Those who defended the existing law, forgetting, as is often the case

with the defenders of existing laws, that it had lost its practical

efficacy, urged that the inferior ranks using manual and mechanical arts

ought like the rest to be regarded and consulted with on matters which

concerned them, and of which strangers could less judge. "We," said a

member, "who have never seen Berwick or St. Michael's Mount, can but

blindly guess of them, albeit we look on the maps that come from thence,

or see letters of instruction sent; some one whom observation,

experience, and due consideration of that country hath taught, can more

perfectly open what shall in question thereof grow, and more effectually

reason thereupon, than the skilfullest otherwise whatsoever." But the

greatest mischief resulting from an abandonment of their old

constitution would be the interference of noblemen with elections;

lords' letters, it was said, would from henceforth bear the sway;

instances of which, so late as the days of Mary, were alleged, though no

one cared to allude particularly to anything of a more recent date.

Some proposed to impose a fine of forty pounds on any borough making its

election on a peer's nomination. The bill was committed by a majority;

but as no further entry appears in the Journals, we may infer it to have

dropped.[436]

It may be mentioned, as not unconnected with this subject, that in the

same session a fine was imposed on the borough of Westbury for receiving

a bribe of four pounds from Thomas Long, "being a very simple man and of

small capacity to serve in that place;" and the mayor was ordered to

repay the money. Long, however, does not seem to have been expelled.

This is the earliest precedent on record for the punishment of bribery

in elections.[437]

_Assertion of privileges by Commons._--We shall find an additional proof

that the House of Commons under the Tudor princes, and especially

Elizabeth, was not so feeble and insignificant an assembly as has been

often insinuated, if we look at their frequent assertion and gradual

acquisition of those peculiar authorities and immunities which

constitute what is called privilege of parliament. Of these the first,

in order of time if not of importance, was their exemption from arrest

on civil process during their session. Several instances occur under the

Plantagenet dynasty, where this privilege was claimed and admitted; but

generally by means of a distinct act of parliament, or at least by a

writ of privilege out of chancery. The House of Commons for the first

time took upon themselves to avenge their own injury in 1543, when the

remarkable case of George Ferrers occurred. This is related in detail by

Holingshed, and is perhaps the only piece of constitutional information

we owe to him. Without repeating all the circumstances, it will be

sufficient here to mention, that the Commons sent their serjeant with

his mace to demand the release of Ferrers, a burgess who had been

arrested on his way to the house; that the gaolers and sheriffs of

London having not only refused compliance, but ill-treated the serjeant,

they compelled them, as well as the sheriffs of London, and even the

plaintiff who had sued the writ against Ferrers, to appear at the bar of

the house, and committed them to prison; and that the king, in the

presence of the judges, confirmed in the strongest manner this assertion

of privilege by the Commons. It was however, so far at least as our

knowledge extends, a very important novelty in constitutional practice;

not a trace occurring in any former instance on record, either of a

party being delivered from arrest at the mere demand of the serjeant, or

of any one being committed to prison by the sole authority of the House

of Commons. With respect to the first, "the chancellor," says

Holingshed, "offered to grant them a writ of privilege, which they of

the Commons' house refused, being of a clear opinion that all

commandments and other acts proceeding from the nether house were to be

done and executed by their serjeant without writ, only by show of his

mace, which was his warrant." It might naturally seem to follow from

this position, if it were conceded, that the house had the same power of

attachment for contempt, that is, of committing to prison persons

refusing obedience to lawful process, which our law attributes to all

courts of justice, as essential to the discharge of their duties. The

king's behaviour is worthy of notice: while he dexterously endeavours to

insinuate that the offence was rather against him than the Commons,

Ferrers happening to be in his service, he displays that cunning

flattery towards them in their moment of exasperation, which his

daughter knew so well how to employ.[438]

_Other cases of privilege._--Such important powers were not likely to be

thrown away, though their exertion might not always be thought

expedient. The Commons had sometimes recourse to a writ of privilege in

order to release their members under arrest, and did not repeat the

proceeding in Ferrers's case till that of Smalley, a member's servant,

in 1575, whom they sent their serjeant to deliver. And this was only

"after sundry reasons, arguments, and disputations," as the journal

informs us; and, what is more, after rescinding a previous resolution

that they could find no precedents for setting at liberty any one in

arrest, except by writ of privilege.[439] It is to be observed, that

the privilege of immunity extended to the menial servants of members,

till taken away by a statute of George III. Several persons however

were, at different times, under Mary and Elizabeth, committed by the

house to the Tower, or to the custody of their own serjeant, for

assaults on their members.[440] Smalley himself above-mentioned, it

having been discovered that he had fraudulently procured this arrest, in

order to get rid of the debt, was committed for a month, and ordered to

pay the plaintiff one hundred pounds, which was possibly the amount of

what he owed.[441] One also, who had served a subpoena out of the

star-chamber on a member in the session of 1584, was not only put in

confinement, but obliged to pay the party's expenses, before they would

discharge him, making his humble submission on his knees.[442] This is

the more remarkable, inasmuch as the chancellor had but just before made

answer to a committee deputed "to signify to him how by the ancient

liberties of the house, the members thereof are privileged from being

served with subpoenas," that "he thought the house had no such

privilege, nor would he allow any precedents for it, unless they had

also been ratified in the court of chancery."[443] They continued to

enforce this summary mode of redress with no objection, so far as

appears, of any other authority, till, by the end of the queen's reign,

it had become their established law of privilege that "no subpoena or

summons for the attendance of a member in any other court ought to be

served, without leave obtained or information given to the house; and

that the persons who procured or served such process were guilty of a

breach of privilege, and were punishable by commitment or otherwise, by

the order of the house."[444] The great importance of such a privilege

was the security it furnished, when fully claimed and acted upon,

against those irregular detentions and examinations by the council, and

which, in despite of the promised liberty of speech, had, as we have

seen, oppressed some of their most distinguished members. But it must be

owned that by thus suspending all civil and private suits against

themselves, the Commons gave too much encouragement to needy and

worthless men who sought their walls as a place of sanctuary.

This power of punishment, as it were for contempt, assumed in respect of

those who molested members of the Commons by legal process, was still

more naturally applicable to offences against established order

committed by any of themselves. In the earliest record that is extant

of their daily proceedings, the Commons' Journal of the first parliament

of Edward VI., we find, on 21st January 1547-8, a short entry of an

order that John Storie, one of the burgesses, shall be committed to the

custody of the serjeant. The order is repeated the next day; on the

next, articles of accusation are read against Storie. It is ordered on

the following day that he shall be committed prisoner to the Tower. His

wife soon after presents a petition, which is ordered to be delivered to

the Protector. On the 20th of February, letters from Storie in the Tower

are read. These probably were not deemed satisfactory, for it is not

till the 2nd of March that we have an entry of a letter from Mr. Storie

in the Tower with his submission. And an order immediately follows, that

"the king's privy council in the nether house shall humbly declare unto

the lord protector's grace, that the resolution of the house is, that

Mr. Storie be enlarged and at liberty, out of prison; and to require the

king's majesty to forgive him his offences in this case towards his

majesty and his council."

Storie was a zealous enemy of the reformation, and suffered death for

treason under Elizabeth. His temper appears to have been ungovernable;

even in Mary's reign he fell a second time under the censure of the

house for disrespect to the speaker. It is highly probable that his

offence in the present instance was some ebullition of virulence against

the changes in religion; for the first entry concerning him immediately

follows the third reading of the bill that established the English

liturgy. It is also manifest that he had to atone for language

disrespectful to the Protector's government, as well as to the house.

But it is worthy of notice, that the Commons by their single authority

commit their burgess first to their own officer, and next to the Tower;

and that upon his submission they inform the Protector of their

resolution to discharge him out of custody, recommending him to

forgiveness as to his offence against the council, which, as they must

have been aware, the privilege of parliament as to words spoken within

its walls (if we are right in supposing such to have been the case)

would extend to cover. It would be very unreasonable to conclude that

this is the first instance of a member's commitment by order of the

house, the earlier journals not being in existence. Nothing indicates

that the course taken was unprecedented. Yet on the other hand we can as

little infer that it rested on any previous usage; and the times were

just such, in which a new precedent was likely to be established. The

right of the house indeed to punish its own members for indecent abuse

of the liberty of speech, may be thought the result naturally from the

king's concession of that liberty; and its right to preserve order in

debate is plainly incident to that of debating at all.

In the subsequent reign of Mary, Mr. Copley incurred the displeasure of

the house for speaking irreverend words of her majesty, and was

committed to the serjeant at arms; but the despotic character of that

government led the Commons to recede in some degree from the regard to

their own privileges they had shown in the former case. The speaker was

directed to declare this offence to the queen, and to request her mercy

for the offender. Mary answered, that she would well consider that

request, but desired that Copley should be examined as to the cause of

his behaviour. A prorogation followed the same day, and of course no

more took place in this affair.[445]

A more remarkable assertion of the house's right to inflict punishment

on its own members occurred in 1581, and being much better known than

those I have mentioned, has been sometimes treated as the earliest

precedent. One Arthur Hall, a burgess for Grantham, was charged with

having caused to be published a book against the present parliament, on

account of certain proceedings in the last session, wherein he was

privately interested, "not only reproaching some particular good members

of the house, but also very much slanderous and derogatory to its

general authority, power, and state, and prejudicial to the validity of

its proceedings in making and establishing of laws." Hall was the master

of Smalley, whose case has been mentioned above, and had so much

incurred the displeasure of the house by his supposed privity to the

fraud of his servant, that a bill was brought in and read a first time,

the precise nature of which does not appear, but expressed to be against

him and two of his servants. It seems probable, from these and some

other passages in the entries that occur on this subject in the journal,

that Hall in his libel had depreciated the House of Commons as an estate

of parliament, and especially in respect of its privileges, pretty much

in the strain which the advocates of prerogative came afterwards to

employ. Whatever share therefore personal resentment may have had in

exasperating the house, they had a public quarrel to avenge against one

of their members, who was led by pique to betray their ancient

liberties. The vengeance of popular assemblies is not easily satisfied.

Though Hall made a pretty humble submission, they went on, by a

unanimous vote, to heap every punishment in their power upon his head.

They expelled him, they imposed a fine of five hundred marks upon him,

they sent him to the Tower until he should make a satisfactory

retractation. At the end of the session he had not been released; nor

was it the design of the Commons that his imprisonment should then

terminate; but their own dissolution, which ensued, put an end to the

business.[446] Hall sat in some later parliaments. This is the leading

precedent, as far as records show, for the power of expulsion, which the

Commons have ever retained without dispute of those who would most

curtail their privileges. But in 1558 it had been put to the vote

whether one outlawed and guilty of divers frauds should continue to sit,

and carried in his favour by a very small majority; which affords a

presumption that the right of expulsion was already deemed to appertain

to the house.[447] They exercised it with no small violence in the

session of 1585 against the famous Dr. Parry, who having spoken warmly

against the bill inflicting the penalty of death on jesuits and seminary

priests, as being cruel and bloody, the Commons not only ordered him

into the custody of the serjeant, for opposing a bill approved of by a

committee, and directed the speaker to reprimand him upon his knees, but

on his failing to make a sufficient apology, voted him no longer a

burgess of that house.[448] The year afterwards Bland, a currier, was

brought to their bar for using what were judged contumelious expressions

against the house for something they had done in a matter of little

moment, and discharged on account of his poverty, on making submission,

and paying a fine of twenty shillings.[449] In this case they perhaps

stretched their power somewhat farther than in the case of Arthur Hall,

who, as one of their body, might seem more amenable to their

jurisdiction.

_Privilege of determining contested elections claimed by the

house._--The Commons asserted in this reign, perhaps for the first time,

another most important privilege, the right of determining all matters

relative to their own elections. Difficulties of this nature had in

former times been decided in chancery, from which the writ issued, and

into which the return was made. Whether no cases of interference on the

part of the house had occurred, it is impossible to pronounce, on

account of the unsatisfactory state of the rolls and journals of

parliament under Edward IV., Henry VII. and Henry VIII. One remarkable

entry, however, may be found in the reign of Mary, when a committee is

appointed "to inquire if Alexander Nowell, prebendary of Westminster,

may be of the house;" and it is declared next day by them, that

"Alexander Nowell, being prebendary in Westminster, and thereby having

voice in the convocation-house, cannot be a member of this house; and so

agreed by the house, and the queen's writ to be directed for another

burgess in his place."[450] Nothing farther appears on record till in

1586 the house appointed a committee to examine the state and

circumstances of the returns for the county of Norfolk. The fact was,

that the chancellor had issued a second writ for this county, on the

ground of some irregularity in the first return, and a different person

had been elected. Some notice having been taken of this matter in the

Commons, the speaker received orders to signify to them her majesty's

displeasure that "the house had been troubled with a thing impertinent

for them to deal with, and only belonging to the charge and office of

the lord chancellor, whom she had appointed to confer with the judges

about the returns for the county of Norfolk, and to act therein

according to justice and right." The house, in spite of this peremptory

inhibition, proceeded to nominate a committee to examine into and report

the circumstances of these returns; who reported the whole case with

their opinion, that those elected on the first writ should take their

seats, declaring further that they understood the chancellor and some of

the judges to be of the same opinion; but that "they had not thought it

proper to inquire of the chancellor what he had done, because they

thought it prejudicial to the privilege of the house to have the same

determined by others than such as were members thereof. And though they

thought very reverently of the said lord chancellor and judges, and knew

them to be competent judges in their places; yet in this case they took

them not for judges in parliament in this house: and thereupon required

that the members, if it were so thought good, might take their oaths and

be allowed of by force of the first writ, as allowed by the censure of

this house, and not as allowed of by the said lord chancellor and

judges. Which was agreed unto by the whole house."[451] This judicial

control over their elections was not lost. A committee was appointed, in

the session of 1589, to examine into sundry abuses of returns, among

which is enumerated that some are returned for new places.[452] And

several instances of the house's deciding on elections occur in

subsequent parliaments.

This tenaciousness of their own dignity and privileges was shown in some

disagreements with the upper house. They complained to the Lords in

1597, that they had received a message from the Commons at their bar

without uncovering, or rising from their places. But the Lords proved,

upon a conference, that this was agreeable to usage in the case of

messages; though when bills were brought up from the lower house, the

speaker of the Lords always left his place, and received them at the

bar.[453] Another remonstrance of the Commons, against having amendments

to bills sent down to them on paper instead of parchment, seems a little

frivolous, but serves to indicate a rising spirit, jealous of the

superiority that the peers had arrogated.[454] In one point more

material, and in which they had more precedent on their side, the

Commons successfully vindicated their privilege. The Lords sent them a

message in the session of 1593, reminding them of the queen's want of a

supply, and requesting that a committee of conference might be

appointed. This was accordingly done, and Sir Robert Cecil reported from

it that the Lords would consent to nothing less than a grant of three

entire subsidies, the Commons having shown a reluctance to give more

than two. But Mr. Francis Bacon said, "he yielded to the subsidy, but

disliked that this house should join with the upper house in granting

it. For the custom and privilege of this house hath always been, first

to make offer of the subsidies from hence, then to the upper house;

except it were that they present a bill unto this house, with desire of

our assent thereto, and then to send it up again." But the house were

now so much awakened to the privilege of originating money-bills, that,

in spite of all the exertions of the court, the proposition for another

conference with the Lords was lost on a division by 217 to 128.[455] It

was by his opposition to the ministry in this session, that Bacon, who

acted perhaps full as much from pique towards the Cecils, and ambitious

attachment to Essex, as from any real patriotism, so deeply offended the

queen, that, with all his subsequent pliancy, he never fully reinstated

himself in her favour.[456]

_The English constitution not admitted to be an absolute

monarchy._--That the government of England was a monarchy, bounded by

law, far unlike the actual state of the principal kingdoms on the

Continent, appears to have been so obvious and fundamental a truth, that

flattery itself did not venture directly to contravene it. Hume has laid

hold of a passage in Raleigh's preface to his _History of the World_

(written indeed a few years later than the age of Elizabeth), as if it

fairly represented public opinion as to our form of government. Raleigh

says that Philip II. "attempted to make himself not only an absolute

monarch over the Netherlands, like unto the kings and sovereigns of

England and France; but, Turk-like, to tread under his feet all their

national and fundamental laws, privileges, and ancient rights." But who,

that was really desirous of establishing the truth, would have brought

Raleigh into court as an unexceptionable witness on such a question?

Unscrupulous ambition taught men in that age who sought to win or regain

the Crown's favour, to falsify all law and fact in behalf of

prerogative, as unblushingly as our modern demagogues exaggerate and

distort the liberties of the people.[457] The sentence itself, if

designed to carry the full meaning that Hume assigns to it, is little

better than an absurdity. For why were the rights and privileges of the

Netherlands more fundamental than those of England? and by what logic

could it be proved more Turk-like to impose the tax of the twentieth

penny, or to bring Spanish troops into those provinces, in contravention

of their ancient charters, than to transgress the Great Charter of this

kingdom, with all those unrescinded statutes and those traditional

unwritten liberties which were the ancient inheritance of its subjects?

Or could any one, conversant in the slightest degree with the two

countries, range in the same class of absolute sovereigns the kings of

France in England? The arbitrary acts of our Tudor princes, even of

Henry VIII., were trifling in comparison of the despotism of Francis I.

and Henry II., who forced their most tyrannical ordinances down the

throats of the parliament of Paris with all the violence of military

usurpers. No permanent law had ever been attempted in England, nor any

internal tax imposed, without consent of the people's representatives.

No law in France had ever received such consent; nor had the taxes,

enormously burthensome as they were in Raleigh's time, been imposed, for

one hundred and fifty years past, by any higher authority than a royal

ordinance. If a few nobler spirits had protested against the excessive

despotism of the house of Valois; if La Boetie had drunk at the springs

of classical republicanism; if Hottoman had appealed to the records of

their freeborn ancestry that surrounded the throne of Clovis; if Languet

had spoken in yet a bolder tone of a rightful resistance to

tyranny;[458] if the jesuits and partisans of the League had cunningly

attempted to win men's hearts to their faction by the sweet sounds of

civil liberty and the popular origin of politic rule; yet these

obnoxious paradoxes availed little with the nation, which, after the

wild fascination of a rebellion arising wholly from religious bigotry

had passed away, relapsed at once into its patient loyalty, its

self-complacent servitude. But did the English ever recognise, even by

implication, the strange parallels which Raleigh has made for their

government with that of France, and Hume with that of Turkey? The

language adopted in addressing Elizabeth was always remarkably

submissive. Hypocritical adulation was so much among the vices of that

age, that the want of it passed for rudeness. Yet Onslow, speaker of the

parliament of 1566, being then solicitor-general, in addressing the

queen says: "By our common law, although there be for the prince

provided many princely prerogatives and royalties, yet it is not such as

the prince can take money or other things, or do as he will at his own

pleasure without order, but quietly to suffer his subjects to enjoy

their own, without wrongful oppression; wherein other princes by their

liberty do take as pleaseth them."[459]

In the first months of Elizabeth's reign, Aylmer, afterwards Bishop of

London, published an answer to a book by John Knox, against female

monarchy, or, as he termed it, _Blast of the Trumpet against the

Monstrous Regiment of Women_; which, though written in the time of Mary,

and directed against her, was of course not acceptable to her sister.

The answer relies, among other arguments, on the nature of the English

constitution, which, by diminishing the power of the Crown, renders it

less unfit to be worn by a woman. "Well," he says, "a woman may not

reign in England! Better in England than anywhere, as it shall well

appear to him that without affection will consider the kind of regimen.

While I compare ours with other, as it is in itself, and not maimed by

usurpation, I can find none either so good or so indifferent. The

regiment of England is not a mere monarchy, as some for lack of

consideration think, nor a mere oligarchy nor democracy, but a rule

mixed of all these, wherein each one of these have or should have like

authority. The image whereof, and not the image but the thing indeed, is

to be seen in the parliament-house, wherein you shall find these three

estates; the king or queen which representeth the monarchy, the noblemen

which be the aristocracy, and the burgesses and knights the democracy.

If the parliament use their privileges, the king can ordain nothing

without them: if he do, it is his fault in usurping it, and their fault

in permitting it. Wherefore, in my judgment, those that in King Henry

VIII.'s days would not grant him that his proclamations should have the

force of a statute, were good fathers of the country, and worthy

commendation in defending their liberty. But to what purpose is all

this? To declare that it is not in England so dangerous a matter to have

a woman ruler, as men take it to be. For first it is not she that

ruleth, but the laws, the executors whereof be her judges appointed by

her, her justices and such other officers. Secondly, she maketh no

statutes or laws, but the honourable court of parliament; she breaketh

none, but it must be she and they together, or else not. If on the other

part the regiment were such as all hanged on the king's or queen's will,

and not upon the laws written; if she might decree and make laws alone

without her senate; if she judged offences according to her wisdom, and

not by limitation of statutes and laws; if she might dispose alone of

war and peace; if, to be short, she were a mere monarch, and not a mixed

ruler, you might peradventure make me to fear the matter the more, and

the less to defend the cause."[460]

This passage, notwithstanding some slight mistakes it contains, affords

a proof of the doctrine current among Englishmen in 1559, and may

perhaps be the less suspected, as it does not proceed from a skilful

pen. And the quotations I have made in the last chapter from Hooker are

evidence still more satisfactory, on account of the gravity and

judiciousness of the writer, that they continued to be the orthodox

faith in the later period of Elizabeth's reign. It may be observed,

that those who speak of the limitations of the sovereign's power, and

of the acknowledged liberties of the subject, use a distinct and

intelligible language; while the opposite tenets are insinuated by means

of vague and obscure generalities, as in the sentence above quoted from

Raleigh. Sir Thomas Smith, secretary of state to Elizabeth, has

bequeathed us a valuable legacy in his treatise on the commonwealth of

England. But undoubtedly he evades, as far as possible, all great

constitutional principles, and treats them, if at all, with a vagueness

and timidity very different from the tone of Fortescue. He thus

concludes his chapter on the parliament: "This is the order and form of

the highest and most authentical court of England, by virtue whereof all

these things be established whereof I spoke before, and no other means

accounted available to make any new _forfeiture of life, members, or

lands_, of any Englishman, where there was no law ordered for it

before."[461] This leaves no small latitude for the authority of royal

proclamations, which the phrase, I make no question, was studiously

adopted in order to preserve.

_Pretensions of the crown._--There was unfortunately a notion very

prevalent in the cabinet of Elizabeth, though it was not quite so

broadly or at least so frequently promulgated as in the following

reigns, that, besides the common prerogatives of the English Crown,

which were admitted to have legal bounds, there was a kind of paramount

sovereignty, which they denominated her absolute power, incident, as

they pretended, to the abstract nature of sovereignty, and arising out

of its primary office of preserving the state from destruction. This

seemed analogous to the dictatorial power, which might be said to reside

in the Roman senate, since it could confer it upon an individual. And we

all must, in fact, admit that self-preservation is the first necessity

of commonwealths as well as persons, which may justify, in Montesquieu's

poetical language, the veiling of the statues of liberty. Thus martial

law is proclaimed during an invasion, and houses are destroyed in

expectation of a siege. But few governments are to be trusted with this

insidious plea of necessity, which more often means their own security

than that of the people. Nor do I conceive that the ministers of

Elizabeth restrained this pretended absolute power, even in theory, to

such cases of overbearing exigency. It was the misfortune of the

sixteenth century to see kingly power strained to the highest pitch in

the two principal European monarchies. Charles V. and Philip II. had

crushed and trampled the ancient liberties of Castile and Arragon.

Francis I. and his successors, who found the work nearly done to their

hands, had inflicted every practical oppression upon their subjects.

These examples could not be without their effect on a government so

unceasingly attentive to all that passed on the stage of Europe.[462]

Nor was this effect confined to the court of Elizabeth. A king of

England, in the presence of absolute sovereigns, or perhaps of their

ambassadors, must always feel some degree of that humiliation with which

a young man, in check of a prudent father, regards the careless

prodigality of the rich heirs with whom he associates. Good sense and

elevated views of duty may subdue the emotion; but he must be above

human nature who is insensible to the contrast.

There must be few of my readers who are unacquainted with the animated

sketch that Hume has delineated of the English constitution under

Elizabeth. It has been partly the object of the present chapter to

correct his exaggerated outline; and nothing would be more easy than to

point at other mistakes into which he has fallen through prejudice,

through carelessness, or through want of acquaintance with law. His

capital and inexcusable fault in everything he has written on our

constitution is to have sought for evidence upon one side only of the

question. Thus the remonstrance of the judges against arbitrary

imprisonment by the council is infinitely more conclusive to prove that

the right of personal liberty existed, than the fact of its infringement

can be to prove that it did not. There is something fallacious in the

negative argument which he perpetually uses, that because we find no

mention of any umbrage being taken at certain strains of prerogative,

they must have been perfectly consonant to law. For if nothing of this

could be traced, which is not so often the case as he represents it, we

should remember that even when a constant watchfulness is exercised by

means of political parties and a free press, a nation is seldom alive to

the transgressions of a prudent and successful government. The

character, which on a former occasion I have given of the English

constitution under the house of Plantagenet, may still be applied to it

under the line of Tudor, that it was a monarchy greatly limited by law,

but retaining much power that was ill calculated to promote the public

good, and swerving continually into an irregular course, which there was

no restraint adequate to correct. It may be added, that the practical

exercise of authority seems to have been less frequently violent and

oppressive, and its legal limitations better understood in the reign of

Elizabeth, than for some preceding ages; and that sufficient indications

had become distinguishable before its close, from which it might be

gathered that the seventeenth century had arisen upon a race of men in

whom the spirit of those who stood against John and Edward was rekindled

with a less partial and a steadier warmth.[463]

FOOTNOTES:

[369] _State Trials_, i. 1148.

[370] _Id._ 1256.

[371] _Id._ 1403.

[372] Murden, 337. Dr. Lingard has fully established, what indeed no one

could reasonably have disputed, Elizabeth's passion for Anjou; and says

very truly, "the writers who set all this down to policy cannot have

consulted the original documents."--P. 149. It was altogether repugnant

to sound policy. Persons, the jesuit, indeed says, in his famous libel,

_Leicester's Commonwealth_, written not long after this time, that it

would have been "honourable, convenient, profitable, and needful:" which

every honest Englishman would interpret by the rule of contraries.

Sussex wrote indeed to the queen in favour of the marriage (Lodge, ii.

177); and Cecil undoubtedly professed to favour it; but this must have

been out of obsequiousness to the queen. It was a habit of this minister

to set down briefly the arguments on both sides of a question, sometimes

in parallel columns, sometimes successively; a method which would seem

too formal in our age, but tending to give himself and others a clearer

view of the case. He has done this twice in the present instance

(Murden, 322, 331); and it is evident that he does not, and cannot,

answer his own objections to the match. When the council waited on her

with this resolution in favour of the marriage, she spoke sharply to

those whom she believed to be against it. Yet the treaty went on for two

years; her coquetry in this strange delay breeding her, as Walsingham

wrote from Paris, "greater dishonour than I dare commit to paper."

Strype's _Annals_, iii. 2. That she ultimately broke it off, must be

ascribed to the suspiciousness and irresolution of her character, which,

acting for once conjointly with her good understanding, overcame a

disgraceful inclination.

[373] Strype, iii. 480. Stubbe always signed himself Scaeva, in these

left-handed productions.

[374] Lodge, ii. 412; iii. 49.

[375] Several volumes of the Harleian MSS. illustrate the course of

government under Elizabeth. The copious analysis in the catalogue, by

Humphrey Wanley and others, which I have in general found accurate,

will, for most purposes, be sufficient. See particularly vol. 703. A

letter, _inter alia_, in this (folio 1) from Lord Hunsdon and Walsingham

to the sheriff of Sussex, directs him not to assist the creditors of

John Ashburnham in molesting him, "till such time as our determination

touching the premises shall be known," Ashburnham being to attend the

council to prefer his complaint. See also vols. 6995, 6996, 6997, and

many others. The Lansdowne catalogue will furnish other evidences.

[376] Anderson's _Reports_, i. 297. It may be found also in the

_Biographia Britannica_, and the _Biographical Dictionary_, art.

Anderson.

[377] Lansdowne MSS. lviii. 87. The Harleian MS. 6846 is a mere

transcript from Anderson's _Reports_, and consequently of no value.

There is another in the same collection, at which I have not looked.

[378] Hume says, "that the queen had taken a dislike to the smell of

this useful plant." But this reason, if it existed, would hardly have

induced her to prohibit its cultivation throughout the kingdom. The real

motive appears in several letters of the Lansdowne collection. By the

domestic culture of woad, the customs on its importation were reduced;

and this led to a project of levying a sort of excise upon it at home.

_Catalogue of Lansdowne MSS._ xlix. 32-60. The same principle has since

caused the prohibition of sowing tobacco.

[379] Camden, 476.

[380] Rymer, xvi. 448.

[381] Many of these proclamations are scattered through Rymer; and the

whole have been collected in a volume.

[382] By a proclamation in 1560, butchers killing flesh in Lent are made

subject to a specific penalty of L20; which was levied upon one man.

Strype's _Annals_, i. 235. This seems to have been illegal.

[383] Lord Camden in 1766. Hargrave, in preface to "Hale de Jure

Coronae," in _Law Tracts_, vol. i.

[384] We find an exclusive privilege granted in 1563 to Thomas Cooper,

afterwards Bishop of Winchester, to print his _Thesaurus_, or Latin

dictionary for twelve years (Rymer, xv. 620); and to Richard Wright to

print his translation of Tacitus during his natural life; any one

infringing this privilege to forfeit 40_s._ for every printed copy.

_Id._ xvi. 97.

[385] Strype's _Parker_, 221. By the 51st of the queen's injunctions, in

1559, no one might print any book or paper whatsoever unless the same be

first licensed by the council or ordinary.

[386] A proclamation, dated February 1589, against seditious and

schismatical books and writings, commands all persons who shall have in

their custody any such libels against the order and government of the

church of England, or the rites and ceremonies used in it, to bring and

deliver up the same with convenient speed to their ordinary. _Life of

Whitgift_, Appendix 126. This has probably been one cause of the extreme

scarcity of these puritanical pamphlets.

[387] Strype's _Grindal_, 124, and Append. 43, where a list of these

books is given.

[388] Strype's _Whitgift_, 222, and Append. 94. The archbishop exercised

his power over the press, as may be supposed, with little moderation.

Not confining himself to the suppression of books favouring the two

religions adverse to the church, he permitted nothing to appear that

interfered in the least with his own notions. Thus we find him seizing

an edition of some works of Hugh Broughton, an eminent Hebrew scholar.

This learned divine differed from Whitgift about Christ's descent to

hell. It is amusing to read that ultimately the primate came over to

Broughton's opinion; which, if it prove some degree of candour, is a

glaring evidence of the advantages of that free enquiry he had sought to

suppress. P. 384, 431.

[389] Camden, 449; Strype's _Annals_, ii. 288. The queen had been told,

it seems, of what was done in Wyatt's business, a case not all parallel;

though there was no sufficient necessity even in that instance to

justify the proceeding by martial law. But bad precedents always beget

"progeniem vitiosiorem."

There was a difficulty how to punish Burchell capitally, which probably

suggested to the queen this strange expedient. It is said, which is full

as strange, that the bishops were about to pass sentence on him for

heresy, in having asserted that a papist might lawfully be killed. He

put an end, however, to this dilemma, by cleaving the skull of one of

the keepers in the Tower, and was hanged in a common way.

[390] Strype's _Annals_, iii. 570; _Life of Whitgift_, Append. 126.

[391] Rymer, xvi. 279.

[392] Carte, 693, from Stowe.

[393] Strype's _Annals_, i. 535.

[394] Strype, iii. Append. 147. This was exacted in order to raise men

for service in the Low Countries. But the beneficed clergy were always

bound to furnish horses and armour, or their value, for the defence of

the kingdom in peril of invasion or rebellion. An instance of their

being called on for such a contingent occurred in 1569. Strype's

_Parker_, 273; and Rymer will supply many others in earlier times.

The magistrates of Cheshire and Lancashire had imposed a charge of

eightpence a week on each parish of those counties for the maintenance

of recusants in custody. This, though very nearly borne out by the

letter of a recent statute (14th Eliz. c. 5), was conceived by the

inhabitants to be against law. We have, in Strype's _Annals_, vol. iii.

Append. 56, a letter from the privy council, directing the charge to be

taken off. It is only worth noticing, as it illustrates the jealousy

which the people entertained of anything approaching to taxation without

consent of parliament, and the caution of the ministry in not pushing

any exertion of prerogative farther than would readily be endured.

[395] Murden, 632. That some degree of intimidation was occasionally

made use of, may be inferred from the following letter of Sir Henry

Cholmley to the mayor and aldermen of Chester, in 1597. He informs them

of letters received by him from the council, "whereby I am commanded in

all haste to require you that you and every of you send in your several

sums of money unto Torpley (Tarporly) on Friday next the 23rd December,

or else that you and every of you give me meeting there, the said day

and place, to enter severally into bond to her highness for your

appearance forthwith before their lordships, to show cause wherefore you

and every of you should refuse to pay her majesty loan according to her

highness several privy-seals by you received, letting you wit that I am

now directed by other letters from their lordships to pay over the said

money to the use of her majesty, and to send and certify the said bonds

so taken: which praying you heartily to consider of as the last

direction of the service, I heartily bid you farewell." Harl. MSS. 2173,

10.

[396] Strype, ii. 102. In Haynes, p. 518, is the form of a circular

letter or privy-seal, as it was called from passing that office, sent in

1569, a year of great difficulty, to those of whose aid the queen stood

in need. It contains a promise of repayment at the expiration of twelve

months. A similar application was made through the lord-lieutenants in

their several counties, to the wealthy and well disposed, in 1588,

immediately after the destruction of the Armada. The loans are asked

only for the space of a year, as "heretofore has been yielded unto her

majesty in times of less need and danger, and yet always fully repaid."

Strype, iii. 535. Large sums of money are said to have been demanded of

the citizens of London in 1599. Carte, 675. It is perhaps to this year

that we may refer a curious fact mentioned in Mr. Justice Hutton's

judgment in the case of ship-money. "In the time of Queen Elizabeth (he

says), who was a gracious and a glorious queen, yet in the end of her

reign, whether through covetousness, or by reason of the wars that came

upon her, I know not by what counsel she desired benevolence, the statue

of 2nd Richard III. was pressed, yet it went so far, that by commission

and direction money was gathered in every inn of court; and I myself for

my part paid twenty shillings. But when the queen was informed by her

judges that this kind of proceeding was against law, she gave directions

to pay all such sums as were collected back; and so I (as all the rest

of our house, and as I think of other houses too) had my twenty

shillings repaid me again; and privy counsellors were sent down to all

parts, to tell them that it was for the defence of the realm, and it

should be repaid them again." _State Trials_, iii. 1199.

[397] Haynes, 518. Hume has exaggerated this, like other facts, in his

very able, but partial, sketch of the constitution in Elizabeth's reign.

[398] The following are a few specimens, copied from the Lansdowne

catalogue. "Sir Antony Cooke to Sir William Cecil, that he would move

Mr. Peters to recommend Mr. Edward Stanhope to a certain young lady of

Mr. P.'s acquaintance, whom Mr. Stanhope was desirous to marry."--Jan.

25, 1563, lxxi. 73. "Sir John Mason to Sir William Cecil, that he fears

his young landlord, Spelman, has intentions of turning him out of his

house, which will be disagreeable; hopes therefore Sir William C. will

speak in his behalf."--Feb. 4, 1566, _id._ 74. "Lord Stafford to Lord

Burleigh, to further a match between a certain rich citizen's daughter

and his son; he requests Lord B. to appoint the father to meet him (Lord

Stafford) some day at his house, 'where I will in few words make him so

reasonable an offer as I trust he will not disallow.'"--lxviii. 20.

"Lady Zouch to Lord Burleigh, for his friendly interposition to

reconcile Lord Zouch her husband, who had forsaken her through

jealousy."--1593, lxxiv. 72.

[399] _Biographia Britannica_, art. Cecil.

[400] Townsend's manuscript has been separately published; but I do not

find that D'Ewes has omitted anything of consequence.

[401] D'Ewes, p. 82; Strype, i. 258, from which latter passage it seems

that Cecil was rather adverse to the proposal.

[402] D'Ewes, p. 85. The speech which Hume, on D'Ewes's authority, has

put into the queen's mouth at the end of this session, is but an

imperfect copy or abridgment of one which she made in 1566; as D'Ewes

himself afterwards confesses. Her real answer to the speaker in 1563 is

in Harrington's _Nugae Antiquae_, vol. i. p. 80.

[403] Camden, p. 400.

[404] The courtiers told the house, that the queen intended to marry in

order to divert them from their request that they would name her

successor. Strype, vol. i. p. 494.

[405] D'Ewes, p. 128.

[406] _Id._ p. 116; Journals, 8th Oct., 25th Nov., 2nd Jan.

[407] D'Ewes, p. 141.

[408] D'Ewes, 156, etc. There is no mention of Strickland's business in

the journal.

[409] Something of this sort seems to have occurred in the session of

1566, as may be inferred from the lord keeper's reproof to the speaker

for calling her majesty's letters patent in question. _Id._ 115.

[410] _Id._ 158; Journals, 7 Apr.

[411] Journals, 9 and 10 Apr.

[412] D'Ewes, 159.

[413] D'Ewes, 151.

[414] Bell, I suppose, had reconciled himself to the court, which would

have approved no speaker chosen without its recommendation. There was

always an understanding between this servant of the house and the

government. Proofs and presumptions of this are not unfrequent. In

Strype's _Annals_, vol. iv. p. 124, we find instructions for the

speaker's speech in 1592, drawn up by Lord Burleigh, as might very

likely be the case on other occasions.

[415] D'Ewes, 219.

[416] _Id._, 213, 214.

[417] D'Ewes, 236.

[418] D'Ewes, 260.

[419] _Id._ 282.

[420] D'Ewes, 410.

[421] P. 438. Townsend calls this gentleman Davenport, which no doubt

was his true name.

[422] D'Ewes, 433.

[423] _Id. 440 et post._

[424] _Id._ 470.

[425] D'Ewes, 474; Townsend, 60.

[426] _Id._ 62.

[427] See the letter in Lodge's _Illustrations_, vol. iii. 34. Townsend

says he was committed to Sir John Fortescue's keeping, a gentler sort of

imprisonment. P. 61.

[428] D'Ewes, 470.

[429] Birch's _Memoirs of Elisabeth_, i. 96.

[430] Strype has published, from Lord Burleigh's manuscripts, a speech

made in the parliament of 1589 against the subsidy then proposed.

_Annals_, vol. iii. Append. 238. Not a word about this occurs in

D'Ewes's Journal; and I mention it as an additional proof how little we

can rely on negative inferences as to proceedings in parliament at this

period.

[431] D'Ewes, 547.

[432] Their joy and gratitude were rather premature, for her majesty did

not revoke all of them; as appears by Rymer, xvi. 540, and Carte, iii.

712. A list of them, dated May 1603 (Lodge, iii. 159), seems to imply

that they were still existing.

[433] D'Ewes, 619, 644, etc.

The speeches made in this parliament are reported more fully than usual

by Heywood Townsend, from whose journal those of most importance have

been transcribed by D'Ewes. Hume has given considerable extracts, for

the sole purpose of inferring from this very debate on monopolies, that

the royal prerogative was, according to the opinion of the House of

Commons itself, hardly subject to any kind of restraint. But the

passages he selects are so unfairly taken (some of them being the mere

language of courtiers, others separated from the context, in order to

distort their meaning), that no one who compares them with the original

can acquit him of extreme prejudice. The adulatory strain in which it

was usual to speak of the sovereign often covered a strong disposition

to keep down his authority. Thus when a Mr. Davies says in this debate:

"God hath given that power to absolute princes, which he attributes to

himself--Dixi quod dii estis;" it would have been seen, if Hume had

quoted the following sentence, that he infers from hence, that justice

being a divine attribute, the king can do nothing that is unjust, and

consequently cannot grant licences to the injury of his subjects. Strong

language was no doubt used in respect of the prerogative. But it is

erroneous to assert, with Hume, that it came equally from the courtiers

and country gentlemen, and was admitted by both. It will chiefly be

found in the speeches of Secretary Cecil, the official defender of

prerogative, and of some lawyers. Hume, after quoting an extravagant

speech ascribed to Sergeant Heyle, that "all we have is her majesty's,

and she may lawfully at any time take it from us; yea, she hath as much

right to all our lands and goods as to any revenue of her crown,"

observes that Heyle was an eminent lawyer, a man of character. That

Heyle was high in his profession is beyond doubt; but in that age, as

has since, though from the change of times less grossly, continued to be

the case, the most distinguished lawyers notoriously considered the

court and country as plaintiff and defendant in a great suit, and

themselves as their retained advocates. It is not likely, however, that

Heyle should have used the exact words imputed to him. He made, no

doubt, a strong speech for prerogative, but so grossly to transcend all

limits of truth and decency seems even beyond a lawyer seeking office.

Townsend and D'Ewes write with a sort of sarcastic humour, which is not

always to be taken according to the letter. D'Ewes, 433; Townsend, 205.

Hume proceeds to tell us, that it was asserted this session, that the

speaker might either admit or reject bills in the house; and remarks,

that the very proposal of it is a proof at what a low ebb liberty was at

that time in England. There cannot be a more complete mistake. No such

assertion was made; but a member suggested that the speaker might, as

the consuls in the Roman senate used, appoint the order in which bills

should be read; at which speech, it is added, some hissed. D'Ewes, 677.

The present regularity of parliamentary forms, so justly valued by the

house, was yet unknown; and the members called confusedly for the

business they wished to have brought forward.

[434] _Parl. Hist._ 958. In the session of 1571, a committee was

appointed to confer with the attorney and solicitor-general about the

return of burgesses from nine places which had not been presented in the

last parliament. But in the end it was "ordered, by Mr. Attorney's

assent, that the burgesses shall remain according to their returns; for

that the validity of the charters of their towns is elsewhere to be

examined, if cause be." D'Ewes p. 156, 159.

D'Ewes observes that it was very common in former times, in order to

avoid the charge of paying wages to their burgesses, that a borough

which had fallen into poverty or decay, either got licence of the

sovereign for the time being to be discharged from electing members, or

discontinued it of themselves; but that of late the members for the most

part bearing their own charges, many of those towns which had thus

discontinued their privilege, renewed it both in Elizabeth's reign and

that of James. P. 80. This could only have been, it is hardly necessary

to say, by obtaining writs out of chancery for that purpose. As to the

payment of wages, the words of D'Ewes intimate that it was not entirely

disused. In the session of 1586, the borough of Grantham complained that

Arthur Hall (whose name now appears for the last time) had sued them for

wages due to him as their representative in the preceding parliament;

alleging that, as well by reason of his negligent attendance and some

other offences by him committed in some of its sessions, as of his

promise not to require any such wages, they ought not to be charged; and

a committee having been appointed to enquire into this, reported that

they had requested Mr. Hall to remit his claim for wages, which he had

freely done. D'Ewes, p. 417.

[435] Strype mentions letters from the council to Mildmay, Sheriff of

Essex, in 1559, about the choice of knights. _Annals_, v. i. p. 32. And

other instances of interference may be found in the Lansdowne and

Harleian collections. Thus we read that a Mr. Copley used to nominate

burgesses for Gatton, "for that there were no burgesses in the borough."

The present proprietor being a minor in custody of the court of wards,

Lord Burleigh directs the Sheriff of Surrey to make no return without

instructions from himself; and afterwards orders him to cancel the name

of Francis Bacon in his indenture, he being returned for another place,

and to substitute Edward Brown. Harl. MSS. DCCIII. 16.

I will introduce in this place, though not belonging to the present

reign, a proof that Henry VIII. did not trust altogether to the

intimidating effects of his despotism for the obedience of parliament,

and that his ministers looked to the management of elections, as their

successors have always done. Sir Robert Sadler writes to some one, whose

name does not appear, to inform him that the Duke of Norfolk had spoken

to the king, who was well content he should be a burgess of Oxford; and

that he should "order himself in the said _room_ according to such

instructions as the said Duke of Norfolk should give him from the king:"

if he is not elected at Oxford, the writer will recommend him to some of

"my lord's towns of his bishopric of Winchester." Cotton MSS. Cleopatra

E. iv. 178. Thus we see that the practice of our government has always

been alike; and we may add the same of the nobility, who interfered with

elections full as continually, and far more openly, than in modern

times. The difference is, that a secretary of the treasury, or peer's

agent, does that with some precaution of secrecy, which the council

board, or the peer himself, under the Tudors, did by express letters to

the returning officer; and that the operating motive is the prospect of

a good place in the excise or customs for compliance, rather than that

of lying some months in the Fleet for disobedience.

A very late writer has asserted, as an undoubted fact, which "historic

truth requires to be mentioned," that for the first parliament of

Elizabeth, "five candidates were nominated by the court for each

borough, and three for each county; and by the authority of the

sheriffs, the members were chosen from among the candidates." Butler's

_Book of the Roman Catholic Church_, p. 225. I never met with any

tolerable authority for this, and believe it to be a mere fabrication;

not certainly of Mr. Butler, who is utterly incapable of a wilful

deviation from truth, but of some of those whom he too implicitly

follows.

[436] D'Ewes, 168.

[437] Journals, p. 88.

[438] Holingshed, vol. iii. p. 824 (4to edit.); Hatsell's _Precedents_,

vol. i. p. 53. Mr. Hatsell inclines too much, in my opinion, to

depreciate the authority of this case, imagining that it was rather as

the king's servant, than as a member of the house, that Ferrers was

delivered. But, though Henry artfully endeavours to rest it chiefly on

this ground, it appears to me that the Commons claim the privilege as

belonging to themselves, without the least reference to this

circumstance. If they did not always assert it afterwards, this negative

presumption is very weak, when we consider how common it was to overlook

or recede from precedents, before the constitution had been reduced into

a system. Carte, vol. iii. p. 164, endeavours to discredit the case of

Ferrers as an absolute fable, and certainly points out some inaccuracy

as to dates; but it is highly improbable that the whole should be an

invention. He returns to the subject afterwards (p. 541), and, with a

folly almost inconceivable even in a Jacobite, supposes the puritans to

have fabricated the tale, and prevailed on Holingshed to insert it in

his history.

[439] Journals, Feb. 22nd and 27th.

[440] Hatsell, 73, 92, 119.

[441] _Id._ 90.

[442] _Id._ 97.

[443] _Id._ 96.

[444] _Id._ 119.

[445] Journals, 5th and 7th March 1557-8.

[446] D'Ewes, 291; Hatsell, 93. The latter says, "I cannot but suspect,

that there was some private history in this affair, some particular

offence against the queen, with which we are unacquainted." But I

believe the explanation I have given will be thought more to the

purpose; and so far from having offended the queen, Hall seems to have

had a patron in Lord Burleigh, to whom he wrote many letters,

complaining of the Commons, which are extant in the Lansdowne

collection. He seems to have been a man of eccentric and unpopular

character, and had already incurred the displeasure of the Commons in

the session of 1572, when he was ordered to be warned by the serjeant to

appear at the bar "to answer for sundry lewd speeches used as well in

the house as elsewhere." Another entry records him to have been "charged

with seven several articles, but having humbly submitted himself to the

house, and confessed his folly, to have been upon the question released

with a good exhortation from the speaker." D'Ewes, 207, 212.

[447] Hatsell, 80.

[448] D'Ewes, 341.

[449] D'Ewes, 366. This case, though of considerable importance, is

overlooked by Hatsell, who speaks of that of Hall as the only one before

the long parliament, wherein the Commons have punished the authors of

libels derogatory to their privileges. P. 127. Though he speaks only of

libels, certainly the punishment of words spoken is at least as strong

an exercise of power.

[450] Journals, 1 Mary, p. 27.

[451] D'Ewes, 393, etc.

[452] _Id._ 430.

[453] _Id._ 539.

[454] _Id._ 596.

[455] D'Ewes, 486. Another trifling circumstance may be mentioned to

show the rising spirit of the age. In the session of 1601, Sir Robert

Cecil having proposed that the speaker should _attend_ the lord keeper

about some matter, Sir Edward Hobby took up the word in strong language,

as derogatory to their dignity; and the secretary, who knew, as later

ministers have done, that the Commons are never so unmanageable as on

such points of honour, made a proper apology. _Id._ 627.

[456] Birch's _Memoirs_, i. 97, 120, 152, etc., ii. 129; Bacon's Works,

vol. ii. p. 416, 435.

[457] Raleigh's _Dedication of his Prerogative of Parliaments to James

I._ contains terrible things. "The bonds of subjects to their kings

should always be wrought out of iron, the bonds of kings unto subjects

but with cobwebs."--"All binding of a king by law upon the advantage of

his necessity, makes the breach itself lawful in a king; his charters

and all other instruments being no other than the surviving witnesses of

his unconstrained will." The object, however, of the book, is to

persuade the king to call a parliament (about 1613), and we are not to

suppose that Raleigh meant what he said. He was never very scrupulous

about truth. In another of his tracts, entitled _The Prince; or,

Thesaurus of State_, he holds, though not without flattery towards

James, a more reasonable language. "In every just state some part of the

government is or ought to be impartial to the people; as in a kingdom, a

voice or suffrage in making laws: and sometimes also in levying of arms,

if the charge be great and the prince be forced to borrow help of his

subjects, the matter rightly may be propounded to a parliament, that the

tax may seem to have proceeded from themselves."

[458] _Le Contre Un_ of La Boetie, the friend of Montaigne, is, as the

title intimates, a vehement philippic against monarchy. It is subjoined

to some editions of the latter's essays. The _Franco-Gallia_ of Hottoman

contains little more than extracts from Fredegarius, Aimoin, and other

ancient writers, to prove the elective character and general freedom of

the monarchy under the two first races. This made a considerable

impression at the time, though the passages in question have been so

often quoted since, that we are almost surprised to find the book so

devoid of novelty. Hubert Languet's _Vindicae contra Tyrannos_, published

under the name of Junius Brutus, is a more argumentative discussion of

the rights of governors and their subjects.

[459] D'Ewes, p. 115.

I have already adverted to Gardiner's resolute assertion of the law

against the prince's single will, as a proof that, in spite of Hume's

preposterous insinuations to the contrary, the English monarchy was

known and acknowledged to be limited. Another testimony may be adduced

from the words of a great protestant churchman. Archbishop Parker,

writing to Cecil to justify himself for not allowing the queen's right

to grant some dispensation in a case of marriage, says, "he would not

dispute of the queen's absolute power, or prerogative royal, how far her

highness might go in following the Roman authority; but he yet doubted,

that if any dispensation should pass from her authority, to any subject,

not avouchable by laws of her realm, made and established by herself and

her three estates, whether that subject be in surety at all times

afterwards: specially seeing there be parliament laws, precisely

determining cases of dispensations." Strype's _Parker_, 177.

Perhaps, however, there is no more decisive testimony to the established

principles of limited monarchy in the age of Elizabeth, than a

circumstance mentioned in Anderson's _Reports_, 154. The queen had

granted to Mr. Richard Cavendish an office for issuing certain writs,

and directed the judges to admit him to it, which they neglected (that

is, did not think fit) to do. Cavendish hereupon obtained a letter from

her majesty, expressing her surprise that he was not admitted according

to her grant, and commanding them to sequester the profits of the office

for his use, or that of any other to whom these might appear to be due,

as soon as the controversy respecting the execution of the said office

should be decided. It is plain that some other persons were in

possession of these profits, or claimed a right therein. The judges

conceived that they could not lawfully act according to the said letter

and command, because through such a sequestration of the emoluments,

those who claimed a right to issue the writs would be disseised of their

freehold. The queen, informed that they did not obey the letter, sent

another, under the sign manual, in more positive language, ending in

these words: "We look that you and every of you should dutifully fulfil

our commandment herein, and these our letters shall be your

warrant."--21st April 1587. This letter was delivered to the justices in

the presence of the chancellor and Lord Leicester, who were commissioned

to hear their answer, telling them also, that the queen had granted the

patent on account of her great desire to provide for Cavendish. The

judges took a little time to consult what should be said; and, returning

to the Lords, answered that they desired in all respects humbly to obey

her majesty; but, as this case is, could not do so without perjury,

which they well knew the queen would not require, and so went away.

Their answer was reported to the queen, who ordered the chancellor,

chief justice of the king's bench, and master of the rolls, to hear the

judges' reasons; and the queen's council were ordered to attend, when

the queen's serjeant began to show the queen's prerogative to grant the

issuing of writs, and showed precedents. The judges protested in answer,

that they had every wish to assist her majesty to all her rights, but

said that this manner of proceeding was out of course of justice; and

gave their reasons, that the right of issuing these writs and fees

incident to it was in the prothonotaries and others, who claimed it by

freehold; who ought to be made to answer, and not the judges, being more

interested therein. This was certainly a little feeble, but they soon

recovered themselves. They were then charged with having neglected to

obey these letters of the queen; which they confessed, but said that

this was no offence or contempt towards her majesty, because the command

was against the law of the land; in which case, they said, no one is

bound to obey such command. When farther pressed, they said the queen

herself was sworn to keep the laws as well as they; and that they could

not obey this command without going against the laws directly and

plainly, against their oaths, and to the offence of God, her majesty,

the country and commonwealth in which they were born and live: so that

if the fear of God were gone from them, yet the examples of others, and

the punishment of those who had formerly transgressed the laws, would

remind them and keep them from such an offence. Then they cited the

Spensers, and Thorp, a judge under Edward III., and precedents of

Richard II.'s time, and of Empson, and the statutes from Magna Charta,

which show what a crime it is for judges to infringe the laws of the

land; and thus, since the queen and the judges were sworn to observe

them, they said that they would not act as was commanded in these

letters.

All this was repeated to her majesty for her good allowance of the said

reasons, and which her majesty, as I have heard, says the reporter, took

well; but nothing farther was heard of the business.--Such was the law

and the government, which Mr. Hume has compared to that of Turkey! It is

almost certain, that neither James nor Charles would have made so

discreet a sacrifice of their pride and arbitrary temper; and in this

self-command lay the great superiority of Elizabeth's policy.

[460] _Harborowe of True and Faithful Subjects_, 1559. Most of this

passage is quoted by Dr. M'Crie, in his _Life of Knox_, vol. i. note BB,

to whom I am indebted for pointing it out.

[461] _Commonwealth of England_, b. ii. c. 3.

[462] Bodin says the English ambassador, M. Dail (Mr. Dale), had assured

him, not only that the king may assent to or refuse a bill as he

pleases, but that il ne laisse pas d'en ordonner a son plaisir, et

centre la volonte des estats, comme on a vu Henry VIII. avoir toujours

use de sa puissance souveraine. He admitted, however, that taxes could

only be imposed in parliament. _De la Republique_, l. i. c. 8.

[463] The misrepresentations of Hume as to the English constitution

under Elizabeth, and the general administration of her reign, have been

exposed since the present chapter was written, by Mr. Brodie, in his

_History of the British Empire from the Accession of Charles I. to the

Restoration_, vol. i. c. 3. In some respects, Mr. B. seems to have gone

too far in an opposite system, and to represent the practical course of

government as less arbitrary than I can admit it to have been.

Constitutional History of England, Henry VII to George II. Volume 1 of 3 · 第 10 / 14 章