in the next note, Birch's _Negotiations_, p. 219,
or Aikin's _James I._ i. 225.
[473] "The same day a great cause between the Lord Beauchamp and
Monteagle was heard in the court of wards, the main point whereof was to
prove the lawfulness of E. of Hertford's marriage. The court sat until
five of the clock in the afternoon, and the jury had a week's respite
for the delivery of their verdict." Letter of Sir E. Hoby to Sir T.
Edmonds, Feb. 10, 1606. "For my lord of Hertford's cause, when the
verdict was ready to be given up, Mr. Attorney interposed himself for
the king, and said that the land that they both strove for was the
king's, and until his title were decided, the jury ought not to proceed;
not doubting but the king will be gracious to both lords. But thereby
both land and legitimation remain undecided." The same to the same March
7. Sloane MSS. 4176.
[474] Dugdale's _Baronage_; Luders' _Essay on the Right of Succession to
the Crown in the Reign of Elizabeth_. This ingenious author is, I
believe, the first who has taken the strong position as to the want of
legal title to the house of Stuart which I have endeavoured to support.
In the entertaining letters of Joseph Mede on the news of the day (Harl.
MSS. 389), it is said that the king had thoughts of declaring Hertford's
issue by Lady Catherine Grey illegitimate in the parliament of 1621, and
that Lord Southampton's commitment was for having searched for proofs of
their marriage. June 30, 1622.
[475] Luders, _ubi suprà_.
[476] The representative of the title of Mary Brandon, Duchess of
Suffolk, that is, the person on whom the claim has descended, according
to the rules which determine the succession of the crown, on the
supposition that Hertford was duly married to Catherine Grey, is the
present Duchess of Buckingham; upon the contrary supposition, the
Marquis of Stafford. This is, of course, if we may take for granted the
accuracy of common books of genealogy. I have not adverted to one
objection which some urged at the time, as we find by Persons's
treatises, _Leicester's Commonwealth_, and the _Conference_, to the
legitimacy of the Seymours. Catherine Grey had been betrothed, or
perhaps married, to Lord Herbert, son of the Earl of Pembroke, during
the brilliant days of her family, at the close of Edward's reign. But on
her father's fall Pembroke caused a sentence of divorce to be
pronounced, the grounds of which do not appear, but which was probably
sufficient in law to warrant her subsequent union with Hertford. No
advantage is taken of this in the proceedings, which seems to show that
there was no legal bond remaining between the parties. Camden says she
was divorced from Lord Herbert, "being so far gone with child, as to be
very near her time." But from her youth at the time, and the silence of
all other writers, I conclude this to be unworthy of credit.
[477] Bolingbroke is of this opinion; considering the act of recognition
as "the æra of hereditary right, and of all those exalted notions
concerning the power of prerogative of kings and the sacredness of their
persons." _Dissertation on Parties_, Letter II.
[478] Stat. 1 Jac. c. 1.
[479] This is confirmed by a curious little tract in the British Museum,
Sloane MSS. 827, containing a short history of the queen's death, and
new king's accession. It affords a good contemporary illustration of the
various feelings which influenced men at this crisis, and is written in
a dispassionate manner. The author ascribes the loss of Elizabeth's
popularity to the impoverishment of the realm, and to the abuses which
prevailed. Carte says, "foreigners were shocked on James's arrival at
the applause of the populace who had professed to adore the late queen,
but in fact she had no huzzas after Essex's execution. She was in four
days' time as much forgot as if she had never existed, by all the world,
and even by her own servants." Vol. iii. p. 707. This is exaggerated,
and what Carte could not know; but there is no doubt that the generality
were glad of a change.
[480] Carte, no foe surely to the house of Stuart, says: "By the time he
reached London, the admiration of the intelligent world was turned into
contempt." On this journey he gave a remarkable proof of his hasty
temper and disregard of law, in ordering a pickpocket taken in the fact
to be hanged without trial. The historian last quoted thinks fit to say
in vindication, that "all felonies committed within the verge of the
court are cognizable in the court of the king's household," referring to
33 H. 8, c. i. This act, however, contains no such thing; nor does any
court appear to have been held. Though the man's notorious guilt might
prevent any open complaint of so illegal a proceeding, it did not fail
to excite observation. "I hear our new king," says Sir John Harrington,
"has hanged one man before he was tried; it is strangely done: now if
the wind bloweth thus, why may not a man be tried before he has
offended?" _Nugæ Antiquæ_, vol. i. p. 180.
Birch and Carte tell us, on the authority of the French ambassador's
despatches, that on this journey he expressed a great contempt for
women, suffering them to be presented on their knees, and indiscreetly
censuring his own wife; that he offended the military men by telling
them they might sheathe their swords, since peace was his object; that
he showed impatience of the common people who flocked to see him while
hunting, driving them away with curses, very unlike the affable manners
of the late queen. This is confirmed by Wilson, in Kennet's _Complete
History_, vol. ii. p. 667.
[481] Sully, being sent over to compliment James on his accession,
persisted in wearing mourning for Elizabeth, though no one had done so
in the king's presence, and he was warned that it would be taken ill;
"dans une cour 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." _Mém. de Sully_, l. 14. James
afterwards spoke slightingly to Sully of his predecessor, and said that
he had long ruled England through her ministers.
[482] It was subscribed by 825 ministers from twenty-five counties. It
states, that neither as factious men desiring a popular party in the
church, nor as schismatics aiming at the dissolution of the state
ecclesiastical, they humbly desired the redress of some abuses. Their
objections were chiefly to the cap and surplice, the cross in baptism,
baptism by women, confirmation, the ring in marriage, the reading of the
Apocrypha, bowing at the name of Jesus, etc.; to non-residence and
incapable ministers, the commendams held by bishops, unnecessary
excommunications, and other usual topics. Neal, p. 408; Fuller, part ii.
p. 22.
[483] The puritans seem to have flattered themselves that James would
favour their sect, on the credit of some strong assertions he had
occasionally made of his adherence to the Scots kirk. Some of these were
a good while before; but on quitting the kingdom he had declared that he
left it in a state which he did not intend to alter. Neal, 406. James,
however, was all his life rather a bold liar than a good dissembler. It
seems strange that they should not have attended to his _Basilicon
Doron_, printed three years before, though not for general circulation,
wherein there is a passage quite decisive of his disposition towards the
presbyterians and their scheme of polity. The Millenary Petition indeed
did not go so far as to request anything of that kind.
[484] Strype's _Whitgift_, p. 571; Collier, p. 675; Neal, p. 411;
Fuller, part ii. p. 7.; _State Trials_, vol. ii. p. 69; _Phoenix
Britannicus_, i. 141; Winwood, ii. 13. All these, except the last, are
taken from an account of the conference published by Barlow, and
probably more favourable to the king and bishops than they deserved. See
what Harrington, an eye-witness, says in _Nugæ Antiquæ_, i. 181, which I
would quote as the best evidence of James's behaviour, were the passage
quite decent.
[485] Reynolds, the principal disputant on the puritan side, was nearly,
if not altogether, the most learned man in England. He was censured by
his faction for making a weak defence; but the king's partiality and
intemperance plead his apology. He is said to have complained of unfair
representation in Barlow's account. _Hist. and Ant. of Oxford_, ii. 293.
James wrote a conceited letter to one Blake, boasting of his own
superior logic and learning. Strype's _Whitgift_, Append. 239.
[486] Rymer, xvi. 565.
[487] Strype's _Whitgift_, 587. How desirous men not at all connected in
faction with the puritans were of amendments in the church, appears by a
tract of Bacon, written, as it seems, about the end of 1603, vol. i. p.
387.--He excepts to several matters of ceremony; the cap and surplice,
the ring in marriage, the use of organs, the form of absolution,
lay-baptism, etc.; and inveighs against the abuse of excommunication,
against non-residence and pluralities, the oath _ex officio_, the sole
exercise of ordination and jurisdiction by the bishop, conceiving that
the dean and chapter should always assent, etc. And, in his predominant
spirit of improvement, asks, "Why the civil state should be purged and
restored by good and wholesome laws made every three or four years in
parliament assembled, devising remedies as fast as time breedeth
mischief; and contrariwise the ecclesiastical state should still
continue upon the dregs of time, and receive no alteration now for these
forty-five years or more?"
[488] _Id. ibid._
[489] Neal, 432; Winwood, ii. 36.
[490] See one of the _Somers Tracts_, vol. ii. p. 144, entitled
"Advertisements of a Loyal Subject, drawn from the Observation of the
People's Speeches." This appears to have been written before the meeting
of parliament. The French ambassadors, Sully and La Boderie, thought
most contemptibly of the king. Lingard, vol. ix. p. 107. His own
courtiers, as their private letters show, disliked and derided him.
[491] King James's Works, p. 207.
[492] _Parl. Hist._ i. 967.
[493] Commons' Journals, i. 166.
[494] It appears that some of the more eager patriots were dissatisfied
at the concession made by vacating Goodwin's seat, and said they had
drawn on themselves the reproach of inconstancy and levity. "But the
acclamation of the house was, that it was a testimony of our duty, and
no levity." It was thought expedient, however, to save their honour,
that Goodwin should send a letter to the speaker expressing his
acquiescence. P. 168.
[495] Commons' Journals, 147, etc.; _Parl. Hist._ 997; Carte, iii. 730,
who gives, on this occasion, a review of the earlier cases where the
house had entered on matters of election. See also a rather curious
letter of Cecil in Winwood's _Memorials_, ii. 18, where he artfully
endeavours to treat the matter as of little importance.
[496] Commons' Journals, page 155, etc.; _Parl. Hist._ 1028; Carte, 734.
[497] 1 Jac. i. c. 13.
[498] By one of these canons, all persons affirming any of the
thirty-nine articles to be erroneous are excommunicated _ipso facto_;
consequently become incapable of being witnesses, of suing for their
debts, etc. Neal, 428. But the courts of law disregarded these _ipso
facto_ excommunications.
[499] _Somers Tracts_, ii. 14; Journals, 199, 235, 238; _Parl. Hist._
1067. It is here said, that a bill restraining excommunications passed
into a law, which does not appear to be true, though James himself had
objected to their frequency. I cannot trace such a bill in the journals
beyond the committee, nor is it in the statute-book. The fact is, that
the king desired the house to confer on the subject with the
convocation, which they justly deemed unprecedented, and derogatory to
their privileges; but offered to confer with the bishops, as lords of
parliament. Journals, 173.
[500] Bacon's Works, i. 624; Journals, 190, 215.
[501] Commons' Journals, 150, etc.
[502] Journals, 246.
[503] Journals, 230.
[504] _Parl. Hist._ 1030, from Petyt's _Jus Parliamentarium_, the
earliest book, as far as I know, where this important document is
preserved. The entry on the Journals, p. 243, contains only the first
paragraph. Hume and Carte have been ignorant of it. It is just alluded
to by Rapin.
It is remarked that the attendance of members in this session was more
frequent than had ever been known, so that fresh seats were required.
Journals, 141.
[505] "My faithful 3, such is now my misfortune, as I must be for this
time secretary to the devil in answering your letters directed unto him.
That the entering now into the matter of the subsidy should be deferred
until the council's next meeting with me, I think no ways convenient,
especially for three reasons. First, ye see it has bin already longest
delayd of anything, and yet yee see the lower house are ever the longer
the further from it; and (as in everything that concerns mee) delay of
time does never turn them towards mee, but, by the contrary, every hour
breedeth a new trick of contradiction amongst them, and every day
produces new matter of sedition, so fertile are their brains in ever
buttering forth venome. Next, the Parlt. is now so very near an end, as
this matter can suffer no longer delay. And thirdly, if this be not
granted unto before they receive my answer unto their petition, it needs
never to be moved, for the will of man or angel cannot devise a pleasing
answer to their proposition, except I should pull the crown not only
from my own head, but also from the head of all those that shall succeed
unto mee, and lay it down at their feet. And that freedom of uttering my
thoughts, which no extremity, strait nor peril of my life could ever
bereave mee of in time past, shall now remain with me, as long as the
soul shall with the body. And as for the Reservations of the Bill of
Tonnage and Poundage, yee of the Upper House must out of your Love and
Discretion help it again or otherwise they will in this, as in all
things else that concern mee, wrack both me and all my Posterity. Yee
may impart this to little 10 and bigg Suffolk. And so Farewell from my
Wildernesse, wch I had rather live in (as God shall judge mee) like an
Hermite in this Forrest, then be a King over such a People as the pack
of Puritans are that over-rules the lower house.
J. R."
MS. penes autorem.
I cannot tell who is addressed in this letter by the numeral 3; perhaps
the Earl of Dunbar. By 10 we must doubtless understand Salisbury.
[506] _Parl. Hist. Journals_, 274, 278, etc. In a conference with the
Lords on this bill, Mr. Hare, a member, spoke so warmly, as to give
their lordships offence, and to incur some reprehension. "You would have
thought," says Sir Thomas Hoby, in a manuscript letter in the Museum,
Sloane MSS. 4161, "that Hare and Hyde represented two tribunes of the
people." But the Commons resented this infringement on their privileges,
and after voting that Mr. Hare did not err in his employment in the
committee with the Lords, sent a message to inform the other house of
their vote, and to request that they "would forbear hereafter any
taxations and reprehensions in their conferences." Journals, 20th and
22nd Feb.
[507] Journals, 316.
An acute historical critic doubts whether James aimed at an union of
legislatures, though suggested by Bacon. Laing's _Hist. of Scotland_,
iii. 17. It is certain that his own speeches on the subject do not
mention this; nor do I know that it was ever distinctly brought forward
by the government; yet it is hard to see how the incorporation could
have been complete without it. Bacon not only contemplates the formation
of a single parliament, but the alterations necessary to give it effect
(vol. i. p. 638), suggesting that the previous commission of lords of
articles might be adopted for some, though not for all purposes. This of
itself was a sufficient justification for the dilatoriness of the
English parliament. Nor were the common lawyers who sat in the house
much better pleased with Bacon's schemes for remodelling all our laws.
See his speech (vol. i. p. 654) for naturalising the ante-nati. In this
he asserts the kingdom not to be fully peopled; "the territories of
France, Italy, Flanders, and some parts of Germany, do in equal space of
ground bear and contain a far greater quantity of people, if they were
mustered by the poll;" and even goes on to assert the population to have
been more considerable under the heptarchy.
[508] It was held by twelve judges out of fourteen, in Calvin's case,
that the post-nati, or Scots born after the king's accession, were
natural subjects of the King of England. This is laid down, and
irresistibly demonstrated, by Coke, then chief justice, with his
abundant legal learning. _State Trials_, vol. ii. 559.
It may be observed, that the high-flying creed of prerogative mingled
itself intimately with this question of naturalisation; which was much
argued on the monarchical principle of personal allegiance to the
sovereign, as opposed to the half-republican theory that lurked in the
contrary proposition. "Allegiance," says Lord Bacon, "is of a greater
extent and dimension than laws or kingdoms, and cannot consist by the
laws merely, because it began before laws; it continueth after laws, and
it is in vigour when laws are suspended and have not had their force."
_Id._ 596. So Lord Coke: "Whatsoever is due by the law or constitution
of man may be altered; but natural legiance or obedience of the subject
to the sovereign cannot be altered; ergo, natural legiance or obedience
to the sovereign is not due by the law or constitution of man."--652.
There are many doubtful positions scattered through the judgment in this
famous case. Its surest basis is the long series of precedents, evincing
that the natives of Jersey, Guernsey, Calais, and even Normandy and
Guienne, while these countries appertained to the kings of England,
though not in right of its crown, were never reputed aliens.
[509] The house had lately expelled Sir Christopher Pigott for
reflecting on the Scots nation in a speech. Journals, 13th Feb. 1607.
[510] Commons' Journals, 366.
The journals are full of notes of these long discussions about the union
in 1604, 1606, 1607, and even 1610. It is easy to perceive a jealousy
that the prerogative by some means or other would be the gainer. The
very change of name to Great Britain was objected to. One said, we
cannot legislate for Great Britain. P. 186. Another, with more
astonishing sagacity, feared that the king might succeed, by what the
lawyers call _remitter_, to the prerogatives of the British kings before
Julius Cæsar, which would supersede Magna Charta. P. 185.
James took the title of King of Great Britain in the second year of his
reign. Lord Bacon drew a well-written proclamation on that occasion.
Bacon, i. 621; Rymer, xvi. 603. But it was, not long afterwards,
abandoned.
[511] Commons' Journals, p. 370.
[512] P. 377.
[513] Commons' Journals, p. 384.
[514] James entertained the strange notion that the war with Spain
ceased by his accession to the throne. By a proclamation dated 23rd June
1603, he permits his subjects to keep such ships as had been captured by
them before the 24th April, but orders all taken since to be restored to
the owners. Rymer, xvi. 516. He had been used to call the Dutch rebels,
and was probably kept with difficulty by Cecil from displaying his
partiality still more outrageously. Carte, iii. 714. All the council,
except this minister, are said to have been favourable to peace. _Id._
938.
[515] Winwood, vol. ii. 100, 152, etc.; Birch's _Negotiations of
Edmondes_. If we may believe Sir Charles Cornwallis, our ambassador at
Madrid, "England never lost such an opportunity of winning honour and
wealth, as by relinquishing the war." The Spaniards were astonished how
peace could have been obtained on such advantageous conditions. Winwood,
p. 75.
[516] Bacon, i. 663; Journals, p. 341. Carte says, on the authority of
the French ambassador's despatches, that the ministry secretly put
forward this petition of the Commons in order to frighten the Spanish
court into making compensation to the merchants, wherein they succeeded.
iii. 766. This is rendered very improbable by Salisbury's behaviour. It
was Carte's mistake to rely too much on the despatches he was permitted
to read in the 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.
[517] There was a duty on wool, woolfells, and leather, called magna, or
sometimes antiqua custuma, which is said in Dyer to have been by
prescription, and by the barons in Bates's case to have been imposed by
the king's prerogative. As this existed before the 25th Edward I., it is
not very material whether it were so imposed, or granted by parliament.
During the discussion, however, which took place in 1610, a record was
discovered of 3 Edw. I. proving it to have been granted par tous les
grauntz del realme, par la 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.
[518] Dyer, fol. 165. An argument of the great lawyer Plowden in this
case of the queen's increasing the duty on cloths is in the British
Museum, Hargrave MSS. 32, and seems, as far as the difficult handwriting
permitted me to judge, adverse to the prerogative.
[519] This case I have had the good fortune to discover in one of Mr.
Hargrave's MSS. in the Museum, 132, fol. 66. It is in the handwriting of
Chief Justice Hyde (temp. Car. I.), who has written in the margin: "This
is the report of a case in my lord Dyer's written original, but is not
in the printed books." The reader will judge for himself why it was
omitted, and why the entry of the former case breaks off so abruptly.
"Philip and Mary granted to the town of Southampton that all malmsy
wines should be landed at that port under penalty of paying treble
custom. Some merchants of Venice having landed wines elsewhere, an
information was brought against them in the exchequer (1 Eliz.), and
argued several times in the presence of all the judges. Eight were of
opinion against the letters patent, among whom Dyer and Catlin, chief
justices, as well for the principal matter of restraint in the landing
of malmsies at the will and pleasure of the merchants, for that it was
against the laws, statutes, and customs of the realm (Magna Charta, c.
30; 9 E. 3; 14 E. 3; 25 E. 3, c. 2; 27 E. 3; 28 E. 3; 2 R. 2, c. 1, and
others), as also in the assessment of treble custom, _which is merely
against the law_; also the prohibition above said was held to be
private, and not public. But Baron Lake _e contra_, and Browne J.
_censuit deliberandum_. And after, at an after meeting the same Easter
term at Serjeants' Inn, it was resolved as above. And after by
parliament (5 Eliz.) the patent was confirmed and affirmed against
aliens."
[520] Bacon, i. 521.
[521] Hale's _Treatise on the Customs_, part 3; in Hargrave's
_Collection of Law Tracts_. See also the preface by Hargrave to Bates's
case, in the _State Trials_, where this most important question is
learnedly argued.
[522] He had previously published letters patent, setting a duty of six
shillings and eight-pence a pound, in addition to two-pence already
payable, on tobacco; intended no doubt to operate as a prohibition of a
drug he so much hated. Rymer, xvi. 602.
[523] _State Trials_, ii. 371.
[524] Hale's _Treatise on the Customs_. These were perpetual, "to be for
ever hereafter paid to the king and his successors, on pain of his
displeasure." _State Trials_, 481.
[525] Journals, 295, 297.
[526] Mr. Hakewill's speech, though long, will repay the diligent
reader's trouble, as being a very luminous and masterly statement of
this great argument. _State Trials_, ii. 407. The extreme inferiority of
Bacon, who sustained the cause of prerogative, must be apparent to every
one. _Id._ 345. Sir John Davis makes somewhat a better defence; his
argument is, that the king may lay an embargo on trade, so as to prevent
it entirely, and consequently may annex conditions to it. _Id._ 399. But
to this it was answered, that the king can only lay a temporary embargo,
for the sake of some public good, not prohibit foreign trade altogether.
As to the king's prerogative of restraining foreign trade, see extracts
from Hale's MS. Treatise de Jure Coronæ, in Hargrave's Preface to
_Collection of Law Tracts_, p. xxx. etc. It seems to have been chiefly
as to exportation of corn.
[527] Aikin's _Memoirs of James I._ i. 350. This speech justly gave
offence. "The 21st of this present (May 1610)," says a correspondent of
Sir Ralph Winwood, "he made another speech to both the houses, but so
little to their satisfaction that I hear it bred generally much
discomfort to see our monarchical power and royal prerogative strained
so high, and made so transcendent every way, that if the practice should
follow the positions, we are not likely to leave to our successors that
freedom we received from our forefathers; nor make account of anything
we have, longer than they list that govern." Winwood, iii. 175. The
traces of this discontent appear in short notes of the debate. Journals,
p. 430.
[528] Journals, 431.
[529] _Somers Tracts_, vol. ii. 159; in the Journals much shorter.
[530] These canons were published in 1690 from a copy belonging to
Bishop Overall, with Sancroft's imprimatur. The title-page runs in an
odd expression: "Bishop Overall's Convocation-Book concerning the
Government of God's Catholic Church and the Kingdoms of the whole
World." The second canon is as follows: "If any man shall affirm that
men at the first ran up and down in woods and fields, etc., until they
were taught by experience the necessity of government; and that
therefore they chose some among themselves to order and rule the rest,
giving them power and authority so to do; and that consequently all
civil power, jurisdiction, and authority, was first derived from the
people and disordered multitude, or either is originally still in them,
or else is deduced by their consent naturally from them, and is not
God's ordinance, originally descending from him and depending upon him,
he doth greatly err."--P. 3.
[531] Coke's 2nd Institute, 601; Collier, 688; _State Trials_, ii. 131.
See too an angry letter of Bancroft, written about 1611 (Strype's _Life
of Whitgift_, Append. 227), wherein he inveighs against the common
lawyers and the parliament.
[532] Cowell's _Interpreter, or Law Dictionary_; edit. 1607. These
passages are expunged in the later editions of this useful book. What
the author says of the writ of prohibition, and the statutes of
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.
[533] Commons' Journals, 339, and afterwards to 415. The authors of the
_Parliamentary History_ say there is no further mention of the business
after the conference, overlooking the most important circumstance, the
king's proclamation suppressing the book, which yet is mentioned by
Rapin and Carte, though the latter makes a false and disingenuous excuse
for Cowell. Vol. iii. p. 798. Several passages concerning this affair
occur in Winwood's _Memorials_, to which I refer the curious reader. Vol.
iii. p. 125, 129, 131, 136, 137, 145.
[534] Winwood, iii. 123.
[535] _Somers Tracts_, ii. 162; _State Trials_, ii. 519.
[536] The court of the council of Wales was erected by statute 34 H. 8,
c. 26, for that principality and its marches, with authority to
determine such causes and matters as should be assigned to them by the
king, "as heretofore hath been accustomed and used;" which implies a
previous existence of some such jurisdiction. It was pretended, that the
four counties of Hereford, Worcester, Gloucester, and Salop were
included within their authority, as marches of Wales. This was
controverted in the reign of James by the inhabitants of these counties,
and on reference to the twelve judges, according to Lord Coke, it was
resolved that they were ancient English shires, and not within the
jurisdiction of the council of Wales; "and yet," he subjoins, "the
commission was not after reformed in all points as it ought to have
been." Fourth Inst. 242. An elaborate argument in defence of the
jurisdiction may be found in Bacon, ii. 122. And there are many papers
on this subject in Cotton MSS. Vitellius, C. i. The complaints of this
enactment had begun in the time of Elizabeth. It was alleged that the
four counties had been reduced from a very disorderly state to
tranquillity by means of the council's jurisdiction. But, if this were
true, it did not furnish a reason for continuing to exclude them from
the general privileges of the common law, after the necessity had
ceased. The king, however, was determined not to concede this point.
Carte, iii. 794.
[537] Commons' Journals for 1610, _passim_; Lords' Journals, 7th May,
_et post_; _Parl. Hist._ 1124, _et post_; Bacon, i. 676; Winwood, iii.
119, _et post_.
[538] It appears by a letter of the king, in Murden's _State Papers_, p.
813, that some indecent allusions to himself in the House of Commons had
irritated him. "Wherein we have misbehaved ourselves, we know not, nor
we can never yet learn; but sure we are, we may say with Bellarmin in
his book, that in all the lower houses these seven years past,
especially these two last sessions, Ego pungor, ego carpor. Our fame and
actions have been tossed like tennis-balls among them, and all that
spite and malice durst do to disgrace and inflame us hath been used. To
be short, this lower house by their behaviour have perilled and annoyed
our health, wounded our reputation, emboldened all ill-natured people,
encroached upon many of our privileges, and plagued our people with
their delays. It only resteth now, that you labour all you can to do
that you think best to the repairing of our estate."
[539] "Your queen," says Lord Thos. Howard, in a letter, "did talk of
her subjects' love and good affection, and in good truth she aimed well;
our king talketh of his subjects' fear and subjection, and herein I
think he doth well too, as long as it holdeth good." _Nugæ Antiquæ_, i.
395.
[540] The court of James I. was incomparably the most disgraceful scene
of profligacy which this country has ever witnessed; equal to that of
Charles II. in the laxity of female virtue, and without any sort of
parallel in some other respects. Gross drunkenness is imputed even to
some of the ladies who acted in the court pageants (_Nugæ Antiquæ_, i.
348), which Mr. Gifford, who seems absolutely enraptured with this age
and its manners, might as well have remembered. _Life of Ben Jonson_, p.
231, etc. The king's prodigality is notorious.
[541] "It is atheism and blasphemy," he says in a speech made in the
star-chamber, 1616, "to dispute what God can do; good Christians content
themselves with his will revealed in his word; so it is presumption and
high contempt in a subject to dispute what a king can do, or say that a
king cannot do this or that." King James's works, p. 557.
It is probable that his familiar conversation was full of this
rodomontade, disgusting and contemptible from so wretched a pedant, as
well as offensive to the indignant ears of those who knew and valued
their liberties. The story of Bishops Neile and Andrews is far too trite
for repetition.
[542] Carte, iii. 747; Birch's _Life of P. Henry_, 405. Rochester, three
days after, directed Sir Thomas Edmondes at Paris to commence a
negotiation for a marriage between Prince Charles and the second
daughter of the late King of France. But the ambassador had more sense
of decency, and declined to enter on such an affair at that moment.
[543] Winwood, vol. ii.; Carte, iii. 749; Watson's _Hist. of Philip
III._ Appendix. In some passages of this negotiation Cecil may appear
not wholly to have deserved the character I have given him for adhering
to Elizabeth's principles of policy. But he was placed in a difficult
position, not feeling himself secure of the king's favour, which,
notwithstanding his great previous services, that capricious prince, for
the first year after his accession, rather sparingly afforded; as
appears from the _Memoirs of Sully_, l. 14, and _Nugæ. Antiquæ_, i. 345.
It may be said that Cecil was as little Spanish, just as Walpole was as
little Hanoverian, as the partialities of their respective sovereigns
would permit for their own reputation. It is hardly necessary to
observe, that James and the kingdom were chiefly indebted to Cecil for
the tranquillity that attended the accession of the former to the
throne. I will take this opportunity of noticing that the learned and
worthy compiler of the catalogue of the Lansdowne manuscripts in the
Museum has thought fit not only to charge Sir Michael Hicks with
venality, but to add: "It is certain that articles among these papers
contribute to justify very strong suspicions, that neither of the
secretary's masters [Lord Burleigh and Lord Salisbury] was altogether
innocent on the score of corruption." _Lands. Cat._ vol. xci. p. 45.
This is much too strong an accusation to be brought forward without more
proof than appears. It is absurd to mention presents of fat bucks to men
in power, as bribes; and rather more so to charge a man with being
corrupted because an attempt is made to corrupt him, as the
catalogue-maker has done in this place. I would not offend this
respectable gentleman; but by referring to many of the Lansdowne
manuscripts I am enabled to say that he has travelled frequently out of
his province, and substituted his conjectures for an analysis or
abstract of the document before him.
[544] A great part of Winwood's third volume relates to this business,
which, as is well known, attracted a prodigious degree of attention
throughout Europe. The question, as Winwood wrote to Salisbury, was "not
of the succession of Cleves and Juliers, but whether the house of
Austria and the church of Rome, both now on the wane, shall recover
their lustre and greatness in these parts of Europe."--P. 378. James
wished to have the right referred to his arbitration, and would have
decided in favour of the Elector of Brandenburg, the chief protestant
competitor.
[545] Winwood, vols. ii. and iii. _passim_. Birch, that accurate master
of this part of English history, has done justice to Salisbury's
character. _Negotiations of Edmondes_, p. 347. Miss Aikin, looking to
his want of constitutional principle, is more unfavourable, and perhaps
on the whole justly; but what statesman of that age was ready to admit
the new creed of parliamentary control over the executive government?
_Memoirs of James_, i. 395.
[546] "On Sunday, before the king's going to Newmarket (which was Sunday
last was a se'nnight), my Lord Coke and all the judges of the common law
were before his majesty to answer some complaints made by the civil
lawyers for the general granting of prohibitions. I heard that the Lord
Coke, amongst other offensive speech, should say to his majesty that his
highness was defended by his laws. At which saying, with other speech
then used by the Lord Coke, his majesty was very much offended, and told
him he spoke foolishly, and said that he was not defended by his laws,
but by God, and so gave the Lord Coke, in other words, a very sharp
reprehension, both for that and other things; and withal told him that
Sir Thomas Crompton (judge of the admiralty) was as good a man as Coke;
my Lord Coke having then, by way of exception, used some speech against
Sir Thomas Crompton. Had not my lord treasurer, most humbly on his knee,
used many good words to pacify his majesty and to excuse that which had
been spoken, it was thought his highness would have been much more
offended. In the conclusion, his majesty, by the means of my lord
treasurer, was well pacified, and gave a gracious countenance to all the
other judges, and said he would maintain the common law." Lodge, iii.
364. The letter is dated 25th November 1608, which shows how early Coke
had begun to give offence by his zeal for the law.
[547] 12 Reports. In his second Institute, p. 57, written a good deal
later, he speaks in a very different manner of Bates's case, and
declares the judgment of the court of exchequer to be contrary to law.
[548] 12 Reports. There were, however, several proclamations afterwards
to forbid building within two miles of London, except on old
foundations, and in that case only with brick or stone, under penalty of
being proceeded against by the attorney-general in the star-chamber.
Rymer, xvii. 107 (1618), 144 (1619), 607 (1624). London nevertheless
increased rapidly, which was by means of licences to build; the
prohibition being in this, as in many other cases enacted chiefly for
the sake of the dispensations.
James made use of proclamations to infringe personal liberty in another
respect. He disliked to see any country-gentleman come up to London,
where, it must be confessed, if we trust to what those proclamations
assert and the memoirs of the age confirm, neither their own behaviour,
nor that of their wives and daughters, who took the worst means of
repairing the ruin their extravagance had caused, redounded to their
honour. The king's comparison of them to ships in a river and in the sea
is well known. Still, in a constitutional point of view, we may be
startled at proclamations commanding them to return to their
country-houses and maintain hospitality, on pain of condign punishment.
Rymer, xvi. 517 (1604); xvii. 417 (1622), 632 (1624).
I neglected, in the first chapter, the reference I had made to an
important dictum of the judges in the reign of Mary, which is decisive
as to the legal character of proclamations even in the midst of the
Tudor period. "The king, it is said, may make a proclamation quoad
terrorem populi, to put them in fear of his displeasure, but not to
impose any fine, forefeiture, or imprisonment; for no proclamation can
make a new law, but only confirm and ratify an ancient one." Dalison's
Reports, 20.
[549] Winwood, iii. 193.
[550] Carte, iii. 805.
[551] The number of these was intended to be two hundred, but only
ninety-three patents were sold in the first six years. Lingard, ix. 203,
from _Somers Tracts_. In the first part of his reign he had availed
himself of an old feudal resource, calling on all who held £40 a year in
chivalry (whether of the crown or not, as it seems) to receive
knighthood, or to pay a composition. Rymer, xvi. 530. The object of this
was of course to raise money from those who thought the honour
troublesome and expensive, but such as chose to appear could not be
refused; and this accounts for his having made many hundred knights in
the first year of his reign. Harris's _Life of James_, 69.
[552] MS. penes autorem.
[553] Carte, iv. 17.
[554] Wilson, in Kennet, ii. 696.
[555] This act (34 H. 8, c. 26) was repealed a few years afterwards. 21
J. 1, c. 10.
[556] Commons' Journals, 466, 472, 481, 486. Sir Henry Wotton at length
muttered something in favour of the prerogative of laying impositions,
as belonging to hereditary though not to elective princes. _Id._ 493.
This silly argument is only worth notice, as a proof what erroneous
notions of government were sometimes imbibed from an intercourse with
foreign nations. Dudley Digges and Sandys answered him very properly.
[557] The judges having been called upon by the House of Lords to
deliver their opinions on the subject of impositions, previous to the
intended conference, requested, by the mouth of Chief Justice Coke, to
be excused. This was probably a disappointment to Lord Chancellor
Egerton, who had moved to consult them, and proceeded from Coke's
dislike to him and to the court. It induced the house to decline the
conference. Lords' Journals, 23rd May.
[558] Lords' Journals, May 31; Commons' Journals, 496, 498.
[559] Carte, iv. 23. Neville's memorial above mentioned was read in the
house, May 14.
[560] Carte, iv. 19, 20; Bacon, i. 695; C. J. 462.
[561] C. J. 506; Carte, 23. This writer absurdly defends the prerogative
of laying impositions on merchandise as part of the _law of nations_.
[562] It is said that, previously to taking this step, the king sent for
the Commons, and tore all their bills before their faces in the
banqueting-house at Whitehall. D'Israeli's _Character of James_, p. 158,
on the authority of an unpublished letter.
[563] Carte; Wilson; Camden's _Annals of James I._ (in Kennet, ii. 643).
[564] Carte, iv. p. 56.
[565] 12 Reports, 119.
[566] _State Trials_, ii. 889.
[567] There had, however, been instances of it, as in Sir Walter
Raleigh's case (Lodge, iii. 172, 173); and I have found proofs of it in
the queen's reign; though I cannot at present quote my authority. In a
former age, the judges had refused to give an extra-judicial answer to
the king. Lingard, v. 382, from the year-book, Pasch. 1 H. 7, 15, Trin.
1.
[568] _State Trials_, ii. 869; Bacon, ii. 483, etc.; Dalrymple's
_Memorials of James I._, vol. i. p. 56. Some other very unjustifiable
constructions of the law of treason took place in this reign. Thomas
Owen was indicted and found guilty, under the statute of Edward III.,
for saying, that "the king, being excommunicated (_i.e._ if he should be
excommunicated) by the pope, might be lawfully deposed and killed by any
one, which killing would not be murder, being the execution of the
supreme sentence of the pope;" a position very atrocious, but not
amounting to treason. _State Trials_, ii. 879. And Williams, another
papist, was convicted of treason by a still more violent stretch of law,
for writing a book predicting the king's death in the year 1621. _Id._
1085.
[569] Bacon, ii. 500, 518, 522; Cro. Jac. 335, 343.
[570] Bacon, ii. 517, etc.; Carte, iv. 35; _Biograph. Brit._, art. Coke.
The king told the judges, he thought his prerogative as much wounded if
it be publicly disputed upon, as if any sentence were given against it.
[571] See D'Israeli, _Character of James I._, p. 125. He was too much
affected by his dismissal from office.
[572] Camden's _Annals of James I._ in Kennet, vol. ii.; Wilson,
_ibid._, 704, 705; Bacon's Works, ii. 574. The fine imposed was £30,000;
Coke voted for £100,000.
[573] Fuller's _Church Hist._ 56; Neal, i. 435; Lodge, iii. 344.
[574] _State Trials_, ii. 765.
[575] Collier, 712, 717; Selden's Life in _Biographia Brit._
[576] Carte, iii. 698.
[577] _State Trials_, ii. 23; Lodge's _Illustrations_, iii. 217.
[578] Winwood, iii. 201, 279.
[579] _Id._ 178. In this collection are one or two letters from
Arabella, which show her to have been a lively and accomplished woman.
It is said in a manuscript account of circumstances about the king's
accession, which seems entitled to some credit, that on its being
proposed that she should walk at the queen's funeral, she answered with
spirit that, as she had been debarred her majesty's presence while
living, she would not be brought on the stage as a public spectacle
after her death. Sloane MSS. 827.
Much occurs on the subject of this lady's imprisonment in one of the
valuable volumes in Dr. Birch's handwriting, among the same MSS. 4161.
Those have already assisted Mr. D'Israeli in his interesting memoir on
Arabella Stuart, in the _Curiosities of Literature_, New Series, vol. i.
They cannot be read (as I should conceive) without indignation at James
and his ministers. One of her letters is addressed to the two
chief-justices, begging to be brought before them by habeas corpus,
being informed that it is designed to remove her far from those courts
of justice where she ought to be tried and condemned, or cleared, to
remote parts, whose courts she holds unfitted for her offence. "And if
your lordships may not or will not grant unto me the ordinary relief of
a distressed subject, then I beseech you become humble intercessors to
his majesty that I may receive such benefit of justice, as both his
majesty by his oath hath promised, and the laws of this realm afford to
all others, those of his blood not excepted. And though, unfortunate
woman! I can obtain neither, yet I beseech your lordships retain me in
your good opinion, and judge charitably till I be proved to have
committed any offence either against God or his majesty deserving so
long restraint or separation from my lawful husband."
Arabella did not profess the Roman catholic religion, but that party
seem to have relied upon her; and so late as 1610, she incurred some
"suspicion of being collapsed." Winwood, ii. 117.
This had been also conjectured in the queen's life-time. _Secret
Correspondence of Cecil with James I._, p. 118.
[580] _State Trials_, ii. 769.
[581] Sir Charles Cornwallis's _Memoir of Prince Henry_, reprinted in
the Somers Tracts, vol. ii., and of which sufficient extracts may be
found in Birch's life, contains a remarkably minute detail of all the
symptoms attending the prince's illness, which was an epidemic typhus
fever. The report of his physicians after dissection may also be read in
many books. Nature might possibly have overcome the disorder, if an
empirical doctor had not insisted on continually bleeding him. He had no
other murderer. We need not even have recourse to Hume's acute and
decisive remark that, if Somerset had been so experienced in this trade,
he would not have spent five months in bungling about Overbury's death.
Carte says (vol. iv. 33) that the queen charged Somerset with designing
to poison her, Prince Charles, and the elector palatine, in order to
marry the electress to Lord Suffolk's son. But this is too extravagant,
whatever Anne might have thrown out in passion against a favourite she
hated. On Henry's death the first suspicion fell of course on the
papists. Winwood, iii. 410. Burnet doubts whether his aversion to popery
did not hasten his death. And there is a remarkable letter from Sir
Robert Naunton to Winwood, in the note of the last reference, which
shows that suspicions of some such agency were entertained very early.
But the positive evidence we have of his disease outweighs all
conjecture.
[582] The circumstances to which I allude are well known to the curious
in English history, and might furnish materials for a separate
dissertation, had I leisure to stray in these by-paths. Hume has treated
them as quite unimportant; and Carte, with his usual honesty, has never
alluded to them. Those who read carefully the new edition of the _State
Trials_, and various passages in Lord Bacon's _Letters_, may form for
themselves the best judgment they can. A few conclusions may, perhaps,
be laid down as established, 1. That Overbury's death was occasioned,
not merely by Lady Somerset's revenge, but by his possession of
important secrets, which in his passion he had threatened Somerset to
divulge. 2. That Somerset conceived himself to have a hold over the king
by the possession of the same or some other secrets, and used indirect
threats of revealing them. 3. That the king was in the utmost terror at
hearing of these measures; as is proved by a passage in Weldon's
_Memoirs_, p. 115, which, after being long ascribed to his libellous
spirit, has lately received the most entire confirmation by some letters
from More, lieutenant of the Tower, published in the _Archæologia_, vol.
xviii. 4. That Bacon was in the king's confidence, and employed by him
so to manage Somerset's trial, as to prevent him from making any
imprudent disclosure, or the judges from getting any insight into that
which it was not meant to reveal. See particularly a passage in his
letter to Coke, vol. ii. 514, beginning, "This crime was second to none
but the powder-plot."
Upon the whole, I cannot satisfy myself in any manner as to this
mystery. Prince Henry's death, as I have observed, is out of the
question; nor does a different solution, hinted by Harris and others,
and which may have suggested itself to the reader, appear probable to my
judgment on weighing the whole case. Overbury was an ambitious,
unprincipled man; and it seems more likely than anything else, that
James had listened too much to some criminal suggestion from him and
Somerset; but of what nature I cannot pretend even to conjecture; and
that through apprehension of this being disclosed, he had
pusillanimously acquiesced in the scheme of Overbury's murder.
It is a remarkable fact, mentioned by Burnet, and perhaps little
believed, but which, like the former, has lately been confirmed by
documents printed in the _Archæologia_, 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. _Archæologia_, vol.
xvii. 280. But no consequences resulted from this; James was either
reconciled to his favourite before his death, or felt himself too old
for a struggle. Somerset seems to have tampered a little with the
popular party in the beginning of the next reign. A speech of Sir Robert
Cotton's in 1625 (_Parl. Hist._ ii. 145) praises him, comparatively at
least with his successor in royal favour; and he was one of those
against whom informations were brought in the star-chamber for
dispersing Sir Robert Dudley's famous proposal for bridling the
impertinences of parliament. Kennet, iii. 62. The patriots, however, of
that age had too much sense to encumber themselves with an ally equally
unserviceable and infamous. There cannot be the slightest doubt of
Somerset's guilt as to the murder, though some have thought the evidence
insufficient (Carte, iv. 34); he does not deny it in his remarkable
letter to James, requesting, or rather demanding, mercy, printed in the
Cabala and in Bacon's Works.
[583] Raleigh made an attempt to destroy himself on being committed to
the Tower; which of course affords a presumption of his consciousness
that something could be proved against him. Cayley's _Life of Raleigh_,
vol. ii. p. 10. Hume says, it appears from Sully's _Memoirs_ that he had
offered his services to the French ambassador. I cannot find this in
Sully; whom Raleigh, however, and his party seem to have aimed at
deceiving by false information. Nor could there be any treason in making
an interest with the minister of a friendly power. Carte quotes the
despatches of Beaumont, the French ambassador, to prove the connection
of the conspirators with the Spanish plenipotentiary. But it may be
questioned whether he knew any more than the government gave out. If
Raleigh had ever shown a discretion bearing the least proportion to his
genius, we might reject the whole story as improbable. But it is to be
remembered that there had long been a catholic faction, who fixed their
hopes on Arabella; so that the conspiracy, though extremely injudicious,
was not so perfectly unintelligible as it appears to a reader of Hume,
who has overlooked the previous circumstances. It is also to be
considered, that the king had shown so marked a prejudice against
Raleigh on his coming to England, and the hostility of Cecil was so
insidious and implacable, as might drive a man of his rash and impetuous
courage to desperate courses. See Cayley's _Life of Raleigh_, vol. ii.;
a work containing much interesting matter, but unfortunately written too
much in the spirit of an advocate, which, with so faulty a client, must
tend to an erroneous representation of facts.
[584] This estate was Sherborn Castle, which Raleigh had not very fairly
obtained from the see of Salisbury. He settled this before his
conviction upon his son; but an accidental flaw in the deed enabled the
king to wrest it from him, and bestow it on the Earl of Somerset. Lady
Raleigh, it is said, solicited his majesty on her knees to spare it; but
he only answered, "I mun have the land, I mun have it for Carr." He gave
him, however, £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.; _Somers Tracts_, ii. p. 22, etc.;
_Curiosities of Literature_, New Series, vol. ii. It has been said that
Raleigh's unjust conviction made him in one day the most popular, from
having been the most odious, man in England. He was certainly such under
Elizabeth. This is a striking, but by no means solitary, instance of the
impolicy of political persecution.
[585] Rymer, xvi. 789. He was empowered to name officers, to use martial
law, etc.
[586] James made it a merit with the court of Madrid, that he had put to
death a man so capable of serving him merely to give them satisfaction.
_Somers Tracts_, ii. 437. There is even reason to suspect that he
betrayed the secret of Raleigh's voyage to Gondomar, before he sailed.
Hardwicke, _State Papers_, i. 398. It is said in Mr. Cayley's _Life of
Raleigh_ that his fatal mistake in not securing a pardon under the great
seal was on account of the expense. But the king would have made some
difficulty at least about granting it.
[587] This project began as early as 1605. Winwood, vol. ii. The king
had hopes that the United Provinces would acknowledge the sovereignty of
Prince Henry and the infanta on their marriage; and Cornwallis was
directed to propose this formally to the court of Madrid. _Id._ p. 201.
But Spain would not cede the point of sovereignty; nor was this scheme
likely to please either the states-general or the court of France.
In the later negotiation about the marriage of Prince Charles, those of
the council who were known or suspected catholics, Arundel, Worcester,
Digby, Weston, Calvert, as well as Buckingham, whose connections were
such, were in the Spanish party. Those reputed to be jealous protestants
were all against it. Wilson, in Kennet, ii. 725. Many of the former were
bribed by Gondomar. _Id._ and Rushworth, i. 19.
[588] The proclamation for this parliament contains many of the
unconstitutional directions to the electors, contained, as has been
seen, in that of 1604, though shorter. Rymer, xvii. 270.
[589] "Deal with me, as I shall desire at your hands," etc. "He knew
not," he told them, "the laws and customs of the land when he first
came, and was misled by the old counsellors whom the old queen had
left;"--he owns that at the last parliament there was "a strange kind of
beast called undertaker," etc. _Parl. Hist._ i. 1180. Yet this coaxing
language was oddly mingled with sallies of his pride and prerogative
notions. It is evidently his own composition, not Bacon's. The latter,
in granting the speaker's petitions, took the high tone so usual in this
reign, and directed the House of Commons like a schoolmaster. Bacon's
Works, i. 701.
[590] Debates of Commons in 1621, vol. i. p. 84. I quote the two volumes
published at Oxford in 1766; they are abridged in the new _Parliamentary
History_.
[591] _Id._ 103, 109.
[592] The Commons in this session complained to the Lords, that the
Bishop of London (Stokesley) had imprisoned one Philips on suspicion of
heresy. Some time afterwards, they called upon him to answer their
complaint. The bishop laid the matter before the Lords, who all declared
that it was unbecoming for any lord of parliament to make answer to any
one in that place; "quod non consentaneum fuit aliquem procerum
prædictorum alicui in eo loco responsorum." Lords' Journals, i. 71. The
lords, however, in 1701 (_State Trials_, xiv. 275), seem to have
recognised this as a case of impeachment.
[593] Debates in 1621, p. 114, 228, 229.
[594] _Id. passim._
[595] Carte.
[596] Clarendon speaks of this impeachment as an unhappy precedent, made
to gratify a private displeasure. This expression seems rather to point
to Buckingham than to Coke; and some letters of Bacon to the favourite
at the time of his fall display a consciousness of having offended him.
Yet Buckingham had much more reason to thank Bacon as his wisest
counsellor, than to assist in crushing him. In his works (vol. i. p.
712) is a tract, entitled "Advice to the Duke of Buckingham," containing
instructions for his governance as minister. These are marked by the
deep sagacity and extensive observation of the writer. One passage
should be quoted in justice to Bacon. "As far as it may lie in you, let
no arbitrary power be intruded; the people of this kingdom love the laws
thereof, and nothing will oblige them more than a confidence of the free
enjoying of them: what the nobles upon an occasion once said in
parliament, 'Nolumus leges 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.
I am very loth to call Bacon, for the sake of Pope's antithesis, "the
meanest of mankind." Who would not wish to believe the feeling language
of his letter to the king, after the attack on him had already begun? "I
hope I shall not be found to have the troubled fountain of a corrupt
heart, in a depraved habit of taking rewards to pervert justice;
howsoever I may be frail, and partake of the abuses of the times."--P.
589. Yet the general disesteem of his contemporaries speaks forcibly
against him. Sir Simon d'Ewes and Weldon, both indeed bitter men, give
him the worst of characters. "Surely," says the latter, "never so many
parts and so base and abject a spirit tenanted together in any one
earthen cottage as in this man." It is a striking proof of the splendour
of Bacon's genius, that it was unanimously acknowledged in his own age
amidst so much that should excite contempt. He had indeed ingratiated
himself with every preceding parliament through his incomparable
ductility; having take an active part in their complaints of grievances
in 1604, before he became attorney-general, and even on many occasions
afterwards while he held that office, having been intrusted with the
management of conferences on the most delicate subjects. In 1614, the
Commons, after voting that the attorney-general ought not to be elected
to parliament, made an exception in favour of Bacon. Journals, p. 460.
"I have been always gracious in the lower house," he writes to James in
1616, begging for the post of chancellor; "I have interest in the
gentlemen of England, and shall be able to do some good effect in
rectifying that body of parliament-men, which is cardo rerum." Vol. ii.
p. 496.
I shall conclude this note by observing, that, if all Lord Bacon's
philosophy had never existed, there would be enough in his political
writings to place him among the greatest men this country has produced.
[597] Debates in 1621, vol. ii. p. 7.
[598] Debates, p. 14.
[599] In a former parliament of this reign, the Commons having sent up a
message, wherein they entitled themselves the knights, citizens,
burgesses, and barons of the commons' court of parliament, the Lords
sent them word that they would never acknowledge any man that sitteth in
the lower house to have the right or title of a baron of parliament; nor
could admit the term of the commons' court of parliament; "because all
your house together, without theirs, doth make no court of parliament."
4th March, 1606. Lords' Journals. Nevertheless the Lords did not scruple
almost immediately afterwards, to denominate their own house a court, as
appears by memoranda of 27th and 28th May; they even issued a habeas
corpus as from a court, to bring a servant of the Earl of Bedford before
them. So also in 1609, 16th and 17th of February. And on April 14th and
18th, 1614; and probably later, if search were made.
I need hardly mention, that the barons mentioned above, as part of the
Commons, were the members for the cinque ports, whose denomination is
recognised in several statutes.
[600] Debates in 1621, vol. i. p. 355, etc.; vol. ii. p. 5, etc. Mede
writes to his correspondent on May 11, that the execution had not taken
place; "but I hope it will." The king was plainly averse to it.
[601] The following observation on Floyd's case, written by Mr. Harley,
in a manuscript account of the proceedings (Harl. MSS. 6274), is well
worthy to be inserted. I copy from the appendix to the above-mentioned
debates of 1621. "The following collection," he has written at the top,
"is an instance how far a zeal against popery and for one branch of the
royal family, which was supposed to be neglected by King James, and
consequently in opposition to him, will carry people against common
justice and humanity." And again at the bottom: "For the honour of
Englishmen, and indeed of human nature, it were to be hoped these
debates were not truly taken, there being so many motions contrary to
the laws of the land, the laws of parliament, and common justice. Robert
Harley, July 14, 1702." It is remarkable that this date is very near the
time when the writer of these just observations, and the party which he
led, had been straining in more than one instance the privileges of the
House of Commons, not certainly with such violence as in the case of
Floyd, but much beyond what can be deemed their legitimate extent.
[602] In a much later period of the session, when the Commons had lost
their good humour, some heat was very justly excited by a petition from
some brewers, complaining of an imposition of four-pence on the quarter
of malt. The courtiers defended this as a composition in lieu of
purveyance. But it was answered that it was compulsory, for several of
the principal brewers had been committed and lay long in prison for not
yielding to it. One said that impositions of this nature overthrew the
liberty of all the subjects of this kingdom; and if the king may impose
such taxes, then are we but villains, and lose all our liberties. It
produced an order that the matter be examined before the house, the
petitioners to be heard by council, and all the lawyers of the house to
be present. Debates of 1621, vol. ii. 252; Journals, p. 652. But nothing
further seems to have taken place, whether on account of the magnitude
of the business which occupied them during the short remainder of the
session, or because a bill which passed their house to prevent illegal
imprisonment, or restraint on the lawful occupation of the subject, was
supposed to meet this case. It is a remarkable instance of arbitrary
taxation, and preparatory to an excise.
[603] Debates of 1621, p. 14; Hatsell's _Precedents_, i. 133.
[604] Debates, p. 114, _et alibi, passim_.
[605] Vol. ii. 170, 172.
[606] _Id._ p. 186.
[607] P. 189. Lord Cranfield told the Commons there were three reasons
why they should give liberally. 1. That lands were now a third better
than when the king came to the crown. 2. That wools, which were then
20_s._ were now 30_s._ 3. That corn had risen from 26_s._ to 36_s._ the
quarter. _Ibid._ There had certainly been a very great increase of
wealth under James, especially to the country gentlemen; of which their
style of building is an evident proof. Yet in this very session
complaints had been made of the want of money, and fall in the price of
lands (vol. i. p. 16); and an act was proposed against the importation
of corn (vol. ii. p. 87). In fact, rents had been enormously enhanced in
this reign, which the country gentlemen of course endeavoured to keep
up. But corn, probably through good seasons, was rather lower in 1621
than it had been--about 30_s._ a quarter.
[608] P. 242, etc.
[609] _Id._ 174, 200. Compare also p. 151. Sir Thomas Wentworth appears
to have discountenanced the resenting this as a breach of privilege.
Doubtless the house showed great and even excessive moderation in it;
for we can hardly doubt that Sandys was really committed for no other
cause than his behaviour in parliament. It was taken up again
afterwards. P. 259.
[610] P. 261, etc.
[611] P. 284.
[612] P. 289.
[613] P. 317.
[614] P. 330.
[615] P. 339.
[616] P. 359.
[617] Rymer, xvii. 344; _Parl. Hist._ Carte, 93; Wilson.
[618] Besides the historians, see Cabala, part ii. p. 155 (4to edit.);
D'Israeli's _Character of James I._, p. 125; and Mede's Letters, Harl.
MSS. 389.
[619] Wilson's _Hist. of James I._ in Kennet, ii. 247, 749. Thirty-three
peers, Mr. Joseph Mede tells us in a letter of Feb. 24, 1621 (Harl. MSS.
389), "signed a petition to the king which they refused to deliver to
the council, as he desired, nor even to the prince, unless he would say
he did not receive it as a counsellor; whereupon the king sent for Lord
Oxford, and asked him for it; he, according to previous agreement, said
he had it not; then he sent for another, who made the same answer: at
last they told him they had resolved not to deliver it, unless they were
admitted all together. Whereupon his majesty, wonderfully incensed, sent
them all away, _re infectâ_, and said that he would come into parliament
himself, and bring them all to the bar." This petition, I believe, did
not relate to any general grievances, but to a question of their own
privileges, as to their precedence of Scots peers. Wilson, _ubi supra_.
But several of this large number were inspired by more generous
sentiments; and the commencement of an aristocratic opposition deserves
to be noticed. In another letter, written in March, Mede speaks of the
good understanding between the king and parliament; he promised they
should sit as long as they like, and hereafter he would have a
parliament every three years. "Is not this good if it be true?... But
certain it is that the Lords stick wonderful fast to the Commons and all
take great pains."
The entertaining and sensible biographer of James has sketched the
characters of these Whig peers. Aikin's _James I._, ii. 238.
[620] One of these may be found in the _Somers Tracts_, ii. 470,
entitled Tom Tell-truth, a most malignant ebullition of disloyalty,
which the author must have risked his neck as well as ears in
publishing. Some outrageous reflections on the personal character of the
king could hardly be excelled by modern licentiousness. Proclamations
about this time against excess of lavish speech in matters of state
(Rymer, xvii. 275, 514), and against printing or uttering seditious and
scandalous pamphlets (_Id._ 522, 616) show the tone and temper of the
nation.
[621] The letters on this subject, published by Lord Hardwicke (_State
Papers_, vol. i.) are highly important; and being unknown to Carte and
Hume, render their narratives less satisfactory. Some pamphlets of the
time, in the second volume of the _Somers Tracts_, may be read with
interest; and Howell's _Letters_, being written from Madrid during the
Prince of Wales's residence, deserve notice. See also Wilson in Kennet,
p. 750, _et post_. Dr. Lingard has illustrated the subject lately (ix.
271).
[622] Hume, and many other writers on the side of the Crown, assert the
value of a subsidy to have fallen from £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 _not above_ £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.
[623] _Parl. Hist._ 1383, 1388, 1390; Carte, 119. The king seems to have
acted pretty fairly in this parliament, bating a gross falsehood in
denying the intended toleration of papists. He wished to get further
pledges of support from parliament before he plunged into a war, and was
very right in doing so. On the other hand, the prince and Duke of
Buckingham behaved in public towards him with great rudeness. _Parl.
Hist._ 1396.
[624] _Parl. Hist._ 1421.
[625] Clarendon blames the impeachment of Middlesex for the very reason
which makes me deem it a fortunate event for the constitution, and seems
to consider him as a sacrifice to Buckingham's resentment. Hacket also,
the biographer of Williams, takes his part. Carte, however, thought him
guilty (p. 116); and the unanimous vote of the peers is much against
him, since that house was not wholly governed by Buckingham. See too the
"Life of Nicholas Farrar" in Wordsworth's _Ecclesiastical Biography_,
vol. iv.; where it appears that that pious and conscientious man was one
of the treasurer's most forward accusers, having been deeply injured by
him. It is difficult to determine the question from the printed trial.
[626] 21 Jac. 1, c. 3. See what Lord Coke says on this act, and on the
general subject of monopolies. 3 Inst. 181.
[627] _P. H._ 1483.
[628] _Id._ 1488.
CHAPTER VII
ON THE ENGLISH CONSTITUTION FROM THE ACCESSION OF CHARLES I. TO THE
DISSOLUTION OF HIS THIRD PARLIAMENT
1625-1629
Charles the First had much in his character very suitable to the times
in which he lived, and to the spirit of the people he was to rule; a
stern and serious deportment, a disinclination to all licentiousness,
and a sense of religion that seemed more real than in his father.[629]
These qualities we might suppose to have raised some expectation of him,
and to have procured at his accession some of that popularity, which is
rarely withheld from untried princes. Yet it does not appear that he
enjoyed even this first transient sunshine of his subjects' affection.
Solely intent on retrenching the excesses of prerogative, and well aware
that no sovereign would voluntarily recede from the possession of power,
they seem to have dreaded to admit into their bosoms any sentiments of
personal loyalty, which might enervate their resolution. And Charles
took speedy means to convince them that they had not erred in
withholding their confidence.
Elizabeth in her systematic parsimony, James in his averseness to war,
had been alike influenced by a consciousness that want of money alone
could render a parliament formidable to their power. None of the
irregular modes of supply were ever productive enough to compensate for
the clamour they occasioned; after impositions and benevolences were
exhausted, it had always been found necessary, in the most arbitrary
times of the Tudors, to fall back on the representatives of the people.
But Charles succeeded to a war, at least to the preparation of a war,
rashly undertaken through his own weak compliance, the arrogance of his
favourite, and the generous or fanatical zeal of the last parliament.
He would have perceived it to be manifestly impossible, if he had been
capable of understanding his own position, to continue this war without
the constant assistance of the House of Commons, or to obtain that
assistance without very costly sacrifices of his royal power. It was not
the least of this monarch's imprudences, or rather of his blind
compliances with Buckingham, to have not only commenced hostilities
against Spain which he might easily have avoided,[630] and persisted in
them for four years, but entered on a fresh war with France, though he
had abundant experience to demonstrate the impossibility of defraying
its charges.
_Parliament of 1625._--The first parliament of this reign has been
severely censured on account of the penurious supply it doled out for
the exigencies of a war, in which its predecessors had involved the
king. I will not say that this reproach is wholly unfounded. A more
liberal proceeding, if it did not obtain a reciprocal concession from
the king, would have put him more in the wrong. But, according to the
common practice and character of all such assemblies, it was
preposterous to expect subsidies equal to the occasion, until a
foundation of confidence should be laid between the Crown and
parliament. The Commons had begun probably to repent of their hastiness
in the preceding year, and to discover that Buckingham and his pupil, or
master (which shall we say?), had conspired to deceive them.[631] They
were not to forget that none of the chief grievances of the last reign
were yet redressed, and that supplies must be voted slowly and
conditionally if they would hope for reformation. Hence they made their
grant of tonnage and poundage to last but for a year instead of the
king's life, as had for two centuries been the practice; on which
account the upper house rejected the bill.[632] Nor would they have
refused a further supply, beyond the two subsidies (about £140,000)
which they had granted, had some tender of redress been made by the
Crown; and were actually in debate upon the matter, when interrupted by
a sudden dissolution.[633]
Nothing could be more evident, by the experience of the late reign as
well as by observing the state of public spirit, than that hasty and
premature dissolutions or prorogations of parliament served but to
aggravate the Crown's embarrassments. Every successive House of Commons
inherited the feelings of its predecessor, without which it would have
ill represented the prevalent humour of the nation. The same men, for
the most part, came again to parliament more irritated and desperate of
reconciliation with the sovereign than before. Even the politic measure,
as it was fancied to be, of excluding some of the most active members
from seats in the new assembly, by nominating them sheriffs for the
year, failed altogether of the expected success; as it naturally must in
an age when all ranks partook in a common enthusiasm.[634] Hence the
prosecution against Buckingham, to avert which Charles had dissolved his
first parliament, was commenced with redoubled vigour in the second. It
was too late, after the precedents of Bacon and Middlesex, to dispute
the right of the Commons to impeach a minister of state. The king,
however, anticipating their resolutions, after some sharp speeches only
had been uttered against his favourite, sent a message that he would not
allow any of his servants to be questioned among them, much less such as
were of eminent place and near unto him. He saw, he said, that some of
them aimed at the Duke of Buckingham, whom, in the last parliament of
his father, all had combined to honour and respect, nor did he know what
had happened since to alter their affections; but he assured them that
the duke had done nothing without his own special direction and
appointment. This haughty message so provoked the Commons that, having
no express testimony against Buckingham, they came to a vote that common
fame is a good ground of proceeding either by inquiry, or presenting the
complaint to the king or Lords; nor did a speech from the lord keeper,
severely rating their presumption, and requiring on the king's behalf
that they should punish two of their members who had given him offence
by insolent discourses in the house, lest he should be compelled to use
his royal authority against them; nor one from the king himself, bidding
them remember that parliaments were altogether in his power for their
calling, sitting, and dissolution; therefore, as he found the fruits of
them good or evil, they were to continue to be or not to be, tend to
pacify or to intimidate the assembly. They addressed the king in very
decorous language, but asserting "the ancient, constant, and undoubted
right and usage of parliaments to question and complain of all persons,
of what degree soever, found grievous to the commonwealth, in abusing
the power and trust committed to them by their sovereign."[635] The duke
was accordingly impeached at the bar of the house of peers on eight
articles, many of them probably well-founded; yet as the Commons heard
no evidence in support of them, it was rather unreasonable in them to
request that he might be committed to the Tower.
In the conduct of this impeachment, two of the managers, Sir John Eliot
and Sir Dudley Digges, one the most illustrious confessor in the cause
of liberty, whom that time produced, the other, a man of much ability
and a useful supporter of the popular party, though not exempt from some
oblique views towards promotion, gave such offence by words spoken, or
alleged to be spoken, in derogation of his majesty's honour, that they
were committed to the Tower. The Commons, of course, resented this new
outrage. They resolved to do no more business till they were righted in
their privileges. They denied the words imputed to Digges; and,
thirty-six peers asserting that he had not spoken them, the king
admitted that he was mistaken, and released both their members.[636] He
had already broken in upon the privileges of the House of Lords, by
committing the Earl of Arundel to the Tower during the session; not upon
any political charge, but, as was commonly surmised, on account of a
marriage which his son had made with a lady of royal blood. Such private
offences were sufficient in those arbitrary reigns to expose the subject
to indefinite imprisonment, if not to an actual sentence in the
star-chamber. The Lords took up this detention of one of their body, and
after formal examination of precedents by a committee, came to a
resolution, "that no lord of parliament, the parliament sitting, or
within the usual times of privilege of parliament, is to be imprisoned
or restrained without sentence or order of the house, unless it be for
treason or felony, or for refusing to give surety for the peace." This
assertion of privilege was manifestly warranted by the co-extensive
liberties of the Commons. After various messages between the king and
Lords, Arundel was ultimately set at liberty.[637]
This infringement of the rights of the peerage was accompanied by
another not less injurious, the refusal of a writ of summons to the Earl
of Bristol. The Lords were justly tenacious of this unquestionable
privilege of their order, without which its constitutional dignity and
independence could never be maintained. Whatever irregularities or
uncertainty of legal principle might be found in earlier times as to
persons summoned only by writ without patents of creation, concerning
whose hereditary peerage there is much reason to doubt; it was beyond
all controversy that an Earl of Bristol holding his dignity by patent
was entitled of right to attend parliament. The house necessarily
insisted upon Bristol's receiving his summons, which was sent him with
an injunction not to comply with it by taking his place. But the
spirited earl knew that the king's constitutional will expressed in the
writ ought to outweigh his private command, and laid the secretary's
letter before the House of Lords. The king prevented any further
interference in his behalf by causing articles of charge to be exhibited
against him by the attorney-general, whereon he was committed to the
Tower. These assaults on the pride and consequence of an aristocratic
assembly, from whom alone the king could expect effectual support,
display his unfitness not only for the government of England, but of any
other nation. Nor was his conduct towards Bristol less oppressive than
impolitic. If we look at the harsh and indecent employment of his own
authority and even testimony, to influence a criminal process against a
man of approved and untainted worth,[638] and his sanction of charges
which, if Bristol's defence be as true as it is now generally admitted
to be, he must have known to be unfounded; we shall hardly concur with
those candid persons who believe that Charles would have been an
excellent prince in a more absolute monarchy. Nothing in truth can be
more preposterous than to maintain, like Clarendon and Hume, the
integrity and innocence of Lord Bristol, together with the sincerity and
humanity of Charles I. Such inconsistencies betray a determination in
the historian to speak of men according to his preconceived affection or
prejudice, without so much as attempting to reconcile these sentiments
to the facts which he can neither deny nor excuse.[639]
Though the Lords petitioned against a dissolution, the king was
determined to protect his favourite, and rescue himself from the
importunities of so refractory a House of Commons.[640] Perhaps he had
already taken the resolution of governing without the concurrence of
parliaments, though he was induced to break it the ensuing year. For the
Commons having delayed to pass a bill for the five subsidies they had
voted in this session till they should obtain some satisfaction for
their complaints, he was left without any regular supply. This was not
wholly unacceptable to some of his counsellors, and probably to himself;
as affording a pretext for those unauthorised demands which the
advocates of arbitrary prerogative deemed more consonant to the
monarch's honour. He had issued letters of privy seal, after the former
parliament, to those in every county, whose names had been returned by
the lord lieutenant as most capable, mentioning the sum they were
required to lend, with a promise of repayment in eighteen months.[641]
This specification of a particular sum was reckoned an unusual
encroachment, and a manifest breach of the statute against arbitrary
benevolences; especially as the name of those who refused compliance
were to be returned to the council. But the government now ventured on a
still more outrageous stretch of power. They first attempted to persuade
the people that, as subsidies had been voted in the House of Commons,
they should not refuse to pay them, though no bill had been passed for
that purpose. But a tumultuous cry was raised in Westminster Hall from
those who had been convened, that they would pay no subsidy but by
authority of parliament.[642] This course, therefore, was abandoned for
one hardly less unconstitutional. A general loan was demanded from every
subject, according to the rate at which he was assessed in the last
subsidy. The commissioners appointed for the collection of this loan
received private instructions to require not less than a certain
proportion of each man's property in lands or goods, to treat separately
with every one, to examine on oath such as should refuse, to certify the
names of refractory persons to the privy council, and to admit of no
excuse for abatement of the sum required.[643]
_Arbitrary taxation._--This arbitrary taxation (for the name of loan
could not disguise the extreme improbability that the money would be
repaid), so general and systematic as well as so weighty, could not be
endured without establishing a precedent that must have shortly put an
end to the existence of parliaments. For, if those assemblies were to
meet only for the sake of pouring out stupid flatteries at the foot of
the throne, of humbly tendering such supplies as the ministry should
suggest, or even of hinting at a few subordinate grievances which
touched not the king's prerogative and absolute control in matters of
state--functions which the Tudors and Stuarts were well pleased that
they should exercise--if every remonstrance was to be checked by a
dissolution, and chastised by imprisonment of its promoters, every
denial of subsidy to furnish a justification for extorted loans, our
free-born high-minded gentry would not long have brooked to give their
attendance in such an ignominious assembly, and an English parliament
would have become as idle a mockery of national representation as the
cortes of Castile. But this kingdom was not in a temper to put up with
tyranny. The king's advisers were as little disposed to recede from
their attempt. They prepared to enforce it by the arm of power.[644] The
common people who refused to contribute were impressed to serve in the
navy. The gentry were bound by recognisance to appear at the
council-table, where many of them were committed to prison.[645] Among
these were five knights, Darnel, Carbet, Earl, Heveningham, and Hampden,
who sued the court of king's bench for their writ of habeas corpus. The
writ was granted; but the warden of the Fleet made return that they were
detained by a warrant from the privy council, informing him of no
particular cause of imprisonment, but that they were committed by the
special command of his majesty. This gave rise to a most important
question, whether such a return was sufficient in law to justify the
court in remitting the parties to custody. The fundamental immunity of
English subjects from arbitrary detention had never before been so fully
canvassed; and it is to the discussion which arose out of the case of
these five gentlemen that we owe its continual assertion by parliament,
and its ultimate establishment in full practical efficacy by the statute
of Charles II. It was argued with great ability by Noy, Selden, and
other eminent lawyers, on behalf of the claimants, and by the
attorney-general Heath for the Crown.
The counsel for the prisoners grounded their demand of liberty on the
original basis of Magna Charta; the twenty-ninth section of which, as is
well known, provides that "no free man shall be taken or imprisoned
unless by lawful judgment of his peers, or the law of the land." This
principle having been frequently transgressed by the king's privy
council in earlier times, statutes had been repeatedly enacted,
independently of the general confirmations of the charter, to redress
this material grievance. Thus in the 25th of Edward III. it is provided
that "no one shall be taken by petition or suggestion to the king or his
counsel, unless it be (_i.e._ but only) by indictment or presentment, or
by writ original at the common law." And this is again enacted three
years afterwards, with little variation, and once again in the course of
the same reign. It was never understood, whatever the loose language of
these old statutes might suggest, that no man could be kept in custody
upon a criminal charge before indictment, which would have afforded too
great security to offenders. But it was the regular practice that every
warrant of commitment, and every return by a gaoler to the writ of
habeas corpus, must express the nature of the charge, so that it might
appear whether it were no legal offence; in which case the party must be
instantly set at liberty; or one for which bail ought to be taken, or
one for which he must be remanded to prison. It appears also to have
been admitted without controversy, though not perhaps according to the
strict letter of law, that the privy council might commit to prison on a
criminal charge, since it seemed preposterous to deny that power to
those intrusted with the care of the commonwealth, which every petty
magistrate enjoyed. But it was contended that they were as much bound as
every petty magistrate to assign such a cause for their commitments as
might enable the court of king's bench to determine whether it should
release or remand the prisoners brought before them by habeas corpus.
The advocates for this principal alleged several precedents, from the
reign of Henry VII. to that of James, where persons committed by the
council generally, or even by the special command of the king, had been
admitted to bail on their habeas corpus. "But I conceive," said one of
these, "that our case will not stand upon precedent, but upon the
fundamental laws and statutes of this realm; and though the precedents
look one way or the other, they are to be brought back unto the laws by
which the kingdom is governed." He was aware that a pretext might be
found to elude most of his precedents. The warrant had commonly declared
the party to be charged on _suspicion_ of treason or of felony; in which
case he would of course be bailed by the court. Yet in some of these
instances the words "by the king's special command," were inserted in
the commitment; so that they served to repel the pretension of an
arbitrary right to supersede the law by his personal authority. Ample
proof was brought from the old law books that the king's command could
not excuse an illegal act. "If the king command me," said one of the
judges under Henry VI., "to arrest a man, and I arrest him, he shall
have an action of false imprisonment against me, though it were done in
the king's presence." "The king," said Chief Justice Markham to Edward
IV., "cannot arrest a man upon suspicion of felony or treason, as any of
his subjects may; because if he should wrong a man by such arrest, he
can have no remedy against him." No verbal order of the king, nor any
under his sign manual or privy signet, was a command, it was contended
by Selden, which the law would recognise as sufficient to arrest or
detain any of his subjects; a writ duly issued under the seal of a court
being the only language in which he could signify his will. They urged
further that, even if the first commitment by the king's command were
lawful, yet when a party had continued in prison for a reasonable time,
he should be brought to answer, and not be indefinitely detained;
liberty being a thing so favoured by the law that it will not suffer any
man to remain in confinement for any longer time than of necessity it
must.
To these pleadings for liberty, Heath, the attorney-general, replied in
a speech of considerable ability, full of those high principles of
prerogative which, trampling as it were on all statute and precedent,
seemed to tell the judges that they were placed there to obey rather
than to determine. "This commitment," he says, "is not in a legal and
ordinary way, but by the special command of our lord the king, which
implies not only the fact done, but so extraordinarily done, that it is
notoriously his majesty's immediate act and will that it should be so."
He alludes afterwards, though somewhat obscurely, to the king's absolute
power, as contra-distinguished from that according to law; a favourite
distinction, as I have already observed, with the supporters of
despotism. "Shall we make inquiries," he says, "whether his commands are
lawful?--who shall call in question the justice of the king's actions,
who is not to give account for them?" He argues from the legal maxim
that the king can do no wrong, that a cause must be presumed to exist
for the commitment, though it be not set forth. He adverts with more
success to the number of papists and other state prisoners, detained for
years in custody for mere political jealousy. "Some there were," he
says, "in the Tower who were put in it when very young; should they
bring a habeas corpus, would the court deliver them?" Passing next to
the precedents of the other side, and condescending to admit their
validity, however contrary to the tenor of his former argument, he
evades their application by such distinctions as I have already
mentioned.
The judges behaved during this great cause with apparent moderation and
sense of its importance to the subject's freedom. Their decision,
however, was in favour of the Crown; and the prisoners were remanded to
custody. In pronouncing this judgment, the chief justice, Sir Nicholas
Hyde, avoiding the more extravagant tenets of absolute monarchy, took
the narrower line of denying the application of those precedents, which
had been alleged to show the practice of the court in bailing persons
committed by the king's special command. He endeavoured also to prove
that, where no cause had been expressed in the warrant, except such
command as in the present instance, the judges had always remanded the
parties; but with so little success that I cannot perceive more than one
case mentioned by him, and that above a hundred years old, which
supports this doctrine. The best authority on which he had to rely, was
the resolution of the judges in the 34th of Elizabeth, published in
Anderson's _Reports_.[646] For, though this is not grammatically worded,
it seems impossible to doubt that it acknowledges the special command of
the king or the authority of the privy council as a body, to be such
sufficient warrant for a commitment as to require no further cause to be
expressed, and to prevent the judges from discharging the party from
custody, either absolutely or upon bail. Yet it was evidently the
consequence of this decision, that every statute from the time of Magna
Charta, designed to protect the personal liberties of Englishmen,
became a dead letter; since the insertion of four words in a warrant
(per speciale mandatum regis), which might become matter of form, would
control their remedial efficacy. And this wound was the more deadly, in
that the notorious cause of these gentlemen's imprisonment was their
withstanding an illegal exaction of money. Everything that distinguished
our constitutional laws, all that rendered the name of England valuable,
was at stake on this issue. If the judgment in the case of ship-money
was more flagrantly iniquitous, it was not so extensively destructive as
the present.[647]
_A parliament called in 1628._--Neither of these measures, however, of
illegal severity towards the uncompliant, backed as they were by a timid
court of justice, nor the exhortations of a more prostitute and
shameless band of churchmen, could divert the nation from its cardinal
point of faith in its own prescriptive franchises. To call another
parliament appeared the only practicable means of raising money for a
war, in which the king persisted with great impolicy or rather blind
trust in his favourite. He consented to this with extreme
unwillingness.[648] Previously to its assembling, he released a
considerable number of gentlemen and others who had been committed for
their refusal of the loan. These were, in many cases, elected to the new
parliament; coming thither with just indignation at their country's
wrongs, and pardonable resentment at their own. No year, indeed, within
the memory of any one living, had witnessed such violations of public
liberty as 1627. Charles seemed born to carry into daily practice those
theories of absolute power, which had been promulgated from his father's
lips. Even now, while the writs were out for a new parliament,
commissioners were appointed to raise money "by impositions or
otherwise, as they should find most convenient in a case of such
inevitable necessity, wherein form and circumstance must be dispensed
with rather than the substance be lost and hazarded;"[649] and the
levying of ship-money was already debated in the council. Anticipating,
as indeed was natural, that this House of Commons would correspond as
ill to the king's wishes as their predecessors, his advisers were
preparing schemes more congenial, if they could be rendered effective,
to the spirit in which he was to govern. A contract was entered into for
transporting some troops and a considerable quantity of arms from
Flanders into England, under circumstances at least highly suspicious,
and which, combined with all the rest that appears of the court policy
at that time, leaves no great doubt on the mind that they were designed
to keep under the people, while the business of contribution was going
forward.[650] Shall it be imputed as a reproach to the Cokes, the
Seldens, the Glanvils, the Pyms, the Eliots, the Philipses, of this
famous parliament, that they endeavoured to devise more effectual
restraints than the law had hitherto imposed on a prince who had snapped
like bands of tow the ancient statutes of the land, to remove from his
presence counsellors, to have been misled by whom was his best apology,
and to subject him to an entire dependence on his people for the
expenditure of government, as the surest pledge of his obedience to the
laws?
_Petition of Right._--The principal matters of complaint taken up by the
Commons in this session were, the exaction of money under the name of
loans; the commitment of those who refused compliance, and the late
decision of the king's bench, remanding them upon a habeas corpus; the
billeting of soldiers on private persons, which had occurred in the last
year, whether for convenience or for purposes of intimidation and
annoyance; and the commissions to try military offenders by martial
law--a procedure necessary within certain limits to the discipline of an
army, but unwarranted by the constitution of this country which was
little used to any regular forces, and stretched by the arbitrary spirit
of the king's administration beyond all bounds.[651] These four
grievances or abuses form the foundation of the Petition of Right,
presented by the Commons in the shape of a declaratory statute. Charles
had recourse to many subterfuges in hopes to elude the passing of this
law; rather perhaps through wounded pride, as we may judge from his
subsequent conduct, than such apprehension that it would create a
serious impediment to his despotic schemes. He tried to persuade them to
acquiesce in his royal promise not to arrest any one without just cause,
or in a simple confirmation of the Great Charter, and other statutes in
favour of liberty. The peers, too pliant in this instance to his
wishes, and half receding from the patriot banner they had lately
joined, lent him their aid by proposing amendments (insidious in those
who suggested them, though not in the body of the house), which the
Commons firmly rejected.[652] Even when the bill was tendered to him for
that assent, which it had been necessary for the last two centuries that
the king should grant or refuse in a word, he returned a long and
equivocal answer, from which it could only be collected that he did not
intend to remit any portion of what he had claimed as his prerogative.
But on an address from both houses for a more explicit answer, he
thought fit to consent to the bill in the usual form. The Commons, of
whose harshness towards Charles his advocates have said so much,
immediately passed a bill for granting five subsidies, about £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.[653]
The sincerity of Charles in thus according his assent to the Petition of
Right may be estimated by the following very remarkable conference which
he held on the subject with his judges. Before the bill was passed, he
sent for the two chief justices, Hyde and Richardson, to Whitehall; and
propounded certain questions, directing that the other judges should be
assembled in order to answer them. The first question was, "Whether in
no case whatsoever the king may not commit a subject without showing
cause?" To which the judges gave an answer the same day under their
hands, which was the next day presented to his majesty by the two chief
justices in these words: "We are of opinion that, by the general rule of
law, the cause of commitment by his majesty ought to be shown; yet some
cases may require such secrecy, that the king may commit a subject
without showing the cause for a convenient time." The king then
delivered them a second question, and required them to keep it very
secret, as the former: "Whether, in case a habeas corpus be brought, and
a warrant from the king without any general or special cause returned,
the judges ought to deliver him before they understand the cause from
the king?" Their answer was as follows: "Upon a habeas corpus brought
for one committed by the king, if the cause be not specially or
generally returned, so as the court may take knowledge thereof, the
party ought by the general rule of law to be delivered. But, if the case
be such that the same requireth secrecy, and may not presently be
disclosed, the court of discretion may forbear to deliver the prisoner
for a convenient time, to the end the court may be advertised of the
truth thereof." On receiving this answer, the king proposed a third
question: "Whether, if the king grant the Commons' petition, he doth not
thereby exclude himself from committing or restraining a subject for any
time or cause whatsoever, without showing a cause?" The judges returned
for answer to this important query: "Every law, after it is made, hath
its exposition, and so this petition and answer must have an exposition
as the case in the nature thereof shall require to stand with justice;
which is to be left to the courts of justice to determine, which cannot
particularly be discovered until such case shall happen. And although
the petition be granted, there is no fear of conclusion as is intimated
in the question."[654]
The king, a very few days afterwards gave his _first_ answer to the
Petition of Right. For even this indirect promise of compliance, which
the judges gave him, did not relieve him from apprehensions that he
might lose the prerogative of arbitrary commitment. And though, after
being beaten from this evasion, he was compelled to accede in general
terms to the petition, he had the insincerity to circulate one thousand
five hundred copies of it through the country, after the prorogation,
with his first answer annexed; an attempt to deceive without the
possibility of success.[655] But instances of such ill faith,
accumulated as they are through the life of Charles, render the
assertion of his sincerity a proof either of historical ignorance, or
of a want of moral delicacy.
The Petition of Right, as this statute is still called, from its not
being drawn in the common form of an act of parliament, after reciting
the various laws which have established certain essential privileges of
the subject, and enumerating the violations of them which had recently
occurred, in the four points of illegal exactions, arbitrary
commitments, quartering of soldiers or sailors, and infliction of
punishment by martial law, prays the king, "That no man hereafter be
compelled to make or yield any gift, loan, benevolence, tax, or such
like charge without common consent by act of parliament; and that none
be called to answer or take such oath, or to give attendance, or be
confined or otherwise molested or disquieted concerning the same, or for
refusal thereof; and that no freeman in any such manner as is before
mentioned be imprisoned or detained; and that your majesty would be
pleased to remove the said soldiers and marines, and that your people
may not be so burthened in time to come; and that the aforesaid
commissions for proceeding by martial law may be revoked and annulled;
and that hereafter no commissions of the like nature may issue forth to
any person or persons whatever, to be executed as aforesaid, lest by
colour of them any of your majesty's subjects be destroyed or put to
death contrary to the laws and franchises of the land."[656]
_Tonnage and poundage disputed._--It might not unreasonably be
questioned whether the language of this statute were sufficiently
general to comprehend duties charged on merchandise at the outports, as
well as internal taxes and exactions, especially as the former had
received a sort of sanction, though justly deemed contrary to law, by
the judgment of the court of exchequer in Bates's case. The Commons,
however, were steadily determined not to desist till they should have
rescued their fellow-subjects from a burthen as unwarrantably imposed as
those specifically enumerated in their Petition of Right. Tonnage and
poundage, the customary grant of every reign, had been taken by the
present king without consent of parliament; the Lords having rejected,
as before-mentioned, a bill that limited it to a single year. The house
now prepared a bill to grant it, but purposely delayed its passing; in
order to remonstrate with the king against his unconstitutional
anticipation of their consent. They declared "that there ought not any
imposition to be laid upon the goods of merchants, exported or imported,
without common consent by act of parliament; that tonnage and poundage,
like other subsidies, sprung from the free grant of the people; that
when impositions had been laid on the subjects' goods and merchandises
without authority of law, which had very seldom occurred, they had, on
complaint in parliament, been forthwith relieved; except in the late
king's reign, who, through evil counsel, had raised the rates and
charges to the height at which they then were." They conclude, after
repeating their declaration that the receiving of tonnage and poundage
and other impositions not granted by parliament is a breach of the
fundamental liberties of this kingdom, and contrary to the late petition
of right, with most humbly beseeching his majesty to forbear any further
receiving of the same, and not to take it in ill part from those of his
loving subjects who should refuse to make payment of any such charges
without warrant of law.[657]
The king anticipated the delivery of this remonstrance by proroguing the
parliament. Tonnage and poundage, he told them, was what he had never
meant to give away, nor could possibly do without. By this abrupt
prorogation, while so great a matter was unsettled, he trod back his
late footsteps, and dissipated what little hopes might have arisen from
his tardy assent to the Petition of Right. During the interval before
the ensuing session, those merchants, among whom Chambers, Rolls, and
Vassal are particularly to be remembered with honour, who gallantly
refused to comply with the demands of the custom house, had their goods
distrained, and on suing writs of replevin, were told by the judges that
the king's right, having been established in the case of Bates, could no
longer be disputed.[658] Thus the Commons re-assembled, by no means less
inflamed against the king's administration than at the commencement of
the preceding session. Their proceedings were conducted with more than
usual warmth.[659] Buckingham's death, which had occurred since the
prorogation, did not allay their resentment against the advisers of the
Crown. But the king, who had very much lowered his tone in speaking of
tonnage and poundage, and would have been content to receive it as their
grant, perceiving that they were bent on a full statutory recognition of
the illegality of impositions without their consent, and that they had
opened a fresh battery on another side, by mingling in certain religious
disputes in order to attack some of his favourite prelates, took the
step, to which he was always inclined, of dissolving this third
parliament.
_Religious differences._--The religious disputes to which I have just
alluded are chiefly to be considered, for the present purpose, in their
relation to those jealousies and resentments springing out of the
ecclesiastical administration, which during the reigns of the two first
Stuarts furnished unceasing food to political discontent. James having
early shown his inflexible determination to restrain the puritans, the
bishops proceeded with still more rigour than under Elizabeth. No longer
thwarted, as in her time, by an unwilling council, they succeeded in
exacting a general conformity to the ordinances of the church. It had
been solemnly decided by the judges in the queen's reign, and in 1604,
that, although the statute establishing the high commission court did
not authorise it to deprive ministers of their benefices, yet this law
being only in affirmation of the queen's inherent supremacy, she might,
by virtue of that, regulate all ecclesiastical matters at her pleasure,
and erect courts with such powers as she should think fit. Upon this
somewhat dangerous principle, Archbishop Bancroft deprived a
considerable number of puritan clergymen;[660] while many more, finding
that the interference of the Commons in their behalf was not regarded,
and that all schemes of evasion were come to an end, were content to
submit to the obnoxious discipline. But their affections being very
little conciliated by this coercion, there remained a large party within
the bosom of the established church, prone to watch for and magnify the
errors of their spiritual rulers. These men preserved the name of
puritans. Austere in their lives, while many of the others were careless
or irregular, learned as a body comparatively with the opposite party,
implacably averse to everything that could be construed into an
approximation to popery, they acquired a degree of respect from grave
men, which would have been much more general, had they not sometimes
given offence by a moroseness and even malignity of disposition, as well
as by a certain tendency to equivocation and deceitfulness; faults,
however, which so frequently belong to the weaker party under a rigorous
government that they scarcely afford a marked reproach against the
puritans. They naturally fell in with the patriotic party in the House
of Commons, and kept up throughout the kingdom a distrust of the Crown,
which has never been so general in England as when connected with some
religious apprehensions.
_Growth of high church tenets._--The system pursued by Bancroft and his
imitators, Bishops Neile and Laud, with the approbation of the king, far
opposed to the healing counsels of Burleigh and Bacon, was just such as
low-born and little-minded men, raised to power by fortune's caprice,
are ever found to pursue. They studiously aggravated every difference,
and irritated every wound. As the characteristic prejudice of the
puritans was so bigoted an abhorrence of the Romish faith, that they
hardly deemed its followers to deserve the name of Christians, the
prevailing high church party took care to shock that prejudice by
somewhat of a retrograde movement, and various seeming, or indeed real,
accommodations of their tenets to those of the abjured religion. They
began by preaching the divine right, as it is called, or absolute
indispensability, of episcopacy;[661] a doctrine of which the first
traces, as I apprehend, are found about the end of Elizabeth's reign.
They insisted on the necessity of episcopal succession regularly derived
from the apostles. They drew an inference from this tenet, that
ordinations by presbyters were in all cases null. And as this affected
all the reformed churches in Europe except their own, the Lutherans not
having preserved the succession of their bishops, while the Calvinists
had altogether abolished that order, they began to speak of them not as
brethren of the same faith, united in the same cause, and distinguished
only by differences little more material than those of political
commonwealths (which had been the language of the church of England ever
since the Reformation), but as aliens to whom they were not at all
related, and schismatics with whom they held no communion; nay, as
wanting the very essence of a Christian society. This again brought them
nearer, by irresistible consequence, to the disciples of Rome, with
becoming charity, but against the received creed of the puritans and
perhaps against their own articles, they all acknowledged to be a part
of the catholic church, while they were withholding that appellation,
expressly or by inference, from Heidelberg and Geneva.
_Differences as to the observance of Sunday._--The founders of the
English reformation, after abolishing most of the festivals kept before
that time, had made little or no change as to the mode of observance of
those they retained. Sundays and holidays stood much on the same footing
as days on which no work except for good cause was to be performed, the
service of the church was to be attended, and any lawful amusement might
be indulged in.[662] A just distinction, however, soon grew up; an
industrious people could spare time for very few holidays; and the more
scrupulous party, while they slighted the church festivals as of human
appointment, prescribed a stricter observance of the Lord's day. But it
was not till about 1595 that they began to place it very nearly on the
footing of the Jewish sabbath, interdicting not only the slightest
action of worldly business, but even every sort of pastime and
recreation; a system which, once promulgated, soon gained ground as
suiting their atrabilious humour, and affording a new theme of censure
on the vices of the great.[663] Those who opposed them on the high
church side, not only derided the extravagance of the Sabbatarians, as
the others were called, but pretended that the commandment having been
confined to the Hebrews, the modern observance of the first day of the
week as a season of rest and devotion was an ecclesiastical institution,
and in no degree more venerable than that of the other festivals or the
season of Lent, which the puritans stubbornly despised.[664] Such a
controversy might well have been left to the usual weapons. But James
I., or some of the bishops to whom he listened, bethought themselves
that this might serve as a test of puritan ministers. He published
accordingly a declaration to be read in churches, permitting all lawful
recreations on Sunday after divine service, such as dancing, archery,
May-games, and morrice-dances, and other usual sports; but with a
prohibition of bear-hunting and other unlawful games. No recusant, or
any one who had not attended the church service, was entitled to this
privilege; which might consequently be regarded as a bounty on devotion.
The severe puritan saw it in no such point of view. To his cynical
temper, May-games and morrice-dances were hardly tolerable on six days
of the week; they were now recommended for the seventh. And this impious
licence was to be promulgated in the church itself. It is indeed
difficult to explain so unnecessary an insult on the precise clergy, but
by supposing an intention to harass those who should refuse
compliance.[665] But this intention, from whatever cause, perhaps
through the influence of Archbishop Abbot, was not carried into effect;
nor was the declaration itself enforced till the following reign.
The House of Commons displayed their attachment to the puritan maxims,
or their dislike of the prelatical clergy, by bringing in bills to
enforce a greater strictness in this respect. A circumstance that
occurred in the session of 1621 will serve to prove their fanatical
violence. A bill having been brought in "for the better observance of
the Sabbath, usually called Sunday," one Mr. Shepherd, sneering at the
puritans, remarked that, as Saturday was dies Sabbati, this might be
entitled a bill for the observance of Saturday, commonly called Sunday.
This witticism brought on his head the wrath of that dangerous assembly.
He was reprimanded on his knees, expelled the house, and when he saw
what befell poor Floyd, might deem himself cheaply saved from their
fangs with no worse chastisement.[666] Yet when the upper house sent
down their bill with "the Lord's day" substituted for "the Sabbath,"
observing, "that people do now much incline to words of Judaism," the
Commons took no exception.[667] The use of the word Sabbath instead of
Sunday became in that age a distinctive mark of the puritan party.
_Arminian controversy._--A far more permanent controversy sprang up
about the end of the same reign, which afforded a new pretext for
intolerance and a fresh source of mutual hatred. Every one of my readers
is acquainted more or less with the theological tenets of original sin,
free will, and predestination, variously taught in the schools, and
debated by polemical writers for so many centuries; and few can be
ignorant that the articles of our own church, as they relate to these
doctrines, have been very differently interpreted, and that a
controversy about their meaning has long been carried on with a
pertinacity which could not have continued on so limited a topic, had
the combatants been merely influenced by the love of truth. Those who
have no bias to warp their judgment will not perhaps have much
hesitation in drawing their line between, though not at an equal
distance between, the conflicting parties. It appears, on the other
hand, that the articles are worded on some of these doctrines with
considerable ambiguity; whether we attribute this to the intrinsic
obscurity of the subject, to the additional difficulties with which it
had been entangled by theological systems, to discrepancy of opinion in
the compilers, or to their solicitude to prevent disunion by adopting
formularies which men of different sentiments might subscribe. It is
also manifest that their framers came, as it were, with averted eyes to
the Augustinian doctrine of predestination, and wisely reprehended those
who turned their attention to a system so pregnant with objections, and
so dangerous, when needlessly dwelt upon, to all practical piety and
virtue. But, on the other hand, this very reluctance to inculcate the
tenet is so expressed as to manifest their undoubting belief in it; nor
is it possible either to assign a motive for inserting the seventeenth
article, or to give any reasonable interpretation to it, upon the theory
which at present passes for orthodox in the English church. And upon
other subjects intimately related to the former, such as the penalty of
original sin and the depravation of human nature, the articles, after
making every allowance for want of precision, seem totally
irreconcilable with the scheme usually denominated Arminian.
The force of those conclusions, which we must, in my judgment, deduce
from the language of these articles, will be materially increased by
that appeal of contemporary and other early authorities, to which
recourse has been had in order to invalidate them. Whatever doubts may
be raised as to the Calvinism of Cranmer and Ridley, there can surely be
no room for any as to the chiefs of the Anglican church under Elizabeth.
We find explicit proofs that Jewel, Nowell, Sandys, Cox, professed to
concur with the reformers of Zurich and Geneva in every point of
doctrine.[668] The works of Calvin and Bullinger became textbooks in the
English universities.[669] Those who did not hold the predestinarian
theory were branded with reproach by the names of free-willers and
Pelagians.[670] And when the opposite tenets came to be advanced, as
they were at Cambridge about 1590, a clamour was raised as if some
unusual heresy had been broached. Whitgift, with the concurrence of some
other prelates, in order to withstand its progress, published what were
called the Lambeth articles, containing the broadest and most repulsive
declaration of all the Calvinistic tenets. But, Lord Burleigh having
shown some disapprobation, these articles never obtained any legal
sanction.[671]
These more rigorous tenets, in fact, especially when so crudely
enounced, were beginning to give way. They had been already abandoned by
the Lutheran church. They had long been opposed in that of Rome by the
Franciscan order, and latterly by the jesuits. Above all, the study of
the Greek fathers, with whom the first reformers had been little
conversant, taught the divines of a more learned age, that men of as
high a name as Augustin, and whom they were prone to over-value, had
entertained very different sentiments.[672] Still the novel opinions
passed for heterodox, and were promulgated with much vacillation and
indistinctness. When they were published in unequivocal propositions by
Arminius and his school, James declared himself with vehemence against
this heresy.[673] He not only sent English divines to sit in the synod
of Dort, where the Calvinistic system was fully established, but
instigated the proceedings against the remonstrants with more of
theological pedantry than charity or decorum.[674] Yet this inconsistent
monarch within a very few years was so wrought on by one or two
favourite ecclesiastics, who inclined towards the doctrines condemned in
that assembly, that openly to maintain the Augustinian system became
almost a sure means of exclusion from preferment in our church. This was
carried to its height under Charles. Laud, his sole counsellor in
ecclesiastical matters, advised a declaration enjoining silence on the
controverted points; a measure by no means unwise, if it had been fairly
acted upon. It is alleged, however, that the preachers on one side only
were silenced, the printers of books on one side censured in the
star-chamber, while full scope was indulged to the opposite sect.[675]
The House of Commons, especially in their last session, took up the
increase of Arminianism as a public grievance. It was coupled in their
remonstrances with popery, as a new danger to religion, hardly less
terrible than the former. This bigoted clamour arose in part from the
nature of their own Calvinistic tenets, which, being still prevalent in
the kingdom, would, independently of all political motives, predominate
in any popular assembly. But they had a sort of excuse for it in the
close, though accidental and temporary, connection that subsisted
between the partisans of these new speculative tenets and those of
arbitrary power; the churchmen who receded most from Calvinism being
generally the zealots of prerogative. They conceived also that these
theories, conformable in the main to those most countenanced in the
church of Rome, might pave the way for that restoration of her faith
which from so many other quarters appeared to threaten them. Nor was
this last apprehension so destitute of all plausibility as the advocates
of the two first Stuarts have always pretended it to be.
_State of catholics under James._--James, well instructed in the
theology of the reformers, and inured himself to controversial
dialectics, was far removed in point of opinion from any bias towards
the Romish creed. But he had, while in Scotland, given rise to some
suspicions at the court of Elizabeth, by a little clandestine coquetry
with the pope, which he fancied to be a politic means of disarming
enmity.[676] Some knowledge of this, probably, as well as his avowed
dislike of sanguinary persecution, and a foolish reliance on the
trifling circumstance that one if not both of his parents had professed
their religion, led the English catholics to expect a great deal of
indulgence, if not support, at his hands. This hope might receive some
encouragement from his speech on opening the parliament of 1604, wherein
he intimated his design to revise and explain the penal laws, "which the
judges might perhaps," he said, "in times past have too rigorously
interpreted." But the temper of those he addressed was very different.
The catholics were disappointed by an act inflicting new penalties on
recusants, and especially debarring them from educating their children
according to their consciences.[677] The administration took a sudden
turn towards severity; the prisons were filled, the penalties exacted,
several suffered death,[678] and the general helplessness of their
condition impelled a few persons (most of whom had belonged to what was
called the Spanish party in the last reign) to the gunpowder conspiracy,
unjustly imputed to the majority of catholics, though perhaps extending
beyond those who appeared in it.[679] We cannot wonder that a
parliament so narrowly rescued from personal destruction endeavoured to
draw the cord still tighter round these dangerous enemies. The statute
passed on this occasion is by no means more harsh than might be
expected. It required not only attendance on worship, but participation
in the communion, as a test of conformity, and gave an option to the
king of taking a penalty of £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.[680]
Except by cavilling at one or two words, it seemed impossible for the
Roman catholics to decline so reasonable a test of loyalty, without
justifying the worst suspicions of protestant jealousy. Most of the
secular priests in England, asking only a connivance in the exercise of
their ministry, and aware how much the good work of reclaiming their
apostate countrymen was retarded by the political obloquy they incurred,
would have willingly acquiesced in the oath. But the court of Rome, not
yet receding an inch from her proudest claims, absolutely forbade all
catholics to abjure her deposing power by this test, and employed
Bellarmine to prove its unlawfulness. The king stooped to a literary
controversy with this redoubted champion, and was prouder of no exploit
of his life than his answer to the cardinal's book; by which he incurred
the contempt of foreign courts and of all judicious men.[681] Though
neither the murderous conspiracy of 1605, nor this refusal to abjure the
principles on which it was founded, could dispose James to persecution,
or even render the papist so obnoxious in his eyes as the puritan; yet
he was long averse to anything like a general remission of the penal
laws. In sixteen instances after this time, the sanguinary enactments of
his predecessor were enforced, but only perhaps against priests who
refused the oath;[682] the catholics enjoyed on the whole somewhat more
indulgence than before, in respect to the private exercise of their
religion; at least enough to offend narrow-spirited zealots, and furnish
pretext for the murmurs of a discontented parliament, but under
condition of paying compositions for recusancy; a regular annual source
of revenue which, though apparently trifling in amount, the king was not
likely to abandon, even if his notions of prerogative, and the generally
received prejudices of that age, had not determined him against an
express toleration.[683]
In the course, however, of that impolitic negotiation, which exposed him
to all eyes as the dupe and tool of the court of Madrid, James was led
on to promise concessions for which his protestant subjects were ill
prepared. That court had wrought on his feeble mind by affected coyness
about the infanta's marriage, with two private aims; to secure his
neutrality in the war of the Palatinate, and to obtain better terms for
the English catholics. Fully successful in both ends, it would probably
have at length permitted the union to take place, had not Buckingham's
rash insolence broken off the treaty; but I am at a loss to perceive the
sincere and even generous conduct which some have found in the Spanish
council during this negotiation.[684] The king acted with such culpable
weakness, as even in him excites our astonishment. Buckingham, in his
first eagerness for the marriage on arriving in Spain, wrote to ask if
the king would acknowledge the pope's spiritual supremacy, as the
surest means of success. James professed to be much shocked at this, but
offered to recognise his jurisdiction as patriarch of the west, to whom
ecclesiastical appeals might ultimately be made; a concession as
incompatible with the code of our protestant laws as the former. Yet
with this knowledge of his favourite's disposition, he gave the prince
and him a written promise to perform whatever they should agree upon
with the court of Madrid.[685] On the treaty being almost concluded, the
king, prince, and privy council swore to observe certain stipulated
articles, by which the infanta was not only to have the exercise of her
religion, but the education of her children till ten years of age. But
the king was also sworn to private articles; that no penal laws should
be put in force against the catholics, that there should be a perpetual
toleration of their religion in private houses, that he and his son
would use their authority to make parliament confirm and ratify these
articles, and revoke all laws (as it is with strange latitude expressed)
containing anything repugnant to the Roman catholic religion, and that
they would not consent to any new laws against them. The Prince of Wales
separately engaged to procure the suspension or abrogation of the penal
laws within three years, and to lengthen the term for the mother's
education of their children from ten years to twelve, if it should be in
his own power. He promised also to listen to catholic divines, whenever
the infanta should desire it.[686]
These secret assurances, when they were whispered in England, might not
unreasonably excite suspicion of the prince's wavering in his religion,
which he contrived to aggravate by an act as imprudent as it was
reprehensible. During his stay at Madrid, while his inclinations were
still bent on concluding the marriage, the sole apparent obstacle being
the pope's delay in forwarding the dispensation, he wrote a letter to
Gregory XV., in reply to one received from him, in language evidently
intended to give an impression of his favourable dispositions towards
the Romish faith. The whole tenor of his subsequent life must have
satisfied every reasonable inquirer into our history, of Charles's real
attachment to the Anglican church; nor could he have had any other aim
than to facilitate his arrangements with the court of Rome by this
deception. It would perhaps be uncandid to judge severely a want of
ingenuousness, which youth, love, and bad counsels may extenuate; yet I
cannot help remarking that the letter is written with the precautions of
a veteran in dissimulation; and, while it is full of what might raise
expectation, contains no special pledge that he could be called on to
redeem. But it was rather presumptuous to hope that he could foil the
subtlest masters of artifice with their own weapons.[687]
James, impatient for this ill-omened alliance, lost no time in
fulfilling his private stipulations with Spain. He published a general
pardon of all penalties already incurred for recusancy. It was designed
to follow this up by a proclamation prohibiting the bishops, judges, and
other magistrates to execute any penal statute against the catholics.
But the lord keeper, Bishop Williams, hesitated at so unpopular a
stretch of power.[688] And, the rupture with Spain ensuing almost
immediately, the king, with a singular defiance of all honest men's
opinion, though the secret articles of the late treaty had become
generally known, declared in his first speech to parliament in 1624,
that "he had only thought good sometimes to wink and connive at the
execution of some penal laws, and not to go on so rigorously as at other
times, but not to dispense with any or to forbid or alter any that
concern religion; he never permitted or yielded, he never did think it
with his heart, nor spoke it with his mouth."[689]
When James soon after this, not yet taught by experience to avoid a
catholic alliance, demanded the hand of Henrietta Maria for his son,
Richlieu thought himself bound by policy and honour as well as religion
to obtain the same or greater advantages for the English catholics than
had been promised in the former negotiation. Henrietta was to have the
education of her children till they reached the age of twelve; thus were
added two years, at a time of life when the mind becomes susceptible of
lasting impressions, to the term at which, by the treaty of Spain, the
mother's superintendence was to cease.[690] Yet there is the strongest
reason to believe that this condition was merely inserted for the honour
of the French Crown, with a secret understanding that it should never be
executed.[691] In fact, the royal children were placed at a very early
age under protestant governors of the king's appointment; nor does
Henrietta appear to have ever insisted on her right. That James and
Charles should have incurred the scandal of this engagement, since the
articles, though called private, must be expected to transpire, without
any real intentions of performing it, is an additional instance of that
arrogant contempt of public opinion which distinguished the Stuart
family. It was stipulated in the same private articles, that prisoners
on the score of religion should be set at liberty, and that none should
be molested in future.[692] These promises were irregularly fulfilled,
according to the terms on which Charles stood with his brother-in-law.
Sometimes general orders were issued to suspend all penal laws against
papists; again, by a capricious change of policy, all officers and
judges are directed to proceed in their execution; and this severity
gave place in its turn to a renewed season of indulgence. If these
alterations were not very satisfactory to the catholics, the whole
scheme of lenity displeased and alarmed the protestants. Tolerance, in
any extensive sense, of that proscribed worship was equally abhorrent to
the prelatist and the puritan; though one would have winked at its
peaceable and domestic exercise, which the other was zealous to
eradicate. But, had they been capable of more liberal reasoning upon
this subject, there was enough to justify their indignation at this
attempt to sweep away the restrictive code established by so many
statutes, and so long deemed essential to the security of their church,
by an unconstitutional exertion of the prerogative, prompted by no more
worthy motive than compliance with a foreign power, and tending to
confirm suspicions of the king's wavering between the two religions, or
his indifference to either. In the very first months of his reign, and
while that parliament was sitting, which has been reproached for its
parsimony, he sent a fleet to assist the French king in blocking up the
port of Rochelle; and with utter disregard of the national honour,
ordered the admiral, who reported that the sailors would not fight
against protestants, to sail to Dieppe, and give up his ships into the
possession of France.[693] His subsequent alliance with the Hugonot
party in consequence merely of Buckingham's unwarrantable hostility to
France, founded on the most extraordinary motives, could not redeem, in
the eyes of the nation, this instance of lukewarmness, to say the least,
in the general cause of the Reformation. Later ages have had means of
estimating the attachment of Charles the First to protestantism, which
his contemporaries in that early period of his reign did not enjoy; and
this has led some to treat the apprehensions of parliament as either
insincere or preposterously unjust. But can this be fairly pretended by
any one who has acquainted himself with the course of proceedings on the
Spanish marriage, the whole of which was revealed by the Earl of Bristol
to the House of Lords? Was there nothing, again, to excite alarm in the
frequent conversions of persons of high rank to popery, in the more
dangerous partialities of many more, in the evident bias of certain
distinguished churchmen to tenets rejected at the Reformation? The
course pursued with respect to religious matters after the dissolution
of parliament in 1629, to which I shall presently advert, did by no
means show the misgivings of that assembly to have been ill-founded.
It was neither, however, the Arminian opinions of the higher clergy, nor
even their supposed leaning towards those of Rome, that chiefly
rendered them obnoxious to the Commons. They had studiously inculcated
that resistance to the commands of rulers was in every conceivable
instance a heinous sin; a tenet so evidently subversive of all civil
liberty that it can be little worth while to argue about right and
privilege, wherever it has obtained a real hold on the understanding and
conscience of a nation. This had very early been adopted by the Anglican
reformers, as a barrier against the disaffection of those who adhered to
the ancient religion, and in order to exhibit their own loyalty in a
more favourable light. The homily against wilful disobedience and
rebellion was written on occasion of the rising of the northern earls in
1569, and is full of temporary and even personal allusions.[694] But the
same doctrine is enforced in others of those compositions, which enjoy a
kind of half authority in the English church. It is laid down in the
canons of convocation in 1606. It is very frequent in the writings of
English divines, those especially who were much about the court. And an
unlucky preacher at Oxford, named Knight, about 1622, having thrown out
some intimation that subjects oppressed by their prince on account of
religion might defend themselves by arms; that university, on the king's
highly resenting such heresy, not only censured the preacher (who had
the audacity to observe that the king by then sending aid to the French
Hugonots of Rochelle, as was rumoured to be designed, had sanctioned
his position), but pronounced a solemn decree that it is in no case
lawful for subjects to make use of force against their princes, nor to
appear offensively or defensively in the field against them. All persons
promoted to degrees were to subscribe this article, and to take an oath
that they not only at present detested the opposite opinion, but would
at no future time entertain it. A ludicrous display of the folly and
despotic spirit of learned academies![695]
Those, however, who most strenuously denied the abstract right of
resistance to unlawful commands, were by no means obliged to maintain
the duty of yielding them an active obedience. In the case of religion,
it was necessary to admit that God was rather to be obeyed than man. Nor
had it been pretended, except by the most servile churchmen, that
subjects had no positive rights, in behalf of which they might decline
compliance with illegal requisitions. This, however, was openly asserted
in the reign of Charles. Those who refused the general loan of 1626, had
to encounter assaults from very different quarters, and were not only
imprisoned, but preached at. Two sermons by Sibthorp and Mainwaring
excited particular attention. These men, eager for preferment which they
knew the readiest method to attain, taught that the king might take the
subject's money at his pleasure, and that no one might refuse his
demand, on penalty of damnation. "Parliaments," said Mainwaring, "were
not ordained to contribute any right to the king, but for the more equal
imposing and more easy exacting of that which unto kings doth appertain
by natural and original law and justice, as their proper inheritance
annexed to their imperial Crowns from their birth."[696] These
extravagances of rather obscure men would have passed with less notice,
if the government had not given them the most indecent encouragement.
Abbot, Archbishop of Canterbury, a man of integrity, but upon that
account as well as for his Calvinistic partialities, long since
obnoxious to the courtiers, refused to license Sibthorp's sermon,
alleging some unwarrantable passages which it contained. For no other
cause than this, he was sequestered from the exercise of his
archiepiscopal jurisdiction, and confined to a country-house in
Kent.[697] The House of Commons, after many complaints of those
ecclesiastics, finally proceeded against Mainwaring by impeachment at
the bar of the Lords. He was condemned to pay a fine of £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.[698]
_General remarks._--There seems on the whole to be very little ground
for censure in the proceedings of this illustrious parliament. I admit
that, if we believe Charles the First to have been a gentle and
beneficient monarch, incapable of harbouring any design against the
liberties of his people, or those who stood forward in defence of their
privileges, wise in the choice of his counsellors, and patient in
listening to them, the Commons may seem to have carried their opposition
to an unreasonable length. But, if he had shown himself possessed with
such notions of his own prerogative, no matter how derived, as could
bear no effective control from fixed law or from the nation's
representatives; if he was hasty and violent in temper, yet stooping to
low arts of equivocation and insincerity, whatever might be his
estimable qualities in other respects, they could act, in the main, no
otherwise than by endeavouring to keep him in the power of parliament,
lest his power should make parliament but a name. Every popular
assembly, truly zealous in a great cause, will display more heat and
passion than cool-blooded men after the lapse of centuries may wholly
approve.[699] But so far were they from encroaching, as our Tory writers
pretend, on the just powers of a limited monarch, that they do not
appear to have conceived, they at least never hinted at, the securities
without which all they had obtained or attempted would become
ineffectual. No one member of that house, in the utmost warmth of
debate, is recorded to have suggested the abolition of the court of
star-chamber, or any provision for the periodical meeting of parliament.
Though such remedies for the greatest abuses were in reality consonant
to the actual unrepealed law of the land; yet, as they implied, in the
apprehension of the generality, a retrenchment of the king's
prerogative, they had not yet become familiar to their hopes. In
asserting the illegality of arbitrary detention, of compulsory loans, of
tonnage and poundage levied without consent of parliament, they stood in
defence of positive rights won by their fathers, the prescriptive
inheritance of Englishmen. Twelve years more of repeated aggressions
taught the long parliament what a few sagacious men might perhaps have
already suspected, that they must recover more of their ancient
constitution from oblivion, that they must sustain its partial weakness
by new securities, that, in order to render the existence of monarchy
compatible with that of freedom, they must not only strip it of all it
had usurped, but of something that was its own.
FOOTNOTES:
[629] The general temperance and chastity of Charles, and the effect
those virtues had in reforming the outward face of the court, are
attested by many writers, and especially by Mrs. Hutchinson, whose good
word he would not have undeservedly obtained. _Mem. of Col. Hutchinson_,
p. 65. I am aware that he was not the perfect saint as well as martyr
which his panegyrists represent him to have been; but it is an unworthy
office, even for the purpose of throwing ridicule on exaggerated praise,
to turn the microscope of history on private life.
[630] War had not been declared at Charles's accession, nor at the
dissolution of the first parliament. In fact, he was much more set upon
it than his subjects. Hume and all his school keep this out of sight.
[631] Hume has disputed this, but with little success, even on his own
showing. He observes, on an assertion of Wilson, that Buckingham lost
his popularity after Bristol arrived, because he proved that the former,
while in Spain, had professed himself a papist--that it is false, and
_was never said by Bristol_. It is singular that Hume should know so
positively what Bristol did not say in 1624, when it is notorious that
he said in parliament what nearly comes to the same thing in 1626. See a
curious letter in Cabala, p. 224, showing what a combination had been
formed against Buckingham, of all descriptions of malcontents.
[632] _Parl. Hist._ vol. ii. p. 6.
[633] _Id._ 33.
[634] The language of Lord-Keeper Coventry in opening the session was
very ill calculated for the spirit of the Commons: "If we consider
aright, and think of that incomparable distance between the supreme
height and majesty of a mighty monarch and the submissive awe and
lowliness of loyal subjects, we cannot but receive exceeding comfort and
contentment in the frame and constitution of this highest court, wherein
not only the prelates, nobles, and grandees, but the commons of all
degrees, have their part; and wherein that high majesty doth descend to
admit, or rather to invite, the humblest of his subjects to conference
and counsel with him," etc. He gave them a distinct hint afterwards that
they must not expect to sit long. _Parl. Hist._ 39.
[635] _Parl. Hist._ 60. I know of nothing under the Tudors of greater
arrogance than this language. Sir Dudley Carleton, accustomed more to
foreign negotiations than to an English House of Commons, gave very just
offence by descanting on the misery of the people in other countries.
"He cautioned them not to make the king out of love with parliaments by
incroaching on his prerogative; for in his messages he had told them
that he must then use new councils. In all Christian kingdoms there were
parliaments anciently, till the monarchs seeing their turbulent spirits,
stood upon their prerogatives, and overthrew them all, except with us.
In foreign countries the people look not like ours, with store of flesh
on their backs; but like ghosts, being nothing but skin and bones, with
some thin cover to their nakedness, and wearing wooden shoes on their
feet; a misery beyond expression, and that we are yet free from; and let
us not lose the repute of a free-born nation by our turbulency in
parliament." Rushworth.
This was a hint, in the usual arrogant style of courts, that the
liberties of the people depended on favour, and not on their own
determination to maintain them.
[636] _Parl. Hist._ 119; Hatsell, i. 147; Lords' Journals. A few peers
refused to join in this.
Dr. Lingard has observed that the opposition in the House of Lords was
headed by the Earl of Pembroke, who had been rather conspicuous in the
late reign, and whose character is drawn by Clarendon in the first book
of history. He held ten proxies in the king's first parliament, as
Buckingham did thirteen. Lingard, ix. 328. In the second Pembroke had
had only five, but the duke still came with thirteen. Lords' Journals,
p. 491. This enormous accumulation of suffrages in one person led to an
order of the house, which is now its established regulation, that no
peer can hold more than two proxies. Lords' Journals, p. 507.
[637] _Parl. Hist._ 125; Hatsell, 141.
[638] Mr. Brodie has commented rather too severely on Bristol's conduct.
Vol. ii. p. 109. That he was "actuated merely by motives of
self-aggrandisement," is surely not apparent; though he might be more
partial to Spain than we may think right, or even though he might have
some bias towards the religion of Rome. The last, however, is by no
means proved; for the king's word is no proof in my eyes.
[639] See the proceedings on the mutual charges of Buckingham and
Bristol in Rushworth, or the _Parliamentary History_. Charles's
behaviour is worth noticing. He sent a message to the house, desiring
that they would not comply with the earl's request of being allowed
counsel; and yielded ungraciously, when the Lords remonstrated against
the prohibition. _Parl. Hist._ 97, 132. The attorney-general exhibited
articles against Bristol as to facts depending in great measure on the
king's sole testimony. Bristol petitioned the house "to take in
consideration of what consequence such a precedent might be; and thereon
most humbly to move his majesty for the declining, at least, of his
majesty's accusation and testimony." _Id._ 98. The house ordered two
questions on this to be put to the judges: 1. Whether, in case of
treason or felony, the king's testimony was to be admitted or not? 2.
Whether words spoken to the prince, who is after king, make any
alteration in the case? They were ordered to deliver their opinions
three days afterwards. But when the time came, the chief justice
informed the house that the attorney-general had communicated to the
judges his majesty's pleasure that they should forbear to give an
answer. _Id._ 103, 106.
Hume says, "Charles himself was certainly deceived by Buckingham, when
he corroborated his favourite's narrative by his testimony." But no
assertion can be more gratuitous; the supposition indeed is impossible.
[640] _Parl. Hist._ 193. If the following letter is accurate, the
privy-council themselves were against this dissolution: "Yesterday the
Lords sitting in council at Whitehall to argue whether the parliament
should be dissolved or not, were all with one voice against the
dissolution of it; and to-day, when the lord keeper drew out the
commission to have read it, they sent four of their own body to his
majesty to let him know how dangerous this abruption would be to the
state, and beseech him the parliament might sit but two days--he
answered not a minute."--15 June, 1626. Mede's Letters, _ubi supra_. The
author expresses great alarm at what might be the consequence of this
step. Mede ascribes this to the council; but others, perhaps more
probably, to the house of peers. The king's expression "not a minute" is
mentioned by several writers.
[641] Rushworth, Kennet.
[642] Mede's Letters--"On Monday the judges sat in Westminster-hall to
persuade the people to pay subsidies; but there arose a great tumultuous
shout amongst them: 'A parliament! a parliament! else no subsidies!' The
levying of the subsidies, verbally granted in parliament, being
propounded to the subsidy men in Westminster, all of them, saving some
thirty among five thousand (and they all the king's servants), cried 'A
parliament! a parliament!' etc. The same was done in Middlesex on Monday
also, in five or six places, but far more are said to have refused the
grant. At Hicks's hall the men of Middlesex assembled there, when they
had heard a speech for the purpose, made their obeisance; and so went
out without any answer affirmative or negative. In Kent the whole county
denied, saying that subsidies were matters of too high a nature for them
to meddle withal, and that they durst not deal therewith, lest,
hereafter they might be called in question." July 22, _et post_. In
Harleian MSS. xxxvii. fol. 192, we find a letter from the king to the
deputy lieutenant and justices of every county, informing them that he
had dissolved the last parliament because the disordered passion of some
members of that house, contrary to the good inclination of the greater
and wiser sort of them, had frustrated the grant of four subsidies, and
three-fifteenths, where they had promised; he therefore enjoins the
deputy lieutenants to cause all the troops and bands of the county to be
mustered, trained, and ready to march, as he is threatened with
invasion; that the justices do divide the county into districts, and
appoint in each able persons to collect and receive moneys, promising
the parties to employ them in the common defence; to send a list of
those who contribute and those who refuse, "that we may hereby be
informed who are well affected to our service, and who are otherwise."
July 7, 1626. It is evident that the pretext of invasion, which was
utterly improbable, was made use of in order to shelter the king's
illegal proceedings.
[643] Rushworth's Abr. i. 270.
[644] The 321st volume of Hargrave MSS. p. 300, contains minutes of a
debate at the council-table during the interval between the second and
third parliaments of Charles, taken by a counsellor. It was proposed to
lay an excise on beer; others suggested that it should be on malt, on
account of what was brewed in private houses. It was then debated "how
to overcome difficulties, whether by persuasion or force. Persuasion, it
was thought, would not gain it; and for judicial courses, it would not
hold against the subject that would stand upon the right of his own
property, and against the fundamental constitutions of the kingdom. The
last resort was to a proclamation; for in star-chamber it might be
punishable, and thereupon it rested." There follows much more; it seemed
to be agreed that there was such a necessity as might justify the
imposition; yet a sort of reluctance is visible even among these timid
counsellors. The king pressed it forward much. In the same volume (p.
393) we find other proceedings at the council-table, whereof the subject
was, the censuring or punishing of some one who had refused to
contribute to the loan of 1626 on the ground of its illegality. The
highest language is held by some of the conclave in this debate.
Mr. D'Israeli has collected from the same copious reservoir, the
manuscripts of the British Museum, several more illustrations, both of
the arbitrary proceedings of the council, and of the bold spirit with
which they were resisted. _Curiosities of Literature_, New Series, iii.
381. But this ingenious author is too much imbued with "the monstrous
faith of many made for one," and sets the private feelings of Charles
for an unworthy and dangerous minion, above the liberties and interests
of the nation.
[645] Rushworth, Kennet.
[646] See above, in chap. v. Coke himself, while chief justice, had held
that one committed by the privy-council was not bailable by any court in
England. _Parl. Hist._ 310. He had nothing to say when pressed with this
in the next parliament, but that he had misgrounded his opinion upon a
certain precedent, which being nothing to the purpose, he was now
assured his opinion was as little to the purpose. _Id._ 325; _State
Trials_, iii. 81.
[647] _State Trials_, iii. 1-234; _Parl. Hist._ 246, 259, etc.;
Rushworth.
[648] At the council-table, some proposing a parliament, the king said,
he did abominate the name. Mede's Letters, 30th Sept. 1626.
[649] Rushworth; Mede's Letters in Harl. MSS. _passim_.
[650] Rushworth's Abr. i. 304; Cabala, part ii. 217. See what is said of
this by Mr. Brodie, ii. 158.
[651] A commission addressed to Lord Wimbledon, 28th Dec. 1625, empowers
him to proceed against soldiers or dissolute persons joining with them,
who should commit any robberies, etc., which by martial law ought to be
punished with death, by such summary course as is agreeable to martial
law, etc. Rymer, xviii. 254. Another, in 1626, may be found. P. 763. It
is unnecessary to point out how unlike these commissions are to our
present mutiny-bills.
[652] Bishop Williams, as we are informed by his biographer, though he
promoted the petition of right, stickled for the additional clause
adopted by the Lords, reserving the king's sovereign power; which very
justly exposed him to suspicion of being corrupted. For that he was so
is most evident by what follows; where we are told that he had an
interview with the Duke of Buckingham, when they were reconciled; and
"his grace had the bishop's consent with a little asking, that he would
be his grace's faithful servant in the next session of parliament, and
was allowed to hold up a seeming enmity, and his own popular estimation,
that he might the sooner do the work." Hacket's _Life of Williams_, pp.
77, 80. With such instances of baseness and treachery in the public men
of this age, surely the distrust of the Commons was not so extravagant
as the school of Hume pretend.
[653] The debates and conferences on this momentous subject, especially
on the article of the habeas corpus, occupy near two hundred columns in
the _New Parliamentary History_, to which I refer the reader.
In one of these conferences, the Lords, observing what a prodigious
weight of legal ability was arrayed on the side of the petition, very
fairly determined to hear counsel for the Crown. One of these, Serjeant
Ashley, having argued in behalf of the prerogative in a high tone, such
as had been usual in the late reign, was ordered into custody; and the
Lords assured the other house, that he had no authority from them for
what he had said. _Id._ 327. A remarkable proof of the rapid growth of
popular principles!
[654] Hargrave MSS. xxxii. 97.
[655] _Parl. Hist._ 436.
[656] Stat. 3 Car. I. c. 1. Hume has printed in a note the whole statute
with the preamble, which I omit for the sake of brevity, and because it
may be found in so common a book.
[657] _Parl. Hist._ 431.
[658] Rushworth Abr. i. 409.
[659] _Parl. Hist._ 441, etc.
[660] Cawdrey's Case, 5 Reports; Cro. Jac. 37; Neal, p. 432. The latter
says, above three hundred were deprived; but Collier reduces them to
forty-nine. P. 687. The former writer states the nonconformist ministers
at this time in twenty-four counties to have been 754; of course the
whole number was much greater. P. 434. This minority was considerable;
but it is chiefly to be noticed, that it contained the more exemplary
portion of the clergy; no scandalous or absolutely illiterate incumbent,
of whom there was a very large number, being a nonconformist. This
general enforcement of conformity, however it might compel the
majority's obedience, rendered the separation of the incompliant more
decided. Neal, 446. Many retired to Holland, especially of the Brownist,
or Independent denomination. _Id._ 436. And Bancroft, like his successor
Laud, interfered to stop some who were setting out for Virginia. _Id._
454.
[661] Lord Bacon, in his advertisement respecting the _Controversies of
the Church of England_, written under Elizabeth, speaks of this notion
as newly broached. "Yea and some indiscreet persons have been bold in
open preaching to use dishonourable and derogatory speech and censure of
the churches abroad; and that so far, as some of our men ordained in
foreign parts have been pronounced to be no lawful ministers."--Vol. i.
p. 382. It is evident, by some passages in Strype, attentively
considered, that natives regularly ordained abroad in the presbyterian
churches were admitted to hold preferment in England; the first bishop
who objected to them seems to have been Aylmer. Instances, however, of
foreigners holding preferment without any re-ordination, may be found
down to the civil wars. _Annals of Reformation_, ii. 522, and Appendix,
116; _Life of Grindal_, 271; Collier, ii. 594; Neal, i. 258.
The divine right of episcopacy is said to have been laid down by
Bancroft, in his famous sermon at Paul's cross, in 1588. But I do not
find anything in it to that effect. It is, however, pretty distinctly
asserted, if I mistake not the sense, in the canons of 1606. Overall's
_Convocation Book_, 179, etc. Yet Laud had been reproved by the
university of Oxford in 1604, for maintaining, in his exercise for
bachelor of divinity, that there could be no true church without
bishops, which was thought to cast a bone of contention between the
church of England and the reformed upon the Continent. Heylin's _Life of
Laud_, 54.
Cranmer and some of the original founders of the Anglican church, so far
from maintaining the divine and indispensable right of episcopal
government, held bishops and priests to be the same order.
[662] See the queen's injunctions of 1559 (_Somers Tracts_, i. 65), and
compare preamble of 5 and 6 of Edw. VI. c. 3.
[663] The first of these Sabbatarians was a Dr. Bound, whose sermon was
suppressed by Whitgift's order. But some years before, one of Martin
Mar-prelate's charges against Aylmer was for playing at bowls on
Sundays: and the word sabbath as applied to that day may be found
occasionally under Elizabeth, though by no means so usual as afterwards.
One of Bound's recommendations was that no feasts should be given on
that day, "except by lords, knights, and persons of quality;" for which
unlucky reservation his adversaries did not forget to deride him.
Fuller's _Church History_, p. 227. This writer describes in his quaint
style the abstinence from sports produced by this new doctrine; and
remarks, what a slight acquaintance with human nature would have taught
Archbishop Laud, that "the more liberty people were offered, the less
they used it; it was sport for them to refrain from sport." See also
Collier, 643; Neal, 386; Strype's _Whitgift_, 530; May's _Hist. of
Parliament_, 16.
[664] Heylin's _Life of Laud_, 15; Fuller, part ii. p. 76.
The regulations enacted at various times since the Reformation for the
observance of abstinence in as strict a manner, though not ostensibly on
the same grounds, as it is enjoined in the church of Rome, may deserve
some notice. A statute of 1548 (2 and 3 Edward VI. c. 19), after
reciting that one day or one kind of meat is not more holy, pure, or
clean than another, and much else to the same effect, yet "forasmuch as
divers of the king's subjects, turning their knowledge therein to
gratify their sensuality, have of late more than in times past broken
and contemned such abstinence, which hath been used in this realm upon
the Fridays and Saturdays, the embering days and other days commonly
called vigils, and in the time commonly called Lent, and other
accustomed times; the king's majesty considering that due and godly
abstinence is a mean to virtue and to subdue men's bodies to their soul
and spirit, and considering also especially that fishers and men using
the trade of fishing in the sea may thereby the rather be set on work,
and that by eating of fish much flesh shall be saved and increased,"
enacts, after repealing all existing laws on the subject, that such as
eat flesh at the forbidden seasons shall incur a penalty of ten
shillings, or ten days' imprisonment _without flesh_, and a double
penalty for the second offence.
The next statute relating to abstinence is one (5th Eliz. c. 5) entirely
for the increase of the fishery. It enacts (§ 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.
Many proclamations appear to have been issued in order to enforce an
observance so little congenial to the propensities of Englishmen. One of
those in the first year of Edward was before any statute; and its very
words respecting the indifference of meats in a religious sense were
adopted by the legislature the next year. Strype's _Eccles. Memor._ ii.
81. In one of Elizabeth's, A.D. 1572, as in the statute of Edward, the
political motives of the prohibition seem in some measure associated
with the superstition it disclaims; for eating in the season of Lent is
called "licentious and carnal disorder, in contempt of God and man, and
only to the satisfaction of devilish and carnal appetite;" and butchers,
etc., "ministering to such foul lust of the flesh," were severely
mulcted. Strype's _Annals_, ii. 208. But in 1576 another proclamation to
the same effect uses no such hard words, and protests strongly against
any superstitious interpretation of its motive. _Life of Grindal_, p.
226. So also in 1579 (Strype's _Annals_, ii. 608), and, as far as I have
observed, in all of a later date, the encouragement of the navy and
fishery is set forth as their sole ground. In 1596, Whitgift, by the
queen's command, issued letters to the bishops of his province, to take
order that the fasting-days, Wednesday and Friday, should be kept, and
no suppers eaten, especially on Friday evens. This was on account of the
great dearth of that and the preceding year. Strype's _Whitgift_, p.
490. These proclamations for the observance of Lent continued under
James and Charles, as late, I presume, as the commencement of the civil
war. They were diametrically opposed to the puritan tenets; for,
notwithstanding the pretext about the fishery, there is no doubt that
the dominant ecclesiastics maintained the observance of Lent as an
ordinance of the church. But I suspect that little regard was paid to
Friday and Saturday as days of weekly fast. Rymer, xvii. 131, 134, 349;
xviii. 268, 282, 961.
This abstemious system, however, was only compulsory on the poor.
Licences were easily obtained by others from the privy-council in
Edward's days, and afterwards from the bishop. They were empowered, with
their guests, to eat flesh on all fasting-days for life. Sometimes the
number of guests was limited. Thus the Marquis of Winchester had
permission for twelve friends; and John Sanford, draper of Gloucester,
for two. Strype's _Memorials_, ii. 82. The act above mentioned for
encouragement of the fishery, 5th Eliz. c. 5, provides that £1 6_s._
8_d._ shall be paid for granting every licence, and 6_s._ 8_d._ annually
afterwards, to the poor of the parish. But no licence was to be granted
for eating beef at any time of the year, or veal from Michaelmas to the
first of May. A melancholy privation to our countrymen! but, I have no
doubt, little regarded. Strype makes known to us the interesting fact,
that Ambrose Potter, of Gravesend, and his wife, had permission from
Archbishop Whitgift "to eat flesh and white meats in Lent, during their
lives; so that it was done soberly and frugally, cautiously, and
avoiding public scandal as much as might be, and giving 6_s._ 8_d._
annually to the poor of the parish." _Life of Whitgift_, 246.
The civil wars did not so put an end to the compulsory observance of
Lent and fish days but that similar proclamations are found after the
Restoration, I know not how long. Kennet's Register, p. 367 and 558. And
some orthodox Anglicans continued to make a show of fasting. The
following extracts from Pepys' diary are, perhaps, characteristic of the
class. "I called for a dish of fish which we had for dinner, this being
the first day of Lent; and I do intend to try whether I can keep it or
no." Feb. 27, 1661. "Notwithstanding my resolution, yet for want of
other victuals, I did eat flesh this Lent, but am resolved to eat as
little as I can."
[665] Wilson, 709.
[666] Debates in parliament, 1621, vol. i. pp. 45, 52. The king
requested them not to pass this bill, being so directly against his
proclamation. _Id._ 60. Shepherd's expulsion is mentioned in Mede's
Letters, Harl. MSS. 389.
[667] Vol. ii. 97. Two acts were passed (1 Car. I. c. 1 and 3 Car I. c.
2) for the better observance of Sunday; the former of which gave great
annoyance, it seems, to the orthodox party. "Had any such bill," says
Heylin, "been offered in King James's time, it would have found a sorry
welcome; but this king being under a necessity of compliance with them,
resolved to grant them their desires in that particular, to the end that
they might grant his also in the aid required, when that obstruction was
removed. The Sabbatarians took the benefit of this opportunity for the
obtaining of this grant, the first that ever they obtained by all their
strugglings, which of what consequence it was we shall see hereafter."
_Life of Laud_, p. 129. Yet this statute permits the people lawful
sports and pastimes on Sundays within their own parishes.
[668] Without loading the page with too many references on a subject so
little connected with this work, I mention Strype's _Annals_, vol. i. p.
118, and a letter from Jewel to P. Martyr in Burnet, vol. iii. Appendix
275.
[669] Collier, 568.
[670] Strype's _Annals_, i. 207, 294.
[671] Strype's _Whitgift_, 434-472.
[672] It is admitted on all hands that the Greek fathers did not
inculcate the predestinarian system. Elizabeth having begun to read some
of the fathers, Bishop Cox writes of it with some disapprobation,
adverting especially to the Pelagianism of Chrysostom and the other
Greeks. Strype's _Annals_, i. 324.
[673] Winwood, iii. 293. The intemperate and even impertinent behaviour
of James in pressing the states of Holland to inflict some censure or
punishment on Vorstius, is well known. But though Vorstius was an
Arminian, it was not precisely on account of those opinions that he
incurred the king's peculiar displeasure, but for certain propositions
as to the nature of the Deity, which James called atheistical, but which
were in fact Arian. The letters on this subject in Winwood are curious.
Even at this time, the king is said to have spoken moderately of
predestination as a dubious point (p. 452), though he had treated
Arminius as a mischievous innovator for raising a question about it; and
this is confirmed by his letter to the States in 1613. Brandt, iii. 129;
and see p. 138; See Collier, p. 711, for the king's sentiments in 1616;
also Brandt, iii. 313.
[674] Sir Dudley Carleton's _Letters and Negotiations, passim_; Brandt's
_History of Reformation in Low Countries_, vol. iii. The English divines
sent to this synod were decidedly inclined to Calvinism, but they spoke
of themselves as deputed by the king, not by the church of England which
they did not represent.
[675] There is some obscurity about the rapid transition of the court
from Calvinism to the opposite side. It has been supposed that the part
taken by James at the synod of Dort was chiefly political, with a view
to support the house of Orange against the party headed by Barnevelt.
But he was so much more of a theologian than a statesman, that I much
doubt whether this will account satisfactorily for his zeal in behalf of
the Gomarists. He wrote on the subject with much polemical bitterness,
but without reference, so far as I have observed, to any political
faction; though Sir Dudley Carleton's letters show that _he_
contemplated the matter as a minister ought to do. Heylin intimates that
the king grew "more moderate afterwards, and into a better liking of
those opinions which he had laboured to condemn at the synod of Dort."
_Life of Laud_, 120. The court language, indeed, shifted so very soon
after this, that Antonio de Dominis, the famous half-converted
Archbishop of Spalato, is said to have invented the name of doctrinal
puritans for those who distinguished themselves by holding the
Calvinistic tenets. Yet the synod of Dort was in 1618; while De Dominis
left England not later than 1622. Buckingham seems to have gone very
warmly into Laud's scheme of excluding the Calvinists. The latter gave
him a list of divines on Charles's accession, distinguishing their names
by O. and P. for orthodox and puritan; including several tenets in the
latter denomination, besides those of the quinquarticular controversy;
such as the indispensable observance of the Lord's day, the
indiscrimination of bishops and presbyters, etc. _Life of Laud_, 119.
The influence of Laud became so great that to preach in favour of
Calvinism, though commonly reputed to be the doctrine of the church,
incurred punishment in any rank. Davenant, Bishop of Salisbury, one of
the divines sent to Dort, and reckoned among the principal theologians
of that age, was reprimanded on his knees before the privy-council for
this offence. Collier, p. 750. But in James's reign the University of
Oxford was decidedly Calvinistic. A preacher, about 1623, having used
some suspicious expressions, was compelled to recant them, and to
maintain the following theses in the divinity school: Decretum
prædestinationis non est conditionale--Gratia sufficiens ad salutem non
conceditur omnibus. Wood, ii. 348. And I suppose it continued so in the
next reign, so far as the university's opinions could be manifested. But
Laud took care that no one should be promoted, as far as he could help
it, who held these tenets.
[676] Winwood, vol. i. pp. 1, 52, 388; _Lettres d'Ossat_, i. 221;
Birch's _Negotiations of Edmondes_, p. 36. These references do not
relate to the letter said to have been forged in the king's name, and
addressed to Clement VIII. by Lord Balmerino. But Laing, _Hist. of
Scotland_, iii. 59, and Birch's _Negotiations_, etc. 177, render it
almost certain that this letter was genuine, which indeed has been
generally believed by men of sense. James was a man of so little
consistency or sincerity that it is difficult to solve the problem of
this clandestine intercourse. But it might very likely proceed from his
dread of being excommunicated, and, in consequence, assassinated. In a
proclamation, commanding all jesuits and priests to quit the realm,
dated in 1603, he declares himself personally "so much beholden to the
new bishop of Rome for his kind office and private temporal carriage
towards us in many things, as we shall ever be ready to requite the same
towards him as Bishop of Rome in state and condition of a secular
prince." Rymer, xvi. 573. This is explained by a passage in the memoirs
of Sully (l. 15). Clement VIII., though before Elizabeth's death he had
abetted the project of placing Arabella on the throne, thought it
expedient, after this design had failed, to pay some court to James, and
had refused to accept the dedication of a work written against him,
besides, probably, some other courtesies. There is a letter from the
king addressed to the pope, and probably written in 1603, among the
Cottonian MSS. Nero B. vi. 9, which shows his disposition to coax and
coquet with the Babylonian, against whom he so much inveighs in his
printed works. It seems that Clement had so far presumed as to suggest
that the Prince of Wales should be educated a catholic; which the king
refuses, but not in so strong a manner as he should have done. I cannot
recollect whether this letter has been printed, though I can scarcely
suppose the contrary. Persons himself began to praise the works of
James, and show much hope of what he would do. Cotton, Jul. B. vi. 77.
The severities against catholics seem at first to have been practically
mitigated. Winwood, ii. 78. Archbishop Hutton wrote to Cecil,
complaining of the toleration granted to papists, while the puritans
were severely treated. _Id._ p. 40; Lodge, iii. 251. "The former," he
says, "partly by this round dealing with the puritans, and partly by
some extraordinary favour, have grown mightily in number, courage, and
influence."--"If the gospel shall quail, and popery prevail, it will be
imputed principally unto your great counsellors, who either procure or
yield to grant toleration to some." James told some gentlemen who
petitioned for toleration, that the utmost they could expect was
connivance. Carte, iii. 711. This seems to have been what he intended
through his reign, till importuned by Spain and France to promise more.
[677] 1 Jac. I. c. 4. The penalties of recusancy were particularly hard
upon women, who, as I have observed in another place, adhered longer to
the old religion than the other sex; and still more so upon those who
had to pay for their scruples. It was proposed in parliament, but with
the usual fate of humane suggestions, that husbands going to church,
should not be liable for their wives' recusancy. Carte, 754. But they
had the alternative afterwards, by 7 Jac. I. c. 6, of letting their
wives lie in prison or paying £10 a month.
[678] Lingard, ix. 41, 55.
[679] From comparing some passages in Sir Charles Cornwallis's
despatches, (Winwood, vol. ii. pp. 143, 144, 153, with others in Birch's
account of Sir Thomas Edmondes's negotiations, p. 233, _et seq._) it
appears that the English catholics were looking forward at this time to
some crisis in their favour, and that even the court of Spain was
influenced by their hopes. A letter from Sir Thomas Parry to Edmondes,
dated at Paris, 10 Oct. 1605, is remarkable: "Our priests are very busy
about petitions to be exhibited to the king's majesty at this
parliament, and some further designs upon refusal. These matters are
secretly managed by intelligence with their colleagues in those parts
where you reside, and with the two nuncios. I think it were necessary
for his majesty's service that you found means to have privy spies
amongst them, to discover their negotiations. Something is at present in
hand amongst these desperate hypocrites, which I trust God shall divert
by the vigilant care of his majesty's faithful servants and friends
abroad, and prudence of his council at home." Birch, p. 233. There seems
indeed some ground for suspicion that the nuncio at Brussels was privy
to the conspiracy; though this ought not to be asserted as an historical
fact. Whether the offence of Garnet went beyond misprision of treason
has been much controverted. The catholic writers maintain that he had no
knowledge of the conspiracy, except by having heard it in confession.
But this rests altogether on his word; and the prevarication of which he
has been proved to be guilty (not to mention the damning circumstance
that he was taken at Hendlip in concealment along with the other
conspirators), makes it difficult for a candid man to acquit him of a
thorough participation in their guilt. Compare Townsend's _Accusations
of History against the Church of Rome_ (1825), p. 247, containing
extracts from some important documents in the State Paper-Office, not as
yet published, with _State Trials_, vol. ii.; and see Lingard, ix. 160,
etc. Yet it should be kept in mind that it was easy for a few artful
persons to keep on the alert by indistinct communications a credulous
multitude whose daily food was rumour; and the general hopes of the
English Romanists at the moment are not evidence of their privity to the
gunpowder-treason, which was probably contrived late, and imparted to
very few. But to deny that there was such a plot, or, which is the same
thing, to throw the whole on the contrivance and management of Cecil, as
has sometimes been done, argues great effrontery in those who lead, and
great stupidity in those who follow. The letter to Lord Monteagle, the
discovery of the powder, the simultaneous rising in arms in
Warwickshire, are as indisputable as any facts in history. What then had
Cecil to do with the plot, except that he hit upon the clue to the dark
allusions in the letter to Monteagle, of which he was courtier enough to
let the king take the credit? James's admirers have always reckoned
this, as he did himself, a vast proof of sagacity; yet there seems no
great acuteness in the discovery, even if it had been his own. He might
have recollected the circumstances of his father's catastrophe, which
would naturally put him on the scent of gunpowder. In point of fact,
however, the happy conjecture appears to be Cecil's. Winwood, ii. 170.
But had he no previous hint? See Lodge, iii. 301.
The Earl of Northumberland was not only committed to the Tower on
suspicion of privity in the plot, but lay fourteen years there, and paid
a fine of £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.
[680] 3 Jac. I. c. 4, 5.
[681] Carte, iii. 782; Collier, 690; Butler's _Memoirs of Catholics_;
Lingard, vol. ix. 97; Aikin, i. 319. It is observed by Collier, ii. 695,
and indeed by the king himself, in his _Apology for the Oath of
Allegiance_ (edit. 1619), p. 46, that Bellarmine plainly confounds the
oath of allegiance with that of supremacy. But this cannot be the whole
of the case; it is notorious that Bellarmine protested against any
denial of the pope's deposing power.
[682] Lingard, ix. 215. Drury, executed in 1607, was one of the twelve
priests who, in 1602, had signed a declaration of the queen's right to
the crown, notwithstanding her excommunication. But, though he evidently
wavered, he could not be induced to say as much now in order to save his
life. _State Trials_, ii. 358.
[683] Lord Bacon, wise in all things, always recommended mildness
towards recusants. In a letter to Villiers, in 1616, he advises that the
oath of supremacy should by no means be tendered to recusant magistrates
in Ireland; "the new plantation of protestants," he says, "must mate the
other party in time." Vol. ii. p. 530. This has not indeed proved true;
yet as much, perhaps, for want of following Bacon's advice, as for any
other cause. He wished for a like toleration in England. But the king,
as Buckingham lets him know, was of a quite contrary opinion; for,
"though he would not by any means have a more severe course held than
his laws appoint in that case, yet there are many reasons why there
should be no mitigation above that which his laws have exerted, and his
own conscience telleth him to be fit." He afterwards professes "to
account it a baseness in a prince to show such a desire of the match
[this was in 1617] as to slack anything in his course of government,
much more in propagation of the religion he professeth, for fear of
giving hinderance to the match thereby."--Page 562. What a contrast to
the behaviour of this same king six years afterwards! The Commons were
always dissatisfied with lenity, and complained that the lands of
recusants were undervalued; as they must have been, if the king got only
£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 _Hardwicke Papers_.
[684] The absurd and highly blamable conduct of Buckingham has created a
prejudice in favour of the court of Madrid. That they desired the
marriage is easy to be believed; but that they would have ever sincerely
co-operated for the restoration of the Palatinate, or even withdrawn the
Spanish troops from it, is neither rendered probable by the general
policy of that government, nor by the conduct it pursued in the
negotiation. Compare _Hardwicke State Papers_, vol. i.; Cabala, 1, _et
post_; Howell's _Letters_; _Clarendon State Papers_, vol. i. _ad
initium_, especially p. 13.
A very curious paper in the latter collection (p. 14) may be thought,
perhaps, to throw light on Buckingham's projects, and account in some
measure for his sudden enmity to Spain. During his residence at Madrid
in 1623, a secretary who had been dissatisfied with the court revealed
to him a pretended secret discovery of gold mines in a part of America,
and suggested that they might be easily possessed by any association
that could command seven or eight hundred men; and that after having
made such a settlement, it would be easy to take the Spanish flotilla,
and attempt the conquest of Jamaica and St. Domingo. This made so great
an impression on the mind of Buckingham, that, long afterwards in 1628,
he entered into a contract with Gustavus Adolphus, who bound himself to
defend him against all opposers in the possession of these mines, as an
absolute prince and sovereign, on condition of receiving one-tenth of
the profits; promising especially his aid against any puritans who might
attack him from Barbadoes or elsewhere, and to furnish him with four
thousand men and six ships of war, to be paid out of the revenue of the
mines.
This is a very strange document, if genuine. It seems to show that
Buckingham, aware of his unpopularity in England, and that sooner or
later he must fall, and led away, as so many were, by the expectation of
immense wealth in America, had contrived this arrangement, which was
probably intended to take place only in the event of his banishment from
England. The share that Gustavus appears to have taken in so wild a plan
is rather extraordinary, and may expose the whole to some suspicion. It
is not clear how this came among the Clarendon papers; but the
indorsement runs: "Presented, and the design attempted and in some
measure attained by Cromwell, anno 1652." I should conjecture therefore
that some spy of the king's procured the copy from Cromwell's papers.
I have since found that Harte had seen a sketch of this treaty, but he
does not tell us by what means. _Hist. Gust. Adolph._ i. 130. But that
prince, in 1627, laid before the diet of Sweden a plan for establishing
a commerce with the West Indies; for which sums of money were
subscribed. _Id._ 143.
[685] _Hardwicke Papers_, pp. 402, 411, 417. The very curious letters in
this collection relative to the Spanish match are the vouchers for my
text. It appears by one of Secretary Conway's, since published (Ellis,
iii. 154), that the king was in great distress at the engagement for a
complete immunity from penal laws for the catholics, entered into by the
prince and Buckingham; but, on full deliberation in the council, it was
agreed that he must adhere to his promise. This rash promise was the
cause of his subsequent prevarications.
[686] _Hardwicke Papers_; Rushworth.
[687] _Hardwicke Papers_, p. 452, where the letter is printed in Latin.
The translation in Wilson, Rushworth, and Cabala, p. 214, is not by any
means exact, going in several places much beyond the original. If Hume
knew nothing but the translation, as is most probable, we may well be
astonished at his way of dismissing this business; that "the prince
having received a very civil letter from the pope, he was induced to
return a very civil answer." Clarendon saw it in a different light.
_Clar. State Papers_, ii. 337.
Urban VIII. had succeeded Gregory XV. before the arrival of Charles's
letter. He answered it, of course, in a style of approbation, and so as
to give the utmost meaning to the prince's compliments, expressing his
satisfaction, "cum pontificem Romanum ex officii genere colere princeps
Britannus inciperet," etc. Rushworth, vol. i. p. 98.
It is said by Howell, who was then on the spot, that the prince never
used the service of the church of England while he was at Madrid, though
two chaplains, church-plate, etc., had been sent over. Howell's
_Letters_, p. 140. Bristol and Buckingham charged each other with
advising Charles to embrace the Romish religion; and he himself, in a
letter to Bristol, Jan. 21, 1625-6, imputes this to him in the most
positive terms. Cabal p. 17, 4to edit. As to Buckingham's willingness to
see this step taken, there can, I presume, be little doubt.
[688] Rushworth; Cabala, p. 19.
[689] _Parl. Hist._ 1375. Both houses, however, joined in an address
that the laws against recusants might be put in execution (_Id._ 1408);
and the Commons returned again to the charge afterwards. _Idem_, 1484.
[690] Rushworth.
[691] See a series of letters from Lord Kensington (better known
afterwards as Earl of Holland), the king's ambassador at Paris for this
marriage-treaty; in the appendix to _Clarendon State Papers_, vol. ii.
pp. v. viii. ix.
[692] _Hardwicke Papers_, i. 536. Birch, in one of those volumes given
by him to the British Museum (and which ought to be published according
to his own intention), has made several extracts from the MS. despatches
of Tillieres, the French ambassador, which illustrate this negotiation.
The pope, it seems, stood off from granting the dispensation, requiring
that the English catholic clergy should represent to him their
approbation of the marriage. He was informed that the cardinal had
obtained terms much more favourable for the catholics than in the
Spanish treaty. In short, they evidently fancied themselves to have
gained a full assurance of toleration; nor could the match have been
effected on any other terms. The French minister writes to Louis XIII.
from London, October 6, 1624, that he had obtained a supersedeas of all
prosecutions, more than themselves expected, or could have believed
possible; "en somme, un acte 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.
The king's letter above mentioned does not, I believe, appear. But his
ambassadors, Carlisle and Holland, had promised in his name that he
would give a written promise, on the word and honour of a king, which
the prince and a secretary of state should also sign, that all his Roman
catholic subjects should enjoy more freedom as to their religion than
they could have had by any articles agreed on with Spain; not being
molested in their persons or property for their profession and exercise
of their religion, provided they used their liberty with moderation, and
rendered due submission to the king, who would not force them to any
oath contrary to their religion. This was signed 18th Nov. _Hardw. Pap._
546.
Yet after this concession on the king's part, the French cabinet was
encouraged by it to ask for "a direct and public toleration, not by
connivance, promise, or _écrit_ secret, but by a public notification to
all the Roman catholics, and that of all his majesty's kingdoms
whatsoever, confirmed by his majesty's and the prince's oath, and
attested by a public act, whereof a copy to be delivered to the pope or
his minister, and the same to bind his majesty and the prince's
successors for ever." _Id._ p. 552. The ambassadors expressed the
strongest indignation at this proposal, on which the French did not
think fit to insist. In all this wretched negotiation, James was as much
the dupe as he had been in the former, expecting that France would
assist in the recovery of the Palatinate, towards which, in spite of
promises, she took no steps. Richlieu had said, "donnez-nous des
prêtres, et nous vous donnerons des colonels." _Id._ p. 538. Charles
could hardly be expected to keep his engagement as to the catholics,
when he found himself so grossly outwitted.
It was during this marriage-treaty of 1624, that the archbishop of
Embrun, as he relates himself, in the course of several conferences with
the king on that subject, was assured by him that he was desirous of
re-entering the fold of the church. Wilson in Rennet, p. 786, note by
Wellwood. I have not seen the original passage; but Dr. Lingard puts by
no means so strong an interpretation on the king's words, as related by
the archbishop. Vol. ix. 323.
[693] Rennet, p. vi.; Rushworth; Lingard, ix. 353; Cabala, p. 144.
[694] "God alloweth (it is said in this homily, among other passages to
the same effect) neither the dignity of any person, nor the multitude of
any people, nor the weight of any cause, as sufficient for the which the
subjects may move rebellion against their princes." The next sentence
contains a bold position. "Turn over and read the histories of all
nations, look over the chronicles of our own country, call to mind so
many rebellions of old time, and some yet fresh in memory; ye shall not
find that God ever prospered any rebellion against their natural and
lawful prince, but contrariwise, that the rebels were overthrown and
slain, and such as were taken prisoners dreadfully executed." They
illustrate their doctrine by the most preposterous example I have ever
seen alleged in any book, that of the Virgin Mary; who "being of the
royal blood of the ancient natural kings of Jewry obeyed the
proclamation of Augustus to go to Bethlehem. This obedience of this most
noble and most virtuous lady to a foreign and pagan prince doth well
teach us, who in comparison of her are both base and vile, what ready
obedience we do owe to our natural and gracious sovereign."
In another homily entitled "On Obedience," the duty of non-resistance,
even in defence of religion, is most decidedly maintained; and in such a
manner as might have been inconvenient in case of a popish successor.
Nor was this theory very consistent with the aid and countenance given
to the United Provinces. Our learned churchmen, however, cared very
little for the Dutch. They were more puzzled about the Maccabees. But
that knot is cut in Bishop Overall's _Convocation Book_, by denying that
Antiochus Epiphanes had lawful possession of Palestine; a proposition
not easy to be made out.
[695] Collier, 724; Neal, 495; Wood's _History of the University of
Oxford_, ii. 341. Knight was sent to the Gate-house prison, where he
remained two years. Laud was the chief cause of this severity, if we may
believe Wood; and his own diary seems to confirm this.
[696] _Parl. Hist._ 877, 395, 410, etc.; Kennet, p. 30; Collier, 740,
743. This historian, though a non-juror, is Englishman enough to blame
the doctrines of Sibthorp and Mainwaring, and, consistently with his
high-church principles, is displeased at the suspension of Abbot by the
king's authority.
[697] _State Trials_, ii. 1449. A few years before this, Abbot had the
misfortune, while hunting deer in a nobleman's park, to shoot one of the
keepers with his cross-bow. Williams and Laud, who then acted together,
with some other of the servile crew, had the baseness to affect scruples
at the archbishop's continuance in his function, on pretence that, by
some contemptible old canon, he had become irregular in consequence of
this accidental homicide; and Spelman disgraced himself by writing a
treatise in support of this doctrine. James, however, had more sense
than the antiquary, and less ill-nature than the churchmen; and the
civilians gave no countenance to Williams's hypocritical scruples.
Hacket's _Life of Williams_, p. 651; _Biograph. Britann._ art. Abbot;
Spelman's Works, part 2, p. 3; Aikin's _James I._, ii. 259. Williams's
real object was to succeed the archbishop on his degradation.
It may be remarked that Abbot, though a very worthy man, had not always
been untainted by the air of a court. He had not scrupled grossly to
flatter the king: (see his article in _Biograph. Brit._ and Aikin, i.
368) and tells us himself, that he introduced Villiers, in order to
supplant Somerset; which, though well-meant, did not become his
function. Even in the delicate business of promising toleration to the
catholics by the secret articles of the treaty with Spain, he gave
satisfaction to the king (_Hardwicke Papers_, i. 428), which could only
be by compliance. This shows that the letter in Rushworth, ascribed to
the archbishop, deprecating all such concessions, is not genuine. In
Cabala, p. 13, it is printed with the name of the Archbishop of York,
Matthews.
[698] The bishops were many of them gross sycophants of Buckingham.
Besides Laud, Williams, and Neile, one Field, Bishop of Landaff, was an
abject courtier. See a letter of his in Cabala, p. 118, 4to edit. Mede
says (27th May 1626), "I am sorry to hear they (the bishops) are so
habituated to flattery that they seem not to know of any other duty that
belongs to them." See Ellis's _Letters_, iii. 228, for the account Mede
gives of the manner in which the heads of houses forced the election of
Buckingham as Chancellor of Cambridge, while the impeachment was pending
against him. The junior masters of arts, however, made a good stand; so
that it was carried against the Earl of Berkshire only by three voices.
[699] Those who may be inclined to dissent from my text, will perhaps
bow to their favourite Clarendon. He says that in the three first
parliaments, though there were "several distempered speeches of
particular persons, not fit for the reverence due to his majesty," yet
he "does not know any formed act of either house (for neither the
remonstrance nor votes of the last day were such), that was not
agreeable to the wisdom and justice of great courts upon those
extraordinary occasions; and whoever considers the acts of power and
injustice in the intervals of parliament, will not be much scandalised
at the warmth and vivacity of those meetings." Vol. i. p. 8, edit. 1826.
THE TEMPLE PRESS, PRINTERS, LETCHWORTH
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