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.